ArtI.S8.C3.1.6.2 Hydroelectric Power; Flood Control

Article I, Section 8, Clause 3:

[The Congress shall have Power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

As a consequence, in part, of its power to forbid or remove obstructions to navigation in the navigable waters of the United States, Congress has acquired the right to develop hydroelectric power and the ancillary right to sell it to all takers. By a long-standing doctrine of constitutional law, the states possess dominion over the beds of all navigable streams within their borders, 1 but because of the servitude that Congress’s power to regulate commerce imposes upon such streams, the states, without the assent of Congress, practically are unable to use their prerogative for power-development purposes. Sensing no doubt that controlling power to this end must be attributed to some government in the United States and that in such matters there can be no divided empire,2 the Court held in United States v. Chandler-Dunbar Co., 3 that in constructing works for the improvement of the navigability of a stream, Congress was entitled, as part of a general plan, to authorize the lease or sale of such excess water power as might result from the conservation of the flow of the stream. If the primary purpose is legitimate, it said, we can see no sound objection to leasing any excess of power over the needs of the Government. The practice is not unusual in respect to similar public works constructed by State governments.4

Since the Chandler-Dunbar case, the Court has come, in effect, to hold that it will sustain any act of Congress that purports to be for the improvement of navigation whatever other purposes it may also embody, nor does the stream involved have to be one navigable in its natural state. Such, at least, seems to be the sum of its holdings in Arizona v. California, 5 and United States v. Appalachian Power Co.6 In the former, the Court, speaking through Justice Brandeis, said that it was not free to inquire into the motives which induced members of Congress to enact the Boulder Canyon Project Act, adding: As the river is navigable and the means which the Act provides are not unrelated to the control of navigation . . . the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. . . . And the fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power.7

And, in the Appalachian Power case, the Court, abandoning previous holdings laying down the doctrine that to be subject to Congress’s power to regulate commerce a stream must be navigable in fact, said: A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken, provided there must be a balance between cost and need at a time when the improvement would be useful. . . . Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. . . . Nor is it necessary for navigability that the use should be continuous. . . . Even absence of use over long periods of years, because of changed conditions, . . . does not affect the navigability of rivers in the constitutional sense.8

Furthermore, the Court defined the purposes for which Congress may regulate navigation in the broadest terms. It cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. . . . That authority is as broad as the needs of commerce. . . . Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.9 These views the Court has since reiterated. 10 Nor is it by virtue of Congress’s power over navigation alone that the National Government may develop water power. Its war powers and powers of expenditure in furtherance of the common defense and the general welfare supplement its powers over commerce in this respect. 11


  1.  Jump to essay-1Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845); Shively v. Bowlby, 152 U.S. 1 (1894).
  2.  Jump to essay-2Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U.S. 58, 80 (1898).
  3.  Jump to essay-3229 U.S. 53 (1913).
  4.  Jump to essay-4229 U.S. at 73, citing Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U.S. 254 (1891).
  5.  Jump to essay-5283 U.S. 423 (1931).
  6.  Jump to essay-6311 U.S. 377 (1940).
  7.  Jump to essay-7283 U.S. at 455-56. See also United States v. Twin City Power Co., 350 U.S. 222, 224 (1956).
  8.  Jump to essay-8311 U.S. at 407, 409-10.
  9.  Jump to essay-9311 U.S. at 426.
  10.  Jump to essay-10Oklahoma v. Atkinson Co., 313 U.S. 508, 523-33 (1941).
  11.  Jump to essay-11Ashwander v. TVA, 297 U.S. 288 (1936).