EP 1165-2-1
0 Jul 99
CHAPTER 1
THE FEDERAL RESPONSIBILITY IN WATER RESOURCES
1-1. General. The Constitution of the United States limits the
authority of the Federal Government to those powers expressly
delegated or as may reasonably be inferred from those granted. All
other powers belong to the states or the people. Regardless of the
character of Federal undertakings, enabling authority must be found
among the powers conferred upon the Federal Government by the states.
Over the years the Congress has enacted large amounts of legislation
in accordance with those powers to define the Federal responsibility.
1-2. Federal Powers. Legislation which has been passed to define the
Federal role in water resource development is in conformance with the
following delegated powers.
a. Commerce Power. Federal commerce authority includes
navigation, and Congress has jurisdiction over all navigable waters of
the United States. This power may be extended to nonnavigable
waterways and tributaries if the navigable capacity of the navigable
waterway or interstate commerce is affected.
b. Proprietary Power. The Property Clause of the Constitution,
entrusts Congress with unlimited authority to control the use of
Federal public lands. This power is the basis for the 1902
Reclamation Act and provides the authority to sell power generated at
Federal dams.
c. War Power. The scope of this power in relation to water
resources is largely unexplored by the judiciary. However, the Court
has found that the Wilson Dam on the Tennessee River was constructed
in the exercise of war and commerce powers.
d. Treaty-Making Power. This power has importance,
particularly on international streams. Important functions with
respect to international streams have been vested in international
agencies created pursuant to the provisions of treaties. This power
is also the basis for treaties with Indian Tribes through which
certain rights to use of water have been reserved.
e. General-Welfare Power. This power must be exercised for the
common benefit as distinguished from some mere local purpose and
provides sufficient power for many large-scale water resource projects
and other internal improvements.
f. Judicial Power. Using this power the Supreme Court has
applied the principles of equitable apportionment to resolve
disposition of water controversies between states.
g. Compact Power. This power provides that no state may enter
into an agreement with another state without the consent of Congress.
1-3. The Navigation Servitude. This sovereign power allows the
Government to use lands under navigable waters for navigation related
purposes without payment under the Fifth Amendment. The power
includes the right to remove any structures within the servitude.
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