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Show tended to endure through the ages, the Consti- tution of tlie United States was established by the people in order "to form a more perfect Union, establish Justice, insure domestic Tran- quillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty" to themselves and their posterity. Commerce Power.-The need for central con- trol of commerce among the Colonies was an im- portant factor leading to the calling of the Con- stitutional Convention. The resulting delega- tion of power to Congress to regulate commerce with foreign nations and among the several States is especially important here. It has long been established that this power comprehends navigation. In exercising the com- merce power, Congress has jurisdiction over all navigable waters of the United States. Public navigable waterways in law are those which are navigable in fact. And if they are used, or sus- ceptible of l>eing used, in their ordinary condition, as continued highways for the transportation of persons or property in interstate commerce, they are navigable waters of the United States. Moreover, tlie commerce jurisdiction of Congress may be appropriately invoked both as to the upper nonnavigable reaches of a navigable water- way and as to its nonnavigable tributaries, if the navigable capacity of the navigable waterway is affected or if interstate commerce is otherwise affected. In addition to control over navigation, the com- merce power of Congress includes flood protec- tion and watershed development. It is likewise established tliat Congress may employ this power to authorize Federal construction of navigation and flood control improvements, at the same time providing fox Federal generation and sale of hy- droelectric power. Similarly, on streams subject to its jurisdiction, Congress may permit non- Federal development of water power upon ac- ceptance of 2u Federal license subject to prescribed conditions wlich need not be related to naviga- tion. For tlie authority of the United States over waterways in the regulation of commerce is not limited to navigation control, but is as broad as the needs of commerce. Many decisions here are for Congress alone. Thus, it may decide whether a particular project, by itself or as part of a comprehensive plan, will have such a beneficial effect on the arteries of interstate commerce as to warrant it. It may also decide what watersheds should be controlled, and what methods should be employed to protect those arteries from the disasters of floods. Despite the breadth of Federal commerce power, it should be noted that a riparian owner under State law may hold title, as between him- self and others outside of the Government, to a part of the bed of a navigable stream. For the people became sovereign following the American Revolution and thus held absolute right to navi- gable waters and the beds under them, subject to those rights delegated to the Federal Govern- ment by the Constitution. From this latter para- mount qualification evolved the general rule that the United States does not have to compensate for destruction of interests over which, at the point of conflict, it has a superior navigation easement under the Commerce Clause, the exercise of which occasions the damage. The dominant Federal right to improve navi- gable waters in the interests of navigation extends to all lands lying below the ordinary high-water mark, and the exercise of that right within these limits is not an invasion of any private property right requiring compensation. On the other hand, where a Federal navigation improvement in a navigable stream results in the flooding of land in and adjacent to a nonnavigable tributary stream, the owners of land along and within the bed of the nonnavigable stream are entitled to compensation for any resultant damage to their lands. Since the United States has control over the water power inherent in a navigable stream, it is liable to no one for its use or nonuse, and in building a dam, it must pay the judicially deter- mined fair value for the fast land taken, but nothing for the water power. Proprietary Power.-Additional Federal au- thority concerning water and land resources stems from the Property Clause of the Constitu- tion under which Congress has power to dispose 278 |
