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Show USES OF NAVIGABLE WATER 119 that Congress has a substantive power to tax and appropriate for the general welfare, limited only by the requirement that it shall be exercised for the common benefit as distinguished from some mere local purpose. Continuing, the Court said that:91 Thus the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improve- ment, is now as clear and ample as its power to accomplish the same results indirectly through resort to strained interpretation of the power over navigation. But in view of this background we think that reference to the navigation power was in justification of federal action on the whole, not for effect on private rights at every location along each component project. Even if we assume, with the Government, that Friant Dam in fact bears some relation to control of navigation, we think nevertheless that Congress realistically elected to treat it as a reclamation project. It was so conceived and authorized by the President and it was so represented to Congress. Whether Congress could have chosen to take claimants' rights by the exercise of its dominant navigation servitude is immaterial. * * * The court held that Congress elected to take any State-created rights on the San Joaquin River-navigable on the lower portion of its course-under its power of eminent domain for reclamation purposes.92 The foregoing paragraphs summarize the transition in the thinking of the United States Supreme Court on the scope of congressional authority under the commerce clause. It is no longer constitutionally necessary to invoke the navigation power in authorizing construction of a dam on a navigable stream for the sole purpose of storing water for irrigation purposes in furtherance of the general welfare. But when the constitutional general welfare power is relied upon rather than its dominant commerce power, the Federal Government may more likely be required to provide compensation for injury to private water rights and property. Such matters are discussed later in chapter 21. The Supreme Court has indicated that no such compensation to property interests along navigable waters of the Unites States is generally required under a valid exercise of the commerce power unless property above the ordinary high watermark of the navigable stream is flooded or directly injured.93 91 Id. at 738-739. 92Id. at 739, 754-755 (1950). "See United States v. Virginia Elec. & Power Co., 365 U. S. 624 (1961); United States v. Rands, 389 U. S. 121 (1967); and other cases cited in these cases. See also Colberg, Inc. v. State, 67 Cal. (2d) 408, 432 Pac. (2d) 3,11, 62 Cal. Rptr. 401, 409 (1967). The extent to or circumstances in which compensation may or may not be required when rights to use, or property along, nonnavigable tributaries of such navigable waters are impaired by the exercise of the commerce power appears to be rather unsettled. See Bartke, R. W., "The Navigation Servitude and Just Compensation-Struggle for a Doctrine," 48 Ore. L. Rev. 1 (1968); Hanks, E. H., 'The Commerce Clause and The Navigation Power" in 2 "Waters and Water Rights" § 101 (R. E. Clark ed. 1967). |
