Flood Control

Opinion of the Court by Justice Douglas, announced by Justice Harlan, U.S. v. Grand River Dam Authority, 363 U.S. 229 (1960)

"...Our cases hold that such an interest is not compensable because when the United States asserts its superior authority under the Commerce Clause to utilize or regulate the flow of the water of a navigable stream there is no 'taking" of "property' in the sense of the Fifth Amendment because the United States has a superior navigation easement which precludes private ownership of the water or its flow. See United States v. Chandler-Dunbar Co., 229 U.S. 53, 69; United States v. Twin City Power Co., 350 U.S. 222, 224-225. The Government contends that the navigational servitude of the United States extends also to nonnavigable waters, pre-empting state-created property rights in such waters, at least when asserted against the Government. In the view we take in this case, however, it is not necessary that we reach that contention. Congress by the 1941 Act, already mentioned, adopted as one work of improvement 'for the benefit of navigation and the control of destructive floodwaters' the reservoirs in the Grand River. That action to protect the 'navigable capacity' of the Arkansas River (United States v. Rio Grande Irrigation Co., 174 U.S. 690, 708) was within the constitutional power of Congress. We held in Oklahoma v. Atkinson Co., 313 U.S. 508, that the United States over the objection of Oklahoma could build the Denison Dam on the Red River, also nonnavigable, but a tributary of the Mississippi. We there stated, 'There is no constitutional reason why Congress cannot, under the commerce power, treat the watersheds as a key to flood control on navigable streams and their tributaries.'" Id., at 525. And see United States v. Appalachian Power Co., 311 U.S. 377, 426; Grand River Dam Authority v. Grand-Hydro, 335 U.S. 359, 373. We also said in Oklahoma v. Atkinson Co., supra, that '. . . the power of flood control extends to the tributaries of navigable streams.' Id., at 525. We added, 'It is for Congress alone to decide whether a particular project, by itself or as part of a more comprehensive scheme, will have such a beneficial effect on the arteries of interstate commerce as to warrant it. That determination is legislative in character.' Id., at 527. We held that the fact that the project had a multiple purpose was irrelevant to the constitutional issue, id., at 528-534, as was the fact that power was expected to pay the way. Id., at 533. '[T]he fact that ends other than flood control will also be served, or that flood control may be relatively of lesser importance, does not invalidate the exercise of the authority conferred on Congress.' Id., at 533-534.

"We cannot say on this record that the Ft. Gibson dam is any less essential or useful or desirable from the view-point of flood control and navigation than was Denison Dam. When the United States appropriates the flow either of a navigable or a nonnavigable stream pursuant to its superior power under the Commerce Clause, it is exercising established prerogatives and is beholden to no one."