288 



tion for us is whether under the Act the Secretary 

 may include conservation considerations as conditions 

 to be met to make the proposed project acceptable. 

 Until now there has been no absolute answer to this 

 question. In fact, in most cases under the Rivers and 

 Harbors Act the Courts have been faced only with 

 navigation problems/'^ See, e.g., Sanitary Dist. v. 



•^Landholders cite authority holding that the Secretary is em- 

 powered to deny a permit only for navigational reason.?. Unit- 

 ed States Attorney General's opinion of Fiebruary 13, 1925, 30 

 U.S. Atty. Gen. Ops. 410 at 412, 415, 416; Miami Beach Jockey 

 Club, Inc. V. Dern, D.C. Cir., 1936, 86 F.2d 135, 136 (on petition 

 for rehearing). These determinations, by no means inexorable 

 under the wording of the statute, see Greathouse v. Dem, infra, 

 pre-date the changes wrought by the Fish and Wildlife Co- 

 ordination Act, infra. 



And they are out of step with the sweeping declaration of 

 power over commerce in United States v. Appalachian Elec- 

 tric Power Co., 1940, 311 U.S. 377, 423-27. €1 S.Ct 291, , 



85 LJSd. 243, 261-63: 



"The state and respondent, alike, ho^wever, hold the 

 waters and the lands under them subject to the power 

 of Congress to control the waters for the purpose of 

 conunerce. The power flows from the grant to regu- 

 late, i.e., to 'prescribe the rule by ^stich conunerce 

 is to be governed.* This includes the protection of 

 navigable waters in capacity as well as use. This power 

 of Congress to regulate conunerce is so imfettered 

 that its judgment as to whether a structure is or is 

 not a hindrance is conclusive. Its determination is 

 legislative in character. The Federal Government has 

 domination over the water power inherent in the flow- 

 ing stream. It is liable to no one for its use or non- 

 use. The flow of a navigable stream is in no sense 

 private property; 'that the running water in a great 

 navigable stream is capable of private ownership is 

 inconceivable.' Exclusion of riparian owners from its 

 benefits without compensation is entirely within the 



Government's discretion." 



* * • • 



*1n oiu: viev/, it cannot properly be said that the 

 constitutional power of the United States over its 



