dissenting:
The majority opinion finds ambiguity in the language of 33 U.S.C. § 702c. It then turns to the statute’s legislative background in an attempt to learn the immunity clause’s true scope. That the effort was exhaustive and so ably done only makes me more sure that there was no clear and universally accepted meaning placed on the indemnity clause by the 1928 Congress.
At its best the legislative history does not disprove the purposes found by my brothers in dissent from the face of the statutory language; but unless that reading is the only permissible reading, as they are persuaded, it does not end the matter. It does not because uncertainty that the 1928 Congress intended to exclude all future liability for government negligence related to flood control projects supports the argument that the Federal Tort Claims Act most directly expresses Congress’s intent in this field, and that suits for flood-related negligence should be judged only under the FTCA.1 Yet, while I see more ambiguity than do my dissenting brothers, it is of no matter because we do not write on a clean slate. Without clear evidence of what Con*607gress meant to do in 1928,1 would defer to the longstanding and unanimous construction placed on § 702c by this and other courts — a construction which has given specific and unambiguous content to the clause. The majority has not made the case for turning about at this date, regardless of any ambiguity of § 702c as an original proposition. The task of changing such a settled construction should now be left to Congress. See Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972).2
. The result of the court's holding today is that the Federal Tort Claims Act controls. The refusal to consent to liability for discretionary acts of governmental representatives in that act confines its result. Indeed, Congress considered flood control projects in passing that act.
See H.R.Rep. No. 2245, 77th Cong., 2d Sess., p. 10; S.Rep. No. 1196, 77th Cong., 2d Sess., p. 7; H.R.Rep. No. 1287, 79th Cong., 1st Sess., pp. 5-6; Hearings before House Com. on Judiciary on H.R.5373 and H.R.6463, 77th Cong., 2d Sess., p. 33. The paragraph reads as follows:
Section 402 specifies the claims which would not be covered by the bill.
The first subsection of section 402 exempts from the bill claims based upon the performance or nonperformance of discretionary functions or duties on the part of a Federal agency or Government employee, whether or not the discretion involved be abused, and claims based upon the act or omission of a Government employee exercising due care in the execution of a statute or regulation, whether or not valid. This is a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of an authorized activity, such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid.
Dalehite v. United States, 346 U.S. 15, 29 n. 21, 73 S.Ct. 956, 964 n. 21, 97 L.Ed. 1427 (1942).
. "If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court.” Flood, 407 U.S. at 284, 92 S.Ct. at 2112-13.