dissenting in part.
I dissent from so much of the Court’s- opinion as holds that the Secretary of the Interior has been given authority by Congress to apportion, among and within the States of California, Arizona, and Nevada, the waters of the mainstream of the Colorado River below Lee Ferry. I also dissent from the holding that in times of shortage the Secretary has discretion to select or devise any “reasonable method” he wishes for determining which users within these States are to bear the burden of that shortage. (In all other-respects Mr. Justice Stewart and I — but not Mr. Justice Douglas — agree with and join in the Court’s opinion, though not without some misgivings regarding the amounts of water allocated to the Indian Reservations.)
In my view, it is the equitable principles established by the Court in interstate water-rights cases, as modified by the Colorado River Compact and the California limitation, that were intended by Congress to govern the apportionment of mainstream waters among the Lower Basin States, whether in surplus or in shortage. A fortiori, state law was intended to control apportionment among users within a single State.
I.
Introduction.
The Court’s conclusions respecting the Secretary’s apportionment powers, particularly those in times of shortage, result in a single appointed federal official being vested with absolute control, unrestrained by adequate standards, over the fate of a substantial segment of the life and economy of three States. Such restraint upon his actions as may follow from judicial review are, as will *604be shown, at best illusory. Today’s result, I venture to say, would have dumbfounded those responsible for the legislation the Court construes, for nothing could have been farther from their minds or more inconsistent with their deeply felt convictions.
The Court professes to find this extraordinary delegation of power principally in |5 of the Project Act, the, provision authorizing the Secretary to enter into contracts for the storage and delivery of water. But §5, as is more fully shown below, pp. 615-621, infra, had no design resembling that which the Court now extracts from it. Rather, it was intended principally as a revenue measure, and the clause requiring a contract as a condition of delivery was inserted at the insistence not of the Lower but of the Upper Basin States in an effort to insure that nothing would disturb that basin’s rights under the Colorado River Compact. There was no thought that § 5 would give authority to apportion water among the Lower Basin States. Indeed, during the hearings on the third Swing-Johnson bill when § 5 took its present form, one of its principal proponents, Delph Carpenter of Colorado, specifically stated that the proposed condition of a contract was intended to require
“that the persons who receive the water shall respect and do so under the" compact. It has nothing to do with the interstate relations between Arizona and California.”1' (Emphasis added.)
And Representative Swing, coauthor of the biíl, made virtually the same point in explaining the provision before the House Rules Committee:
“The act says [in § 5] ‘The Secretary of the Interior is hereby authorized, under such general regulations *605as he may prescribe, to contract for the storage of water.’ Whose water? It does not say. It might be a community like Imperial Valley that has. already acquired a water right ... or it may be someone who hereafter will acquire a water right, but that-right will not be acquired under this bill; not from the United States Government. He will acquire his water right, if he acquires one, from the State and under the laws of the State, in which he puts the water to a beneficial use. There is nothing in this bill which puts the Government in conflict with the water laws of Arizona or Utah or any other State. As a matter of fact, the reclamation law is adopted by section 13 of this bill [now § 14], and section 8 qf the reclamation act says that what the Government does must not be in conflict with the water laws of the States, so there can be no violence done State laws on this score.” 2 (Emphasis added.)
The Court concedes, as indeed it must in the face of such unequivocal evidence, that this third Swing-Johnson bill, like its predecessors, established “no method whatever of apportioning the waters among the States of the Lower Basin.” Ante, p. 560, This concession, one would think, would end this aspect of the controversy, since § 5 as ultimately adopted is virtually the same as that proposed in the third bill.3 Yet a method of federal apportionment is discovered in the fourth Swing-Johnson bill as finally enacted, a method which ends by delegating to the Secre*606tary of the Interior the awesome power over the “water” destiny of three States. To what provision does the Court attribute this startling metamorphosis? The fundamental change in approach is apparently found in § 4 (a), which as adopted contains provisions (1) conditioning the effectiveness of the Act on seven-state ratification of the Colorado River Compact or alternatively on California’s agreement to limit its annual consumption of Colorado River water, together with six-state ratification of the Compact; and (2) giving permission to California, Arizona, and Nevada to enter a further compact apportioning certain waters to the latter two States pursuant to a stated formula.
It is manifest that § 4 (a), on which the Court so heavily relies, neither apportions the waters of the river nor vests power in any official to make such an apportionment. The first paragraph does not grant any water to anyone; it merely conditions the Act’s effectiveness on seven-state ratification of the Compact or on six-state ratification, plus California’s agreement to a limitation, i. e., a ceiling, on her • appropriations. The source of authority to make such appropriations must be found elsewhere. And the second paragraph of § 4 (a), suggesting a particular interstate agreement, similarly makes no apportionment of water among the States and delegates no power to any official to make such an apportionment. Indeed, it was accepted by the Senator from California (Mr. Johnson) only after the following colloquy with its proponent, Senator Pittman of Nevada:
“Mr. JOHNSON. . . . [W]hat I want to make clear is that this amendment shall not be construed hereafter by any of the parties to it or any of the States as being the expression of the will or the demand or the request of the Congress of the United States.
*607“Mr. PITTMAN. Exactly, not.
“Mr. JOHNSON. Very well, then.
“Mr. PITTMAN. It is not the request of Congress.
“Mr. JOHNSON. I accept the amendment, then.” 70 Cong. Rec. 472. ' •
Senator Johnson woúld surely have been surprised to learn that the formula which was not even “the request of Congress” was in truth one which the Secretary was authorized to force down the throats of the States if they did not voluntarily agree to it.
Even this brief summary, I think, casts the gravest doubts upon the Court’s construction of the Project Act as abolishing state law and accepted principles of equitable apportionment in effecting allocations of water among the States. A more detailed analysis will, I believe, demonstrate the incorrectness of the Court’s conclusions on this score and will reveal the constitutional difficulties inherent in the uncontrolled delegation of power resulting from those conclusions.
II.
The Background of the Boulder Canyon Project Act.
Judicial apportionment of interstate waters was established long before the Project Act as an effective means, of resolving interstate water disputes. Kansas v. Calorado, 206 U. S. 46. Its acceptability had never been questioned. Priority of appropriation, the basic determinant of judicial apportionment as enunciated in Wyoming v. Colorado, 259 U. S. 419, was the law in six of the Colorado Basin States,4 and senior appropriations were *608respected in the seventh.5 The law of appropriation, which rests on the basic principle that a water right depends on beneficial use and which gives priority of right to the appropriator first in time, had been repeatedly declared to be indispensable to the development of the arid lands of the West.6
This backdrQp of firm dedication to the principles of appropriation and of judicial apportionment is critical to an understanding of congressional purpose with respect to the Project Act. It is also critical to recognize that congressional compromise with these deeply respected principles was only partial; the problems facing Congress as a result of Wyoming v. Colorado were narrow. No Senator or Representative ever suggested that judicial apportionment was generally inappropriate; no Senator or Representative ever inveighed against the law of appropriation as such. The first problem was simply this: Interstate application of the doctrine of priority, unlimited by equitable considerations, threatened to deprive the four Upper Basin States of their fair share of the Colorado River because they were not so quick as California in development. The purpose of the Compact was simply to limit traditional doctrines to the extent necessary to *609avoid this extreme and harsh result, and to eliminate long and costly litigation.
It was perfectly plain that the Colorado River Compact merely guaranteed to the upper States a specified quantity of water immune from priorities below, subject to stated delivery requirements; it did nothing whatever to interfere with the law of priorities or the principles of equitable apportionment among the States of the Lower Basin.7 It was precisely because it-did not that Arizona refused to approve either the Project Act or the Compact until something was done to safeguard her share of Lower Basin water.8 Similarly, the upper States feared that in the absence of ratification by Arizona, California would be free to appropriate all the Lower Basin’s share under the Compact, and Arizona, not limited by that document, would be free to appropriate, as against the upper States, water the Compact sought to apportion to the Upper Basin.9
The remaining problem, therefore, was that California’s acquisition of priorities as against Arizona and the upper States had to be further limited. A ceiling had to be put on her interstate appropriative priorities. Solution of this narrow problem likewise did not require complete abrogation of the principles of priority and interstate judicial apportionment.
Still another, and profoundly significant, factor in understanding the effect of the Project Act on the law *610of appropriation and judicial apportionment is the pervasive hostility that many westerners had to any form of federal control of water rights. Colorado’s Delph Carpenter, who was as much responsible as any man for both the Compact and the contract requirement of § 5 of the Project Act, testified in 1925 to what he termed an insidious and calculated policy of the National Government, fostered particularly by the Departments of Interior and Justice, to encroach upon state prerogatives and supersede state authority with respect to the distribution of water. He made it clear, as did Wyoming’s Senator Kendrick, that he deemed this policy oppressive, destructive, and deplorable.10 Utah’s Senator King made the same objection on the floor of the Senate. 69 Cong. Rec. 10262. When it was suggested that Congress might legislate to meet the problem of California’s threatened preemption of the river, a storm of doubt arose as to its constitutional power to do so. Upper Basin and Arizona spokesmen — those who were to be benefited by limiting appropriations — repeatedly insisted that the only constitutional ways of apportioning the river were by suit in *611this Court or by interstate compact.11 And Senator Brat-ton of New Mexico, hardly an opponent of the Project Act, objected that by merely suggesting in § 4 (a) the terms of a compact which the States were free to modify *612or to reject, Congress was infringing upon state sovereignty. 70 Cong. Rec. 470-471.
Congress’ entire approach to the problems of prior appropriation was governed by this deep-seated hostility to federal dictation of water rights. When plans for development of the Lower Basin threatened the rights of the upper States, they did not seek the simple (and in my view constitutionally unobjectionable) solution of a legislative apportionment; They employed instead the cumbersome method ■ of interstate compact, which required authorization by Congress and by seven state legislatures prior to negotiation and ratification by the same eight bodies thereafter. When it began to appear that Arizona would not ratify the Compact, Congress still did not legislate a general apportionment. It built the statute around the provisions of the Compact, insisting on ratification by as many States as possible, even at the cost of further delaying the already overdue Project Act. It simply conditioned the use of government property and of water stored behind the dam on compliance with the Compact. Attempts to divide the Lower Basin water by interstate agreement continued through the Denver Conference called by the Upper Basin Governors in the summer of 1927 — nearly five years after negotiation of *613the Compact. Yet it was not until 1927 that an amendment was first offered to protect Arizona by a statutory limitation on California’s consumption, and it was not until 1928 that the proposal was adopted into the bill.12
Finally, when Congress ultimately resigned itself to the necessity of legislating in some way with respect to the division of Lower Basin waters, it used narrow words suitable to its narrow purpose and to its regard both for the system of judicial apportionment and appropriation and for the rights of the States. Even then Congress did not attempt to legislate an apportionment of Lower Basin water; it simply prescribed a ceiling for California. In the words of Senator Johnson, “We write, then, that California shall use perpetually only a specific amount of water, naming the maximum amount which may be used.” 69 Cong. Rec. 7250. Even this, Congress was unwilling to do directly. As reported from committee, the bill contained a provision directing the Secretary of the Interior to limit California’s consumption in the exercise of his power of contract.13 But this was replaced by the present provision, which reached the same result not via the Secretary’s contract authority but by the awkward device of requiring California’s legislature to consent to the limitation as a condition precedent to the effectiveness of the Project Act. And this was not all; to end the tale Congress added to § 4 (a) specific authorization to Arizona, California, arid Nevada to enter into an agreement to complete the division of the Lower Basin water- — the same cumbersome substitute for direct congressional appor-. tionment that had been abortively mooted for six years.
This history bears recapitulation. First, the law of appropriation,' basic to western water law, was greatly *614respected, and the solution of interstate water disputes by judicial apportionment in this Court was well established and accepted. Second, the problems created by these doctrines as applied in Wyoming v. Colorado were narrow ones, not requiring for their solution complete abrogation of well-tried principles; existing law was quite adequate to deal with all questions save those Congress expressly solved by imposing a ceiling on California. Third, Congress throughout the dispute exhibited great reluctance to interfere with the division of water by legislation, because of a deep and fundamental mistrust of federal intervention and a profound regard for state sovereignty, shared by many influential members. Finally, when Congress was forced to legislate with respect to this problem or face defeat of the entire Project Act, it chose narrow terms appropriate to the narrow problem before it, and even then acted only indirectly to require California’s consent to limiting her consumption.'
It is inconceivable that such a Congress intended that the sweeping federal power which it declined to exercise — á power even the most avid partisans of national authority might hesitate to grant to a single, administrator — be exercised at the unbridled discretion of an administrative officer, especially in the light of complaints registered about “bureaucratic” and “oppressive” interference of the Department which that very officer headed.14 It is utterly incredible that a Congress unwilling because of concern for States’ rights even to limit California’s maximum consumption to 4,400,000 acre-feet without the consent of her legislature intended to give the Secretary of the Interior authority without Califor- ■ nia’s consent to reduce her share even below that quantity in a shortage.
*615III.
The Authority of the Secretary under Section 5 of the Project Act.
The Court holds that § 5 of the Project Act, which empowers the Secretary to contract for water delivery and forbids delivery of stored water without a contract, displaces the law of apportionment among the Lower Basin States, giving the Secretary power to divide the water by contract and to distribute the burden of shortages, without respecting appropriations.
But it does not follow that because no user is entitled to stored water without a contract the Secretary may award or withhold contracts independently of priorities. In fact, § 5 reflects no such intention. The Secretary’s power to contract upon appropriate financial charges for water delivery, not included in the early bills, was added during the 1926 hearings in response to a request from Secretary of the Interior Work that users of water, as well as of power, be made to bear the cost of the project.15 At the same time § 4 (b) for the first time provided that no work under the Act should begin until these revenues were assured by the Secretary’s contracts. There was yet no provision prohibiting deliveries without contracts.16
Thus originally purely a financial tool, the contract power was later made to serve the additional purpose of enforcing the Compact’s provisions against Arizona in the absence of her ratification. At the.urging of the upper States § 8 had been amended to subject the United States in operating the dam to the Compact, to condition the enjoyment of the dam’s benefits on compliance with the Compact, and to require that contracts from the United *616States should so provide.17 The upper States then insisted on inserting the requirement in § 5 that no one was to receive stored water without a contract, expressly and solely for the purpose of tying the Compact’s enforcement to the contract power.18 There was no intent to confer absolute power to grant or withhold. Indeed, to give effect to priorities in time.of shortage, up to the maximum quantities permitted California by § 4 (a), tends to promote the stability of water uses, a policy Congress sought to further in § 5 itself by requiring that contracts be for- permanent service. In short, disregard of appropriations in one State in favor of those in, another, except as required by the inter-basin apportionment of the Compact or by the California limitation, was no part of the purpose of this section; it was designed to insure revenue and to enforce the Compact and the California limitation.19
When the provision for water delivery contracts was first inserted in the Swing bill in 1926, it prescribed that “Contracts respecting water for domestic uses may be for permanent service, but súbject to rights of prior appropriators.”20 Proponents of the bill later altered this *617provision to apply to irrigation contracts as well as to require, rather than simply to permit, that contracts be for permanent service.21 At the request of the upper States, the phrase “subject to rights of prior appropriated” Was deleted.22 The Court concludes from this bit of history that Congress considered but rejected the suggestion that the law of appropriation govern the distribution of water stored in Lake Mead. But deletion or rejection of a proposed amendment is not strong evidence of legislative intention; the reasons for deletion may be any of a great number, not the least frequent of which is that the suggestion is redundant. Here it seems clear that there was a further reason for the change. The phrase was dropped at the same time the provision requiring each user to have a contract was added. Under the bill as it stood prior to this no contract was required, and new contracts were made junior to all prior appropriators, even those initiating or perfecting rights only after the statute became effective. As amended the bill required a contract of every user of stored waters, and the deleted clause was no longer in accord with the contractual plan. If is surely stretching things to suggest that deletion of this no longer accurate language signifies that the Secretary may award contracts on his own authority, without regard for priorities that would obtain under state law.
In support of its construction of § ó the Court relies in large part upon an exchange between Senator Johnson and Senator Walsh of Montana. 70 Cong. Rec. 16&. The only thing this colloquy seems to make clear is that Senator Johnson had not comprehensively analyzed the reía-tionship between § 5 and the law of appropriation.. First he thought the Secretary would be required to deliver water to those who had appropriated it; then he said this *618would be required “[i]f they contract”; then he agreed the Secretary might withhold water “as he sees fit”; then he “doubt[ed] very much” whether the Secretary could disregard Los Angeles’ appropriations; finally he said “possibly” the Secretary might utterly ignore appropriations. This shifting dialogue can scarcely be deemed an authoritative, or even useful, aid to construction of the statute.
Nor is there warrant for the Court’s reliance on the statements of such opponents of the bill as Utah’s Representative Colton and Arizona’s Representative Douglas. Objections of opponents of a bill are seldom significant guides to its construction. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 394-395. And in any event in this instance the opponents themselves were far from consistent in their views.23
Of far greater significance are the statements of the bill’s supporters, which confirm that no power to ignore appropriations was given to the Secretary.24 Representative Swing, author of the bill, responded to Mr. Hayden’s assertion that such a power was given with an emphatic denial: “the distribution will either be by agree*619ment between the States or under their respective laws.” House Hearings, supra, note 1, at 32. The following year he explained that the United States would not dispose of water rights under the bill; it would merely store water belonging to persons acquiring their rights under state law. See pp. 604-605, supra. In 1928, defending the House bill against an Arizona witness’ charge that California might appropriate the entire Lower Basin supply, Mr. Swing did not dispute the statement as to California’s rights but reinforced it by declaring that Arizona was free to make appropriations too. Hearings before House. Committee on Irrigation and Reclamation on H. R. 5773, 70th Cong., 1st Sess. 57-58. He later assured the House that notwithstanding the bill Arizona “still has the benefit of the law of prior appropriation, and she still has the right to the beneficial use of any of the water she is able to put to use.” 69 Cong. Rec. 9781. Delph Carpenter, proponent of the § 5 contract requirement, said that it was designed to burden storage water with the Compact, and thus to protect the Upper Basin, and that “[i]t has nothing to do with the interstate relations between Arizona and California.” 25 Senator Johnson, sponsor of the Senate *620bill, told the Senate the bill was made a part of the reclamation law, which “specifically protects each State in its water rights and in the rights of the citizens of those States to water.” 68 Cong. Rec. 4292. Senator Pittman insisted there was nothing in the bill (prior to the California limitation) to prevent either Arizona or California from appropriating all the water she could usé.26 Senator Phipps, whose amendment became the California limitation, declared that any dispute over the relative rights of Arizona and of Los Angeles would be resolved by the Secretary in accordance with priority of appropriation and the normal preference for domestic over agricultural use.27
Of further weight in supporting the view that Congress did not construe § 5 to destroy the law of appropriation and apportionment is the fact that the-entire controversy over the California limitation took place after § 5 was added to the bill. Utah was so certain that Arizona remained free to appropriate water despite § 5 that she *621repealed her ratification of the six-state Compact there- ■ after.28 While the original committee amendment to the Act would have required the Secretary to limit California’s appropriations, the debates evidence no conviction that the Secretary had even a permissive authority to do so by virtue of the unamended § 5.
i — H <
The Bearing of Other Provisions of the Project Act.
Nothing in the Project Act expressly gives the Secretary power to ignore, appropriations so long as financial conditions are met and the .Compact and limitations are observed. Senators Hayden and Pittman, as the Court notes, did indicate that § 4 (a) provided for an apportionment of the water, although even they did not suggest that § 4 (a) gave any authority to the Secretary to make an apportionment by his contracts or to allocate the burdens in time of shortage. But in any event, as already noted, pp. 606-607, supra, § 4 does not by its terms make an apportionment; rather it simply requires six-state ratification of the Compact and an agreement by California to limit her share as conditions on the effectiveness of the Act, and authorizes an apportionment by the States themselves. In the words of Senator Johnson, the provision
“. . . does not divide the water between Arizona and California. It fixes a maximum amount beyond which California can not go.” 70 Cong. Rec. 385.
Nor does § 6, which requires that the dam bé operated for the satisfaction of “present perfected rights” among *622other purposes, indicate by negative implication that the Secretary may ignore all other appropriations. This provision was drafted by the Upper Basin States in order to insure that the condition of the Compact had been met to relieve them from the claims of perfected users below.29 That condition was the construction of an adequate storage reservoir against which those claims could be asserted; the Compact has nothing to do with whether rights perfected under state law since 1929 may be ignored by 'the Secretary in awarding contracts. Section 8 (b), which subjects the United States and all users of' the Project to any compact allocating among the Lower Basin States “the benefits, including power, arising from the use of water accruing to said States,” and which subjects such an agreement, if made after January 1, 1929, to any delivery contracts made prior to its approval, is similarly no authority for the Court’s conclusion. Legislative history is virtually silent as to the reason for giving such contracts precedence, but the provision seems simply to have been intended to promote the entering of contracts by insuring their permanence in accordance with the requirement of § 5.30 There is no indication in § 8 (b) whether or not the Secretary is free in awarding contracts to ignore existing appropriations; it merely evidences a policy that rights so perfected as to have been reduced to a contract for delivery at a consideration, whatever the basis on which they should be awarded, ought not to be destroyed by a subsequent interstate agreement.
If the statute were completely silent as to whether the Secretary may' disregard appropriations, the normal inference would be that'Congress did not mean to displace *623existing law. Enough has been said of the statute’s history to buttress this inference beyond question. Moreover, the statute is by no means silent on this matter. The references in § 8 (a) and (b) to “appropriators” of water stored or delivered by the Project, and in § 4 (a) to the taking of steps “to initiate or perfect any clairiis to the use of water” made available by the dam, are only the least evidence.31 Section 14 provides that the Reclamation Act shall govern the operation of Hoover Dam except as the Project Act otherwise provides. Section 8 of the Reclamation Act, 32 Stat. 390, 43 U. S. C. § 383, directs the Secretary of the Interior in carrying out his duties under the Act to proceed in accordance with state and territorial laws and declares that nothing in the federal act “shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof.”
Both Representative Swing and Senator Johnson emphasized that this provision was deliberately incorporated into the Project Act to safeguard from federal destruction the rights of the States to their shares' of the water.32 This Court made clear in Wyoming v. Colorado, 259 U. S. 419, 463, that by thus protecting the rights of any State in an interstate stream Congress intended to leave untouched the law of interstate equitable apportionment. Ivanhoe Irrig. Dist. v. McCracken, 357 U. S. 275, 291, despite its dictum that § 8 applies only to the acquisition of rights by the United States and not to its operation of *624a dam, holds only that the clear command of § 5 of the Reclamation Act, 32 Stat. 389, 43 U. S. C. § 431 — that water deliveries to each user not exceed the quantity required for 160 acres — prevails over state law, not that state law does not generally govern priorities in the use of water from federal reclamation projects under § 8.33 The Court in Ivanhoe expressly stated that it was reaching its harrow conclusion:
“[wjithout passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field . . . 357 U. S., at 292.
This general question, with reference to what is undoubtedly the most important single water project in the United States, is precisely the question before us today. In view of the language of the Project Act, as well as its background and legislative history, there can, I think, be no doubt of the answer.
y.
The Lack of Standards Defining the Limits of the Secretary's Power.
The Secretary, the Court holds, has already apportioned the waters of the mainstream by his contracts with Arizona and Nevada and has done so in accordance with the formula suggested as a basis for an interstate agreement in § 4 (a). This holding may come as a surprise to those *625responsible for a statement such as that in the Arizona contract, which provides that its terms are
“. . . without prejudice to, any of the respective contentions of said states and water users as to . . . (5) what limitations on use, rights of use, and relative priorities exist as to the waters of the Colorado River system . . .
But whether the quantum of the Secretary’s apportionment-was intentional or inadvertent, the Court holds that-such an apportionment has been made, and the relevant question for the future is the one that is perhaps primarily responsible for this litigation: How is the burden of any shortage to be borne by the Lower Basin States? This question is not decided; the Court simply states that the initial determination is for the Secretary to make.
What yardsticks has Congress laid down for him to follow? There is, it is true, a duty imposed on the Secretary under § 6 to satisfy “present perfected rights,” and if these rights are defined as those perfected on or before the effective date of the Act, it has been estimated that California’s share amounts to approximately 3,000,000 acre-feet annually. This, then, would be the floor provided by the Act for California, assuming'enough water is available to satisfy such present perfected rights. And the Act also has provided a ceiling for California: the 4,400,000 acre-feet of water (plus one-half of surplus) described in § 4 (a).
But what of that wide area between these two outer ' limits? Here, when we look for the standards defining the Secretary’s authority, we find nothing.34 Under the *626Court’s construction of the Act, in other words, Congress has made a gift to the Secretary of almost 1,600,000 acre-feet of water a year, to allocate virtually as he pleases in the évent of any shortage preventing the fulfillment of all of his delivery commitments.
The delegation of such unrestrained authority to an executive official raises, to say the least, the gravest constitutional doubts. See Schechter Poultry Corp. v. United States, 295 U. S. 495; Panama Refining Co. v. Ryan, 293 U. S. 388; cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587-589. The principle that authority granted by the legislature must be limited by adequate standards serves two primary functions vital to preserving the separation of powers required by the Constitution.35 ' First, it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people. Second, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.
The absence of standards under the Court’s construction is an instructive illustration of these points. The unrestrained power to determine the burden of shortages is the power to make a political decision of the highest order. Indeed, the political pressures that will doubtless be brought to bear on the Secretary as a result of this decision are disturbing to contemplate. Furthermore, whatever the Secretary decides to do, this Court will surely be unable effectively to review his action's, since it will not know, what guides were intended by Congress to govern those actions.
These substantial constitutional doubts do not, of course, lead to the conclusion that the Project Act must *627be held invalid. Rather, they buttress the conviction, already firmly grounded in the Act and its history, that no such authority was vested in.the Secretary by Congress. Its purpose instead was to leave these matters to state law, and developed principles of equitable apportionment, subject only to the explicit exceptions provided in the Act.
For these reasons I respectfully dissent from the construction which the Court puts upon this aspect of the Act.
Hearings before House Committee on Irrigation and Reclamation on H. R; 6251 and H. R. 9826, 69th Cong., 1st Sess. 163.
Hearings before House Committee on Rules on H. R. 9826, 69th Cong., 2d Sess. 116. The bill then under consideration, as recommended by the House Committee on Irrigation and Reclamation, appears in H. R. Rep. No. 1657, 69th Cong., 2d Sess. 29-34!
The only change that need be noted for present purposes is the addition of a clause requiring contracts to conform to §4 (a), discussed below, as well as to the Compact.
Arizona: Clough v. Wing, 2 Ariz. 371, 17 P. 453; Colorado: Coffin v. Left Hand Ditch Co., 6 Colo. 443; Nevada: Jones v. Adams, *60819 Nev. 78, 6 P. 442; New Mexico: Albuquerque Land & Irr. Co. v. Gutierrez, 10 N. Mex. 177, 61 P. 357; Utah: Stowell v. Johnson, 7 Utah 215, 26 P. 290; Wyoming: Moyer v. Preston, 6 Wyo. 308, 44 P. 845.
California: Osgood v. El Dorado Water & Deep Gravel Mining Co., 56 Cal. 571.
E. g., Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446-447, 449-450; Stowell v. Johnson, 7 Utah 215, 225, 26 P. 290, 291; Willey v. Decker, 11 Wyo. 496, 515-524, 73 P. 210, 215-218. “Irrigation,” said the Nevada court, “. . . would be strangled by the enforcement, of the riparian-principle.” Twaddle v. Winters, 29 Nev. 88, 106, 85 P. 280, 284.
Ward Bannister, Denver attorney and spokesman for the Upper Basin States, said that “[t]he purpose of the compact is to provide the three lower States with a fund of water from which they may appropriate and the four upper States with a fund of water from which they may appropriate.” Hearings before House Committee on Irrigation and Reclamation on H. R. 2903, 68th Cong., 1st Sess. 232.
See the remarks of Senator Hayden, 70. Cong. Rec. 388.
See, e. g., H. R. Rep. No. 1657, 69th Cong., 2d Sess., pt. 2, 3—4; Hearings, supra, note 2, at 34-37.
Hearings before Senate Committee on Irrigation and Reclamation pursuant to S. Res. No. 320, 68th Cong., 2d Sess. 663-675. “It was the oppression of the National Government strangling development, preventing development in the States. . . . These two experiences and others taught Colorado, Wyoming, and New Mexico the extent to' which a department of the United States would go in overriding 'State authority and oppressing whole communities. . . . Thus it came to the attention of the States, that the United States Government intended to supersede all State law and override State authority on that river. . . . [A] ny desire by a governmental bureau to ultimately, by insiduous [sic] or other methods, take over the control and dominion of the streams within the States and to override State authority at once becomes not only abhorrent but gives rise to a feeling of bitter resentment and sounds a call to arms for self-defense. . . .” Id., at 663, 665, 671, 673. See also his remarks at Hearings, supra, note 1, at 146-157.
Senator King : “If the Senator means by his statement that the Federal Government may go into a stream, whether it be the Colorado River, the Sacramento River, or a.river in the State of Montana, and put its powerful hands down upon the stream and say, 'This is mine; I can build a dam there and allocate water to whom I please, regardless of other rights, either suspended, inchoate, or perfected,’ I deny the position which the Senator takes.” 70 Cong. Rec. 169. The Senator in question was Carl Hayden; he denied that his statement, which concerned his authorization for a compact among the three lower States, meant any such thing.
Senator Phipps: “I am firmly convinced that there must be voluntary ratification on the part of each interested State in order to make the compact effective. This is the only method of settling possible controversies permanently and of putting the water of the stream to its highest beneficial use. It is the only satisfactory method; it is the only legal method to avoid proceedings in the courts which would prove costly and almost interminable.” 68 Cong. Rec. 4515.
Senator Hayden: “There are only two ways in which this controversy, can be settled. Either the States can agree upon an equitable apportionment of waters of the Colorado River or, in the absence of a compact, the Supreme Court of the United States can determine what the rights of the various States are in on [sic] that stream. . . . Arizona denies that it is within the power of Congress to apportion the waters of an interstate stream among the States.” Hearings, supra, note 2, at 75, 76. (Emphasis added.)
Representative Colton: “I have been informed that an attorney for the Reclamation Service of the United States claims that Congress has the power to allocate and apportion all of the Colorado River among the States regardless of their wishes in .the matter. Such a theory is abhorrent to our whole plan of government and particularly to the theory on which our whole system of water rights has-been built up.” Hearings before House Committee on Irrigation and Reclamation on H. R. 5773, 70th Cong., 1st Sess. 414.
. Representative Leatherwood: “[T]here are only two agencies that can allocate'the waters of this great river, the States themselves *612by treaty ratified by the Congress of the United States, or by the judicial branch of the Government; for the Congress has no power to allocate any of the waters of this river or any other river where the doctrine of prior appropriation is in force.” Hearings, supra, note 2, at 31.
Ward Bannister: “[T]here is nothing in the Federal Constitution upon which to base the power of the Federal Government to divide this water among the States. . . . [T]he same thing that would invalidate a provision inserted by Congress direct would invalidate, any rule promulgated by the Secretary of the Interior under Congressional permission, and the upper States would find .themselves utterly helpless.” Hearings, supra, n. 7, at 195.
68 Cong. Rec. 4763; S. Rep. No. 592, 70th Cong., 1st Sess. 2.
S. Rep. No. 592, 70th Cong., 1st Sess. 2.
See note 10, supra, and accompanying text.
Hearings, supra, note 1, at 6, 46.
H. R. 9826, 69th Cong., 1st Sess., § 5.
S. 1868, 69th Cong., 1st Sess.; H. R. 6261, 69th Cong., 1st Sess.; H. R. 9826, 69th Cong., 1st Sess. This amendment, wrote Secretary-Work in recommending the bill, “provides for the distribution and use of all water for irrigation, power and otherwise, in accordance with the. Colorado River compact.” Hearings, supra, note 1, at 8.
See notes 1, 2, supra, and accompanying text. Contracts Were later made subject also to the California limitation in § 4 (a).
It is significant to contrast the language giving the Secretary authority to enter water delivery contracts with that in § 5 (e), relating 'to the distribution of electrical power. The latter provision explicitly gives the Secretary authority to resolve conflicts in applications, referring him for the governing standards to “the policy expressed in the Federal Water Power Act as to conflicting applications for permits and licenses.”
Hearings, supra, note 1, at 12.
Id., at 115.
Id., at 97, 115.
Thus, almost in the same breath with which Representative Colton made his then seemingly dire prediction of national control, he declared that “Arizona is not a party at all to this compact. She and her citizens may appropriate water at any time.” 69 Cong. Rec. 9648. Arizona, as has already been pointed out, was busily opposing the bill on the specific ground that it left California free to appropriate from the river.
The one apparent exception to the unanimity of view among the bill’s supporters is the statement in Representative Smith’s report of the third Swing bill to the House: “All rights respecting water or power under the project are, under the terms of the bill, to be disposed of by contract by the Government. It is not reasonable to assúme that the Government will do anything of an unfair or prejudicial nature to Arizona.” H. R. Rep. No. 1657, 69th Cong., 2d Sess. 11.
See note 1, supra, and accompanying text. Mr. Carpenter’s remarks also included the following: “ ‘Except by contract made as herein stated’, means this: If the flow of the Colorado River is controlled and regulated by the construction of the Black Canyon Dam, and any person in the State of Arizona attempt to take any water out of the stream which has been discharged from the reservoir and is being carried in the stream bed, as a natural conduit, for delivery to lower users, this law would be brought into effect and he would be prevented from using any of that water independent of the Colorado River compact but unincumbered by any other condition for the benefit of California and Nevada. In other words, the compact does not disturb the rights between Arizona, .California, and Nevada, inter sese, as to their portion of the water.” Hearings, supra, note 1, at 163.
“If- a dam shall be built at Boulder Canyon it will impound certain waters and equate the flow below. The water below will be subject to appropriation and use by both California and Arizona .... In other words, there is nothing in this proposed legislation that could prevent Arizona from appropriating from the Colorado River within her borders all of the water she could use for irrigation.” 68 Cong. Rec. 4412.
“It seems to me that in resolving such a difficulty, should it arise, there would be taken into consideration the fact that water for clomestic use should take priority over water intended for purposes of irrigation. Aside from that, .these filings are first in point as compared with those to which the Senator from Arizona referred. They are for a superior use, and, in addition thereto, the applicant - who has made the filing has pursued the proper course in developing the manner of appropriation or the' manner of diverting the water and putting it to the highest, beneficial use. I do not anticipate any difficulty on-that score in resolving the question of priority by the Secretary of the Interior.” 70 Cong. Rec. 169.
See 68 Cong. Rec. 3064-3065; Hearings before House Committee on Irrigation and Reclamation on H. R. 5773, 70th Cong., 1st Sess. 191, 193, 214-215.
See Hearings, supra, note 1, at 98, 116, 117.
Delph Carpenter said that the Secretary’s contracts should be lagged for only a limited_period of time in order to give the States complete freedom to agree. Id., at 204.
It should also be noted that, as the Master held, § 18, quoted ante, p. 585, clearly leaves each State free to apply its own law in determining rights among users within its borders. The Court’s strained reading of this provision emasculates it entirely and sacrifices even matters of solely intrastate concern on the altar of federal supremacy.
See pp. 604-605, 619-620, supra.
Nor is anything said in City of Fresno v. California, 372 U. S. 627, relevant here, since the Court there stated only that if the Government exercises its power of eminent domain, “the effect of § 8 in' such a case is to leave to state law the definition of the property interests, if any, for which compensation must be made.” 372 U. S., at 630. Fresno did not consider-the question now presented: the effect of § 8 in the absence of any exercise of the federal power of eminent domain.
Nor, I submit, does the Court suggest any standards. Certainly, there is nothing in the enumeration of purposes in § 6 which will be of any assistance in helping the Secretary allocate the burden of shortages among competing irrigation and domestic uses within and among the Lower Basin States.
See the discussion in Comment, 14 Stan. L. Rev. 372.