Full opinion text
MacKINNON, Senior Circuit Judge: Two orders of the Federal Energy Regulatory Commission (“FERC” or the “Commission”) hold that the Washington Water Power Company (“Washington Power” or the “Company”) is required by the Federal Power Act, 16 U.S.C. § 791 et seq. (“FPA”), to obtain a license for its hydroelectric development which was completed in 1911 on the Spokane River at Little Falls, Washington. Washington Power claims it constructed, operates, and maintains the dam and associated structures under the authority of a special Act of Congress approved on March 3,1905 (the “1905 Act”), and that the Little Falls dam therefore falls within the specific exceptions contained in sections 23(a) and 23(b) of the Federal Power Act. The Commission contends for a different construction of the 1905 Act. It asserts that the 1905 Act did not authorize the construction of a dam, but only granted to the Company certain land and water rights ancillary to the actual construction of a dam and the occupation of the Spokane River. In addition, the Commission contends that in any case the Department of Interior’s approvals under the 1905 Act of the application by the predecessor of the Company, and of the application of the Company itself, were insufficient to grant the Company the right to construct and operate the dam and the accompanying hydroelectric project, since the 1905 Act allegedly did not authorize the granting of the right to build a dam, but only the use of water and land. To occupy the Spokane River, which the Commission now claims was a navigable waterway of the United States, Washington Power allegedly should have secured permission from Congress and complied with the other requirements of sections 9 and 10 of the Rivers and Harbors Appropriation Act of 1899. 30 Stat. 1151 (1899) (codified as amended at 33 U.S.C. §§ 401 and 403 (1982)) (hereinafter cited as the Rivers and Harbors Act). The Commission held that having failed to do this, Washington Power did not have a complete “permit or right of way” prior to June 10,1920 to construct or to operate the dam, and therefore the dam does not fall under the exceptions set out in sections 23(a) and 23(b) of the Federal Power Act. However, the 1905 Act incorporates by reference the water law of the State of Washington and provides that applicants for rights of way shall acquire water rights “by appropriation under and pursuant to the laws of the State of Washington.” This vital provision, which is basic to a proper interpretation of the 1905 Act, is totally ignored by the brief of the Commission. The agency gives absolutely no consideration to this important, if not controlling, provision of the Act. This failure is fatal to the Commission’s attempted construction of the Act. We hold that the Spokane River in 1905-10 was not a navigable waterway of the United States and that the Secretary of the Interior was authorized by the 1905 Act, which incorporated Washington water law by reference, to consent to and grant qualified applicants valid rights of way to construct dams on and to occupy the Spokane River at Little Falls, and to authorize the construction of the Little Falls development. Washington Power’s Little Falls development therefore comes within the statutory exceptions set forth in sections 23(a) and 23(b) of the Federal Power Act, and the Company is not required, now that the River below Little Falls has become navigable, to obtain a license to continue to operate and maintain the development at Little Falls. I. Background Around 1905, David Wilson, a private entrepreneur responsible for much of the development of western Washington State, owned land on the south bank of the Spokane River at Little Falls, about 45 miles downstream from Spokane, Washington (J.A. 637-42). Wilson wanted to use the 83 foot drop in the river at that point (J.A. 637) to produce electricity and to do so needed to obtain an interest in the land on the north bank and in the bed and waters of the river itself. However, the north bank of the river and all land up to the high water mark on the south bank was within the Spokane Indian Reservation (the “Reservation”). Wilson could have obtained a permit from the Secretary of the Interior to use a right of way through the Reservation for a dam, etc., under the Act of February 15, 1901, 31 Stat. 790, which applied generally to public lands and reservations. Such permit, however, would have been revocable at the discretion of the Secretary. Id. Moreover, it would not have included the right to the use of the river’s water. Id. Unwilling to invest in building a power dam under these circumstances, Wilson enlisted the help of Representative Jones of Washington, the Congressman for the district, to sponsor a bill, which was enacted, “[providing for the acquirement of water rights ... [and] land ... for sites for power purposes and the beneficial use of said water, and for other purposes.” 33 Stat. 1006 (1905). This bill applied only to the Spokane River along the southern boundary of the Spokane Indian Reservation and became the 1905 Act. It empowered the Secretary of the Interior to “consent ” to citizens, associations and corporations of the United States acquiring “the use of the waters of the Spokane River” along the southern boundary of the Spokane Indian Reservation. The “right” to the use of this water was to be acquired, under the procedure provided for by the Act, by “appropriation under and pursuant to the laws of the State of Washington.” It also empowered the Secretary of Interior to grant such appropriators “land” within the Reservation “for the erection of suitable water, electrical, or power plants, dams ... and other needful structures required for the development of power or for the beneficial use of said water.” Id. § 2 (emphasis added). Immediately after Congress passed the 1905 Act, Wilson took the initial step to appropriate a flow of 10,000 cubic feet per second at Little Falls pursuant to and in accordance with the laws of Washington, and applied under the 1905 Act to the Secretary of Interior to acquire the right to use the waters of the Spokane River at the point of appropriation and to purchase 100 acres of the Reservation on the north bank of the river. The Secretary of the Interior, on November 3, 1906, acting in accordance with the 1905 Act, granted the 100 acres and the right to use the waters by approving Wilson’s application (J.A. 261-81). This approval constituted the “1906 permit.” Less than a year later, on July 8, 1907, Wilson sold his interests in the lands and water rights to Washington Power (J.A. 298-322). In 1908, the Company began construction of the hydroelectric development. The dam was constructed by the Company without complying with sections 9 and 10 of the Rivers and Harbors Act, 33 U.S.C. §§ 401 and 403, as would have been required if the Spokane River at that time and place was a “navigable river ... of the United States ... or ... navigable ... wholly within [Washington].” Washington Power also developed the Little Falls plant on the opposite side of the river from the site originally contemplated by Wilson, and so used some lands of the Reservation that were not included in the interests assigned to the Company by Wilson. Thus Washington Power itself appropriated a flow of 10,000 cubic feet per second pursuant to the laws of the State of Washington. On May 18, 1908, Washington Power applied under the 1905 Act to the Secretary of the Interior to acquire the right to use the waters of the Spokane River at the point of its appropriation and to purchase an additional eight acres of Reservation lands at the same point (J.A. 328-409). On August 29, 1908, an Assistant Secretary of the Interior endorsed the initial approval of this acquisition by the Commissioner of Indian Affairs (J.A. 435). This constituted the “1908 permit.” The original Wilson grant was also resurveyed by Captain Webster, United States Army, and others (J.A. 531-32), and approved by the Secretary of the Interior on May 6, 1910. The dam began producing electric power the same year. The issue in this case is whether the present Commission correctly held, given the foregoing facts, that the present Federal Power Act, as enacted in 1920 and amended in 1935, requires Washington Power now to apply for and obtain a license in order to continue to operate and maintain the 1911 Little Falls hydroelectric development. We hold that under the exceptions contained in sections 23(a) and 23(b) of the Act, Washington Power is not required to apply for or to have any additional license or authority to continue to operate and maintain the existing Little Falls plant. II. The Statutory Framework and the Law of Appropriation in Washington Sections 23(a) and 23(b) of the Federal Power Act, 16 U.S.C. §§ 816 and 817, provide: Sec. 23(a) The provisions of this Part shall not be construed as affecting any permit or valid existing right-of-way heretofore granted or as confirming or otherwise affecting any claim, or as affecting any authority heretofore given pursuant to law ... (41 Stat. 1075, 49 Stat. 846). Cf. 16 U.S.C. § 816 (emphasis added). (b) It shall be unlawful for any person, state, or municipality, for the purpose of developing electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the United States, or upon any part of the public lands or reservations of the United States (including the Territories), or utilize the surplus water or water power from any Government dam, except under and in accordance with the terms of a permit or valid existing right-of- way granted prior to June 10, 1920, or a license granted pursuant to this Act____ 16 U.S.C. § 817 (41 Stat. 1075, 49 Stat. 896) (emphasis added). The first question that must be addressed, is whether Washington Power prior to June 10, 1920, possessed a “valid existing right-of-way” to “operate, or maintain [a] dam” at Little Falls on the Spokane River. Since the critical language of the exception is in the disjunctive, it is not necessary to determine in addition whether the Secretary’s action also constituted a “permit ” to “construct [a] ... dam” (emphasis added). It is clear from the language of the 1905 Act and from the contemporary laws of the State of Washington, which Congress incorporated by reference, that Washington Power had acquired a “valid existing right-of-way” to construct, operate, and maintain the Little Falls dam by the time it began producing electricity in 1910. The 1905 Act provides: That the right to the use of the waters of the Spokane River where the said River forms the southern boundary of the Spokane Indian Reservation may, with the consent of the Secretary of the Interior, be acquired by any citizen, association, or corporation of the United States by appropriation under and pursuant to the laws of the State of Washington. Section 1, 33 Stat. 1006 (emphasis added). The 1905 Act sets out unambiguously Congress’ intention as to the manner of acquiring the right to the use of these waters: “by appropriation under and pursuant to the laws of the State of Washington.” Id. The 1905 Act thus incorporates by reference the state law of Washington as to the appropriation of water and makes it the congressionally mandated federal law governing the portion of the Spokane River bordering on the Spokane Indian Reservation. This was a completely sensible course for Congress to take. Appropriation is a fundamental doctrine of water law in the western states. This doctrine developed in California in the first decade after the American conquest. Congress had failed to prescribe any legislative rules to govern water use on the public lands of these new federal territories, so miners without title based their use of water on the simple but effective doctrine of first come, first served. The common law of England, based on ownership of land and riparian use of streams, based on ownership of land and riparian use of streams, was generally ignored and another common law. grew out of the customs and usages of the early American west, inspired principally by the paramount interest in mining precious minerals. The doctrine of appropriation, however, did not govern the water rights of Indian tribes and pueblos under federal law or the proprietary rights of the federal government. See generally 1 W. Hutchins, Water Rights in the Nineteen Western States 13-20 (1971). When Wilson wanted to appropriate the flow of the Spokane River by building a dam across it, therefore, the rights of the Spokane Indians and the federal government stood in the way. This case thus becomes clearer if we first consider how Wilson would lawfully have proceeded under the laws of Washington, as Congress directed, had he chosen to appropriate water from a nonnavigable river on public land not within a federal Indian reservation. The procedure for appropriating water in effect in Washington when the 1905 Act was passed was established by the Act of 1891, passed by the Washington State Legislature in its second year of existence. 1891 Wash.Laws c. 142. The Act of 1891 provided that the right to the use of the water of streams, lakes, and certain other named surface sources for irrigation, mining, manufacturing, domestic, or municipal purposes could be acquired by appropriation. The 1891 procedure remained in effect until 1917, when another statute superseded it. While the 1891 Act did not provide specifically for appropriation for the production of electric power, the Washington Supreme Court ruled in 1908 that the statute did not provide the exclusive means of exercising the appropri-ative right. Rather, water rights could be appropriated in the customary way, the statute only providing one means to prove and preserve the' right. Kendall v. Joyce, 48 Wash. 489, 93 P. 1091 (1908). The Washington Supreme Court, in one of its earliest water rights decisions, had already announced, moreover, the essentials of a valid appropriation of water. Appropriation, the court stated, comprises the intent to take water, accompanied by some open, physical demonstration thereof, for some valuable use, followed up with reasonable diligence and consummated without unnecessary delay. Ellis v. Pomeroy Improvement Co., 1 Wash. 572, 21 P. 27 (1889). Construction of a dam for hydroelectricity unquestionably may satisfy these requirements for a valid appropriation. Thus if Wilson had built his dam and power plant on a nonnavigable stream flowing through public land in Washington, not on a federal reservation, he would have, leaving the rest of the facts of this case unchanged, acquired a valid interest in the waters of that stream through appropriation under Washington law. This legal system was well-established by 1905 and it is explicitly this body of law to which the 1905 Act referred. The existence of the Spokane Indian Reservation through whose lands flowed the Spokane River at Little Falls, however, obviously complicated the task of the would-be appropriator. In 1899, the United States Supreme Court ruled in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 702, 19 S.Ct. 770, 774, 43 L.Ed. 1136 (1899), that the federal government could reserve the use of water originating on or flowing through land owned by the federal government from appropriation under state law. This rule was affirmed in United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), and in 1908, the landmark case of Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), followed this line of authority, and dealt specifically with the reservation against appropriation of water of a nonnavigable stream bordering the Fort Belknap Indian Reservation in Montana. In 1905, therefore, any appropriation at Little Falls under Washington state law would risk being trumped by the superior rights under the doctrine applicable to federal reservations. Any right arising from an attempt to appropriate water solely under Washington law from a stream flowing through a federal Indian reservation would have been precarious indeed. Neither did statutory law provide much leeway to appropriators of water on Indian reservations. In the Act of February 15, 1901, 31 Stat. 790, previously referred to (see n. 1), Congress permitted the development of hydro-electric power on Federal reservations by authorizing the Secretary of Interior to permit the use of rights of way through public lands, forests, and other reservations of the United States, including Indian reservations, for electrical plants, poles, and lines for generation and distribution of electric power, as well as for “dams” used for any beneficial purpose. The 1901 Act, however, provided that any permission given by the Secretary of the Interior (the “Secretary”) under the 1901 Act “may be revoked by [the Secretary] in his discretion, and shall not be held to confer any right or easement, or interest in, to, or over any public land, reservation, or park.” Id. The 1905 Act, however, is a special act that granted greater and different rights than the 1901 Act. That was its purpose. It specifically authorizes the Secretary to grant land on the Reservation to appropriators of water under the laws of Washington for the “erection of electrical, or power plants, dams for the development of power or for the beneficial use of said water,” 1905 Act, § 2, without conferring on the Secretary any right to revoke the right of way at will. The 1905 Act further adopts, mutatis mutandis, for the purposes of determining compensation, the Act of March 2, 1899, pertaining to “rights-of-way by railroad companies through Indian Reservations.” 30 Stat. 990 (emphasis added). The special Act of the 1905 Congress thus served several purposes. By providing that rights in the waters of the Spokane River bordering the Reservation could be acquired, with the consent of the Secretary, in accordance with the laws of the State of Washington, it cleared away any obstacle for hydroelectric development that may have existed under the federal reservation doctrine, which as we have seen, potentially conflicted with the state appropriation law. It provided, moreover, a means to compensate residents of the Reservation for any damage done to their property by the construction of dams and other works. And finally, it increased the incentive and ability to develop the water power of the Spokane River by obviating the Secretary’s discretion to revoke at will hydroelectric rights of way that might be granted to that river along the southern boundary of the Reservation. Thus Congress clearly intended by the special Act to establish the framework by which hydroelectric developers could acquire the land on the banks, and the right to the use of the waters and the bed of the Spokane River to produce electricity. This interpretation is confirmed by the language of the Act itself, its legislative history, and related statutory law. In the 1905 Act Congress authorized the Secretary of the Interior to grant ... land on [the Spokane Indian Reservation] ... such as shall be necessary and requisite ... for the erection of suitable ... electrical, or power plants, [and] dams ... required for the development of power or for the beneficial use of said water [upon showing to the satisfaction of the Secretary of Interior that the applicant had the] ... intent and ability to use said lands for the purposes above specified____ Act of Mar. 3, 1905, 33 Stat. 1006, § 2. The language of the Act clearly contemplates the grant of land by the Secretary for the specific purpose of constructing a dam, a reservoir and other works. The grant for that purpose implicitly confers on an approved applicant the right “to use said lands for [said] purpose” — otherwise the grant would be sterile and no federal law at that time prohibited such use. These grants constitute “rights-of-way” for the “erection of suitable ... electrical ... plants, dams, [etc.]” The Act also recognizes that the necessary water rights are to be “acquired ... by appropriation under the laws of Washington,” provided that the applicant made the additional showing that he was able and intended “to use said lands for the [specified] purposes.” Act of 1905, 33 Stat. 1006, § 2. All of this flows from the Act to be administered by the Secretary of the Interior. Section 3 of the Act, moreover, clearly indicates that Congress intended the Act to authorize the granting of rights of way. That section provides that “the compensation to be paid for said land ... shall be determined in the manner prescribed ... in the Act of [March 2, 1899, which provided] ... for the acquiring of rights-of-way by railroad companies through Indian reserva-tions____” Id. § 3 (emphasis added). The Act of March 2,1899 (30 Stat. 990) provided for railroad companies to acquire “rights-of-way” for the purpose of constructing railroads through Indian reservation lands and for the payment of compensation for damage caused by the “construction” of railroads. 30 Stat. at 990-92. It would be mysterious indeed if . Congress relied on a statute that provided compensation for damages caused by the “construction” of railroads as the model for a statute which, under FERC’s attempted construction, did not authorize the “construction” of dams. For if Congress did not intend dams and other works to be constructed on the “rights-of-way” it provided for, there is no explanation for its including a specific provision for the payment of compensation for damages caused by construction. What other construction would there be? No compensatory damage would result merely from the acquisition of unused rights of way and water rights. The correct reading of the 1905 Act, of course, avoids this enigmatic and unreasonable construction. Congress intended to provide for the granting of rights of way for the construction of dams and the statutory means to compensate parties for any damage done to them by such construction, just as Congress had provided for with respect to the construction of railroads. To construe the 1905 Act now, eighty years later, as not authorizing the construction of the dam, which was the single purpose Congress passed the Act and for which the Secretary granted the land and consented to the acquisition and use of the necessary water rights in the first place, would frustrate the clear intent of Congress expressed in the 1905 Act and the sole reason for its enactment. The erection of a dam or dams for hydroelectric development was the express purpose for which grants of rights of way were authorized by the 1905 Act, and Wilson and Washington Power both expressly requested authorization to exercise the right to construct a dam. See infra at 320-21. Indeed, as noted above, section 2 of the Act required an applicant to demonstrate the “intent and ability” to erect the necessary structures required for the development of power or for the beneficial use of the water before he could be granted or acquire any land or water rights. A. The Legislative History The FERC rejects this appeallingly straightforward interpretation of the statute and contends instead that the intent of Congress cannot be interpreted as authorizing the actual building of a dam. The Commission’s only plausible support for this view is the colloquy on the House floor, set forth in the margin, between Representative Jones of Washington, the author of the bill (H.R. 15609), and Representatives Dalzell and Lovering on February 11, 1905, the day the House passed the bill. The Act itself is sufficiently clear on its face so as not to require or authorize recourse to legislative history. United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1280, 6 L.Ed.2d 575 (1961); Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 106 (D.C.Cir.1976). However, even the legislative history undergirds the view that the Act contemplated the construction of a dam, as careful examination of the colloquy between Congressmen Jones and Dalzell and Lovering reveals. In this colloquy, Mr. Dalzell first inquired “How is the water power to be used, by dams in the river?’ Mr. Jones of Washington replied; They will probably dam the river. This is a matter they are willing to take care of at some future Time. I will say, however, that the War Department had the matter investigated, and I know from personal observation that that part of the river is not navigable. This is simply a matter in reference to Indian lands, however, and the acquirement of water rights. 39 Cong.Rec. 2413 (1905) (emphasis added). From the foregoing exchange, it is clear that Jones plainly told Congress that erecting a “dam [in] the river” was more than a possibility, it was a probability that “they [Wilson and later the company] are willing to take care of at some future time.” In making this representation to Congress, Representative Jones gave the House (and us) the underlying explanation why the Bill took the form it did. He stated categorically that “the War Department had the matter [navigability] investigated and [Rep. Jones] knew from personal observation that that part of the [Spokane] river is not navigable” (emphasis added). Had the river been navigable, the consent of the Secretary of Interior would probably not have been sufficient since the Rivers and Harbors Appropriation Act of 1899 required the consent of Congress and the Army Corps of Engineers before a party could lawfully obstruct a navigable stream with a dam. Since the river was not navigable, however, as we discuss below, the consent of Congress and other requirements of the Rivers and Harbors Act were not applicable. Representative Jones then stated to Congress that the bill “simply affects Indian lands and provides means by which persons can acquire the permanent rights” See note 7 supra (emphasis added). This expression of congressional intent indicates that the interests in the lands that would be granted by the Secretary of the Interior to erect dams, acquire water rights, etc., pursuant to this special Act of March 3, 1905, would be “permanent” rights so long as they were used for the purposes Congress empowered the Secretary to approve. The Reservation lands ran to the high water mark on the south side of the River and thus the grant included the river bed sufficient to erect the needed dam, since the applicants already owned the contiguous land on the south bank necessary for the dam. The colloquy then continued to the point where Jones made the remark upon which the Commission relies so heavily: Mr. Lovering. Does [the bill] carry the right to dam the river? Mr. Jones of Washington. Oh, no; not at all. That matter, if it came up, would have to go to the Committee on Interstate and Foreign Commerce. They have to take their chances on that. Id. The FERC contends this exchange demonstrates that “the 1905 Act dealt with the granting of water and land rights, not the authority to build a dam.” Brief of FERC at 16. This position ultimately leads the FERC to conclude that Washington Power was without authority to erect the dam in 1908-10 and that it has operated the dam for over 70 years without valid authority. This construction of Congressman Jones’ remark is, however, too broad. It ignores the earlier statement by the bill’s author that “[t]hey will probably dam the river.” It also ignores the plain language of the Act. The reconciliation of these two statements, that “they will probably dam the River” and that the bill does not carry the right to dam the river is in fact, however, not difficult. We may begin with the unambiguous statement that Wilson and company “will probably dam the river” and that “they are willing to take care of [that matter] at some future time.” Congressman Jones obviously took the inquiry of Congressman Lovering to be an inquiry directed to Committee jurisdiction. His reply to the inquiry whether “the bill [carried] the right to dam the river,” was directed to whether the terms of the bill required it to be considered by the Committee on Interstate and Foreign Commerce which had jurisdiction over legislation involving navigable waters of the United States. Thus Congressman Jones’ reply was indicating that the bill authorized “the acquirement of water rights” for which “[t]hey will probably dam the river,” and that they could do this because “that part of the river is not navigable.” However, if in the future the “matter [of building a dam in navigable waters] came up [it] would have to go to the Committee on Interstate and Foreign Commerce.” This interpretation reconciles both Congressman Jones’ remarks and explains his reply in terms related to the jurisdiction of the Committee on Interstate and Foreign Commerce. Congressman Lovering of Massachusetts, the second member who inquired concerning the right to dam the river, was one of the more senior members of that Committee. 1905 Congressional Directory 182. Congressman Dalzell, who questioned Congressman Jones as to whether the river would be dammed and from what committee the bill was reported, was a member of the Rules Committee. He was undoubtedly concerned with whether the bill was proper for consideration on the unanimous consent calendar as well as whether the House committee with appropriate jurisdiction over the damming of navigable rivers had reported the bill. The bill had been reported out by the Committee on Indian Affairs and was being considered on the unanimous consent calendar. If the river was navigable, the Committee on Interstate and Foreign Commerce would have had jurisdiction; then Congressmen Dalzell and Lovering would have realized the bill had not come from the correct committee, and either could have stopped it by a single objection. There was, moreover, a chance that in the future the “matter” of damming a navigable river would come up, since at the time the bill was being considered, an officer of the Army Corps of Engineers was conducting a navigability study of the river (J.A. 623). While Congressman Jones was confident from personal observation, and his stated knowledge of the War Department investigation (39 Cong.Rec. 3413), that the river was not navigable, if the study determined it was, the Committee of Interstate and Foreign Commerce would have had to approve legislation authorizing obstruction of the stream. The river was not navigable, however, and the matter did not come up. The House therefore passed the bill on Congressman Jones’ representation, based on the War Department’s investigation and his personal observation, that the river was not navigable. The bill was passed by the House on February 11, 1905, 39 Cong.Rec. 2713, and 20 days later on March 2,1905 by the Senate. 39 Cong.Rec. 3847. There was ample time after the House passed the bill and before the Senate passed it for the War Department to intervene and correct any inaccurate assessment of the River’s navigability. The fact that neither the War Department nor any other party attempted to stop this bill by claiming the river was in fact navigable, is strong evidence that no one in authority doubted that the river was not navigable. Since the bill passed both houses on the unanimous consent calendar, a single objection could have stopped the bill. Id. It should also be noted that the Army engineer advised, subsequently by letter of March 20, 1905 to the Army District Engineer at Portland, Oregon, that “the Spokane River is only navigable to Post Falls” (J.A. 623). Had the Army found the River to be navigable it could easily have stopped the Little Falls Development. The evidentiary record, however, demonstrates that the Army Engineers were cognizant of the development being implemented by the 1905 Act, they investigated the matter and saw no basis for the exercise of their jurisdiction over any “navigable” water. Id. Congressman Jones was, in addition, correct in stating that the bill did not give any particular person the right to dam the river. The bill did not carry the complete right to dam the river, although the Act went as far in that direction as it could with respect to a river that was not a navigable river of the United States, unless Congress wanted to make established Washington water law inapplicable. Complete authority to dam the river, under the 1905 Act, was to be derived from satisfying the requirements of both federal and state law under the terms of the 1905 Act. Congress could grant the land including the stream bed upon which to erect the dam, but that was only part of the authority that was needed. It was still necessary under the Act for the Secretary to consent and for the appropriator to obtain the right to use the waters of the Spokane River “by appropriation under and pursuant to the laws of the State of Washington” (emphasis added). Under the Washington statute, appropriation of water rights was not limited to any particular method. 1891 Wash. Laws ch. 142, § 1. Therefore it was permissible, in the absence of any controlling prohibition, to appropriate water by diversion, as Wilson intended, to be accomplished by a dam. His application to the Secretary of the Interior stated that the diverted water would be used, inter alia, for a power house, lighting plant and irrigation system (J.A. 267-68). Obviously any diversionary method would satisfy the statute. Thus the laws of Washington in effect in 1908-10, authorized any citizen or corporation of the United States that desired to appropriate unappropriated water in a non-navigable stream to do so by the erection of a dam, provided he had the necessary consent and rights in the river bed and in any land that might be overflowed. Griffith v. Holman, 23 Wash. 347, 63 P. 239, 243 (1900) (the riparian owner has the right to obstruct a non-navigable river). Therefore, when the Secretary made the grant of the right of way in the land, and consented to the acquisition of the right to use the water by the erection of the dam, he authorized the construction of the dam in accordance with the intendment of the Act. No federal or state statute or decisional law, at that time, required a more specific “permit” to build a dam to divert nonnavigable waters under such factual circumstances. The principal objective obstacle here for Wilson was to acquire a sufficient right of way interest in the land constituting the river bed, and the appurtenant riparian and other rights of the Spokane Indian Tribe and the United States, to erect a dam. The 1905 Act provided for the attainment of all such objectives by authorizing the Secretary to “consent” to the acquisition of water rights by Wilson and Washington Power and to “grant” them, as appropriators, the necessary rights of way. Thus, when Representative Jones replied to Representative Lovering’s inquiry as to their “right to dam the river” that “[t]hey have to take their chances on that,” he was in fact giving a plain description of the legal procedure that the applicants had to go through to secure their complete right to dam the river under the terms of the 1905 Act. Not only did the pending 1905 navigability study raise a potential uncertainty; there were uncertainties inherent in the legal procedure of appropriation. The “chances” Wilson had to take included the possibility that others might precede him in appropriating the water and thus under Washington appropriation law, 1891 Wash. Laws, ch. 142, § 1, be “first in time [and] the first in right” with respect to the water rights. Speed in appropriation therefore was essential if Wilson was to be successful in making good the chances that were available to him. Realizing all this, Wilson acted quickly. The Congressional Bill was signed by the President on March 3, 1905, in Washington, D.C. On March 8, 1905, “on a scrubby pine tree” over 3,000 miles away, Wilson posted his Location of Water Right “opposite to the head of what is known as the Little Falls of the Spokane River” (J.A. 178). And promptly at 8 o’clock the next morning, the 9th day of March, 1905, Wilson filed for record a copy of this “Water Right” with the County Auditor of Lincoln County (J.A. 178). That Wilson acted with such promptness indicates that he was clearly aware he had to be the first in acquiring his water right if he were to secure the right to dam the river. This procedure of posting and filing was sufficient under Washington law to initiate the appropriation of “10,000 cubic feet per second of the flow of water in the Spokane River” at the approximate point of posting, i.e., at the Little Falls. It is not necessary to outline further the timing of the subsequent steps that led to the construction of the dam and the related power plant that perfected the Company’s appropriation. It is only essential to realize that, following the enactment of the 1905 Act, it was the consent and approval of the Secretary and compliance with the laws of Washington and the rights Wilson acquired by compliance with both laws that gave Wilson the final right to excavate and construct the dam to store and divert the waters of the Spokane River at Little Falls. Since the river was not navigable, it was, after the 1905 Act, the Secretary’s approval and Washington law that provided the means both necessary and sufficient to perfect the right to construct the works at Little Falls. The final act perfecting the “appropriation” of the water was the erection of the dam and the diversion of the water to “use” in the electrical power plant. This or some other eventual “use” was essential under Washington law, as incorporated into the 1905 Act, or else the water right would be lost. Moreover, water appropriated for one purpose could be changed “to any other beneficial use.” Id, § 9. III. The Interpretation of the 1905 Act by the Secretary of the Interior The belated construction of the 1905 Act that the Commission now advances for the first time is also clearly at odds with the contemporaneous and subsequently continuous interpretation by the Department of Interior, which was charged with administering the 1905 Act. 1905 Act, § 2. The express terms of the 1905 Act are on their face quite clear: They show that Congress intended the Spokane River on the southern border of the Reservation to be developed to produce electricity, i.e., “for sites for power purposes ... erection of ... electrical or power plants ... development of power.” Id. In addition, the contemporaneous interpretation of the 1905 Act by the Department of the Interior provides additional support for the interpretation of the statute presented above. In his letter of May 4, 1906, to the Commissioner of Indian Affairs, Secretary of the Interior E.A. Hitchcock wrote: Sir: I have considered your communication of the 4th ultimo, submitting the papers in the matter of the application of David Wilson, of Spokane, Washington, for the right to use the waters of the Spokane River, and for the acquirements of land on the Spokane Indian Reservation, for sites for power purposes and other beneficial use of the waters of said river. By Department letter of November 11, 1905, the Department returned Mr. Wilson’s application, with accompanying papers, and advised you that the same would be further considered when amended so as to conform to Department regulations prescribed under the Act of March 3, 1905. With your said letter of the 4th ultimo you submit an amended application filed by Mr. Wilson under date of January 24, 1906, to conform to the regulations referred to, particularly describing the land desired to be acquired and purchased; and applying also for the right to erect and maintain any and all suitable water, electrical or power plants, etc., required for the development of power for the beneficial use of the waters of the Spokane River; also for the right to build a dam at the points designated on the map accompanying the said application, and marked “site for dam No. 1, ” and “site for dam No. 2, ” reserving to himself the right to hereafter determine at which of said two sites he will erect the dam. The applicant sets forth that he is seeking to acquire the land and water rights in good faith, for the purpose of making certain improvements and developing power, as soon as the rights sought shall be obtained, and the state of the water will, permit; said improvements to consist of a dam, power house, flumes, penstock, turbines, electrical generators, transformers, and the necessary pole line to market said power, and all the other requisites to the construction and establishment of a modern electrical power and lighting plant From a careful examination of all the papers submitted, it appears that the amended application of David Wilson is in accordance with the requirements of the Department, as set forth in the regulations approved October 3, 1905, prescribed under the Act of March 3, 1905; that he has submitted satisfactory showings as to his financial business and executive ability, and that he actually intends to develop and use the power at the site and for the purposes specified. In view of all the facts shown in the papers, therefore, and in accordance with your recommendation, the said application of David Wilson is approved____ (J.A. 230-32) (emphasis added). The italicized language above places it beyond doubt that the Secretary of the Interior interpreted the Act to authorize him to “consent” to Wilson’s application to use the waters, to grant him “the land and water rights” on the Spokane River Indian Reservation, to confer on Wilson “the right to erect and maintain” whatever facilities were necessary to develop the river for hydroelectricity, “to build a dam” and other improvements necessary to produce and transmit electricity and to approve Wilson’s application for all the foregoing purposes. Id. It is also clear that the Secretary determined Wilson’s application conformed to the requirements of the applicable regulations and that Wilson had applied in conformance with said regulations for authority to build a hydroelectric dam. The contemporaneous regulations promulgated by the Department of the Interior, Office of Indian Affairs, on September 28, 1905 in every paragraph breathe their interpretation of the 1905 Act as authorizing the construction of power dams, etc., and as imposing the obligation on the Department of the Interior to pass upon applications therefor and to approve those that comply with the Act and the regulations. The Secretary approved Wilson’s application and in so doing interpreted the 1905 Act as conferring on the Secretary the authority to make such grants. While Wilson’s right of way was later amended upon application by the Company to include additional land necessary for the facility, nothing subsequently occurred to cast doubt on the Secretary’s clear approval of Wilson’s application to develop the river, which explicitly included, inter alia, the right to build, operate, and maintain a dam. It is clear to this division of the court that the Act authorized the Company to acquire all the necessary “right of way, ” and that dual compliance with the 1905 Act and the laws of the state of Washington, as embodied in the 1905 Act, au thorized the Company to dam the non-navigable waters of the Spokane River and thereby appropriate the beneficial use of its waters for power purposes. It is not clear from the record whether the dam ultimately constructed, maintained, and operated by Washington Power occupied either one of the two precise locations for dams on the Spokane River indicated on the map approved October 3, 1905, by the Secretary. Compare Exhibit 81 with Exhibit 116 (by comparing the maps showing the location of the present dam with that showing the approved sites it is impossible to tell whether the dam was built exactly on approved sites Nos. 1 or 2). Even if the dam Washington Power ultimately built, however, was not precisely at Dam Site No. 1 or No. 2, as marked on Exhibit 81, the land and other rights granted by the Secretary to Wilson would still be valid as to the existing dam and other structures at Little Falls. Wilson applied to the Secretary for the right not only to build dams at the marked sites, but [a]lso the right to erect and maintain any and all suitable water, electrical or power plants, dams, wing-walls, flumes and other needful structures required for the development of power for the diversion of water for irrigation and other beneficial use of said water ... (J.A. 500). Thus the approval of the application was broad enough to include the dam notwithstanding any minor deviation from the marked sites. The Acting Commissioner of Indian Affairs in his letter of transmittal accompanying Wilson’s application also reemphasized to the Secretary that Wilson was applying for the right to build a dam (J.A. 506). The Commission’s present ruling that the 1905 Act did not authorize the Secretary to authorize the building of dams thus bluntly contradicts the contemporaneous interpretation of the Act by the Secretary and the Commissioner of Indian Affairs. The Commission’s present ruling that the 1905 Act did not authorize Wilson or his successors to “occupy” the River is equally inconsistent with the Secretary’s contemporaneous interpretation. To the contrary, the Department of the Interior had approved Wilson’s application “to occupy and improve said waters and the land necessarily incident thereto” (J.A. 180) (emphasis added). Washington Water Power Company 25 F.E.R.C. n 61,002, 61,0027 (1983) (Butler, Chrmn., dissenting). Wilson subsequently transferred all his water rights, which included the rights to build and maintain dams and other structures, to Washington Power. The Commission would not have been able to reach the issue not passed upon by the AU, namely whether the 1905 Act granted the authority to build the Little Falls Dam at all, had it not held the transfer was valid. See Brief of Respondent at 8. The Commission has thus conceded that the transfer was valid. This transfer may be viewed as having been approved by the Secretary and, as the Commission notes, the Company “informed the Secretary ... of the transfer and did everything necessary to obtain a permit for itself.” Indeed, the 1905 Act in section 4 gives the Secretary broad authority to enforce the Act. This includes the authority to regulate any transfers of rights granted by the Secretary under the 1905 Act. In passing on Wilson’s application it was necessary for the Department of the Interior to interpret the 1905 Act and it is clear that the Secretary interpreted that Act alone as permitting the granting of the rights to use water and land, to approve the building of the dam on non-navigable waters, and to transfer these rights. The agency empowered to administer the 1905 Act thus made a contemporaneous interpretation of the Act to which the Commission should have deferred. It is well-settled that “the interpretation of an agency charged with the administration of a statute is entitled to substantial deference.” Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982), quoted in Aluminum Company of America v. Central Lincoln Peoples’ Utility District, 467 U.S. 380, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984); Chevron U.S.A. v. Natural Resource Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This doctrine of deference is' particularly sound law in this case. The Department of the Interior, which interpreted and administered the 1905 Act, had longstanding experience in administering similar statutes, as was later demonstrated by the opinion of the Secretary of the Interior expressed in the May 10, 1923 reconsideration of the May 1,1923 patent issued to Big Bend Transit Company (J.A. 538-45). See also United States v. Big Bend Transit Co., 42 F.Supp. 459 (E.D.Wash.1941). In this opinion by the Secretary he interpreted the 1905 Act as a right of way statute for the construction and operation of a hydroelectric dam and related facilities on the right of way granted at Little Falls and to regulate the transfer of such rights. Since the Little Falls Development had been completed at that time, his opinion confirms our foregoing analysis that the 1905 Act authorized the Secretary to confer such rights and to authorize such construction. Such interpretation is supported by the plain language of the 1905 Act itself. The contemporaneous interpretation of the Department of the Interior is all the more to be deferred to in a case like this, where the statute and its interpretation by the Agency is almost eighty years old. Present day constructions of an old statute are likely to be inaccurate for the obvious reason that the older a statute is, the more difficult is the task of reconstructing the Congressional intent. It is not for the Commission, eighty years later, to attempt now to critique the niceties of how the Secretary of the Interior, in his discretion, fulfilled the mandate of the 1905 Act while it was still fresh in minds of the Congressmen who passed it and agency officials who were designated to enforce it and similar statutes. As Mr. Justice Cardozo observed, [Administrative] practice has peculiar weight when it involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new. Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933) (citation omitted). See EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 600 n. 17, 101 S.Ct. 817, 823 n. 17, 66 L.Ed.2d 762 (1981); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972); Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1539, 6 L.Ed.2d 924 (1961). Indeed, the construction the Commission presently attempts to blithely circumvent the clear intent of the 1905 Act, is itself strong evidence of the dangers of reinterpreting statutes, so long after they have been enacted, interpreted, and relied upon by private parties and agencies alike. IV. The Application of the Federal Power Act It is of the utmost importance to realize that the rights of the Washington Water Power Company in this case are based on a special Act, and that a special act prevails in effect over more general acts. Brown v. GSA, 425 U.S. 820, 834-35, 96 S.Ct. 1961, 1968-69, 48 L.Ed.2d 402 (1976); Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974) (citing cases); Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973); Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 228-29, 77 S.Ct. 787, 791-92, 1 L.Ed.2d 786 (1957); Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 362, 27 L.Ed.2d 12 (1883); 2A C. Sands, Sutherland Statutory Construction § 51.05 (4th ed. 1984). In fact, the 1905 Act is a very “special act” being limited solely as it is to the relatively small area of the Spokane River on the southern boundary of the Spokane Indian Reservation. A construction of the more general Federal Power Act, or the Rivers and Harbors Act which had the effect of rendering the special 1905 Act void would thus be highly suspect. Having settled that the 1905 Act authorized the Secretary to grant parties the necessary rights of way and approval to build) maintain, and operate the Little Falls facility, “in the Spokane River along the southern boundary of the Spokane Indian Reservation,” see n. 2, the central question of this case becomes whether these rights fall within the exception recognized and granted in sections 23(a) and 23(b) of the Federal Power Act. FPA, 16 U.S.C. §§ 816 and 817. Clearly, the right to maintain and operate the Little Falls development is based on a “valid existing right-of-way [previously] granted” that falls within these exceptions. The Department of the Interior interpreted the 1905 Act when that agency reconsidered Washington Power’s application for a patent. Having compared the Act of February 15, 1901, 31 Stat. 790, to the 1905 Act which authorized the granting of permanent rights of way, etc., Secretary Hubert Work wrote: The fundamental differences, then, between the two acts, are that whereas, by the act of 1901 the right conferred is that of a mere permit, revocable by the Secretary of the Interior, under the Act of 1905 (in all respects similar to the act of March 3, 1891, 26 Stat. 1905, in the matter of the extent and nature of the grant, and jurisdiction to terminate the same), such right is a limited fee on an implied condition of reverter in the event the grantee ceases to use or retain the land for the purposes indicated in said act of 1905, supra, the termination of which right of way or limited fee is not vested in the Secretary of the Interior, but may be effected, upon good cause being shown, only through proceedings had without the jurisdiction of the Department of the Interior, see, in this connection, Kern River Company v. United States (257 U.S. 147 [42 S.Ct. 60, 66 L.Ed. 175]). In other words, both the acts of 1901 and 1905 are right of way acts; the former general in its nature and application, the latter special in its nature and application. (J.A. 542) (emphasis added). Thus it is clear that the Department interpreted the 1905 legislation as a special Act authorizing the establishment of valid “rights of way” which included authorization to “consent” to the building and maintenance of a hydroelectric dam, which was granted well before June 10, 1920. It is significant that this opinion of the Department rendered on May 10, 1923, is a contemporaneous interpretation of the Federal Water Power Act of 1920 and its application to rights granted under the 1905 Act. The Commission, however, now proposes a different analysis of the 1905 Act and its relation to sections 23(a) and 23(b) of the Federal Power Act. FERC first states part of the legislative history of sections 23(a) and 23(b): Those sections of the bill as originally introduced provided for “revoking any permit or valid existing right of way heretofore granted or as revoking any authority heretofore given pursuant to law” instead of prohibiting their being construed “as affecting any permit or valid existing right of way ... or ... authority” (emphasis added). On June 25, 1919, Gif-ford Pinchot, revered as one of the fathers of the conservation movement, suggested changing “revoking” to “affecting” in order to make it clear that revokable permits (like that created by the 1901 Act from which the 1905 Act departed) would not become irrevocable by virtue of the passage of Federal Water Power Act of 1920, 41 Stat. 1075 (1920) (“FWPA”). The Commission now states in its current Opinion No. 117A that the language of section 23(a) was intended neither to diminish nor enlarge rights held under pre-FWPA permits. 25 F.E.R.C. 1161,002 at 61,014. Thus, FERC rules in its current Opinion No. 117 that Washington Power could continue to occupy lands of the Spokane Indian Reservation and utilize waters of the Spokane River for the Little Falls development, but could not continue to operate and maintain its dam without a license under section 23(b). In the Commission’s view, this would be an “enlargement” of the original 1906 and 1908 permits. This result, the Commission contends, “strikes a balance between preserving the authority of the pre-FWPA permits, and refraining from enlarging that authority;” it contends, that is, that to uphold the Company’s position would enlarge the right of way granted under the 1905 Act to construct and operate the dam. In fact, the Commission’s argument refuses to recognize the full “right of way” authorized by the statute, which was granted and consented to by the Secretary, and then balances its misconstruction against a result which assumes the validity of its misconstruction. All the emphasis on “enlargement,” etc., in reality is an attempt to impose a standard different from the statutory standard. The statute expressly prohibits the Commission from doing anything that could be construed as “affecting any authority” or “existing right-of-way.” When that standard is applied, the Commission’s construction clearly falls. The Commission’s position is that the right of way is separate from the right to use it. This is an incongruous outcome, since under the 1905 Act, and the laws of Washington providing for the appropriation of water rights that the 1905 Act incorporates, the right to the beneficial use of the water implicitly follows from the acquirement of the water rights and the land. The rights in the land were acquired by “grant” from the Secretary and the water rights were acquired by appropriation under the laws of Washington with the “consent” of the Secretary. The title of the Act indicates that its purpose is to provide for “the acquirement of water rights [and] lands ... for sites for power purposes, and the beneficial use of said water.’’ The three go hand in hand. In keeping with the title, the first section of the 1905 Act provides: “The right to the use of the waters of the Spokane River ... may with the consent of the Secretary ... be acquired ... by appropriation under ... the laws of ... Washington.” The statute then continues: “the Secretary ... is authorized and empowered to grant such appropriator [of the water rights in the Spokane River] ... land ... such as shall be necessary ... for the erection ... [of] dams [etc.] required for the development of power or for the beneficial use of said water----” Id. § 2. “[T]he right to the use of the waters of the Spokane River” as provided for in the first section of the Act, is just another way of recognizing that the appropriator may beneficially use his water rights by “the erection ... [of] dams ... for the development of power.” Id.... As a practical matter, in the context of the statute, water rights and land, appropriated, consented to and granted “for the development of power,” could not be used in any way other than by a dam. The effect of the Commission’s ruling would be to strip Washington Power of its valid right of way to operate and maintain the dam at Little Falls, and in effect to revoke that right. However, the applicable statutes the Commission relies upon recognize the continuing validity of any “valid existing right-of-way”, FPA § 23(b), and provide that they “shall not be construed as affecting any permit or valid existing right of way ... granted prior to June 10, 1920 ... or as affecting any authority heretofore given pursuant to law.” FPA § 23(a), 16 U.S.C. § 816 (emphasis added). For the Commission to require now, some 75 years after the completion of construction, that the Little Falls dam be licensed so that Washington Power may continue the “beneficial use” of its water rights acquired by appropriation in 1906-10, clearly would “affect” the existing right of way in a very concrete way: It would deny Washington Power the right to the beneficial use of the waters diverted by the dam without further license. It would also drastically reduce the value of all the real property involved. The license the present Commission seeks to require Washington Power to acquire to operate and maintain the Little Falls facility would, if granted, expire after fifty years. Upon this expiration, the Little Falls development could be appropriated by the United States or transferred to some other party. Washington Power would need to be compensated in this event only according to the “net investment formula” which may well be much less than the market value of the transferable limited fee currently held by the Company. Thus the Commission proposes actually to obliterate the right of way for the beneficial use of its water rights that the Comp