Pennsylvania Water & Power Co. v. Federal Power Commission
123 F.2d 155
D.C. Cir.
1941
Check Treatment

*1 POWER CO. & WATER PENNSYLVANIA POWER COMMISSION. FEDERAL

No. Appeals Court of of Columbia.

District

Argued 9, 1941. June 20, 1941.

Decided Oct. *2 Markell, Baltimore, Charles (Wal- Md. Clephane Clephane, ter C. and Arthur H. Washington, C., George both of D. Hambright, Lancaster, Pa., T. petitioner.

brief), for Walker, Counsel, Wallace H. Asst. Gen. Commission, Power Federal Richard Con- J. nor, Robinson, Jr., and David W. all Washington, (William Youngman, D. S. C. Counsel, Jr., Gen. Federal Commis- sion, Hankin, Counsel, Gregory Sp. Commission, Federal Power both of Wash- C., ington, respondent. brief), D. on the for GRONER, Justice, Before ED- Chief RUTLEDGE, GERTON Associate Jus- tices.

GRONER, C. J. petition1 This is a an order of to review requiring the Federal Power Commission apply operate for license to hydroelectric project maintain its Holtwood, River near Penns ylvania.2 Act, Appeals Columbia, Federal 16 U.S.C.A. § the District by filing sixty days court, 8251: in such within Any party proceeding “(b) to a after the order of the Commission chapter aggrieved application rehearing, an order issued a written petition proceeding praying the Commission in such the order of the may obtain a review of such order in Commission be modified or set aside in * * * Appeals part. finding or in Circuit Court of of the United whole facts, sup- wherein Commission circuit the li- as to the if utility ported evidence, censee or which the substantial order shall be ” * * * principal place relates is located or has its conclusive. approximately business, or in Dam the United States Court The Holtwood operation require petition- is- tenance Commission September, license;4 apply er petitioner was reciting that order sued an operating hydroelectric maintaining Commission 3. That the order De- Holtwood commonly project, called unlawful, arbitrary, unsupported *3 Susquehanna in velopment, and the across substantial evidence. Holtwood, Ferry near River McCall’s at From that the First. the above is clear navi- the is a Pennsylvania, and and, think, as for first decision is thе main from and gable of the United States water Susquehanna River whether the Pennsylvania) plant (in reservoir above the at near dam is a navi- and the Bay. order Chesapeake The its in to mouth gable water of The an- the United States. why petitioner to show the cause not he in- directed appropriate prior would swer have been more difficult proceedings should Supreme to Court the recent decision of the li- to obtain a against it for failure stituted Electric in United States v. the Federal Power Act. pursuant cense to Co., 377, 61 Power the admitting filed answer Petitioner my of in the еffect development without maintenance very enlarge the greatly to that decision is previously authority permit States, other from the United or juris- federal considered view Susquehanna denying that is waterways of Nation. diction over the United navigable water of the States and. in case Accordingly, is decided what jurisdiction the Commis- challenging the is there. light in said must be what proceedings. The Com- sion to institute the case, in the decision the Before hearing an exam- mission ordered a iner, before accepted “navi- generally definition of parties, in by filed were briefs gable the Unitеd States” was waters of its November, 1939, the Commission 557, 19 given Ball, in Daniel 10 Wall. law, conclusions findings of fact and “ * * must Those rivers 999: L.Ed. be petitioner apply to requiring issued an order navigable in law public rivers regarded as pursuant Federal to the for a license they are are in fact. And which a re- moved for Act. Petitioner thereafter used, they in or are navigable susceptible fact when stay. grant- The Commission hearing and used, ordinary in their rehearing. stay but denied condition, commerce, highways over argument in court may or be con- trade and travel are which insists: customary of trade in the modes duсted travel on 1. That the at and near the they navi- water. And constitute waterway dam is within the gable waters the ‍​​​‌‌‌‌‌‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​​​​‌​​‌‍United States United within the Federal States meaning Congress, in con- the acts ;3Act waters tradistinction they operation ordinary 2. maintenance their That when form in legal, with by themselves, by uniting of the dam is and that the Commission condition stop waters, highway over by is not Act its main- authorized to a continued Susque- granted 26 miles above the mouth or a license or to June chapter.” pursuant River hanna and was constructed under to this U.S.C.A. Pennsylvania Dam Mill Act of 817. § Laws, Purdon’s Smith’s Oh. Section 4: Pennsylvania hereby Annotated, Titlе “The commission Statutes authorized 55, Chapter empowered— 10, Sections 291-293. It largest hydroelectric plant Pennsylvania. Upon “(g) State of Petitioner its own motion order an riparian proprietor investigation any occupancy of, on both banks or ev- place occupy, pur- of construction idenced intention project operated developing pose public power, has since electric plant supplies power lands, reservations, to Baltimore or streams or other Lancaster. over has bodies which jurisdiction regu- 23: Section under аny foreign person, “It shall unlawful late commerce nations State, municipality, by any purpose among person, States several developing power, State, municipality construct, corporation, electric and to * * * any operate, may appropri- or maintain such as it find issue order ate, expedient, waters interest * * * except United and utilize to conserve permit water-power region.” in accordance with the of a resources terms existing right-of-way granted 797(g). pri- or valid § 16 U.S.C.A. Undoubtedly, adopted be carried which commerce is or the criteria foreign by countries in the Appeals with-other States the Court of were those Supreme customary modes which had established supplied.] navigability, Ball, conducted water." [Italics —as The Daniel supra, quarters century ago three defini In a recent case5 we of this followed down to in numerous cases that, although had been much there 1935; and, Oregon, supra, States v. subject, principle on the had con writing permissible federal control extent of sistently been adhered navigable waters, by over Leovy Court, except decisions v. United Port & Oregon Seattle v. W. 44 L.Ed. R. 65 L.Ed. a holding been narrowed it had *4 Rouge United v. States River 269 U.S. be construed to the term commerce should 411, 419, 46 144, 339, S.Ct. perm 70 L.Ed. Wis of substantial and and mean commerce 415, Illinois, 367, consin 278 support v. U.S. 49 S. anent And cited in character. 163, statement, Montello, Appa L.Ed. 426. Ct. 73 But of 20 Wall. Supreme 430, 391; Economy lachian case the Light Pow Court distin L.Ed. & 22 guished 113, rejected former cases and er United 256 U.S. 41 S. Co. v. 847; Texas, 409, navigability that fact must exist 65 L.Ed. doctrine Ct. Oklahoma v. 771; 574, 406, ordinary (cid:127)under natural and and 258 42 S.Ct. 66 L.Ed. conditions U.S. Bank, the other doctrine that the constitutional United States v. Holt State 270 U.S. power 197, 49, 46 70 L.Ed. 465. these United States over water S.Ct. And to ways of the Nation added, Oregon, is limited to сontrol should United v. for be States 610, 1267; purposes navigation, say, 1, of is 55 that S.Ct. Utah, 79 L.Ed. protection improvement 64, U.S. 51 the wa United States v. 283 844; 438, terways operation for the 75 L.Ed. Brewer-Elliott v. of vessels in in Co. Instead, 77, 60, foreign 260 terstate and commerce. U.S. 43 S.Ct. L. 67 holds, when, 140, first, Cress, 'Court im Ed. United States v. 243 U. now that provements regard with L.Ed. reasonable to cost S. 37 S.Ct. 61 need, a river be available for case, Chesnut, Judge In the navigation commerce, in interstate ais who wrote the Circuit Court navigable waterway of the United States Appeals,6 likewise reached the conclu- improvements even though such nei have sion that rule established in The Daniel ther been made nor authorized- —it consistently Ball had been sustained. That made; enough they may and, second, accordingly court held that a river ais power of the United States over only water of the United States waterway equally exists case ‍​​​‌‌‌‌‌‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​​​​‌​​‌‍when its natural ordinary condition protection, development, flood watershed capable used used in inter- far-reaching recovery and —more —the navigation state commerce and of a substan- improvements the cost through the utili character. tial And in relation to extent purpose zation оf structures for the powers Congress over the navi- electricity. of generating things All of these waters, gable the court concluded on the commerce, are denominated and the consti authority of a Supreme long Court line right regulate tutional is no cases, legislation federal respect limited, longer was, as it im to control and permissible only provement waterway opera for the when it has some real and substantial rela- tion of vessels in and foreign interstate purposes control for navigation. commerce.6a instance, court, For said Congress has hydro-еlectric no to construct a us, then, brings This to our first primarily only development question: Is the at Holtwood water power. sale river the United States? 5 Jockey Dern, Miami Beach language repeated Club Rouge was River in tbe App.D.C. 369, case, Illinois, 83 F.2d 715. Wisconsin v. 6 Cir., F.2d 769. 6a in the Seattle Congress case the the Court said that “may arbitrarily destroy [255 impair right L.Ed. 500]: riparian “The rights legisla of the United owners in the waters within tion which has no real or substantial re the several states limited ap the control lation to the control of purposes navigation”. propriateness thereof This to that end”. pe- thereby, upstream, both answer, dependent downstream while river, be obvious.”8 must applicable culiar facts prin- general regard to the due made with river for The earliest recorded use of the in the ciples newly established any transportation dur- form of occurred princi- application those case and supplies oc- ing the Civil when were War view, In this facts in that ples to the case. casionally taken down the river in bateaux history compare the may not amiss it and commissary depot some to a Confederate of the New physical characteristics Virginia-West Virginia above line. miles former Susquehanna. The River7 and the There some evidence that the had Abram in 1671 was discovered Colonel Radford, been used keel between boats ex- Woods, several there is a record Hinton, Virginia, Virginia, in the West trips parts of made in ploratory on part hundreds, eighteen latter were also 1817,1819, 1828. There Judge District who heard the case found Virginia relat- early abortive Acts some trips irregular, that such were attend- were improvement proposed opening or ing to the difficulty, appreciable ed with and formed no navigation. In 1872 Con- of gress transрortation commercial river, survey authorized years For river. last 25 there has through in 1876and running appreciable no interstate intrastate *5 appropriations work made various pro- navigation of river or near the Approximately parts the river. different $112,000 site, posed though is evidence of there expended appro- was these parts use of other of the river near and result that the Chief priations, with the Virginia The over the West line. Department Engineers War subse- of the Supreme physical describes Court situation quently summarized the “crucial characteristics stretch of the being river as whole as navigability a language: report in this “In river” improvements unchanged and the insuffi- Secretary appears of War for 1872 Hut- through highway for com- a cient to make it mile-by-milesurvey ton’s useful of the river merce. [Virginia] above Allisonia from in northwest North Caro- Greenbrier, New rises nearly The which is mouth of ap- Virginia near the line and runs for lina Virginia]. down to Hinton It was [West Virginia through 250 miles proximately plans improve made as a basis for Virginia, where it unites with the West appropriation. survey New federal designates This Kanawha, Gauley in form turn Radford-Wiley’s Falls stretch into the Ohio. flows Eigh- ‘mile 46’ ‘mile 104’inсlusive. grades falling, of these miles teen have “Among mountain streams it seems to be gradually or more than feet four abruptly,(i peculiar geologic unique formation of in the the mile. Several of these where there in rocky in bed due to folds'and faults its rock rapids drops eight, show or falls nine are strata, producing running ledges liy2 higher instance feet. The one many places. the stream in In a across course, footage represents, of miles in which thirty-five river in mile stretch of the Giles falls are found. Between these more * small * geologic County, Virginia en- many sections are of what prеcipitous miles ‘markedly unusual’ in that it vironment has been the scene water,’ ‘good gradual with a fall is called predominant of four or less. Even in feet miles where faults; slope gradient and the breaks declivity rapid, the fall apparently very bed is the rocks unusual containing sections largely in obstructions. up- incline downward in in that an ‘is instance, ‘Rapid, 51st mile For reads direction rather than in a down- stream 1,500 gravel, long; feet over bowlders direction’, with the result that the stream 8y2 feet,’ fall, ‘Neilley’s and the 100th mile ledges vertically. over almost water falls fall, rapids; feet, whole 6 of it Falls ledges upthrust arе of the above Some nearly A water, long, vertical. sluice 500 feet barely some surface of bank, pass them, will along left with 50 submerged, and relative condition var- feet depth excavation and 450 feet of naturally of rock bowlders of the water in ies periods. frequently dry Quite gravel.’ wet and The diffi- and where the fall alternate dangers moderate, appear, caused is obstructions .as culties The river involved in the Electric Cir., F.2d case. 8 Opinion Judge Chesnut the 78th ‘Rapids, long, mile 500 feet over day we discovered the small people river & ” fall, gravel; bowlders and (pages feеt.’ Tockwhegh trending Eastward.”9 412,413 U.S., page 301 of 61 S.Ct. 85 The river surveyed later fall, was in the 243) winter, and spring by Brulé, of 1615-1616 average (near flow at Radford Frenchman employ Champlain. It period in dispute) years over 28of has its source in Lake Otsego in.the central September ending 3,211 cubic part of New York and general flows in a second, per depth feet low water southerly approximately direction miles channel, the channel where there is a through York, Pennsylvania, New varies inches than few to more six Maryland, empties where it Chesapeake into feet. Bay city at the of Havre de Bеgin- Grace. ning tions, 1785, individuals, private corpora- Appalachian case the two lower In the public Pennsylvania authorities in held River nonnavi- courts the New Maryland spent money effort ‍​​​‌‌‌‌‌‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​​​​‌​​‌‍other- Supreme held gable, wise, since, Court attempt to make the lower reaches of the found, as the navigable. year In Pennsylvania navigable in New was shown to be the and declared it highway to be in all susceptible a continuous parts state, thereof within and in 1799 com- navigable waterway for interstate appropriation made an opening naviga- merce, though expenditure large even Maryland tion c. down to the In line. money required. would sums 23, Maryland passed an Act to make the Susquehanna navigable very Mary- large from the one land-Pennsylvania country, line length to tidewater in- exceeding rivers corporating quehanna “Proprietors It was other on the eastern seaboard. Sus- Smith, Canal”. Captain whose an Act discovered c. *6 John passed authorizing lottery a the to raise courage resourcefulness saved not exceeding $50,000 Colony applied from abandonment “towards be Jamestown destruction, opening the preserved the North and thus оf the bed of river”, Anglo-Saxon Mary- coloni- the and in c. American Continent up land river voyage Maryland Of his Ches- declared the from zation. apeake discovery memorable that, Bay after line to a highway in he relates tidewater free for any person (Patuxent), persons the “Pawtuxunt” work whatever to leagues clearing that: “Thirtie thereon in navigation. Shortly he found Northward obstruction to its inhabited, yet navigable; river not is a thereafter work was clay apparently resembling the red we done which in bole Armoniack resulted the safe arks, boats; Bay rafts, use of called Bolus. the еnd of and keel At- and for breadth, myles traffic, where it 6 in it divides some time a is or considerable said to branches, annually value, into have reached millions in itselfe 4. the best commeth river, among mountaines, was carried down the some of it to from Northwest recognized iourney early through may goe dayes Canows tidewater. a it, up myles importance river, get up we res- or two could not two and in 1789 a adopted by Upon fixing our boat for rocks. it is seat- olution was the House it with permanent Sasquesahanocks, government seat at some neare it North place by myle conveniеnt on its banks in the State runneth a creeke a and a West Pennsylvania. at the head whereof the Eble left us halfe: shore, years last 50 many over the where found trees cut time to time we From tyde to its navi- keeping surveys next with relation hatchets. The the river with by engineer Salvages; (for to seeke made gability for some have been shore reports Army, resulting sayling, in leagues within thirtie saw not corps rocky

any, being up bed of Country,) steep slope a barren we went adequate improve- impracticable small like another a creeke or 7 render and that to myle. open From by wе met channel means returning thence 7 ment commerce Massowomeks,' whom the river Canowes with make mil- expenditure of signes, necessitate conference we had for we under- would However, during recent another one scarce a the next of dollars. stood word: lions beginning Smith, governours their first John. present generaU Virginia, historie of New- AnO: * * London, England, D. and Printed I. and the Summer Isles with the p. Sparkes, adventurers, planters, H. for Michael

names L banks, a interstate dams, creating bore considerable sizeable years power private years. Both long period lower Sus- commerce for pools, erected have been Holtwood, today navigable in unre- Safe rivers certain Conowingo, quehanna at Neither, long Havre for a time lated sections. Harbor, Above York Haven. de. past, interstate commerce has carried for about river is now Grace the 5 feet, in navigation, well be that drawing 15 but be- for vessels miles Susquehanna, case of was declared Harrisburg Penn- as true tween isolated the the case limited to to be sylvania navigation is New, present of im- there is no need regions. provements object of making channel 6 that a Commission fоund navigation. river usable interstate But provided deep from the to 9 feet could be controlling. longer is no In- this stead, petitioner’s dam at Holt- Chesapeake Bay to subject to waters are for a distance at by'excavating short wood regu- planning national control miles below point (about two the seven-mile the commerce, lation this includes the Conowingo quarter for a of a dam) and assume, power I regulate, and would (a pe- point mile below 23.5-mile mile at the gen- also construct dam to electricity. petitioner’s dam the dam). Above titioner’s eration of as- Viewed clear Commission found is, contrary pect, far-reaching as miles, decreas- pool extends for over recently thought principles I think to 84 feet to 5 feet. If locks depth from ing in binding, we have no hesita- fixed and Con- in the Holtwood were constructed declaring Susquehanna a navi- declared, dams, owingo the Commission gable water of the United States within the from the navigation could be conducted provisions the Federal Act. beyond pool the op- down to and Holtwood Maryland. too Whether this is State of Petitioner, however, Second. con stop need tо in- picture, we timistic a if the found tends that even from which con- Enough appears quire. waterway New, Susquehanna, like clude that the at its dam is nevertheless a lawful past periods in has been used different structure, since it in was—as kind, in interstate vessels placed in the river consent with the sists— latter, former, is sus- like the and that the Congress. (prior subsequent) But we navi- ceptible in the future of position is not maintainable. The think this *7 Congress gable if in interstate commerce is on fact that in 1904 contention based the necessary appropriate decide the should to ap called to Secretаry of War Taft was on money to be done. the work and to authorize disapprove plans prove or and the location certainly need no showing And the of is railway bridge be construct a desired to of ed over by greater in of the than the the case New Susquehanna Havre de Grace the Otherwise, Susquehanna. the of the case Pennsylvania the Railroad. His decision all in of the existing favor differences are question whether, under the turned on average Susquehanna. of that riv- The fall provisions of Section of the Rivers and mile slightly per 1899,10 feet and er is more than Act of the оonsent of Harbors feet, against necessary, Congress nowhere exceeds 7.8 av- was and his answer erage and maximum 31 feet for was a (1) navigable 7.1 a whether the river average States, (2) The flow at and if the New. annual Holt- United nav water of the second, 35,000 per navigable about cubic feet por wood is as Furthermore, igable part, whether against portions lay wholly limits a smaller flow in the much New. tion of a within past navigation Secretary single state. that found rather New was limited to isolated instanc- im interstate practicable, on the was Susquehanna, es small on and to crаft. and held that was therefore it hand, aid along navigable only accordingly of canals the other one state and may lawful construct “It shall not be to suck be built au- structures under any thority legislature of a or commence the construction State across ® * * * * * * * * waterways navigable rivers portions wholly un- the United States of which lie within water of Congress single State, provided build- til the consent of to the limits of a the lo- plans ing shall have been ob- cation and thereof are structures submitted by plans approved Engi- Chief of and until for the same to and tained ap- by Secretary have shall been submitted to neers and War be- by proved Engineers fore the Chief construction is commenced. ” * * * Secretary Provided, § That War: U.S.C.A. ‍​​​‌‌‌‌‌‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​​​​‌​​‌‍approval statute light that under the of the then established rule that the Engineers Secretary Chief of waters States were the United position is War sufficient. Petitioner’s susceptible was confined to those used of be that, relying since built its dam the de ing ordinary used in their condition as. Secretary water,12 Taft it highways cision and maintained objection by recently Congress until without based clearly on that rule the decision was authorities, right. was an im the federal 'there conception But this charac plied public waters, consent to the erection and mainte ter appears, as now narrow, nance structure the United States was too having and the estopped insisting which, from now that the dam announced a rule new under required hold, in a is-an unlawful obstruction to follow, stream, clearly wholly this does not is navigable stream. But would in mistajcen Even if we (1) say several reasons: assume admissible that the view Secretary Taft’s find of Secretary right the conclusiveness ing, petitioner created vested advantage Congress power can no derive is without to disturb it, existing law11 the con because “In importance view of general legal only of its dam was if it had struction stability, depart- succeeding heads plans Department submitted the War may weight ment well give greater than the Secretary approval received courts to the decisions predecessors, of their Engineers, and Chief of claim that and there is no they right practice, have reverse a done; (2) this ever continued, long clearly even when convinced finding binding beyond contention that the interpre- is founded on an incorrect particular project in which it was made rеspect tation of the law. Save of a sub- incorrect, this follows from the fact ject-matter finally closed and settled under supervision that the of control practice, the former decision on which waterways continuing “is practice contains no element founded in its nature” no estoppel judicata, as the res doctrines supervision presumed “will have been applicable judicial proceed- thereof are manifestly unless it was surrendered tended”. so in ings.”13 Newport Bridge & C. Co. v. 105 U.S. 26 L. United already indicated, As it is at least doubt Obviously Ed. 1143. no there was mani Congress specifically ful whether an Act of fest intention bind States as applying petitioner’s project would have petitioner’s project anything that oc binding against the action of subse Pennsylvania curred in relation to Rail Congresses. aside, quent But that way bridge. Bridge Union Co. v. United certainly there is no to sustain Secretary view Taft’s action in the clear, perfectly makes for Pennsylvania bridge up case in its be seized it is said neither silence nor help present there inaction of toon dilemma.. Congress, when individuals or Conclusive this is decision in Green *8 corporations Garrison, under the a state Lumber v. 237 Co. leaf-Johnson place 551, unreasonable in the wa obstructions 35 U.S. S.Ct. 59 L.Ed. 939. There terways, can have the to Secretary effect cast War established lines government obligation not to its navigability exert A harbor Norfolk. constitutional obstruc company, riparian proprietor, to abate had as lumber exténded Bridge tion. And in Louisville ted 61 Co. v. Uni upland wharf of its out a in(front 409, 417, 242 prior government to the establishment Thereafter, L.Ed. that even an improved lines. and extend Congress granting Act of without lines, reserva ed its wharf to the as it had an new right bridge tion to construct over unquestioned right Subsequently the to do. navigable waterway of Secretary the United States “in interests of commerce and binding

was not Congresses navigation” on future changed lines, the result as that in interests of commerce and navi part into which a the wharf extended gation grantee required be could to channel-way. the new The wharf owner change or remove required the obstruction. The de claimed that demolition of Secretary cision Taft was made in the wharf to conform the lines was a new 11 Act, 13 Payne App.D.C. Houghton, Section and Harbors Rivers v. supra. affirmed 194 Ball, The Daniel 10 Wall. L. L.Ed. 888. Ed. n taking Amendment, Congress juris- the of water which has over Fifth but under the damages occupancy of diction. The dam is an right to 'Court denied n onthe River, such establish- Section original ground that the authorizes the Commission to license circumstances issue such orders at most a ment of the lines was n consent to extend appropriate. that find improvements to instance, pe- In is that pleasure this issued order and was revocable n apply statutory permit, for a compensation. titioner government without order, obey. think, must that we therefore, are, forced to We said, view of has it is clear the what n conclusion Seсretary Taft the action that arbitrary. ‍​​​‌‌‌‌‌‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌​‌​‌‌‌‌​​​‌​​​​‌​​‌‍not order was Commission’s bridge, if railway even with relation to Affirmed. petitioner in erection upon by relied dam, power of no its affected in sense EDGERTON, Associate Justice. its require its abatement We need not decide how far the doctrine n continuedmaintenance conditions new, of the point points, case is and on only impose. as it should express no other opinion. I On all I of the court. concur there is Nor do we think finding navigabili argument that petitioner’s Commission’s .greater force in ty right only seems me not under the rea 4(g) and 23 Federal Sections sonable-improvement retroactive; rule two inde prospective Act pendent (1) Beyond ques words, reasons as well. Power Act does not that the was, past, pass tion there at various apply its times dams constructed before commercial this unbroken of the riv age. position in petitioner’s To sustain plain lan respect disregard er boats of a sort. “Commercial disuse would be ** un does not amount an abandon guage Act. 23 makes Section construct, operate, prohibit ment of a river or future maintain “to lawful * * Light Economy of exertion federal control. a dam in a n theUnited States & Power v. without Peti- Co. a license. contrary to 847.”1 maintaining its dam tioner is considered, navigable, “When once found to be a water provision. It cannot Beyond think, existing way (2) Congress meant allow remains so.”2 n obstructionsto unregulated capable navigation, in the the river is now continue stretches, by The broken a sort. navigable streams the United States. boats “Nav n contrary policy is law, definitely igability, stroyed de shown the sense of is.'not interrupt in 1899 of the Rivers and Harbors bcause the watercourse passage Act, prohibits in nav- occasional all obstructions nаtural obstructions except ap- government portages.”3 “There has been doubt never igable waters obstruction, navigability dam is an referred to in the cases proval. Petitioner’s navigability fits despite conceded it “in as a was obstruction if it even n falls, bars, development”, rapids, shifting fact the river sand carries or Congress, in prevent United currents.”4 definition of will not exercise authority.14 paramount “navigable Act, Sec- waters” in the Federal expressly recognized 4(g) princip the Power has authorizes Commis- investigate any occupancy of bodies sion to le.5 Light page Economy 14 Appalachian case, bottom & Power Co. Unit *9 U.S., page S.Ct., 113, 122, 85 256 41 308 of 61 U.S. 311

426 409, 412, L.Ed. 243. 847. 65 L.Ed. 4 423, California, Arizona v. States v. Electric Co., 377, 75 L.Ed. 61 S. Ct. 243. (8). United States v. Stat. U.S.C.A. § 796 85 L.Ed. 243.