Title: Improvement of Navigable Waters
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Permanent Link: http://ufdc.ufl.edu/WL00003094/00001
 Material Information
Title: Improvement of Navigable Waters
Physical Description: Book
Language: English
Publisher: President's Water Resources Policy Commission
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Improvement of Navigable Waters
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 12
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003094
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text



oualawsd natedsine 1866." In 1l81,Cogreas required that,
with reSpect.te veseaelkawring.at or departing frosa localities
wheir navigation imnprovmiente aers arrIed on, there beoifui
nished a 'oprehensive' statement" of vessels, passage
freight'and-toinage." :,This requirement was implemented in
ls22W~ietheSeuretary of the Army was authorized to specify
the scope eo sich statement ts." ;I
SI the colletion of such tatistis, Congress in 1912 require
the Army Eninenes to adoptaunifne'm systema of lassifeatio
for freight, and upon rivers and i-ilaad waterways to collte
ton-mileage statistics as far as practicable.": I ;;

miproveiient obf Navigable Wt~rs

la the early decadesrO our national history, improvement of
watetwayswas undertaken by states and private companies."
For example, construction of the Erie Caal..by,the Sttate o
New Yekk was eommenced in 117. and completed in 1825,"
We have already, noted instances where the Federal,Goverar
mert aided and eneopraeed development by states ad private
companies." Such instances included grants of public lands
fbr specific projects and for river improvement generally,-and
federal purchase of stock in can a companies. ;
But the responsibilities which have been assumedby the ed-
eral Government for the protection ad-prop otion of commerce

SAct:. ea ne M18B, 4,,14 Stat. 7 74; Act of Jnne 18 1902, 114;-32
etat. 81, 8-6. Under the provisions of the Federal Beports Att of 1942
the Corps of Engieers is the sole federal agency :to cotlet, compeiae and
publeshteta ondomestil water-ba oe commn.erce. Aet of iecemthes 24,10428
*8S, 5B iStat. 1(08,& fU. & C. 18,.-138f ,see RHRForm rNo. 1, BudgetNo.
49-A 268. andaBHB Form No. Ib, Budget No. 49-R 302.1. A like fuetion
as to foreign commerce is similarly assigned to the Breau of the Cealses.
See Department of Commerce Form No. 7525 -Budget No, 41-R 897.2;
Oastoimse orm Noi,,r5, Budget No. 48-R 217.1 : '.
i 'Aett of february 21,181U -1,2B 2 Stat. t6, 833 U. & 0. 554.
" Aet of Septeanber22, 1922, 11, 42 Stat. 1088, 1043, 88 U. & 555.
:Aet o( July 25, 1912, 1 87 Stat 2,8, 338 U. S. 558.
SSee PurBo AIDS ro TBaLPOarrTATIO, Federal Coordinator of Transpor-
tation, vol III, p. 10 (1989).
See pp. 75-
See supra, pp. 75-76.





88
on inland waters were a logical and largely unavoidable conse-
quence of our geography and system of government. > The eco-
nomie confusion i;ibusiness relations during the period. im-
mediately prior to establishment of 'thie:Constitution brought
the colonies within theshadow of .commercial destructipinf
One sequel, as aieeadyindicated~, was the constitutionMl dlet-
gation to Congress of the exclusiveIpower to regulate, inerstate
bommerce.Y Another was the constitutional insurance against
imposition by thestates of oppressive tariEfs and emibargbes.
These developments* coupled with our westward growth, ac-
centuated demandsifr federal navigtion improvements.8 :'
Even before the Supreme Court's historic opinion in Gibbons
v. Ogde&n,. Congress,!i 4820 apprqgriaIedfuudsfor, survey of
certain tributaries to the Mississippi and of portions of the Ohio
and Mississippi Rive.rs. And in '1824 came congressional
authorization for a survey of such roads and canals as the Presi-
den~ t might deemlof national importance, together with. an apl
propriation for removal of obstructions from the Miss ssippi
and Ohib Rivbrs.'7 In the same year, Pi-esident Monroe recom-
mended a plan'for connecting various parts of the country by a
network of roads, canals, and improved rivers.! -

"3 Channing, HTEI oTr rO THE ~ ST 5 r, ch. 15 (P12); Fslke, T~H
CaraL. PERIOD OF AMHERICAN HISTORY, cb. -4 (1888); Nevlns, TP,AMbaP AN
STATES DURWI A ND ArFP THE REvOLUTrno, pp. 585-568 (1094) ; Warren, TaB
IfaxnuB orBi'nTE COF BTittiir, pp. 8-88 (19).'
See supra, pp. 8-29.
S"No State shall, without the ConSent of the Congress, lay any Imposts or
Duties on Imports or Expdrts, except what may be absolutely Weceesary fer
executing it's inspection' Laws: and 'the net'Produce of a:ll Duties'and
Impbsts, laid by ani State on Imports or Exports, shall be for the Usee f the
Treasury of the UnitedStftes; and 'llfs th Laws .hall be subjectto the
Revision and Control bf the Congress'" U. Const., At I, 10, el. 2
U See eupra n.a i9jp 9. ;
"aWheat. 1 (U., &18;4)Y. See supraG;pi 9-10.
rAct of April 14, 1820, 8 Stat. 562, 568.& The report bn this wbrkkby the
Board of Engineers was communicated to Congress in 1828 Wy President
Monroe. 2 Richardsod: MtSSAGES D .1FPAi b o THE PaPRBESNTS, 199
(1896) ; 2 AM BIcoA SIrtA PAP as: OosmfiEfi & NAvaATiON, pp. 740-746
(1884).
Act of May 24, 1824, 4 Stat. 32.
"2 Ax CAna STATE PAPERS: MIuTARY AFFAIBB, pp. 698-701 (1824); 2
Richardson, op. fit., supra, n. 86, at pp. 255, 257. :






jp 1828 and 1846, Congress made land grants to Alabama,
Iowa, arid Wisconsin to promote river improvement.* But no
Sstbtantil improvements redUlted, and the demand for federal
undertaking of improvement of waterways continued." :In
1850, Presidenit Mllmore tobk the position that uileis Congress
directly undertook waterway improcweents, they could not be
accomplished at alft In the latter part of the century Cdi-
gres appropriated funds for improving or completing private
developinents, provided the owners relinquished their rights to
charge tolls."
Also, it authorized the acquisition of state? and privately
owned canals and navigation works by donation," condemna-
Stion," and by purchase.", In addition and despite an apparent
hesitancy to undertake sole responsibility and despite rapid
rail expansion, Congress by 1882 had appropriated over ope
hundred .million dollars for rivers and harbors."
In total, Congress has now enacted many hundreds of laws

;Act. o May 28, 1828, 4 Stat. 290, amended by Act of April 24, 1830,
4 Stat. i87 Act of Febrji2y 12, .91, 4 Statf 44i Acto July r6, 188, 4
Stat,4e0; A-t to June 28, 1888, 5 Stat. 57 (Alabama); it A of August'S,
1846, 9 Stat, ~ (Towa); ., p. 8 (Wisconsin). See Hibbard, A HItoUY
OF THE PtrBo LARD PoLIror pp. 240-241 (1924).
Sen. Doe. No. 137, 27th Cong., 3d seas. (1843). See also Sen. Doc. To. 72,
2m in., 2a tf8d. iaik (*bl
"5 RIchardson, M B9AGEs AND PAPES or TEm Pvasmse, 90 (1896).
SAat t MaiK 3, t89, fltf.863, V371 (Arai sw ""r and t By, 1kiaw;
A'At f aLats2,.1882, 22 S~at. if~:199 (Uttle Kanawha R~ier); A-t of
July 5,1884, 28 Stat.t8, 1~5 (Galveston Bay, Te-xY; Adt of iitrelsis 2,
32 Stat. 381, 49 (it. Lawrence River).
SB Act of aide 14, 880,'1 Stat. 1,189 (St. Marys Falls 0tal, Michtgai) ;
Act'of AdgaSt 5, 1886, 24 Stat. 810, 824 (Muskingum Rver inlmE ovet i.
"BAct ef J .as 8, 189, 29 Stat. 20, 2~1 (Mo6ongafela River imnpve-
Smeats). .:
SAct of July 25,1912,37 Stat. 201,206 (Chesapeake and Albemarle Canal);
Act of August 8, 1917, 40 Stat. 250, 202 (Cape Cod Canal); Act of March 2,
199, 40 Stat. 125; 1277 (Chesapeake and Deliware Canal) ; Act of March 8,
1925, 43 Stat. 1186 (Lake Drummond or Dismal Swanip Canal).
:* Ap l rPBPBIATrO aftmSrtbase AbOs RIVERB AND HARBOBS, H. ExeC. Doc.
No. 64,48 Oong., 1st sess., p. 285 (1884); Ambler, A HITroam or Ta Nspoa-
TATpXN xt THE OHmo VALLra, pp. 185-209 (1932); CloWes, SHIPWAYT TO THE
SA, P. -1 (1929), TBAWSPOBTTIaON IN THE MIsSISrP AND OHIO VAUSTB,
Corps ot Engineers, U. S. Army, and Bureau of Operations, United States
Shipping Board, pp. 170-172 (1929).






tj improve and protect navigable waters in the interests of
navigation.97 With few except*ps it has employed, its
commerce and spending powers in the enactment of these laws.
And as we shall shortly see, their administration has been as-
signed largely to the, Army Engineers. By June 30, 41949,
total expenditures on improvement and maintenance of rivers
,and harbors had exceeded $3,461,000,00. Total expendi-
.tues during the fiscal year ending June 30, 1949, exceeded
$1Oo000,000, apprio niately 50% more than the total amount
spent during all the years prior to 1882." Additional amounts
have been allocated" to navigation at reclamation projebts.1W
CORPS o EhGatantiki9;U. S. ARMY.--From the beginning, fed-
eral responsbi id i f navigation imprOvement of rivers and
-harbors has been the duty of the Army Engineers almost ex-
clusively.101 IS-1824, Congress asthlorized the President to
cause surveys, plan, 'and estimates to be made of sich Sroads
aid canals as he may deem of initial iimportancew ih com-
mercial or military point of view, or necessary for the trans-
portation of the pubic mail;" )ando4b.at end, to employ two
or more skillful civil:engineers and "officers of the corps of
engineers." 1d" is authority employ civil engineers was

"For the most part, the laws hereafter surveyed in this section appear
in three published vouwea ofQ LAWSOB ep U ianp STAsIE I3MaOVa4prT OF
r;X mas AND~~ Ap covering ,tleyp~ps 1790 to 1889 and totalling 2620
paspe;.Volupme 1(, p e.No..1491,.624 Cong.. 3d sees., 1913) from 1790 to
1890; Volwae 2 ]. o. yNo.. 1491, 60d Copg.,i 3d sees., 1913) I romp 1809 to
1913; Volume 3 (H. Doe. No. 379,76th Cong, let sese, 1969) from 1913 to 1989.
ABindex to th~ae wx ls, contained Ia a separate volume (IH Doe. No. 879,
76th Cong. st sesa,. 199). Subsea lpt Lw~4 are Bew being compiled,by the
Army Engineers., See A4t9f June 30, 1948, 1( 6, 62 Stat. 1171, 1174.
"AiNUAL Ri'CPOr OF THE CHIEF OFr NOGINUElS, U. S. ARBY, p. 23 (1949).
"/Id. p, 20. -
1 See Wfr,, P 240, .
"Hereafter, the Corps of Engineers, U S. Army, will be referred to as
the "Army engineers."
For the participation of Mississippi Eiver Pomamission, see Wifra, p.;98;
the California DIbris Commission, see 4itfr, pp. 119-120; the International
Joint Commission, see, i nfra, pp. 121-122; the International Boundary and
Water Commission, see infra, pp. 122-128; the Tennessee Valley Authority,
see infra, pp. 484-486; the Bureau of Reclamation, see infra, p. 240.
m Act of April 30,1824,4 Stat. 22. : :-







later repealed.' But the service of the Army Engineers eon-
tiined without interruption.'" From 1852 to 192, codgres-
sional appropriations for specific project piroided&that funds
be expended under the superintendence of the Secretary ofthe
Army, who assigned the work to the Army Engineersm" 'ike
appropriations for specific projects between 1892 and 1922 pro-
vided that the moneys &e expended under 'he direciin of ttie
&&arfy and supervision of te Chief of Egineer?." Frrom
1922t to the present tihe, each Ri'ei and e Harbor Act h!ia
authtrihed various projects nd baa p6vided that they shall
be prosecuted under the direction of the Secretary and super-
vision of the Chief of Engineers."
"In aditiboi to those periodic grants of authority,' Congress
provided generally in 1935 that investigations and improve-
ments of river, harbors,;and other waterways shall be under
the jtibfdie6ieon'of, and shall be prosecuted by, the Department
6fthe Army under the direction of its Seeretary and mspe-
vision of the Chief of Engineers.'
SRPAR IN FOR PRobJETS.-' Congres has enacted many laws
significantly affecting preparations for navigation improve-
ments prosecuted by the Army Engineers. ,
Examinations and Surveys,--Since 182, it has provide
that ~g preliminary examination or survey for new work

iActtof July6, 5, a88,8 4 Stat_.a 4St .
S, vom MONOmAFHpS or TUE UNTTr) StATmB GetmlxhalT, NO. 27, OmOnt
o0r tm Cear2 oF ErwaIEBS, Institute for Oovetninent Research, p S et *e;
(1928).
i"See, e. g., Act of August 0, 1852, 10 Stat 56; Par. 1, Regulations 11
Relation to River and Harbor Ipprovements, September 10, 1852, filed in
DEIrISIONS, ORDaRS A") BeULATiONS, WAn OMice, No, 3, from July 0,1844,
to National Archives, which divided the work between the Corps qf
Engineers and the then existing Corpe of Topographical engineers, both
U. S. Army
Hereafter in this Chapter, the designation, "the Secretary," will refer to
the Secretary of the Army.
Y*See, e. g., Aet.ot uly 18, 182,f 1, 27 Stat 88.
m See, e. g., Act of September 22 192, 42 Stat 1088.
Act of August 30, 198, 1,49 Stat. 1028,88 U. S. C. 540.






92
shall be made unals authorized by law. 10 General conC es-
sional practice has 1 ng been to aughorze examinations and
surveys in omnibus "Rirer and Harbor Acts," almost 100 of
which have been enacted since the first in 1826." If pre-
linainary examination shows a proposed improvement not
advisable, no furthe action may be takenn unless directed by
Congress; if favorabe, the Secretary has discretion t, cause
a survey to be oad0e nd, the qost and advisability reported
to Congress.1" Afta regular or formal report on an examina-
tipn0orsurvey ip submitted, no supplI aentalor 54ditional!re-
port may be made unless authorized Wy law.112
In connection with the foregoing restrictions, however, note.
should be made of an important general authorization resulting
in the so-called 308 Reports." In 1925, Congress directed
the Secretary, through the Army Jngineers, and the Federal
Power Commission jointly to prepare and submit an estimate
of the cost of making examinations and surveys of those
navigable streams and their tributaries where power devel~p-
ment appears feasible, and practicable, with a view to the
f utio of nera plans orinprovement of navigation
and the prosecution of such i prvement in combination with
efficient development of potential water power, control of floods,

'Act of July 18, 1M2g 8, 27 Stat. 88, i16.' All River and Harbdr Acth
regularly contain this provision. See, e. g., Act of May 17, 1950, 64 Stat. 168,
-. In addition, appropriation acts proibit expenditure of appropriated
funds for examinations and surveys not authorized by law. See, e..g,, Act
of September 6, 1950 684 at. 595, -. Whenever permission for construct.
tion of dams is granted or under consideration by Congress, such surveys
and investigations of the affected streams may be made as are necessary
to secure conformity with "rational plans" for improvement of the streams,
for navigation. Act of June 25, 1910, I 3, M3 Stat. 630, 668, 33 U. S. 546.
See, e. g., Act of May 20, 1826, 4 Stat. 175; Act of May 17, 190, (~ Stat.
183,--. .
'"Act of March 4,191i, 87 Stat. 801, 82~ 826,33 V0 545.
SAct of September 22,1922, 12, 42 Stat. 108, 1043. This limitation has
been repeated In all subsequent River ana Hi6rbor Acts. See," e. g., Aet of
May 17, 1950, 64 Stat. 163, -. Similar restrictions were included in earlier
statutes. See, e. g., Act of June 5, 1920, 2, 41.Stat. 1009, 1010.
t'This designation arise from the fdct that coat estimates of the surveys
were published in J: Dee. Np.3808, 69thieong., .Lat ses. (.1926).







sad the needs of irrigation.?" 'The 1927 River and Harbor AAt
authorized prosecution of these extensive surveys by thMAmy
Engineer alaoneJ4 And in 1935, Coagresr directed that, sMah
surveys be supplemented by "such additional study or investi.
Action a the Chief of Engineertdfinds necessary to take, ito
adeouAtl impa tant, cha~ es in; econtic 'factors as they -ocettr
and iadditionaiastmam-flow records, or other fatual 'data,'".
By June a0, 14, these authoriations had resulted in s rvey
bf 191istkeram. : With approximately 97% of the task ion-
pleted, reports on the remaining streams were then well
advanced d toward conhlusion1V1.' ,
SCbngress ha stipulated &a number of general requirement
respecting thb conduct of examinations and, surveys andi the
edmposition of reports thereon. -Thus, reptts on preliminary
etamihatioiis And sut!eys, containing plans and estimates,
must include a statement as to the rate at which the work
should be prosecuted; and in addition to full information re-
garding present and prospective co ummereil inpoartnce of
the project and the probable benefit to commerce, each report
must contain ibrtain ddta respecting the existence of and. need
foilprivate and public terminal and transfer facilities, the de-
velopment and utiliastioin of water power for industrial and
eommeteil purpqws, and other related subjects, provided that
"consideration shall be given only to their bearing upon the
improvement of navigation,', to the possibility and desira-
bility of their coordination with navigation improvements: flo
losen the cost" of suhimprovements, and to their relation
to the development and regulation of commerce. i
n, Another general requirement is that every report on a pre
liminary examination and survey: concerning a proposed im*
provment of the:eatrance at4he mouth of any river or inlet
shalLas1i contain information concerning the configuration of
Act of March 8, 1925, 8, 48 Stat. 1186, 1190. The Colorado River was
excepted. -
Act of January 21, 927, S1, 44 Stat. 1010, 1015.
'"Act of Augnst O, 1935, 6, 49 Stat. 1028, 108.
ANNUAL REPor OF THE CHIEF OF ENGIEBs, U. S. ART, p. 2647 (1949).
"2 Mid.
Act of March 4, 1913, 3,37 Stat. 801, 825, 38 U. S. C. 545.







ti ahdre i ke and ,eiprdbable effect~ bereon likely to esimt
fr o tMh imbravenit, having particular reference to erosionn
and/or acretioan? for a distance bf idt tse than ten miles o.
eitheruide of azolicentnrcie.b r" fvy i gy i s.i "unj
St Bach survey report mibstaio obtain aa itatenait of speoian
or local benefits whieh will accrue toioealities affeted by the
pirpeosd impco~reiist and a statemevt'of general or national
benefits; with Teeoimdendations 'das toany i6l .ceoperi*tior
which should be required on acouprt-bf fuch special oi lcal
Bneflta e'j'- a y- I
Likewise, every report submitting -plan tb Congte. anast
seeify the reli tionaijbetween rtdhep~a~ o d piaas and plans,
if'any, submitted by the affected states; ad if th use'oran-
trel tV waters wh*irrise in whole-'or in part west ofthe
ninety-seventh meridian is involved, plans submitted bythe
Secret y of tie Itrterlm -
Similarly, any reportt on a proposal under which waters would
be impounded diverted; or thdriwe onftolledmast Jndnud
the reports and recommendations R the Seiretary of the In-
terior and of the state agency con~ered with wildlife reesouree
based :on investigations of the possible damage to wildlife
leeidrces aid meins for avoiding such amnage.
Posibble use- of damsi as supports for highway bridges is
another factor tobeconsidered in preparation' for projects; In
1046, Congres' auitorized the contblling federal agencies to
design and oonstruct dams so that they will constitute and
serve'as sitabl6 iad adequate ftbndations to support public
highway bridges, provided that the highway department of
the;state where the dtan is to be located and the United States
Commissioner of Publie Roads (1) o rtify that such bridge is
economically desiaMble and needed a~ a link in the state or
fedoeal-aid highway system, (2), request, such federal agindy
to design and construct the dam and bridge, and (3)agreerto
SAct of August 80, 19385 5, 49 Stat. 1028, 1048, 83 U. S. 0. 54s.
SAct of June 5, 1920, g 41' Stat. 100lW, I0% 8 U. 8. G. 5W.
Act of March 2, 1945, 1, 59 Stat. 10. Also made applicable in all subse-
quent River and Harbor Acts. See also ifra, pp. 9697.
SAct of August 14, 1946, 2, 60 Stat. 1080, 16 U. C. 662 See also
infra, pp. 329-Sii.






reimbunrr-sch'wgeJa r .additio alsm st ineuwred.l Also,
such federal agency having juriwdiitpc .,wer t.. dca sun

yb a$ .9ot tinrfre with the, proper
I ,j ,.io.iiao..,topemp ,.f ti p edan..
, 4 4w ippA th pyvys oqf avigab e etreama aor include
ra n-p ipla i-ur ei sd other investigation t ofwater-
e isoeneiamr.iis ,and prsper,anhsderaais o of all

S..tfer D- pgat varifyju,oftinfprpiatxin is obviously
:WPWSMB^tiP fqWC nav-tion im-
Dilr flnk sfe'ln tttq OCflaxn f bsic data
efl, e p^.Ariny ,aind^rP ^ fep44ygdrmambled by
1saWgeSies, 'uc h aq the CoPAst .a4 epdetio .Survpy, the
(Seqpgj*al Survey, and the. Weather Aureav." Moreover, in
addition to stipulating the inclusion of specified information in
reports,on examinations and surveys, already discussed, Con-
gree bas directed the Army Engineers to obtain other data
Ip. 871, it directed the Secretary to have water gauges estab-
lished and daily observations made of the rise and fall of the
Mississippi River and its tributaries."
I.tiould A bt thtei t C res~p ha declared that, mi
ie/, i -a j t ii h deptj referred t _iall be
tiMestobd to ig sf r tie de ih a meian low-rater tidal
wtem tribut y '4 te At ihtiq and GBMCoasts, and at mean
I low-water in tidal waters tributary to the Paific Coast,
0nd At mean depth for a continuous period of 15 days.of tie
lowest water in the navigation season of any year in rivers ari
iontida2 channels"*: Likewise, channel dimensions specined
idall be understood tb admit of such increase at the entrances,
bends, sidings, and 'iurnng places as may bt necessary to aflo
of the free 'iovemeht of boats."
A"Mct If.et yq ,a l,S g 1 sat.OO, 8U. S.. 4.
'Aet of .Ja.e t, 1194 8,3 6 Stat. 0690, 86,fas .8, 0. C.f64
See infra, pp. 842-48.
.i 5. 5252, fro BRe. M February 21, 1871, o. 4, 16 Stat. 598, as
amended, 83 U. S. 0. 4
Aect of March 4, 1955, 88 Stat. 104B, 1058, 83 U. 8.0. 502.
I'd.
911611--51---8






ooperation With Other Agenvies-,-ln a W1944 declaratibniof
policy, ongret ssattedthat:4.. a.l' '..:.; r.
S In coDndtion with the ei &ijeof j-risdiction oiert
'L'rivers of the Nation through ti cohstruebd o6 c *&ri
ofimgprovement, for na'viWti6'rfl66d c6itrol, as htibi
!'~: authorized,'it is hereby dedlard to be the plihby of'the
:Coigreps tb reedgnize the interests and tights 6f the
States in deteiWihing the d~Celolment 'b -he wat-'
sheds within thef. 'bordeiga d'likewise tHeir mitei~t
:'?'":: -Ad rights .i ir'der 'utilization ad control; as heimin
"authorized io ji*ktve ahd Mtedtb the fMHlst odiMble
extent establi'ed 'aand plte iy uis, for all pp~eose;
.of the wats rof hei Nation' iverds; to facilitate theicon-
:sideratidn 6f 6 ro tcts on a baii 'of comprehensive and
coordinated development; and to limit the authdkizaA
i + 6 fidn' And o6iitrtction of navigation works tt;od iin'
S which a substantial benefit~ ~a igatioB will beeaed
: therefrom ind which can be operated consistently with
appropriate and economic u obf tl' withers Of uc
Rivers by other usbrs.
,Tp implementt thatpoA y, J e ct re res ta invypsti
tions forcing tn i fm plns for.nyigtion unprovements
be so conducted a&to giv t4e "affected" states the information
developed, with an opportunity for consultation, and, tothe
extent deemed practicable by the Chief of Engineers, opportu-
nity,to cooperate in the investigations. The Chief of Engi-
peers is to maintain relations with the. governor of the : -
feted" state or sueh social or agency as the governor;may
designate. "Affected states include (1), those in whici:l-
pVryvemen ts az~prjpoQ to be located, (2) those in whole or
part within the drainage basin. inojovqc and situated "in a
state" lying wholly or in part "west of the ninety-eighth meriid
ian," and (3) suchAf.hqse east .ef tha ,eridbnasin the judg-
ment of the (Chief'ot Engineers will be substantially affected.
Act of December 22, 1944, 1, 58 Stat. 887, 888. This is the 1944 Flood
Control Act. The same statement was repeated in the 1945 River and
Harbor Act. Act of March 2; 1945, 59 Stat.,10; It has since been made
applicable in each River and Harbor and Flood Control Act. "







Plans, proposals, reports and related, investigations shall be
made to the end of facilitating the coordination of plans for the
constuction and operation of proposed.werks with other plans
involving waters which would be used or controlled by such pro-
posed works.
lThe Act also prescribes similar cooperation with the Secre-
tary of the Interior where the investigations concern wateti
"arisit west ofthe ninety-seventh meridian." -
A copy of the report of the Chief of Engineers must be trans-
mitted to bach "affected" state in every case and also to the
Secretary of the Interior in the case of pans and proposals
concerning the use or control of waters "which rise in whole or
in part west of the ninety-seventh meridian.'" :Ninety days are
allowed for submission of the views and recommendations of
thitaffeetedstatd aM4 t&the Secretary of the Interior. Tlhere-
after, the proposed report, together with the submitted views
iad recommendations, are to be transmitted to Congress by'
the Secretary of tit Army with his comments and rfcotn
mehdatios. -
Another example of cooperation prescribed by statute con-
cerns'wildlife resources. With a view to preventing loss of -ior
damage to such resources, consultation with the Fish amd Wild-
life Service of 'the Department of the Interior and with the
state agency concerned with wildlife resources is required in
every.case where waters are authorized to be impounded, di-
verted, or otherwise controlled.m .:."
Apart from any requirement of statute, the Department of
the Army participates with the Departments of Agriculture,
Comnieree, and the Interior, the Federal PFewe Commission,
and the Federal Security Agency in the operations of the Fed-
eral Inter-Agency River Basin Committee.'m More will be said
later about this voluntary arrangement which seeks agency
cooperation in preparation of: reports on maultiPle-purpo
projects and the correlation of results.'"
SAIt of August 14, 1946, O 2, 60 Stat. 1080,16 U. S.. 2. See infra,
pp. 829-30.
: See sfra, n. 198, p. 432.
See infra, pp. 481-433.







Sissifaippi Riwvr Commission.-Becaue its statutory re-
sponaibilities relate primarily to the par~ action of pfPpjQjiU_.
specified areas, it is appropriate to eopsider here the Missis-
sippi River Comnission.1' In sEa4ing the. C mmissio, m
1879, Congress gave it the duty of making certain sa ys8,-ee-
aminations, and i"yesit 'ion It also has the duty to take
into consideration and "mature" such plans and estimates "as
will correct, permanently locate, and deepen the channel and
protect the banks of .tbeMississippi. Riyer; improveand give
safety and.ease to the navigation thereof; prevent destructive
floods; promote and facilitate commerce, trade, and the postal
service." '8
With qualifications, the Commission's jurisdiction was later
extended to a part of. the Arkansas River; "1 the harbor at
Vicksburg, Mississippi, and a part of t~ e Ohio River; lat
to the tributaries and Outlets of the Mississippi River between
Cairo, Illinois, and the Head of the Passes.' Moreover, a .1917,
statute authorizes expenditure of funds fhi certati iMprove
ments in the case of watercourses connected with the isi
sippi River to such extent as might be- necessary to exclude
floodwaters from t, upper limit ,pf any delta basi, tpietiler,
with a part of the Obio River.'",,,
"'In other respects, projects planned by,.te Commission today nioya fq-'
ward as do other projects under the ChOet of Engineers. See H. Doc. No.
9,; 70th Cong., 1st sesa., p. 38-34 (1927); Act of July 1 1802, 27 Stat.
88; Act of May 15, 1028: 46 Stat. 54; AWSar. t~a uoar WHa Camr or
EBNQuIewa, U. S. Anma, pp. 2671-2714 (1940). For a brief history of A some-
what. similar but now nonexistent agency, the Missouri River Commission,
see INDEX TO THE RE~For O TaHE iIE OFr 1iMiNtel,, US. AMY, 1806-1912,
vol. 1, p. 1040.
m' Act of June 28A, glA4tpt 37T, as amended, 33 U. SC. 647. By fd,
with the advice and consent of the Senate, the President appoints the
se~en Commisioners: three from thel Enginneers, one of whom thae
President designates as president of the Comtwsloira cibe from the ,ost and
Geodetic Surey; and from civil life, two .o whom m ,e M
engineers. 2, 21 Stat 87,33 U. S.. O. 642o u e
4,21 Stat 7, 38, as amended, 33 U. 5. 0. 647.
SAct of July 27, 1916, 1, 89 Stat 8~, I40SS .4 0. 6. 4&
"Act of July 27, 1916, 1 1, 89 Stat. 391, 402, 33 U. S. C. 649.
"Act of September 22; ia2 i 13, 42Stat,!' 88, 1047, 83 U. S C. 61L
"Act of March 1, 1917, 1, 39 Stat. 948. Authorization for the use of
certain other funds was provided by the Act of Julr27, 1928 1,.89 Stat.391,
402, 88 U. S. C. 650.





89
Board of Engineers for Rivers and Heabors.-In connec-
tion with preparations for navigation improvements, an impor-
Stimtfunction is performed by the Board of Engineerm for Rivers
and Harbors, the creation of which in the Offie of the Chief of
'Engineers was authorized by Congress in 1902."' All reports
on examinations and surveys and all projects or changes in
projects for works of improvement are referred to the B~ rd,
consisting of seven engineer dffAeis, for its onsideations id
Tin~enza dation." Ohe 6f thepurposes in providing for the
Bdard was to insure greater uniformity in ~remstineiedtions
and reports.1" The Board submiA to thetihief of Engineers
its recommendations on the commencing or continuance of im-
p|ovements on which reports are required .
In considering such works and project, the Board is required
to, have in view the amount and character of eomuneree exist-
i or reaeonably prospective which will be benefited by the
improvement; the relation of the ultimate cost, both asto eon-
atruetion and maintenance, to the public tommeriatl iiteets
iavolvedt the public necessity for the work; and the propriety
of iten ~ strwetion, ontinuance, or maintenance at the expense
of th Unitedl tateO "CobmmerOe" is defined to include the
uWe,of waterways byf'easonal passenger raft,yachts, hose

Act of June .8, 102 | 8, 32. Stat 331, 372, as amended, 33 U. S. C. 541.
"Origthally composed of ive engineer oflcers, the Board's membership
wak alUtge to asOe by Cngres lij 1018 wlth a wCectlletton tlat a ftk-
jarui shal be of rank not leo than lieutenant coloaal. A4 of Mareb 4,
19*1,. 4,87 Stat 801, 82, 33 U. P. L 541.
". Bep. No. 7t i h Cng., Ist sea., p. 3 (1902). During ndbae tle
Hnast on the 1902 proposal, the Chalrman of the Committee On Blvers and
Rarbora, Representative Burtaon statedhat, "It il tree that to an extent we
can decide upoi these reports and recognize the different standards adopted,
but It is very destrable.that q anform standard abolul be adopted by the
Executive Department, and that a board of-tgineers, ve in mnuber, familiar
with all the works in the country, should review them before they ae sent
to Congress" 45 Cowe. roa. 291 :- .
The OChet of Engineers has stated thatY,"TlIe review is for the pUrpae
of determining the economic and engineering justicfation of the projects
reported upon." ANXiUAL RBor or Tf C iF r rp Isnuema, U. 8. AxMT,
8649 (190>..
"Act of June 1,902 3, 82 Stat 31, 872, 83 U. C. 541.




UNIVERSITY iF LOR IDA
LPvj. U B f"A.
Ilk -;J
#9If~L p '~~




ID00
boats, fishing boats, motor boats;, and other similar water craft,
whether or not operated for hire." "
On request of the Committee on Public Works either of the
Senate or of the House, the Board is required by statute to
examine and review, the report on any:examination or survey
made pursuant to law, and report thereon as in other cases."
But the law expressly states that the Board may notextend the
scope of the project contemplated in the original report upon
which its examination and review was requested, or in the pro-
vision of law authorizing the original examination or survey."
The word "scope" is not defined in the Act.
AUTHORIZATrON orFPROJECxo.-Apparently to negate any in-
ference that authorization of an examination or survey consti-
tutes a project authorization, Congress in providing for such
examinations and surveys has for many years stipulated that
"the Government shall not be deemed to have entered upon
any project" until it shallhave been adopted by law.1" General
congressional practice for about one hundred years has been to
authorize the prosecution of projects in omnibus "River and
Harbor Acts," just as in the case of examinations and surveys.14
General Limitatons.S--Certahi limitations have bee im-
posed in connection with the submission 'of reports arid the
authorization of projects under the jurisdiction of the Army
Engineers. Congress hs provided siice 1892 thatmi project
or estimate for new work shall be made unless authorized by
law, just as in the case of examinations and surveys." With
respect to the latter, beginning in 1922. Congress hap included
in each River and Harbor Act a prohibition against submission
of supplemental or additional reports dr estimates after sub-
"A't oft ebtiary 1, 1932, 47 Stat. 42,88 .'S. 0. 41.
"Aet of March 4, 191, i 4, 37 Stat. 801, 82, 83 U. 8 C. W42.
See, e. g., Act of July 3, 1930, S 2, 46 Stat. 9i8, 933. Earlier acts cbn-
taihie a like restritidi contingent union appropriation of ftnds for the
project. See, e. g., Act e Janhuary 21, 19t27t 4; 44 Stat. 1010, 1016.
See supra, n.'110,p. 92.
*Act of July 13, 1892, 8, 27 Stat. 88, 116; Act of May 17,1950, 64 Stat.
168, -.






midilont~'.e rgular;oriforlareports on any project or worki
unless authorized by lawjM 'n; .
Continuing Authorizations.---The apparent restrictive effect
of these provisions is, however, subject to-certain qualifictins
isig5l Jro le gisati, ~p n the nature of continuing authoriza-
tins. For example, in correction with .a general great, of au-
thority for repair of navigation works, Congress provide lat,
whenever entiree recon sruction" of the work is essential to it
efficient and economical operation ad minntenance, certain
modificationss in plah and Idcation" may be made by the Army
Engineers where neess to provide adequate facilities fdt
existing navigationm Also, reference has been made to another
such general authorization, the grant of certain adthli6tyto
contract bridges on dams. Inaiiddition, Congress has enacted
a num ,. of statutes permitting some discretion in thiuese of
funds for specified types otwork.iA I cons te authoI triaoa0
for projects, and excepting the first, all are continuing in nature.
Each deviates from the general legislative practice of apprt
ing work on a project-by-project basis.
Continuing Authorisatios-Harbor Channels.-Each act
appropriating fuids for the maintenance and improvement, of
river aid harbor works since 1936 has contained a provision
empowering the Secretary, inhis discretion and on recommen-
dation of the Chief~ofEngineers based on recommendation by
the River and Harbor'Board in review of reports authorized by
law, to-xpend sums necessary "for the maintenance of harbor
haintels provided :by a tate, municipality, or other public
agency, outside of harbor lines and serving ess6itialineddd f
gepnral commerce and navigation.", '" .
.:ContmtiSn Authoriatwion-Snag. Removal-Similarly, a
general authorization endeted in 1945 permit the Secretary to
allot not to exceed $300,000 from appropriations: made
any one fisca- year for improvement of rivers and harlors,
"for' removing accumulated snags and other .dbris,:and fo
protecting, clearing, and straightening channels in IAvigable
SAct of September 22, 1922, 12, 42 Stat. 1038, 1043.
Act of July 5, 1884, 4, 23 Stat. 188, 147, as amended:883 U.. 5.
SSee supra, pp. 94-95.
Act of May 15,1936, i 1, 49 Stat. 1278, 1307.







harbors- nd navigable stream and tributaries thereof, When
in the opinion of the Chief of Engineeds stih work is adtis4
able in their interests of navigation or flood control.'" *
"Vntiituihg Authorisation-Drift Bemoval.--Another in-'
stance is the authorization for1t& Secretary i te Afthy t
make diret allotments from appropiatioris for maintenantle
and improvement of existing river and harbor vork or otherr
"aivable appropriations, "for the copection aia reinoval of
drift" in New York Harbor and its tributaries; 1 Baltimo:e
Harbor and tributaries;157 and Hampton Roads and harbors of
Norok and Newpq 1eypw and ther tributaries.
Continuing Authorizations--Hg4wpy, Railway, and i ,
Repair.-Still another example is the 1946 authoriation .fo

"Act of March 2, 145, S 3, 59 Stat.16, 23, 33 U.S. C. : 60 a this tti te
repealed a 1912 authorization giving the Chief of Ungideeir disretnfary7
aUitbhrit, iiter aU*toral brjtbi4e&EerSta pary examinations ard. min r surveys an4,,tp reepove snags and etPer
temporary or readily removable obstructions forop tributaries of waterways
already under Federal improvelaesit 6biini aI tri iavlgt dtditQt
paid fhom the appropriations for the adlining 'waterays," the c a~t a
single year not to eeI A$500 per toi taut Act uof 2Jul 1912, 8 1, 37
Stat. 201. 222. The limit per tri~utary was increased in 190 to $1,000.
Act of Jfly 8, 1930, i 3~, tt. 918, W4. li 16,'the limit was raised to
$8,000. Act ef Octiobet ;i940, 3 3,54, Stat. 198,12 0(
-Other general athrtatons for ,qpeedTwe ir n ,c oeqtlon ,w
removal of snags an pth. obstructions, provMiing some discretion i~ thb
use of fatnds, includeA i ao August 11, 18 i 1, 7, 25 Stat 400, 4 42 424
as amended by Act of iireh 8, 1909, 5~' 8tWfti 81,: 817, 88 U. 8. C0. 4
(MissE ippl and other iamed Rivers); Act of AugVut 11, 1888, 7WJIT Xf
StLa, 400, 420, 421, 424, as amended. by Act of March 2, 1907, 1, 4 t..
1073, i102, and Act of March 3, 1909, I 3, d35 Stat. 815, 816, 33 U. S. C0.
(Upper Mississippi and other named teirs) ; Act of 'Setember 10, 1800,
3;, i Stat. 426, 455as amended by Act of June 3, 1896, &8, 29 Stat. 202,
204,.4a US,% 60y f$s. -0 6rM Cf.'P 4 tf. Aqgust U ;1888, 1, 2A Stalt
40fo 420, 33 U. S. C. 601 (authorizing magkil gaugings, Mississippi River);
ad Act f' August 11i, 18, 1, 25 Stat. 400,'422,' as ainerndid 'b' Act of
June 6, 1900, 8, 31 Stat. 578, 584, and Act of June 13, 9owj- 1,832 Stat.
Sa4, a &i US3.S.tii 0. w!- oautheori t a.i$nii st a uth Pass of Miasse-
sia i Elver and examinations and surveys thereof).
Act of July 3, 1930, 6, 46 Stat. 918, 947, 33 U. S. C. 607a. Of. Act of
August 8,1917, 1,40 Stat. 250, 252, 33 U. S. 0.I07.
SAct of June 80, 1948, f 102, 62 Stat. 1171,1178, 88 U. S. 0. 572 (Supp.

*Act of May 17,1950, 64 Stat 168,-. :







ti.b Chief dlEngineeri to asef\fundai er tbe "repair, relocation,
rimbthlatioa',or rotecMtia'lof~s'hi hwayrailway or wtiity
erben 'i&as bet or ise 'being' Hmagiapd or deSiaytdIr by Weasan
of the perati of apy dan br ;eserv-ir project nidee the
Armys control." For "hi rpariob i ht may utilite tfuSt
av~dliBfej or the' construction; maintiance, or operatiAn of
the pject inivolved,* -"o 'i
ohtintiri Authowiiatis-Pishways and Future DevdeJp-
melt 'PosuerJ.'Two additional gieren enactments merit
notice 'here. Both coanmtitirte continuing, project, authoriua-
tions antd both ina ve oertain deibftiua in the use of finds
FirsA Coi ie isi 18 etfitpwreed the Secrery; in his dtsa -
tio, to' provide "practig-a ddi adffiieat 'irslways" whenever
improvements are ount to operate as obstretions.to the assh -
age of fish Seeond, in order to make possible the economical
future development of water power, Congress in 1912;deegated
i trdac ioary authority to the Secretary, upon recommendation
of the Chief of Engineers, to provide in the permanent part of
any'autthorized navigation dam "such'foundations, sitdoes, and
other iRbrks, a may be' considered deli Mble for the future de-
voiometlt if iti water power." s

PrAct of ant 24S4i f90, 80so stat. 0AL 60, as U. t. &a Tlg
,ld wq paUy x"aldde& fr aebh protectan are highways. rnlw ,.
and utilities priously provided for by the Department of the Armn, udle
. fte bet odtfa e Setieiite that tti actual -tiiasie exced 'that
for w lUc ptovisioUt bad rtwltio been made. In connmetin with the
purpose at the protetiop 1p>wmlesa Pad the eclustla, it swenlAde poted
that the House Committqe reporting the legislation indicated that if owners
of operators were assured compensation for damage resulting from
etradflaiary saltations, there would no longer be necessity for thelr In-
dismSdb Sa ise conttigen items corveing all pIiabledamages" In their
estip4$pe he negotlt4ig a. settlement at the time:of coeatroctit. at the
project. H. Rep. No. 2165, 79th Cong., 2d sees., p. 8 (1946).
rAt 6c- &gut 11i, iAs h I, W Stat. 400, 425, 3' US.. C0.08. Bee also
Wra, pp. 829-830.
"*Act of July 25, 1912, 1 gtf taitW 01, S8W IM8'0. 6g. 18 e BB
and 1946 River and Harbor Acts ptoidb tait penstoeks ifi ftiu6tire deCelp-
ment of power shall be installid ai any dam theelta authorized when ap-
proved by the Secretary of the Army upon the recommendation of the Chief
of Engineers and of the P:eeral Power GCoImm~ssi Act of March 2,
1945, 2 -5G Stat. 1, 12. Actt July 24, 1946, $ 1, *'1tat. 8. See also
itrotr, n. 199, p. 291.





104
., Contiw.ing Authkriaotioa ,Lakes Suvi ne, The ,srvwe'-
ig)iaanbtchartintr-o tjei "Nontlhern aid .Northwestern Jlakes"
is accomplished a [a prOject under unique. authorizatiohs'of a
cdatinhing Onaturq. ,Sinee 4841, Atbe,Depattment of the Army
tmasanade surveys ofi the Great lakei under legislation., ap-
propriting fundsdotithat purpose .ascertaining andl hatng
depths in all significant directions to a plabe 30 feet below the
adopted low-water datum of the open lakes and 25 feet below
the! corresponding datim in the inhannels' of. the, connecting
riverswn The aopeiE this continuing lake 'urvey. twas ex-
tended, in 1911 to include lakes and other navigable' waters of
the New York Stateoanals;'* in,,lO38,to include Lake Chamin
plaiw;" ahd in 19O4, to include ef boundary waters between
the Lakeeofthe Woods and Lake Superior.",
.,Allocation to NaVigation at Reblamation Projects.--Under
the 1939 Reclamation Project Act, a portion of the total esti-
mated construction cost of a reclamation project may be al-
located by the Secretwny of the Interior to navigation on a non-
reimburable b4,is.; AAnd the 1939 Act permits automatic
authr~qition ofa reclamation project upoz fulllment oppre-
scribed conditions, including the exp.res, amen m ent in f*4
1944 Flood Control Act.1 .
Special PMtjecta.-Pearticular noteshould be made of three
important protectt authorizations whlch are exceptions. to the
gener legislative, practice of authorizing works in omnibus
River and Harbor,Acts. All provided for works of improve-
ment for navigation 'and additional purposes. Earliest was
the/authorization in (he 1916 National Defense Act for the
construction. andcIoperation byMthe. Amny, Engineers of the
Wilson Damn on the Tennessee River, later transferred to
TVA." In 1937 Congress authorized the Army Eni neer to
"Act of Mareh,-, $l,- .l;, & Stat 4%,,43.1; and,.a e .vAct of October
13,1949, 1, 63 Stat. 845, -. ,1 ;.. ,
WAct of March 4, 1914 1i 86 Stat. 1808; 1407.
Act of June 23, 1913, 1,88 Stat, 4, 3&
"1 Act of August 1, 1914, 1, 88 Stat. 609, 637.
mAct'of August 4,1938, 9(a), 53 Stat. 1187,1193, 48 U. 8. C. 485h(a).
Act of December 22,1944, 1(c), 58 Stat. 887, 889.
Act of June 8, 1916, 124, 39 Stat. 1O, 215, 50 U. S. C. 79. See 8supa
pp. 54-55.







complete, maintain, and operate the Bonneville Dam and ap-
purtenant works in the Coliunbia River, which had been ini
tiated under earlier legislation A, similar authorization
wad enacted in 1938'for the -Fort Peck Datn and appurtenanb
Worlarin the Missouri River. m
- Restrictions -on Legislative Consideration.-In addition to
limitations upon the Army Engineers, discussed above, Cont
greeshas prescribed certain restrictions for itself. ,Tlhusin
1922 it prohibited committee consideration of any project with
a view toits adoption, except with a view to a survey, if five
years have elapsed since submission of a survey report on sume
project *, A further effort to strengthen procedure appeared
in 1946 when Congress declared itspolicE that no project or
"any modification not authorized" shall be authorized by C(on-
gress unless a r-port has been previously submitted in con-
formity with 1aw1
FUNDS.-Piei ent congressional practice is to appropriate
annually lump sums "for the preservatiioi and maintenance of
existing river and harbor works, and fdr the paostlcti V'of stich
projects'heretdfbre authorized as may be most desirable in the
interests of commercee and navigation."* "
In addition to such appropriations, there is statutory au-
thority under which funds are otherwise made avai~ ible for
naviatio improvements. Thud, some projects adij~pted
ngres require the local interest especly. benefited to
contribute cash, lands, or work for othe construction of the

Act of aunst 90, 195, 1,j 49 Stat 1028, 1038; Act of August 20, 1987,
50 Stat. 781, as amended, 16 S.. 882 egt eq '' : '
"Act 6f~iay -18, 1988, 52 Stat. 40 aOs amended, 18:U. &. 8838et *eq.
m Act of September 22, 1922, i 9, 42 Stat 1038, 1048, 88 U. S. 0. 568.'
m Act A July 24 194 $ 2,:0g Stat. 641 88 U. 8;.. 71b.O.1 ibphmaiing
"any modification -not authorized" apparently reflects a ~rxpoae not "to
interfere with discretionary authority & -odify projects ts eeoferred O B
the Secretary of War and the Chief of Engineereg"i Sen. Rep. No :10244
79thCGoag., 2d aeas., p. 1 (1 4).
S,"'Act of October 18, 1949, 6& Stat 845, -. Regular use of the quoted
language and the practice of making annual lump-sum appropriations be-
gan in 1920. Act of: June 5, 1920, 41 Stat 1009. Prior to 1920,( Cngress
generally appropriated funds for each Specific project. See, e. g.; Act of
March 2, 1919, 40 Stat. 1275.







project."' The Secretay is empowred to receive oshoontri-
biitionsfrom prHviate parties to be expended.in .onneetioa
with federal funds appropriated for any atthorbied.&proiee
whenever such work maiy be considered by the iChiJ of En-
gineers as advantageous to the interests of navigation.17* if
local contributions made in accorda ne with specifierequire-
ment or under generic authorit5y'exceed the cost of bithe work
contemplated and chargeable to such contribution, the bxeess
may be returned unless the provisic of. law enabling sieh
contribution require retention of thebexces&W1" Morewveryithe
Secretary may receive a end expend funds advanced b-y loea
interests for the "immediate prosecution" of a project; with
specified exceptionshe'is directedto repay such advances with.
out interest from later appropriations. "'
Congress has also prescribed certain generally applicable-re-
strictions on the use of funds. For example, it specified in
1919 that no funds aproriated for works of river and harbor
improvement shelll be used to pay for any work done by pri-
vate contract if the contract prive is more than 25 pqr centum
in excess of the impimted cost of doing thework by Govern--
ment plant." "7 Another restriction appear in aa J892 tt e
providing that no mopey appropriated for the improvement of
rivers and harbors shall be expendd'"for dredging inside of
harbor lines duly established." 4 Nor may funds authorized

See, E g., Act of March 2, 1945, 2, 59 Stat. 10, 13, where local interests
were required to contribute 50% of thi first etost tfimpIrvetnoett of 'oi8
Inlet, New York, which is estimated to be $2,420,000 and to furnish nee-
eggary lands, easQments> ind rightsrpofway. r ee AWNUALA rW or vanTHE
CHIm or ENOeBIauns, U. S. AiPr, pp. 28-2P8 (1p40).
Act,4 Mairh 4, j15,~ : 4 88 Stat. 1040, 1058, 88 U. S. Q.500.
m l@"* ;., ..... .
,Act of Mared 8, 1925, .1 11, 48 Stat. 1186, 1197,88 U. L. 0. 581.
1 Act of March 2, 81M9 8, 40 Stat. 123 1200, 88 U. S. C. 624.The Act
also required that, eIn esax tiang the obet of. dof g the work by G0ov.
ernment plant, includibhgthe cost of labt add materials, there shab alSo
be taken into account proper charges for depreciation of plant and All su-
pervising and overhead expenses and interest on the capital invested in
the Government plant, but the rate of interest shall not exceed the maximum
prevailing rate being laid by the United States on current issues of bonds
or other evidenees of lbsitednes" Id.
Act of July 18, 182, 5, 27 Stat. 88, 111







to be expended for :acuirement of dredges be expendedfor
their purchase from privae contractors when they can be
jnia~a ctured at lesser cost at any navy yard or other Gov-
einment-owned factory.8 :
On the other hand, certain laws have been so framed as to
aloi smee discretion in the use of funds to undertake speci-
fed types:of work, institutingg project authorizations. These
we hav already mentioned in the foregoing discussion of
"Authoriation of Projects."N
Also important in connection with funds is an 1890 statute
requnhing that the Annual Report of the Chief 4f Engineerb
specify any deterioration occurring in connection with works
of river and harbor improvements, together with an estimate
of the cost of rebuildin, repairing, or removing them, including
also recommendations for "the discontinuance of appropria-
tio for any river and harbor work" deemed "unworthy of
further inpQyemenit."Vy i.
0 PBiD UTION OF POJECTs.-Any project may be prosecuted
"by direst appropiations, by continuing contracts, or by
both." 18 Excepting surveys, estimates, and gaugings, Con-
grms has provided that naviation improvements may be prose-
-eted ,'by contract or otherwise, as may be most -conomical
and. advantageous to the Government." g This auhei o
expressly extends to works authorized to be prosecuted or com-
pleted under contract; and in cases providing for construction
or use of government dredging plant, the Secretary has discre-
tion to contract for the work "if reasonable prices can be
obtained*.'' Where works are done by contract, however,
such contract must be made after "sufficient public advertise-
ment for proposals" and "with the lowest responsible bidders,"
the Secretary having discretion to specify the manner and form
SAct of September 22, 1922, 5, 42 Stat. 1088W 142, 33 U. S. C. 080.
See espra, pp. 100-105.
Act of March 8, 189, i7, 0 Stat. 1121, 1150, 33 S. C. 549.
SAct of September 22, 122, 10, 42 Stat. 108, 1048, 33 U. S. 0. 621.
m Act of August 11,1888, 8, 25 Stat. 400,428, as amended, 88 U. S. C. 622.
*Id.S







of advertisements, securities to accompany bids, and conditions
for faithful prosecution and completion of the work."
Reference has already been mad to& the statutory prohibition
against use of funds to pay for private contract work where the
contract price is more than 25% in excess of the estimated cost
of doing the work by government plant, 18to the prohibition
against expenditure for dredging inside of harbor lines,1 and
to the limitation on the expenditure for purchase of dredges.',
In addition, a 1907 statute gives the Seeretary discretionary
authority tp hire droj l pla4t i* the inner then custom-
ary,'1 or on the basis of an equitable reimbursement for de-
terioration of plant whe in use by the Government and a re-
sonable percentage of te total cost of the work."1
A number of specific requirements have also been prescribed
in connection with the acquisition of land and materials. For
example, in addition to authority to condemn, the Secretary is
expresly empowered'to purchase at ai owner-fixed price which
he deems reasonable, and to accept donations of lands or ma-
terials."w In certain circumstances, imriediate possession of
the property may b: taken'upon initiation' of icoideimnaition
proceedings.8" !
Furthermore, where private property is taken in connection
with navigation inprmvements, and in condemnation proceed-
ings to acquire lands or easements where a part only of a parcel,

1 3, 25 Stat. 423, 88 U. p.. 628.
See sipra, p. 106.
Oee spra, p. 106.
S as Ura1, pp. 106-107 .
SThe manner "customary" at that tiniq may refer to an hourly contract
rate. 'See, e. g., Airnq RPOBT or TE CHriE or ENGoIae s, 0.. A. RY,
'p. 2009 (1907). : '
"*Act of March 1907, 5, 34 Stat. 1073, 1119, 33 U. 8. C. 629.
"Act of April 24,'1888, 25 Stat. 94, 33 U. S. C. 591. In specified cireum-
stances, the Secretary of the Army may initiate condemnation proceedings
in aid of a "person, company, or corporation, municipal or private" desiring
to convey lands to the United States for an authorized project. Act of May
16,1906, 34 Stat. 196, as amended, 33 U. S. C.592. So also in aid of a "State,
or any reclamation, flood control or drainage district, or other public agency
created by any State." Act of August 8, 1917, 9, 40 Stat. 250, 267, 33 U. S. C.

m Act of July 18, 1918, 5,40 Stat. 904, 911, 33 U. S. 0. 594.






o09
totrwti~r t f land is to'be taken, the tribunal awarding ;jst
compensadioh % r useanig dinages 8hall:take into bonsidera
tion-by way of redteigithe amoufhtdf !eapenuatisn br damn
ages 'an sphial hnd' diret benefits to, the remaaider ariing
fromt tt'ufproventw,"'-! i ]1)4 :: us I [oi
i In.a annectionnwith eofstinaction work, m6n tion should 'also
be made of areoebtidevelopment. I' h194,%. "ngresstathoi.
iwed tieChiebefl nginde to provide school. failities-for the
edifatim of depeiSdeats of persons engaged on constrution'df
speifit reall naed rjectsP. He w .as als authorized to, enter
into cooperative arrangements with looal genciea for oieiation
of, seli arilalitiepj ifr eip sion Of local iecilities/atid' for, icn-
tributions to mover imn eaaed tostt to heal agencies for educ;b
tioisqeervices tequired b the Govenment.W: a i.~: "!
Orhi odofITP bj S.LtPer4i4 i4 ag f8t o the boeratioil'bf
nkigiioti projects atrb kok' ned by vaAbus laws enacted by
O, e ... .i.,n, .t .a odw
Ccm'tes !" *' 5 ++ i t" "T
Of p ticulaif ihbortafice i this tespdet is thef Akt of I ecm
ber'22, '1944 't'hakiikg pjtviision for cedtin 'fnlultipler use."*
UtVt r it, thA Sbettisiylhl the duty df pf6ecribMfi ridulktions
f6y thbee of storage allocated to nairigatidn 'ob flood- coitr6l
Salidsfl i6bMee denit ihdttid'WhbMly'br -itj art with 'fed-
eral funds provided, on the basis of'kich''pui oets ',dpertidn
of'ain 'suih pr&obt fin1v abcird tith thoses r6eiiglatiiS* dD

WAet'e.f Jay 1i'1918; 4 8 tat. 904, 911, 38 U.S. c. 595;,r or a dilsd
slon of certain relevant constitutional considerations, see Mspra,;-p.; 2-29. -
*-,Act o- Jouy 24t',948, I P'60 Stat. 0~4, e 3K as amended by Act of MaOlsM,
1980, 64 Stat. 168, -. Congress has recently enacted two statutes genertfIy
coaemain the leonstruction ofat school fadciltles in ftT eraly iatffelbTd arts.
Act 'September 28, 195W, 14 Stat. 986 a, J Act tof September SO 1950;S
84{5tgtota0 jtf t ," 4 *:i:*': ;: '**- *" "*' i.;;r g' "Ii.II>!:' ,f.,/!H ';I,/
,': Id. -Soeale iL fro, 529.; A : A .
58 Stat. 887. .
g 7, 58 Stat. 890, 88 U. S. C. 709. Witfia speified qualiication concern-
l flaodotWb oi'this prtsitonm do6 not Applyto TVA.' I. thba oanietftn,
sed A mLuss Haterw ow i'o OrzIE r Br Etanra, U.S. 8. Ann, pi 16f (190).
Altso in 1939, Congress empowered the Secretary of the Interir to ,make
proper allocations to navigation and flood control of the estimated coat.of
new reclamation nrbjects, directing him to operate the project for the pur-
poses of navigation and flood control to the extent ustlfied by such Alli .
cations. Act of August 4, 1939, 9(b), 53 Stat. 118, 1194, 48 U- S.I 0







Likewise, the Aot requireAthat electricl.powes jLad eeggt
generated at reserviit peojeets undrthe control oi he Depwt,
meat of thi Army adliin the opinornof iM~Setretary pet %R
quired in thirdperrtiohJtrl.e eedattY d tai.hey Seretaiy
of the Interior for transmission and diDstO itiR (qWittcepeet
to such project the Secretary of the Army isautboriaedby the
Act to make oatraf with stat MtXtiipalitiesa8iatearon-
ernem, or individuals ast such prices a&dW oAy eters( s eAtke may
deemi reasonable 5dr domestic and jitiust*isaupeb fort s*ailas e
,mplua sater button oohiacotia-actsa yd arinte~is
ing lawful ihea- oa Iltiet o -. ;.t e;
The 944Aet iaisiorvideioa r irriatonaidreie ria ease,
Whenever the Secreta, of the Arinydetermine upon recdm-
mendation by the. Sewetary of the ~iterier, that any project
operated under i "epi nof the Sereo~Iryof fthe Army nmyEbe
utilized for irri~ ti; purposes, the $epetary of .te Ipterior
is authorized to construct, operate, and maintain, under
4eclamaom Law, u~ iaditi wynP in PCil"e ( AF re-
with- ha.e may deem 4. ce r irrig ton .. rpo. e.
.The Aqt alao;ac es 0t Army Ei ineers tp cqpstruptt,
mai4taiii, and opqat public park nud' rcreatipal failjtie
in reservoir afe.sunder the control of t ]pa mpe~t f,~the
Army, or to permittli same.2" ,
In connection with the operation of ppjPip legis)tiv pr.
vision has been made for consideration of wildlife resources.
Having earlier required that investigationandiD- prwsements
4 B5(t: See alll Aeto: Jume 28 2,:1, 1, ti Stat ei iQ8t a!.8,.1 -0.
217 -, \ '..* > ** ;' : ; !': _! ", : t I; 1: j 1 ii' Gf
5, 8s 8tat. 80iB U. C. C..25s. But Congres later esWpnrsly directed
that sufatples'ners generate at .te new bsyroaectric power plat..Baint
Marys River, Michigan, shall be leased by the Secretary of thaepniAipwpp
such terms and conditions as he shall determine; ActLo .MarZ~ 2 r 9 f 2,
59 Stat. 10, 20. See also infra, pp. 293-800. .
-.r16,i8Staft.888Ua.&. 798*. .. -,,
"* 8, 58 Stat. 891, 48 U. 8; 0. 390. The irrigation works maay be under-
taken only after a prescribed report and findings by the Secretary of the
Interior and subsequent specific authorization by Congress. See iWnra,
pp. 196-197.
m_ 4,58 Stat. 889, as amended by Act of Jgy 24, 1946, I 4, 60 Stat. 641, 642,
. 14 U. 8.:. 4600&. kBeitaaete also pecri obes detailed proviWons for ad
ZnbilstrhatlDBn. Shoewi p 881






include a "due regard for wildlife conservation,"0' Congress
in 1946 required that whenever waters are impounded, di-
verted or otherwise controlled by federal agencies,' "adequate
provision consistent with the primary purposes" must be made
for wildlife resources.*' Similarly, in the management of ex-
isting facilities administered by the Army Engineers in the
upper Mississippi River, including locks, dams, and pools, the
Department of the Army was directed in 1948 to give fall con-
sideration to the needs of fish and other wildlife resources
"without increasing additional liability to the, Government,
and, to the maximum extent possible without causing damage
to levee and draineditricts, adjacent, ralro'ds and high-
ways, farm lands, and dam structures,all generally operate
and maintain pool levels as though navigation was carried on
throughout the year." "
It has already been pointed out that Congress in 1946 made
conditional provision for the design and construction of dams
with a view to their use as supports for public highway
ladies" Subject to the same conditions, the statute con-
templates a like use in the case of dams already constructed.
It should also be noted that the Secretary of the Army has
authority to transfer or convey to states or political subdi-
visions thereof, title to bridges constructed or acquired in con-
ieetion with navigation orflood-eontrol projects."8
With respect to specified projects in the West, Congress in
recent authorizations' has expressly subordinated navigation
use of waters to beneficial consumptive use. Since 1944, all
river aidi harbor and all flood control acts have provided
that the use for navigation, in connection with the operation
and maintenance ofwofks therein authorized for construction,
of waters arising in states lying wholly or partly west of the
ninety-eighth meridian shall be only such use as does notcon-

Act of June 20,1938, 1, 52 Stat. 802,33 U., C,. 540.
*Act of August 14,1946, 3, 60 Stat. 1080,1081, 16 U.'. 668. See also
infra, pp. 329-330.
"Act of March 10, 1934, 48 Stat. 401, as added June 19, 1948, 62 Stat.
497, 16 U. S. C. 665a (Supp III).
SAct of July 29, 1946, 60 Stat. 709, 23 U. S. C. 64. See supra, pp. 94-95.
Act of May 17, 1950, 109, 64 Stat. 168, -.
911611--1--9






flic4-with any benefiial consumptive use, present or future, in
states lying wholky:* partly westol~ the ninety-eighth merid-
ian, of such waters for domestic, municipal, stock-water, irri-
getion, mining, or industrial purposes.2"
A provision of more limited application merits notice here.
Ab to ddbris-stodage reservoirs of the Calif~rnia Debris Com-
mission,"0 the Secretary is authorized to enter into contracts
to supply storage for water and the use of outlet facilities for
domestic and irrigation purposes and power development tipion
such conditions of delivery, use, and payment as he may
approve,2
Protection of Navigable Waters
As we have seen, Congress since 1820 has e-acted numerous
laws designed to insure and provide for improvement of rivers
and harbors in the interests of navigation. Lagging somewhat
behind came sporadic and less extensive legislative efforts to
preserve and protect the navigability of waters from encroach- -
ments by bridges, wharves, dams, and other structures. An
early example is an 1862 statute which specified navigation
clearances in authorizing the construction of bridges over the
Ohio River.tm Designed for more general protection was an
1884 act whereby Congress delegated authority to the Secretary
to require owners to provide bridges with specified aids in the
interests of navigation." Similarly; Congress in 1890 forbade
the deposit of certain refuse matter, and prohibited the creation
of any obstruction, "not affirmatively authorized by law" to
the navigable capacity of any waters, in respect of which the
United Statesi has jurisdiction, at the same time regulating
the construction of bridges and other structures.2' Still more
comprehensive,, as we shall shortly see, are the provisions of
the River and Harbor Act of 1899-Section 9 through 20
being presently effective-which consolidated and supple-
mented requirements pertaining to the protection of navigable
See, e. g., Act of December 22, 1944, l(b), 58 Stat. 887, 889; Act of
March 2, 1945, l(b), 59 Stat. 10, 11.
m See infra, pp. 119-120.
"m Act of March 1,1893, 23, 27 Stat. 507, 510, as amended, 33 U. S. C. 683.
SAct of July 14, 1882, 1, 12 Stat. 589.
K Act of July 5,1884, 8 8,23 Stat. 133, 148.
Act of September 19, 1890, S 86-10, 28 Stat. 428, 453.




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