Assumption of federal responsibility for the control of floods
on a national basis is a relatively recent development. For
many years and because of a variety of reasons, flood control
was deemed a problem largely local in character.
Early legislative evidence of federal interest appeared in
the Swamp Land Acts of 1849 and 1850, granting unsold swamp
and overflowed lands to Louisiana, Arkansas, and other states
containing similar lands.1 These Acts made such lands sub-
ject to disposal of the state legislatures and required that the
proceeds therefrom shall be applied to the prosecution of drain-
age, reclamation, and flood-control projects. In the next two
decades, federal investigations, surveys, and reports reflected
a continuing interest confined largely to flood problems in the
Mississippi Valley.2 In 1874, Congress provided for the ap-
pointment of a commission of engineers to investigate and
report a permanent plan for reclamation of that portion of the
alluvial basin of the Mississippi River subject to inundation."
The resulting report discussed various methods of flood control
including cutoffs, diversion of tributaries, reservoirs, outlets,
Act of March 2, 1849, 9 Stat. 852; Act of September 28, 1850, 9 Stat.
519; under these statutes, the patented areas by acres were: Arkansas,
7,68e,455; Louisiana, 9,405,929; Missidsippi, 3,288,418; Missouri, 3,346,986.
H; Rep. No. 1072,70th Cong., 1st ses., pp. 114-115 (1928).
*Congress made appropriations totaling 1i00,000 for surveys ani in-
vestigations of the Mississippi Delta to determine "the most practicable
plan for securing It from inundation. Act of September 80, 1850, l 1, 9
Stat. 528, 539; Act of August 81, 1852, 1, 10 istat 105,-,107; and see Sen.
Exee. Doe. No. 20, 82d Cong., 1st sess. (1851); R PO tf'iO THE PHrsics
AIw HYDBATUC8 OF THE MIsBIBBIPPI RIVER, S POFEwSIONAL PAPE No. 18,
Corps of Engineers, U. S. Army (1881); Sen. Bxec. Doe. No. 8, 40th Cong.,
1st sess. (1866).:
SAct of June 22, 1874, 18 Stat. 199.
and levees.4 Speaking of the inefficacy of local efforts in con-
nection with levee construction,,this 1875 report said: '
In fine, then, the experience of one hundred iand ifl
years has utterly failed to create judicious laws or effec-
tive organization in the several States themselves, and
no systematic co-operation has ever been attempted be-
tween them. Thb latter is no less important than' the
former,. for the river 'ha: to: respect fir State
The foregoing sequence of events ldt t the establishment
of the Mississippi kiver Commission' in 1879, with Congress
delegating to it the duty of considering such plans as would
improve navigation of- the Mississipi, "prevent destructive
floods," and promote and facilitate commerce, trade, and the
postal service." But until 1890 Congress restricted appropria-
tions'for the Commission to improvement of navigation, ex-
pressly prohibiting the use of funds on levees for reclaiming
lands or preventing.;i jury to lands: by overflow.' Between
1890 and 1917, however, appropriation statutes permitted Com-
mission expenditures not only for? navigation improvement,
but also to serve broader interests of commerce.8 Otherwise,
federal interest in flood control during this period prior to 1917
H. Exec. Doc. No. 127, 48d Cong., 2d sess. (1875).
I"S. p. 19. "
A-ct of June 28, 1879, 4, 21 Stat. 87, 88i as amended; 883U. S.C. 04C7.
As to later extension of geographic limits of the Commission's Jurisdiction,
see supra, p. 98.
'Act of March 3, 1881,. 1, 21 Stat. 4& 474; Act of August 2, 1882, 1,
22 Stat. 191, 208; Act of January 19,i1884, ~Stat. 1; Act of July 5, 1884,
11, 283 Stat. 133, 146; Act of August 5, 1886, 11, 24 Stat. 310, 828-829; Ae4
of August 11,.1888, 1, 25 Stat. 400, 421. ,Ifopngress had doubts as to its
power to make appropriations for flood control, they were not shared by
President Arthur, who, in recommending favorable consideration by Congress
of an 1882 CoumniOn report on flood control, said: "The constitutionality
of a law making approprations in aid of these purposes cannot be questioned."
8 Richardson, MESSAGES AND PAPERS OF THE PREsIDENTs, 95 (1896).
For a listing of the relevant statutes, see Laurent, A CMPILATION or
THE MORE IMPORTANT CONGRESSIONAL Aers, TREATIES, PBsIDEsNTIAL MES-
sAGES, JUDICIAL DECISIONS, AND OrFICIAL, RZORTS AND DOCUMENTS HAVING
To Do WITH THE CONTROL, CONSEVATION, AND UTIIZA IO OF WAT~r )tE-
soqacES, TVA Legal Department, pp. 68-89 (1938).
was largely limited to incidental treatment of the subject in
reports,' and major responsibilities remained with-local interests
and agencies.'" i : 4
Major floods stimulated incrensingnational interest in their
control. After foods in 1915 and 1916, Congress authorized
appropriations totaling over $5l0000,000 for control of floods
on the Mississippi and Sacramento Rivers.u And the 123&
Flood. Control Aet authorized an additional $60,000,000 for
flood-control work on the lower Mississippi." While enlarging
the scope of fedal Fesponsibiliyt both statutes recognized
local obligations through provision for ,local contributions.
Moreover, te' "ontrp of foods" was one of the express .pur-
poses for which Congres soughft"iformatio when it laid the
basis for the "308 Reports" in 1925."
Major flod in 1927 brought added impetus." As result,
SSee, &. F., RmaomW o INTERNAL COMMERCE OF THE U~ISFD LSATES, H. EkBe.
Doi. No.. PWrt 2, 0th Qong., 1st eess., pp. 24-250, B72-577 (1887); iLoon
oN Tpa MlzamBBiEaI RIVB U. S. Weather, urean (1888); PRInMviABY
ABXPoT'or TEm IILAND WATBWAyS boimmIasSON, Sen. Doe. No. 25, 60th Cong.,
I1fftbeh.O pp. '22-25 (1908): Duuttfit Aitr ;BSitt I THE m SOTrHMUr
APeAIACHa RaIo AstffDiH Moione.Iar.A BABp, U. ~g. Geological S'r-
vEy,, rofesElonal Paper, OF Ti1p 25-88 ~ REa or mTH N oATIOAL CoIq-
SErVATIO COMMIssION, Sep. Doe. No. 67O, dbth ong., 2d sees., voL 1, p. 24
(1900); PaCLmKIrATY REPOnTr O t" UNTIED'STATKE InATIONAL WVAIrWATS
ComatsxOn, eobwttxr I rO Pwtai.aamwEns w NATuWA Wwaayw1ARe Coi*-
m iean Sen.Doo. No. 469, 24 Cong., 2d sess, pp. 82-84 (P912); uAL. RW-
roar to NATIowNA WATElWAYS Co MsenoN, Sen. Doe No. 469, 62d Oong., 2d
sess., p..27 (1912); PaBEVmTIo or DAMAGE Bn FLOODB, H. Doc. No. 914, 6d
Cong., 2d Bais 11914); Pioow Phol1ir ON Am PavtiaNieolII, H. DoeN.. 1792,
4ltC Opuw,' seB8..(118). :2 n .:
See Baroa on IlTBRNAL COmm mo or THE UNITED STATE, H Exec. Do.
No. 6, 50th Cong., 1st ses., Part 2, pp. 284482 (1888); r.rankUr4 Da6atar-
MrT or THE FmpBzt PeRBAtP 'O fo PLoo ColmOa OrBaWN m MiaamT BI RvB,
pp. 11-44 (1980).
n Act of March 1, 1917, 89 Stat. 948.
"Act of March 4,928, 42 Stat. 105.
; Act tof March 8, 1925 8, 348 Stat.186, 1190. See sutr., pp. 92-93.
SSeel realdent Ooolidge's Annu- Message discussing the 1927 flood on
the :Missirppi and recommending adoption of a plan tl parent a recur
rence, and his submittal of a letter from the Secretary of the Arm~ y recom-
mending the Army Engineers' plan for flood control of the Mislaesippi River
in as alluvial valley,ni CODa. RE. 7126; see also IPLOr:( oINOL Ir TH
MI asIreas VAl arB, &BpH.I No. 1072, 70th Cong, It ,ess. (1928); Fly,
The Rle: ofte ederaQlGovenM mest in the Conmetwedas .d 4U7tieU-
tion of Water Resouroes, 86 U. of PA. LE. Ray. 274, 288, a. 68 (1988).
Congress in 1928 enacted flood-control legislation which fur-
ther broadened federal responsibility.1 It adopted a project
for control of floods of the Mississippi River in its alluvial
valley in accordance with a plan of the Army Engineers," and
authorized appropriations of $325,000,000 in addition to the
unexpended balance of appropriations under the 1917 and 1923
legislation."' Significantly, this legislation reaffirmed the prin-
ciple of local contribution, but provided that it would not be
required here because of large expenditures ini the past by local
interests." It should aso be notedthat, while the 1928 Act
made immediate provision only for the extension of the levee
system and diversion floodways, it lso directed the completion
of studies for supplementing the levees by a system of tributary
Prior flood pitiection had depended principally on confine-
ment of water to riversby means of levees, with resulting diffi-
culties from increase in blood heights, and studies showed that
reservoirs were necessary to reduce flood heights." Before
1936, Congress gave express recognition to thisuse of reservoirs
in legislation relating to specific multiple-purpose projects.*
From the interstate nature of thelproblem of controlling floods,
it became increasingly apparent that federal action ws de-
sirable to assure protection whicheoften required an integrated
system of reservifi atid levees, aksilly affecting more states
Following major floods in 1935 and 1936, Congress for the
first time authorized numerous flood-control projects through-
Ac of May 15,1928 45 Stat. 584.
Set forth in H. Doe. No. 90, 70th Coiig. lt sees. (1927).
1 1, 45 Stat. 584, 88 U. C. 702a.
S2, 45 Stat. 55, 88 U. S. 0. 702b.
10,45 Stat. 588,83 U. 8. C. 702J.
"Hasen, FLOoD rtowS: A STmr or PanqbEwNCIE AND MAGNIrUDES, p. 172
(1980); Con 0 asIeN RSIW EW ON IS-RmvoUB IN MIssIsSn'PI RIVBr BASIN,
& Doe. No. 259, 74th Cong., 1st sess. (198); ,Omo RIvus; E Doe. No. 806,
74th Cong., 1st Sess. (1983); :RPoWT o TzHE Cmar o' jlcawIGm Cono. Doc.
No. 1, 75th Cong., 1st esa, (1987).
SAct of December 21, 1928, I 1, 45 Stat. 1057, 43 U. S. C. 617 (Boulder
Canyon); Act of May 18,1938, 48 Stat. 58, as amended, 16 U. S. 0. 881 et
seq. (Tennessee Valley); Act of August 80, 1965, S 2, 49 Stat. 1028, 1069
(Parker and Grand Coulee).
out the Nation when it enacted the 1936 Flood Control Act
containing this declaration of policy: "
It is hereby recognized that destructive floods upon
the rivers of the United States, upsetting orderly proc-
esses and causing loss of life ad A property, including the
erosion of lands, and impairing and obstructing naviga-
tion, highways, railroads, and other channels of com-
merce between the States, constitute a mienacE to na-
tional welfare; that it is the sense of Congres that flood
control on navigable ers or their tributaries is a
proper activity of the eeral Government in coopera-
tion with States, their political subdivisions, and locali-
ties thereof; that investigations and improvements of
rivers and other waterwl ys,. including watersheds
Thereof, for flood-control purposes are in the interest of,
the general welfare; j i; the Federal Government
should improve or participate in the improvement of
navigable waters or their tributaries, including water-
sheds thereof, for flood-eontrol purposes if the benefits
to whomsoever they may accrue are in excess of the
estimated costs, and if the live and social security of
people are otherwise adversely affected.
In 1944, Congress. provided that the words "flood control", as
used in this 1936 declaration, shall be construed to include
"channel and major drainage improvements."
During this same period, as we have already noted, the
Supreme Court removed any possible doubts as to power of
Congress under the Commerce Clause to legislate ini the inter-
est of flood control." In the 19 New River opinion, "flood
Act of June 22,19?6, 1, 49 Stat. 10O, 33 U. S. Q. 701a. See also Act of
June 15, 198, 49 Stat 1508, modifying the 1928 project for the Mississippi
River. For statistics on loss of life and property in the United States from
goods 1924-1940,- ee T.m RIVER AND FLOOD F~oECAsTING SEBVIco moS T
W rATHER BU mA, Department of Oommeree, p. 8, tab. 2 (September 1941).
"Act of Peonaber 22, 1944, g 2, 58Ztat. 887, 889, 38 U. S. 701la- -
s See s.vre,, p 18-19. ee also Joeckp v. United States, 230 U. 8.1
(1918); Bfwhea v. United tSttes, 280 U. -. 24 (918) ; Cubbins vvIJ iseippi
River Commission, 241 U. S. 351 (1916); Hoiociv.- U*ited Sttes, 201 Fed.
M82 (C. A. 8, 1912); ape W(rardeau 4 T. B. T.R. Co. v. Jordan, 201 Fed.
86 (C. A. 8,1912).
pretetion'" was expressly identified As ~aertir fs6ebmmerce
control." And in the 1941 Denisoa Danm case, the : court
pointed out that the is ,o cons ~on reason why Con-
gres cannot, under ile commerce power, "treat the water-
shaeds as a:key to flod control on navigable streams and their
tributaries." Here, the Court again specifically said that
commerce authority extends to ihe tributaries of navigable
streams, as it had previously pointed opt in 1899 and 1931.
'In themain, provisions of exiting flood-control law are
found in the statutes enacted in 1917, 1928, and 1936, dis-
cused above, supplemented anfi modified from time to time.
In the 1917 legislation, Congres deilared 'that all provisions of
"existing" law relating to examinations and surveys and to
works of improvement t of rivers and harbors "shall apply, so
far as applicable" to examinations' aid surveys and to works
of improvement relating to' flood control.# Expenditures of
funds for flood-control projects are alsaiequired under the 1917
law to be made in accordance with theolaw governing expendi-
tures of funds for navigation impiovementa. : -
Hence, to avoid needlss repetitioh here, -the. following dis-
cussion will be restricted to laws enacted since the 1917 statute.
A complete-picturo a flood-control legislation, therefore, will
require the reader to supplement the following sunmnaries by a
reexamination of that part of the preceding chapter dealing
with "Improvements of Navigable Waters," so. far as it con-
cerns provisions dealing with expenditures of funds (P 0
107) and so far as it ot wie conieris "appicable" pre1917
laws(pp. 87-112). :. -'
We shallsee tfiad ood-cnol legislation since 1917 bears
a general similarity to legislation for navigation improvenents.
Consequently, flood-control and navigation projects are much
alike today with'respect to provisions of laW affecting prepa-
ration, authorization,' funds, and operation.
IWUtted Btales v. ApplOOhian1 Blefeito Poer 0o., 11 U. 8. 877, 426
OkbahtiiA v. AtlisafiB 508 525 (16i ) : see supra, tp. 1S9.
united d Btales v. Rto rJawe ITrigatio& CO., 174 U. 8. 090, 708, 70O,708
(1899) ; United States v. Utah, 283 U. S. 64, 90 (1931) ; see supra, pp. 18-17.
"Act of March 1, 1917, g S, 89 Stat. 94b 0, 83 bU. 0. 701. Nowhere
does this statute explain which~ provisions o~ igtig" awire "app~ ale;
' I" .'^ *' ,' S.? :." *-. --*
Despite the relatively eort history of federal responsibility
for control of floods on a national basis, the total federal expend-
itures by the Ar~ik Engibers for flood control between July
1, 1986; and iJune-30, 194'9, '`eieded $1,781,00,000, over one-
half of the amount spent in over a century on federal'haviga-
tion improvements.-, During the:fiscal year ending Junei30,
1949, a total of over $4,00,000000 was expended for flood con-
trol, Wan amount more than double the:corresponding figure
for river and harbor improvements.' These amounts are in
addition to federal expenditures for flood con trol by the Depart-
ment of Agriculture, and allocations to flood-control purposes
at Bureau of Reclamation projects."
In the 1936 statute, Congress declared that federal investi-
gations and improvements of rivers and other waterways for
flood control and allied purposes shall be under the jurisdic-
tion of and prosecuted by the Department of the Army under
the direction of its Secretaryand the supervision of the Chief
of Engineers." By these same provisions, jurisdiction is given
to the Department of Agriculture withrespect to investigations
of watersheds and measures for run-off and water-flow retarda-
tion and soil-erosion prevention, except as to reclamation proj-
eqts under the Interior Department."
ANN NoAL PRo a*U TAe Cm -orW EitaenBE U. S. AsYy, p. 15 (1986);
id., p. 23 (1949) : see supr, p. 90.
"ANNUAL RrWu (W TX C=HIE. or ~F nQi EB, U. 8. ABY, p. 20 (1949);
s ue eupra, p. 90.
"She 6nfrf, pp. ,A .
A'Aet of aJne 22, 196, g 2, 49 Stat. 1570, as amended, 88 U. S. 0. 7TOb;
to the same effect, see Act of December 22, 1944, 1 2, 58 Stat. 887, 889, 83
Hereafter in this Chaiter, the designation, "the Secretary," will refer
to the Secretary of the Army.
"This aspect of law we shall reserve for discussion in Chapter 8 on
Related Land Uses, infra, pp. 374-4i.: it should also be noted that, in
connection with projects authorized by the 1986' Act, Congress granted
blanket consent'to statest! enter~into co4cpacts Whereby they would pro-
vide specified project' fiit s., 1romn i further requiremeiit that no ouch
compact shall became effective without its approval, Congress excepted
only those providing for expenditure of funds arid erfoimance, of 'work
Preparing for Projects
Ij aditon to the "applicable" pre-1917 laws, Cngre hap
ect~4ed other l gialat9on directly affecting preparations for
EXAMINATIONS AND SURVE s.-Examinations and surveys
are generally authorized for specific localities in omnibus "Flood
Control Acts." Amituber flaws governthe making of such
examinations and surveys. Repeating a requirement already
made applicable," Congress in 1939 provided that no prelimi-
nary examination, survey, project, or estimate for new! works
shall be made except where authorized by law, and further
that, after the regular or formal report thereon is submitted,
no supplemental or additional reprtlor estimate shall be made
unless authorized by,law." However, in the 1941 and subse-
quent flood-control statutes, Congress provided that the Scre-
tary may cause a review of any examination aid .suivey to be
made and a re'pt lth64ron submitted to C6ngress, if in his
opinion such review "is required by the national defense
or by changed physical or economic conditions." 9
Also, as already stated, legislation providing for the "308
Reports" authorizes "such additional study or investigation as
the Chief of Engineers finds necessary to take into account im-
portant changes: i economic factors 'as they doccr, and 'ddi-
tional stream-flow records, or other factual data." M" feover,
it: should be noted that construction and, m tainteance funds
are available for making examinations and surveys, or in pre-
paring reports in review thereof as authorized 'by lw.'*
Congress has also enacted additional specifications of data
to be obtained and set forth in reports. o Thus, all examinations
by the Department of the Army. Act of June 22, 1986, 4, 49 Stat. 1570,
1571, 33 U. S. C. r70Q1 No record has'been found o approval by Congress
of a compact under this provision.
SSee a8pra, pp. 132-133. ,
"See, e.g., Act of May 17,1950,64 tat 168.
See supra, pp. 182-133.
Act of August 11, 199, 6, 53 Stat. 1414, 1415, S3 U. 8. C. 701b-4.
"See, e. g., Act of August 18,1941, 4,55 Stat. 688,648.
SAct of August 30, 195, 16, 49 Stat. 1028, 1048; see supra, pp. 92-98.
Act of August li, 1939, 2, 58 Stat 1414, 3 U., S. C. 701b-8.
and surveys must include "a comprehensive study" of the
watershed, and each report thereon must include data relating
to the extent and character of the area to be affected by the
project, the probable effect upon any navigable water, tbe pos-
sible economical development and utilization of power, and
other properly related uses. In the preparation of flood-con-
trol reservoir projects, as in the case of like navigation improve-
ments, reports must include specified information concerning
possible damage to wildlife resources," and also relevant is the
possible use of dams as supports for highway bridges."
COOPERATION WITH OTHER AmNxCIES.-In connection with
navigation improvements, we pointed out that the Army Engi-
neers are required by statute in certain eases to cooperate with
states and with the Secretary of the Interior," and also with
the Fish and Wildlife Service." The statutory situation is the
same in each case as to flood-control projects. So also as to
participation in the voluntary operationsof the Federal Inter-
Agency River Basin Committee."
RIvu AiN HIIARB BOAIO.-The duties and functions of the
Board of Engineers for Rivers and Harbors respecting navi-
gation improvements :pply also as to flood-control projects."
In addition, Congress in 1917 expressly directed that the Board
give its opinion in the case of flood-control projects as to what
federal interest, if any, is involved; what share of the expense,
if any, should be borne by the United States; and the advis-
ability of adopting the project.0
Act of March 1, 1917, I 3, 89 Stat. 948, 950, 83 U. 8. 0. 701. This statute
also makes provision for assistance to the Army Engineers by representatives
of other departments in order to avoid duplication and to coordinate tt
various government services.
See supra, p. 97.
4 See upra, pp. 94-95.
See sura, pp. 96-97, The details of the congressional policy were first
specified in the Act of December 22,1944, 1 1, 58 Stat. 887, and also were made
applicable in subsequent flood control acts.
SSee spra, p. 97.
See supra, p. 97.
See supra pp. 9-100. -
SAct of March 1, 1917, 1 3, 39 Stat. 948, 950, 88 U. 8. .701.
iOn request of, the Committee ~n Public Works of either .the
Senate or the House, the Boardis required by statute to exam-
ine and review the report on any examination or survey made
pursuant to law, and report thereon as in other casess0
Authorization of Projects
In authorizing examinations andsur eys, Congress has regi-
larly provided that the Govenment shall not be demit to have
"entered upon" any project until it shall have been adopted by
law." Congressional practice has been to authorize the prose-
cution of projects in omnibus "Flood Control Acts," as in the
case of examinatiodis and surveys.52
GEN-mAL LIMITAt Ios.-Congress&has directed that no proj-
ect or estimate for new work shall be made except where
authorized by law, and that after a *written or formal report
thereon, no supplemental or additional report or estimate shall
be made unless authorized by law."
CONTINUING AUTHORIZATIONS'.--The apparent restrictive ef-
fect of those limitations is qualified, however, by a number of
laws in the nature of continuing authorizations for specified
types of work. Each of them deviates from the general legis-
lative practice of approving work on a project-by-project basis.
Also, a number of them allow varying degrees of discretion in
the use of funds, as we shall see.
Small Projects.-Thuts, Congress in 1948 empowered the
Secretary to allot from appropriated funds up to $2,000,000 in
any one fiscal year for the construction of undefined "small
flood-control projects" not specifically authorized by Congress,
and not within the areas intended to be protected by authorized
projects." It was also required that such "small" projects
SId. See also supra, p. 100.
SAct of June 22,1986, g 6,49 Stat. 1570, 1592.
"See, e.g., Act of Jne80,: 1948, 201,02 Stat. 1171,1175.
This requirement was expressly stipllated in the Flood Control Acts
of 1936, 1938, and 1939, but omitted ftom snlisequent Flood Control Acts.
See, e. g., Act of June 22, 1936, 6, 49 Stat. 1570, 1592. See also references
to the "applicable" pre-1917 provisions discussed supra, p. 182.
"Act of June 30, 1948, 205, 62 Stat. 1171, 1182, 33 U. &. 701s (Supp.
come within the 1936 congressional declaration of policy; "
that not more than $00,000 from appropriations for any one
fiscal year be allotted at a single locality; that the local-co-
operation requirements of the amended 1986 Act apply;" and
that the work be complete in itself and not commit the United
States to:additional improvement except as may result from
the normal procedure appJing to projects authorized after
submission of preliminary examination and survey reports."
In 1950, the foregoing amounts were increased to $3,000,000
and $150,000, respectively."
Rescue- Work, Repair, Maintenance, and Modification.--
Wide discretion is permitted in the use of funds and a sub-
stantial project authorization is given by legislative provisions
for rescue and related work. In. 1941, Congress authorized
the Secretary to allot, from flood-control appropriations, up
to $1,000,000 Ja any one fiscalyear for undened "rescue
work," or the repair or maintenance of flood-control .wrk
threatened or destroyed by flood." This amount was in-
creased to $2,000,000 by the Flood Control Act of 1946." In
1948, the authorization was extended to include the strength-
ening, raising, extending, oir er modification of any flobd-
~toitr6tiork dd~ned n1 eds y by the Chief of Engineers for
the adequate functioning of the work for'flood control." In
1950, Congress made provision for an emergency fund of $15,-
000,000 for such activities, authorizing an appropriation for
initial establishment of the fund and its replenishment on an
Id. See supra, p. 131.
Id. See infra, pp. 144-145.
SId. See supra, pp. 134-15.
Aettof May 1716, MiO 12,-4 Stat .163,-.
"Act of August 18, 1941, 5, 55 Stat. 38, 650.
"Act of July 24, 1946, 12, 60 Stat. 641, 652, as amended, 33 U. S. 70in
Act Jof ie'1948 206, 62 Stat. 1171, 11823, 38 U. 0. lOin (Snpp.
*Act of May 17 1950, 210, 64 Stat 183, -- An earlier statute con-
tains an authorization for a sum of $25,000,000 to be appropriated as a
somewhat similar emergency fund, subject to conditions (1) that local
interests provide without cost to the United State all necessary lands,
easeiients, and rights-of-way and operate the works in a manner satisfactory
to the Chief of Engineers, (2) that, pending appropriation of such sum,
Bank Protection: Highways, Bridge Approaches, and Public
Works.-For the construction of emergency bank-protection
works to prevent flood damage to highways, bridge approaches,
and public works, the Secretary is authorized under 1946 legis-
lation to allot, from lood-control appropriations, not to exceed
$1,000,000 per year but not more than $50,000 at any single
locality, when the Chief of Engineers deems such work ad-
Highways, Railways, and Utilities.--A similar general au-
thorization under the same 1946 legislation empowers the Chief
of Engineers to use funds for the "repair, relocation, restora-
tion, or protection" of a highway, railway, or utility when it
has been or is being damaged or destroyed by reason of the
operation of any dam or reservoir project under the Army's
control." For this purpose, he may utilize any funds available
for the construction, maintenance, or operation of the project
:Removal of Obstructions and Clearing Channels.--Still an-
other continuing project authorization involving discretion in
the use of funds is the authority of the Secretary to allot not
to exceed $1,000,000 from apoprprations for any one fiscal year
for flood control, for; removing snags and other debris, and
clearing and straightening the channels in navigable streams
and their tributaries, when the Chief of Engineers deems such
work advisable in the interests of flood control; not more than
$50,000 may be expended for a single tributary from appro-
priations for any one fiscal year."
Evacuation of Flooded Areas.-Discretion in the use of funds
and continuing authority for project modification are both in-
the Secretary may allot from existing floo-control appropriations sums
necessary for immediate prosecution of the emergency work thus author-
ized, such appropriations to be reimbursed, from the emergency fund when
appropriated, and (8) that funds to be allotted shall not be diverted from
unobligated funds from the appropriation, "Flood Control-General." See
Act of June 80, 1948, I 268, 62 Stat, 1171, 1182, 583 S. C. 701t (supp. III).
SAct of July 24, 1946, 14, 60 Stat. 641, 658, 33 U. S. 0. 701r.
9, 60 Stat. 643, 33 U. S. C. 701q.
SId. As to exclusions from this protection, see espra, n. 160, p. 103.
'"Act of August 28, 1937, 1 2, 50 Stat. 876, 877, as amended, 38 U. S. 0. 701g.
evolved in a 1938 statute empowering the Chief of Engineers
to modify project plans so as to evacuate areas rather than,
protect them by levees or flood walls.". He may expend "a sum,
not substantially exceeding the amount saved in construction
cost, for evacuation of the.area and rehabilitation of the per-
sons so evacuated, or he may transfer such sum to another
federal agency for that purpose, or enter into agreement with
states, local agencies, or individuals for evacuation, rehabilita-
tion, and reimbursement."
Insufficient Authorization.-Considerable latitude both as
to utilization of funds and as to project modification is afforded
where the total authorization for a project is not sufficient for
its completion. The Chief of Engineers may plan and make
expenditures on preparations for the project, such as the pur-
chase of lands, easements, and rights-of-way; readjustment of
roads, railroads, and other utilities; removal of towns, ceme-
teries, and dwellings from reservoir sites; and the construction
of foundations." Also, he may modify plans so that the danu
or other work will be smaller than originally planned "with a
view to completing a useful improvement within an authoriza-
tion." o. The smaller structure must be so located that it will
be feasible later to enlarge the work to permit full utilization
of the site for "all purposes of conservation such as flood con-
trol, navigation, reclamation, the development of hydroelectric
power, and the abatement ofpollution." "
Water Supply.-In connection with an authorization for the
Secretary to receive funds from states to be expended with
federal funds for authorized flood-control work, Congress pro-
vided generally that plans for any reservoir project 'y be
modified to provide additional storage capacity for domestic
water supply or 0ther conservation storage, if the cost of such
increased capacity is contributed by local agencies and they,
SAct of June 28, 193 8, (52 Stat. 1215, 1216, 83 U. S; 701L, >i
Old -* ::! I I .- i -
SAct of August 8, 1941, 2, 55 tat. 688,8 U C.. 701mm.
"Id.ee ao e. No. 9, 7th ong., t se., p.6 (94).
Id. See also H. Rep. No. 750, 77th Cong., 1st sess., p. 6 (1941).
agree.to utilize the same in a manner consistent with federal
uses and purposes.7
~&hool Facilities.-While not a continuing general authori-
zation, it should bd rioted that CAgre sse has' recently em-
powered the Chief oftEngineers to provide school facilities for
the education of dependents of persons engaged on the con-
struction of a number of specified flood-control projects, and
to pay for the same from funds available for such projects.?
Likewise, "when it is determined to be in the public interest,"
he is authorized to enter into cooperative arrangements with
local agencies for the operation oo such facilities, f their
expansion at federal expense, and for federal contributions to
cover the increased cost to local agencies of providing the educa-
tional services required by the Government.*
Railroad Bridges Altered at Federal Expense.-The Chief'of
Engineers is vested with exceptionally wide and containing
discretion in connection with railroad-bridge alterations in-
cluded in authorized flood-protection projects. For Congress
in 1946 "authorized" but did not "direct" him to include at
federal expense the necessary alterations of railroad bridges
and approaches in connection therewith.i Thus, federal funds
may be used for items'otherwise considered as local respon-
"Act of June 22, 1986, : 5; 49, Stat. 1;70, 1572 as added by Aet of July
19,187, 1, 50 Stat. f15, 518, 38 U. S. C. 101h.
"Act of July 24, 1946, 1 8, 60 Stat. 841, 42, as amended Jaune 25, 1948,
J 1, 82 Stat. 1019, 1022. Congress recently enacted two statutes generally
concerning the construction of school facilltlie at federally affected areas.
Act of September 23, 1950, 64 Stat 967, and Act of September 30, 1950, 64
Stat 11o .
!'ld. See also inmtw g29. 9. ji
SAct of July 24. 1948, 3, 60 Stat. 641,642. In reporting thtegision,
the House Committee asserted that it is nsnally beyond the ability of levee
district~ and lo~al n1tnties to bea8rttiel'ot of railroad-bridge changes
made necessary by the prosecution of levee, flood-wall and channel rectt:-
fication projects; and that since the benefits from maintaining the railroad
transportation network accrue to the country as a whole, it was deemed
fair to include the expense of such authorization as a federal cost. H. Rep.
No. 2165, 79th Cong., 2d ses., p. 6 (1946).
ABridges, FuturePower, and Fihwaye.-Also, we should men-
tion three additional continuing authorizationesof activities,
but which are not accompanied by authorizations for appro-
priations 'f funds; One example has already been noted---the
general authority to construct bridges on damsi!ls -ikewise, in
acts authorizing flood-control projects since 1938, Congress
has dilcted that penstocks and other similar facilities adapted
to possible use in the development of power be installed."
Similarly, an 1888 statute gives the Secretary general discre-
tionary authority to construct fishways whenever improve-
ments arefound to obstruct the passage of fish."
MiSSIssIPPI RIVm--Inn addition to the foregoing statutes
constituting continuing authorizations for various types of
work, several other aspects of legislation concerning project
authorization should be noted. The first concerns the Miss-
sippi River. Reference has been made to the fact that the
development of federal responsibility for flood control on a
national basis was largely ai outgrowth of federal interest in
the c trol of Mississippi floods. Historic importance thus
attaches to the role played by the Mississippi River Commis-
sionv in the lower Mississippi' Legislation specifying the
nature and scope of federal interest and responsibility is
lengthy, complicated, and varied." Thus, many extensive and
involved provisions apply here which are unlike those obtain-
ing generally, such as those concerning bridges," local contribu-
tion,". flowage rights," discretion as to modifications,' and
See supra, pp. 94-95.
Act of June 28, 1938, 4, 52 Stat. 1215, 1216, 88 U. S. C. 70U1. Repeated
in all subsequent Flood Control Acts.
"Act of August 11, 1888, 11, 25 Stat. 400, 425, 38 U. S. C. 608.
See supra, pp. 127-130.
For a discussion of the previous and existing projects, together with
recommended modifications, see ANNuAL REPORT OF THE CWE or EN]GIoIq ,
U. S. AnsY, pp. 2673-2679 (1949).
See 33 U. S. C. 702 et seq; of. authorization of flood-coritroi work by the
California Debris Commission, Act of March 1, 1917, 1 2, 39 Stat. 948, 949, 8
U. SA O. 703.
SAct of June 15, 19 6, 7, 49 Stat. 1508, 1510, 38 U. S. C. 702a-7.
Act of May 15, 1928, 5 2 45 Stat. 534, 53, 33 U. S. C. 702b.
"Act of May 15, 1928, 4, 45 Stat. 534, 536, as amended, 338 U. S. 0. 702d.
See, e. g., Act of June 15, 1986, S 4, 49 Stat. 1508, 1509, as amended, 88
U. S. C. 702J-1.
numerous others. But it should not be assumed that this work
on the lower Mississippi is an isolated and independent project,
for on the contrary Congress has sought to integrate it with
flood-control measures initiated elsewhere on the Mississippi
and its tributaries."
FLOOD CONTROL AT RECLAMATION PROJECTs.-Under the 1939
Reclamation Project Act, a portion of the total estimated con-
struction cost of a Reclamation project may be allocated by the
Secretary of the Interior to flood control on a nonreimbursable
basis.8 That Act permits automatic authorization of a Recla-
mation project upon the fulfillment of prescribed conditions,
including the amendment in the 1944 Flood Control Act.8
A SPECIAL CASE.-An unusual example of project authoriza-
tion deserves notice. Concerning the then existing Alamogordo
Dam and Reservoir, Congress in 1939 authorized and declared
it to be "for the purposes of controlling floods" and other
specified objects, dirpeting that the amount properly allocable
to flood control be determined and transferred from the general
fund of the Treasury to the Reclamation Fund, for reduction
of the maximum repayment obligation of The Carlsbad Irriga-
RESTRICTIONS ON LWEISLATIE CONSIDERATION.-Apart from
specifications applicable to the Army Engineers in connection
with project authorizations, described above, Congress in 1946
announced a restriction upon its own actions, declaring that it
would authorize no project "or any modification not author-
ized" unless a report for such project or modification has been
previously submitted by the Chief of Engineers in conformity
See, e. g., Co usBr~NsIVE FLtoo CONTLt PLAN FOB OHIO AND LOWsB MIS-
sassan RIVEBa, Flood Control Com. Doc. No. 1, 75th Cong., 1st sess. (1937),
as partially authorized in the Act of June 28, 1938, 4, 52 Stat. 1215,'216.
"Act of August 4, 1939, 9(a), 58 Stat. 1187, 1193, 43 U. S. C. 485h(a).
SAct of December 22, 1944, 1(c) ; 58 Stat. 887, 889.
"Act of August 11; 1939, 1 7, 53 Stat. 1414, 1417, 33 U. S. C. 707.
See supra, n. 173, p. 105. This same pronouncement is repeated in subse-
quent Plood Control Acts.