Senator OVERTON. Why did the State of Vermont want to control flood-control dams through State agencies rather than through the Chief of Engineers?

Colonel GOETHALS. I think it was set up that way, Mr. Chairman, because at the time the arrangements were made it was very early in the history of the flood-control policy, and it has simply been left that way, and has not been changed.

Senator OVERTON. What year was it?

Colonel GOETHALS. It was 1933 when this plan originally was worked out.

Senator CORDON. Is there any objection on the part of the State of Vermont to maintaining the status quo?

Colonel GOETHALS. No, sir; they have been doing it.

Senator CORDON. And this leaves the status quo just where it has been?

Colonel GOETHALS. This leaves it where they have it now, and as I understand the situation, where they want it.

Senator OVERTON. And the additional area required will cost only $17,000?

Colonel GOETHALS. Yes, sir; that would be the local contribution. Senator OVERTON. That is all of the Winsooki River project, is it? Colonel GOETHALS. Yes, sir.

Senator OVERTON. Any questions by members of the subcommittee? Senator BURTON. I have none.

Senator CORDON. I believe not.

Senator OVERTON. What about the cost-to-benefit ratio?

Colonel GOETHALS. That has not been worked out here because these are merely extensions, or necessary improvements that have not been evaluated in the customary fashion because the original justifications, when the dams were first designed, showed their necessity, and this merely continues that.

Senator OVERTON. All right, Colonel Goethals, you may proceed to the next subject, which is:

CHESTNUT CREEK, VA.

Colonel GOETHALS. This report is now House Document 506, Seventy-eighth Congress, second session, prepared in accordance with Flood Control Committee resolution of November 19, 1940.

This creek is formed by the confluence of its east and west forks in Grayson County, Va. It flows in a northeasterly direction about 23 miles to its.confluence with the New River. New River then unites farther down with the Gauley to form the Kanawha, which in turn flows 97 miles to its junction with the Ohio River at Point Pleasant, 266 river miles below Pittsburgh.

The population of this basin in 1940 was 6,750. In this basin manufacturing, dairying, farming, and stock raising are the chief occupations. The products of agriculture consist generally of potatoes, wheat, and rye. There is no existing project for flood control in this basin.

Floods have occurred frequently, on an average of once a year. Extreme floods are caused by the hurricane type of storms, while the frequent river floods occur as a result of tropical rains. Ten destruc

tive floods have occurred since 1878, the greatest on record occurring in August 1940, causing damage in the basin of $226,600, of which $209,000 occurred at Galax, Va. In that immediate vicinity approximately 600 acres are subject to overflow.

The plan of improvement recommended consists of the construction of a leveed channel through the town to provide a discharge capacity of 15,000 cubic feet per second.

Senator OVERTON. Through what town?

Colonel GOETHALS. The town of Galax, Va. The map now on display is the detailed one showing improvements through the town in question.

Senator OVERTON. All right. You may proceed.

Colonel GOETHALS. The leveed channel will carry a flood believed to be the greatest flood of reasonable expectancy; provision is to be made to increase the height of the levees by 3 feet if such appears to be necessary at the time of construction.

The recommended improvement provides for the reconstruction of the railroad bridge, for highway and highway bridge changes, and for alterations in the existing drainage facilities. The total length of the project is 11,100 feet.

The estimated cost is $360,000, of which $276,125 is Federal money, and $83,875 local funds, developing a favorable ratio of cost to benefits of 1 to 1.01. Conditions of local cooperation are standard except in addition thereto the local interests are required to make all necessary changes in highways, highway bridges, and drainage facilities.

Senator BURTON. Is there any navigation of that stream at that point?

Colonel GOETHALS. No, sir.

Senator OVERTON. What is the average flood damage?

Colonel GOETHALS. The average annual damage at Galax is estimated at $13,400.

Senator BURTON. Then you do not feel that you need any navigability at all for a flood-control proposition?

Colonel GOETHALS. No navigation requirements are evident.
Senator BURTON. How deep is that creek?

Colonel GOETHALS. I have not that data. I might say that it is an unimportant stream, is very shallow, and that there is nothing to justify a navigation development in that section.

Senator BURTON. Then it is almost one of these little streams that holds out a flood danger in time of storm?

Colonel GOETHALS. Yes, sir. It always has some flow. That is, it never entirely dries up as occurs sometimes in streams in the West, but it is subject in flood times to spreading out and covering the adjoining lands.

Senator BURTON. Mr. Chairman, do you understand that we do not need any navigability in order to get jurisdiction for flood control? Senator OVERTON. As I understand it, the authority of the Federal Government stems from the interstate commerce clause and, of course, the Constitution gives Congress control over navigable waters as an incident to its power to regulate interstate commerce. Decisions of the United States Supreme Court have, from time to time, construed the power of the Congress over waterways. It is my understanding that any waterway that can reasonably be improved so as to make

it navigable in interstate commerce is a navigable waterway of the United States; that the waterway is navigable even though it has ceased to be used in interstate commerce; that the authority of Congress over navigable waters is not limited to control solely for the purpose of navigation but embraces all the needs of commerce; that Congress may control nonnavigable parts of a river in order to promote commerce on parts that are navigable; that the power of Congress to protect any navigable stream from flood damage extends to the control of tributaries to such streams; that Congress alone is to decide whether any given project, either considered by itself or as part of a comprehensive plan, is justified and should be authorized as having a beneficial effect on interstate commerce; and that the courts cannot question the reasons or the objectives that actuated Congress in voting for a project. It is my opinion that the power of Congress to regulate stream flow of waters that are either navigable in fact or ultimately influence navigable streams through the flow of water into the navigable streams is inseparably connected with and is supported by the interstate commerce clause of the Constitution. I think the Chestnut Creek Va., case may be considered as a border-line case. It is difficult, however, to distinguish the Chestnut Creek, Va., case from the New case decided by the United States Supreme Court because Chestnut Creek, as I understand it, empties into the New River which, in turn, empties into the Kanawah, and the Kanawah, in turn, discharges its waters into the Ohio which, of course, is unquestionably a navigable stream.

Senator BURTON. Perhaps not until they get to the Ohio River.

Senator OVERTON. Colonel Goethals, into what actually navigable stream does Chestnut Creek empty? Does it empty into any navigable stream?

Colonel GOETHALS. Its waters go into the New River, and the New River empties into the Kanawha River.

Senator OVERTON. Is the New River navigable?

Colonel GOETHALS. There is no navigation project there.

Senator OVERTON. But is the New River navigable in fact?

Colonel GOETHALS. While there is no navigation project involved, I am not sure about navigation. If you mean to ask whether there has been any judicial determination of navigation or not, the Supreme Court has declared it to be a navigable stream.

Senator OVERTON. Is it being navigated in fact?

Colonel GOETHALS. No, sir.

Senator OVERTON. Is the Kanawha River being navigated in fact? Colonel GOETHALS. Part of the way.

Senator OVERTON. What becomes of the Kanawha?

Colonel GOETHALS. That goes directly into the Ohio.

Senator OVERTON. And of course the Ohio River is navigable in fact.

Colonel GOETHALS. Yes, sir.

Senator BURTON. Perhaps you have this project on the theory of a tributary stream, that the water will get down to a point where it might affect navigation. But, Mr. Chairman, suppose there is no contemplation here of navigation?

Senator OVERTON. I do not like to express an offhand opinion, but I think the United States Supreme Court has upheld the authority

of the Federal Government to improve all streams for flood control purposes, and without any qualification, as to whether they are in aid of navigation or not. Now, they have not exactly expressed it that way but that is the impression I get.

Senator BURTON. Here you have a border-line case. The waters of Chestnut Creek finally reach a navigable stream. It is assumed, I take it, that the water coming from this point will have some influence on the Ohio River. Here we are taking care of flood conditions in the general area although the water does not affect any navigation.

Senator OVERTON. There are many flood-control projects that do not have any direct bearing on navigation. Colonel Goethals, is there any attorney present from the Department? Colonel GOETHALS. Not this afternoon.

Senator OVERTON. We might have that briefed.

Senator BURTON. Mr. Chairman, I think this would be a good case to have an opinion on.

Senator OVERTON. It is requested by the subcommittee that attorneys connected with the War Department submit an opinion, supported by decisions of the United States Supreme Court, as to whether or not the Congress is authorized to construct a flood-control project on a stream that is not navigable in fact, and where the improvement does not in any wise affect navigation, where the stream cannot be considered a navigable stream either theoretically or in fact.

Senator BURTON. The subcommittee having under consideration. the recommended project for Chestnut Creek, Va., an opinion is requested as to whether or not the Congress has authority to authorize the Chestnut Creek, Va., project.

Senator CORDON. Mr. Chairman, might it not be well to broaden our request to include whether the Congress would have that authority with the consent of the State in which the project is located?

Senator OVERTON. I do not think the consent of the State adds anything to the authority of Congress.

Do the floods occurring on the Chestnut Creek interfere with commerce, in crossing the creek, the bridges, or ferries?

Colonel GOETHALS. Flood conditions on Chestnut Creek cause damage to the highways and railroads in the flood plain and interrupt transportation. Damages in Calax are particularly severe because of the unpredictable effects of drift lodging on the railroad bridge and highway bridge.

Senator OVERTON. The waters of Chestnut Creek ultimately flow into the Ohio River?

Colonel GOETHALS. Yes, sir.

Senator OVERTON. In the New River case, the Supreme Court recognized full Federal jurisdiction and authority over navigable waters and they don't have to be navigable in fact, and preceding decisions have vested authority in Congress to construct works for flood control and flood protection on streams of the United States. So, the question will arise, to be determined-that is, on which we seek advice as to whether or not flood-control projects cannot be undertaken on any stream in the United States because all streams ultimately flow into navigable streams and because Congress has supreme authority

over all navigable waters. I just wanted to add that observation to what has already been said.

Subject: May Congress authorize a flood-control project on a stream not navigable in fact where the improvement does not affect navigation?

Article I, section 8 of the Constitution of the United States provides that the Congress shall have power "to regulate commerce among the several

States * *

Pursuant to this power Congress declared the following policy on the subject of flood control in section 1 of the act of June 22, 1936 (49 Stat. 1570):

"It is hereby recognized that destructive floods upon the rivers of the United States, upsetting orderly processes and causing loss of life and property, including the erosion of lands, and impairing and obstructing navigation, highways, railroads, and other channels of commerce between the States, constitute a menace to national welfare; that it is the sense of Congress that flood control on navigable waters or their tributaries is a proper activity of the Federal Government in cooperation with States, their political subdivisions, and localities thereof; that investigations and improvements of rivers and other waterways, including watersheds thereof, for flood-control purposes are in the interest of the general welfare; that the Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for floodcontrol purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs, and if the lives and social security of people are otherwise adversely affected."

As used in aricle I, section 8, commerce includes navigation, hence Congress may authorize works for the improvement or protection of navigable waters. Its jurisdiction extends to nonnavigable tributaries of navigable waters where works may be constructed to aid navigation on such navigable waters, and it may prevent the erection of structures or the doing of anything on such nonnavigable tributaries that would adversely affect navigable waters (United States v. Rio Grande Irrigation Co., 174 U. S. 690).

However, the fact that a flood-control project on a nonnavigable stream does not affect navigation does not necessarily mean that Congress has no jurisdiction. Navigation is not the only subject coming under the commerce clause of the Constitution. Commerce also includes the transportation of goods and persons by land or by air. Accordingly, Congress may authorize the construction of flood-control projects, even when navigable waters are not involved, if it finds that such project is necessary for the protection of interstate commerce by land or air.

As the Supreme Court recently stated in the case of Oklahoma v. Atkinson Co. (313 U. S. 508), it is for Congress to determine whether a particular flood-control project will have such a beneficial effect on the arteries of interstate commerce as to warrant it.

Jos. W. KIMBEL,

Chief, Legal Branch, Civil Works Division. You may proceed with the next project, Colonel Goethals, which is:

KENTUCKY RIVER, KY.

Colonel GOETHALS. The next report, Mr. Chairman, is that on the Kentucky River, Ky. The report now is House Document 504, Seventy-eighth Congress, second session, prepared under authority of the Flood Control Act approved August 11, 1939.

This river is formed by the junction of the north and middle forks 4 miles east of Beattyville, Ky. It flows generally 225 miles northwesterly, joining the Ohio River at Carrollton, Ky., which is 546 miles below Pittsburgh. Its important tributaries are the Red River, the Dix River, and Eagle Creek.