Even under a strict interpretation of the provisions of section 17 of the act of June 10, 1920, 41 Stat. 1072, there appears no mandatory requirement that receipts of any license involving occupancy of Government land, regardless of the area affected, or without taking into consideration other factors which may be material in the classification of the license, be considered as for disposition as receipts derived from licenses classed as for the use, occupancy, and enjoyment of public land and property. A careful scrutiny of the provisions of that section discloses that it was the express intent of the Congress in enacting the law of June 10, 1920, and providing for the disposition to be made of the funds derived from the licenses authorized to be issued thereunder, that onehalf of the receipts collected from licenses relating to public lands as to which the Bureau of Reclamation is concerned in its activities should go to the credit of the reclamation fund, and as to other licenses, with the exception of those involving Indian lands, it being assumed, evidently, that they would involve navigable interests, it was provided that 50 per cent of receipts derived therefrom be placed in a special fund in the Treasury to be expended at the direction of the Secretary of War for the maintenance of operation of dams, etc. Under such circumstances it would appear that the test for the proper classification of a license for the purpose of apportioning collections thereunder should be, in each case, whether the license was issued for the use and occupancy of public lands or for the protection and maintenance of navigable waters of the United States or other purposes. It is true, as you state, in some cases both may be involved, and, in such cases, for the purpose of classification, the determination should be in favor of the predominant interest except that as to charges actually collected for use and occupancy of public lands, no matter how small the area affected, the disposition should be as specifically provided by section 17 of the act.

Applying these principles to the specific cases set forth in the statement attached to your letter, I have to advise as follows:

The first eight projects appearing in the statements are the following:
No. 3-Washington Irrigation & Development Co., Washington.

No. 82-Alabama Power Co., Coosa River at Duncans Riffle, Alabama.

No. 276-Houston Power Co., Alabama.

No. 310-St. Croix Falls Wisconsin Improvement Co., Minnesota and Wisconsin.

No. 349-Alabama Power Co., Alabama.

No. 469-Minnesota Power & Light Co., Minnesota.

No. 682-West Florida Power Co., Florida.

No. 943-Washington Electric Co., Washington.

It appears that all of these projects involve mainly navigable interests, and while in each a small area of public land is involved, such public land does not appear the basis for the issuing of the license as authorized by the act of 1920. Accordingly, as to these projects, the licenses properly may be classified as licenses relating to navigable interests, and collections made therefrom for administrative expenses, etc., properly may be disposed of as such, as provided in section 17 of the act, except that as to such funds, if any, actually derived from the use and occupancy of the small area of public lands involved in each project, the disposition should be as if the funds had been collected under the licenses for use and occupancy of public lands.

The same principles are applicable to project No. 935-Inland Power and Light Co., Washington-in connection with which it is stated:

"The project is on a nonnavigable section of Lewis River and affects a small area of land of the United States within a power site reserve. The

commission found that the project should be controlled to safeguard the interests of navigation on the stream below. The total project area is 8,200acres, of which approximately 143 acres consist of public land."

It appears that the jurisdiction of the commission to issue a license for the project is predicated not on the basis of the public lands involved, but for theprotection of navigable interests, although the project proper is not located on a navigable section of Lewis River. Under the circumstances, it would appear that the license should be classified as a license for that purpose rather than for the use and occupancy of public lands, and receipts derived therefrom are for disposition as herein indicated with respect to the first eight projects herein discussed. That is to say, collections for administrative expenses, etc., should be disposed of as funds derived from licenses issued for the maintenance and protection of navigable interests, and charges, if any, collected for the use and occupancy of the public lands involved are for disposition as provided by section 17 of the act in cases of licenses for the use and occupancy of public lands.

The seven other projects listed in the statement should be considered as for classification for apportionment of receipts as licenses for use and occupancy of public lands. There appears to be no question as to this classification with respect to the following cases:

No. 67-Southern California Edison Co., San Joaquin River tributaries, California.

No. 96 San Joaquin Light & Power Corporation, San Joaquin River, California.

No. 120-Southern California Edison Co., San Joaquin River, California. No. 175 San Joaquin Light & Power Corporation, Kings River, California,. it being stated with respect thereto that they are exclusively or mostly upon lands within the Sierra National Forest and that the licenses were issued solely for the purpose of authorizing the use of national forest lands affected. While the licensed projects may have remote beneficial effects on navigation,. that does not appear to have been the determining factor for the issuance of the licenses, and, accordingly, the funds derived under such licenses should be considered as for disposition in the same manner as funds derived under licenses issued for the use and occupancy of public lands.

With respect to project No. 271-Arkansas Power & Light Co., Arkansas-it is stated that it is located on the Ouachita River, a navigable waterway of the United States, and on lands of the United States partly within the Arkansas National Forest, the total acreage being 8,000 acres, of which approximately 1,440 acres consist of public lands. It is believed that notwithstanding the project is located on a navigable waterway, the proportionately large area of national forest lands involved is sufficient to justify the classification of the license for apportionment of the receipts as one issued for the use and occupancy of Government lands. The same rule is applicable to projects Nos. 457 and 503-Idaho Power Co., Idaho-located on the Snake River. While the lower reaches of this river are navigable, it appears that jurisdiction for theissuance of the licenses was taken largely because of the proportionately large acreage of Government lands involved, and, it being stated that the effect on navigation is negligible, no reasons appear why, for the purpose of apportioning the receipts collected thereunder, the licenses should not be classed as for use and occupancy of Government lands.

119554-30-10

JURISDICTION OF FEDERAL POWER COMMISSION

1. The Federal water power act requires a license for a project on an innavigable stream, which could be operated so as to impair navigation on a navigable part of the stream below.

2. Whether a stream is navigable is a question of fact for the determination of the Federal Power Commission, in a case properly before it, and can not be determined by the Attorney General.

3. In considering an application for license on an innavigable stream, where jurisdiction comes to the Federal Power Commission only because the project may impair navigation on the lower navigable part of the stream, the commission can not deny a license on the ground that scenic features of the stream would be destroyed, navigation being the only interest entrusted to the commission in this case and the issue of a license being the means for its protection.

4. The Federal Power Commission is not justified in refusing a license on the ground that the State has power to condemn lands essential to the project, when no steps have been taken by the State to condemn such lands and there is no certainty that the State will act in the matter.

Opinion by the Attorney General given July 1, 1930, at the request of the President:

I have the honor to comply with your request for my opinion on certain questions submitted in the letter of the Secretary of War, as chairman of the Federal Power Commission, dated August 24, 1929, which were later amended by his letter of October 18, 1929, and added to by letter of the Secretary of the Interior, as acting chairman of the commission, dated March 26, 1930, relating to the application by the Cumberland Hydro-Electric Power Co. for a license to carry out a certain project on the Cumberland River in Kentucky, in the vicinity of Cumberland Falls.

The questions submitted are as follows:

1. Does the jurisdiction of the Federal Power Commission extend to entertaining on their merits applications for the licensing of dams and like works in any nonnavigable stream whose waters flow into a navigable stream?

2. May the navigable capacity of a given stream be determined as a question of law by your department upon a statement of the evidence, or is it a question of fact to be determined by the commission in the first instance and later by the court?

3. On the hypothesis that the Federal Power Commission has jurisdiction to entertain and pass upon an application for a license for a dam or other structure in a nonnavigable stream, is it the duty of the commission to grant such license in a case wherein it finds that the interests of interstate or foreign commerce would be promoted by the proposed construction on account of the improved resulting navigable capacity of the lower and navigable reaches of the same stream; and this, despite the fact that the commission, if it were to consider such aesthetic, recreational, economic and other features of the situation as fall within the scope of the functions of the State governments and not of the National Government, would conclude that the public interest, regarded as a whole, would be best served by denying the application for a license?

4. In respect of the pending Cumberland Falls project, may the commission properly be influenced in its decision upon the pending application by the fact, if it finds it to be a fact, that there is public need for a recreational and scenic park at Cumberland Falls; that the pending project would be detrimental to such a park; and that, on the whole, the consideration just suggested is entitled to outweigh the advantage of a slightly improved navigable capacity of the lower Cumberland River resulting from the effectuating of the project?

5. In cases in which the construction of a dam or other work across or in a nonnavigable stream is contemplated and a license is sought therefor of the nature mentioned and provided for in section 23 of the act of June 10, 1920 (41 Stat. 1075, 16 U. S. C., sec. 817), has the Federal Power Commission authority and jurisdiction to grant such a license as may justly protect or tend to protect the licensee against interference by authorities of the State government, in respect of the work mentioned in the license, or may the commission only grant a license evidencing the fact that the Federal Government interposes no objection to the construction and operation of the proposed work, provided that such conditions as are expressed in the license are complied with; and what is the true nature of the license contemplated in the statutory provision referred to?

6. Whether any jurisdiction that the commission may have possessed relative to the proposed project has been superseded or terminated by two statutes enacted by the Legislature of Kentucky on March 10, 1930, looking toward the acquisition by the State of an area including Cumberland Falls for State park purposes.

Some of these questions are general in form, but as they arise from the application of the Cumberland Hydro-Electric Power Co. for a license on the Cumberland River in Kentucky and relate to that matter, this opinion, in accordance with established precedents, will be confined to the particular case submitted.

From the papers submitted it appears that the project referred to invoives the erection of a dam on the Cumberland River near Cumberland Falls and the development of hydroelectric power at that point. At and near the site of the proposed dam the Cumberland River is not navigable. In its lower reaches it is navigable and available as a highway of interstate commerce. No reservation and no part of the public domain are involved, and the interest of the United States depends entirely on the commerce clause of the Constitution and the right thereunder to prevent obstructions to or to improve navigable highways of interstate or foreign commerce. This project (No. 389) first came before the Federal Power Commission on February 10, 1923, when there was filed with the commission a declaration of intention to construct the dam. The proceedings before the commission were pursuant to that part of section 23 of the Federal water power act which is as follows: That any person, association, corporation, State, or municipality intending to construct a dam or other project works across, along, over, or in any stream or part thereof, other than those defined herein as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce between foreign nations and among the several States, may in their discretion file declaration of such intention with the commission, whereupon the commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not proceed with such construction until it shall have applied for and shall have received a license under the provisions of this act. If the commission shall not so find, and if no public lands or reservations are affected, permission is hereby granted to construct such dam or other project works in such stream upon compliance with State laws.

On February 13, 1923, the declarants were advised that the Cumberland River was navigable and that they should file application for a preliminary permit. This was filed on March 8, 1923, and a preliminary permit was granted on March 24, 1924. On March 17, 1926, application for a license was filed, and is still pending. On June 14, 1929 (see Ninth Annual Report, pp. 101-102), the commission found that the Cumberland River at the point

involved in the project affecting Cumberland Falls is not navigable waters but that the navigability of navigable sections of the river, and consequently the interests of interstate and foreign commerce, would be affected by the proposed construction. This finding was based on the following statement of facts (Ninth Annual Report, p. 102):

The application for license contemplates a dam 80 feet high to create a reservoir with a capacity of about 46,000 acre-feet, a diversion tunnel, and a power house with initial and ultimate installation capacities of 40,000 horsepower and 80,000 horsepower, respectively. The capacity of the proposed reservoir is sufficient to retain the entire monthly flows of 20 out of the 108 months which comprise the period from 1918 to 1927. The plant, if operated to supply peak loads during the low-water stages of the river, would have capacity to produce such waves in the river at the gaging station near Burnside as would vary the navigable depth approximately 2 feet for the initial installation and 4 feet for the ultimate installation. The variation in navigable depths at Nashville under similar conditions of operation would be three-fourths to 14 feet. The variations in the navigable depths reaching a magnitude of 2 feet in a 6-foot project would, if not appropriately regulated, materially interfere with navigation in the channels so affected. It is concluded, therefore, that the section of Cumberland River involved does not constitute navigable waters within the definition of the Federal water power act, but that the proposed project would affect the navigable capacity of the navigable sections of the river and, consequently, the interests of interstate or foreign commerce. (Italics ours.)

I

The first question submitted is whether the commission has jurisdiction to entertain on its merits the application for license for this dam on upper nonnavigable reaches of the Cumberland River.

Section 10 of the act of March 3, 1899 (c. 425, 30 Stat. 1121, 1151), which is still in force, is as follows:

SEC. 10. That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.

This statute applies to the construction of works upon a nonnavigable portion of a stream which would impair the navigable capacity of lower navigable portions thereof. In United States v. Rio Grande Dam and Irrigation Co., 174 U. S. 690, the United States succeeded in enjoining the construction of a dam on the nonnavigable portions of the Rio Grande River, the effect of which would have been to impair the navigable capacity of the lower navigable portions of the river.

Under the provisions of Article I, section 8, clause 3, of the Constitution of the United States, which empowers Congres to regulate commerce with foreign nations and among the several States, Congress has power to control and protect navigation on streams suitable for interstate and foreign commerce, and in the exercise of that power it is settled, as in United States v. Rio Grande Dam and Irrigation Co., above cited, that Congress has the right