"(c) From time to time thereafter construct such portions of the balance of said development as in the judgment of the commission may be necessary to supply the reasonable market demands until the development shall have been completed to a capacity of 510,000 horsepower." Paragraph III.—Article 29 is hereby added to and made a part of said license: "ART. 29. The licensee shall cut and remove or destroy, to the satisfaction of the said district engineer, all brush and trees in the areas along the shores and upon the islands between elevations 195 and 228 feet. Trees growing in areas below elevation 195 but projecting above that elevation shall be cut or topped so that no part shall project above elevation 195 feet. All floatable refuse or other material within the area to be submerged shall be removed or destroyed to the satisfaction of the district engineer." Restorations to entry The chairman presented the circumstances with respect to five applications and requests for determinations under section 24 of the Federal water power act involving approximately 630.90 acres of land located in the States of California, Idaho, and Oregon, described as follows, and recommended that the commission find that the value of the lands for power purposes will not be injured or destroyed if disposed of under the limitations of section 24 of the Federal water power act: 1. Humboldt meridian, California: T. 6 N., R. 5 E., sec. 13, NW. 1⁄4 NW. 1⁄4 SW. 4, S. 1⁄2 NW. 4 SW. 4, SW. 4 SE. 4; sec. 24, NE. 4 NE. 4, NW. 4 SE. 1⁄4 NE. 4. T. 6 N., R. 6 E., sec. 18, W. 2 SW. 4 SW. 4 (unsurveyed); sec. 19, Those portions of the following-described lands outside the project area of project No. 899, as shown on the map filed with the application for license entitled "Exhibit F," signed by the applicant on August 11, 1928: T. 6 N., R. 5 E., sec. 22, NW. 4 NW. 4 SW. 4 NW. 4, S. 1⁄2 NW. 1⁄4 Trinity River, area 312 acres; Salyer Consolidated Mines Co., DA-238. 2. Boise meridian, Idaho: T. 9 S., R. 14 E., sec. 10, lot 3 and lot 4. Snake River, area 68.90 acres; McGinnis, Geo. W., DA-214. 3. Boise meridian, Idaho: T. 9 S., R. 14 E., sec. 10, lot 3 and lot 4. Snake River, area 68.90 acres; Briggs, Samuel D., DA-215. 4. Boise meridian, Idaho: T. 31 N., R. 3 W., sec. 13, lots 5 and 8; sec. 24, lots 1, 4, 5, and 8; sec. 25, lot 1. Salmon River, area 210 acres; Sloviaczek, Michael, DA–219. 5. Willamette meridian, Oregon : T. 20 S., R. 9 W., sec. 31, NW. 4 SE. 4. Smith River, area 40 acres; Olson, Frank G., DA-215. It was thereupon voted that the commission determines that the value of the lands so described will not be injured or destroyed for purposes of power development by location, entry, or selection under the public land laws subject to the provisions of section 24 of the Federal water power act. Now, therefore, it is ordered that the Secretary of the Interior be so notified. ONE HUNDRED AND THIRTY-FIRST MEETING, MARCH 24, 1931 Present: Commissioners Draper, Garsaud, McNinch, Williamson, and Chairman Smith. There was a general discussion without formal action on several matters before the commission. ONE HUNDRED AND THIRTY-SECOND MEETING, MARCH 25, 1931 Present: Commissioners Draper, Garsaud, McNinch, Williamson, and Chairman Smith. Routine business considered. ONE HUNDRED AND THIRTY-THIRD MEETING, MARCH 31, 1931 Present: Commissioners Draper, Garsaud, McNinch, Williamson, and Chairman Smith. Declaration of intention Commissioner Garsaud proposed the following finding on the application of the Arkansas-Missouri Power Co., Spring River, Ark.: Whereas Arkansas-Missouri Power Co., a corporation organized under the laws of the State of Arkansas, on January 7, 1931, filed with the commission an application for a preliminary permit for the rebuilding of Dam No. 2 on Spring River, 1 mile below Mammoth Spring, in Fulton County, Ark., and for the construction of a new dam about 5.3 miles downstream from Dam. No. 2, for the development and utilization of power; and Whereas the commission considers the application to be a declaration of intention made in accordance with the provisions of the second paragraph of section 23 of the Federal water power act, and has caused an investigation of the proposed construction to be made; and Whereas the commission has given full consideration to the facts developed by such investigation: Now, therefore, the commission finds that Spring River, Fulton County, Ark., in the part covered by the declaration of intention, is not navigable waters as defined for the purposes of the act in section 3 thereof, and that the interests of interstate or foreign commerce will not be affected by the proposed construction; nor are any public lands or reservations affected. ONE HUNDRED AND THIRTY-FOURTH MEETING, APRIL 3, 1931 Present: Commissioners Draper, Garsaud, McNinch, Williamson, and Chairman Smith. Opinion and order In the matter of the Appalachian Electric Power Co., project No. 739, Virginia: On June 26, 1925, the New River Development Co., predecessor of the Appalachian Electric Power Co., filed a declaration of intention to construct a proposed dam and power project on New River near Radford in the State of Virginia. The declaration of intention was filed under the provisions of section 23 of the Federal water power act (41 Stat. 1063). On September 2, 1926, the successor company filed formal application for a license for said project, "upon the understanding that such application can be withdrawn if it should develop that a Federal license is not required." Pursuant to hearings held by the commission on March 2, 1926, and on October 28, 1926, at which time evidence was introduced by the interested parties, the Federal Power Commission, on June 1, 1927, adopted and entered in its minutes the following order: "In the matter of the declaration of intention, under the provisions of section 23 of the Federal water power act, of New River Development Co., a corporation organized under the laws of the State of Virginia, to construct a dam and other structures across and in New River in the vicinity of Radford, Pulaski County, State of Virginia, said dam and other structures being part of a power project proposed to be constructed for the purpose, inter alia, of the development and utilization of power, said declaration having been submitted to the commission under date of June 26, 1925; the commission having caused investigation of such proposed construction to be made and it appearing from such investigation and from reports submitted thereon that said project, unless operated in the interests of interstate or foreign commerce in accordance with the requirements of said act, would have an adverse effect on such interests, but if operated in accordance with such requirements would materially benefit such commerce, thereupon found that said river in the part thereof involved in said declaration is not navigable waters' within the definition thereof in said act, but that the interests of interstate or foreign commerce would be affected by such proposed construction." And, pursuant to said order, on July 1, 1927, tendered to the said applicant a license in standard form. On February 4, 1930, the applicant company, having previously refused said license, requested the commission to reconsider the finding as made to the effect that the proposed project would affect the interests of interstate or foreign commerce, or in the alternative to issue a minor-part license for this project. On October 6, 1930, the applicant company applied to the Federal Power Commission for a minor-part license for this project. On November 25, 1930, the minutes of the Federal Power Commission at its final meeting prior to its reorganization show that- The executive secretary stated that a minor-part license application of the Appalachian Electric Power Co. for a development near Radford on New River, a nonnavigable stream, project No. 739, Virginia, was ready for consideration, and that in accordance with the opinion of the Attorney General of September 22, 1930, the commission has full authority to exercise its discretion in waiving certain provisions under section 10 (i) of the act in connection with any license issued in this case. After due consideration the commission declined to take action on the application, favorable or adverse. It was concluded that in view of the importance of the questions of jurisdiction as between the United States and the State of Virginia involved in this case a court adjudication is desirable. 82033-31-9 The present Federal Power Commission, organized on December 22, 1930, set a hearing on the matter, and, on February 16 and 17, 1931, the applicant appeared and was duly heard and filed brief. At the same time Hon. E. Lee Trinkle, for the region in which project is proposed to be constructed in Virginia; William E. Carson, Esq., chairman, Virginia Conservation and Development Commission; E. W. Caffee, Esq., mayor of Pulaski, Va.; F. M. Livezey, Esq., for Public Service Commission of West Virginia; C. R. Luker, Esq., representing Governor of Kentucky; Hon. Roy H. Beeler, representing State of Tennessee; Hon. John H. Caldwell, assistant attorney general of Arkansas; and Hon. Edwin H. Gibson, assistant attorney general of Virginia, appeared and several of said parties submitted briefs in support of the protests of their respective States theretofore filed with the Federal Power Commission objecting to the said commission taking jurisdiction on the said application. Also there were filed with the commission briefs by George W. Woodruff, personal counsel to Hon. Gifford Pinchot, Governor of the State of Pennsylvania, and by Herbert S. Ward and other counsel for the National Popular Government League in support of the jurisdiction of the commission in the specific instance covered by this application and like instances. Commissioner McNinch proposed, and Commissioner Draper supported, such proposal, that this commission should reconsider and reverse the finding of the former commission, "that said river in the part thereof involved in said declaration of intention is not navigable waters' within the definition thereof in said act." The majority of the commission is of the opinion that the suggestion does not involve the question of the jurisdiction of this commission over New River, but merely the question of the ground upon which such jurisdiction shall be predicated; and that the ultimate determination of what is “navigable waters” under the Federal water power act in any case is one for the courts and that any finding made by this commission as to what are navigable waters in law would not be binding upon the courts. It is the judgment of a majority of the commission, in view of the conflicting evidence and opinion as to New River being "navigable waters within the definition of the act," that jurisdiction is more properly based upon section 23 of the act, applicable to streams of this character where the authority of the commission is clearly defined, leaving to the courts the determination of the question of "navigable waters as defined in the act." It is the unanimous opinion of the commission that the evidence clearly sustains the finding that the proposed construction would affect the interests of interstate and foreign commerce. New River is the principal tributary of the Kanawha River and as such in low-water periods supplies the principal part of the flow of the Kanawha River, a navigable stream presently used in interstate and foreign commerce, and the Kanawha River is one of the principal tributaries of the Upper Ohio River, a navigable stream presently used in interstate and foreign commerce. These facts, together with others in the record, support such finding. It is the opinion of this commission that such finding when so based upon valid evidence is conclusive in view of the authority conferred upon this commission by section 23 of the act. Now, therefore, this commission having reviewed the evidence, records, and files of this office, bearing upon the issues herein before set forth, having heard argument and carefully read the briefs above referred to, and being fully advised in the premises, hereby orders: 1. That the motion of the applicant company to reconsider the finding of June 1, 1927, "that the interests of interstate or foreign commerce would be affected by such proposed construction" be, and the same is hereby, denied; 2. That the application, dated October 6, 1930, for a minor-part license for this project be, and the same is hereby, denied; and 3. That the applicant shall be tendered a standard form license under the act, and it is hereby ordered that it shall not proceed with construction until it shall have received and accepted such license. ONE HUNDRED AND THIRTY-FIFTH MEETING, APRIL 7, 1931 Present: Commissioners Draper, Garsaud, Williamson, and Chairman Smith. Revocation of authorization of preliminary permit The chairman presented a communication from H. S. Graves and Warren H. Wilson, of Juneau, Alaska, in which it was stated that owing to present conditions of the metal market which makes impractical the development of their mineral claims at this time, they have not accepted the preliminary permit for a power project on Glory Creek, in the Tongass National Forest near Port Houghton, Alaska, issuance of which was authorized by the commission at its meeting of November 25, 1930. Commissioner Williamson moved that the authorization he rescinded, and the commission thereupon took action as follows: In the matter of the preliminary permit for a power project (No. 1085) on Glory Creek, near Port Houghton, Alaska, which was authorized by the commission at its meeting of November 25, 1930, but which has not been accepted by the applicants, who have decided to abandon the project, it was-Voted: That said authorization for a preliminary permit be revoked. Amendment and transfer of license The chairman presented the applications dated July 12, 1929, and December 5, 1929, of the Snow Mountain Water & Power Co., of San Francisco, Calif., for further amendment of the license for project No. 77 issued to said licensee by the commission on April 15, 1922, and subsequently amended on February 13, 1923, February 7, 1924, and November 7, 1925, such further amendment to provide for the elimination of the transmission system extending from Potter Valley power house to Santa Rosa and other cities and for extension of the time within which to begin and to complete construction of the project works as set forth in article 2 of said license, as previously amended; and the joint application of Snow Mountain Water & Power Co. and Pacific Gas & Electric Co. for approval of transfer made on August 29, 1930, to Pacific Gas & Electric Co. of said license issued to Snow Mountain Water & Power Co. It appearing that Pacific Gas & Electric Co. is a corporation organized and existing under the laws of the State of California and is authorized to transact in the State in which said project is located any business necessary to effect the purposes of said license; on motion of Commissioner Williamson and seconded by Commissioner Garsaud it was Voted: That the transfer of said license, as amended, be approved as of the date of such transfer, as in the public interest, subject, however, to the following conditions: |