WORKING ON THE LEVEE

The New River, which flows some 250 mountainous miles from southwestern Virginia in a hook northwest into West Virginia,* is a thoroughly old-fashioned stream. The New is unimproved, except for traces of a small Congressional appropriation a half-century ago; like all unimproved streams it alternately races and moseys, brawls and dawdles. Fifteen years ago Appalachian Electric Power Co. decided to throw a dam across the New, five miles above the little town of Radford, Va. (pop. 6,898). The Federal Power Commission demanded that Appalachian accept a license to dam the stream for a power plant. Under the Federal Water Power Act of 1920, no navigable stream (or non-navigable stream affecting interstate commerce) may thus be obstructed without Government permission, and Commission licenses contain an acquisition clause whereby such projects may be bought by the Federal Government in 50 years.

Appalachian Electric Power Co. resisted the demand in court on grounds that the New River was not navigable. (The historically accepted Supreme Court conception of navigability, while multi-shaded, defines a navigable river in law as one which is navigable in fact.) The New had not been used for water commerce since the '90's; a great part of it was as unnavigable as a river can be: rocky, swift, extremely shallow.

The case flickered feebly until mid-1934, when Appalachian began actual construction of its unlicensed dam. In August 1939 a 1,140-foot barrier of grey-white concrete stretched across the New, with nine big spillways near the middle. Thirtieth largest hydroelectric plant in the U. S., Claytor Dam backed up 206,000 acres of water into a lake reaching 21 miles upriver.

Last week as the whine of Claytor Dam's four 2,600-h.p. generators rose over the quiet Virginia hills, the U. S. Supreme Court finally got around to the New River case. Two lower courts had agreed with the power company that it needed no license for its dam, since the New was unnavigable in fact and thus in law. By a 6-2 decision* stated by Justice Stanley Reed, the Court reversed these previous findings, held that the New was navigable, that Appalachian was subject to license and regulation.

Clipped by this decision were the wings of more than two score legal eagles, for 41 State Attorney Generals had filed briefs on the company side. And the Court set up a new definition of navigability, to wit: 1) any stream navigable by boats drawing two feet or more is "navigable"; 2) any stream that can be improved into navigability by expenditure of any "reasonable" amount of money is "navigable." The court further held that the authority of the Government over any navigable stream "is as broad as the needs of commerce"--a definition which broadened the commerce clause of the Constitution almost immeasurably. Justices Owen Roberts and James C. McReynolds dissented vigorously, holding that ". . . then every creek in every State of the Union which has enough water ... to float a boat drawing two feet of water may be pronounced navigable. . . . Congress can create navigability by determining to improve a non-navigable stream."

The legal eagles had screamed that a decision against them would kill States' rights, would logically allow Federal acquisition of mines, oil lands, farmlands. Though Justice Reed denied this logic, even the most unlegal of laymen could clearly see that the way was now open for at least a general TVA-zing of the nation. All that would be necessary would be for Congress to appropriate the money. This Supreme Court decision put power in Federal hands to declare anything more than a heavy rainfall navigable, therefore licensable, therefore regulatable. Another levee against the encroaching flood of Federal powers had crumbled.

Argued the Raleigh, N. C., News and Observer in defense of the decision: "The court stated in clear, unequivocal language that jurisdiction is granted to the federal government over all streams . . . and that it makes no difference whether or not such streams are navigable. . . .

"Aside from the legal issues involved there is no question but that this sweeping decision is in the public interest--due to the failure of most of the states ... to make any effort to conserve their own resources for themselves."

* At Kanawha Falls the New becomes the Kanawha, which flows northwest 97 miles to join the Ohio at Kanauga.

* Chief Justice Charles Evans Hughes did not participate, on the ground that he had once had an association with the case.

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