United States Chapman v. Federal Power Commission/Concurrence Clark

by Tom C. Clark

United States Supreme Court

345 U.S. 153

United States Chapman  v.  Federal Power Commission

 Argued: Oct. 22, 1952. --- Decided: March 16, 1953

Mr. Justice CLARK, concurring.

I agree with the majority that the sole question before us is whether Congress has withdrawn the Roanoke Rapids site from the licensing jurisdiction of the Commission and that the answer is in the negative. But in reaching this result weight should be given the administrative interpretation of the 1944 Flood Control Act both by the Army Corps of Engineers and the Federal Power Commission. Taken together with the fact that Congress was fully advised of the Commission's action and the Corps' agreement with it as early as May 1949 and failed to express any disagreement during the period of more than two years when the application was under consideration, this administrative interpretation seems to me decisive.

We are cited to three cases in which the Commission, with the full approval of the Corps of Engineers, has licensed private developments despite prior congressional action adopting and authorizing public construction as part of river basin improvement plans. ^[1] While the plans included in those projects may not have been as comprehensive as The Roanoke River Basin Plan, each had been approved by Acts of Congress using language similar to that in § 10 of the Flood Control Act of 1944. With this as background, a colloquy between Colonel Gee of the Corps of Engineers and the House Flood Control Committee on May 16, 1949, gains significance. Colonel Gee mentioned VEPCO's then pending application and stated that the Corps has not regarded the 1944 approval as precluding such private licensing. ^[2] I would affirm on the basis of this administrative interpretation by two agencies charged by Congress with direct flood control and power licensing responsibilities.

Mr. Justice DOUGLAS, with whom the CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

Notes

1. License issued to County of Placer, California, August 8, 1951. Project No. 2021, for power plant at debris storage dam on North Fork, American River, constructed pursuant to authorization in River and Harbor Act of August 30, 1935, 49 Stat. 1028, 1038, as recommended in House Rivers and Harbors Committee Document No. 50, 74th Congress. License issued to St. Anthony Falls Water Power Co., August 31, 1951, Project No. 2056, to use water from United States navigation dam at St. Anthony Falls, Minnesota, authorized in the River and Harbor Act of 1937, 50 Stat. 844, 848, as recommended in House Rivers and Harbors Committee Document No. 34, 75th Congress. Two licenses issued in 1934 and 1936 to Kanawha Valley Power Co., Projects Nos. 1175 and 1290, for three power plants at navigation dams on Kanawha River, West Virginia, authorized in River and Harbor Act of 1930, 46 Stat. 918, 928, as recommended in H.R. Doc. No. 190, 70th Cong., 1st Sess.
2. 'Mr. Angell. Is the Federal Government at the present time planning to develop any of those dams on the lower part of the river which are devoted exclusively to power production?

'Colonel Gee. No, sir. They have the same status in this basin plan as the eight remaining projects. They are part of the approved plan. Their being in that plan certainly is no bar to a private utility company coming in and seeking to develop one of these projects.

'Mr. Angell. And that is what is being done now.

'Colonel Gee. That is being done now at Roanoke Rapids, sir.' Hearings before the Committee on Public Works, H.R. 5472, Tit. II, 81st Cong., 1st Sess. 144.