Virginia has passed an act permitting the Government of the United States, agencies and departments thereof, to acquire, either by purchase, gift, or condemnation, lands within the State for the purpose of abatement of pollution or the generation of electric power. The War Department district engineer in his report stated that his investigation was made pursuant to the authority of Public Acts Nos. 409 and 738. Nowhere in Public Act No. 409 have we found James River or Jackson River mentioned. Even if these rivers had been mentioned in this act, the act is not applicable to the proposed Gathright Dam because this act deals with the * improvement of rivers, harbors, and other waterways * * Section 3 of Public Act No. 738 places upon the State, political subdivisions thereof, or other responsible local agencies, the responsibility and burden of providing, without cost to the United States, all lands, easements, and rights-ofway necessary for the construction of the projects mentioned in said act. We cannot find that the State of Virginia, or the political subdivision thereof, have agreed to assume this responsibility and burden. By section 6 of Public Act No. 738, the Secretary of War "** is hereby authorized and directed to cause preliminary examinations and surveys for flood control at the following named localities: ** James River, Virginia, is listed among the named localities but nowhere is Jackson River listed. It is perfectly clear that Congress did not intend for the Secretary of War to make preliminary examinations and surveys on the tributaries of James River because where is was intended for such examinations and surveys to be made on tributaries of certain rivers, Congress listed the rivers in this manner ** Rough River and its tributaries, Kentucky." We respectfully submit that under the foregoing mentioned acts of Congress the district engineer exceeded his authority in making preliminary examinations and surveys on Jackson River, Va., for any one or all of the following purposes: (a) abatement of pollution; (b) flood control; (c) manufacture of electric power; (d) recreational facilities; (e) regulation of stream flow; (f) or any other purposes. We understand that much of the land above the proposed Gathright Dam is owned by the Virginia Electric & Power Co., a public service corporation. It is our opinion that under section 3832 of the Code of Virginia, the word "corporation" is broad enough to and does include the United States Government and agencies and departments thereof; and that under this section of the law of Virginia the United States must obtain from the State corporation commission a certificate of public necessity or essential public convenience before the United States, or any department or agency thereof, can take by condemnation the lands owned by Virginia Electric & Power Co. So far as we know or have been able to ascertain, the United States has not obtained such a certificate. POLLUTION While we have not had an opportunity to make more than a cursory perusal of the district engineer's report, and are not, therefore, in a position to go into the technical aspects thereof, we understand that one of the purposes of the proposed Gathright Dam is the abatement of pollution. We are advised, and so believe, that the chief contributor to the pollution of Jackson River is West Virginia Pulp & Paper Co., Covington, Va.; that West Virginia Pulp & Paper Co. is not now able to expand its operations because of the present shortage of available water supply; and that it is the desire and intention of the officials of West Virginia Pulp & Paper Co. to expand its Covington plant if additional water supply can be obtained. It is a consensus that pollution-abatement advantages, if any. that may accrue from the proposed dam will be through dilution. We are reliably advised that the pollution materials dumped into Jackson River by West Virginia Pulp & Paper Co. are solids and that there cannot, therefore, be any appreciable dilution. Since it is the desire and the intention of the officials of the West Virginia Pulp & Paper Co. to expand the operations of the Covington plant if additional water supply can be obtained, it is only reasonable to assume that if the proposed dam is constructed, thereby making it possible for the West Virginia Pulp & Paper Co. to expand its operations, the substances which cause pollution of the stream will increase in proportion to the increased water supply. We are of the opinion that the Federal Government does not have authority to take private property for the abatement of pollution on Jackson River. It is our opinion that this is a private matter which rests on the shoulders of the contributors to the pollution of the stream and the lower riparian landowners. 87116-46-12 GENERATION OF POWER We are unalterably opposed to the Government of the United States entering into business in competition with the citizens thereof. Such practices are not in harmony with our form of government and are contrary to the best interests of a large majority of the people of our country. Our country has prospered and advanced because of free enterprise. If the Government of the United States obtains control of facilities for the generation of electrical power in any part of the United States, State, or locality, it can thereby control all other businesses which rely upon electrical power for their operations. We respectfully submit that this is definitely inimical to the advancement of the United States of America and its people. RECREATIONAL FACILITIES We concede that it is well for any person to have periods of relaxation among pleasant surroundings; however, we submit that no such advantage can possibly accrue from the proposed Gathright Dam. Even if the proposed lake could be made suitable for recreational facilities, it is our opinion that the Government of the United States does not have authority to take or condemn land in the State of Virginia for a recreational lake. We are advised, and so believe, that water dams which are constructed for both flood control and the generation of power cannot be used for recreational purposes because the rising and the receding of the water leaves a soft and muddy ground around the pool, thereby making it impossible for recreation seekers to reach and return from the pool without wading through mud. We are also advised that the soft muddy ground and pools of stagnant water around the pool area will become a breeding place for mosquitoes and other noxious insects. GENERAL WELFARE If the proposed Gathright Dam is constructed the only highway through this section will be submerged. This highway is the most direct route for the farmers on Back Creek, Little Back Creek, and Mountain Grove to Covington, Va. Covington, Va., is the trading place for people living on Back Creek, Little Back Creek, and Mountain Grove. The farmers from the three foregoing named places haul pulpwood to the West Virginia Pulp & Paper Co., Covington, Va., over the highway leading through the gorge where the Federal Government proposes to construct the Gathright Dam. If this road is cut off the Back Creek, Little Back Creek, and Mountain Grove farmers who sell pulpwood and other commodities will have to haul their commodities through Warm Springs and Hot Springs to Covington, approximately twice the present distance. If the proposed Gathright Dam is constructed, homes will be lost, dear beyond pecuniary compensation. Residents of the pool area, who are as much a part of that area as are the oaks and pines, will be wrenched from the land that has clothed and fed them and their fathers before them for lo these many years; and hopes and dreams of many years will be washed away in the murk and mire of the pool and flood area. FLOOD CONTROL We are not in a position to express anything more than a layman's opinion as to the flood-control benefits that may accrue from the proposed Gathright Dam. There are a number of tributaries, such as the Cow Pasture River, or the James River that are far larger in water flow than the Jackson River. We are confident that the Army Board of Engineers will give this matter careful consideration before approving the proposed Gathright Dam as a flood-control measure. Respectfully submitted. HELEN CROXTON WILLIAMS, LEWIS C. WILLIAMS. By JULIAN K. HICKMAN, Counsel. The CHAIRMAN. We will resume our hearings on the Jackson River flood-control developments. Are there any other opponents except Mr. Hickman and General Opie who have testified? STATEMENT OF R. B. STEPHENSON, ESQ., COVINGTON, VA. Mr. STEPHENSON. Mr. Chairman, I would like to speak for J. G. Kyle. R. D. Kyle, Mrs. A. D. Ellison, Mrs. Reba Robbins, Mrs. Robert Vawter, Mrs R. D. Carson, and Mrs. Sadie Deason, who have abutting property on the Falling Spring Dam on the Jackson River. The CHAIRMAN. That is part of the Jackson River flood-control development? Mr. STEPHENSON. Yes, sir; it includes the Gathright Dam and the Falling Spring Dam on Jackson River. The CHAIRMAN. Both dams are on Jackson River? Mr. STEPHENSON. Yes, sir. The CHAIRMAN. The Gathright Dam is above and the Falling Spring Dam is below? Mr. STEPHENSON. That is right, sir. The CHAIRMAN. Now you are interested in your own land which will be taken for the dam? Mr. STEPHENSON. My clients own land which will be taken for the Falling Spring Dam project. The CHAIRMAN. You are a lawyer? Mr. STEPHENSON. Yes, sir. The CHAIRMAN. Where do you live? Mr. STEPHENSON. Covington, Va. The CHAIRMAN. Are you a member of the chamber of commerce? Mr. STEPHENSON. No, sir. The CHAIRMAN. You may proceed with your statement. Mr. STEPHENSON. I just want to make one or two very brief statements, Mr. Chairman. I have a brief that I filed with the Board of Engineers, and I will file a copy with you to save time. The CHAIRMAN. We will be glad to have your report and it may be inserted in the record at the end of your remarks. However, we would be glad to have you give us the high points of your statement. Mr. STEPHENSON. I claim, Mr. Chairman, in the first place this project involving the James River does not involve the tributaries of the James River. This is rather technical, but I am taking the act of the Seventy-fourth Congress, which relates, as the chairman has said, to flood control and not on these kindred subjects which have been dragged in. That act provides for the expenditures for preliminary examinations, surveys, and so forth, for flood control at certain named localities; and provides further that no preliminary examination, survey, project, or estimation or new works other than those designated in this or some prior act or joint resolution shall be made. There is then set out certain named streams among them the James River, Va. It will be noted that this act provides in some cases surveys shall be made of streams and their tributaries, but in regard to the James River, there is no such statement. Therefore, the proposed projects on the Jackson River, which is a tributary of the James River, and making report on the questions of not only flood control to which the report is limited in section 6 of the act, but also reporting on water power, pollution abatement, and increase of low-water flow, and pro viding incidental recreational areas, we maintain none of those purposes are provided for in said act. In contrast we find in the case of many other rivers it mentions the river and its tributaries, so that when the act mentions the James River, and not its tributaries, why the tributaries are expressly excluded. I want to make that point in all seriousness before the committee. The CHAIRMAN. Have you a copy of the Rivers and Harbors Act, and the Flood Control Act of June 22, 1936? Mr. STEPHENSON. Yes, sir, I have a copy of the 1936 act. The CHAIRMAN. Have you a copy of the Rivers and Harbors Act of August 30, 1935? Mr. STEPHENSON. No, sir; I do not have that. The CHAIRMAN. The report was submitted under both of those acts. Mr. STEPHENSON. I was following what the district engineer said he was following, and of course I followed the amendment of 1938, enacted by the Seventy-fifth Congress, which is the amendment referred to by Mr. Hickman as to the Government paying. The CHAIRMAN. But I do contend in all seriousness that Jackson River is not, and should not be included. The Jackson River is a tributary of the James and here is a peculiar matter. Here is all this vast scheme to build dams on the James River covering thousands upon thousands of acres as the report of the engineers shows, yet the engineers say that the only feasible spot at which to begin operations at this time are where? Way up in our mountain districts. They want to build two dams up there. One of the dams proposed is the Gathright Dam which by the way takes the finest hunting and fishing preserve, I suppose, east of the Mississippi River. There abound there game of all sorts and the finest fishing, and it is without a doubt the finest preserve and no doubt many of your colleagues have visited there from time to time. It is a fine recreational place. That is just a few miles above the people I represent but out of all that great basin of the James River, 200 miles long, which is an intrastate stream over which the Federal Government has no control except for navigation, I say in order to get an entering wedge they have picked these two little dams on the headwaters of the James River instead of going downstream and saying "We are building these dams between Covington and Richmond." No; they say "We are going to exclude all of them." Why? Because they do not want to have the antipathy of all that class of people on the James River. In other words those people have been lulled into a sense of falese security where they do not know what is happening. That report shows thousands upon thousands of acres of land have been inundated. For instance the Pembroke Dam inundated 76,000 acres; so I say that the Board of Engineers, when they found a terrific opposition to the development of the Venango project they saw they were defeated and they would not approve it, and then they went up in Alleghany County where there is nobody but my few clients, a few widows and one family and Mr. Cartright with his game preserve and they say "We will not have any opposition" and they come up with all propaganda, and they whooped it up: they packed our meeting there, they had Rural Electrification people there from Dan to Beersheba, for a distance of 150 miles, in fact people we never heard of before in Culpeper County and they packed the meeting. There were 40 to 50 of them, putting in a dam that we did not want and they were there 4 or 5 days. I say they do not want it. Some of our people do want it. The CHAIRMAN. What about the people of the city of Covington generally? Mr. STEPHENSON. Some of them want it and some of them do not. The CHAIRMAN. What would you say generally as to how they feel about this project? Mr. STEPHENSON. I would say, generally speaking, they do not know much about it, and have not given it much thought like most people do about this kind of thing. Those who have been put under pressure like the board of supervisors and town council and the chamber of commerce favor it, but not as a unit. A member of the chamber of commerce resigned because he was opposed to it. He is a member of the town council who is opposed to it, violently opposed to it. I would say that the people in authority most of them are in favor; I will be fair about that. Now I am opposed to this personally and individually, just as General Opie is, on those grounds. The CHAIRMAN. Yes? Mr. STEPHENSON. Now, if you please, Mr. Chairman, I want to emphasize that the Jackson River is considered an intra-State stream over which the State of Virginia should and does have jurisdiction. The Federal Government has nothing to do with it except where it is navigable. There is not a drop of water flows into the James River from any other State, so I say it is an unfair proposition to "put over" these two dams which have received this opposition, and use them as an entering wedge, when the engineers say they are coming around later. We do not say it in their absence. This is a start to inundate this 200 miles of territory in the James Valley from stem to stern, and those people do not know what is going to happen and I know this committee does not want that kind of an unfair thing happening. The CHAIRMAN. Let me ask you, Mr. Stephenson, with respect to the terminology of the authorization for this report. As I understand you stated at the beginning that there was an authorization for the James River but not, in your opinion, an authorization for the tributaries of the James River. Is that what I understood you to say? Mr. STEPHENSON. Yes, sir. The CHAIRMAN. Let me ask you in that respect what you would say with respect to the construction placed upon the commerce clause of the Constitution by the Supreme Court of the United States when they held that the power of Congress to protect and improve navigable rivers extends to the control of waters of the tributaries of those rivers in the New River case-U. S. v. Appalachian Electric Power Company, 311 U. S. 377-and the Denison Reservoir-Oklahoma v. Atkinson Company, 313 U. S. 508. That was the last of those cases. In those cases they held that the term "navigable river" included tributaries. So, if the Supreme Court held that the term "navigable river" includes tributaries would it not be that the James River would cover all tributaries of the James River? Mr. STEPHENSON. My answer to that would be this: The statute itself sets out certain things like the "Potomac River and its tribu |