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D. Ellisonis. Sadie Deysackson River control
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 ?
The CHAIRMAN. The Gathright Dam is above and the Falling
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. 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 fiishing 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
taries,” the “Patuxent River and its tributaries” in Maryland, and many other rivers and their tributaries. That is under section 6 of the act of the Seventy-fourth Congress.
The CHAIRMAN. What do you say with respect to that matter in the river and harbor act regarding rivers and tributaries?
General CRAWFORD. It does include tributaries according to the statute, sir.
The CHAIRMAN. All right, proceed. Mr. STEPHENSON. My answer to that isThe CHAIRMAN. I see your point. Mr. STEPHENSON. Now as to this proposed dam, where my clients are located, in connection with that I want to refer to the engineers' report. It contains in their report the following provisions: Falling Spring Reservoir project on the Jackson River, which would serve as an adjunct to development to smooth out the fluctuation in flow, and relieve the Gathright Dam. The only purpose of this dam—which would take in the finest farm land in Alleghany County and inundate it to a depth of 64 feet, the only purpose is to smooth out the flow of the Gathright Dam. The truth of it, and I believe the engineers will admit it, is that this Falling Spring Dam has practically no value. In other words if it is to smooth out the flow why can't they smooth out the flow at the Gathright Dam 56 miles above. The idea is to let surplus water run down and to make the flow equal some way. We think these projects should be eliminated and not approved. I will not take up any more of your time.
The CHAIRMAN. What do you understand as to the cost of that dam?
Mr. STEPHENSON. I do not know what the cost of it is supposed to be; I have been unable to find out any costs. I understood it was to be 64 feet high.
The CHAIRMAN. What is the cost of this supplemental dam down there, General ?
General CRAWFORD. The whole project is to cost $11,000,000 and the Gathright Dam will cost about $6,300,000 and the power features an additional $3,100,000, sir.
The CHAIRMAN. What is this supplemental dam to cost? General CRAWFORD. The Falling Springs reregulating dam would cost $1,600,000, Mr. Chairman,
Mr. STEPHENSON. Is that Falling Springs!
General CRAWFORD. Yes, sir; that is the estimated cost of the Falling Springs project.
Mr. STEPHENSON. That is to smooth the flow. Some of our good people want to accept what is handed out free.
The CHAIRMAN. We understood you to say it. Mr. STEPHENSON. In addition to filing a copy of my brief, I want to file a copy of the comments taken from the minutes of the Clifton Forge Planning Commission, which relate to the James River Dam development, a copy of which went to the Board of Engineers for Rivers and Harbors, No.2 New York Avenue NW., Washington, D. C., to be considered at the February 18 hearing on this project; also a copy was sent to the Virginia State Planning Board, Richmond, Va.
The CHAIRMAN. Without objection the material referred to may be inserted in the record.
cost eral CRAww. what
Mr. STEPHENSON. Thank you.
BRIEF FILED BY COUNSEL FOR J. G. KYLE AND OTHERS IN OPPOSITION TO THE CONFIRMATION OF THE REPORT OF R. E. CRUSE, DISTRICT ENGINEER, WHICH SAID REPORT RECOMMENDS THE CONSTRUCTION OF GATHRIGHT DAM AND FALLING SPRING DAM ON JACKSON RIVER IN THE STATE OF VIRGINIA AND WHICH REPORT 18 Now UNDER CONSIDERATION BY THE BOARD OF ENGINEERS FOR RIVERS AND HARBORS OF THE WAR DEPARTMENT (1) We insist that there is no authority for the building of said dams and that there is no authority given by Public Act No. 409 of the Seventy-fourth Congress and Public Act No. 738 of the Seventy-fourth Congress whereby the said district engineer is authorized to make said report.
The authority under which the War Department acts, is Public Act No. 409, Seventy-fourth Congress approved August 30, 1935, and Public Act No. 738, Seventy-fourth Congress approved June 22, 1936. The notice given for public hearing by Col. R. E. Cruse, the district engineer, cites the above acts as authority for this investigation by the Corps of Engineers of the War Department. This notice recites that the report made by the district engineer on James River, Va., "will indicate the feasibility and economic justification for the construction of local flood-protection works, and reservoirs for flood control, water-power pollution abatement and other allied purposes."
Public Act No. 409 referred to above, simply provides that the improvements of certain designated rivers, harbors, and other waterways authorized to be prosecuted, shall be prosecuted under the direction of the Secretary of War and that hereafter Federal investigations and improvements of rivers, harbors, and other waterways shall be under the direction of the Secretary of War.
In other words, there are a number of improvements authorized by this actpages 1 to 13, inclusive but the James River is not named therein. Under section 3 of this act, page 14, the Secretary of War is authorized and directed to cause preliminary examinations and surveys to be made at certain-named localities, but there is no reference to James River in this section; and further, there is no general grant of power to the War Department to make any such investigation or report under said Public Act No. 409.
As to Public Act No. 738, which was enacted in 1936, approximately 1 year after No. 409, there is a declaration of policy in section 1 setting out “that distructive floods upon the rivers of the United States upsetting orderly processes and causing loss of life and property including the erosion of lands and impairing and obstructing navigation, highways, railroads, and other channels of commerce between the States, constitutes a menace to national welfare; that it is the sense of Congress that flood control on navigable waters or their tributaries is a proper activity of the Government in cooperation with States and political subdivisions and localities thereof; that investigations and improvements of rivers and other waterways including watersheds thereof, for floodcontrol purposes, are in the interest of the general welfare; that the Federal Government should improve or participate in the improvement of navigable waters of their tributaries, including watersheds thereof for flood-control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs and if the lives and social security of the people are otherwise adversely affected.”
Section 2 provides “that, hereafter, Federal investigations and improvements of rivers and other waterways for flood control and allied purposes shall be under the jurisdiction of and shall be prosecuted by the War Department."
Section 3 of this act provides that no money appropriated under the authority of this act shall be expended on the construction of any project until the States, political subdivisions thereof, or other responsible local agencies have given assurances satisfactory to the Secretary of War that they will (1) provide without cost to United States all lands, easements, and rights-of-way necessary for the construction of the project, except as otherwise provided herein; (2) hold and save the United States free from damages due to the construction works; (3) maintain and operate all the works after completion in accordance with regulations prescribed by the Secretary of War.
Under section 6 of said act, page 25, the Secretary of War is authorized to cause preliminary examinations and surveys for flood control at certain named