The Washington times., 1920-10-10


The act evidently was drafted not
BY lawyers but BY engineers. and pro-
visions dealing with fundamental
language Of the enginssr and account
ant While this may have the Ad-
vantage of being. or appearing TO be.
scientific, IL may. nevsrthsiess. when
subjected 10 the inevitable judicial
'--t. give unexpected. IL not unhappy.
-. The bill was prepared -un-
-. The direction OF" the three s4crs-
tAriss who are TO CONSTITUTES the com
mission. and 10 represented ~ OK
pressing their views. I must think.
since two Of them are known BY me
to be experienced and akiliful iswyerA
that the work had onlyLtheir casual
supervision This Is evidence not only
In the art OF the draftsmanship. but
In the further fact that on the hear
iags The secretaries could not agree
as TO the meaning of the. bin In sew
eral OF It's vastly important provisions.
Any organic cot must of necessity,
leave much In doubt and open TO con-
struction and much to be supplied by
discretion But I apprehend that this
legislation, both In respect TO the
powers conferred upon the adminis-
trative authorities and Of tho rights
psciaily difficult % keep under the
finger. 81
A lawyer will be struck q once ~
the dozen-line definition of 'navigAble
waters" That definition determines
In large part the scope of application
OF the act and was intended. Of course.
to make that primal matter plain.
The Jurisdiction of the act In its
navigable water expect depends upon
the question whether or not the pro-
posed development Is in. or across, or
along. or upon. or substantially eff
fects. q navigable water. Now the
supreme court HIS defined q navigable
water of the United States. The act,
however. Is not content with that de-
finition but composes one of it's own.
The question is. does the definition
of the act mean the same thing as
the established judicial definition and
venture out upon tho doubtful I'M
dertaking of clarifying the judicial
definition 50 as to withhold the APP
plication of tho act from some rivers
which are navigable or TO extend II
to some that are not naviEabie? BY
presumption at least something diff
ferent must have been meant. though
nobody can say what. In some Of it's
composite features. the legislative de-
finition appears to be q restriction
OF the judicial def milton, and in others
il is clearly an extension. as, accord
ing to the act. the mere recommends
ton by the chief of engineers. for
instance, or by the commission or any
other Governmental authority. that
a non-navigable water ought to DO
improved by Congress ipso facto
makes such non-navigable stream
navigable. OF course. courts will be
heard upon such = question.
DEFINES "NAvIGABLE.-
Those seeking Federal permits or
licenses may be surprised 1t the
comprehensive views Of Federal de-
partments as to What constitutes .
navigable water OF the United States
as the basis of Federal Jurisdiction.
and there il room In the act for 4
full Indulgence Of that disposition. Il
will not be ut all difficult for the
administrative authorities. II pgedisposed
to a general assertion of power. to dis
cover in the act the basis for the
adoption Of what Is commonly known
as the unit rule" according to which
a stream navigable in any reach 10
to be regarded ~ navigable from
it's mouth to its very source. The
bill in effect provides that any pro-
posed power development wherever
and on whatever stream. falls under
Federal Jurisdiction II the commission
finds it's construction would affect in
terstate or foreign commerce. which
at least is but another way of saying
IL 1t affects the navigable capacity OF
navigable stream At any place.
The decisions of the Federal courts,
including the Supreme Court, have
approved a very wide Federal juris-
diction over dams and diversions far
from navigation on the theory that
they affected" the navigable ca
pacity far distanct. The commission
necessarily has large powers and the
act gives ample room for broad
construction; il would not be sur
prising to find an assertion OF Fed
eral power on the uppermost reaches
of streams to the practical exclusion
81 70 ntb