Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-03-08

s-uusor investigation II shall Ind THAT
the Interests Of Interstate or foreign
commerce would be affected by such
proposed construction. such person
shall not proceed viii. such con-
structfon until faei shall have re-
ceived license under the provisions
of this Act In the same place II Is
further provided: If the Commission
shah not 80 find, and il no public
lands or reservations are affected
permission is hereby granted 10 con-
struct such dam or other project
works in such stream upon conph-
ance with State laws"
The test as 10 whether any stream
IS q navigabie water of the United
States Is found in it's nayigable ca
pacfty. Those rivers are nayiEaSle
rivers in law which are navfglble
rivers in fact. and they are nav{ga-
BILE in fact when they are used. or
are susceptible. of being used. in their
ordinary condition as highways for
commerce: and they constitute navi
gable waters OF the United States
within the meaning OF the acts of
Congress. in conSraiistinction from
where they form IN their ordinary
conditions by themselves. or by unit
ing with other waters ! continuous
highway over which commerce may
be carried on with other nations or
foreign countries in the customary
modes in which such commerce IS
conducted by water. The commerce
may be Of the crudez. kind. and may
include rats or floating logs, where
there is commerce Of that character,
| understand from, your statement
that these rivers are nayigable for
driving logs and for small boats and
that this navigabIe condition con-
tinues TO the point of confluence with
the St John River along the liter
national boundary. ard further, that
the St John River is q navigable riv-
er susceptible OF being used as a
channel OF commerce an con-
strained to the view that, in the Iignr
OF the information you present. thess
streams must be regarded as naTi-
gable waters of the United States
within the meaning Of that term as
used in the decisions, and also within
the definition given in the Federal
Water Power Act The test, as al
ready stated. is whether the stream
! is susceptible OF use in Interstate
are now navigable for driving logs
and for small boats, and that on some
of the rivers pulpwood is carried
. thereon to certain points, although
/ taken out before reaching the St.
F., John River. l understand that such
streams are susceptible OF being used
/ for commerce of TIT character be-
/ tween the United States and Canada;
and it seems clear that they must be
/ regarded as navigable waters OF the
! United States and as such within the
! Jurisdiction OF the Federal Power
Commission. However, as already
indicated, section % Of the Federal
Water Power Act provides for a
method Of having this question de-
/ termined by fling q declaration Of
! intention with the Federal Power
Commission. Where such declaration
! is filed il is the practice to refer the
matter to the Chief of Engineers,
who will have the question in~esti-
gated by the Engineer officer having
! charge of the locality. / Think this
procedure should be followed where
! there is any doubt as to the status Of
a stream.
/ The foregoing discussion concerns
| the question OF navigabIlity Wheth-
er the Federal Power Commission
! would have jurisdiction of naviga-
BILE stream would depend upon wheth-
er the proposed construction involves
the development CT water power. If
the proposed dam was merely for the
purpose Of improving the river in
connection with log driving ard no
power was proposed to be developed
! the Federal Power Commission would
| be without Jurisdiction and the mat
ter would come within the scope of
! the jurisdiction of the War Depart
ment under the Act of March 3, 1899
! go Stat, 1151, which prohibits the
creation of any unauthorized obStruc-
ton to the navigable capacity Of any
| of the waters of the United States.
Very truly yours,
o. G. MERRILL,