Gradually the Department of Agriculture became involved in the development of water-power. The first point of contact was in the matter of forest reservations, which were under the jurisdiction of the Department of the Interior when the act of May 14, 1896 was passed. By the act of February 1, 1905 (33 Stat. L., 628), however, they were "measurably placed under the control of the Secretary of Agriculture," and it was so decided by the United States Supreme Court."

Considerable water-power control was granted to the Secretary of War by the act June 21, 1906 (34 Stat. L., 386), which provided that when "authority is granted by Congress to any persons to construct and maintain a dam for water-power or other purposes across any of the navigable waters of the United States, such dams shall not be built " until the plans have been approved by the Secretary of War and Chief of Engineers. Henceforth, the movement for a federal power commission became more crystalized as a coördinate and coöperative matter, fostered by the three executive departments which had the most to do with power sites, and advanced by certain leaders in the Congress.

Development of Water-Power Administration within the Three Executive Departments. Much of the legislation looking to the utilization of water resources was in a great measure the result of administrative agitation and executive expediency. This was especially true of the Departments of War, Interior, and Agriculture. This development began early in the national history, the first instances being in the Department of War.

In the Department of War. The earliest activities of the Department of War in the administration of water-power pertained to the control of navigable rivers. This was in fulfilment of the Constitutional mandate upon Congress "To regulate commerce with foreign nations, and among the several states " (Art. I, Sec. 8). The extent to which the War Department could be authorized to control the navigable streams, therefore, depended upon the interpretation of this clause and upon the definitions of commerce" and of "navigable streams." This was partially determined in 1824, when the Supreme Court decided" that the

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Utah Power and Light Co., vs. United States, 243 U. S. 389, 407. 57 Gibbons vs. Ogden, 9 Wheaton, 7.

word "commerce" as used in the Constitution "comprehends, and has been always understood to comprehend, navigation, within its meaning; and a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.' In 1865, the Supreme Court declared: "

Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislations of Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation.

Likewise, the connotation of "navigation "was settled in 1870, when the Supreme Court held that"

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Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

Prior

Navigation of streams as it had existed in the colonies began to encounter considerable competition on the part of the interstate railroads before the Civil War. The development of the public domain beyond the Appalachian plateau created such a demand upon the railroads for uninterrupted and quicker transportation that it became necessary to build bridges across the rivers. to 1873 Congress had exerted its commerce power accordingly, and had authorized, from time to time, the construction of a number of bridges across navigable streams. These were constructed at certain specific localities by railroad and bridge companies, subject to conditions clearly specified by Congress. These conditions aimed to prevent the bridges from injuriously modifying the navigability of the rivers over which the structures were raised. The conditions, however, differed in the various cases. There was

an appreciable lack of uniformity in the methods by which the interests of navigation were protected.

In some cases, Congress merely fixed the bridge dimensions, and provided that in case any question should arise in regard to obstruction of the free navigation of the river, the matter might be tried in a United States district court. In other cases the act required that the location of the bridge, the plans, and the specifications should be submitted to the Secretary of War, and that the structure should not be begun until the plans were approved. This was a future activity of the Federal Power Commission, and it had become the usual procedure by 1873. The work of approval that had been assigned to the Secretary of War soon devolved upon the officers of the Corps of Engineers, whose technical knowledge had become necessary as the problems of bridge architecture increased.

In his report for 1873, the Chief of Engineers, General A. A. Humphreys, revealed the growth and complications of his functions to the extent that new legislation was needed, such as was ultimately supplied by the Federal Power Commission. He asserted:

It has been found necessary to convene boards of experienced officers to examine and report upon bridge projects, and oftentimes to make detailed examinations and surveys. In discharging this duty, and also while engaged upon works for the improvement of rivers under appropriations made by Congress, it has been ascertained that bridges are in process of construction over navigable waters of the United States, under authority claimed by the companies or corporations to be derived not from specific acts authorizing the construction of bridges, but from acts granting a right of way over the lands of the United States, and acts making grants of land for the construction of railways.

There are also cases where bridges have been built, and others where bridges are in process of construction across navigable waters of the United States, without any authority or alleged authority from the United States.

It is respectfully suggested that the attention of Congress be invited to this subject, with the view to procuring such additional legislation as may be deemed necessary to secure the navigable waters of the United States against such sources of injury."

* Chief of Engineers, Annual Report, 1873, p. 63.

A further step was made toward the Federal Power Commission by the act of August 11, 1888 (25 Stat. L., 417), which involved some of the identical principles that were later embodied in the Federal Water-Power Act. It authorized the Secretary of War

to grant leases or licenses for the use of the water powers on the Muskingum River at such rate and on such conditions and for such periods of time as may seem to him just, equitable, and expedient: Provided, That the leases of licenses shall be limited to the use of the surplus water not required for navigation.

He was also empowered to grant leases for the occupation of government lands on the river " for mill-sites or for other purposes not inconsistent with the requirements of navigation." Several similar laws were enacted during two succeeding decades."

The power of the Secretary of War over the navigable waters was still further enhanced by the act of September 19, 1890 (26 Stat. L., 454). Without the permission of the Secretary of War, the building of structures of any kind that would impair navigation in any of the navigable waters of the United States, was prohibited. Furthermore, the act assumed authority over the several states by making it unlawful even to commence any such structures or to modify the course of the channel of any navigable waters of the United States under the authority of any state legislative act" until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War." This subordinate position of the states in their relation to navigable waters was again emphasized by the act of July 13, 1892 (27 Stat. L., 110).

Other needs were partially met by Congress before the end of the Spanish-American War. The act of March 3, 1899 (30 Stat. L., 1152) empowered the Secretary of War to permit the deposit of materials from mills into rivers "whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby." It also directed the Secretary of War, upon

01 See Statutes at Large: Vol. 32, p. 358; 32, p. 361; 34, p. 117; 35, p. 819; 35, p. 821; 36, p. 659; 36, p. 930; 37, p. 825.

In 1889, a French Mission made a study of the water resources of the United States. See Vetillart, La navigation aux État-Unis.

the recommendation of the Chief of Engineers, to grant permits for the temporary occupation of certain public work along such waters. This law is still in force, and it formed a substantial basis for the Federal Water-Power Act of 1920.

This act of 1899 prohibited the building of structures that would obstruct the navigation of any waters "outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War." Under this authority in 1920, action was "taken on about 2500 applications for permits for various classes of structures and operations, including jetties, wharves, bulkheads, solid filling and other reclamation works, shore protection, pipe lines and water intakes, telegraph and telephone wires and cables, log booms, fish traps and pounds, dredging for sand and gravel, dredging for channel improvement," and similar purposes.

Twenty years after the enactment of this law, the Chief of Engineers reported:

The law is of great value, since it restrains private operations undertaken with laudable purpose and innocent intent which, if not regulated and supervised by federal agencies, might endanger life and property and detract from the benefit to be obtained by the public from the free use of the navigable waters of the United States. On the other hand, it places in the hands of the officials in charge of the improvement of federal waterways a power of control which makes it possible to coördinate private enterprise and public works so far as circumstances allow.

The administration of the law requires a large amount of work, both in the department and in the district engineer offices. Each application necessitates an investigation of the locality, a study of the plans, and, in case of favorable action, the drafting of a permit embodying conditions suitable to the particular case and sufficient to protect navigation and other public interests, and, finally, a supervision of the work to see that the terms of the permit are observed. In addition, complaints against existing or proposed structures or operations in navigable waters are of frequent occurrence. The time and expense required, both in the department and the local offices, to adjust and dispose of such matters are, with rare exceptions, considerable."