345 U.S. 153 (1953), 28, United States v. Chapman

Docket NºNo. 28
Citation345 U.S. 153, 73 S.Ct. 609, 97 L.Ed. 918
Party NameUnited States v. Chapman
Case DateMarch 16, 1953
CourtUnited States Supreme Court

Page 153

345 U.S. 153 (1953)

73 S.Ct. 609, 97 L.Ed. 918

United States



No. 28

United States Supreme Court

March 16, 1953

Argued October 22, 1952




The Corps of Engineers recommended to Congress a comprehensive plan for the development of the Roanoke River Basin for flood control, power, and other purposes, but it did not clearly recommend that all projects be constructed by the United States. The Federal Power Commission concurred in this recommendation. In the Flood Control Act of 1944, Congress approved the plan and specifically authorized two projects not at Roanoke Rapids. Subsequently, the Commission ordered issuance of a license to a private power company to construct a hydroelectric generating plant at Roanoke Rapids, N.C.


1. Petitioners, the Secretary of the Interior and an association of nonprofit rural electric cooperatives, had standing to institute this proceeding under § 313(b) of the Federal Power Act to set aside the Commission's order. Pp. 154-156.

2. Congress has not withdrawn, as to the Roanoke Rapids site, the jurisdiction of the Federal Power Commission to issue such a license. Pp. 156-172.

3. Under § 7(b) of the Federal Power Act, the Commission's concurrence in the recommendation of the Corps of Engineers did not preclude the Commission from issuing such a license. Pp. 172-174.

191 F.2d 796, affirmed.

The Federal Power Commission ordered issuance of a license to a private power company to construct a hydroelectric generating plant at Roanoke Rapids, N.C. 87 P.U.R.(N.S.) 469. The Court of Appeals denied a petition to set aside this order. 191 F.2d 796. This Court granted certiorari. 343 U.S. 941. Affirmed, p. 174.

Page 154

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

In these two cases, the Secretary of the Interior and an association of nonprofit rural electric cooperatives have challenged the authority of the Federal Power Commission to grant to the respondent power company, VEPCO, a license to construct a hydroelectric generating station at Roanoke Rapids, North Carolina. They claim that Congress, by approving a comprehensive plan set out in the Flood Control Act of 1944 for improvement of the Roanoke River Basin, has withdrawn all eleven sites proposed for development in the plan, including Roanoke Rapids, from the licensing jurisdiction of the Commission, and has reserved them for public construction. The underlying premise, that the plan approved by Congress presupposed federal development of all sites included in the plan, also underlies petitioners' other main contention

Page 155

here, that the Commission's concurrence in the plan constituted a determination by the Commission that the development of these water resources should be undertaken by the United States itself. Such a determination, they say, requires the Commission under § 7(b) of the Federal Power Act, 41 Stat. 1067, as amended, 49 Stat. 842, 16 U.S.C. § 800(b), to make investigations and submit its findings, together with appropriate recommendations, to Congress, and, in any event, bars the Commission from approving applications for private construction of the project. Petitioners unsuccessfully raised these contentions, along with attacks on the Commission's findings not pressed here, before the Court of Appeals for the Fourth Circuit, which denied their petitions to set aside the Commission's order granting a license to VEPCO. United States v. Federal Power Comm'n, 191 F.2d 796. We granted certiorari, 343 U.S. 941. The cases present questions of importance in that they involve a conflict of view between two agencies of the Government having duties in relation to the development of national water resources. Determination of the issues may affect a substantial number of important potential sites for the development of hydroelectric power. Cf. Rules Sup.Ct. 38(5)(b).

[73 S.Ct. 612] Both here and in the court below, petitioners' standing to raise these issues has been questioned. The Secretary of the Interior points to his statutory duty to act as sole marketing agent of power developed at public hydroelectric projects and not required for the operation of the project; § 5 of the Flood Control Act of 1944 directs him to transmit and dispose of such power in a manner calculated to "encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles." 58 Stat. 890, 16 U.S.C. § 825s. This provision, it is said, announces a congressional policy for the guidance of the Secretary that would

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be disturbed by the respondent company's plan; thus, a specific interest of the Secretary, in addition to his more general duties relating to the conservation and utilization of the Nation's water resources, is said to be adversely affected by the Commission's order. The REA Association, an association of cooperatives, asserts that, as an organization of consumers entitled, along with "public bodies," to a preference in sales by the Secretary under § 5, it has a substantial interest in the development of low cost power at the Roanoke Rapids site, and consequently in the kind of instrumentality, public or private, to which power development at this site is committed. Respondents say, however, that decisions of policy in the construction of power projects have been entrusted to the Commission, or, at most, also to the Secretary of the Army, under whom the Corps of Engineers performs its statutory functions of making surveys and constructing public works, and that the interests of petitioners arise only after a public project has been constructed and the Secretary of the Army has determined that there is excess power to be distributed and sold.

We hold that petitioners have standing. Differences of view, however, preclude a single opinion of the Court as to both petitioners. It would not further clarification of this complicated specialty of federal jurisdiction, the solution of whose problems is, in any event, more or less determined by the specific circumstances of individual situations, to set out the divergent grounds in support of standing in these cases.

Petitioners' main contention, that Congress has, by a series of enactments to be construed as part of an evolving assumption by the Federal Government of comprehensive authority over navigable waters, reserved the Roanoke Rapids site for public development, and so has placed it beyond the licensing power of the Federal Power Commission, requires us to consider with some particularity

Page 157

the steps by which plans for the Roanoke Rapids project have unfolded. Petitioners' contention reduces itself to the claim that the authority of the agency to which Congress has delegated the responsibility for safeguarding the public interest in the private development of power resources has been revoked pro tanto by congressional action as to this particular site.

In 1927, the Army Engineers were authorized to make a specific survey of the Roanoke River by § 1 of the Rivers and Harbors Act, 44 Stat. 1010, 1015, which "adopted and authorized" enumerated "works of improvement," including "surveys in accordance with" H.R.Doc.No. 308, 69th Cong., 1st Sess. (1926). That document, a milestone in the development of integrated federal planning for the use of the Nation's water resources, had recommended surveys of a large number of streams throughout the country, including the Roanoke River,

either for the preparation of plans for improvement to be undertaken by the Federal Government alone or in connection with private enterprise, or to secure adequate data to insure that waterway developments by private enterprise would fit into a general plan for the full utilization of the water resources of a stream.

H.R.Doc.No. 308, 69th Cong., 1st Sess. 4. The detailed survey of the Roanoke River was transmitted to Congress in 1934; in it, the Chief of Engineers stated that a comprehensive plan for navigation and power, flood control, or irrigation [73 S.Ct. 613] "is not economically justifiable at the present time," H.R.Doc.No. 65, 74th Cong., 1st Sess. 2 (1935), and concurred in the judgment of the investigating engineer that "[t]here is no justification for any Federal expenditures for either flood control or power." Id. at 53; cf. id. at 14-15.

In 1936, Congress enacted the Flood Control Act of 1936, 49 Stat. 1570, defining the public interest in flood control as follows:

It is hereby recognized that destructive

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floods upon the rivers of the United States . . . constitute 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 Federal Government . . . ; that the Federal Government should improve or participate in the improvement of navigable waters or 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 people are otherwise adversely affected.

49 Stat. 1570, 33 U.S.C. § 701a. In the same Act, the Secretary of War was authorized to continue surveys at a number of localities, including "Reservoirs in Roanoke and Tar Rivers, North Carolina."1 § 7, Act of 1936, 49 Stat. 1596. In § 6 of the Act, Congress provided that

the Government shall not be deemed to have entered upon any project for the improvement of any waterway mentioned in this Act until the project for the proposed work shall have been adopted by law.

49 Stat. 1592.

Following a destructive flood on the Roanoke River in 1940, the House Committee on Flood Control adopted a resolution requesting reappraisal of the previous reports on the Roanoke River to determine "whether any improvements in the interests of flood...

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