Georgia Power Co. v. Federal Power Commission

• Decision Date: 02 February 1946
• Docket Number: No. 11104.,11104.
• Citation: 152 F.2d 908
• Parties: GEORGIA POWER CO. v. FEDERAL POWER COMMISSION.
• Court: U.S. Court of Appeals — Fifth Circuit

152 F.2d 908 (1946)

GEORGIA POWER CO. v. FEDERAL POWER COMMISSION.

No. 11104.

Circuit Court of Appeals, Fifth Circuit.

January 7, 1946.

Rehearing Denied February 2, 1946.

Dan MacDougald and P. S. Arkwright, Jr., both of Atlanta, Ga., and Wallace Miller, of Macon, Ga., for petitioner.

Louis W. McKernan and Howard E. Wahrenbrock, Asst. Gen. Counsel, Federal Power Commission, of Washington, D. C. (Willard W. Gatchell, of counsel), for respondent.

Eugene Cook, Atty. Gen. of Georgia, for amicus curiae.

Before HOLMES, McCORD, and LEE, Circuit Judges.

LEE, Circuit Judge.

The Georgia Power Company, proposing to construct a hydro-electric power plant at a dam to be built by it on the Oconee River in Georgia, filed a declaration of intention with the Federal Power Commission as required by the Federal Power Act, 16 U.S.C.A. 817. Acting thereon, the Commission held public hearings in Washington and Atlanta to determine whether the interests of interstate and foreign commerce would be affected by the proposed project, and, if so, what navigable waters of the United States would be affected. Following these hearings the Commission found the ultimate facts to be (1) that the Oconee River from Milledgeville, Georgia (four miles below the site of the proposed project), to its mouth, and the Altamaha River into which it flows, are navigable; (2) that the two connect with the Intracoastal Canal and the Atlantic Ocean to form navigable waters of the United States, used and capable of use in the transportation of persons and property in interstate and foreign commerce; and (3) that due to the relation between the storage capacity of the proposed reservoir and the available stream flow the operation of the power plant would both fluctuate and reduce the navigable depths of the water below the dam and would thus affect navigation. From this the Commission concluded that interstate commerce would be affected by the construction of the proposed project, and ordered that the power company apply for and accept a license in accordance with the terms of the Federal Power Act and the rules and regulations of the Commission thereunder.

The power company, here seeking a reversal of this order, contends that the primary facts do not support the finding that the Oconee River is a navigable water of the United States or the finding that the interests of interstate commerce would be affected by the construction of the proposed project. It is also insisted that the provisions of the Federal Power Act, 16 U.S. C.A. § 791a et seq., do not apply to a project that is located on a nonavigable part of a stream, or, if the Act was intended to regulate such matters, it is to that extent unconstitutional.

The pertinent primary facts found by the Commission are substantially as follows: The Oconee River rises in Northeast Georgia, in the vicinity of Gainesville, and flows in a general southeasterly direction to Milledgeville below the proposed dam site, where it drops to the coastal plain. One hundred and forty-five miles below Milledgeville it joins the Ocmulgee River at what is known as the Forks, and thus forms the Altamaha River, which flows 137 miles in a southeasterly direction, emptying into the Atlantic Ocean. The Oconee River drains an area of 5,318 square miles, of which 2,900 square miles lie above Milledgeville. From Milledgeville to the Forks, the average slope is slightly more than one foot per mile and there are no falls or rapids. While the Altamaha River has been used the more extensively, both the Altamaha and the Oconee Rivers have been used for navigation over a long period of years by light draft or other river craft. Navigation below Milledgeville has been the subject of congressional and state action, and funds have been spent in the improvement of navigation. A navigation datum plane corresponding to the low water flow during a ten-year period was established by the Army Engineers following a careful resurvey of the river, and the river depth over an average channel width of 60 feet was referenced to this datum plane. Soundings were taken disclosing that in the 145-mile stretch from Milledgeville to the Forks there were only 6.7 miles which had a depth of less than 3 feet below the lowwater reference plane, 5 miles thereof being in the 39-mile stretch between Milledgeville and the Central of Georgia Railroad Bridge.

While petitioner attempted to disparage the use made of the river for navigation between Milledgeville and Dublin (located about half way between Milledgeville and the mouth of the Oconee River), the most that the evidence revealed was that a greater use was made of the Oconee below Dublin than above. The Commission found nothing in the record that would justify the conclusion that the River was navigable below Dublin and non-navigable above that point; to the contrary, it found that the physical and hydraulic characteristics of the two sections were not essentially different. With respect to the past history of the river, the Commission said:

"In the year 1803, some 37 years before the first railroad was completed in Georgia, and when transportation by wagon and stagecoach over the poor roads of that period was slow and difficult, the State Legislature located the town of Milledgeville `at or near the head of navigation on the Oconee River.'

"In December 1804, the Legislature agreed to and approved of the town site, as theretofore fixed upon and laid off pursuant to the Act of May 11, 1803, and declared the town of Milledgeville `to be the permanent seat of Government of this State.' Milledgeville was the capital of Georgia for 63 years, from 1804 to 1867. That the advantage of water transportation was one of the controlling considerations in the location of the State capital on the Oconee River can hardly be gainsaid.

"The State of Georgia spent some $45,000 for navigation improvements above Dublin, and private navigation companies also participated in the improvement of the river. By the time Congress commenced appropriating money for improvement of the river (June 18, 1878), railroads had been constructed and channels of commerce were fairly well established in the region.

"The influence of shipping points and established transportation routes upon development of the Oconee River as a navigation route is evidenced by the emphasis placed upon improvement of the section of the river between Dublin and the Central of Georgia Railroad Bridge, some 29 miles upstream. However, for more than 50 years Congress has consistently treated the entire river below Milledgeville as navigable and as susceptible of increased navigation use. Furthermore, the many reports submitted to Congress by the Corps of Engineers, U. S. Army, present the views of these navigation experts to the effect that the river is suitable for navigation use up to Milledgeville, and such reports contain impressive records of the volume of commerce which has been handled not only on the Oconee River but also on the Altamaha. In addition to use by steamboats and other craft, the record shows that the river has been used for rafting.

"Declarant regards the present lack of commerce and alleged lack of prospects for profitable commerce on the Oconee River as indicative of conditions preventing navigation, but neither lack of commercial traffic nor unprofitable traffic operations is controlling as to navigability. On the basis of the long record of actual use, the assertion of jurisdiction by Congress during the past 66 years, and more particularly during the past 54 years, and the testimony as to suitability of the river for navigation, we hold that the Oconee River is navigable from Milledgeville to its mouth, and that the Oconee and Altamaha Rivers form a navigable water of the United States from Milledgeville to the sea, over which persons and property can be and have been carried in interstate commerce."

The project which petitioner proposed to construct will consist of a dam about 100 feet high across the Oconee River, 4.3 miles upstream from Milledgeville; a hydro-electric power plant at the dam, with two generating units of equal capacity to operate under a maximum power head of 92 feet; and a reservoir with a gross capacity of 294,000 acre-feet...