Savannah River Electric Co. v. Federal Power Com'n

• Decision Date: 10 November 1947
• Docket Number: No. 5606.,5606.
• Citation: 164 F.2d 408
• Parties: SAVANNAH RIVER ELECTRIC CO. v. FEDERAL POWER COMMISSION.
• Court: U.S. Court of Appeals — Fourth Circuit

164 F.2d 408 (1947)

SAVANNAH RIVER ELECTRIC CO. v. FEDERAL POWER COMMISSION.

No. 5606.

Circuit Court of Appeals, Fourth Circuit.

November 10, 1947.

Harllee Branch, Jr., of Atlanta, Ga., (Dan MacDougald and R. S. Sams, both of Atlanta, Ga., Julian J. Willingham and Inman Curry, both of Augusta, Ga., and MacDougald, Troutman, Sams & Branch, of Atlanta, Ga., on the brief), for petitioner.

Willard W. Gatchell, Principal Atty., Federal Power Commission, of Washington, D. C. (Bradford Ross, Gen. Counsel, and John C. Mason, Atty., Federal Power Commission, both of Washington, D. C., on the brief), for respondent.

David W. Robinson, of Washington, D. C. (Edgar A. Brown, of Barnwell, S. C., on the brief), for Clark's Hill Authority of South Carolina, intervenor.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is a petition by the Savannah River Electric Company to review a decision of the Federal Power Commission which dismissed an application by the company for a license to construct a dam and hydro-electric power project at Clark Hill on the Savannah River in South Carolina and Georgia. The company filed application on August 28, 1946, for a license to construct the Clark Hill project. The commission heard evidence and found the facts, most if not all of which were matters of public record of which the court will take judicial notice, and on January 14, 1947, entered an order dismissing the application. A petition for rehearing was thereupon filed by the company again asking that it be granted a license, and this was denied on February 11th. On its petition before us the company contends that upon its application for license the commission should have made findings as to whether it was in the public interest for the project to be constructed by the company, instead of by the government, and should have made a report of such findings to Congress instead of dismissing the petition. We think that the petition is entirely without merit.

The facts are that in the year 1928 the company applied for and secured from the commission a license to construct this project. Construction was never commenced by the company, however, and in 1932, with the approval of the commission, the license was surrendered. In 1939 the commission directed a letter to the President of the United States indorsing the project and recommending its early construction by the United States; and in 1944 it directed a letter to the Chief of Engineers, United States Army, in which it expressed agreement with the report of a board of engineers that the project constituted a desirable initial step in the development of the Savannah River. This last letter was before Congress at the time of the passage of the Flood Control Act of 1944, as a part of House Document No. 657, 78th Congress, 2nd Session.

The Flood Control Act of 1944, 58 Stat. 887, authorized the construction of the Clark Hill project by the United States as the commission had recommended. That act adopted a number of projects for construction under the general provisions of the act, among others the Clark Hill project, the language with respect to which was as follows (58 Stat. at p. 894): "Savannah River Basin. The general plan for the comprehensive development of the Savannah River Basin for flood control and other purposes recommended by the Chief of Engineers in House Document Numbered 657, Seventy-eighth Congress, second session, is approved and the construction of the Clark Hill Reservoir on the Savannah River in South Carolina and Georgia, is hereby authorized substantially in accordance with the recommendations of the Chief of Engineers in that report at an estimated cost of $35,300,000."

Following the passage of the Flood Control Act of 1944, Congress passed the Deficiency Appropriations Bill of 1946, 59 Stat. 632, under which a lump sum appropriation included $1,000,000, which had been budgeted to Clark Hill; and the War Department Civil Appropriations Act approved May 2, 1946, 60 Stat. 160, under which another lump sum appropriation included $4,500,000 budgeted to this purpose. This $5,500,000 was allocated to the project by the Chief of Engineers of the Army and $1,021,000 had been expended and $991,000 committed on outstanding contracts at the time of the commission's hearing in October 1946. At that time the engineering design and the plans and specifications had been completed, arrangement had been made to advertise in November, December, and January, for construction bids on important phases of the project, and construction had been begun on the access railway and was 42% completed.

Since the hearing before the commission the order of the President freezing funds allocated to construction projects, so as to make the funds unavailable, has been modified to permit the army engineers to make additional contracts on this project up to the original allocation of $5,500,000 by the Chief of Engineers, proceedings have been commenced to condemn lands for the project and Congress has appropriated additional funds for flood control, $5,000,000 of which has been allocated...