OCR Text |
Show 103 the Chief of Engineers to use funds for the "repair, relocation, restoration, or protection" of a highway, railway, or utility when it has been or is being damaged or destroyed by reason of the operation of any dam or reservoir project under the Army's control.159 For this purpose, he may utilize funds available for the construction, maintenance, or operation of the project involved.160 Continuing Authorizations-Fishways and Future Develop- ment of Power.-Two additional general enactments merit notice here. Both constitute continuing project authoriza- tions, and both involve certain discretion in the use of funds. First, Congress in 1888 empowered the Secretary, in his discre- tion, to provide "practical and sufficient fishways" whenever improvements are found to operate as obstructions to the pass- age of fish.161 Second, in order to make possible the economical future development of water power, Congress in 1912 delegated discretionary authority to the Secretary, upon recommendation of the Chief of Engineers, to provide in the permanent parts of any authorized navigation dam "such foundations, sluices, and other works, as may be considered desirable for the future de- velopment of its water power."162 ™ Act of July 24,1946, § 9, 60 Stat. 641, 643, 33 U. S. C. 70lq. 140 Id. Specifically excluded from such protection are highways, railways, and utilities previously provided for by the Department of the Army, unless the Chief of Engineers determines that the actual damage exceeds that for which provision had previously been made. In connection with the purpose of the protection provision and the exclusion, it should be noted that the House Committee reporting the legislation indicated that, if owners or operators were assured compensation for damage resulting from extraordinary situations, there would no longer be necessity for their in- clusion of "large contingency items covering all possible damages" in their estimates when negotiating a settlement at the time of construction of the project. H. Rep. No. 2165, 79th Cong., 2d sess., p. 8 (1946). m Act of August 11,1888, § 11, 25 Stat. 400, 425, 33 U. S. C. 608. See also infra, pp. 329-330. 181 Act of July 25, 1912, § 12, 37 Stat. 201, 233, 33 U. S. C. 609. The 1945 and 1946 River and Harbor Acts provide that penstocks for future develop- ment of power shall be installed in any dam therein authorized when ap- proved by the Secretary of the Army upon the recommendation of the Chief of Engineers and of the Federal Power Commission. Act of March 2, 1945, § 2, 59 Stat. 10, 12; Act of July 24, 1946, § 1, 60 Stat. 634. See also infra, n. 199, p. 291. |