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It was further held that the act in question was not authorized by the clause known as the general welfare clause, which reads as follows:
The Congress shall have power to dispose of and make all needful rules and resulations respecting the territory or other property of the United States.
Chief Justice Waite held in McCready v. Virginia (94 U. S. 391):
The principle has long be settled in this Court that each State owns the beds of all tide waters within its jurisdiction. In like manner the States own the tide waters themselves and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people and the ownership is that of the people in their united sovereignty. The title thus held is subject to the paramount right of navigation, the regulation of which in respect to foreign and interstate commerce has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the State which has consequently the right in its discretion to appropriate its tide waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation. Such an appropriation is in effect nothing more than a regulation of the use by the people of their common property. The right which the people of the State thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is in fact a property right and not a mere privilege or immunity from citizenship.
STATEMENT OF HON. RICHARD M. KLEBERG A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS
Mr. VINSON. Congressman Kleberg, of Texas, desires to make a statement.
Mr. KLEBERG. Mr. Chairman and members of the committee, I represent the Fourteenth Congressional District of Texas. I am particularly interested in this bill, H. R. 2711, that the committee has under consideration because it first follows a well-established practice and in theory conforms with our form of Government. The Federal Government has for many years cooperated in educational service with the various States. My interest in this bill this morning happens to be an effort to direct the attention of the committee to an additional very important service which could be rendered under this bill in my opinion by possibly just an amendment to the language which would include in addition to navigable streams and waters, subterranean waters to be investigated by the division that is referred to in this bill, adding thereto, the subterranean waters of the Nation.
There is a great problem that occurs in many instances where the question of the interstate quality of waters would permit the Federal Government to take direct cognizance of their control and management. There are many instances where those subterranean rivers offer a water supply that is developed by wells and otherwise are affected seriously by pollution above State lines in one State, thereby affecting water supplies in the State contiguous thereto.
At all times it is my belief that the factual developments of scientific research carried on by Uncle Sam would be of inestimable benefit and should be available to the States in cooperation with the Federal Government in developing ways and means to combat pollution. I know of one instance in my State where a great artesian belt ran the serious risk of being destroyed as a source of drinking and stock water by the ill-advised operations of drillers for oil in the withdrawal of casings where salt water had come into the well and the well had to be abandoned thereby, and the hole traversed several strata of drinking water as well as salt and mineral water before reaching the oil pool below. Cases of that sort should be taken into consideration in connection with a study looking toward the development of ways and means to prevent pollution of water. Other instances have occurred where in the withdrawal of machinery and casings from wells adjacent to streams where the overflow from these wells has polluted the streams so as to destroy both the natural wildlife resources and rendering the streams unfit for stock purposes adjacent to where the overflow formed.
Mr. COLMER. The bill as now written is broad enough to cover that topic?
Mr. KLEBERG. I might in a way be somewhat at variance with my good friend from Mississippi with respect to how broad it is, but the fact is that its purposes are specified as being reducing pollution and improving sanitary conditions of navigable waters of the United States and streams and tributaries thereof. That is on page 2 of the bill. I feel that possibly the committee might in its future deliberations see fit to specifically include studies by the Public Health Service of the United States looking into the effect of pollution occurring which would affect the subterranean streams as well as some of the submarginal watertables of the country.
Mr. COLMER. I was simply looking for information. I understood that the latter part of your discussion would be covered in that.
Mr. KlEBERG. I grant you that, but taking the proposition in its entirety it seems to me, and I do not desire to take the time of the committee at length, that with the help of some studies by the committee to work out some simple amendment, it would not only authorize and make by congressional enactment all of the data already available, for instance, the Bureau of Mines and Mining, and the various divisions and biological studies where scientific facts have been developed in the United States-it would also make all of those researches available to the division of the Bureau of Public Health that is created in this bill.
I will say in conclusion, Mr. Chairman, that I feel that this particular kind of legislation is essentially constructive in nature. I feel that the Federal Government and the State governments both have a definite duty to take advantage of the opportunity of serving all of the people by developments involving scientific research which brings facts of value to the attention of all of our people, and with particular reference to flood conditions, look at that for a moment. In this bill it is possible for the Public Health Service through the developments of scientific research to render the State invaluable services in the correction of conditions incident to great floods that occur wherein, in the areas affected by these floods these regions are permeated and infected with all sorts of disease-carrying germs. As a matter of fact, there are instances that are already known to both Federal and State divisions wherein research shows that certain waters and certain rivers declared to be navigable are known to have this same condition all down the regular course of the river, and others going on down and forming part of the subterranean water supply of this country. There is a river down in my neck of the woods which flows through my district where for a distance of about 8 miles the bed of the river becomes absolutely dry and then the stream reappears about half as great in flow as that above, wherein the waters have all been found to flow into one of the subterranean rivers which form the source.
Mr. Smith. Is that an interstate river?
Mr. SMITH. I was wondering in connection with your suggestion as to subterranean streams whether you have given any thought to whether the Federal Government or Čongress would have jurisdiction over those which are purely intrastate?
Mr. KLEBERG. I have given some thought to that. I do not believe they would but I do believe that in connection with the study of many of those streams which are definitely interstate as developed by the graphs on file now or in the Bureau of Mines and Mining, it would show that in the development of certain oil fields that certain faults and slants exist which would indicate right along State lines that these subterranean rivers cross the State lines, and because of the extent of these rivers or the development, it certainly would be within the province of the Federal Government to look into it if it is applicable to these streams, whether they are intrastate in character, and the information developed would thereby be of help to the State agency in the control of this stream.
I desire to thank the committee.
The CHAIRMAN. For the information of Mr. Smith, I will state that in Texas it is impossible to find an interstate stream there because we have several rivers eight or nine hundred miles long entirely within the State.
Mr. Culkin. Some of the rivers even flow upside down.
Mr. KLEBERG. In connection with the chairman's statement, of course, the State of Texas has a very different picture from the other States primarily due to its relationship to the Union, which is by a treaty of annexation, making its circumstances different from all other States, and the State of Texas has, of course, the control of all of its own waters.
Mr. CULKIN. May I call your attention to section 3, which seems to cover this point. Section 3 of the Vinson bill gives authority to the Surgeon General with the cooperation of State health authorities to conduct investigations and make surveys of specific problems of water pollution.
Mr. KLEBERG. That might cover it, provided the section of the bill would carry in it, including navigable streams and all systems of submarginal water supplies.
Mr. ČULKIN. This is a pretty broad question.
The CHAIRMAN. That may be getting into something that belongs to another committee, possibly. We deal with navigable waters.
Mr. COLDEN. Has not the State of Texas legislated on abandoned oil wells?
Mr. KLEBERG. It has to a certain extent. It has passed some very good laws but in many instances those laws do not go far enough to reach the problem effectively.
Mr. COLDEN. Have you any beach pollution in the State of Texas caused from either oil or sewage?
Mr. KLEBERG. Yes. As I stated before I am very much in favor of this bill, more in favor of this bill than I am opposed to the one passed in the Senate, heretofore referred to, which bill, however, I am opposed to. I desire to make that statement.
The CHAIRMAN. We also have a State law there requiring municipalities on the rivers to have adequate sewage disposal plants in operation. Nearly all of the cities have something of that kind which are more or less efficient. I do know as to that last feature of it.
Mr. KLEBERG. I desire to thank the committee for this opportunity and I hope the committee will consider the proposition of whether they can set it out more definitely in this bill than it is at present. Whether it is or is not, I am for the bill in its present form.
The CHAIRMAN. We will be glad to take your request under consideration and we thank you for your statement.
Mr. VINSON. Judge Otis Bland, of Virginia, a veteran in the fight against stream pollution, is presented at this time.
STATEMENT OF HON. SCHUYLER OTIS BLAND, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF VIRGINIA
Mr. BLAND. Mr. Chairman, and gentlemen of the committee, I appear in a triple capacity as a Member of Congress from the First District of Virginia, as Member of the Committee on Wildlife, as represented by Congressman Robinson, who was here yesterday, and as chairman of the Committee on Merchant Marine and Fisheries having jurisdiction of fisheries legislation and matters for the promotion of fisheries.
I have been following this subject for about 18 years. As I recall, , there was a bill that came before this committee probably in the year 1918 or 1919.
The CHAIRMAN. Right after the World War.
Mr. Bland. Right after the World War. It was broad in scope and for several years similar bills were considered by this committee. I expect Mr. McGann remembers them. My recollection is that those bills received hearings extending through periods sometimes of a week or more. The tables were filled with samples of effluvia, waste, chemical treatments, and all such matters. As a result of the hearings on one of those bills that I attended it is my recollection that there was passed the law that is on the statute books now, strengthening the arms of the War Department in preventing deposits of oil and waste from steamers in harbors, and at sea. The reason we did not accomplish more was because the proponents of the several bills insisted upon drastic penal provisions in the bills and House provisions aroused bitter opposition. I was compelled, interested as I am and desirous that legislation of this kind shall be passed, to appear at the request of the city from which I come in opposition to one of the bills although the city felt that something should be done. The trouble was that the bill went so far that we felt that an automobile could not be washed in a garage without the possibility of heavy penalties because of the seeping of oil into the sewers and thence into navigable streams.
That has been the reason why legislation has not been written upon the books. The district which I represent is vitally interested in correcting pollution. Just above the mouth of the James River are probably some of the most valuable public oyster beds in the United States, and I may say in the world. They are natural oyster beds. I think that John Smith in his history claimed that when he came over here oyster beds in the Hampton Roads ebbed bare at low tide.
Mr. Smith. We have some fine oyster beds in the State of Washington. Mr. BLAND. I think that is probably true, I have taken Captain Smith's report with a grain of salt because somewhere else he spoke of catching fish in the frying pan.
The CHAIRMAN. I believe they claim he caught some with his hands.
Mr. Bland. I do not intend, however, to impugn his veracity. The representatives of the State Health Department of Virginia, if they have not yet testified, are present, and they will testify that some of the most valuable oyster beds in the Hampton Roads area have been condemned by the Public Health Service, and the oysters planted there must be transplanted to other waters for purification. I fear that the pollution will extend up the James River and affect these oyster rocks. Those natural beds are known as rocks. Those oysters, are taken largely for transplanting purposes, but large quantities are also taken for marketing purposes. So important and vital has been the issue to that community that a few years ago a very careful study was made by the Public Health Service. That was the report that was referred to by Dr. Pfeifer yesterday. The State of Virginia has created the Hampton Roads Pollution Commission for the purpose of dealing with the subject. We have there, cities that are not able to take care of this pollution problem themselves. They have grown up from small communities when it was thought proper to deliver the sewage into the water. I refer to the cities of Norfolk, Newport News, Hampton, Suffolk. These cities empty their sewage into the Hampton Roads or its tributaries. In addition we have the Federal Government itself as a contributary factor. There are the army post at Fort Monroe, the Army post at Langley Field, and the naval base across the water at Hampton Roads. In order to reach a solution, it is necessary that the Federal Government participate. It has been estimated that for a proper plant to take care of the situation there would be required something like $8,000,000.
In another section in my district, and I merely mention these things because they are illustrative, I have seen one of the largest, one of the most valuable, productive areas of oysters so contaminated or affected that it is now practically nil. The York River is an intrastate stream, at the head of which is a pulp mill. I have no charge or complaint to make against those people. It is a financial and economic problem with them. A study is being made by the United States Government today of the effect of that pollution upon the waters of the York River. It will probably be concluded by July 1 of this year. It has been in progress for several months. When I came to Congress in 1918, I had the Federal Government undertake a study of the same waters, but due to the lack of appropriation, it was impossible to complete the study that was required. As a result a Scotch verdict was returned. Within the last few months, as chairman of the Committee on Merchant Marine and Fisheries, I attended a conference of fishery representatives in Atlantic City, N. J. There were present the State heads of fishery departments all along the Atlantic coast. A conference of these representatives considered the depletion of the shad along the Atlantic coast. I was amazed at the records that were presented there. Old records had been found by Mr. Swepson Earle, from Maryland, who is connected now with the Bureau of Fisheries, showing the run of shad as far back as 1820. The records showed how year by year, partly due to pollution, partly probably to excessive catch, and