If It's Worth a Dam, It's "Navigable Waters": A Proposed Revision of Section 3(8) of the Fpa Derived from Decisions Followed in Fpl Energy Maine Hydro Llc V. Ferc

Article excerpt

This case note discusses the navigable waters standard as set forth in section 3(8) of the Federal Power Act (FPA).1 Once a waterway is determined to be navigable, it is subject to extensive federal licensing requirements promulgated by the Federal Energy Regulatory Commission (FERC or Commission).2 Because of inconsistencies that have become apparent through FERC and court decisions, the navigable waters standard has become, to say the least, imprecise. For that reason, this note sets forth a revised definition of section 3(8) of the FPA in order to provide a more exact and consistent standard. If the proposed revisions were adopted, those entities contemplating construction of hydroelectric projects, among others, would be better able to assess their licensing requirements.

I. BACKGROUND

The history of this case is inconsistent. For example, multiple decisions by the FERC and courts - have purported to classify the Messalonskee Stream as either navigable or non-navigable waters. As demonstrated in the following text, the subjective nature of section 3(8) caused several decisions to be reversed by the former.

FPL Energy Maine Hydro LLC (FPL) is the successor in interest to Central Maine Power Company (Central Maine). In 1968, the Federal Power Commission (FPC) granted FPL a license to operate the Union Gas Project on the Messalonskee Stream (Stream). The original license expired in 1993. From 1993 until 1996, the Union Gas Project operated under annual licenses. In August 1996, as part of a licensing status examination of over thirty-six hydroelectric projects, the FERC's Office of Hydropower Licensing (OHL) conducted a navigation report on the Stream and suggested it was non-navigable, but the OHL requested comments and inquiries regarding the report to be filed within sixty days.4 Within that period, several intervening parties filed affidavits hoping to establish that the waterway was navigable.5

The acting director of the OHL reviewed the navigation report and affidavits filed by the interveners and determined the Stream was navigable waters pursuant to section 3(8).6 As a result of the director's decision, the Union Gas Project would be subject to federal licensing.7

Soon thereafter, FPL filed a request for rehearing,8 the FERC granted the request, and the Commission, on rehearing, held that the waterway was nonnavigable.9 Because of that decision, several intervening parties filed a request for rehearing and submitted affidavits hoping to establish navigability once again. The Commission allowed FPL to file an answer to the rehearing request, and also the Commission appointed an Administrative Law Judge (ALJ) to hear the case.10 After examining evidence provided by each party, the ALJ concluded that the Stream was non-navigable. Two affidavits considered by the ALJ stated that the only route of travel downstream involved a portage-"carrying of boats and supplies overland between two waterways or around an obstacle to navigation."11 The only evidence supporting navigability was an affidavit submitted by an owner of a canoe and kayak rental store, which established that vessels were rented for recreational purposes on the Stream. The problem with that affidavit, however, was that it did not establish a specific area where the recreational crafts were used.12 On July, 16 1998, the Commission reversed the holding of the ALJ13 concluding that the ALJ applied an incorrect legal standard when determining the outcome of the case, i.e., the ALJ did not consider the test canoe trips, and therefore based his determination solely on evidence of substantial use.14 FPL then filed a rehearing request to have the July 16 Commission decision reversed. Not surprisingly, the Commission issued a tolling order.15

On July 28, 1999, the Commission denied FPL's rehearing request, consequently, FPL filed a petition16 to have the issue of navigability resolved by the courts.1 The United States Court of Appeals for the District of Columbia Circuit affirmed the FERC's decision on navigability and denied the subsequent rehearing petition. …