Whether a Particular Stream in Maine is Navigable and Subject to FERC Jurisdiction
FPL Maine Hydro LLC v. FERC, U.S. Ct. of App. for the District of Columbia 287 F.3d. 1151 (2002).
The United States Court of Appeals for the District of Columbia has held that a portion of the Messalonskee Stream in Maine (“the Stream”) is a navigable water of the United States, with the result that the Federal Energy Regulatory Commission (“FERC”) has jurisdiction over the four hydroelectric generating stations at issue in this case. The Court reached this decision despite the fact that the Stream has not been used for commerce or even recreational boating or canoeing. Indeed, unlike most waterways in Maine, the Stream was never used to float logs downstream. The Stream is shallow and obstructed by islands, boulders and “rips.” When the most downstream station is not releasing water to generate hydroelectric power, the Stream is virtually impassable by canoe or boat because its depth is only six to eight inches. Even when a station is generating, a canoe has difficulty passing the islands because the Stream is quite shallow and obstructed by rocks. On the basis of four canoeing trips performed for the FERC hearing with mixed results, FERC concluded that the Stream is a navigable waterway of the United States. This appeal followed. FPL contended that “[t]he effect of the Order’s standard is to turn any tributary of a navigable stream on which a canoe can be floated over limited circumstances into a jurisdictional stream for purposes of the FPA. . . . The Order’s legal standard thus expands the Commission’s jurisdiction far beyond the limits of Congress’ intent and beyond the precedent established in earlier cases.” NELF filed an amicus brief on behalf of itself and Clifton Power Corporation, a South Carolina power producer facing similar issues. The amicus brief argued that FERC’s order expands its jurisdiction over waterways that have never been used for recreation or commerce and waterways that are not suitable for use in commerce. FERC’s expansive notion of navigability will, therefore, increase the costs of operating all hydroelectric generating facilities that will now be subject to FERC’s jurisdiction and its extensive and expensive licensing proceedings. While acknowledging “that the evidence of navigability is not overwhelming,” the Court found sufficient evidence to accord deference to the FERC decision and uphold it.