[Federal Register Volume 61, Number 164 (Thursday, August 22, 1996)]
[Notices]
[Pages 43350-43351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21382]


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DEPARTMENT OF ENERGY
[Project Nos. 2555; 2556; 2557; 2559]


Kennebec Water District and Central Maine Power Company; Notice 
of Availability of Navigability Report for the Messalonskee Stream, 
Request for Comments, and Notice of Pending Jurisdictional Inquiry

August 16, 1996.
    Kennebec Water District and Central Maine Power Company filed 
applications for subsequent licenses to continue operating Automatic 
Project No. 2555, Union Gas Project No. 2556, Rice Rips Project No. 
2557, and Oakland Project No. 2559. The projects are located on the 
Messalonskee Stream near the city of Waterville, Kennebec County, 
Maine. As part of its review of these relicense applications, the 
Commission staff is investigating the jurisdictional status of the 
projects and has prepared a navigability report for the Messalonskee 
Stream. The navigability report concludes that the Messalonskee Stream 
is not navigable in the vicinity of the projects. If the Commission 
accepts the staff's conclusions regarding navigability, the likely 
outcome will be a Commission determination that the projects are not 
required to be licensed pursuant to Section 23(b)(1) of the Federal 
Power Act (FPA). Because this determination may affect the resolution 
of matters at issue in the relicensing proceedings, all parties and 
interested persons are being given notice of the pending jurisdictional 
inquiry and an opportunity to comment on the navigability report. 
Comments may be filed within 30 days of the above date.

Jurisdiction

    The Commission recently explained its licensing jurisdiction as 
follows: \1\

    \1\ Swanton Village, Vermont, 70 FERC para. 61,325 at pp. 
61,992-93 (1995) (citations omitted). See Cooley v. FERC, 843 F.2d 
1464, 1471 (D.C. Cir. 1988), cert. denied, 109 S.CT. 327 (1988).
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    Under the FPA, the Commission has two types of licensing 
jurisdiction: permissive and mandatory. Permissive licensing is 
authorized rather than required, and is governed by Section 4(e) of 
the FPA. Mandatory licensing is governed by Section 23(b)(1) of the 
FPA, which prohibits the unlicensed construction and operation of 
certain hydroelectric projects Thus, it is possible for a voluntary 
applicant to obtain a license under Section 4(e) of the FPA for a 
project that would not require a license under Section 23(b)(1).
    Under Section 23(b)(1) of the FPA, a license is required for a 
hydroelectric project if it: (1) is located on ``navigable waters of 
the United States''; (2) occupies lands or reservations of the 
United States; (3) uses the surplus water or water power from a 
government dam; or (4) is located on a non-navigable Commerce Clause 
stream, affects the interests of interstate or foreign commerce, and 
has undergone construction or major modification after August 26, 
1935.\2\ If those conditions are not met, Section 4(e) of the FPA 
would permit licensing of a hydroelectric project in response to a 
voluntary application if the project is located on a Commerce Clause 
water.

    \2\ See Farmington River Power Co. v. Federal Power Commission, 
455 F.2d 86 (2d Cir. 1972).
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    The Commission staff has determined that the Messalonskee Stream 
projects would not be located on federal lands or make use of a 
government dam. Therefore, if licensing is required depends on whether 
conditions (1) or (4) above are met.
    Regarding (4) above, the Commission staff has concluded that the 
Messalonskee Stream projects are located on a non-navigable Commerce 
Clause stream within the meaning of Section 23(b)(1) of the FPA.\3\ 
Because

[[Page 43351]]

the Messalonskee Stream projects generate power for the interstate 
electric grid, the project affects the interests of interstate commerce 
within the meaning of Section 23(b)(1).\4\ However, the projects were 
constructed between 1918 and 1924, and the Commission staff has found 
no evidence of any significant construction or major modification of 
the projects after 1935.
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    \3\ The Messalonskee Stream flows into the navigable Kennebec 
River. It is well-settled that Commerce Clause streams include the 
headwaters and tributaries of navigable rivers. See 70 FERC para. 
61,325 at p. 61,994.
    \4\ See Federal Power Commission v. Union Electric Co. (``Taum 
Sauk''), 381 U.S. 90, 97 (1965).
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Navigability

    In these circumstances, if licensing is required depends on whether 
the Messalonskee Stream projects are located on a ``navigable river of 
the United States.'' The staff's navigability river of the United 
States.'' The staff's navigability report concludes that the 
Messalonskee Stream is not navigable in the vicinity of the four 
Messalonskee Stream projects. It finds that, although recreational 
boaters use portions of the Messalonskee Stream in a continuous manner, 
from above, past and below the project sites. The staff's navigability 
report finds no evidence that the Messalonskee Stream, from the project 
sites to the Kennebec River, was ever used or suitable for use for the 
transportation of persons or property in interstate or foreign 
commerce.
    If licensing is not required, a hydroelectric licensee may, 
following expiration of its original license, withdraw its relicense 
application or reject a new or subsequent license and continue to 
operate the project without a license under the FPA, subject only to 
whatever other federal, state, or local laws may be applicable.\5\
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    \5\ See Pennsylvania Electric Co., 56 FERC para. 61,435 (1991) 
(hydroelectric licensee with a voluntary license under Section 4(e) 
of the FPA need not file a relicense application and may continue 
operating without a license following expiration of the original 
license).
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    Comments are invited on the staff's navigability report. If the 
Commission accepts the staff's conclusions regarding navigability, the 
likely outcome will be a Commission determination that the Messalonskee 
Stream projects are not required to be licensed under Section 23(b)(1) 
of the FPA.
    Concurrent with publication of this notice, all persons whose names 
appear on the official service list for the Central Maine and Kennebec 
Water District relicensing proceedings will receive a copy of the 
navigability report. Additional copies are available for review in the 
Public Reference Branch, Room 2A, of the Commission's offices at 888 
First Street, N.E., Washington, D.C. 20426. Comments should be filed 
within 30 days of the above date, and should reference Projects No. 
2555, 2556, 2557, and 2559. For further information, please contact 
John Blair at (202) 219-2845.
Lois D. Cashell,
Secretary.
[FR Doc. 96-21382 Filed 8-21-96; 8:45 am]
BILLING CODE 6717-01-M