ELR Citation: ELR 21393
No(s). 91-1135 (D.C. Cir. Jul 7, 1992)

The court holds that the Federal Energy Regulatory Commission (FERC) properly exercised its licensing jurisdiction over a hydroelectric project on a small stream around which commerce must portage in order to connect an upstream lake and a downstream river, because the stream is only an interruption in an otherwise continuous interstate waterway within the Federal Power Act's definition of "navigable waters." FERC issued its order after finding jurisdiction over the hydroelectric project based on the agency's navigability report, which chronicled the stream's historical use by Native Americans for trade, later by settlers for lumbering operations, and as late as 1973 for a canoe race. The court holds that ample evidence exists to support FERC's finding of navigability, even if it is arguably accepted that the stream is itself a discrete, non-navigable body of water. The evidence shows that for over a century, logs harvested around the lake were floated to the head of the stream and either delivered to the mills located on the stream's banks or portaged to the river below, and that logs or products made from them continued down river to the Atlantic Ocean where they entered into interstate and international trade. For purposes of FERC's jurisdiction, navigability does not turn on whether a short portage is advisable or required, but on whether such a portage was or is feasible. Here, such portages are eminently feasible, and were commonly used. Moreover, the court holds that even if the stream may be properly considered a body of water distinct from the river below, the U.S. Supreme Court has ruled that waterways are navigable if they form in their ordinary condition by themselves, or by uniting with other waters, a continuous highway over which commerce is or may be carried on with other states or foreign countries.

Counsel for Petitioner
Donald H. Clarke
Wilkinson, Barker, Knauer & Quinn
1735 New York Ave. NW, Washington DC 20006
(202) 783-4141

Counsel for Respondent
Jerome M. Feit, Solicitor
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0177

BEFORE BUCKLEY, HENDERSON, and RANDOLPH, Circuit Judges.