Farmington River Power Co. v. FEDERAL POWER COM'N, No. 352

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: ANDERSON, OAKES and TIMBERS, Circuit
• Citation: 455 F.2d 86
• Parties: The FARMINGTON RIVER POWER COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
• Decision Date: 20 January 1972
• Docket Number: Docket 71-1183.,No. 352

455 F.2d 86 (1972)

The FARMINGTON RIVER POWER COMPANY, Petitioner,
v.
FEDERAL POWER COMMISSION, Respondent.

No. 352, Docket 71-1183.

United States Court of Appeals, Second Circuit.

Argued December 7, 1971.

Decided January 20, 1972.

Michael J. Dorney, New Haven, Conn. (James W. Cooper, and Tyler, Cooper; Grant, Bowerman & Keefe, New Haven, Conn., on the brief), for petitioner.

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J. Richard Tiano, Asst. Sol., F. P. C., Washington, D. C. (Gordon Gooch, Gen. Counsel, Leo E. Forquer, Sol., and Charles K. Barrow, F. P. C., Washington, D. C., on the brief), for respondent.

Before ANDERSON, OAKES and TIMBERS, Circuit Judges.

ROBERT P. ANDERSON, Circuit Judge:

The Farmington River Power Company (Farmington), a wholly-owned subsidiary of the Stanley Works of New Britain, Connecticut, operates a hydro-electric facility on the Farmington River in Rainbow, Connecticut which provides electrical power to its parent corporation. The project, consisting of a 400-foot long masonry dam and two 5000 kva generators, was constructed in 1925 and remains essentially unchanged today. The Farmington River, as stipulated by the parties, is nonnavigable.

After being notified by the Federal Power Commission (Commission) that it was obliged to obtain a license for its continued use of the dam, Farmington filed an incomplete license application under protest on March 1, 1966. The Presiding Examiner's Initial Decision of September 4, 1969, affirmed by the Commission November 12, 1970, found that Farmington was required to obtain a license. We reverse that determination.

The issue presented in this case of first impression concerns the statutory construction of § 23 of the Federal Water Power Act of 1920¹ and § 23(b) of the 1935 amendments² thereto.

455 F.2d 88

Although Farmington concedes that if it had constructed the dam after 1935, a license would have been required, it asserts that a license was not and is not required for a dam built prior to 1935 across a nonnavigable stream.

During the course of the litigation, the Commission has presented several theories in support of its position. In the initial hearing below, the Commission staff did not rely upon either § 23 of the 1920 Act nor amended § 23(b), but instead argued that § 4(g),³ enacted in 1935, provided it with the requisite authority to require a license. This contention, however, was rejected by both the Examiner and the Commission. The Presiding Examiner rested his decision on the ground that § 23(b) was to be retroactively applied to pre-1935 cases, while the Commission, rejecting the retroactive theory, claimed that the original § 23 was sufficient. In reviewing the Commission's decision there are, therefore, two basic questions to be resolved: was Farmington required to be licensed under the 1920 Act and, if not, do the 1935 amendments have retroactive effect?

The main thrust of the Federal Water Power Act of 1920 was to establish the Federal Power Commission and to give it certain powers, including § 4(d),⁴ the authority to issue licenses for construction of projects in the navigable waters of the United States. Under the Rivers and Harbors Appropriation Act of 1899,⁵ Congress had prohibited making any obstruction in navigable waters without its consent, and § 4(d) of the 1920 Act provided a convenient way of obtaining that permission. There was nothing in the 1920 Act, however, except for an ambiguous reference in § 23 to be discussed below, that required anyone to get a license at all before constructing a dam or other obstruction across a stream. Any prohibitions then in the law were contained in the 1899 Act.

Section 23 of the 1920 Act provided that any person who intended to construct any project in nonnavigable waters could, in his discretion, file a declaration of this intention with the Commission. The Commission would then make an investigation of the proposed construction to determine if the interests of interstate or foreign commerce would be affected; if so, no construction could go forward until a license had issued.

This section, which began as a Senate amendment to the original bill, was accepted by the House on the recommendation of the Conference Committee that

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"this amendment seeks to prescribe how a stream of doubtful navigability may be determined as within the provisions of the law. . . . "⁶ There has long been wide acceptance by the courts,⁷ the commentators⁸ and the Commission itself⁹ of the conclusion that § 23 was designed merely to provide a discretionary method whereby a person could determine whether or not his proposed construction was on navigable waters and therefore subject to the provisions of the Rivers and Harbors Act of 1899

Because its dam was across nonnavigable waters, Farmington did not run afoul of the 1899 Act; and, because it chose not to file a declaration of intention under § 23, the Commission had no power to determine whether or not the project would affect interstate commerce and therefore require a license.

The Commission's insistence that the 1920 Act can now be read to have required a license on and after its passage is groundless and completely untenable.¹⁰ It is tantamount to the assertion that because Congress gave the Commission jurisdiction to issue licenses on voluntary application by the one undertaking such a project on a nonnavigable stream,¹¹ it also gave the Commission the power to make such licenses mandatory. Yet, there is not a word in either the statute itself or its legislative history¹² which even implies that it would be illegal for one who had made no discretionary filing to maintain an unlicensed project on a nonnavigable stream. In trying to avoid the clear wording of § 23 that one could in his discretion file a declaration of intention, the Commission draws upon Federal Power Commission v. Union Electric Company, 381 U.S. 90, 85 S.Ct. 1253, 14 L.Ed.2d 239 (1965) (the Taum Sauk decision), for the proposition that filing and licensing requirements are two separate items. While it is true that the Court in Taum Sauk, in a completely different context, drew a distinction between filing and licensing requirements, it also

455 F.2d 90

said that prior to 1935, one could decline a file a declaration of intent and could proceed to build a dam in nonnavigable waters with complete impunity, 381 U.S. at 109, 85 S.Ct. 1253. Therefore, under the 1920 Act, Farmington had no duty to acquire a license for its project, and, unless the 1935 amendments provided otherwise, it has no duty to do so now

The new § 23(b) made a licensing requirement part of the Water Power Act by providing that it would be unlawful to construct, operate, or maintain any project in navigable waters without a license from the Commission; and...