Petition to review orders of the Federal Power Commission, holding that the petitioner's four hydroelectric projects on the Housatonic River are subject to the Commission licensing jurisdiction under the Federal Power Act. Orders affirmed.
Oakes, Circuit Judge, Wyzanski*fn* and Holden,*fn** District Judges.
This petition to review orders of the Federal Power Commission was brought by Connecticut Light and Power Company (CL & P). The petitioner challenges the authority of the Commission to license four hydroelectric projects on the Housatonic River as it flows through the State of Connecticut. The petitioner is joined in this effort by the Candlewood Lake Authority as an intervenor.*fn1 The Commission, by its orders of May 24, 1976, affirmed the initial decision of the administrative law judge that the projects are located on navigable waters of the United States within the meaning of Section 3(8) of the Federal Power Act, 16 U.S.C. § 796(8)*fn2 and that all projects affect the interest of interstate commerce within the meaning of Section 23(b) of the Act, 16 U.S.C. § 817.*fn3 Application for rehearing was denied by the Commission on July 23, 1976.
The source and headwaters of the Housatonic River are in western Massachusetts. The river flows a total distance of 132 miles and enters Connecticut 83 miles above the mouth where it enters Long Island Sound at Stratford, Connecticut. From the Massachusetts-Connecticut state line the river flows southerly to Bulls Bridge, 52.9 miles upstream from Stratford, thence southeasterly to the tidewater at the twin cities of Shelton and Derby, 13.5 miles upstream, where the tidal reach of the river extends southerly to the mouth at Stratford.*fn4
The four projects under review are owned and operated by the CL & P: Bulls Bridge, original construction in 1903; Rocky River, 44.3 miles upstream, erected in 1929; Shepaug, 30 miles upstream and constructed in 1955; and Stevenson, 19.3 miles upstream, constructed originally in 1919, but enlarged in 1936. Rocky River is a seasonal pumped-storage hydroelectric facility; the other three projects are run-of-river hydroelectric facilities.
After inquiry by the Commission concerning whether CL & P proposed to file applications to license the project, and a subsequent communication proposing a shortened license term unless applications were promptly filed, CL & P applied under protest for licenses for Bulls Bridge, Rocky River and Shepaug in 1966 and for Stevenson in 1967. On December 27, 1973,*fn5 following this court's decision in Farmington River Power Co. v. F.P.C., 455 F.2d 86 (2d Cir., 1972), CL & P filed notice of withdrawal of the applications, contending that the Commission lacked licensing jurisdiction over the projects. The proceedings now under review were ordered to be conducted by the Presiding Administrative Law Judge to determine disputed questions of fact on the issue of Commission's licensing jurisdiction over the four projects. After extended hearings and a detailed report of the facts, the law judge concluded that Housatonic River constituted navigable waters as defined in the Federal Power Act and all projects are subject to the licensing jurisdiction of the Federal Power Commission. The correctness of that decision is the question for review.
Res Judicata and Estoppel
At the outset we are called upon to consider the petitioner's claim that the Commission is barred by the operation of res judicata and collateral estoppel from finding the Housatonic navigable. The claim is based on a 1952 order of the FPC in Electric Power Inc., 11 F.P.C. 1548, following the declaration of intention to construct the Shepaug project, filed by the CL & P's predecessor.
The first sentence of Section 23(b) makes it unlawful for any person, state or municipality to construct a dam to develop electric power in any of the navigable waters of the United States except by a license granted under the Federal Power Act. This proscription is followed by the provision that any person, state or municipality intending to construct a dam or other project in any stream "other than those defined in this chapter as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce - shall before such construction file declaration of such intention with the Commission. . . ." If upon investigation the Commission finds the interest of commerce would be affected, a license is required. The third sentence of Section 23(b) provides:
If the Commission shall not so find, and if no public lands or reservations are affected, permission is granted to construct such dam or other project works in such stream upon compliance with State laws.
The Commission issued its findings on December 24, 1952. After describing the project proposed by the petitioner's predecessor, the Commission determined:
The interest of interstate or foreign commerce would not be affected by the construction and operation of the proposed Shepaug development: Provided, however, that these findings shall not be construed as relating to any effects upon the interests of interstate or foreign commerce which might be caused by any existing hydroelectric developments located on the Housatonic River.
It is significant that CL & P's predecessor, Electric Power, Inc., did not apply for a license to construct the Shepaug Project on a navigable stream under Section 23(b). The power company made its own determination that the Housatonic was not navigable within the meaning of the Act. Acting on this independent judgment, the company proceeded as a declarant to state its intention to construct the project, thereby invoking the Commission's authority to decide the narrow issue of whether the proposed project would affect the interests of interstate or foreign commerce.*fn6 This ...