L.S. Starrett Co. v. Fed. Energy Regulatory Comm'n, No. 10-1470 (1st Cir. 2011)Annotate this Case
After a generator failed, plaintiff ordered a replacement, believing that no permit was required for changes to its hydroelectric power facility, which is located on plaintiff's property on a non-navigable Massachusetts river. The facility consists of an 87-acre-foot reservoir, a 20-foot-high, 127-foot-long concrete gravity dam, two powerhouses, and appurtenant facilities. The Federal Energy Regulatory Commission concluded that plaintiff required a license under the Federal Power Act, 16 U.S.C. 817(1). The First Circuit affirmed, holding that the facility is in a stream that is subject to Commerce Clause jurisdiction, the proposed changes will constitute "post-1935 construction" under the Act, and the proposed changes will affect interstate commerce. The Commission's interpretation of "construction" as encompassing the work at issue was reasonable and substantial evidence supports a finding that small hydroelectric plants have a cumulative impact on interstate commerce.