Notice2026-00266
Farmington River Power Company; Notice of Pending Jurisdictional Inquiry and Soliciting Comments, Protests, and Motions To Intervene
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Published
January 9, 2026
Issuing agencies
Energy DepartmentFederal Energy Regulatory Commission
Full Text
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<title>Federal Register, Volume 91 Issue 6 (Friday, January 9, 2026)</title>
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[Federal Register Volume 91, Number 6 (Friday, January 9, 2026)]
[Notices]
[Pages 992-993]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-00266]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. UL26-1-000]
Farmington River Power Company; Notice of Pending Jurisdictional
Inquiry and Soliciting Comments, Protests, and Motions To Intervene
On November 3, 2025, the Federal Energy Regulatory Commission
(Commission) received a request from Save the Sound for an updated
jurisdictional determination for the unlicensed Rainbow Dam
Hydroelectric Project. The project is located on the Farmington River,
a tributary of the Connecticut River, in Hartford County, Connecticut.
Pursuant to section 23(b)(1) of the Federal Power Act (FPA),\1\ a
non-federal hydroelectric project must be licensed if it: (a) is
located on a navigable water of the United States; (b) occupies lands
or reservations of the United States; (c) utilizes surplus water or
waterpower from a government dam; \2\ or (d) is located on a stream
over which Congress has Commerce Clause jurisdiction, is constructed or
modified on or after August 26, 1935, and affects the interests of
interstate or foreign commerce.
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\1\ 16 U.S.C. 817(1).
\2\ A project that meets condition (a), (b), or (c) is not
required to be licensed if it holds a still valid pre-1920 federal
permit.
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A stream is navigable under section 3(8) of the FPA \3\ if: (1) it
is currently being used or is suitable for use, or (2) it has been used
or was suitable for use in the past, or (3) it could be made suitable
for use in the future by reasonable improvements to transport persons
or property in interstate or foreign commerce.\4\ Navigability under
section 3(8) of the FPA is not destroyed by obstructions or disuse of
many years; personal or private use may be sufficient to demonstrate
the availability of the river for commercial navigation; and the
seasonal floatation of logs is sufficient to determine that a river is
navigable.
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\3\ 16 U.S.C. 796(8).
\4\ See Rochester Gas & Elec. Corp., 344 F.2d 594, 596 (2d Cir.
1965).
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Regarding condition (d) above, for purposes of FPA section
23(b)(1), headwaters and tributaries of navigable waters are Commerce
Clause streams; \5\ ``post-1935'' construction or modification at an
existing project includes enlarging a project, such as increasing size
of the reservoir, height of the dam, or generating capacity; \6\ and
projects that generate energy for transmission on the interstate grid
affect interstate commerce.\7\
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\5\ FPC v. Union Electric Co., 381 U.S. 90, 94-96 (1965).
\6\ See, e.g., L.S. Starrett Co. v. FERC, 650 F.3d 19, 26-27
(1st Cir. 2011); Cent. Vt. Pub. Serv. Corp., 54 FERC ] 61,132, at
61,434 (1991) (citing Puget Sound Power & Light Co. v. FPC, 557 F.2d
1311 (9th Cir. 1977); Aquenergy Systems, Inc., 29 FERC ] 61,026
(1984)).
\7\ See FPC v. Union Elec. Co., 381 U.S. at 94-95. Moreover, it
is well settled that small hydroelectric projects that are connected
to the interstate grid, even if they have no interstate sales,
affect interstate commerce by displacing power from the grid, and
the cumulative effect of the national class of these small projects
is significant for purposes of FPA section 23(b)(1). See Habersham
Mills v. FERC, 976 F.2d 1381, 1384-85 (11th Cir. 1992).
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Commission staff previously investigated the Commission's
jurisdiction over the Rainbow Dam Project in the 1970s and determined
that licensing was not required, noting that there was insufficient
evidence that the Farmington River was navigable at the project.\8\
Save the Sound requests that the Commission reexamine the navigability
of the Farmington River at
[[Page 993]]
the site of the Rainbow Dam Project, specifically considering the
river's historic and current use or suitability for commercial use.\9\
A stream's suitability for commercial use can be demonstrated based on
its physical characteristics, as well as its actual use or suitability
for use for recreational boating, if this information shows the river
is suitable for the simpler types of commercial navigation.\10\
Additionally, Save the Sound requests that the Commission reexamine its
jurisdiction on the grounds that the Rainbow Dam Project is located on
a stream over which Congress has Commerce Clause jurisdiction, was
modified to increase its water storage capacity on or after August 26,
1935, and affects the interests of interstate or foreign commerce.\11\
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\8\ See Farmington River Power Co., 49 F.P.C. 389 (1973); but
see Farmington River Power Co., 44 F.P.C. 1393 (1970) (finding
licensing required based on the retroactive application of the 1935
amendments to section 23(b) of the FPA requiring licensing for
projects located on non-navigable streams that affect interstate
commerce), vacated by Farmington River Power Co. v. FPC, 455 F.2d 86
(2d. Cir. 1972) (holding that the 1935 amendment to section 23(b)
had no retroactive effect and vacating Commission's 1970 order
finding licensing required).
\9\ In 1996, Commission staff determined that the Farmington
River is a navigable waterway of the United States ``from north of
the Colebrook Reservoir . . . into the Connecticut River.'' The
Collinsville Co., 76 FERC ] 62,117 (1996). The Colebrook Reservoir
is located on the West Branch of the Farmington River, approximately
73 river miles above the Rainbow Dam Project.
\10\ See FPL Energy Me. Hydro LLC v. FERC, 287 F.3d 1151, 1158
(D.C. Cir. 2002) (affirming navigability finding based on stream
characteristics and test trips by canoe).
\11\ Save the Sound November 3, 2025 Request for Updated
Determination of Jurisdiction for the Rainbow Project at 7-9.
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In response to Save the Sound's request, Commission staff is
investigating the jurisdictional status of the Rainbow Dam
Hydroelectric Project (UL26-1-000). A copy of Save the Sound's request
may be viewed on the Commission's website at <a href="http://www.ferc.gov/docs-filing/elibrary.asp">http://www.ferc.gov/docs-filing/elibrary.asp</a>. Enter the docket number, UL26-1-000. You may also
register online at <a href="http://www.ferc.gov/docs-filing/esubscription.asp">http://www.ferc.gov/docs-filing/esubscription.asp</a> to
be notified via email of new filings and issuances related to this or
other pending projects. For assistance, call 1-866-208-3676 or email
<a href="/cdn-cgi/l/email-protection#470102150408292b2e292214323737283533072122352469202831"><span class="__cf_email__" data-cfemail="d99f9c8b9a96b7b5b0b7bc8aaca9a9b6abad99bfbcabbaf7beb6af">[email protected]</span></a>, for TTY, call (202) 502-8659.
The Commission is soliciting comments, motions to intervene, and
protests in this proceeding. Comments, motions to intervene, and
protests must be filed by 45 days from notice or February 20, 2026, by
5:00 p.m. Eastern Time. Anyone may submit comments, a protest, or a
motion to intervene in accordance with the requirements of Rules and
Practice and Procedure, 18 CFR 385.210, 211, and 214. In determining
the appropriate action to take, the Commission will consider all
protests or comments filed, but only those who file a motion to
intervene in accordance with the Commission's Rules may become a party
to the proceedings. Any comments, protests, or motions to intervene
must be received on or before the specified comment date.
The Commission strongly encourages electronic filing. Please file
comments, protests, and motions to intervene using the Commission's
eFiling system at <a href="http://www.ferc.gov/docs-filing/efiling.asp">http://www.ferc.gov/docs-filing/efiling.asp</a>.
Commenters can submit brief comments up to 6,000 characters, without
prior registration, using the eComment system at <a href="http://www.ferc.gov/docs-filing/ecomment.asp">http://www.ferc.gov/docs-filing/ecomment.asp</a>. You must include your name and contact
information at the end of your comments. For assistance, please contact
FERC Online Support at <a href="/cdn-cgi/l/email-protection#6c2a293e2f2302000502093f191c1c031e182c0a091e0f420b031a"><span class="__cf_email__" data-cfemail="7b3d3e293834151712151e280e0b0b14090f3b1d1e0918551c140d">[email protected]</span></a>, (866) 208-3676 (toll
free), or (202) 502-8659 (TTY). In lieu of electronic filing, you may
submit a paper copy. Submissions sent via the U.S. Postal Service must
be addressed to: Debbie-Anne A. Reese, Secretary, Federal Energy
Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC
20426. Submissions sent via any other carrier must be addressed to:
Debbie-Anne A. Reese, Secretary, Federal Energy Regulatory Commission,
12225 Wilkins Avenue, Rockville, Maryland 20852. The first page of any
filing should include Docket Number UL26-1-000.
For public inquiries and assistance with making filings such as
interventions, comments, or requests for rehearing, contact the Office
of Public Participation at (202) 502-6595 or <a href="/cdn-cgi/l/email-protection#89c6d9d9c9efecfbeaa7eee6ff"><span class="__cf_email__" data-cfemail="26697676664043544508414950">[email protected]</span></a>.
For further information, please contact Kelly Fitzpatrick at (202)
502-8435 or <a href="/cdn-cgi/l/email-protection#cda6a8a1a1b4e3aba4b9b7bdacb9bfa4aea68daba8bfaee3aaa2bb"><span class="__cf_email__" data-cfemail="1a717f767663347c736e606a7b6e687379715a7c7f6879347d756c">[email protected]</span></a>.
(Authority: 18 CFR 2.1)
Dated: January 6, 2026.
Carlos D. Clay,
Deputy Secretary.
[FR Doc. 2026-00266 Filed 1-8-26; 8:45 am]
BILLING CODE 6717-01-P
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