The “Comprehensive Plan” Requirement of the Federal Power Act: A Senator’s Dream, a Congressional Mandate, and a Parameter for Agency Discretion

This note examines whether and when section 10(a) of the Federal Power Act requires the Commission to use an actual comprehensive plan for waterway development in its licensing decisions. Section I is divided into two parts, first examining the legislative history which led to the enactment of the Act. This history alone does not provide a clear indication of what Congress intended by including the comprehensive plan terminology in that Act. Section I then examines legislative efforts that were underway to establish a separate commission with the explicit charge of preparing comprehensive plans for the nation's waterways. This discussion will shed light on why Congress included the comprehensive plan terminology in the Federal Power Act. Section II reviews the Commission's interpretation and application of section 10(a). While the Commission originally determined that actual plans were sometimes necessary, it subsequently abandoned this position and adopted a position that such plans were not necessary under any circumstances. Section III discusses judicial review of the Commission's application of section 10(a). Although the recent litigation is the first challenge to the Commission's failure to require an actual plan of waterway development, the courts generally have been deferential to the manner in which the Commission has exercised its planning function.

Finally, section IV suggests that the courts should not continue to accept the Commission's current interpretation of section 10(a). Although the courts should not require the Commission to use actual plans under all circumstances, they should require the Commission to use plans in situations where there are significantly conflicting uses proposed for a waterway. Moreover, if the Commission decides not to use an actual plan, it should justify its decision not to do so.