Court Upholds Hydroelectric Project Relicensing

Cowlitz Indian Tribe v. FERC, 2006 U.S. App. LEXIS 19129 (9th Cir. July 27, 2006).

Terra Bowling, J.D.

The Ninth Circuit Court of Appeals recently upheld two orders issued by the Federal Energy Regulatory Commission (Commission). The orders re-issued a license to the city of Tacoma for the operation of a hydroelectric project and amended the license in light of a Biological Opinion prepared by the National Marine Fisheries Service (NMFS). The Cowlitz Indian Tribe, Friends of the Cowlitz, and CPR-Fish challenged the orders.

The Federal Power Act (FPA) gives federal courts of appeals jurisdiction over decisions of the Commission.1 When reviewing the Commission’s decisions, a court must examine whether “the agency … engage[d] in reasoned decision making.”2 The tribe argued that the Commission did not meet this burden by: 1) failing to consider Tacoma’s record of compliance with the existing license; 2) reaching conclusions about fisheries and flood control that were arbitrary, capricious, and unsupported by substantial evidence; 3) approving an advisory committee as part of the new license in violation of the Federal Advisory Committee.3

The tribe first argued that the Commission failed to examine Tacoma’s compliance with its existing license, which is required by the FPA. Section 15(a)(3)4 requires the Commission to consider a “licensee’s record of compliance with the terms and conditions of the existing license.” The commission, however, is not required to go beyond the existing record, which the court found it had thoroughly reviewed in the present case.

The tribe also challenged the Commission’s conclusions regarding downstream and upstream fish passage and hatchery management. The court rejected the tribe’s arguments finding that NMFS’ conclusions in the Biological Opinion about downstream passage were based on best evidence, and not arbitrary and capricious. The court also upheld the upstream fish passage provisions in the license reasoning that the current provisions were not arbitrary because the trap and haul methods in the license sufficiently protected the fish.

The tribe raised the issue of whether the licenses adequately took into account the 1994 Columbia River Basin Fish and Wildlife Program (Program) with regard to hatchery management provisions. The Program requires licenses to provide “full compensation for unavoidable fish losses or fish habitat losses thorough habitat restoration or replacement, appropriate propagation, or similar measures.”5 The court declined to address this issue, noting that it did not have jurisdiction because the tribe failed to raise the claim in its request for rehearing before the Commission.

Several of the license’s flood control provisions were also challenged by the tribe. The tribe argued that the Commission did not have enough evidence to conclude that the flood control provisions in the license would provide ample flood protection. The court disagreed. The Commission had required Tacoma to conduct a computerized flood flow analysis, which demonstrated the efficacy of the license provisions, and took into account historical flooding data from an Army Corps of Engineers reports.

The tribe’s final challenge to the license rested on an alleged violation of the Federal Advisory Committee Act (FACA). FACA applies to advisory committees which are established by federal agencies for the purpose of obtaining advice or recommendations. The tribe claimed that provisions in the license which required Tacoma to consult with a new Fisheries Technical Committee violated FACA. The court held that FACA was inapplicable to the Committee, because its purpose was to provide advice to Tacoma, not a federal agency.

Endnotes
1. See Friends of the Cowlitz v. FERC, 253 F.3d 1161, 1165 (9th Cir. 2001).
2. Id. at 1165.
3. Cowlitz Indian Tribe v. FERC, 2006 U.S. App. LEXIS 19129 (9th Cir. July 2006).
4. 16 U.S.C. § 808(a)(3)(A).
5.Cowlitz Indian Tribe, 2006 U.S. App. LEXIS 19129 at *9.

University of Mississippi