City of Tacoma, Washington v. F.E.R.C., No. 05-1054.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBrown
Citation460 F.3d 53
PartiesCITY OF TACOMA, WASHINGTON, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Skokomish Indian Tribe, et al., Intervenors.
Docket NumberNo. 05-1054.,No. 05-1181.,No. 05-1093.,No. 05-1180.
Decision Date22 August 2006
460 F.3d 53
CITY OF TACOMA, WASHINGTON, Petitioner
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent
Skokomish Indian Tribe, et al., Intervenors.
No. 05-1054.
No. 05-1093.
No. 05-1180.
No. 05-1181.
United States Court of Appeals, District of Columbia Circuit.
Argued March 27, 2006.
Decided August 22, 2006.

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Sam Kalen and Stephen H. Goodman, Jr. argued the cause for petitioners City of Tacoma, Washington and Save the Lakes Coalition. With them on the briefs were Michael A. Swiger and Susan A. Moore.

Mason D. Morisset argued the cause and filed the briefs for petitioner Skokomish Indian Tribe.

John Katz, Deputy Associate General Counsel, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief were John S. Moot, General Counsel, and Robert H. Solomon, Solicitor.

Lisa E. Jones, Attorney, United States Department of Justice, argued the cause for intervenors the United States Department of Interior and the United States Department of Commerce. With her on the brief was M. Alice Thurston, Attorney.

Daniel H. Squire was on the brief for intervenors American Rivers, et al.

Before: GINSBURG, Chief Judge, and ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge.


These consolidated cases seek our review of a series of orders issued by the Federal Energy Regulatory Commission ("FERC" or "Commission"), granting a conditional license to the City of Tacoma ("Tacoma") to operate a hydroelectric project

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on the Skokomish River in the State of Washington. We deny the petitions in part, grant the petitions in part, and remand for further proceedings, without vacating the license.

I

In 1924, Tacoma obtained a license from the Federal Power Commission to flood 8.8 acres of national forest land by damming the North Fork of the Skokomish River at Lake Cushman on the Olympic Peninsula. This license was designated a "minor part license" because it covered only a small part of Tacoma's much larger hydroelectric project (the "Cushman Project"). At that time, the Federal Power Commission interpreted its licensing authority narrowly, and therefore, the 1924 minor part license gave Tacoma the authority it needed to proceed with the Cushman Project. In the ensuing years, Tacoma built two dams across the North Fork river. The first dam greatly increased the size of Lake Cushman, and the second dam created Lake Kokanee further downstream. Tacoma also constructed two hydroelectric plants, one at the upper dam and a second near Hood Canal, which adjoins Puget Sound. Between Lake Kokanee and Hood Canal, Tacoma diverted virtually all the water from the North Fork riverbed into a pipeline, thereby maximizing the generating power of the river. Nevertheless, some distance downhill from Lake Kokanee, water continued to flow into the North Fork riverbed from McTaggert Creek, and recently Tacoma has released into the riverbed an additional flow of sixty cubic feet per second ("cfs").

The five-thousand-acre reservation of the Skokomish Indian Tribe ("Tribe") is located near the mouth of the Skokomish River, with Hood Canal as its northeastern border and the Skokomish River as its eastern, southeastern, and southern borders. The reservation was established in 1855 by the Treaty of Point No Point, which guarantees certain rights to the Tribe, including the right to take fish from the Skokomish River. The Cushman Project's second hydroelectric plant is situated within the boundary of the reservation, on property Tacoma owns in fee, and an access road and transmission line run across reservation property. The Cushman Project did not remove all water from the section of the Skokomish River that borders the Tribe's reservation; the lower portion of the river continues to be fed by the South Fork and also the small flow that remains in the North Fork. Nevertheless, the Cushman Project sharply reduced water levels, thereby affecting fish populations and increasing silt deposits. The Tribe asserts that the historic mean annual water-flow in the North Fork was eight-hundred cfs. If this figure is accurate, then even accounting for the sixty cfs that Tacoma is now releasing into the North Fork riverbed, Tacoma is still diverting about 92.5 percent of the North Fork's water.

In 1963, the Federal Power Commission determined that its hydroelectric licensing jurisdiction extends to whole projects, not just to the parts of those projects that occupy or use federal land. See Pac. Gas & Elec. Co., 29 FPC 1265, 1266, 1963 WL 4558 (1963) (PG & E I). On that basis, the Commission concluded certain minor part licenses under consideration in that proceeding had been "improperly issued" based on an "erroneous conclusion of law." Id. This holding cast a shadow of doubt over all projects that were then operating under minor part licenses, including the Cushman Project, but Tacoma nevertheless continued to operate the project under the terms of its 1924 minor part license.

In 1974, Tacoma's minor part license expired, and Tacoma applied for a new

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license, expressly seeking a "major project license" that would cover all its project-related facilities. Pursuant to section 15 of the Federal Power Act ("FPA" or the "Act"), 16 U.S.C. § 808(a)(1), which is the section governing relicensing, the Commission is required to issue annual renewals of the existing license during the application review period that precedes issuance of a new long-term license. The Commission therefore issued Tacoma an annual license, and as a consequence of repeated delays, Tacoma operated the project for the next twenty-four years under these annual renewals.

The array of matters addressed during this lengthy review period included: (1) the state certification required under section 401(a) of the Clean Water Act, 33 U.S.C. § 1341(a); (2) the state "concurrence" required under section 307(c)(3)(A) of the Coastal Zone Management Act, 16 U.S.C. § 1456(c)(3)(A); (3) the consultations with state and federal wildlife agencies required under section 10(j) of the FPA, id. § 803(j); and (4) the consultations with the Advisory Council on Historic Preservation required under section 106 of the National Historic Preservation Act, id. § 470f. In addition, FERC (the successor agency to the Federal Power Commission) prepared an environmental impact statement as required by the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C), and the Department of the Interior ("Interior"), as the agency supervising the Tribe's reservation, prepared a list of "conditions" to be included in Tacoma's new license pursuant to section 4(e) of the FPA. See 16 U.S.C. § 797(e).

The Tribe also petitioned FERC in 1992 for an order declaring the proceeding to be an original license proceeding, not a relicensing. Among other things, the Tribe was seeking to establish pre-1924 environmental conditions as the baseline for FERC's analysis of environmental impact, arguing that most of the project had never been the subject of any license proceeding. FERC rejected the Tribe's argument, stating, "We . . . conclude that the subsequent licensing of a major project with an expiring minor part license is not an original licensing proceeding, but is a relicensing proceeding which is governed by the relicensing provisions of section 15 of the FPA." City of Tacoma, 67 FERC ¶ 61,152, at 61,443, 1994 WL 170164 (1994). FERC also specifically rejected the use of pre-1924 environmental conditions as the baseline for measuring environmental impact. See id. at 61,443-44.

FERC finally completed the application review process in 1998, and on July 30th of that year, FERC issued a forty-year major license for the Cushman Project, imposing a number of conditions designed, among other things, to protect the environment, to remedy past environmental impacts, to restore fish populations, and otherwise to mitigate the effect of the project on the Tribe's reservation. See City of Tacoma, 84 FERC ¶ 61,107, at 61,578-99, 1998 WL 608611 (1998). FERC rejected Interior's section 4(e) conditions, but article 407 of the license requires Tacoma to release a minimum flow of 240 cfs (or inflow, whichever is less) into the North Fork riverbed, below Lake Kokanee, and this requirement partially satisfies one of Interior's conditions.

Several parties petitioned for rehearing. Tacoma's petition asserted that, under the terms of the license, the Cushman Project would cost more to operate than the value of the power it generated. The Tribe's petition asserted that the license did not adequately protect the environment or the Tribe's reservation and should have included all of Interior's section 4(e) conditions. The Tribe also contested whether the requirements of the Clean Water Act, the

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Coastal Zone Management Act, and the National Historic Preservation Act had been satisfied. In a series of orders, FERC (1) denied several petitions for rehearing; (2) clarified that Tacoma could defer its final decision as to whether to accept or reject the new license until after completion of the appeal process; and (3) granted a stay of the new license pending judicial review, thereby permitting Tacoma to continue operations without satisfying any of the license conditions.

Several petitions for review were filed in this court, but we remanded without any decision on the merits because the listing of two salmon species as endangered pursuant to the Endangered Species Act ("ESA"), see 16 U.S.C. § 1533, necessitated consultations between FERC and the National Marine Fisheries Service (the "Fisheries Service") regarding the impact of the Cushman Project on these species, see id. § 1536(a), and we anticipated that these consultations might result in significant license changes. After remand, FERC also entered into...

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47 practice notes
  • San Luis & Delta-Mendota Water Auth. v. Jewell, Nos. 11–15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...FWS's conclusions because it is ultimately responsible for ESA compliance, see City of Tacoma, Wash. v. Fed. Energy Regulatory Comm'n, 460 F.3d 53, 76 (D.C.Cir.2006). I agree with the district court that Reclamation would be subject to independent ESA liability if it possessed new informati......
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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
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    ..."[T]he action agency must not blindly adopt the conclusions of the consultant agency." City of Tacoma v. Fed. Energy Regulatory Comm'n, 460 F.3d 53, 76 (D.C.Cir.2006). 62. Reclamation did not ensure that the RPA utilized the best available science. Rather, it uncritically accepted the RPA a......
  • Pacific Coast Feder. of Fishermen's v. Gutierrez, No. 1:06-cv-00245-OWW-GS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 20, 2008
    ...is flawed, but rather whether the action agency's reliance on the BiOp was arbitrary and capricious. City of Tacoma, Washington v. FERC, 460 F.3d 53, 75-76 (D.C.Cir.2006). While reliance on a "fatally flawed" BiOp is likely to be found arbitrary and capricious, "the action agency need not u......
  • San Luis & Delta-Mendota Water Auth. v. Jewell, No. 11-15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...FWS's conclusions because it is ultimately responsible for ESA compliance, see City of Tacoma, Wash. v. Fed. Energy Regulatory Comm'n, 460 F.3d 53, 76 (D.C. Cir. 2006). I agree with the district court that Reclamation would be subject to independent ESA liability if it possessed new informa......
  • Request a trial to view additional results
42 cases
  • San Luis & Delta-Mendota Water Auth. v. Jewell, Nos. 11–15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...FWS's conclusions because it is ultimately responsible for ESA compliance, see City of Tacoma, Wash. v. Fed. Energy Regulatory Comm'n, 460 F.3d 53, 76 (D.C.Cir.2006). I agree with the district court that Reclamation would be subject to independent ESA liability if it possessed new informati......
  • The Consol. Delta Smelt Cases., Nos. 1:09-CV-00407 OWW DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 27, 2010
    ..."[T]he action agency must not blindly adopt the conclusions of the consultant agency." City of Tacoma v. Fed. Energy Regulatory Comm'n, 460 F.3d 53, 76 (D.C.Cir.2006). 62. Reclamation did not ensure that the RPA utilized the best available science. Rather, it uncritically accepted the RPA a......
  • Pacific Coast Feder. of Fishermen's v. Gutierrez, No. 1:06-cv-00245-OWW-GS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 20, 2008
    ...is flawed, but rather whether the action agency's reliance on the BiOp was arbitrary and capricious. City of Tacoma, Washington v. FERC, 460 F.3d 53, 75-76 (D.C.Cir.2006). While reliance on a "fatally flawed" BiOp is likely to be found arbitrary and capricious, "the action agency need not u......
  • San Luis & Delta-Mendota Water Auth. v. Jewell, No. 11-15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...FWS's conclusions because it is ultimately responsible for ESA compliance, see City of Tacoma, Wash. v. Fed. Energy Regulatory Comm'n, 460 F.3d 53, 76 (D.C. Cir. 2006). I agree with the district court that Reclamation would be subject to independent ESA liability if it possessed new informa......
  • Request a trial to view additional results
4 books & journal articles
  • Hydropower
    • United States
    • Legal pathways to deep decarbonization in the United States Part V - Electricity Decarbonization
    • March 24, 2019
    ...of intermittent renewables—often are more attractive than hydropower. 113. See City of Tacoma v. Federal Energy Regulatory Comm’n, 460 F.3d 53, 65, 36 ELR 20173 (D.C. Cir. 2006) (holding that FERC cannot set “strict time restriction[s]” on mandatory conditioning agencies). In addition, whil......
  • Ongoing Actions, Ongoing Issues: Trying Again to Free Federal Dams From the ESA
    • United States
    • Environmental Law Reporter Nbr. 49-11, November 2019
    • November 1, 2019
    ...a species gains signiicant protection under the Act, which includes the general pro- 46. City of Tacoma v. Fed. Energy Regulatory Comm’n, 460 F.3d 53, 71-74, 36 ELR 20173 (D.C. Cir. 2006) (upholding authority of FERC to impose operating requirements that could result in a project being unec......
  • Deep Decarbonization and Hydropower
    • United States
    • Environmental Law Reporter Nbr. 48-4, April 2018
    • April 1, 2018
    ...Efficiency and Renewables 479, 480-83 (Michael B. Gerrard ed., ABA 2011). 110. See City of Tacoma v. Federal Energy Regulatory Comm’n, 460 F.3d 53, 65, 36 ELR 20173 (D.C. Cir. 2006) (holding that FERC cannot set “strict time restriction[s]” on mandatory conditioning agencies). In addition, ......
  • Flowing Water, Flowing Costs: Assessing FERC's Authority to Decommission Dams
    • United States
    • Environmental Law Reporter Nbr. 49-10, October 2019
    • October 1, 2019
    ...FERC to stay issuance of the new license until after appeals were exhausted). 97. City of Tacoma v. Federal Energy Regulatory Comm’n, 460 F.3d 53, 36 ELR 20173 (D.C. Cir. 2006). 98. Id . at 71. 99. Id . Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission......

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