Monongahela Power Co. v. Marsh, Nos. 81-1201

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON, Circuit Judge, BAZELON; SPOTTSWOOD W. ROBINSON, III
Citation809 F.2d 41
Decision Date13 January 1987
Docket Number81-1203 and 81-1282,Nos. 81-1201
Parties, 17 Envtl. L. Rep. 20,422 MONONGAHELA POWER COMPANY, et al. v. John O. MARSH, Jr., Secretary, Department of the Army, et al., Appellants, Federal Energy Regulatory Commission, Intervenor. MONONGAHELA POWER COMPANY, et al. v. John O. MARSH, Jr., Secretary, Department of the Army, et al., The Sierra Club, et al., Appellants, Federal Energy Regulatory Commission, Intervenor. MONONGAHELA POWER COMPANY, et al. v. John O. MARSH, Jr., State of West Virginia, Appellant, Federal Energy Regulatory Commission, Intervenor.

Page 41

809 F.2d 41
257 U.S.App.D.C. 345, 17 Envtl. L. Rep. 20,422
MONONGAHELA POWER COMPANY, et al.
v.
John O. MARSH, Jr., Secretary, Department of the Army, et
al., Appellants,
Federal Energy Regulatory Commission, Intervenor.
MONONGAHELA POWER COMPANY, et al.
v.
John O. MARSH, Jr., Secretary, Department of the Army, et
al., The Sierra Club, et al., Appellants,
Federal Energy Regulatory Commission, Intervenor.
MONONGAHELA POWER COMPANY, et al.
v.
John O. MARSH, Jr., State of West Virginia, Appellant,
Federal Energy Regulatory Commission, Intervenor.
Nos. 81-1201, 81-1203 and 81-1282.
United States Court of Appeals,
District of Columbia Circuit.
Argued June 18, 1982.
Decided Jan. 13, 1987.

Page 42

Appeals from the United States District Court for the District of Columbia (Civil Action No. 78-01712).

James C. Kilbourne, Atty., Dept. of Justice, with whom Carol E. Dinkins, Asst. Atty. Gen., Anne S. Almy and Peter R. Steenland, Jr., Attys., Dept. of Justice, Washington, D.C., were on the brief, for John O. Marsh, Jr., Secretary, Dept. of the Army, et al., appellants in No. 81-1201 and appellees in Nos. 81-1203 and 81-1282.

Ronald J. Wilson, Washington, D.C., for Sierra Club, et al., appellants in Nos. 81-1201 and 81-1203 and appellees in No. 81-1282.

Dennis M. Abrams, Deputy Atty. Gen., State of W. Va., with whom Chauncey H. Browning, Atty. Gen., State of W. Va., Charleston, W.Va., was on the brief, for State of W. Va., appellant in No. 81-1282 and appellee in Nos. 81-1201 and 81-1203.

David I. Granger, with whom Barry J. Israel, Washington, D.C., was on the brief, for Monongahela Power Co., Washington, D.C., et al., appellees in Nos. 81-1201, 81-1203, and 81-1282.

Andrea Wolfman, Atty., F.E.R.C., with whom Charles A. Moore, Gen. Counsel, and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., were on the brief, for F.E.R.C., intervenor in Nos. 81-1201, 81-1203, and 81-1282.

Before ROBINSON, Circuit Judge, BAZELON, Senior Circuit Judge, * and GASCH, ** Senior District Judge.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The Federal Water Pollution Control Act Amendments of 1972, 1 in Section 301(a), make generally unlawful the discharge of any pollutant into the navigable waters of the United States. 2 This legislation, however, in Section 404(a), authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits for the discharge of dredged or fill material into navigable waters at specified disposal sites. 3 The single issue posed by these consolidated appeals is whether a permit is required to discharge fill material into navigable waters during construction of a hydroelectric facility previously licensed by the Federal Power Commission (FPC). 4

Page 43

The District Court answered that question in the negative. 5 We disagree.
I

Monongahela Power Company, on behalf of Allegheny Power System, Inc., applied to FPC for a license to construct a 1000-megawatt pumped-storage hydroelectric facility on the Blackwater River in the Canaan Valley of Tucker County, West Virginia. 6 This project contemplates erection of two dams creating two reservoirs, which would inundate more than 7,000 acres of freshwater wetlands. 7

An initial decision by an administrative law judge denied the application, finding that the project would devastate the wetlands as a unique and diverse botanical and wildlife habitat. 8 FPC, however, concluded that these admitted losses, though substantial, could be mitigated, 9 and accordingly issued the license. 10

The project's sponsors, with the Commission's license in hand, then applied to the Army Corps of Engineers for a Section 404(a) permit authorizing them to discharge fill material into navigable waters in the course of construction of the planned hydroelectric facility. 11 The Corps held public hearings, received written comments, and issued a decision denying the permit on the ground that the project would have an unacceptably adverse impact on the Canaan Valley wetlands, and could not be justified on the basis of feasible alternatives. 12

The Monongahela group then instituted this litigation in the District Court against the Secretary of the Army and other officials. 13 Although Monongahela had invoked the jurisdiction of the Corps of Engineers in its quest for the permit, it now claimed that the Corps had no power to require a permit of an FPC-licensed project. 14 On cross-motions for the summary judgment, the District Court ruled in

Page 44

favor of Monongahela. 15 Reaching only the jurisdictional question, 16 the court held that the Corps had no authority to regulate discharges incidental to construction of Monongahela's hydroelectric facility because FPC had already licensed it. 17 Our review thus extends only to that determination. 18

Monongahela's position, which the District Court accepted, rests on the premise that beginning with the Federal Water Power Act of 1920, 19 Congress consolidated administrative authority over hydroelectric projects, and vested it originally in FPC and thereafter in FERC, its successor. 20 The opposing argument is predicated upon the Federal Water Pollution Control Act Amendments of 1972, 21 which in Section 301(a) broadly declare unlawful "the discharge of any pollutant by any person," 22 and then in Section 404(a) require a permit from the Corps for any discharge of dredged or fill material into navigable waters. 23 The Secretary points out that Congress expressly exempted enumerated activities from the permit requirement 24 and alluded to no intention to except FPC-licensed hydroelectric projects therefrom. 25 Consequently, the Secretary contends, there is no room for imposition of an implied dispensation for the statutory scheme.

II

Prior to 1920, the responsibility for licensing and overseeing hydroelectric facilities was dispersed among several arms of the Federal Government, including Congress 26 and the Secretaries of War, 27 Agriculture, 28 and the Interior. 29 Resulting jurisdictional and policy conflicts complicated the expansion of hydroelectric power, and

Page 45

led to adoption of a new regulatory regime. 30

The Federal Water Power Act of 1920 31 created FPC and assigned it the task of licensing and overseeing waterpower projects. 32 The Commission, which originally was composed of the Secretaries of War, Agriculture, and the Interior, 33 assumed "powers [t]heretofore exercised by the Secretaries in connection with water-power development under their several jurisdictions." 34 As the Supreme Court has recounted, the Act

was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so, instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts and other federal laws previously enacted. 35

These and other characterizations of the newly-born FPC reflect the centralization of powers previously exercised by other federal entities independently, 36 with the goal of eliminating duplicative work, overlapping functions, and jurisdictional disputes. 37 In this sense, as the District Court noted, FPC's authority is "comprehensive." 38 The exclusivity of FPC's domain is clear, however, only with respect to the functions it inherited upon passage of the 1920 Act. There was, to be sure, a consolidation of extant responsibilities, but certainly no preemption of subsequently-enacted legislation.

A half-century later, Congress made another radical change in legislative policy 39 by adopting the Federal Water Pollution Control Act Amendments of 1972. 40 The product of a strong bipartisan movement in Congress 41 "to restore and maintain the chemical, physical and biological integrity of the Nation's waters," 42 this enactment

Page 46

marked the ascendancy of water-quality control to the status of a major national priority. 43 Components of this effort were Section 301(a)'s broad ban on discharge of pollutants into navigable waters, 44 and Section 404(a)'s provision authorizing the Secretary to grant permits exempting therefrom the discharge of dredged or fill materials at specific disposal sites. 45

Congress was aware that the 1972 enactment would have far-reaching consequences, 46 and recognized that some other legislative objectives would have to be reconciled with the new pollution-control efforts. As the chairman of the House Committee on Public Works explained, "[t]hroughout the development of this most important legislation the committee could not forget the broad potential effects [on] competing priorities ... [including] ... energy supply ... and protection of our natural resources." 47 It hardly can be said that the prescription of additional requirements for hydroelectric projects was an utterly unforeseen or inappropriate consequence.

Narrowing our scrutiny to Sections 301(a) and 404(a), we easily discern an effort to halt the systematic destruction of the Nation's wetlands. 48 Congress insisted upon stringent federal discipline in an effort to curb ecological pollution and degradation without interfering unjustifiably with farming, forestry, and other legitimate activities reserved for regulation primarily by local governments. 49 The result was a dual scheme empowering the Corps of Engineers to issue permits pursuant to guidelines promulgated under Section 404(b)(1), 50 authorizing the states to establish and administer their own permit systems for specified discharges upon approval by the Administrator of the Environmental Protection Agency (EPA). 51

III

Indisputably, construction of Monongahela's proposed hydroelectric facility will entail discharges of dredged and fill material into navigable water. 52 Consequently, Sections 103(a) and 404(a) would seem to...

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  • Loan Syndications v. Sec. & Exch. Comm'n, Civil Action No. 16–652 (RBW)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 22, 2016
    ...statute, it could have also included them in the list of exempted institutions and programs, see, e.g. , Monongahela Power Co. v. Marsh , 809 F.2d 41, 49 (D.C. Cir. 1987) (stating that the omission of hydroelectric plants from the list of facilities exempted from certain administrative requ......
  • U.S. v. Mango, No. 96-CR-327.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 5, 1998
    ...of aquatic ecosystems or related human uses. See 40 C.F.R. §§ 230.20-.54. As the court noted in Monongahela Power Co. v. Marsh, 809 F.2d 41 (D.C.Cir.1987), these guidelines "[a]ddress the potential losses to be expected from discharges and the means for minimizing them." Id. at 52 (footnote......
  • Friends of the Earth v. Hall, No. C88-380R.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • August 11, 1988
    ...and that section 401 was not intended in any way to supplant requirements for obtaining a 404 permit. Monongahela Power Co. v. Marsh, 809 F.2d 41, 53 n. 114 (D.C. Cir.1987). Finally, the Ninth Circuit in FOE v. Hintz held that the appellants were foreclosed from raising the water quality is......
  • National Ass'n of Home Builders v. U.S. Army Corps, No. CIV. 00-379 RJL.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 29, 2006
    ...state limitations and requirements, as related to water quality, will become part of the federal permit, Monongahela Power Co. v. Marsh, 809 F.2d 41, 53 n. 114 (D.C.Cir.1987), and nothing in Section 401 implies that a State's limitations or requirements allows that permit seeker to avoid th......
  • Request a trial to view additional results
10 cases
  • Loan Syndications v. Sec. & Exch. Comm'n, Civil Action No. 16–652 (RBW)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 22, 2016
    ...statute, it could have also included them in the list of exempted institutions and programs, see, e.g. , Monongahela Power Co. v. Marsh , 809 F.2d 41, 49 (D.C. Cir. 1987) (stating that the omission of hydroelectric plants from the list of facilities exempted from certain administrative requ......
  • National Ass'n of Home Builders v. U.S. Army Corps, No. CIV. 00-379 RJL.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 29, 2006
    ...state limitations and requirements, as related to water quality, will become part of the federal permit, Monongahela Power Co. v. Marsh, 809 F.2d 41, 53 n. 114 (D.C.Cir.1987), and nothing in Section 401 implies that a State's limitations or requirements allows that permit seeker to avoid th......
  • U.S. v. Mango, No. 96-CR-327.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 5, 1998
    ...of aquatic ecosystems or related human uses. See 40 C.F.R. §§ 230.20-.54. As the court noted in Monongahela Power Co. v. Marsh, 809 F.2d 41 (D.C.Cir.1987), these guidelines "[a]ddress the potential losses to be expected from discharges and the means for minimizing them." Id. at 52......
  • Friends of the Earth v. Hall, No. C88-380R.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • August 11, 1988
    ...and that section 401 was not intended in any way to supplant requirements for obtaining a 404 permit. Monongahela Power Co. v. Marsh, 809 F.2d 41, 53 n. 114 (D.C. Cir.1987). Finally, the Ninth Circuit in FOE v. Hintz held that the appellants were foreclosed from raising the water quality is......
  • Request a trial to view additional results

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