Mountain Rhythm Resources v. F.E.R.C., 00-70357.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation302 F.3d 958
Docket NumberNo. 00-70963.,No. 00-70357.,00-70357.,00-70963.
PartiesMOUNTAIN RHYTHM RESOURCES, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Mountain Water Resources; Watersong Resources, Petitioners, v. Federal Energy Regulatory Commission, Respondent.
Decision Date23 August 2002
302 F.3d 958
Mountain Water Resources; Watersong Resources, Petitioners,
Federal Energy Regulatory Commission, Respondent.
No. 00-70357.
No. 00-70963.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 19, 2001.
Submission Withdrawn February 14, 2002.
Resubmitted and Filed August 23, 2002.

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Kurt Denke, Seattle, WA, for the petitioner.

David H. Coffman and Larry D. Gasteiger, Federal Energy Regulatory Commission, Washington, DC, for the respondent.

Thomas J. Young, Assistant Attorney General, Olympia, WA, for the intervenor-respondent.

R. Justin Smith, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC, for the amicus curiae.

On Petition for Review of an Order of the Federal Energy Regulatory Commission. FERC Nos. Project Nos. 4270, 4282 and 4312.

Before: KLEINFELD and GOULD, Circuit Judges, and ROLL,* District Judge.

GOULD, Circuit Judge.

Mountain Rhythm Resources, Mountain Water Resources, and Watersong Resources (collectively "Mountain Rhythm Companies") petition for review of Federal Energy Regulatory Commission (FERC) orders dismissing their respective applications for licenses to build hydroelectric

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plants. Because the proposed projects were located in Washington's coastal zone, FERC needed the State of Washington to certify that the projects were consistent with the state's Coastal Zone Management Program before FERC could consider the license applications. The State of Washington, in turn, required approval from the county where the projects were sited before it would consider whether to certify the projects' consistency with state coastal protection. Mountain Rhythm Companies declined to apply for county approval, despite being advised by the State of Washington and by FERC that a county Shoreline Management Act (SMA) permit was needed to process the state certifications. In the absence of state certifications, FERC dismissed the hydropower license applications. We deny the petitions for review.


We start with the fundamental proposition that "[t]he Federal Power Act (`FPA') requires that a party seeking to construct, operate or maintain a hydroelectric power facility must obtain a license from FERC." High Country Resources v. FERC, 255 F.3d 741, 742 (9th Cir.2001) (citing 16 U.S.C. § 817). But although we consider a federal regulatory regime, by statute Congress has required that FERC coordinate its decisions with certain specified federal and state interests. In the context of considering related requirements of the federal Clean Water Act, we have explained, "FERC's authority to provide such [hydroelectric power] licenses ... is not unlimited." High Country Resources, 255 F.3d at 742. In this case, we deal with federal and state law concerns for protecting and managing coastline that Congress has declared to be limitations on FERC's power. Specifically, the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1465, provides that if a hydropower project is located in a state's coastal zone, then FERC cannot issue the license unless the state's applicable agency concurs that the proposed project is consistent with the state's Coastal Zone Management Program, or the state's concurrence is conclusively presumed based on the state's failure to act by timely objection, or the Secretary of Commerce, on his or her own initiative or on appeal by applicant, overrides a state objection by finding a planned activity consistent with objectives of the CZMA or otherwise necessary for national security. 16 U.S.C. § 1456(c)(3)(A).

Once a FERC applicant applies to a state for a consistency certification, the state has six months to review this application, if it contains all necessary data and information. 16 U.S.C. § 1456(c)(3)(A). If six months pass without any objection from the state, then the state, by operation of the federal statute, forfeits its right to object to the project, and the project's consistency with the state's coastal program "shall be conclusively presumed" by FERC. Id. However, this six-month period for objection does not commence, by federal regulation, until the state has received all necessary data and information required by the state's Coastal Zone Management Program to begin review. 15 C.F.R. § 930.60. The phrase "necessary data and information" is expressly defined by regulation to include everything identified in the state's Coastal Zone Management Program as necessary for review of a certification. 15 C.F.R. § 930.58(a)(2). A request by the state for additional, as opposed to required, information does not stop the six-month clock.

If the state objects to the applicant's certification, that state decision is not necessarily fatal to the FERC license application. The FERC license applicant may appeal to the Secretary of Commerce for an override of the state's objection on the

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grounds that the applicant's proposed project is "consistent with the objectives of [the CZMA] or is otherwise necessary in the interest of national security." 16 U.S.C. § 1456(c)(3)(A).

Coastal zone boundaries, drawn by each state, show the areas subject to a state-devised Coastal Zone Management Program protecting coastal zones. 16 U.S.C. § 1455. The states' coastal zone maps and management plans must be approved by the National Oceanic and Atmospheric Administration (NOAA).1 16 U.S.C. § 1454.

The CZMA defines the coastal zone as: the coastal waters ... and the adjacent shorelands ..., and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches.... The zone extends inland from the shorelines only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters....

16 U.S.C. § 1453(1).

NOAA regulations instruct states on mapping their coastal zones:

The inland boundary must be presented in a manner that is clear and exact enough to permit determination of whether property or an activity is located within the management area.... An inland coastal zone boundary defined in terms of political jurisdiction (e.g., county, township or municipal lines), cultural features (e.g., highways railroads), planning areas (e.g., regional agency jurisdictions, census enumeration districts), or a uniform setback line is acceptable so long as it includes the areas identified.

15 C.F.R. § 923.31(a)(8) (emphasis added).

Against the background of these laws, Washington has designated the fifteen counties touching the coast of the Pacific Ocean and Puget Sound as its coastal zone. NOAA, with its delegated authority from the Secretary of Commerce, approved the coastal zone map and the Washington Coastal Zone Management Program (WCZMP) regulating the state's coastal zone.

Petitioners are three separate companies, owned by William Devine, that applied to FERC for licenses to build and operate small hydroelectric power plants located on three separate creeks that are tributaries of the Nooksack River2 in Whatcom County in northern Washington. Mountain Rhythm Companies initiated the FERC licensing application process in 1983. Each of petitioners filed a separate application for its hydroelectric project.

Whatcom County touches Puget Sound, and Washington has designated the entire county as a coastal zone. But Whatcom County also reaches east far into the peaks of the vast and rugged Cascade Range. The hydropower project sites at issue are at least 45 miles by winding river distance and 30 miles straight-line distance inland from Puget Sound, and are between 900 and 4000 feet above sea level. In August 1992, FERC informed Mountain Rhythm Companies that under the CZMA, state certification was required before FERC

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could issue licenses, because the projects were located in Washington's coastal zone. FERC told Mountain Rhythm Companies that it could not issue the licenses until (1) Mountain Rhythm Companies filed consistency certifications with the state Department of Ecology (DOE) showing that the projects were consistent with the state's coastal management plan; and (2) DOE concurred in the consistency certification or waived its right to object to them.

A week later, on August 31, 1992, Mountain Rhythm Companies filed their consistency certifications with DOE. These certifications were four pages each and in substance contended that because the projects were located so far from the coast, they would not affect the coast and should not be considered to be in the coastal zone.3 The certifications indicated that any further information or data could be found in FERC's files.4

On September 29 and October 1, 1992, DOE responded that it needed more information before it could begin to assess the consistency certifications. DOE told Mountain Rhythm Companies it still needed (1) an approved Shoreline Management Act permit from Whatcom County; (2) a brief assessment of the probable coastal zone effects of the proposal; and (3) a brief set of findings showing the projects' consistency with the WCZMP.5 DOE contends that this letter gave timely notice of objection to consistency with the WCZMP absent an SMA permit.

Notwithstanding these state communications, Mountain Rhythm Companies still had not cured these asserted deficiencies five years later when, in September 1997, FERC completed its environmental impact

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study on the hydropower projects. On September 30, 1997, FERC notified Devine that the Boulder Creek project still needed DOE's concurrence. In December 1997, Devine asked DOE what was needed, and DOE wrote back on March 13, 1998 that an SMA permit, among other things, was still lacking from the consistency certification. On March 23, 1998, FERC, too, told Devine that DOE needed an SMA permit from Whatcom County before reviewing the Boulder Creek certification.

On April 29, 1998, Devine filed with FERC a Motion for...

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