Platte River Whooping Crane Critical Habitat Maintenance Trust v. F.E.R.C., 88-1425

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 876 F.2d 109,277 U.S.App. D.C. 350
• Docket Number: No. 88-1425,88-1425
• Parties: , 19 Envtl. L. Rep. 20,883 PLATTE RIVER WHOOPING CRANE CRITICAL HABITAT MAINTENANCE TRUST, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, The Central Nebraska Public Power and Irrigation District, Intervenor.
• Decision Date: 19 May 1989

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876 F.2d 109 277 U.S.App.D.C. 350, 19 Envtl. L. Rep. 20,883 PLATTE RIVER WHOOPING CRANE CRITICAL HABITAT MAINTENANCE
TRUST, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent,
The Central Nebraska Public Power and Irrigation District, Intervenor. No. 88-1425. United States Court of Appeals,
District of Columbia Circuit. Argued April 21, 1989.
Decided May 19, 1989.

Abbe David Lowell, with whom Peter J. Kirsch, Washington, D.C., was on the brief, for petitioner.

Hanford O'Hara, Atty., F.E.R.C., with whom Catherine C. Cook, General Counsel, and Joseph S. Davies, Deputy Sol., F.E.R.C., Washington, D.C., were on the brief, for respondent.

Nancy S. Bryson, Washington, D.C., was on the brief, for intervenor.

Tom Watson, Washington, D.C., also entered an appearance, for intervenor.

Before WALD, Chief Judge, and EDWARDS and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

The banks of the Platte River in central Nebraska are home to a number of endangered species of wildlife, including the whooping crane. Petitioner Platte River Whooping Crane Critical Habitat Maintenance Trust ("Trust") was established in 1978 by the Basin Electric Power Cooperative, Inc. as part of a settlement of litigation over the construction of a Wyoming dam; it is administered by three trustees representing the State of Nebraska, the National Wildlife Federation and Basin Electric. Its mandate is to "protect and maintain ... the physical, hydrological and biological integrity of [the Platte River] area so that it may continue to function as a life-support system for the whooping crane and other migratory species which utilize it." Because of this mandate the Trust has a keen interest in intervenor-respondents', the Central Nebraska Public Power and Irrigation District and the Nebraska Public Power District ("Districts"), operation of two large hydroelectric projects on the Platte River which may critically affect the continued vitality of wildlife in the area. The Trust is currently before this court seeking review of an order of the Federal Energy Regulatory Commission ("FERC" or "Commission"), refusing the Trust's request that FERC undertake an assessment of the need for

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wildlife protective conditions in the interim annual licenses pursuant to which the Districts are currently operating pending the completion of relicensing proceedings before FERC. We find that refusal of this request was an abuse of discretion and remand the case back to FERC to conduct such an assessment.

I. PROCEDURAL HISTORY

The Districts were initially licensed to operate hydro-electric Project No. 1835 and Project No. 1417 in 1941 by FERC's predecessor, the Federal Power Commission. These long-term licenses expired on June 30 and July 29, 1987, respectively.

FERC regulations require the Districts to file applications for relicensing no later than three years prior to the expiration of old licenses. 18 C.F.R. Sec. 16.3(a) (1986). Applications for a new license must include extensive information about the operation of a project, including reports on water quality and on fish, wildlife and botanical resources. 18 C.F.R. Sec. 4.51 (1986). FERC may find an application deficient for failing to provide required information and grant an applicant an additional ninety days in which to perfect the application. 18 C.F.R. Sec. 4.32(d)(1)(i) (1986). "If the revised application is found not to conform to the requirements [of the regulations] or if the revisions are not timely submitted, the revised application will be rejected." 18 C.F.R. Sec. 4.32(d)(1)(iii) (1986). In the event that no new license has been issued prior to the expiration of existing licenses, FERC is required to issue from year to year an annual license "to the then licensee under the terms and conditions of the original license until ... a new license is issued." 16 U.S.C. Sec. 808(a) (1985).

The Districts submitted applications for new licenses on June 28, 1984, two days before the statutory deadline. On December 7, 1984, FERC informed the Districts that their applications were deficient. FERC's deficiency letter stated that the applications' Report on Water Use and Quality had to be revised to include

A description ... of the minimum flow recommendation made by the agencies consulted to include an explanation of why the Applicant has rejected any flows recommended by an agency

and the Report on Fish, Wildlife and Botanical Resources had to be revised to include

An analysis ... of the long-term impact on the vegetation and wildlife of the North Platte and Platte River systems resulting from the past operations of the existing systems [and] a discussion of feasible operating alternatives and mitigative measures that would minimize the continuing impact so [sic, probably should be "of"] the projects and enhance existing botanical and wildlife resources. The response should include a detailed discussion of the project's impact on the whooping crane's designated critical habitat and alternatives for protecting and enhancing the critical habitat.

Brief for Intervenor-Respondents, Addendum B at B-21.

The Districts responded to the deficiency letter by asking that they be permitted to delay correction of the deficiencies until completion of a joint Fish and Wildlife Service and Bureau of Reclamation Study ("Joint Study"), designed to provide resource management information relevant to the issues raised by the deficiency letter. On January 27, 1986 (over a year and a half after the applications had been filed), FERC informed the Districts that the applications were still deficient but that they would be granted an extension of time until 120 days after the completion of the Joint Study to correct the deficiencies. At this time, the Trust was not a party to the proceedings: since there had been no notice of a renewal application published in the Federal Register, 18 C.F.R. Sec. 385.2009 (1986), no date for filing interventions had been established. 18 C.F.R. Sec. 385.210 (1986). Thus, no petition for rehearing of the grant of this extension of time was filed by the Trust.

Another fifteen months passed, without completion of the Joint Study and therefore with no completed application for new licenses filed with FERC. With the existing licenses due to expire and no prospect that new licenses would be issued before expiration,,

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the Trust noticed its intention to intervene and on May 22, 1987, filed a petition asking that FERC consider the need for environmental protective conditions in the annual licenses that it would be required to issue as of June 30 and July 28, 1987.

The Commission's first response to this request asserted that FERC had no authority to condition the annual licenses and that therefore there was no point in undertaking any review of the need for such conditions. FERC denied the petition to amend the annual licenses on June 30, 1987, stating:

T]he Commission is empowered to amend an annual license, for example by adding conditions for the protection of fish and wildlife, only if the existing license contains such reservation of authority or the licensee agrees to such additional conditions. The existing licenses ... contain no such reservations of authority

Central Nebraska Public Power and Irrigation District, Project No. 1417, 39 F.E.R.C. p 61,378 at 62,223 (1987).

On July 24, 1987, the Trust petitioned for rehearing of the denial, pointing out that the license for Project No. 1835 did in fact include an express reservation of FERC's authority to alter the license at its discretion and that licenses for both projects provided for modification with the consent of the licensees. FERC granted the petition for rehearing for the purpose of reconsideration. Another nine months passed, still without completion of the Joint Study and correction of the deficiencies in the Districts' original applications for new licenses. Then, on May 5, 1988, the Commission issued its order denying rehearing of the Trust's request for an assessment of the need for environmental protective conditions in the annual licenses.

While conceding that the license for Project No. 1835 reserved modification authority to the Commission, FERC refused to either exercise this authority or to seek the cooperation of the Districts in arriving at consensual amendments to the annual licenses for both projects. FERC rested this decision on the ground that "Commission orders [must] be based on substantial evidence [and] we do not have sufficient information to determine appropriate mitigative conditions." Central Nebraska Public Power and Irrigation District, Project No. 1417, 43 F.E.R.C. p 61,225 at 61,579 (1988). FERC noted that the information necessary to formulate conditions was being gathered in connection with relicensing.

In this same order, FERC also acknowledged the unexpectedly slow pace of the Districts' efforts to cure the deficiencies in their applications and the consequent delay in the commencement of the relicensing proceeding. The Commission found that the Joint Study was

not progressing at the expected rate, the projected date for completion is unclear and the information expected to be included in the Study will not be as helpful to the licensees as once hoped. It is therefore no longer appropriate to tie the correction of the deficiencies in the relicense applications to the completion of the Joint Study.

43 F.E.R.C. at 61,580. Granting a petition filed by other public interest groups (but not the Trust), requesting that expeditious procedures for relicensing be established, FERC set a new deadline for correction of the deficiencies in the Districts' applications, giving them two more years to gather the necessary information. The Districts now have until May 5, 1990 to complete their applications: relicensing proceedings will not begin until that date; annual licenses will continue to issue until the...