St. of Wisconsin v. Fed Energy Regulatory Comm'n.
| Decision Date | 16 September 1999 |
| Docket Number | No. 98-3312,98-3312 |
| Citation | 192 F.3d 642 |
| Parties | (7th Cir. 1999) State of Wisconsin, Petitioner, v. Federal Energy Regulatory Commission, Respondent |
| Court | U.S. Court of Appeals — Seventh Circuit |
Petition for Review of an Order of the Federal Energy Regulatory Commission.
Before Bauer, Kanne, and Evans, Circuit Judges.
On February 5, 1997, the Federal Energy Regulatory Commission (the "FERC") issued licenses for six hydropower projects on the Flambeau River in Wisconsin. These six project licenses were divided between two companies, Fraser Papers, Inc. ("Fraser") and Northern States Power Co. ("Northern States"). Wisconsin appeals from the FERC's orders granting these six project licenses, arguing that each license should contain an article requiring a fish entrainment protection device study. Because we find that Wisconsin does not have Article III standing to assert its claim before this Court, we dismiss the petition for review.
Under sec. 4(e) of the Federal Power Act (the "FPA"), 16 U.S.C. sec. 797(e), the FERC may license hydroelectric power projects on waterways subject to Congressional regulation under the Commerce Clause. The FERC may license hydroelectric projects that are "best adapted to a comprehensive plan . . . for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife . . . , and for other beneficial public uses." FPA sec. 10(a), 16 U.S.C. sec. 803(a). In making its public interest determinations under the FPA, the FERC must give equal consideration to the "power and development purposes" of a hydroelectric project and to the "protection, mitigation of damages to, and enhancement of fish and wildlife," and "the preservation of other aspects of environmental quality." FPA sec. 4(e), 16 U.S.C. sec. 797(e). When granting a hydroelectric power project license, the FERC is to consider the recommendations of state and federal agencies exercising administration over, inter alia, "relevant resources of the State in which the project is located." FPA sec. 10(a)(2)(B), 16 U.S.C. sec. 803(a)(2)(B).
The Flambeau River, a tributary of the Chippewa River, is located in north central Wisconsin. Within the 1,860 square-mile Flambeau River Basin are two storage reservoir complexes and eight existing hydroelectric projects, six of which are at issue in this proceeding. Fraser owns the licenses on four of the six projects and Northern States owns the licenses on the remaining two.
In 1991, Fraser and Northern States applied to the FERC for licenses for these six projects. As part of the licensing process required under 18 C.F.R. sec. 16.8, both Fraser and Northern States consulted with various state conservation and resource agencies, such as the Wisconsin Department of Natural Resources (the "WDNR"). Fraser and Northern States also conducted a year- long fish entrainment1 study in five of the six project sites.
In 1993, the FERC issued a public notice for each license application. The WDNR filed preliminary comments and recommendations with the FERC on the projects, stating that Fraser's and Northern States' assessments of fish entrainment were deficient because: (1) the assessments underestimated fish mortality; and (2) the WDNR fish sampling methodology should have been used in formulating the assessments. The WDNR also recommended to the FERC that Fraser and Northern States develop fishery management plans and consult with it on all fishery management practices, including fish entrainment.
On December 8, 1995, the FERC published a draft Environmental Impact Study (the "draft EIS") for the six projects. The draft EIS evaluated the fish studies that were conducted at the five hydroelectric projects. These studies included data provided by Fraser and Northern States on the number and type of fish entrained at the project sites in a one-year period. The data also estimated the incidence of fish mortality in the turbines. After compiling the data, the FERC's staff estimated that, for the five projects studied, a total of 337,000 fish had been entrained annually and that between 12,000 and 58,000 fish were killed annually. The data revealed that the majority of fish killed generally were less than one year old. These figures were set forth in the draft EIS.
In the draft EIS, the FERC noted that "although the impact of fish entrainment and associated turbine mortality to the fishery of the Flambeau is probably minimal, without detailed long-term information on fish population dynamics within the Flambeau River, it is difficult to determine the effects of entrainment and associated turbine mortality on fish populations." In the draft EIS, the FERC also evaluated the costs associated with installing and maintaining at the project sites fish barrier nets and other protective devices designed to discourage fish entrainment. The FERC concluded in the draft EIS that installation of fish protection devices would not be appropriate "based on the lack of a fishery management plan for the Flambeau River, the extent of entrainment losses that are occurring, and the estimated cost of the protection measures." Nevertheless, the FERC recommended in the draft EIS that Fraser and Northern States evaluate, in consultation with the WDNR, alternative fish protection devices or compensatory measures at the six projects.
On September 30, 1996, the FERC issued its final Environmental Impact Study (the "final EIS"). In the final EIS, the FERC considered, but ultimately rejected the WDNR's data and recommendations regarding fish entrainment and mortality at the six projects. On the other hand, in the final EIS, the FERC accepted Fraser's and Northern States' entrainment and mortality data and provided reasons why their data "reasonably and accurately" estimated entrainment and fish mortality at the five projects studied. In its conclusion in the final EIS, the FERC stated:
[T]he specific effects of entrainment and turbine mortality on the impoundment fish populations are unknown. The state of fishery in the Flambeau River is dependent on a multitude of factors including water quality, climatic conditions such as precipitation and temperature, habitat conditions, and population and community interactions in addition to the effects of entrainment and turbine mortality. It is important to realize that the status of fishery in the Flambeau River has improved over the years, in spite of continuous entrainment and turbine mortality, primarily due to water quality improvements as a result of decreases in pollution discharges. However, we believe that decreasing the rate of entrainment and turbine mortality in the Flambeau River could result in subtle changes in the density and growth of walleye in the Flambeau River.
Although we conclude that the impact of entrainment and associated turbine mortality to the fishery of the Flambeau River is probably minimal, without detailed long-term information on fish population dynamics within the Flambeau River, it is difficult to determine the effects of entrainment and associated turbine mortality on fish populations in the Flambeau River.
(Final EIS, at 5-69). In the final EIS, the FERC also recommended that Fraser and Northern States evaluate, in consultation with the WDNR, alternative fish protection devices or compensatory measures at the projects.
On February 5, 1997, the FERC issued licenses to Fraser and Northern States for the six projects. In each license, the FERC incorporated several articles aimed at protecting the local fishery resources. For example, each license included a standard "reopener" article, under which the FERC reserved the right to impose additional future requirements if they became necessary. The license included a requirement for a fish entrainment study. It also included an article that memorialized...
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