St. of Wisconsin v. Fed Energy Regulatory Comm'n., 98-3312

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation192 F.3d 642
Docket NumberNo. 98-3312,98-3312
Parties(7th Cir. 1999) State of Wisconsin, Petitioner, v. Federal Energy Regulatory Commission, Respondent
Decision Date16 September 1999

Page 642

192 F.3d 642 (7th Cir. 1999)
State of Wisconsin, Petitioner,
Federal Energy Regulatory Commission, Respondent.
No. 98-3312
United States Court of Appeals, Seventh Circuit
Argued May 10, 1999
Decided September 16, 1999

Petition for Review of an Order of the Federal Energy Regulatory Commission.

Page 643

Before Bauer, Kanne, and Evans, Circuit Judges.

Bauer, Circuit Judge.

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.

I. Background


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).

B. Projects in the Flambeau River

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.

C. The Project Licenses

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

Page 644

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...

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