State of North Carolina v. FEDERAL POWER COM'N, C-74-391-W.

• Court: United States District Courts. 4th Circuit. Middle District of North Carolina
• Citation: 393 F. Supp. 1116
• Decision Date: 07 May 1975
• Docket Number: No. C-74-391-W.,C-74-391-W.
• Parties: STATE OF NORTH CAROLINA et al., Plaintiffs, v. FEDERAL POWER COMMISSION et al., Defendants.

393 F. Supp. 1116

STATE OF NORTH CAROLINA et al., Plaintiffs,
v.
FEDERAL POWER COMMISSION et al., Defendants.

No. C-74-391-W.

United States District Court, M. D. North Carolina, Wilkesboro Division.

May 7, 1975.

393 F. Supp. 1117

Rufus L. Edmisten, Atty. Gen., and Millard R. Rich, Jr., Asst. Atty. Gen., Raleigh, N. C., Norman B. Smith, Greensboro, N. C., and Prof. Thomas J. Schoenbaum, Chapel Hill, N. C., for plaintiffs.

Drexel D. Journey, George W. McHenry, Jr., and Steven A. Taube, Washington, D. C., for Federal Power Commission and members of the Commission.

Kenneth Wooten, Jr., and J. Ruffin Bailey, Raleigh, N. C., for the Appalachian Power Co., Inc.

James E. Ryan, Jr., Asst. Atty. Gen., Richmond, Va., for the Commonwealth of Virginia.

MEMORANDUM OPINION

GORDON, Chief Judge.

I.

This is an action to enjoin construction and other development activities on the New River in Northwestern North Carolina, until such time as the Secretary of the Interior has completed a study pursuant to Section 2(a)(ii) of the Wild and Scenic Rivers Act, 16 U.S.C. § 1273(a)(ii), to determine whether a segment of this river, which would be eliminated as a free-flowing stream by a proposed hydroelectric dam, is suitable for designation as a scenic river under Section 2(b) of the Act, 16 U.S.C. § 1273(b). The action is brought jointly by the State of North Carolina and several individuals owning land which will be taken by the defendant, Appalachian Power Company, for the Modified Blue Ridge Project pursuant to a license issued June 14, 1974, by the defendant Federal Power Commission (F.P.C.).

On June 14, 1974, the F.P.C. issued Opinion No. 698 granting a license to Appalachian Power Company (Appalachian) to construct a combined conventional and pumped storage hydroelectric project on the New River near Galax and Independence, Virginia, and Sparta, North Carolina. The licensing of the Modified Blue Ridge Project ended twelve years of administrative consideration

393 F. Supp. 1118

of the project by the F.P.C. Upon application for rehearing and motions for reconsideration, the Commission, on August 12, 1974, issued its Opinion No. 698-A reaffirming, with minor modifications, its Opinion No. 698 of June 14, 1974. Thereafter, on October 7, 1974, North Carolina filed a petition for review pursuant to Section 313(b) of the Federal Power Act, 16 U.S.C. § 825l(b), in the United States Court of Appeals for the District of Columbia Circuit requesting that the Court set aside Opinion Nos. 698 and 698-A and their respective accompanying orders granting a license to Appalachian to construct and operate the Modified Blue Ridge Project.¹ The Commission filed the certificate of record in lieu of record with the Court of Appeals on November 25, 1974

In 1968, during the first decade of the F.P.C.'s consideration of Appalachian's application for a license, Congress enacted the Wild and Scenic Rivers Act,² which provides for a National Wild and Scenic Rivers System.³ Section 3 of the Act, as amended, 16 U.S.C. § 1274, authorizes for inclusion in the national system ten rivers or segments thereof. Section 5 of the Act, 16 U.S.C. § 1276, sets out twenty-seven additional rivers designated as potential additions to the system and requires the Secretary (Interior or Agriculture) to study and report on the suitability or non-suitability of each river for inclusion in the system. In addition to sections 3 and 5, the Act provides in section 2(a), 16 U.S.C. § 1273(a), two ways in which other rivers may be added to the system in the future.

"§ 1273. National wild and scenic rivers system; Congressional authorization for inclusion; designation by State legislatures; permanent administration by States; application for inclusion by Governors; satisfaction of criteria; eligibility for inclusion

"(a) The national wild and scenic rivers system shall comprise rivers (i) that are authorized for inclusion therein by Act of Congress, or (ii) that are designated as wild, scenic or recreational rivers by or pursuant to an act of the legislature of the State or States through which they flow, that are to be permanently administered as wild, scenic or recreational rivers by an agency or political subdivision of the State or States concerned without expense to the United States, that are found by the Secretary of the Interior, upon application of the Governor of the State or the Governors of the States concerned, or a person or persons thereunto duly appointed by him or them, to meet the criteria established in this chapter and such criteria supplementary thereto as he may prescribe, and that are approved by

393 F. Supp. 1119

him for inclusion in the system, including, upon application of the Governor of the State concerned, the Allagash Wilderness Waterway, Maine, and that segment of the Wolf River, Wisconsin, which flows through Langlade County." 16 U.S.C. § 1273(a).

Section 7 of the Act, 16 U.S.C. § 1278, prohibits the F.P.C. from licensing any projects on the ten rivers listed in section 3, and on the 27 "study rivers" listed in section 5 during their study period plus an additional period thereafter for congressional consideration of any Secretarial proposal, or Secretarial consideration of any State proposal pursuant to § 1273(a)(ii). Insofar as relevant to the present controversy, section 7 provides as follows:

"(b) The Federal Power Commission shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, as amended, on or directly affecting any river which is listed in section 1276(a) of this title, and no department or agency of the United States shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river might be designated, as determined by the Secretary responsible for its study or approval —

"(i) during the ten-year period following October 2, 1968 or for a three complete fiscal year period following any Act of Congress designating any river for potential addition to the national wild and scenic rivers system, whichever is later, unless, prior to the expiration of the relevant period, the Secretary of the Interior and, where national forest lands are involved, the Secretary of Agriculture, on the basis of study, determine that such river should not be included in the national wild and scenic rivers system and notify the Committees on Interior and Insular Affairs of the United States Congress, in writing, including a copy of the study upon which the determination was made, at least one hundred and eighty days while Congress is in session prior to publishing notice to that effect in the Federal Register, and

"(ii) during such additional period thereafter as, in the case of any river the report for which is submitted to the President and the Congress, is necessary for congressional consideration thereof or, in the case of any river recommended to the Secretary of the Interior for inclusion in the national wild and scenic rivers system under section 1273(a) (ii) of this title, is necessary for the Secretary's consideration thereof, which additional period, however, shall not exceed three years in the first case and one year in the second." 16 U.S.C. § 1278(b).

The New River in North Carolina is not among the rivers listed in either section 3 or section 5 of the Act, and whether it is a "river recommended to the Secretary of the Interior for inclusion in the national wild and scenic rivers system under section 1273(a)(ii)" is a contested issue.

In February of 1974, the House and Senate agreed to delete from the conference version of the Rivers and Harbors Authorization Act, HR 10203, 93rd Congress, a provision that had been included in the House version to study the New River to determine its suitability for inclusion in the Wild and Scenic Rivers System. This provision would have prevented the F.P.C. from licensing the Modified Blue Ridge Project. 16 U.S.C. § 1278(b)(i), supra.

On May 28, 1974, the Senate passed S. 2439, to amend section 5 of the Wild and Scenic Rivers Act, 16 U.S.C. § 1276, to provide for a study of the New River where the Blue Ridge project would be located, thereby preventing the F.P.C. from licensing the project. 120 Cong.

393 F. Supp. 1120

Rec. at S. 9077, daily ed.⁴ After considerable parliamentary jousting, the House, on December 18, 1974, refused to suspend its rules to permit passage of S. 2439, thereby causing it to expire at the end of the 93rd Congress. 120 Cong. Rec. at H. 12261-H. 12268, H. 12290-H. 12291, daily ed

On March 21, 1974, the General Assembly of North Carolina enacted a statute providing that a 4.5 mile "segment of the New River which extends . . . to the Virginia line . . . shall be included in the North Carolina Natural and Scenic Rivers System." N.C.G.S. § 113A-35.1. This enactment was in conformity with the requirements of 16 U. S.C. § 1273(a)(ii). On December 12, 1974, the Governor of North Carolina, armed with the newly enacted G.S. § 113A-35.1, submitted to the Secretary of the Interior a Management Plan for the South Fork and Main Stem of the New River, pursuant to section 2(a)(ii) of the Act, and requested that the Secretary designate the New River in Northwestern North Carolina a scenic river area under the Wild and Scenic Rivers Act. Thereafter, on December 16, 1974, North Carolina by motion requested the F.P.C. to stay the effective date of the license until the Court of Appeals for the District of Columbia or the Supreme Court, as the case may be, renders a decision on the appeal of the Commission's Opinions and Orders in Nos. 698 and 698-A.⁵ Thereafter, on December 18, 1974, the plaintiffs filed their complaint in this action, thereby bringing to at least three the number of forums in which North Carolina is seeking to block the Modified Blue Ridge Project.⁶ Indeed, in...