Steamboaters v. F.E.R.C., s. 83-7444
| Citation | 759 F.2d 1382 |
| Decision Date | 07 May 1985 |
| Docket Number | Nos. 83-7444,83-7660,83-7705 and 83-7754,s. 83-7444 |
| Parties | , 15 Envtl. L. Rep. 20,505 THE STEAMBOATERS, an Oregon non-profit corporation, Petitioner, v. FEDERAL ENERGY REGULATORY, COMMISSION, Kenneth Plumb, Secretary of FERC, Winchester Water Control District, and Elektra Power Corporation, Respondents, Winchester Water Control District and Elektra Power Corporation, Intervenors. Malcolm BALDRIGE, Secretary of Commerce, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Winchester Water Control District and Elektra Power Corporation, Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Allen L. Johnson, Bill Kloos, Eugene, Or., for petitioner.
David C. Shilton, Dept. of Justice, Washington, D.C., for Baldrige.
Joshua Z. Rakach, FERC, Washington, D.C., Stephen T. Janik, Ball, Janik, & Novack, Portland, Or., R. Keith Guthrie, Vanness, Feldman, Sutcliffe, Curtis & Levenberg, Washington, D.C., for respondents.
On Petition for Review of Orders of the Federal Energy Regulatory Commission.
Before SNEED, ALARCON and NORRIS, Circuit Judges.
This appeal involves a series of orders in which the Federal Energy Regulatory Commission ("FERC") granted the Winchester Dam Hydropower Project ("Winchester Project") an exemption from federal licensing procedures under Section 408 of the Energy Security Act of 1980 ("ESA"). 16 U.S.C. Sec. 2705(d). The National Marine Fisheries Services of the United States Department of Commerce ("NMFS") and The Steamboaters, Inc. ("Steamboaters") petition this court for review of the exemption orders. We deny the petitions in part, grant the petitions in part, rescind the exemption order, and remand for further proceedings.
The central issue here is whether the Winchester Project qualifies for an exemption under Section 408 of the ESA. The Federal Power Act provides FERC with the authority to license and regulate hydropower projects. 16 U.S.C. Sec. 797(e). In 1978, Congress passed the Public Utility Regulatory Policies Act ("PURPA"), which amended the Federal Power Act and created a class of hydropower projects that FERC could exempt from normal licensing procedures. 16 U.S.C. Sec. 823a(a). Two years later, in section 408 of the ESA, Congress expanded the class of exemptible projects to include hydropower projects that are located at "existing dams" and have a proposed installed capacity of 5 megawatts or less. 16 U.S.C. Sec. 2705(d).
The centerpiece of the Winchester Project is the Winchester Dam, which is located on the North Umpqua River about five miles north of Roseburg, Oregon. The existing dam is a wooden structure consisting of a tied-back vertical timber bulkhead enclosing an old timber crib. An abandoned powerhouse forms the southern abutment of the dam and a concrete fish ladder and fish viewing building forms the northern abutment. The dam is owned and maintained by the Winchester Water Control District ("Winchester"), a municipal corporation.
The North Umpqua River serves as a major spawning ground for anadromous fish in the Umpqua Basin, including chinook and coho salmon, winter and summer steelhead trout, and cutthroat trout. Juvenile anadromous fish migrate down the North Umpqua to the Pacific Ocean where they mature. They return as adults to spawn in the waters above Winchester Dam. The concrete fish ladder is designed to assist adult fish migrating upstream.
On December 18, 1982, Winchester and the Elektra Power Corporation ("Elektra") filed an application with FERC for a hydropower licensing exemption under section 408 of the ESA. Their proposed project involved a construction of a new concrete powerhouse and intake structure at the southern abutment of Winchester Dam. The new powerhouse was expected to generate approximately 8,863,000 kilowatt hours per year. The project also involved, inter alia, the modernization of the existing fish ladder and fish viewing station, the construction of a juvenile screening facility and trashrack to prevent juvenile fish from passing through the turbines in their downstream
migration, and the maintenance and eventual replacement of the existing wooden dam.
Because the procedural history is quite complicated, we recite only the most relevant events. In January and February of 1983, several state and federal agencies petitioned to intervene in the proceeding before FERC regarding Winchester's application for an exemption. These agencies included NMFS, the Fish and Wildlife Service of the United States Department of Interior ("FWS"), and the Oregon Department of Fish and Wildlife ("ODFW"). All three agencies alleged that the Winchester Project could potentially have an adverse impact on fishery resources in the North Umpqua River and proposed terms and conditions to mitigate that impact. On March 28, 1983, Steamboaters, a private conservation group consisting mostly of recreational fishermen, filed a late petition to intervene that raised concerns similar to those raised by the agencies. On April 12, FERC granted all the petitions to intervene.
On April 18, FERC granted Winchester an exemption from federal licensing requirements, thereby permitting Winchester to proceed with project construction. The exemption order required Winchester to comply with any condition or terms proposed by the state and federal fish and wildlife agencies. In addition, the order noted that the issuance of the exemption was "not a major federal action affecting the quality of the human environment", Winchester Water Control District and Elektra Power Corporation, 23 F.E.R.C. p 61,097 (1983), and therefore, FERC did not order the preparation of an Environmental Impact Statement ("EIS"). See 42 U.S.C. Sec. 4332(2)(C).
During the next several months the parties filed numerous motions with FERC that challenged various aspects of the exemption order. On July 18, FERC issued an order addressing all the outstanding motions before it, including NMFS's application for rehearing, Winchester's petition seeking relief from NMFS conditions, and Steamboaters' application for rehearing of the April 18 order granting the exemption and the May 19 order rescinding intervention, as well as its complaint and request for stay. FERC made several rulings in its order. First, FERC found that Winchester was not violating any of the NMFS conditions. Second, FERC agreed with Winchester that the NMFS conditions were not binding. Third, FERC denied Steamboaters' request for a full stay because the existing stay was adequate to protect the status quo. Fourth, construing Steamboaters' complaints and the first petition for rehearing as raising the same claims, FERC noted that Steamboaters had raised an important but unresolved question whether the proposed dam modifications should affect the status of the exemption. Because it did not have enough information to resolve this question, FERC ordered an expedited hearing before an administrative law judge ("ALJ").
On September 15, after an expedited hearing before an ALJ, FERC issued an order denying Steamboaters' petition for rehearing of the April 18 exemption order. FERC held that the proposed dam modifications constituted repairs of the existing wooden dam, and therefore, the project still qualified for an exemption. FERC also held that Winchester's initial application was not deficient because it described the modifications as known at the time. Although Winchester should have amended its application once the plans for the modifications had been finalized, FERC noted that none of the interested parties had been prejudiced by Winchester's failure to amend because they had participated in proceedings where the modifications were discussed.
Steamboaters petitions for review of FERC's April 18, July 18, and September 15 orders. It contends that Winchester's application was deficient, that dam modifications disqualified the Winchester Project from an exemption because they constituted a new dam, and that FERC should have
prepared an Environmental Impact Statement. NMFS petitions for review of FERC's July 18 order, contending that its proposed conditions should have been imposed on the Winchester Project.
ARE NMFS CONDITIONS BINDING ON A HYDROPOWER PROJECT EXEMPTED
NMFS initially sought to impose seven conditions on the project. The most important condition was number five, which barred the issuance of an exemption until NMFS had, inter alia, reviewed and approved the fish passage facilities and was satisfied that no adverse impacts would occur. In its order granting the exemption, FERC did not specifically discuss the NMFS conditions. NMFS then petitioned for rehearing, because the project had not complied with its conditions. Shortly thereafter Winchester requested rejection of the NMFS conditions.
Before FERC acted on the petition for rehearing, NMFS submitted a list of 21 conditions to replace its earlier list. In addition to providing NMFS with the authority to review and approve the project's measures to mitigate adverse impacts on the environment, the new conditions set forth specific guidelines for the construction, maintenance, and evaluation of fish passage facilities.
On July 18, 1983, FERC denied NMFS's petition for rehearing, noting that the exemption was not barred because NMFS had deleted condition number five from its list of conditions. FERC also held that the NMFS conditions are non-mandatory and waivable under PURPA and the ESA.
NMFS contends that FERC erred in its July 18th order on rehearing by ruling that NMFS conditions are non-mandatory and waivable. NMFS argues that FERC is required under Section 30 of the Federal Power Act 1, 16 U.S.C. Sec. 823a, to impose NMFS fishery conditions on hydropower projects exempted...
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