Petition for Writ of Certiorari — Monongahela Power Co. v. Marsh

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APR 13 987

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

MONONGAHELA POWER COMPANY,

THE POTOMAC EDISON COMPANY,

AND WEST PENN POWER COMPANY,

Petitioners,

JOHN O. MARSH, JR.,

LIEUTENANT GENERAL JOHN W. MORRIS,

COLONEL MAX R. JANAIRO, JR.,

AND COLONEL JOSEPH A. YORE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Davip I. GRANGER

Counsel of Record

RoBERT P. REZNICK

ALEXANDER PAPACHRISTOU

CLIFFORD & WARNKE

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Whether Congress intended the 1972 amendments

to the Federal Water Pollution Control Act to re-

peal the exclusive authority over hydropower li-

censing entrusted by Congress since 1920 to the

Federal Energy Regulatory Commission and its

predecessor, and require specifically that hydro-

power licensing be subjected to duplicative, de novo

proceedings by the Commission and by the United

States Army Corps of Engineers?

. Whether the Court of Appeals correctly held that

the Federal Energy Regulatory Commissicn is not

required to implement substantive environmental

protections in discharging its obligation to issue

hydropower licenses ‘‘in the public interest’’?

CORPORATE LISTING STATEMENT

Petitioners Monongahela Power Company, The Po-

tomac Edison Company, and West Penn Power Com-

pany are wholly-owned subsidiaries of Allegheny

Power System, Inc. Affiliates of petitioners include

Allegheny Power Service Corporation, Allegheny Gen-

erating Company, Allegheny Pittsburgh Coal Com-

pany, West Virginia Power and Transmission

Company, West Penn West Virginia Water Power

Company, Ohio Valley Electric Company and Indiana

Kentucky Electric Company.

ill

PARTIES

In addition to the parties listed in the caption, the

Federal Energy Regulatory Commission intervened as

an appellee in the Court of Appeals and sought to

have the District Court’s decision affirmed. Also, the

foliowing parties intervened as defendants in the Dis-

trict Court and sought to have its decision reversed

in the Court of Appeals:.the Sierra Club, West Vir-

ginia Highlands Conservancy, National Wildlife Fed-

eration, Environmental Defense Fund, National

Audubon Society and the State of West Virginia.

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................

CORPORATE LISTING STATEMENT .

PUREED | cincshovsunthisianuianteienbasenahs sais

TABLE OF AUTHORITIES | .u..........ccc00. ssesscssesseee

er I ehiintiiiciicneniinsintevecunmsessecnvdadiniia

PII, “siiahseettenisednntiocicitisiseninaisaniinnsceitasininlion

RARE UF RD MOTO UST EID . cocsscccssesennenaxstscnsvensnnccousens

STATEMENT OF THE CASE .............cccsccccssseeee:

1. Proceedings Before The Comm'ssi

2. Proceedings Before The (>ro: __...........

3. The District Court Proceeding ...............

4. The Court of Appeals Proceeding ..........

REASONS FOR GRANTING THE WRIT ............

II.

ELIMINATION OF THE COMMISSION’S

EXCLUSIVE JURISDICTION OVER HY-

DROPOWER PROJECT LICENSING IS

CONTRARY TO CONGRESSIONAL IN-

TENT AND IN CONFLICT WITH BIND-

THE COURT OF APPEALS’ ATTEMPT TO

STRIP THE COMMISSION OF ITS ENVI-

RONMENTAL ROLE IGNORES S7ATU-

TORY COMMANDS AND CONTRAVENES

aa COURT’S GOVERNING PRECE-

COR sitio ee

APPENDIX A. Opinion of the United States Court

of Appeals for the District of Co-

A-l

SS ee

APPENDIX B. Memorandum and Order of the

United States District Court for

the District of Columbia ..............

APPENDIX C. Order of the United States Court

of Appeals on Suggestion for Re-

hearing En Bancee ...........cccssssccceeees

APPENDIX D. Relevant Statutory Provisions .....

B-1

D-1

TABLE OF AUTHORITIES

CASES: Page

Appalachian Power Co. v. United States, 607 F.2d

935 (Ct. Cl. 1979), cert. denied, 446 U.S. 935

0 a 18,22

Firsit Iowa Hydro-Electric Coop. v. Federal Power

Commission, 328 U.S. 152 (1946) _.......... 12

Federal Power Commission v. Union Electric Co..,

et | FY: | peer pane 12

Kremer v. Chemical Construction Corp., 456 U.S.

| se 18

NAACP vy. Federal Power Commission, 520 F 2d

432 (D.C. Cir. 1975), aff'd, 425 U.S. 662

TRIPUGR ceccccccccccccoscconesecesesenencosesnonsnsepnbncnssesenseses 22

NAACP v. Federal Power Commission, 425 U.S.

Gian SITU - ccusemiesitansnentetiedaaemmemannaaaanaiammaniels 22

National Wildlife Federation v. Consumers Power

Co., No. G&5-1146 (W.D. Mich. March 31,

DEED ceaseccecuunbectencncebediendasetaencedemieneneamenineasia: 20

Pacific Legal Foundation v. State Energy Resources

Conservation & Development Comm'n, 659 F.2d

903 (9th Cir. 1981), aff'd, 461 U.S. 190 (1983)

ncocenecacconececsvecceconeseneeseuseqceussonsssenssnesesoososessasecens 20

Public Service Comm'n of New York v. Federal En-

avy. Regulatory Commission, 589 F.2d 542

Rts 3b eee 22-23

Radzanower v. Touche Ross & Co., 426 U.S. 148

CED cccereevinssnenssensetesnseenenesemesntneeeaenbinian 18

Ruckelshaus v. Monsanto Co., 467 U.S. 986

CREED cevansnseccunctnnsessanttneenenimanadiamamminns 18

Scenic Hudson Preservation Conference v. Callaway,

370 F.Supp. 162 (S.D.N.Y. 1973), affd per cur-

iam on district court opinion, 499 F.2d 127

Be | ne 16,18,19,20

Train v. Colorado Pub. Interest Research Group,

we: BS Se) ee 15,19,20

_— ee ee.

Table of Authorities Continued

Page

Udall v. Federal Power Commission. 387 U.S. 428

REE SRE ne ene n nae ee 22,23

United States v. Hansen, 772 F.2d 940 (D.C. Cir.

1985), cert. denied, 106 S.Ct. 1262 (1986) ... 18

Universal Interpretive Shuttle Corp. v. Washington

Metropolitan Area Transit Comm'n, 393 U.S.

ee eae eee 21

Watt v. Alaska, 451 U.S. 259 (1981)... 18

Monongahela Power Co., 58 F.P.C. 451 (1977) .. 5,68

Sierra Club v. Nebraska Pub. Power District. 55

if, % { ae ees 23

South Carolina Electric & Gas Co., 7 Fed. _-

Reg. Comm'n Rep. (CCH) ¢ 61,180 at 61,339

Ee ae Ae 23

STATUTES:

Federal Power Act:

Act of June 10, 1920, 41 Stat 1063, as

amended (current version codified at 16

U.S.C. §§ 79la-825s (1982)) ...........0.00cccccccce. passim

§ 4(e), 16 U.S.C. § 797(e) (1982) o.oo. 2.4

§ 10(a), 16 U.S.C. § 803(a) (1982) ............... passim

§ 10G), 16 U.S.C. § 803G), as added by Pub.

. No. 99-495, § 3ic), 100 Stat. 1243

VEL REARS eC 14

§ 23(b), 16 U.S.C. § 817 (1982) 2.0... 2.4

Electric Consumers Protection Act of 1986:

Pub. L. No. 99-495, § 3, 100 Stat. 1243

RAST Se AS Ra 13,14,19,23

Federal Water Pollution Control Act:

§ 301(a), 33 U.S.C. § 1311(a) (1982) ............. 2.7

§ 404(a), 33 U.S.C. § 1344(a) (1982) ............ passim

Vii

Table of Authorities Continued

Page

Federal Water Pollution Control Act Amendments

of 1972:

Pub. L. No. 92-500, 86 Stat.

RC SECA E OR passim

Clean Water Act of 1977:

Pub. L. No. 95-217, 91 Stat. 1566 (1977) ... 14,16

Department of Energy Organization Act:

Pub. L. No. 95-91, 91 Stat. 565

GETEED cunubdnupemnnndtiddadeesncineseetnennenenenscenes 4,12-13,17,19

National Environmental Policy Act of 1969, 42

U.S.C. §§ 4321 et seg. (1982) ooccccccccccscccseseees 23

Rivers and Harbors Act of 1899:

8§ 9 and 10, Act of Mar. 3, 1899, §§ 9 and

10, 30 Stat. 1121, 1151 (1899) ..................... 12

Act of February 1, 1905:

Pub. L. No. 34, 33 Stat. 628 (1905) _............. 12

Public Utility Act of 1935:

4 Eee ne 12

Fish and Wildlife Coordination Act:

Pub. L. No. 85-624, 72 Stat. 563 (1958) _..... 14,22

Anadromous Fish Act:

Pub. L. No. 89-304, 79 Stat. 1125 (1965) _... 22

Atomic Energy Act of 1954, Pub. L. No. 68-703,

f F. _ 19

Oe Tt IIE -sdinciusisechicchdesiscisiidnicdccnblenteasmiamtenseniamain 6

UD Te PS eet chtatties ceed eeeeceeceiaitettineadaae 2

REGULATIONS:

pet 2 RE Of ern 23,24

18 C.F.R. pt. 2, App. A (1986) .....ccccccccccccceeeeenees 24

42 Fed. Reg. 37146 (1977) (later codified at 33

Ae BP FO aaa 7

33 Fed. Reg. 18672 (1968) (later codified at 33

C.F.R. § 209.1204 M9) (1972)) .....ceeceeeereeeeeeees 16

Table of Authorities Continued

MISCELLANEOUS:

H.R. Conf. Rep. No. 539, 95th Cong., 1st Sess. 55,

reprinted in 1977 U.S. Code Cong. & Admin.

enor seieuumianshiantennasss

H.R. Conf. Rep. No. 934, 99th Cong., 2d Sess.,

reprinted in 1986 U.S. Code Cong. & Admin.

Sy SI aia

117 Cong. Rec. S38853 (1971) .o...eccccccccceeeeeeeees

117 Cong. Rec. S38857 (1971) _......... aia

118 Cong. Rec. H10804 (1972) rea

118 Cong. Rec. H33718 (1972) ............cc000.

5S. 2770, 92d Cong., Ist Sess. (1971) joie

H.R. 11896, 92d Cong., 2d Sess. (1972) ......ccccc..

J. Kerwin, Federal Water-Power Legislation

IID sdnabindeinisiedienalapinbennashebbtnatinudeencaniasuncen .

Page

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

ne. ...

MONONGAHELA POWER COMPANY, THE POTOMAC EDISON

COMPANY, AND WEST PENN POWER COMPANY,

Petitioners

JOHN O. MARSH, JR., LIEUTENANT GENERAL JOHN W.

MorRIs, COLONEL Max R. JANAIRO, JR., AND COLONEL

JOSEPH A. YORE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Monongahela Power Company, The Potomac Edison

Company, and West Penn Power Company petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of

Columbia Circuit in this case.

OPINIONS BELOW

The opinion of Circuit Judge Spottswood W. Ro-

binson, III, for the Court of Appeals, joined by Senior

District Court Judge Oliver Gasch, sitting by desig-

nation (Senior Circuit Judge David L. Bazelon heard

argument but did not participate in consideration of

the opinion), is reported at 809 F.2d 41 (D.C. Cir.

1987), and a copy thereof is reprinted as Appendix

A. The Memorandum and Order of District Judge

John Lewis Smith, Jr., for the District Court is re-

ported at 507 F.Supp. 385 (D.D.C. 1980), sub nom.,

Monongahela Power Company v. Alexander, and a

copy thereof is reprinted as Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered

on January 13, 1987. A timely suggestion for re-

hearing en banc was denied on March 24, 1987 (by

a vote of 7 to 4). See Appendix C. An uncontested

motion to stay issuance of the mandate was granted

by the Court of Appeals on March 24, 1987. The

jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1) (1982).

STATUTES INVOLVED |.

The statutes involved are: Sections 4(e), 10(a), and

23(b) of the Federal Power Act, 16 U.S.C. §§ 797(e),

803(a), and 817; and Sections 301(a) and 404(a) of the

Federal Water Pollution Control Act, 33 U.S.C.

§§ 1311(a) and 1344(a). The full text of these statutory

provisions is set forth in Appendix D.

STATEMENT OF THE CASE

The Court of Appeals has decided that Congress,

by enacting the Federal Water Pollution Control Act

(‘“FWPCA”’) Amendments of 1972, Pub. L. No. 92-

500, 86 Stat. 816 (1972), repealed by implication the

exclusive authority for licensing of America’s hydro-

power resources entrusted by Congress since 1920 to

the Federal Energy Regulatory Commission and its

predecessor, the Federal Power Commission (“‘FPC’’).

In the exercise of that exclusive jurisdiction the FPC,

based upon a seven-year proceeding in which the

United States Army Corps of Engineers (‘Corps’)

participated and raised no objection, issued a license

for the construction and operation of a hydroelectric

power project to be owned and operated by

petitioners. Thereafter, the Corps promulgated reg-

ulations purporting to make the project subject to its

authority to issue dredge and fill permits under Sec-

tion 404(a) of the FWPCA, as added by the 1972

amendments. Following a brief, informal review, the

Corps then refused to issue the permit, thus vetoing

the FPC license.

Petitioners filed suit in the United States District

Court for the District of Columbia. On cross-motions

for summary judgment, the District Court upheld the

exclusive jurisdiction of the FPC, concluding that the

Corps has no jurisdiction over projects licensed by

the FPC pursuant to the Federal Power Act. Six

years after appeal to the United States Court of

Appeals for the District of Columbia Circuit and ten

years after issuance of the FPC license, the Court of

Appeals reversed the District Court, holding that the

Corps has not only jurisdiction over the licensing of

hydropower projects but in effect a veto power over

FPC licenses by refusing issuance of dredge and fill

permits under Section 404(a). This decision directly

derogates Section 10 of the Federal Power Act, which

gives the Commission “‘comprehensive’”’ licensing au-

thority, and terminates sixty-seven years of exclusive

FPC jurisdiction.

Believing that this decision profoundly misconstrues

the relationship between two major and longstanding

legislative schemes and impermissibly weakens one of

them, petitioners seek review of the Court of Appeals’

decision through a writ of certiorari.

1. Proceedings Before the Commission

More than sixteen years ago, on June 3, 1970,

petitioners applied to the then-Federal Power

Commission! pursuant to Sections 4(e), 10(a), and 23(b)

of the Federal Power Act, 16 U.S.C. §§ 797(e), 803(a),

and 817, for a 50-year license to construct and op-

erate a 1,000 megawatt hydroelectric generating fa-

cility in Tucker County, West Virginia. This facility,

known as the “‘Davis Project,’ is designed to produce

electric power through ‘pumped storage’’—a tech-

nology in which water is pumped from a lower res-

ervoir to an upper reservoir during off-peak periods

using energy derived from power plants otherwise

idling at those times of low demand for electricity.

The water is then returned through turbine genera-

tors when the demand for electricity is greatest. Con-

struction of the Davis Project would involve the

erection of a dam and embankments to impound water

for the two reservoirs on private property owned by

petitioners. In conjunction with the project, petitioners

also propose to establish an extensive (over thirteen

thousand acres) wildlife and natural resources pre-

serve in the area of the project, a region which is

privately owned and open to development. That pre-

serve would protect over four thousand acres of wet-

lands.

1The Federal Power Commission was redesignated the Fed-

eral Energy Regulatory Commission in the 1977 Department of

Energy Organization Act, Pub. L. No. 95-91, 91 Stat. 565 (1977).

The two bodies are hereinafter referred to collectively as the

‘“‘Commission.”’

The Commission made a thorough analysis of

petitioners’ proposed project over more than seven

years, conducting a series of public hearings on the

record before an administrative law judge. The Com-

mission made changes in the project and imposed a

large number of substantive requirements. Among

other things, the Commission considered the struc-

tural feasibility and geological soundness of the Davis

Project, the need for the energy to be generated by

the facility, its impact upon the environment—partic-

ularly upon the affected wetlands areas, numerous

alternatives to the proposed project, recreational op-

portunities arising from the lake that would be formed

by the lower reservoir, and a vast wildlife and natural

resources preserve proposed to be established in part

as ‘“‘mitigation’’ for the property to be utilized. See

Monongahela Power Co., 58 F.P.C. 451 (1977). The

Commission received evidence and comment from a

number of parties and interests, including the United

States Department of the Interior, the West Virginia

Department of Natural Resources, and the Corps it-

self, which submitted three sets of comments.

The most intensely explored subject during the

Commission’s seven-year review was the effect that

the project and its alternatives would have on the

environment. As the administrative law judge con-

cluded:

The 40 volumes of the hearing transcript

deal mainly with the environmental issues

raised by the parties. [The FPC] Staff has

presented for cross-examination about 15 wit-

nesses who participated in, or contributed

material for, the preparation of the [Final

Environmental Impact Statement]; and it has,

in addition, sponsored the testimony of about

10 other expert witnesses, such as those from

[the West Virginia Department of ‘tural

Resources] and the U.S. Department of In-

terior. All parties have been afforded ample

opportunity to adduce any and all facts re-

lating to the environmental effects of the

project and the alternatives thereto.

58 F.P.C. at 534; see J.A. 208.2 The Corps partici-

pated in the Commission’s licensing proceeding and

in its written comments concerning the project’s en-

vironmental, navigational, and flood control «ffecis

raised no objections. See J.A. 81-82, 308° aud 90.

On April 21, 1977, the FPC issuea a iorty-four page

decision approving the Davis Project and granting to

petitioners a 50-year license to build and operate it.

The Commission concluded that issuance of a license

under the stated terms and conditions ‘‘is and will be

necessary and desirable in the public interest.” 58

F.P.C. at 474.

Some of the intervenors in the FPC proceeding

filed petitions for review of the FPC license decision

in the United States Court of Appeals for the District

of Columbia Circuit pursuant to 16 U.S.C. § 825i.

Those petitions were consolidated and from 1977 to

this day have been awaiting disposition, held in abey-

ance by the Court of Appeals pending resolution of

the question involved in the instant case. See App. A

at A-4 n.10.

2The term “J.A.” refers to the Joint Appendix filed in the

Court of Avpeals.

2. Proceedings Before The Corps

On July 19, 1977, three months after the Commis-

sion issued a license for the Davis Project, the Corps

promulgated regulations pursuant to Sections 301(a)

and 404(a) of the FWPCA, 33 U.S.C. §§ 1311(a) and

1344(a), purporting for the first time to assert juris-

diction over the project. See 42 Fed. Reg. 37146 (1977)

(later codified at 33 C.F.R. § 323.3(e)(1982)).

Petitioners were required under the terms of the new

Corps regulations to obtain a Section 404 ‘dredge

and fill’’ permit for the project dam before construc-

tion of the project could begin; the comprehensive

seven-year review of the Davis Project by the FPC

and the award of a valid license under the Federal

Power Act were irrelevant so far as the Corps was

concerned.

Though disputing the Corps’ jurisdiction over Com-

mission-licensed projects, petitioners complied with the

published regulations in order, they believed, to ex-

pedite construction of the licensed project. After the

filing by petitioners of a permit application on Jan-

uary 23, 1978, the Corps conducted a brief, informal

review, including two “‘town hall’ public hearings with

no opportunity for examination or questioning of those

making statements. The Corps adopted without re-

vision the Final Environmental Impact Statement pre-

pared by the Commission. J.A. 336-440, and 448.

The Corps, despite its own participation in the Com-

mission’s proceeding, denied petitioners’ application

on July 14, 1978. It cited the impact of the Davis

Project on wetlands areas as the key factor in denying

the Section 404 permit, but employed no test and

addressed no facts that varied in any significant way

from the Commission’s analysis. Compare J.A. 693

(the Corps’ decision) with J.A. 242-4» and 26) (the

Commission’s decision).

3. The District Court Proceeding

Petitioners filed this lawsuit on September 12, 1978

in the United States District Court for the District

of Columbia, seeking declaratory and injunctive relief

that would permit construction of the Davis Project

in accordance with the valid Commission license.

Petitioners’ primary argument was that the Corps

was without jurisdiction over the project because Con-

gress had vested exclusive jurisdiction over hydro-

power projects in the Commission.

The District Court (Judge John Lewis Smith, Jr.)

entered judgment for petitioners on December 19,

1980, holding that the Federal Power Act conferred

exclusive federal jurisdiction over hydropower proj-

ects upon the Commission, and that the Corps was

thus without statutory authority to require that the

Davis Project obtain a permit under Section 404(a)

of the FWPCA. See App. B. The District Court’s

decision was premised upon considerations of legis-

lative intent and upon its conclusion that the FWPCA

could not, consistent with principles of statutory con-

struction laid down by this Court, be considered to

have repealed by implication the exclusive licensing

authority exercised by the Commission under the Fed-

eral Power Act.

4. The Court of Appeals Proceeding

Appeals were taken. More than four and one-half

years after oral argument before the United States

Court of Appeals for the District of Columbia. Circuit

on June 18, 1982, a two-judge panel of the Court of

Appeals reversed the District Court’s judgment.’ See

App. A. The Court of Appeals presumed that the

FWPCA applied to the construction of hydropower

projects and did not consider the resultant elimination

of the Commission’s exclusive jurisdiction to be in-

consistent with legislative intent or to constitute a

repeal by implication of the Federal Power Act’s ex-

clusive single-agency hydropower licensing scheme. To

avoid the difficulties attendant to its creation of over-

lapping jurisdictional roles for the Commission and

the Corps, the Court of Appeals interpreted the Fed-

eral Power Act as not imposing upon the Commission

a substantive obligation to consider environmental

concerns in its licensing decisions.

Petitioners’ Suggestion For Rehearing En Banc was

denied on March 24, 1987. See App. C. Circuit Judges

Robert H. Bork, Laurence H. Silberman, Stephen F.

Williams, and Douglas H. Ginsburg voted in favor of

rehearing.

REASONS FOR GRANTING THE WRIT

This case presents questions of exceptional impor-

tance to implementation of the nation’s laws, and to

the way in which courts must interpret major legis-

lative enactments in order to effectuate congressional

intent. Specifically at issue in this case are two com-

prehensive and longstanding programs created by

Congress—one governing the licensing of hydropower

projects through a centralized single-agency licensing

’ Senior District Judge Oliver Gasch of the District of Colum-

bia, sitting by designation, joined in Judge Robinson’s opinion.

Senior Circuit Judge Bazelon heard argument on the appeal but

retired before the panel’s opinion was issued and did not par-

ticipate in its consideration.

hteeeeeeneeeemneemeennniilll

process requiring that the Commission evaluate all

factors relevant to the public interest, specifically in-

cluding environmental aspects; the other controlling

water pollution from dredge and fill operations

through a multi-agency program. The programs, and

the policies which they were created to promote, are

compatible with one another and complementary.

The Court of Appeals, however, erroneously con-

sidered centralized hydropower project licensing to be

inconsistent with protection of the environment. To

resolve this perceived conflict, it conferred upon itself

the authority to effect two major amendments to the

Federal Power Act. First, it dismantled the exclusive

licensing authority exercised by the Commission since

1920, giving concurrent jurisdiction—and nower

—over hydropower projects to the « orps. But this

purported solution produced a new problem, as its

effect is to subject hydropower projects to duplicative,

de novo, nonbinding one-on-the-other environmental

reviews by the Commission pursuant to Section 10(a)

of the Federal Power Act and by the Corps pursuant

to Section 404(a) of the FWPCA. Recognizing that

such concurrent environmental responsibility is un-

tenable, the Court of Appeals then emasculated the

Federal Power Act yet again, inexplicably stripping

the Commission of its established and substantive en-

vironmental role in order to avoid any potential du-

plication of the Corps’ permit process.

These actions, by the Court of Appeals’ own state-

ment devoid of express legislative support, are con-

trary both to consistently-expressed congressional

intent and to decisions of this Court in every area of

the law involved. The Commission’s exclusive juris-

diction over hydropower project licensing has been

reaffirmed twice by Congress since passage of the

FWPCA Amendments of 1972. And the Commission's

statutory obligation to implement environmental pro-

tections in licensing decisions has been confirmed by

this Court and by the Commission’s own published

actions, and as recently as last year was confirmed

by Congress.

The Court of Appeals’ decision has dramatically al-

tered the program prescribed by Congress for hydro-

power project licensing, and upset the statutory

balance between two agencies charged with admin-

istratien of legislative schemes designed to implement

important national policies. It is the product not only

of a failure to abide by legislative intent, but of a

theory of statutory interpretation prohibited in a con-

sistent line of this Court’s decisions. To correct these

significant and far-reaching errors and to see that the

nation’s laws are properly effectuated, the writ of

certiorari sought by petitioners should be granted.

JURISDICTION OVER HYDROPOWER PROJECT

LICENSING IS CONTRARY TO CONGRESSIONAL

INTENT AND IN CONFLICT WITH BINDING

PRECEDENT

ELIMINATION OF THE COMMISSION'S EXCLUSIVE

To understand the significance of the Court of

Appeals’ jurisdictional holding, it is necessary first to

appreciate Congress’ substantial and continuing com-

mitment to the consolidation of all federal hydropower

licensing authority in a single agency. Prior to 1920,

federal authority over the licensing of hydropower

projects was scattered among the Departments of

War, Interior, and Agriculture. There as wide-

spread dissatisfaction with the resulting jurisdictional

and policy disputes, and a widely supported effort,

led by conservationists, was launched to reformulate

the hydropower licensing process. See First lowa Hy-

dro-Electric Coop. v. Federal Power Commission, 328

U.S. 152, 180 (1946). Congress responded in 1920 by

passing the Federal Water Power Act,® a statute

whose express purpose was to create the Federal

Power Commission and to consolidate in that body

all federal hydropower licensing authority to the full-

est extent permitted by the Commerce Clause. Jd. at

180-81; Federal Power Commission v. Union Electric

Co., 381 U.S. 90, 107 (1965).

In the sixty-seven years since passage of the Fed-

eral Power Act, Congress has never altered the Com-

mission’s sole jurisdiction over hydropower projects

or given any other indication that the exclusiveness

of the regulatory scheme has been or should be al-

tered. Indeed, all expressions of congressional intent

have been to the contrary. For example, when trans-

ferring the FPC’s functions to the Federal Energy

Regulatory Commission (““FERC’’) through the De-

‘The Secretary of War acting through the Corps of Engineers

had authority under the Rivers and Harbors Act of 1899, 30

Stat. 1121 (1899). The Secretary of Agriculture had authority

over certain hydroelectric projects under the Act of February

1, 1905, 33 Stat. 628 (1905), and the Secretary of Interior had

authority over projects built on lands under his control. J. Ker-

win, Federal Water-Power Legislation at 105-114.

*The name of the Federal Water Power Act was changed to

the Federal Power Act in 1935 to reflect the expanded duties

of the FPC under Title II of the Public Utility Act of 1935, 49

Stat. 838 (1935).

partment of Energy Organization Act, Pub. L. No.

95-91, 91 Stat. 565 (1977), the licensing of hydro-

power projects was described expressly as within the

agency's “exclusive jurisdiction.’’ H.R. Conf. Rep. No.

539, 95th Cong., Ist Sess. 55, 75, reprinted in 1977

U.S. Code Cong. & Admin. News 925, 946.

The Court of Appeals acknowledged that Congress

had given the Commission ‘exclusive jurisdiction”’

over hydropower projects as described in the 1977

Conference Report but, through reference to a novel

distinction between ‘“‘vertical’’ and “horizontal” au-

thority, transformed “‘exclusive jurisdiction”’ into ‘‘co-

ordinate jurisdiction’’ with the Corps of Engineers,

one of the very same agencies eliminated by Congress

in 1920 from any licensing role. See App. A at A-14.

The 1977 Conference Report, however, does not leave

room for so implausible an interpretation: the Com-

mission’s ‘‘exclusive jurisdiction consists of functions

. within the sole responsibility of the Commission

to consider and to take final agency action on without

further review by the Secretary [of Energy] or any

other executive branch official.’”” H.R. Conf. Rep. No.

539, supra, at 75, reprinted in 1977 U.S. Code Cong.

& Admin. News at 946 (emphasis added).

Just last year, Congress enacted the Electric Con-

sumers Protection Act of 1986 (““ECPA’’), Pub. L.

Ne. 99-495, 100 Stat. 1243 (1986), a statute which

amended the Federal Power Act in part specifically

to emphasize that the Commission is to give “equal

consideration’’ to the concerns of environmental qual-

ity, including the preservation and enhancement of

fish and wildlife, in licensing decisions. Jd. at § 3(a),

100 Stat. at 1243 (1986) (amending Section 4(e) of

the Federal Power Act). ECPA is an express reaf-

firmation of Congress’ view of the Federal Power Act

as the statute governing the environmental require-

ments for hydropower projects, and its reliance upon

the Commission as the administrative body with sole

responsibility for review of such matters.

The Court of Appeals did not refer to or discuss

ECPA in its opinion.

The Court of Appeals conceded that there is no-

where to be found in sixty-seven years of legislative

history any statement of congressional intent to dis-

mantle the Commission’s exclusive jurisdiction over

hydropower projects. See App. A at A-17 - A-18.

Rather, the court’s decision was based exclusively

upon speculation that the FWPCA Amendments of

1972 and a subsequent amendment, the Clean Water

Act of 1977, Pub. L. 95-217, 91 Stat. 1566 (1977),

must have been intended, without any Congressional

statement to that effect, to achieve that purpose. No

provision of the FWPCA amendments of 1972 or 1977

expressly effects such a dramatic change in the es-

tablished hydropower licensing scheme, however. Nor

is such a change necessary. The Court of Appeals

could not cite any legislative history even reflecting

a suggestion that the water pollution control legis-

lation was intended to apply to hydropower projects

that had already been subjected to a thorough federal

6 Sections 3(b) and (c) of ECPA also strengthen the Commis-

sion’s environmental role, in part by adding a new subsection

10(j) to the Federal Power Act which requires increased con-

sideration of recommendations made by federal and state agen-

cies pursuant to the Fish and Wildlife Coordination Act, Pub.

L. No. 85-624, 72 Stat. 563 (1958).

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review and that had never previously required any

federal approval other than a license from the Com-

mission.

The Court of Appeals’ naked presumption that Sec-

tion 404(a) “‘would seem’ to apply to Commission-

licensed projects, App. A at A-11, is one that cannot

be allowed to stand in this case given the lack of

direct or indirect legislative support. See Train v.

Colorado Pub. Interest Research Group, Inc., 426 U.S.

1 (1976). Indeed, the legislative history indicates the

contrary view that Congress never intended Section

404(a) to apply to hydropower projects historically

within the Commission’s exclusive jurisdiction. In the

face of a general transfer of Corps authority to the

Environmental Protection Agency, Section 404, which

was added by Senator Ellender as a floor amend-

ment,’ was intended merely to preserve some of the

Corps’ former jurisdiction, not expand it:

Mr. President, this is a very simple amend-

ment, and should not take long to explain.

It simply retains the authority of the Sec-

retary of the Army to issue permits for the

disposal of dredged materials. This is essen-

tial since the Secretary of the Army is re-

7 The text of Section 404 was originally adopted by the Senate

as an amendment to Section 402 of S. 2770. 117 Cong. Rec.

S38857 (1971). It appeared as a separate section when consid-

ered by the House as H.R. 11896, 118 Cong. Rec. H10804 (1972),

and was enacted into law in that form. 118 Cong. Rec. H33718

(1972).

This Court has specifically looked to statements made during

debate over Section 404 as a guide to determining the legislative

intent of the provision. See Train v. Colorado Pub. Interest Re-

search Group, Inc., 426 U.S. 1, 14-15 and 19-20 (1976).

sponsible for maintaining and improving the

navigable waters of the United States.

117 Cong. Rec. S38853 (1971) (statement of Senator

Ellender) (emphasis added). And what was “retained”’

was authority that, prior to 1972, did not extend to

privately built Commission-licensed hydropower proj-

ects or the power to veto Commission licenses. As

regulations promulgated by the agency in 1968 stated:

... the functions of the Chief of Engineers

and the Secretary of the Army to authorize

non-Federal water power projects or modi-

fications of existing pre-1920 non-Federal

water power projects were transferred to the

Federal Power Commission by the Federal

Water Power Act of 1920 (41 Stat. 1063).

33 Fed. Reg. 18672 (1968) (later codified at 33 C.F.R.

§ 209.120(dX9) (1972)). The Corps’ initial interpreta-

tion of Section 404(a) following the 1972 FWPCA

amendments was also one which did not apply the

permit requirement to Commission-licensed projects.

See Scenic Hudson Preservation Conference v. Calla-

way, 370 F.Supp. 162, 164 (S.D.N.Y. 1973), aff'd per

curiam on district court opinion, 499 F.2d 127 (2d

Cir. 1974).

It is thus incorrect to assume, as does the Court

of Appeals, that Congress intended Section 404(a) to

impose upon the Corps the unprecedented responsi-

bility for approval of Commission-licensed hydropower

projects.

The Court of Appeals also considered the 1977

amendments to the FWPCA, and the fact that Com-

mission-licensed projects were not among a number

of stated exemptions from the licensing requirement

eve! *

of Section 404(a). See App. A at A-19-A-21. The

court presumed from this omission an affirmative

expression of congressional intent to repeal the Fed-

eral Power Act’s scheme of exclusive licensing au-

thority. Id. at A-24. This ignores the fact that no

exemption would be necessary or expected because

Congress never intended in its 1972 enactment that

the FWPCA affect Commission-licensed projects. Sim-

ilarly, it fails to give effect to the contemporaneous

and express congressional confirmation of the Com-

mission’s exclusive jurisdiction over hydropower li-

censing in the 1977 Department of Energy

Organization Act. See supra pp. 12-13.

The fundamental error made by the Court of

Appeals was its presumption that a Section 404(a)

permit is necessary to implement national environ-

mental policy—that in the absence of the Corps, hy-

dropower projects would remain environmentally

unregulated and capable of subverting environmental

standards. Congress has specifically and consistently

provided otherwise, since 1920 subjecting the con-

struction and operation of hydropower projects to a

thorough independent review covering all matters that

might affect the public interest. Environmental pro-

tection has historically been part of that public in-

terest, and its implementation by the Commission in

its exercise of exclusive jurisdiction has grown with

evolving national policy. See infra pp. 21 et seq.

The Court of Appeals’ errors thus are not merely

those of failing to heed congressional intent. The more

basic flaw is manifested in the court’s approach to

reconciling major statutory schemes of the kind at

issue in this case. Under settled principles of statutory

construction, in the absence of an irreconcilable con-

flict a court’s role is to give maximum possible effect

to all statutes at issue. See Ruckelshaus v. Monsanto

Co., 467 U.S. 986, 1018 (1984); Kremer v. Chemical

Construction Corp., 456 U.S. 461, 468 (1982); Watt

v. Alaska, 451 U.S. 259, 266-67 (1981); Radzanower

v. Touche Ross & Co., 426 U.S. 148, 153 (1976); United

States v. Hansen, 772 F.2d 940, 944 (D.C. Cir. 1985)

(Scalia, J.), cert. denied, 106 S.Ct. 1262 (1986); see,

e.g., Appalachian Power Co. v. United States, 607

F.2d 935, 941 (Ct. Cl. 1979), cert. dented, 446 U.S.

935 (1980). Precisely that objective can be achieved

in this case by recognizing both the Commission’s

exclusive jurisdiction over hydropower projects and

its statutory, regulatory, and judicial obligation to im-

plement national environmental protection policies in

its licensing decisions.

The Court of Appeals purported to give ‘‘appro-

priate effect to both statutory provisions” in this case.

App. A at A-25 n.116. But by abolishing the Com-

mission’s sole jurisdiction in order to extend appli-

cation of the FWPCA, the Court of Appeals

compromised an utterly central purpose of the Fed-

eral Power Act and thus failed to discharge its duty

under the governing precedent. What the Court of

Appeals actually effected was a repeal of the Federal

Power Act by implication, an action unsupportable in

the absence of a direct expression of legislative intent

to repeal the scheme of exclusive jurisdiction.’

8’ The same error was committed by the district court in Scenic

Hudson Preservation Conference v. Callaway, 370 F.Supp. 162

(S.D.N.Y. 1973), affd per curiam on district court opinion, 499

F.2d 127 (2d Cir. 1974), a case decided before many of this

Court’s recent opinions enunciating the proper standard for re-

A nearly identical statutory question was addressed

by this Court in Train v. Colorado Pub. Interest Re-

search Group, Inc., 426 U.S. 1 (1976), which held that

the FWPCA did not repeal the exclusive authority of

the Atomic Energy Commission (‘‘AEC’’) over the

disposition of certain radioactive materials. What mat-

tered to this Court there—as should matter here—

was a preexisting regulatory scheme reflecting the

need to avoid inevitable multi-agency disputes and the

absence of the ‘‘clear indication of legislative intent

that we might expect before recognizing such a

change in policy.” Id. at 24.

The Court of Appeals’ cursory dismissal of Train

hinges on a statement in the legislative history of the

FWPCA suggesting that materials regulated under

the Atomic Energy Act of 1954 (““AEA’’), Pub. L.

No. 68-703, 68 Stat. 919 (1954), were not intended

to be covered, and the Court of Appeals’ assertion

here that the legislative history offers no guidance as

to the question presented in this case. See App. A at

A-15. This assertion, however, is simply not correct.

See supra pp. 14-16. More important, the Court of

Appeals ignores this Court’s direction in Train as to

the way in which the AEA and the FWPCA are to

be reconciled. That analysis, and its applicability to

this case, are clear: The AEA established a ‘‘pervasive

conciling statutory schemes. See Monongahela Power Co. v. Alex-

ander, App. B at B-7 - B-9. The district court in Scenic Hudson

posits its conclusion, just as does the Court of Appeals here, on

the totally erroneous statement that the Commission’s compli-

ance with environmental requirements would be voluntary, not

mandatory. 370 F.Supp. at 170; App. A at A-24. Scenic Hudson,

moreover, was decided prior to and did not have the benefit of

Congress’ expressions of intent in the Department of Energy

Organization Act and ECPA.

regulatory scheme’”’ which cannot be repealed absent

a “clear indication of legislative-intent.’”’ 426 U.S. at

24. At least as strong a “clear indication of legislative

intent’? would have to be shown in this case, given

the even more comprehensive authority the Commis-

sion enjoys compared to the AEC. See Pacific Legal

Foundation v. State Energy Resources Conservation

& Development Comm’n, 659 F.2d 903, 927-28 n.39

(9th Cir. 1981), aff'd, 461 U.S. 190 (1983).

In the absence of any statutory language or leg-

islative intent of a congressional decision to refor-

mulate the Commission’s jurisdiction, the Court of

Appeals’ decision is clearly at odds with Train. It is,

moreover, a precedent pursuant to which federal

courts could freely rewrite legislation under the guise

of ‘reconciling’ it with other statutes that are not

actually in conflict. A recent decision by the United

States District Court for the Western District of

Michigan, National Wildlife Federation v. Consumers

Power Co., No. G85-1146 (W.D. Mich. March 31,

1987), illustrates what can happen if courts are freed

from Train by the Court of Appeals’ decision in this

case. The district court in the Michigan case, while

acknowledging that there “‘may be strong policy ar-

guments for allowing the FERC to exercise exclusive

jurisdiction,’ proceeded, without any analysis or dis-

cussion, citing the Court of Appeals’ decision here

and Scenic Hudson, to deny the Commission’s exclu-

sive jurisdiction over the environmental question of

the discharge of fish through the turbines of a Com-

mission-licensed hydroelectric facility. Jd., slip op. at

16.

Il.

THE COURT OF APPEALS’ ATTEMPT TO STRIP THE

COMMISSION OF ITS ENVIRONMENTAL ROLE

IGNORES STATUTORY COMMANDS AND

CONTRAVENES THIS COURT’S GOVERNING

PRECEDENT

The Court of Appeals’ conclusion that the Corps

has licensing jurisdiction over hydropower projects

under Section 404(a) of the FWPCA confronted that

court with the specter of two different agencies con-

ducting duplicative de novo environmental reviews that

were not binding on each other. As the Court of

Appeals acknowledged, however, the statutory scheme

could not be interpreted to require the same facts

about the same project to be used in the same inquiry

by two different agencies. App. A at A-21 - A-22; see

Universal Interpretive Shuttle Corp. v. Washington

Metropolitan Area Transit Comm’n, 393 U.S. 186

(1968). This was a dilemma of its own making, and

the Court of Appeals sought to escape from it by

emasculating the Federal Power Act in a second way.

What the court did was to announce that the Com-

mission has no substantive environmental role in the

issuance of hydropower project licenses, and to con-

clude as a consequence that no conflict exists between

the Commission’s review and the environmental re-

view to be undertaken by the Corps in its permit

proceedings.

This conclusion ends in one stroke the crucial and

substantial environmental role that has been devel-

oped under the Federal Power Act by sixty-seven

years of legislative, regulatory, and judicial action.

Critical to the development of this role was this

Court’s decision in Udall v. Federal Power Commis-

ston, 387 U.S. 428 (1967), a case interpreting the

Commission’s duty under Section 10(a) of the Federal

Power Act to issue licenses “‘in the public interest.”

Id. at 450. This Court held in Udall tha. te statutory

‘“‘public interest” requirement must be satisfied with

reference to the contemporary national environmental

policies established by federal laws.° Jd. at 437-444;

see also NAACP v. Federal Power Commission, 425

U.S. 662, 669-70 (1976); Appalachian Power Co. v.

United States, 607 F.2d 935, 941 (Ct. Cl. 1979), cert.

denied, 446 U.S. 935 (1980). The FWPCA is itself

precisely such a federal law whose policies are re-

quired to be implemented by the Comrrissio” througii

operation of the Federal Power Aci.

Inexplicably, the Court of Appeals implicitly dis-

misses the teaching of Udall as establishing “the mere

existence of an implied general obligation on [the

Commission’s] part to consider conservation factors

in its deliberations.”” App. A at A-24.!° The obligation

is not ‘‘mere”’ or “‘implied’’ or “‘general,’’ but an ‘‘ex-

plicit mandate” to ensure the “preservation ... of

water resources.’’ See NAACP v. Federal Power Com-

mission, 520 F.2d 432, 441-42 (D.C. Cir. 1975), aff'd,

425 U.S. 662 (1976); see also Public Service Comm’n

® At issue in the case were the Fish and Wildlife Coordination

Act, Pub. L. No. 85-624, 72 Stat. 563 (1958) (current version

at 16 U.S.C. §§ 661 et seg.), and the Anadromous Fish Act, Pub.

L. No. 89-304, 79 Stat. 1125 (1965) (current version at 16 U.S.C.

§§ 757a-757f (1982)). -

to the fact that the District Court had relied upon it. See App.

A at A-23 n.105.

of New York v. Federal Energy Regulatory Commis-

ston, 589 F.2d 542, 558 (D.C. Cir. 1978) (Leventhal,

J.). As recently as last year Congress reaffirmed the

role of environmental factors in Commission licensing

with the passage of ECPA. While expressly endorsing

Udall, the Conference Report accompanying ECPA

makes clear that Congress intended to enhance even

further the environmental safeguards imposed by the

Commission in licensing hydropower projects. H.R.

Conf. Rep. No. 934, 99th Cong., 2d Sess. at 21-22,

reprinted in 1986 U.S. Code Cong. & Admin. News

2496, 2507-10. No interpretation of the Federal Power

Act that disavows the Commission’s clear and essen-

tial environmental role can possibly be consistent with

these legislative commands or be made in the name

of environmental protection.

In addition to the Federal Power Act statutory pro-

visions, the Commission’s own regulations and deci-

sions give effect to Udall and further establish the

legitimacy and scope of its environmental function.

The agency has expressly declared its ‘‘authority’”’ to

implement the policies of the FWPCA as incorporated

into Section 10(a) of the Federal Power Act, as well

as its authority under the Federal Power Act to im-

pose stricter environmental requirements than those

specified under other federal environmental laws.

Sierra Club v. Nebraska Pub. Power District, 55

F.P.C. 3048, 3058 (1976); South Carolina Electric &

Gas Co., 7 Fed. Energy Reg. Comm’n Rep. (CCH) 4

61,180 at 61,339 (May 21, 1979). The Commission has,

moreover, committed itself to adhere to the National

Environmental Policy Act of 1969, 42 U.S.C. §§ 4321

et seg. (1982), see 18 C.F.R. § 2.81 (1986), and has

published guidelines for the submission of a compre-

hensive environmental analysis by applicants propos-

ing major projects. See 18 C.F.R. pt. 2, App. A (1986).

These guidelines, denigrated by the Court of Appeals

as ‘‘precatory invitations for information,’ App. A at

A-24, are in fact mandatory and, indeed, subject to

supplementation at the discretion of the Commission

staff. See 18 C.F.R. § 2.81(aX1Xi) and pt. 2, App. A

Preamble Para. 8 (1986).

There is no better reflection of the Commission’s

environmental obligation than the record of its per-

formance in the very case before this Court.'' Indeed,

the most intensely explored subject during the Com-

mission’s seven-year review, much of it conducted

through hearings on the record hefore »n adminis

trative law judge (40 volumes vo « ., © alling

5,252 pages, with 138 exhibits), was the effect that

the project or its alternatives would have on the en-

vironment. See supra pp. 5-6. The Corps participated

in the Commission’s licensing proceeding, submitting

three sets of written comments concerning the pro)j-

ect’s environmental, navigational, and flood control

effects. Id. at 6.

In contrast to the Commission’s extensive, thorough

environmental analysis, the Corps then conducted its

own informal and brief environmental review, relying

upon much of the same evidence and applying the

"' Although the Court of Appeals suggests in a footnote that

the Commission did not actually subject petitioners’ license ap-

plication to “‘scrutiny’’ comparable to that which the Corps un-

dertook, App. A at A-22 n. 100, the court made no analysis

whatsoever of the factual record in the case. In fact, the Court

of Appeals drew no conclusions about the level of environmental

scrutiny performed by either the Commission or the Corps.

same statutory policies, but reaching a contrary re-

sult.

The Commission has a statutory, regulatory, and

judicially-enforced mandate to implement the federal

environmental laws, and has an essential role in na-

tional enforcement of environmental policy. The Court

of Appeals’ wholesale dismissal of that obligation

poses a clear and palpable threat to the operation of

the Federal Power Act. More generally, the approach

employed by the Court of Appeals threatens the ef-

fective implementation of any federal law, environ-

mental or otherwise, particularly those implemented

by agencies charged to act “‘in the public interest’’.

This Court must reestablish the environmental role

of the Commission under the Federal Power Act and

in so doing, reestablish the proper approach to be

taken by reviewing courts in interpreting federal leg-

islation.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

April 13, 1987 Respectfully submitted,

Davip I. GRANGER

Counsel of Record

RoBerT P. REZNICK

ALEXANDER PAPACHRISTOU

CLIFFORD & WARNKE

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 828-4200

Counsel for Petitioners

APPENDIX

A-l

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1201

MONONGAHELA POWER COMPANY, et al.

Vv.

JOHN O. MARSH, JR.,

Secretary, Department of the Army, et al.,

APPELLANTS,

FEDERAL ENERGY REGULATORY COMMISSION,

INTERVENOR.

No. 81-1203

MONONGAHELA POWER COMPANY, et al.

JOHN O. MARSH, JR.

Secretary, Department of the Army, et al.,

THE SIERRA CLUB, et al.,

APPELLANTS,

FEDERAL ENERGY REGULATORY COMMISSION,

INTERVENOR.

No. 81-1282

A-2

MONONGAHELA POWER COMPANY, et al.

JOHN O. MARSH, JR.,

STATE OF WEST VIRGINIA,

APPELLANT,

FEDERAL ENERGY REGULATORY COMMISSION,

INTERVENOR.

Appeals from the United States Dist:.ct Court

for the District of Columbia

(Civil Action No. 78-01712)

Argued June 18, 1982

Decided January 13, 1987

Before ROBINSON, Circuit Judge, BAZELON, Senior

Circuit Judge,* and GASCH,** Senior District Judge.

ae for the Court filed by Circuit Judge ROBIN-

ROBINSON, Circuit Judge: The Federal Water Pollution

Control Act Amendments of 1972,' in Section 301(a), make

generally unlawful the discharge of any pollutant into the

navigable waters of the United States.* This legislation,

* Senior Circuit Judge BAZELON did not participate in the consid-

eration of this opinion.

** Of the United Stated District Court for the District of Columbia,

sitting by designation pursuant to 28 U.S.C. § 294(d) (1982).

‘Pub. L. No. 92-500, 86 Stat. 816 (1972) (principally codified as

amended at scattered sections of 33 U.S.C. (1982)) [hereinafter cited

as codified].

2 “Except as in compliance with [designated sections of the Act], the

discharge of any pollutant by any person shall be unlawful.’”’ 33 U.S.C.

§ 1311(a) (1982).

A-3

however, in Section 404(a), authorizes the Secretary of the

Army, acting through the Chief of Engineers, to issue

permits for the discharge of dredged or fill material into

navigable waters at specified disposal sites.* The single

issue posed by these consolidate appeals is whether a

permit is required to discharge fill material into navigable

waters during construction of a hydroelectric facility pre-

viously licensed by the Federal Power Commission (FPC).‘

The District Court answered that question in the negative.®

We disagree.

Monongahela Power Company, on behalf of Allegheny

Power System, Inc., applied to FPC for a license to con-

struct a 1000-megawatt pumped-storage hydroelectric fa-

cility on the Blackwater River in the Canaan Valley of

Tucker County, West Virginia. This project contemplates

erection of two dams creating two reservoirs, which would

inundate more than 7,000 acres of freshwater wetlands.’

An initial decision by an administrative law judge denied

the application, finding that the project would devastate

the wetlands as a unique and diverse botanical and wildlife

3 Id. § 1344(a) (1982).

* Section 402(aX1XA) of the Department of Energy Organization Act

of 1977, Pub. L. No. 95-91, 91 Stat. 565, 583 (codified at 42 U.S.C.

7172(aX1XA) (1982)), transferred FPC authority over the issuance and

renewal of hydroelectric licenses to the Federal Energy Regulatory

Commission (FERC). See text infra at notes 66-67.

* Monongahela Power Co. v. Alexander, 507 F. Supp. 385 (D.D.C.

1980).

* Monongahela Power Co., Project No. 2709 (F.P.C. June 10, 1976) _

at 2, Joint Appendix (J. App.) 159 (administrative law judge’s initial

decision).

*Id. at 25, J. App. 182.

A-4

habitat. FPC, however, concluded that these admitted

losses, though substantial, could be mitigated,® and ac-

cordingly issuec the license.’

The project’s sponsors, with the Commission’s license in

hand, then applied to the Army Corps of Engineers for a

Section 404(a) permit authorizing them to discharge fill

material into navigable waters in the course of construc-

tion of the planned hydroelectric facility.1 The Corps held

public hearings, received written comments, and issued a

decision denying the permit on the ground that the project

would have an unacceptably adverse impact on the Canaan

Valley wetlands, and could not be justified on the basis

of feasible alternatives.'”

* Id. at 59, J. App. 216. The judge further found that “none of the

proposed mitigation plans appears reasonably appropriate or feasible to

effectively outweigh the negative aspects inherent in the adoption of

the proposed project, requiring the flooding of a considerable part of

the floor of Canaan Valley and radically changing its whole interde-

pendent environment.” Jd. In denying the application as proposed, the

judge, however, approved an alternate plan, id. at 66, J. App. 223,

which would have required inundation of only 700 acres. Jd. at 36-37,

J. App. 193-194.

* Monongahela Power Co., Project No. 2709 (F.P.C. Apr. 21, 1977)

at 28, J. App. 261 (opinion and order).

10 Id. The grant of the license is the subject of three petitions for

review pending in this court. The court has heard oral argument on

these petitions, but has stayed further proceedings pending resolution

of the instant appeals. Sierra Club v. FERC, Nos. 77-1736, 77-1737,

77-1845 (D.C. Cir. June 15, 1981) (order).

" Letter from J. H. Bail, Director, Power Engineering, Allegheny

Power System, to District Engineer, United States Army Engineer

District, Pittsburgh, Pa., (Jan. 23, 1978), J. App. 58.

12 District Engineer’s Findings of Fact at 11, J. App. 695 (July 14,

1978). Like FPC’s administrative law judge, see note 8 supra and

accompanying text, the District Engineer noted that the ‘“muskeg,

swamp forest, [and] wet meadows [] harbor a diversity of plants and

animals ... made possible only because of the size of the wetlands and

the juxtaposition of the habitat types,’’ and declared that the loss of

these would be ‘‘an irreplaceable one.’”’ Jd.

A-5

The Monongahela group then instituted this litigation in

the District Court against the Secretary of the Army and

other officials.'* Although Monongahela had invoked the

jurisdiction of the Corps of Engineers in its quest for the

permit, it now claimed that the Corps had no power to

require a permit of an FPC-licensed project.’ On cross-

motions for the summary judgment, the District Court

ruled in favor of Monongahela.'® Reaching only the juris-

dictional question,'* the court held that the Corps had no

authority to regulate discharges incidental to construction

of Monongahela’s hydroelectric facility because FPC had

already licensed it.!7 Our review thus extends only to that

determination.'®

18 Complaint, Monongahela Power Co. v. Alexander, Civ. No. 78-1712

(D.D.C.) (filed Sept. 12, 1978), J. App. 47. We refer to the Monongahela

group as Monongahela. The State of West Virginia and six conservation

groups were permitted to intervene. More usually we refer to the

defendants and these intervenors (all now parties in this court) collec-

tively as the Secretary. Additionally, FERC has intervened in these

appeals.

4 Complaint, supra note 13, 4 29-32, J. App. 47-48.

18 Monongahela Power Co. v. Alexander, supra note 5, 507 F. Supp.

at 392.

‘6 Monongahela had also claimed that FPC’s prior licensing decision

was res judicata on all issues the Corps could consider, Complaint,

supra note 13, 4q 38-46, J. App. 49-51; that the Corps was required

to hold a formal adjudicative hearing on the permit application and to

render a decision on the record, id. {4 47-56, J. App. 52-53; that various

ex parte communications between Corps personnel and outside parties

had tainted the proceeding and thus deprived Monongahela of due proc-

ess, id. 44 57-61, J. App. 53-54; and that the Corps’ decision was

arbitrary, capricious, contrary to law, and not based upon substantial

evidence, id. 4 62-66, J. App. 54-55. Since the District Court concluded

that the Corps lacked jurisdiction to grant or deny a permit for con-

struction of Monongahela’s project, the court did not consider these

contentions.

17 Monongahela Power Co. v. Alexander, supra note 5, 507 F. Supp.

at 392.

‘8 See text infra at note 118.

A-6

Monongahela’s position, which the District Court ac-

cepted, rests on the premise that beginning with the Fed-

eral Water Power Act of 1920,'9 Congress consolidated

administrative authority over hydroelectric projects, and

vested it originally in FPC and thereafter in FERC, its

successor.”° The opposing argument is predicated upon the

Federal Water Pollution Control Act Amendments of

1972,24 which in Section 301(a) broadly declare unlawful

“the discharge of any pollutant by any person,” and then

in Section 404(a) require a permit from the Corps for any

discharge of dredged or fill material into navigable

waters.” The Secretary points out that Congress expressly

exempted enumerated activities from the permit

requirement” and alluded to no intention to except FPC-

licensed hydroelectric projects therefrom.” Consequently,

the Secretary contends, there is no room for imposition

of an implied dispensation for the statutory scheme.

Il.

Prior to 1920, the responsibility for licensing and over-

seeing hydroelectric facilities was dispersed among several

1% Act of June 10, 1920, ch. 285, 41 Stat. 1063 (current version

codified at 16 U.S.C. §§ 791a-825r (1982)).

2 Brief for Appellees at 20-29.

2 Supra note 1.

2 33 U.S.C. § 1311(a) (1982) (quoted supra note 2).

Id. § 1344(a). See generally United States v. Riverside Bayview

Homes, Inc., U.S. . , 106 S.Ct. 455, 457, 88 L.Ed.2d 419,

424 (1985) (under § 301, ‘‘any discharge of dredged or fill materials

into ‘navigable waters’—defined as the ‘waters of the United States’—

is forbidden unless authorized by a permit issued by the Corps of

Engineers pursuant to § 404’); P.F.Z. Properties, Inc. v. Train, 393

F.Supp. 1370, 1381 (D.D.C. 1975); United States v. Bradshaw, 541

F.Supp. 880, 882 (D. Md. 1981); United States v. Alleyne, 454 F.Supp.

1164, 1169-1170 (S.D.N.Y. 1978).

* See 33 U.S.C. § 1344(f), (r) (1982).

** Brief for Federal Appellants at 25-27.

A-7

arms of the Federal Government, including Congress** and

the Secretaries of War,”’ Agriculture,” and the Interior.”

Resulting jurisdictional and policy conflicts complicated the

expansion of hydroelectric power, and led to adoption of

a new regulatory regime.*°

The Federal Water Power Act of 1920* created FPC

and assigned it the task of licensing and overseeing wa-

terpower projects.*? The Commission, which originally was

composed of the Secretaries of War, Agriculture, and the

Interior,** assumed ‘‘powers [t]heretofore exercised by the

Secretaries in connection with water-power development

2 Rivers and Harbors Act of 1899, ch. 425, §§ 9, 10, 30 Stat. 1151

(current version codified at 33 U.S.C. §§ 401, 403 (1982)) (requiring

congressional consent to obstructions into navigable waters).

27 River and Harbor Act of 1890, ch. 907, 26 Stat. 453 (requiring

consent of Secretary of War to abutments beyond harbor line). See

also S. Rep. No. 180, 66th Cong., 1st Sess. 3-6 (1919) (history of

legislation).

78 Act of Feb. 1, 1905, ch. 288, 33 Stat. 628 (current version codified

at 16 U.S.C. § 472 (1982)) (authority over hydroelectric facilities on

national forest land).

* Act of Feb. 15, 1901, ch. 372, 31 Stat. 790 (authority over facilities

on public lands).

% 3 B. Schwartz, The Economic Regulation of Business and Industry

1821 (1978).

3 Act of June 10, 1920, ch. 285, 41 Stat. 1063 (current version

codified at 16 U.S.C. §§ 791a-825r (1982)).

82 Cong. css subsequently granted the Commission regulatory author-

ity over electric power and natural gas. See Federal Power Act, ch.

687, tit. II, 49 Stat. 838 (1935) (current version codified at 16 U.S.C.

§§ 791a-825r (1982)); Natural Gas Act of 1938, ch. 556, 52 Stat. 821

(codified as amended at 15 U.S.C. §§ 717-717w (1982)).

% Act of June 10, 1920, ch. 285, § 1, 41 Stat. 1063. The Secretaries

were replaced by five full-time appointed members in 1930. Act of June

30, 1930, ch. 572, § 1, 46 Stat. 797 (codified as amended at 16 U.S.C.

§ 792 (1982)).

A-8

under their several jurisdictions.”** As the Supreme Court

has recounted, the Act

was the outgrowth of a widely supported effort

of the conservationists to secure enactment of a

complete scheme of national regulation which

would promote the comprehensive development

of the water resources of the Nation, in so far

as it was within the reach of the federal power

to do so, instead of the piecemeal, restrictive,

negative approach of the River and Harbor Acts

and other federal laws previously enacted.*

These and other characterizations of the newly-born FPC

reflect the centralization of powers previously exercised by

other federal entities independently,** with the goal of

eliminating duplicative work, overlapping functions, and

jurisdictional disputes.*’ In this sense, as the District Court

noted, FPC’s authority is ‘‘comprehensive.’’** The exclu-

sivity of FPC’s domain is clear, however, only with respect

to the functions it inherited upon passage of the 1920 Act.

There was, to be sure, a consolidation of extant respon-

sibilities, but certainly no preemption of subsequently-en-

acted legislation.

*S. Rep. No. 180, 66th Cong., 1st Sess. 6 (1919).

38 First Iowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152, 180, 66 S.Ct.

906, 919, 90 L.Ed. 1143, 1158 (1946).

%* See, e.g., Hearings Before the House Comm. on Water Power, 65th

Cong., 2d Sess. 25 (1918) [hereinafter Water Power Hearings] (bill

necessary “‘in order that whatever is done by existing agencies may

be done under a consistent plan with a definite end in view’’) (statement

of 0.C. Merrill, Department of Agriculture); see generally Chemehuevi

Tribe v. FPC, 160 U.S.App. D.C. 83, 91-93, 489 F.2d 1207, 1215-1217

(1973) (history of Federal Power Act), rev’d in part on other grounds,

420 U.S. 395, 95 S.Ct. 1066, 43 L.Ed.2d 279 (1975).

** Water Power Hearings, supra note 36, at 26.

%° Monongahela Power Co. v. Alexander, supra note 5, 507 F.Supp.

at 387. See FPC v. Union Elec. Co., 381 U.S. 90, 98-99, 85 S.Ct. 1253,

1258-1259, 14 L.Ed.2d 239, 245-246 (1965).

A-9

A half-century later, Congress made another radical

change in legislative policy®® by adopting the Federal Water

Pollution Control Act Amendments of 1972. The product

of a strong bipartisan movement in Congress‘! ‘‘to restore

and maintain the chemical, physical and biological integrity

of the Nation’s waters,’’*? this enactment marked the as-

cendancy of water-quality control to the status of a major

national priority.** Components of this effort were Section

301(a)’s broad ban on discharge of pollutants into navigable

waters,*“* and Section 404(a)’s provision authorizing the

Secretary to grant permits exempting therefrom the dis-

charge of dredged or fill materials at specific disposal

sites.*

Congress was aware that the 1972 enactment would

have far-reaching consequences,** and recognized that some

other legislative objectives would have to be reconciled

3° See 118 Cong. Rec. 10204 (1972), reprinted in 1 Comm. on En-

vironment and Public Works, 93d Cong., Ist Sess., A Legislative His-

tory of the Water Pollution Control Act amendments of 1972, at 352

(Comm. Print 1973) (hereinafter cited as Legislative History] (statement

of Rep. John A. Blatnik, Chairman, Committee on Public Works). The

Committee considered the bill ‘‘a landmark in the field on environmental

legislation.”” Id., reprinted in 1 Legislative History at 350.

* Pub. L. No. 92-500, 86 Stat. 816 (1972) (principally codified as

amended at scattered sections of 33 U.S.C. (1982)).

“1 See 118 Cong. Rec. 33712 (1972), reprinted in 1 Legislative His-

tory, supra note 39, at 208 (statement of Sen. Tunney).

33 U.S.C. § 1251(a) (1982).

118 Cong. Rec. 10204 (1972), reprinted in 1 Legislative Hiscory,

supra note 39, at 350 (statement of Rep. Blatnik).

33 U.S.C. § 1311(a) (1982) (quoted supra note 2).

* Jd. § 1344(a).

“See 118 Cong. Rec. 10204 (1972), reprinted in 1 Legislative His-

tory, supra note 39, at 350 (‘‘far-reaching national commitment’’) (state-

ment of Re. Blatnik); 118 Cong. Rec. 33712 (1972), reprinted in 1

Legislative History, supra note 39, at 208 (‘‘decisive redirection in

national policy’’) (statement of Sen. Tunney).

A-10

with the new pollution-control efforts. As the chairman of

the House Committee on Public Works explained,

“{t]hroughout the development of this most important leg-

islation the committee could not forget the broad potential

effects [on] competing priorities . . . [including] . . . energy

supply ... and protection of our natural resources.”’*’ It

hardly can be said that the prescription of additional re-

quirements for hydroelectric projects was an utterly un-

foreseen or inappropriate consequence.

Narrowing our scrutiny to Sections 301(a) and 404(a),

we easily discern an effort to halt the systematic destruc-

tion of the Nation’s wetlands.“ Congress insisted upon

stringent federal discipline in an effort to curb ecological

pollution and degradation without interfering unjustifiably

with farming, forestry, and other legitimate activities re-

served for regulation primarily by local governments. The

result was dual scheme empowering the Corps of Engi-

neers to issue permits pursuant to guidelines promulgated

under Section 404(b\1),” authorizing the states to establish

and administer their own permit systems for specified dis-

"118 Cong. Rec. 10204 (1972), reprinted in 1 Legislative History,

supra note 39, at 352 (statement of Rep. Biatnik).

“123 Cong. Rec. 26697 (1977), reprinted in 4 Comm. on Environment

and Public Works, 95th Cong., 2d Sess., A Legislative History of the

Clean Water Act of 1977: A Continuation of the Legislative History

of the Federal Water Pollution Control Act, at 869 (Comm. Print 1978)

{hereinafter cited as Clean Water Act Legislative History] (statement

of Sen. Muskie). Senator Muskie explained the significance of wetlands:

“They represent a principle [sic] source of food supply. They are the

spawning grounds for much of the fish and shellfish which populate

the oceans, and they are passages for numerous upland game fish.

They zlso provide nesting areas for a myriad of species of birds and

wildlife.”” Id.

* Id., reprinted in 4 Clean Water Act Legislative History, supra note

48, at 869-870.

A-ll

charges upon approval by the Administrator of the En-

vironmental Protection Agency (EPA).

Ill

Indisputably, construction of Monongahela’s proposed

hydroelectric facility will entail discharges of dredged and

fill material into navigable water.** Consequently, Sections

103(a) and 404(a) would seem to require a Corps permit

for such discharges unless some exemption is available.™

Although Section 404(f) specifically excludes a number of

activities from the permit requirement,™ it contains no

express exception for FPC-licensed hydroelectric projects.

We are thus confronted by the question whether such an

exception may properly be implied.

In the only case to address the problem squarely, Scenic

Hudson Preservation Conference v. Callaway, the Second

* Id. §§ 1344(g), (h); see United States v. Riverside Bayview Homes,

Inc., supra note 23, ___ U.S. at —__n.1, 106 S.Ct. at 457 n.1, 88

L.Ed.2d at 424 n.1 (“{w]ith respect to certain waters, the Corps’ au-

thority may be transferred to States that have devised federally ap-

proved permit programs’’); H.R. Rep. No. 830, 95th Cong., 1st Sess.

100-101 (1977), reprinted in 3 Clean Water Act Legislative History,

supra note 48, at 284-285 (explaining conference version of state pro-

gram). EPA may approve a state permit system only if it includes

“substantive decisionmaking criteria at least as stringent as [the Sec-

tion] 404(b) guidelines.”” 123 Cong. Rec. 38996 (1977), reprinted in 3

Clean Water Act Legislative History, supra note 48, at 419 (statement

of Rep. Harsha).

% Monongahela Power Co. v. Alexander, supra note 5, 507 F.Supp.

at 388.

* See 33 U.S.C. § 1344(f1) (1982); see also note 23 supra. Section

404(f) of the Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat.

1600 (amending 33 U.S.C. § 1344(f) (1976)), allows str«ctures such as

dikes and dams to be maintained without a permit, but did not lift

the requirement of a permit for construction of these structures.

* See 33 U.S.C. § 1344(f) (1982).

370 F. Sup. 162 (S.D.N.Y. 1973), affd per curiam, 499 F.2d 127

(2d Cir. 1974).

A-12

Circuit affirmed a ruling that a Corps permit was needed

for the discharge of dredge and fill material incidental to

hydroelectric construction despite prior licensure by FPC.*

The District Court in that proceeding considered and re-

jected the very argument pressed by Monongahela in the

present cases:*’ that an exception to the Federal Water

Pollution Control Act Amendments should be inferred on

the ground that “Congress could not have intended to

interfere with the jurisdiction of the FPC in view of the

long-settled policy ... of allowing that agency unique con-

trol over the production of hydroelectric power.” The

court instead concluded that “Congress would not design

an Act which on its face is all-inclusive, but for specifically

enumerated exceptions, and yet intend to establish an un-

mentioned exception of the scale suggested . . . .’’* If Con-

gress desired to exempt FPC licensed facilities, the court

noted, “the remedy rests in Congress’ hands ... .’’®

Congress amended the Act in 1977, only three years

after the Second Circuit affirmed Scenic Hudson. If perch-

ance Congress did not care for Scenic Hudson, it had an

excellent opportunity at that time to overturn it, but it

chose not to do so. And the continued omission from the

1977 Amendments, of any exemption for FPC-licerised

projects is ‘“‘striking,”’® given the fact that Scenic Hudson

* Scenic Hudson Preservation Conference v. Callaway, supra note 55,

370 F.Supp. at 171.

** See text supra at note 20.

* Scenic Hudson Preservation Conference v. Callaway, supra note 55,

370 F.Supp. at 170.

% Jd.

* Id.

* See note 53 supra.

* Monongahela Power Co. v. Alexander, supra note 5, 507 F. Supp.

at 388.

A-13

had attached decisive importance to that omission from

the 1972 legislation.”

The District Court, however, felt that nonetheless the

impact of Scenic Hudson had been “‘diminished’’ by two

subsequent events.“ The first was a reference in the Con-

ference Report on the Department of Energy Organization

Act of 1977 to “exclusive jurisdiction ... over certain

functions transferred from the FPC.’’®

When, in that legislation, Congress restructured the fed-

eral approach to energy problems, it reallocated many of

the powers theretofore exercised by FPC, including issu-

ance and renewal of hydroelectric licenses,* to the newly-

created Energy Regulatory Commission (FERC). The

Conference Report mentioned this licensing authority as

one of the activities within FERC’s “exclusive jurisdic-

tion.” The District Court, attributing great significance

to the word “‘exclusive,” treated this statement as congres-

sional support for the conclusion that the Corps of En-

gineers lacked statutory authority over Monongahela’s

FPC-licensed hydroelectric project. We find that the court

erred in doing so.

® See text supra at notes 59-60.

* Monongahela Power Co. v. Alexander, supra note 5, 507 F. Supp.

at 388.

* H.R. Rep. No. 539 (Conf.), 95th Cong., 1st Sess. 75 (1977), re-

printed in [1977] U.S. Code Cong. & Ad. News 925, 946 [hereinafter

cited as Conference Report], pertaining to Pub. L. No. 95-91, § 402(a),

91 Stat. 582 (1977) (codified at 42 U.S.C. § 7172(a) (1982)) (‘‘Section

402(a) describes the exclusive jursidiction of the [Federal Energy Reg-

ulatory] Commission over certain functions transferred from the FPC’’)

%* 42 U.S.C. § 7172(aX1XA) (1982).

* Id. § 7172(a) (1982).

* Conference Report, supra note 65, at 75, reprinted in [1977] U.S.

Code Cong. & Ad. News at 946.

* Monongahela Power Co. v. Alexander, supra note 5, 507 F.Supp.

at 389.

aia

A-14

The Conference Report itself explains the meaning of

the terminology the court relied upon. “‘This exclusive ju-

risdiction,”’ it said, ‘‘consists of functions transferred from

the FPC which will be within the sole responsibility of

[FERC] to consider and to take final agency action on

without further review by the Secretary [of Energy] or

any other executive branch official.” This category of

FERC authority” was set off in contradistinction to other

vestigial functions of the former FPC, which were either

made solely the Secretary’s responsibility” or left as ‘‘in-

cidental power” available to both FERC and the Secre-

tary.” Put another way, FERC’s ‘exclusive jurisdiction’”’

simply denoted that it was to be the highest unit in a

vertical line with respect to decisions in the areas specified,

including licensure; it had nothing to do with a relationship

of FERC to other federal bodies on a horizontal line. Thus

the conferees’ use of the words “exclusive jurisdiction’ —

which are not found in the statute itself—-is fully and sen-

sibly comprehended without imparting an exaggerated im-

portance to them. It follows that although the Department

of Energy Organization Act undoubtedly endowed FERC

richly with authority,“ it did not expand the jurisdiction

it derived from its predecessor so as to preclude the Sec-

retary of the Army from exerting his powers over the

7° Conference Report, supra note 65, at 75, reprinted in [1977] U.S.

Code Cong. & Ad. News at 946.

7 See 42 U.S.C. § 7172(a) (1982).

7% See 42 U.S.C. § 7151(b) (1982) (placing functions not vested in

FERC under Secretary’s authority); id. 7172(f) (exempting certain mat-

ters from FERC’s jurisdiction); see also Conference Report, supra note

65, at 76, reprinted in [1977] U.S. Code Cong. & Ad. News at 947.

2(TJhe Secretary as well as the Commission, may utilize the inci-

dental power contained in the Federal Power Act or the Natural Gas

Act.‘‘ Conference Report, supra note 65, at 76, reprinted in [1977]

U.S. Code Cong. & Ad. News at 947.

See S. Rep. No. 164, 95th Cong., 1st Sess. 6.

A-15

Nation’s navigable waters.”

The second event inducing the District Court’s belief

that Scenic Hudson’s force had been dissipated was the

Supreme Court’s 1976 decision in Train v. Colorado Public

Interest Research Group.”* As we read Train, however, it

does not assist the present analysis. The issue there was

whether EPA’s authority under the Federal Water Pol-

lution Control Act to control the disposal of nuclear waste

encompasses materials subject to regulation by the Atomic

Energy Commission under the Atomic Energy Act.” Al-

though that question bears a superficial resemblance to

the one before us, the factor determinative in Train is

completely absent here. The Train Court based its decision

upon a “rather explicit statement of [congressional] intent

to exclude AEA-regulated materials from the FWPCA.”’”®

Congress has not, however, manifested comparably any

purpose to exclude FPC-licensed hydroelectric projects

from Section 404(a)’s permit requirement when otherwise

applicable. On the contrary, as we have seen, Congress

omitted hydroelectric installations from the list of facilities

specifically exempted from that requirement, and did not

articulate an exclusionary intent even in the face of the

** Nor is a second reference to ‘‘exclusive’’ authority cited by the

District Court apposite. In First Iowa Hydroelec. Coop. v. FPC, supra

note 35, the Court sustained FPC’s jurisdiction against state regulation,

holding that the federal power preempted conflicting state policy. 328

U.S. at 182, 66 S.Ct. at 920, 90 L.Ed. at 1159. This cannot be reliably

extrapolated to the proposition that FPC’s jurisdiction was exclusive

with respect to another federal agency whose relevant powers were

conferred long thereafter, and whose primary statutory mission impli-

cates very different objectives.

* 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976).

™ Id. at 3-4, 96 S.Ct. 1939, 48 L.Ed.2d at 437.

78 Jd. at 22, 96 S.Ct. at 1948, 48 L.Ed.2d at 448; see also id. at 24,

96 S.Ct. at 1948-1949, 49 L.Ed.2d at 449 (‘‘the legislative history re-

flects, on balance, an intention to preserve the preexisting regulatory

plan’’) (footnote omitted).

A-16

inclusionary judicial interpretation announced in Scenic

Hudson.”

Moreover, the posture of Train was the exact converse

of that of the case before us. There EPA had adopted

regulations exempting from its licensing program all ma-

terials covered by the Atomic Energy Act.* Here the Corps

of Engineers had promulgated a regulation explicitly re-

quiring a Section 404(a) permit for “[aJny part of a struc-

ture or work licensed by the Federal Power Commission

that involves the discharge of dredged or fill material into

the waters of the United States.’’*' The deference due an

** See text supra at notes 59-63.

“ Train v. Colorado Pub. Interesi Research Group, supra note 76,

426 U.S. at 8, 96 S.Ct. at 1941, 48 L.Ed.2d at 440.

* 33 C.F.R. § 323.3(e) (1982). In July, 1982, shortly after submission

of this case, the Corps of Engineers revised the regulations affecting

permits for the discharge of dredged. or fill materials into navigable

waters of the United States. See 47 Fed. Reg. 31794 (1982) (codified

at 33 C.F.R. pts. 320, 323 (1986)). Although the new regulations do

not include § 323.3(e), which had expressly required a Corps permit

for FPC-licensed projects, the clear effect of the revisions in their

entirety is still to mandate a Corps permit for the type of FPC-licensed

project sought to be undertaken by Monongahela here. Revised § 323.3(a)

provides that

fi}f a discharge of dredged or fill material is not exempted by § 323.4

of this part or permitted by [new] 33 C.F.R. Part 330, an individual

or regional Section 404 permit will be required for the discharge

of dredged or fill material into waters of the United States.

33 C.F.R. § 323.3(a) (1986). FPC-licensea projects are not expressly

exempted from the permit requirements under revised § 323.4. See

also infra at notes 85-94. Furthermore, new § 330.5(aX17) would not

relieve Monongahela of the burden of obtaining a Corps permit in this

case. That section describes a type of project licensed pursuant to the

Federal Power Act that would not be subject to the individual or

regional permit requirement:

Fills associated with small hydropower projects as existing res-

ervoirs where the project which includes the fill is licensed by the

Federal Energy Regulatory Commission under the Federal Power

A-17

agency's construction of its governing statute® fortifies

the dissimilarity of the two cases.

We realize that the histories of the pertinent statutes

do not themselves conclusively answer the question we

Act of 1920, as amended; has a total generating capacity of not

more than 1500 kw (2,000 horsepower); qualifies for the short-

form licensing procedures of the Federal Energy Regulatory Com-

mission (see 18 C.F.R. 4.61); and the district or division engineer

makes a determination that the individual and cumulative adverse

effects on the environment are minimal ....

33 C.F.R. § 330.5(aX17) (1986). But the project proposed by Monon-

gahela calls for construction of two new reservoirs and a plant with a

generating capacity in excess of 1500 kw, see text supra at notes 6-

7—a project the Corps of Engineers has already found to involve a

serious, adverse and irreversible impact on the environment, see note

12 supra and accompanying text—and thus a facility subject to the

§ 404 individual or regional permit requirement as implemented by the

revised regulations. Particularly since the parties have not informed us

of any inconsistent interpretation of the effect of the new regulations,

we can only conclude that the revisions in the regulations to have no

significant role in the resolution of the issue in this case.

* See, e.g., United States v. Riverside Bayview Homes, Inc., supra

note 23, ____ U.S. at __., 106 S.Ct. at 461, 88 L.Ed.2d at 429 (Army

Corps of Engineers’ construction of Federal Water Pollution Control

Act Amendments of i972 “entitled to deference if it is reasonable and

not in conflict with the expressed intent of Congress’’); Chemical Mfrs.

Ass'n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125,

105 S.Ct. 1102, 1108, 84 L.Ed.2d 90, 99 (1985); Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-845, 104

S.Ct. 2778, 2782, 81 L.Ed.2d 694, 701-703 (1984); Blum v. Bacon, 457

U.S. 182, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728, 736 (1982); Udall

v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616, 625

(1965); Power Reactor Dev. Co. v. International Union of Elec. Workers,

367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924, 932 (1961);

Capitol Technical Serv., Inc. v. FAA, —— U.S. App.D.C. —_, —_.,

791 F.2d 964, 970 (1986); Storer Communications, Inc. v. FCC, 246

U.S.App.D.C. 146, 150, 763 F.2d 436, 440 (1985); Eagle Picher Indus.,

A-18

face.** At this juncture, however, we can conclude only

that the Power Act does not provide adequate justification

for ignoring the express and unambiguous directive of the

subsequently-adopted Pollution Control Act Amendments.

U.S.App.D.C. 146, 150, 763 F.2d 436, 440 (1985); Eagle Picher Indus.,

Inc. v. EPA, 245 U.S.App.D.C. 196. 201 n.5, 759 F.2d 922, 927 n.5

(1985).

8 The Train Court disavowed any dependence upon EPA’s interpre-

tation of the Federal Water Pollution Control Act. 426 U.S. at 8 n.8,

96 S.Ct. at 1941 n.8, 48 L.Ed.2d at 440 n.8. We believe, however,

that the Corps’ construction is a factor properly to be considered since

we have no express legislative intent to guide us. See cases cited supra

note 82.

* Nor does the recent decision in Escondido Mut. Water Co. v. La

Jolla Indians, 466 U.S. 765, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984),

aid resolution of the dispute before us. An issue confronting the Court

there was whether § 8 of the Mission Indian Relief Act of 1891, 26

Stat. 714, requires a FPC license to obtain the consent of an Indian

tribe before operating a facility on its reservation lands. Section 8

authorizes private parties to contract with Indians, subject to approval

by the Secretary of the Interior, for the right to construct a flume or

other appliance for the conveyance of water through Indian lands. Find-

ing nothing in the legislative history of the Act to suggest that Indian

were to have any greater right than other private landowners to resist

exertions of congressional authority, and citing its earlier ruling in FPC

v. Tuscarora Indian Nation, 362 U.S.99, 118, 80 S.Ct. 548, 554, 4

L.Ed.2d 584, 597 (1960), that Congress intended the Federal Power

Act to encompass Indian lands, the Court held that the Mission Indian

Relief Act did not enable Indians “‘to override Congress’ subsequent

decision that all lands, including tribal lands, could, upon compliance

with the provisions of the [Power Act], be utilized to facilitate hy-

droelectric projects.”’ Jd. at 787, 104 S.Ct. at 2117-2118, 80 L.Ed.2d

at 769-770. See, e.g., H.R. Rep. No. 910, 66th Cong., 2d Sess. 8 (1920)

(elimination by conferees of proposed amendment to Power Act re-

quiring Indian consent; ‘‘no reason why waterpower should be singled

out from all other uses of Indian reservation land for special action of

the council of the tribe’’). In the case at bar, unlike Escondido, there

is no indication that Congress intended FPC-licensed hydroelectric proj-

ects to be exempt from compliance with the additional standards es-

tablished by the Federal Water Pollution Control Amendments of 1972;

indeed, we think the statutory scheme signifies the contrary. See text

infra at notes 85-117.

A-19

Monongahela, however, would have us read into the latter

a double-barreled exemption, enabling it to sidestep the

anti-discharge mandate of Section 301(a) and simultane-

ously escape the permit requirement of Section 404(a). We

turn, then, to an analysis of Section 404(a) and its express

exceptions to determine whether such an implied dispen-

sation for FPC-licensed projects would be in keeping with

the statutory scheme.

The exemptions to Section 404(a)’s permit program may

be briefly categorized. First, the Corps of Engineers may

issue general permits in lieu of requiring individual appli-

cations when multiple discharges cumulatively have but

minimal adverse environmental effects and the activities

contemplated are similar in nature and pass muster under

the Section 404(bX1) guidelines.®* Second, certuin activities

leading only to minor discharges are exempt from the

permit requirement® because Congress felt that they could

be more effectively dealt with in “‘best management prac-

tices’ reviews*’—:n alternative regulatory approach af-

fording, under the aegis of a state “‘a degree of protection

% 33 U.S.C. § 1844(eX1) (1982); see H.R. Rep. No. 830 (Conf.), 95th

Cong., 1st Sess. 100 (1977), reprinted in 3 Clean Water Act Legislative

History, supra note 48, at 284; see generally Riverside Irrigation Dist.

v. Andrews, 758 F.2d 508, 511 (10th Cir. 1985).

% 33 U.S.C. § 1344(f1) (1982).

8? 123 Cong. Rec. 38996 (1977) (statement of Rep. Harsha), reprinted

in 3 Clean Water Act Legislative History, supra note 48, at 420-421.

The statute allows certain activities to be regulated under an areawide

management program instead of by the case-by-case permit scheme of

§ 404. 33 U.S.C. § 1288 (1982). Activities conducted pursuant to a best-

management practice must comply with the Section 404(bX1) guidelines.

Id. § 1288(bX4\B\iii).

A-20

comparable to that of section 404(b\1) guideline review.’’®

Activities qualifying for this treatment include normal

farming, silviculture, ranching, maintenance, drainage, and

road construction.®® Third, discharges approved under qual-

ified state programs do not need the federal permit.” A

state program displaces the federal, however, only if the

Section 404(bX1) guildlines strictures are met or ex-

ceeded.*! Finally, a fourth statutory exception exempts

those federal projects specifically identified by Congress.”

To be free of the Section 404(a) permit requirement, the

sponsor of such a project must have submitted to Congress

as ‘‘adequate’’ environmental impact statement “including

consideration of the guidelines developed under’’ Section

* See 123 Cong. Rec. 39187 (1977) (statement of Sen. Muskie), re-

printed in 3 Clean Water Act Legislative History, supra note 48, at

471 (‘‘[eJach individual activity or practice must be scrutinized in light

of the section 404(bX1) guidelines and approved by the Administrator

before the permit exemption is available’’).

% 33 U.S.C. § 1344(f1) (1982); see generally Avoyelles Sportsmen’s

League, Inc. v. Marsh, 715 F.2d 897, 925-926 (5th Cir. 1983).

* 33 U.S.C. § 1344(g) (1982).

% See note 52 supra.

% See 33 U.S.C. § 1344(r) (1982). This exemption was included in the

conference version of the bill in recognition of the constitutional prin-

ciple of separation of powers. H.R. Rep. No. 830 (Conf.), 95th Cong.,

lst Sess. 104 (1977), reprinted in 3 Clean Water Act Legislative His-

tory, supra note 48, at 288. The narrow nature of this exemption is

under scored by the fact that it applies only to discharges integral to

construction of designated federal projects. See id., reprinted in 3 Clean

Water Act Legislative History, supra note 48, at 288; 123 Cong. Rec.

38995 (1977), reprinted in 3 Clean Water Act Legislative History, supra

note 48, at 416 (‘‘[t]he conferees did not intend to exempt other dis-

charges which may be associated generally with constructing Federal

projects, but which are ancillary to the specific activities submitted to

and approved by Congress”) (statement of Rep. Stark). Accord 123

Cong. Rec. 38997 (1977), reprinted in 3 Clean Water Act Legislative

History, supra note 48, at 420 (statement of Rep. Harsha); 123 Cong.

Rec. 39209 (1977), reprinted in 3 Clean Water Act Legislative History,

supra note 48, at 524-525 (statement of Sen. Baker).

A-21

404(b\(1).°° Of central importance in the House debates was

the assurance that consideration and acceptance of the

environmental impact statement by Congress would be

“equivalent to” review under the Section 404(bX1) guide-

lines.™

When analyzed in this fashion, Section 404 transmits a

crisp and unwavering message: all significant discharges,

whether or not exempt from the permit requirement, must

be subjected to Section 404(b\1) scrutiny or its equivalent;

some competent body, be it the Corps of Engineers, EPA,

Congress, or the state where the discharge is to occur,

must perform a Section 404(bX1) review.% Every type of

discharge embraced by an exemption must survive a check

of this kind. We think fidelity to the legislative scheme

precludes any implication of an additional exemption for

FPC-licensed projects when, at the bare minimum, FPC

did not subject its license applicants to a review under

substantive standards comparable to those established pur-

suant to Section 404(b\1).

The factors to be utilized in considering applications for

a Section 404 permit are delineated in the implementing

guidelines* mandated by the statute.” The guidelines de-

clare that (‘‘[t]he guiding principle should be that degra-

dation or destruction of special sites may represent an

irreversible loss of valuable aquatic resources.’** The

% 33 U.S.C. § 1344(r) (1982).

% 123 Cong. Rec. 39187 (1977), reprinted in 3 Clean Water Act

Legislative History, supra note 48, at 472 (statement of Sen. Muskie).

Accord 123 Cong. Rec. 39209 (1977), reprinted in 3 Clean Water Act

Legislative History, supra note 48, at 524-525 (statement of Sen. Baker);

123 Cong. Rec. 39210 (1977), reprinted in 3 Clean Water Act Legis-

lative History, supra note 48, at 529 (statement of Sen. Wallop).

% See notes 85-94 supra.

%* 40 C.F.R. pt. 230 (1986).

7 33 U.S.C. § 1344(b) (1982).

* 40 C.F.R. § 230.1(d) (1986).

A-22

guidelines specify additionally that ‘‘no discharge of

dredged or fill material shall be permitted if there is a

practicable alternative to the proposed discharge which

would have less adverse impact on the aquatic ecosys-

tem... .’’” A series of considerations, warnings, and eval-

uative techniques comprises many pages of regulations

controlling the issuance of permits.!° Some absolute re-

strictions are imposed,'*' while other sections address the

potential losses to be expected from discharges and the

means for minimizing them.’ These guidelines furnish the

yardstick by which the legitimacy of any implied exemption

must be measured.'* If FPC did not subject license ap-

plications to some test substantially equivalent to that

found in the Section 404(b\1) guidelines, its action will not

measure up to the congressional plan.

The District Court looked to FPC’s statutory obligation

to regulate in the ‘‘public interest,’’'* and the Supreme

Court’s interpretation of that provision as a call to explore,

among other matters, “ ‘the public interest in preserving

* Id. § 230.10(a).

Monongahela a permit provided a more stringent framework for eva-

lutaion of its application. See, e.g., 40 C.F.R. § 230.5(bX8) (1978)

(‘‘[djischarge of dredged material in wetlands may be permitted only

when it can be demonstrated that the site selected is the least envi-

ronmentally damaging alternative”). These guidelines were replaced with

more lenient, but still mandatory, standards for use by the Corps in

reviewing applications. 45 Fed. Reg. 85344 (Dec. 24, 1980). The fact

that the guideline criteria have been eased since Monongahela’s permit

application was denied is of no consequence here since, as will appear,

FPC did not subject Monongahela’s license application to scrutiny com-

parable to either level.

101 See 40 C.F.R. § 230.10 (1986).

102 See, e.g., id. §§ 230.50(b), 230.51(b), 230.52(b).

1°38 The Corps also considers the standards set forth in 33 C.F.R. §

320.4 (1986), which include an assortment of additional factors.

1 See 16 U.S.C. § 797(e) (1982).

A-23

reaches of wild rivers and wilderness areas, the preser-

vation of anadromous fish for commercial and recreational

purposes, and the protection of wild life.’ ’’'° But the ex-

plicit conservation-oriented Section 404(b\1) directives un-

der which the Corps labors have nowhere been matched

in the mandate given FPC. The District Court undertook

a comparison of the Section 404(b\1) guidelines with those

under which FPC operated,’ and felt that the latter

“echo[] the balancing process” in which the Corps en-

gages.'°’ The fact, however, is that aside from other con-

siderations, a critical difference renders the two radically

distinct. The FPC guidelines were designed merely to as-

sist license applicants in submitting information to FPC,'®

while Section 404(bX1)’s are standards governing decisions

by the Corps on permit applications.'" The FPC guidelines

imposed no direct restraints on FPC’s deliberations or de-

terminations; they did not indicate how FPC should treat

the information it received;!!? nor was FPC obligated to

seek specific goals in any wise analogous to those the

Corps must strive for.!!! Moreover, the FPC guidelines

assigned no relative weights to competing objectives, and

provided FPC with no more assistance in its review than

15 Monongahela Power Co. v. Alexander, supra note 5, 507 F.Supp.

at 391 (quoting Udall v. FPC, 387 U.S. 428, 450, 87 S.Ct. 1712, 1724,

18 L.Ed.2d 869, 883 (1967)).

16 Monongahela Power Co., supra note 5, 507 F.Supp. at 391 (refer-

ring to 18 C.F.R. §§ 2.80-2.81 and app. A (1979)).

107 Td.

16 18 C.F.R. pt. 2, app. A(1) (1986) (quoted infra note 110.)

10° 40 C.F.R. § 230.2(b) (1986) (“[t]hese Guidelines will be applied in

the review of proposed discharges’) (emphasis added).

0 ‘These guidelines ... [ijdentify the kinds of information to be

supplied by applicants to assist Federal Power Commission staff in an

independent assessment of major Federal actions significantly affecting

the quality of the human environment{.]’’ 18 C.F.R. pt. 2, app. A(1)

(1986).

111 See text supra at notes 96-103 and note 109 supra.

A-24

a general policy of adherence to the aims of the National

Environmental Policy Act of 1969."!? We would do violence

to the legislative intent animating the Federal Water Pol-

lution Control Act Amendments were we to find these

unchanneled, precatory invitations for information equiv-

alent to the rigorous study demanded of the Corps. Nor

can we hold that the mere existence of an implied general

obligation on FPC’s part to consider conservation factors

in its deliberations'’ created a format for decisionmaking,

the absence of which is the crux of the present problem.

Given the two statutory sections and their respective

legislative histories, congressional intent would be betrayed

by implication of an exemption of FPC-licensed hydroe-

lectric projects from the express requirements of the Water

Pollution Control Act Amendments.'* We do not view this

2 See 18 C.F.R. pt. 2, app. A(4)(8) (1986).

"8 See text supra at notes 104-105.

'* FERC urges us to find that § 401 of the Clean Water Act, 33

U.S.C. § 1341 (1982), provides an alternative to the statutory scheme

for gaining an exemption from § 301’s ban on discharges of pollutants

into navigable waters. Supplemental Memorandum for Intervenor-Ap-

pellee at 3-6. Section 401 provides that

{a)ny applicant for a federal license or permit to conduct an activity

... which may result in any discharge into the navigable waters,

shall provide the licensing or permitting agency a certification from

the State in which the disc*\ze originates .... No license or

permit shall be granted until ine certification required by the sec-

tion has been obtained ....

33 U.S.C. § 1341(aX1) (1982). According to FERC, § 301 should be

construed to allow permitting under § 401(aX1), comprised of review

by a state coupled with the grant of a permit or license under any

one of a number of federal regulatory schemes, including the Federal

Power Act. Supplemental Memorandum for Intervenor-Appellee at 4-

We reject this interpretation. FERC’s approach is completely at odds

with the plain language of § 301, which expressly describes the contours

of permissible discharges: ‘‘Except as in compliance with this section

A-25

as a “repeal’’ of FPC authority’ but as a reconciliation''*

seen by Congress as necessary to ensure the protection

and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the

discharge of any pollutant by any person shall be unlawful.’’ 33 U.S.C.

§ 1311(a) (1982). Section 301 thus does not tolerate attempted avoidance

of its ban through an application of § 401, which is omitted from § 301’s

enumeration of statutory sections. Furthermore, the legislative history

of § 401 reveals that the quoted provision was intended merely to

assure that “any water quality requirements established under State

law, more stringent than those requirements established under [the

Clean Water Act], also shall through certification become conditions of

any Federal license or permit.”” S. Rep. No. 92-414, 92d Cong., Ist

Sess. 69 (1971). This history indicates no more than that state standards

of water quality were to be preserved under the Clean Water Act, see

EPA v. State Water Sources Control Bd., 426 U.S. 200, 219, 96 S.Ct.

2022, 2031, 48 L.Ed.2d 578, 591 (1976); United States Steel Corp. v.

Train, 556 F.2d 822, 830 (7th Cir. 1977), and supports no suggestion

that § 401 was intended in any way to supplant the need for obtaining

a Corps permit. Lastly, FERC’s proposed permitting scheme is incon-

sistent with our conclusion that FPC review of dredge and fill activities

under the Federal Power Act is inadequate when measured against

§ 404(bX1) guidelines. See notes 96-113 infra and accompanying text.

‘8 See Monongahela Power Co. v. Alexander, supra note 5, 507 F.Supp.

at 391.

"6 We are advertent to the maxim that repeals by implication are

not favored. E.g., Watt v. Alaska, 451 U.S. 259, 266-267, 101 S.Ct..

1673, 1678, 68 L.Ed.2d 80,88 (1981); Morton v. Mancari, 417 U.S. 535,

551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290, 301 (1974); United States

v. Hansen, 249 U.S.App.D.C. 22, 26, 772 F.2d 940, 944 (1985), cert.

denied, ___U.S. —__, 106 S.Ct. 1262, 89 L.Ed.2d 571 (1986). By giving

appropriate effect to both statutory provisions, however, we repeal no

legislation; on the contrary, we fulfill congressional intent. See e.g.,

Reckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 2881,

81 L.Ed.2d 815, 842 (1984) (where two statutes are “‘ ‘capable of co-

existence, it is the duty of the courts, absent a clearly expressed

congressiona! intention to the contrary, to regard each as effective’ ’’)

(citations omitted); McKelvey v. Turnage, —_U.S.App.D.C. ~~,

——, 792 F.2d 194, 206 (1986) (opinion concurring in part and dis-

senting in part) (no need to find implicit repeal where “there is no

necessary conflict between the [two] statutes’’).

A-26

of a vital national interest.!’

The judgment appealed from is reversed. Concluding, as

it did, that FPC’s licensing of Monongahela’s hydroelectric

project immunized it from an exercise of the Corps’ ac-

customed authority, the District Court did not address

other contentions pressed by Monongahela.'"* Accordingly,

we remand the case in order that it may now do so, and

engage in such further proceedings consistent with this

opinion as may become necessary.

So ordered.

"7? As it aptly has been said, ‘the Federal Power Act is not immune

from effects of other subsequent acts of Congress,” Applachian Power

Co. v. United States, 607 F.2d 935, 941 (Ct. Cl. 1979), cert. denied,

446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980).

1* See note 16 supra.

B-1

APPENDIX B

UNITED STATES DISTRICT COURT,

DISTRICT OF COLUMBIA.

Civil Action No.

78-1712

MONONGAHELA POWER COMPANY, et al.,

Plaintiffs,

CLIFFORD L. ALEXANDER, JR. LIEUTENANT GENERAL JOHN

W. Morris, Corps OF ENGINEERS, COLONEL MAX R.

JANAIRO, JR.

Defendants,

THE STATE OF WEST VIRGINIA, THE SIERRA CLUB, WEST

VIRGINIA HIGHLANDS CONSERVANCY, NATIONAL WILDLIFE

FEDERATION, ENVIRONMENTAL DEFENSE FUND, THE

NATIONAL AUDOBON SOCIETY,

Intervenor-Defendants.

FILED

DEC. 19, 1980

JAMES F. DAVEY, Clerk

MEMORANDUM

Plaintiffs, three power companies, bring this action

against the United States Army Corps of Engineers (the

Corps) and various individuals acting in their official ca-

pacities. They seek injunctive and declaratory relief re-

garding the Corps’ denial of their application for a permit

for the Davis Pumped Storage Hydroelectric Project (the

Project), a complex of dams designed to produce power.

Prior to the Corps’ denial, a license to construct and op-

erate the Project had been issued by the Federal Power

B-2

Commission (FPC), the predecessor of the Federal Energy

Regulatory Commission (FERC).' Plaintiffs contend that

the Corps is without jurisdiction to either grant or deny

a permit for the Project, that the Corps is barred by

principles of res judicata and collateral estoppel from de-

nying a permit to a project already licensed by FPC, and

that the hearing procedure conducted by the Corps violated

their Due Process rights. The State of West Virginia and

six conservation organizations were granted leave to in-

tervene to brief the Court on state-related and environ-

mental issues. Jurisdiction is properly founded upon 28

U.S.C. § 1331 (1976) and 5 U.S.C. §§ 701-03 (1976). The

matter is before the Court on plaintiffs’ joint motion and

defendants’ cross motion for summary judgment.

Plaintiffs’ threshold contention, that the Corps is with-

out jurisdiction to either grant or deny a permit, is based

on the premise that Congress has vested all authority over

hydroelectric projects in the FPC and its successors, to

the exclusion of any other federal agency. This compre-

hensive authority is dated back to the Federal Water Power

Act of 1920, ch. 285, 41 Stat. 1063 (codified at 16 U.S.C.

§§ 792 et seq. (1976)) (the Water Power Act). Defendants

respond that the Corps has concurrent jurisdiction pur-

suant to Section 404 of the Federal Water Pollution Con-

trol Act Amendments of 1972, Pub.L. 92-500, 86 Stat.

816, 884 (codified at 33 U.S.C. § 1344 (Supp. III 1979))

(the FWPCAA). That section requires a permit issued by

the Corps for any discharge of dredged or fill material

into navigable waters, a process which construction of the

Project would admittedly involve. Resolution of this ap-

parent statutory conflict entails an inquiry into the origins

and purposes of both Acts.

Prior to the enactment of the Water Power Act, federal

control over water power was characterized by duplicative

‘Unless the context demands otherwise, the energy licensing au-

thority will be referred to as the FPC, rather than the FERC.

B-3

and overlapping regulatory jurisdiction. Authority to li-

cense water power projects was shared among three agen-

cies: the Department of Interior, the Department of

Agriculture, and the Secretary of War. J. Kerwin, Federal

Water Power Legislation 107 (1926). The Water Power

Act was intended to coordinate the exercise of federal

jurisdiction, H.R.Rep.No. 61, 66th Cong., 1st Sess. 5 (1919);

and to that end the Act created the FPC with authority

over federal water power projects. See 41 Stat. 1063 (1920).

At the time of its passage, the Water Power Act was

administratively interpreted as concentrating all licensing

authority in the FPC and providing ‘“‘a complete and de-

tailed scheme for the development ... of a the water

power resources of the public domain.” 32 Op. Att’y Gen.

525, 528 (1921). The FPC’s general counsel concluded that

“it was the purpose of Congress to confer exclusive ju-

risdiction on the Federal Power Commission ... over the

matter of issuing licenses’ for hydroelectric power proj-

ects. 1 FPC Ann.Rep. 156 (1921). This contemporaneous

construction by the administering agency, combined with

similar subsequent interpretations, is entitled to “great

respect.” Chemehuevi Tribe of Indians v. FPC, 420 U.S.

395, 409-10, 95 S.Ct. 1066, 1074-75, 43 L.Ed.2d 279 (1975).

During the existence of the FPC, the courts interpreted

this authority in the same manner. Prominent among the

decisions is First Iowa Hydroelectric Cooperative v. F PC,

328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143 (1946), in which

the Court examined the purposes and powers of the Water

Power Act and found that

It was the outgrowth of a widely supported effort of

the conservationists to secure enactment of a com-

plete scheme of national regulation which would pro-

mote the comprehensive development of the water

resources of the Nation, in so far as it was within

the reach of the federal power to do so, instead of

B-4

the piecemeal, res'rictive, negative approach of the

River and Harbor Acts and other federal laws pre-

viously enacted. Jd. at 180, 66 S.Ct. at 919.

Courts at other times have used comparable language, em-

phasizing that the purpose of the Act was to provide for

“comprehensive control’”’ over water resources, FPC v.

Union Electric, 381 U.S. 90, 98, 85 S.Ct. 1253, 1257, 14

L.Ed.2d 239 (1959); to “centralize the authority” over

water resources in one Government agency, Northwest Pa-

per Co. v. FPC, 344 F.2d 47, 51 (9th Cir. 1965); and to

give the FPC “exclusive jurisdiction.’ United States v.

Idaho Power Co., 85 F.Supp. 913, 915 (D.Id. 1949).

Congress itself has also construed the authority of the

FPC as exclusive. When the authority was transferred to

FERC pursuant to the Department of Energy Organization

Act of 1977, Pub.L.No. 95-91, § 402(aX1), 91 Stat. 565,

584 (codified at 42 U.S.C. § 7172(aX1) (Supp. III 1979)

(the Energy Organization Act)), Congress stated in the

Conference Report that:

Section 402(a) describes the exclusive jurisdiction of

the Commission over certain functions transferred

from the FPC. This exclusive jurisdiction consists of

functions transferred from the FPC which will be

within the sole responsibility of the Commission to

consider and to take final agency action on without

further review by the Secretary or any other exec-

utive branch official.

H.R.Rep.No. 539, 95th Cong., Ist Sess. 75 (Conference

Report), reprinted in [1977] U.S.Code Cong. & Ad.News

854, 925, 946. Specifically included in this “exclusive ju-

risdiction’”’ is power to issue licenses for hydroelectric proj-

ects. Energy Organization Act, § 402(aX 1A), 91 Stat. 584

(codified at 42 U.S.C. § 7172(ayx1XA) (Supp. III 1979)).

While defendants and intervenors dispute the label ‘‘ex-

clusive,”” and while the language used to describe the FPC’s

B-5

authority does vary, the reach of its jurisdiction prior to

1972 was clear. Congress had created an agency and cen-

tralized in it all federal authority for licensing federal water

power projects. This exclusive licensing authority

preempted any conflicting state regulation, see First Iowa

Hydroelectric, 328 U.S. at 181-82, 66 S.Ct. at 919-20, and

precluded any concurrent federal jurisdiction. This historic

statutory policy was apparently reaffirmed at the time of

the passage of the Energy Organization Act. Were it not

for the existence of the FWPCAA, there would be no

difficulty in holding that the FPC’s power here was ex-

clusive.

However, the FWPCAA does exist and does disrupt the

otherwise clear statutory mandate of the FPC. Section 404

of the FWPCAA, 33 U.S.C. § 1344 (Supp. III 1979), gives

the Corps power to grant or deny permits for discharges

of “dredged or fill material’ into navigable waters. There

is no exception for FPC-licensed hydroelectric projects.

Since the Project concededly requires such a discharge,

the Corps asserts that it, as well as the FPC, has the

duty and the authority to license the project. Defendants

contend that had Congress intended to preserve the FPC’s

exclusive licensing procedure, it could easily have done so

and that the absence of any exemption in the 1972

FWPCAA is indicative of Congressional intent to give the

Corps the power disputed here. They argue that this con-

struction is futher strengthened by the Clean Water Act

of 1977, in which Congress passed a number of specific

exemptions to the Corps’ licensing authority but again

failed to exempt hydroelectric projects. Pub.L.No. 95-217,

§ 67, 91 Stat. 1566, 1600-06 (codified at 33 U.S.C. § 1344(f)

and (r) (Supp. III 1979)). This omission in 1977 is all the

more striking in that Congress was on notice that the

FWPCAA had been construed as applicable to water power

projects. See Scenic Hudson Preservation Conference v. Cal-

laway, 370 F.Supp. 162 (S.D.N.Y. 1973), affd per curiam

B-6

499 F.2d 127 (2d Cir. 1974) (discussed more fully infra).

The seemingly inevitable conclusion is that Congress, by

not exempting FPC-licensed projects, intended them to be

subject to the Corps’ licensing jurisdiction.

That, indeed, was the holding in the only case which

has confronted the apparent conflict between the FPC’s

exclusive jurisdiction and the Corps’ general authority:

Con Ed would infer an exception from the [FWPCAA]

for hydroelectric plants on the theory that Congress

could not have intended to interfere with the juris-

diction of the FPC in view of the long settled policy,

discussed above, of allowing that agency unique con-

trol over the production of hydroelectric power. The

argument is persuasive at first blush, but even more

plausible is plaintiffs’ contention that Congress would

not design an Act which on its face is all-inclusive,

but for specifically enumerated exceptions, and yet

intend to establish an unmentioned exception of the

scale suggested here. Without any indication that Con

Ed’s reading of the Congressional will is accurate, the

carving out of so major an exception would be im-

proper. If this was Congress’ intention and the omis-

sion is mere oversight, the remedy rests in Congress’

hands ....

Scenic Hudson Preservation Conference v. Callaway, 370

F.Supp. 162, 170 (S.D.N.Y. 1973). This finding was af-

firmed in a per curiam opinion describing the District

Court’s opinion as ‘“‘well-considered.” 499 F.2d at 128.

While such a precise holding would normally govern any

disposition here, two intervening events have diminished

its authority.

First, Congress has now given an indication that the

FPC’s hydroelectric jurisdiction should be construed as ex-

lusive, notwithstanding the rWPCAA. See H.R.Rep.No.

539, supra. Although the statement clearly describes the

FPC jurisdiction as exclusive, and was made after both

B-7

the FWPCAA and the decision in Scenic Hudson, it is

difficult to determine the weight it should be accorded.

Had the Energy Organization Act actually created the FPC

power at issue here, the Conference Report language would

be controlling. The FPC’s power would be exclusive, what-

ever duplicative licensing power the Corps might have pos-

sessed would have been repealed,? and the decision in

Scenic Hudson overruled. If, on the other hand, the state-

ment were merely a legislative comment upon a previously

enacted statute, it would still be entitled to ‘‘some con-

sideration as a secondarily authoritative expression of ex-

pert opinion.” Bobsee Corp. v. United States, 411 F.2d 231,

237 n.18 (5th Cir. 1969); 2A Sands, Statutes and Statutory

Construction, § 49.11, at 266 (4th ed. 1973); see Esquire,

Inc. v. Ringer, 591 F.2d 798, 803 (D.C.Cir. 1978). While

allowing the statement even this minimal consideration

would cast doubt upon the continuing validity of Scenic

Hudson, the better course is to interpret its authority as

somewhere between the two extremes. The Energy Or-

ganization Act did -not simply transfer to FERC certain

powers of the FPC; it created additional ones and con-

solidated others. It was a sweeping transformation of the

entire field of energy regulation. As such, the statement

is as much an indication of the jurisdiction Congress in-

tended to allocate to FERC in 1977 as it is an expression

of its understanding of prior legislation. Although it did

not, perhaps, conclusively overrule Scenic Hudson, nor re-

peal whatever concurrent jurisdiction the Corps may have

had under the FWPCAA, the statement is sufficiently au-

thoritative to undermine the precedential value of the con-

trary conclusion in Scenic Hudson.

2 Defendants and Intervenors have questioned whether the Energy

Organization Act should be construed as repealing by implication the

concurrent jurisdiction of the Corps. Because the Court’s disposition of

the issue of the Corps’ jurisdiction, that question need not be dealt

with.

B-8

The second intervening event was Train v. Colorado

Public Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938,

48 L.Ed.2d 434 (1976), where the Supreme Court ruled

that there do exist inferable exceptions to the facially in-

clusive licensing authority vested by the FWPCAA in the

Corps. The FWPCAA was found inapplicable to the dis-

charge of nuclear pollutants, the regulation of which the

Atomic Energy Commission (AEC) considered within its

sole jurisdiction. The Court noted that the regulatory au-

thority of the AEC was “comprehensive,” id. at 5, 96

S.Ct. at 1940, and preemptive of any state regulation. Id.

at 15-16, 96 S.Ct. at 1944-45. It further noted that it would

expect a “clear indication of legislative intent’ to change

such a “‘pervasive regulatory scheme.” Id. at 24, 96 S.Ct.

at 1948. Examining the relevant legislative history, it then

found that Congress had specifically intended to preserve

the preexisting regulatory plan. Jd. If there were similar

legislative history in the FWPCAA preserving the juris-

diction of the FPC, Train wouid obviously be controlling.

However, no such history can be found and that crucial

distinction allows each side to claim Train as its own.

Defendants contend that the case allows this Court to look

only to the legislative history of the FWPCAA to find an

exemption for hydroelectric projects. Since no such ex-

emption can be found, none could have been intended, just

as Scenic Hudson concluded. Plaintiffs insist, conversely,

that Train overrules Scenic Hudson by implication, and

this appears the better argument.

The key lies in the three-step approach implicit in the

Court’s analysis in Train. First, there must be a compre-

hensive or pervasive regulatory plan which is threatened

with change by a subsequent statute. Train, 426 U.S. at

24, 96 S.Ct. at 1948. If such a situation exists, the Court

will next search for Congressional intent to preserve the

preexisting regulatory framework, a search which was suc-

cessful in Train. Not finding any intent to preserve, a

third step would be necessary before the Court would rec-

B-9

ognize any change in an established regulatory plan: it

would look for and normally expect to find a specific

Congressional intent to make such a change. Jd. This third

step of the analysis is based on long-established law, see

United States v. United Continental Tuna Corp., 425 U.S.

164, 169, 96 S.Ct. 1819, 13823, 47 L.Ed.2d 653 (1976);

Posadas v. National City Bank, 296 U.S. 497, 508, 56 S.Ct.

349, 352, 80 L.Ed. 351 (1936), but is an approach Scenic

Hudson failed to use. The only burden assumed there was

searching for an intent to preserve the FPC’s jurisdiction

through an exemption from the FWPCAA. To the extent

that Scenic Hudson looked no further, Train must be seen

as modifying its result.

However, even the third step implicit in the Train anal-

ysis does not dispose of the dispute here. Although the

regulatory scheme administered by the FPC is as com-

prehensive and pervasive as the nuclear regulation at issue

in Train, the legislative history of the FWPCAA reveals

neither an intent to preserve the FPC jurisdiction, nor an

intent to change it. Thus to resolve the statutory conflict

other principles of statutory construction must be exam-

ined.

The first principle applicable is the ‘‘cardinal rule” that

repeals by implication are not favored. Morton v. Mancart,

417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290

(1974) (quoting Posadas v. National City Bank, 296 U.S.

at 503, 56 S.Ct. at 352); Universal Interpretive Shuttle

Corp. v. Washington Metropolitan Area Transit Commis-

sion, 393 U.S. 186, 193, 89 S.Ct. 354, 358, 21 L.Ed.2d

334 (1968). That is undoubtedly the situation here. If the

Corps’ concurrent and duplicative jurisdiction over FPC-

licensed projects is found valid, the statutory policy of

centralized, coordinated licensing procedures for such proj-

ects, dating back to 1920, will be repealed. There is also

no doubt that the repeal would be by implication since

there is no evidence that Congress specifically and con-

sciously intended to effect such a repeal. Under such cir-

B-10

cumstances the second applicable precept is that a court

can find an implied repeal only if the two statutes are

‘irreconcilable,’ Morton v. Mancari, 417 U.S. at 550, 94

S.Ct. at 2482; or clearly “repugnant.” United States v.

Borden Co., 308 U.S. 188, 198-99, 60 S.Ct. 182, 188, 84

L.Ed. 181 (1939); see also TVA v. Hill, 4837 U.S. 1538, 189-

90, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978). In essence,

then, the Court’s duty here is to compare the two statutes

in purpose and operation, to attempt to give effect to both,

and to repeal the exclusive authority of the FPC only if

it is clearly repugnant to the purpose and operation of the

FWPCAA.

An analysis of the sets of factors used by the two agen-

cies in reaching determinations under the respective stat-

utes reveals no substantial or overriding differences. The

operation of the FWPCAA requires that before the Corps

issues a permit under Section 404, all relevant factors

must be carefully weighed and the benefits balanced

against the detriments. These factors include ‘‘conserva-

tion, economics, esthetics, general environmental concerns,

historic values, fish and wildlife values, flood damage pre-

vention, land use, naviation, recreation, water supply,

water quality, energy needs, safety, food production, and,

in general, the needs and welfare of the people.” 33 C.F.R.

§ 320.4(a) (1979) (emphasis added). A permit will only be

granted if it is in the ‘‘public interest.” Id. See also W.

Rodgers, Environmental Law § 4.7, at 407 (1977). The

Corps must also consider whether the benefits of the proj-

ect outweigh the damage to wetlands. 33 C.F.R.

§ 320.4(bXa) (1979).

The operation of the FPC under its exclusive statutory

authority has been described by the Supreme Court:

The question whether the proponents of a project

“will be able to use’ the power supplied is relevant

to the issue of the public interest. So too is the re-

gional need for the additional power. But the inquiry

B-11

should not stop there. A license under the Act em-

powers the licensee to construct, for its own use and

benefit, hydroelectric projects utilizing the flow of na-

vigable waters and thus, in effect, to appropriate

water resources from the public domain. The grant

of authority to the Commission to alienate federal

water resources does not, of course, turn simply on

whether the project will be beneficial to the licensee.

Nor is the test solely whether the region will be able

to use the additional power. The test is whether the

project will be in the public interest. And that deter-

mination can be made only after an exploration of all

issues relevant to the ‘‘public interest,’’ including fu-

ture power demand and supply, alternate sources of

power, the public interest in preserving reaches of

wild rivers and wilderness areas, the preservation of

anadromous fish for commercial and recreationally

purposes, and the protection of wildlife.

The need to destroy the river as a waterway, the

desirability of its demise, the choices available to sat-

isfy future demands for energy—these are all relevant

to a decision.

Udall v. FPC, 387 U.S. 428, 450, 87 S.Ct. 1712, 1724, 18

L.Ed.2d 869 (1967). Moreover, the FPC has adopted as

part of its decision-making process the guidelines and goals

of the National Environmental Policy Act, 42 U.S.C.

§§ 4321-47 (1976) (NEPA). See 18 C.F.R. §§ 2.80-2.81 and

App. A (1979). That procedure echoes the balancing proc-

ess used by the Corps in Section 404 permit applications.

See, Rodgers, supra at 407. Specifically included among

the factors which must be reported to and evaluated by

the FPC are ‘‘areas of critical environmental concern, e.g.,

wetlands” 18 C.F.R.App. A § 2.2.3, at 187 (1979). Finally,

tne FPC also uses its own regulations on conservation of

natural resources, see id. at § 2.14, which were issued

pursuant to the Federal Power Act, 16 U.S.C.§§ 791a-825r

B-12

(1976), a successor to the Water Power Act. It is thus

apparent that each agency evaluates approximately the

same elements in arriving at the ultimate goal of the public

interest. Consequently, the operations of each agency un-

der the relevant statutes are neither irreconcilable nor

repugnant to each other.

Even allowing that the operations may be similar,

defendants nevertheless assert that the purposes and goals

of each agency under the respective statutes are so dif-

ferent as to be inconsistent. They contend, citing Scenic

Hudson, that although the FPC may review the same en-

vironmental factors as the Corps, it is not required to do

so. This is not entirely accurate. The Supreme Court and

other courts have consistently held that such factors are

relevant to an FPC decision and must be considered.

NAACP v. FPC, 425 U.S. 662, 670 & n.6, 96 S.Ct. 1806,

1811 & n.6, 48 L.Ed.2d 284 (1976) (consideration of en-

vironmental and conservation questions a subsidiary pur-

pose of the Act); Udall v. FPC, 387 U.S. at 450, 87 S.Ct.

at 1724 (FPC determination can only be made after ex-

ploration of all relevant issues including recreation, wild-

life, and wilderness preservation); Scenic Hudson

Preservation Conference v. FPC, 354 F.2d 608, 614 (2d

Cir. 1965) (statutory phrase ‘‘recreational purposes’’ en-

compasses conservation of natural resources and mainte-

nance of natural beauty). It should also be noted that while

environmental factors are specifically relevant to the FPC’s

determination of public interest, many other national sta-

tutory policies are beyond its consideration. NAACP v.

FPC, £5 U.S. at 670, 96 S.Ct. at 1811. In addition, NEPA

requires the FPC to consider the relevant environmental

factors. Greene County Planning Board v. FPC, 455 F.2d

412, 418-20 (2d Cir. 1972).

Defendants’ objections are thus reduced to the propo-

sition that while both agencies may be required to consider

approximately the same factors, the Corps is required to

weigh more heavily the environmental issues, especially

B-13

those concerning preservation of wetlands. This difference

in perspective is attributed to the disparity between the

purposes of the statutes: the Water Power Act’s prime

orientation is power development while the FWPCAA’s is

preservation of water resources. Although this difference

is not insignificant, the similarities in purpose and oper-

ation are more persuasive. The Court’s duty here is to

repeal the FPC’s exclusive authority only if it is positively

repugnant to or irreconcilable with the FWPCAA. Given

the FPC’s substantial environmental responsibilities, it

cannot fairly be said that the difference in emphasis and

perspective of the FWPCAA rises to a level sufficient to

support an implied repeal. Accordingly, an exemption for

FPC-licensed projects from the licensing requirements of

the FWPCAA must be inferred. The Court finds that the

Corps was therefore without jurisdiction to either grant

or deny the permit at issue here.

An appropriate order follows.

/s/ John Lewis Smith, Jr.

United States District Judge

Dated: December 19, 1986

B-14

UNITED STATES DISTRICT COURT,

DISTRICT OF COLUMBIA.

Civil Action No.

78-1712

MONONGAHELA POWER COMPANY,et al.,

Plaintiffs,

CLIFFORD L. ALEXANDER, JR. LIEUTENANT GENERAL JOHN

W. Morris, Corps OF ENGINEERS, COLONEL MAX R.

JANAIRO, JR.

Defendants,

THE STATE OF WEST VIRGINIA, THE SIERRA CLUB, WEST

VIRGINIA HIGHLANDS CONSERVANCY, NATIONAL WILDLIFE

FEDERATION, ENVIRONMENTAL DEFENSE FUND, THE

NATIONAL AUDOBON SOCIETY,

Intervenor-Defendants.

FILED

DEC. 19, 1980

JAMES F. DAVEY, Clerk

ORDER

The Joint Motion of Plaintiffs for Summary Judgment

pursuant to Federal Rule of Civil Procedure 56, having

been presented, and the Court being fully advise, this Court

declares that the United States Army Corps of Engineers

is without jurisdiction either to grant or deny a permit

for construction of the Davis Project pursuant to 33 C.F.R.

§ 1344 because the Davis Project has been licensed pre-

viously by the Federal Energy Regulatory Commission

which possesses exclusive jurisdiction over such projects,

and

B-15

IT APPEARING that there is no genuine issue as to

any material fact and that plaintiffs are entitled to sum-

‘mary judgment as a matter of law, it is hereby

ORDERED: that plaintiffs’ motion for summary judg-

ment be hereby granted.

/s/ John Lewis Smith, Jr.

United States District Judge

12/19/80

C-1

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1201

September Term, 1986

CA No. 78-01712

MONONGAHELA POWER COMPANY, et al.

JOHN O. MARSH, JR. Secretary,

Department of the Army, et al.

United States Court of

Appeals For the District

of Columbia Circuit

FILED MAR 24, 1987

GEORGE A. FISHER

CLERK

And Consolidated Cases 81-1203, 81-1282

BEFORE: Wald, Chief Judge; Robinson, Mikva, Edwards,

Ruth B. Ginsburg, Bork, Starr, Silberman,

Buckley, Williams and D. H. Ginsburg, Circuit

Judges

ORDER

The suggestion for rehearing -n banc of appellees Mon-

ongahela Power Company, et al. has been circulated to

the full Court. The taking ‘of a vote was requested. There-

after, a majority of the judges of the Court in regular

C-2

active service did not vote in favor of the suggestion. Upon

consideration of the foregoing, it is

ORDERED, by the Court en banc, that apellees’ sug-

gestion is denied.

Per Curiam

FOR THE COURT:

GEORGE A. FISHER CLERK

BY: /s/ RoBERT A. BONNER

RoBERT A. BONNER

Chief Deputy Clerk

Circuit Judges Bork, Silberman, Williams and D. H. Gins-

burg would grant the suggestion for rehearing en banc.

D-1

APPENDIX D

1. Section 4(e) of the Federal Power Act, 16 U.S.C. §

797(e), as amended by the Electric Consumers Protec-

tion Act of 1986, Pub. L. No. 99-495 § 3(a), 1986 U.S.

Code Cong. & Admin. News (100 Stat.) 1243

Section 4. General powers of Commission

The Commission is authorized and empowered—

* * *

(e) Issue of licenses for construction, etc., of dams, conduits,

reservoirs, etc.

To issue licenses to citizens, of the United States, or to

any association of such citizens or to any corporation or-

ganized under the laws of the United States or any State

thereof, or to any State or municipality for the purpose

of constructing, operating, and maintaining dams, water

conduits, reservoirs, power houses, transmission lines, or

other project works necessary or convenient for the de-

velopment and improvement of navigation and for the de-

velopment, transmission, and utilization of power across,

along, from, or in any of the streams or other bodies of

water over which Congress has jurisdiction under its au-

thority to regulate commerce with foreign nations and

among the several States, or upon any part of the public

lands and reservations of the United States (including the

Territories), or for the purpose of utilizing the surplus

water or water power from any Government dam, except

as herein provided: Provided, That licenses shall be issued

within any reservation only after a finding by the Com-

mission that the license will not interfere or be inconsistent

with the purpose for which such reservation was created

or acquired, and shall be subject to and contain such con-

ditions as the Secretary of the department under whose

supervision such reservation falls shall deem necessary for

the adequate protection and utilization of such reserva-

tions: Provided further, That no license affecting the nav-

D-2

igation capacity of any nivigable waters of the United

States shall be issued until the plans of the dam or other

structures affecting the navigation have been approved by

the Chief of Engineers and the Secretary of the Army.

Whenever the contemplated improvement is, in the judg-

ment of the Commission, desirable and justified in the

public interest for the purpose of improving or developing

a waterway or waterways for the use or benefit of inter-

state or foreign commerce, a finding to that effect shall

be made by the Commission and shall become a part of

the records of the Commission: Provided further, That in

case the Commission shall find that any Government dam

may be advantageously used by the United States for pub-

lie purposes in addition to navigation, no license therefor

shall be issued until two years after it shall have reported

to Congress the facts and conditions relating thereto, ex-

cept that this provision shall not apply to any Government

dam constructed prior to June 10, 1920: And provided

further, That upon the filing of any application for a li-

cense which has not been preceeded by a preliminary per-

mit under subsection (f) of this section, notice shall be

given and published as required by the proviso of said

subsection. In deciding whether to issue any license under

this Part for any project, the Commission, in addition to

the power and development purposes for which licenses

are issued, shall give equal consideration to the purposes

of energy conservation, the protection, mitigation of dam-

age to, and enhancement of, fish and wildlife (including

related spawning grounds and habitat), the protection of

recreational opportunities, and the preservation of other

aspects of environmental quality.

D-3

2. Sections 10(a) of the Federal Power Act, 16 U.S.C.

§ 803(a), as amended by the Electric Consumers Pro-

tection Act of 1986, Pub. L. 99-495 § 3(b), 1986 U.S.

Code Cong. & Admin. News (100 Stat.) 1243-45

Section 10. Conditions of license generally

All licenses issued under this subchapter shall be on the

following conditions:

(aX1) Modification of plans, etc., to secure adaptability

of project

That the project adopted, including the maps, plans, and

specifications, shall be such as in the judgment of the

Commission will be best adapted to a comprehensive plan

for improving or developing a waterway or waterways for

the use or benefit of interstate or foreign commerce, for

the improvement and utilization of water power develop-

ment, for the adequate protection, mitigation, and en-

hancement of fish and wildlife (including related spawning

grounds and habitat), and for other beneficial public uses,

including irrigation, flood control, water supply, and rec-

reational and other purposes referred to in section 4(e).

If necessary in order to secure such plan the Commission

shall have authority to require the modification of any

project and of the plans and specifications of the project

works before approval.

(2) In order to ensure that the project adopted will be

best adapted to the comprehensive plan described in par-

agraph (1), the Commission shall consider each of the fol-

lowing:

(A) The exterit to which the project is consistent with

a comprehensive plan (where one exists) for improving,

developing, or conserving a waterway or waterways af-

fected by the project that is prepared by—

(i) an agency established pursuant to Federal law

that has the authority to prepare such a plan; or

D-4

(ii) the State in which the facility is or will be

located.

(B) The recommendations of Federal and State agencies

exercising administration over flood control, navigation,

irrigation, recreation, cultural and other relevant resources

of the State in which the project is located, and the rec-

ommendations (including fish and wildlife recommenda-

tions) of Indian tribes affected by the project.

applicant which is primarily engaged in the generation or

sale of electric power (other than electric power solely

from cogeneration facilities or small power production fa-

cilities), the electricity consumption efficiency improvement

program of the applicant, including its plans, performance

and capabilities for encouraging or assisting its customers

to conserve electricity cost-effectively, taking into account

the published policies, restrictions, and requirements of

relevant State regulatory authorities applicable to such ap-

plicant.

(3) Upon receipt of an application for a license, the

Commission shall solicit recommendations from the agen-

cies and Indian tribes identified in subparagraphs (A) and

(B) of paragraph (2) for proposed terms and conditions for

the Commission’s consideration for inclusion of the license.

D-5

3. Section 23(b) of the Federal Power Act, 16 U.S.C. §

817 (1982)

Section 23(b). Projects not affecting navigable waters;

necessity for Federal license

It shall be unlawful for any person, State, or munici-

pality, for the purpose of developing electric power, to

construct, operate, or maintain any dam, water conduit,

reservoir, power house, or other works incidental thereto

across, along, or in any of the navigable waters of the

United States, or upon any part of the public lands or

reservations of the United States (including the Territo-

ries), or utilize the surplus water or water power from

any Government dam, except under and in accordance with

the terms of a permit or valid existing right-of-way granted

prior to June 10, 1920, or a license granted pursuant to

this chapter. Any person, association, corporation, State

or municipality intending to construct a dam or other proj-

ect works, across, along, over, or in any stream or part

thereof, other than those defined in this chapter as na-

vigable waters, and over which Congress has jurisdiction

under its authority to regulate commerce with foreign na-

tions and among the several States shall before such con-

struction file declaration of such intention with the

Commission, whereupon the Commission shall cause im-

mediate investigation of such proposed construction to be

made, and if upon investigation it shall find that the in-

terests of interstate or foreign commerce would be af-

fected by such proposed construction, such person,

association, corporation, State, or municipality shall not

construct, maintain, or operate such dam or other project

works until it shall have applied for and shall have received

a license under the provisions of this chapter. If the Com-

mission shall not so find, and if no public lands or reser-

vations are affected, permission is granted to construct

such dam or other project works in such stream upon

compliance with State laws.

D-6

4. Section 301(a) of the Federal Water Pollution Control

Act Amendments of 1972, 33 U.S.C. § 1311(a) (1982).

Section 301. Effluent limitations

(a) Illegality of pollutant discharges except in compliance

with law

Except as in compliance with this section and sections

1312, 1816, 1317, 1828, 1342, and 1344 of this title, the

discharge of any pollutant by any person shall be unlawful.

5. Section 404(a) of the Federal Water Pollution Control

Act Amendments of 1972, 33 U.S.C. § 1344(a) (1982)

Section 404. Permits for dredged or fill material

(a) Discharge into navigable waters at specified dis-

posal sites

The Secretary may issue permits, after notice and op-

portunity for public hearings for the discharge of dredged

or fill material into the navigable waters at specified dis-

posal sites. Not later than the fifteenth day after the date

an applicant submits all the information required to com-

plete an application for a permit under this subsection,

the Secretary shall publish the notice required by this sub-

section.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.