Amicus Curiae Brief — California v. Federal Energy Regulatory Commission

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| JAMA? 1999

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, ' ae 5ePH ° SPAN M, JR,

No. 89-333 CLEeP™ |

IN THE

STATE OF CALIFORNIA,

Petitioner,

vs.

FEDERAL ENERGY REGULATORY COMMISSION and

ROCK CREEK LIMITED PARTNERSHIP,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE AMERICAN RIVERS,

NATIONAL AUDUBON SOCIETY, FRIENDS OF THE EARTH, SIERRA CLUB,

AMERICAN WHITEWATER AFFILIATION, FRIENDS OF THE RIVER,

ENVIRONMENTAL POLICY INSTITUTE, TROUT UNLIMITED AND

SAVE OUR STREAMS IN SUPPORT OF PETITIONER

STEVEN W. WESTON

(Counsel of Record) Of Counsel:

WARD L. BENSHOOF JOHN ECHEVERRIA

THOMAS J.P. McHENRY General Counsel

McCLINTOCK, WESTON, BENSHOOF, AMERICAN RIVERS

ROCHEFORT, RUBALCAVA & MacCUISH 801 Pennsylvania Ave., S.E.

Fifth Floor Suite 303

444 South Flower Street Washington, D.C. 20003

Los Angeles, CA 90071 (202) 547-6900

(213) 623-2322

Attorneys for Amici Curise

Can the Federal Energy Regulatory

Commission in licensing a hydroelectric

project preempt state water law regula-

tions designed to protect the fish and

wildlife resources in the _ state's

rivers?

QUESTION PRESENTED .......-eeee05:

TABLE OF CONTENTS eeeseeoeeeeeeeeeeeee

TABLE OF AUTHORITIES see eoeeeeeeeeee

INTRODUCTION AND STATEMENT

OF INTEREST eseeeeneeneeseneneneeneeneeeeee#ee

I. THE FEDERAL POWER ACT

PRESERVES STATE REGULATORY

AUTHORITY OVER BYPASS

FLOWS AT FERC-LICENSED

HYDROELECTRIC PROJECTS ....

II. FERC AND THE STATES SHARE

CONCURRENT JURISDICTION

OVER BYPASS FLOWS .........

CONCLUSION ....--ee0: eoccccccccce

APPENDIX: DESCRIPTION OF AMICI

CURIAE ...eeeeeccecces

-iii-

TABLE OF AUTHORITIES

Cases

Page

California v. United States

438 U.S. 645 (1978) ......... 10,21,22,

’

Comm'n vy. Granite Rock Co.

480 U.S. 572 (1987) ......... 48,49

California Fed. Savings &

Loan Ass'n vy. Guerra,

479 U.S. 272, 107 S.Ct. 683

(1987) *seeeeeneeeeeneneeneneeneneeee 14,38,39,

City of Fresno v. California,

=. ££ aye 23

Escondido Mutual Water Co. v._

La Jolla Band of Mission Indians,

466 U.S. 765 (1984) se ep eeeee 26,28

Federal Power Comm'n v. Udall,

S00 Galle Ge ETD ccccececcs 43

First Iowa Hydro-Electric

Cooperative v. Federal

Power Comm'n,

See eee ee GROOED cccccces 18,20,22,

Florida Lime & Avocado

Growers v. Paul,

373 U.S. 132 (1963) ...eee- 40

TABLE OF AUTHORITIES

Cases

Ivanhoe Irrigation District

vy. McCracken,

357 U.S. 275 (1958) .....

LaFlamme vy. Federal Energy

Regulatory Comm'n

842 F.2d 1063

(9th Cir. 1988) .........

809 F.2d 41

(D.C. Cir. 1987) .....5-.-

National Wildlife Federation

yv. Federal Energy Regulatory

Comm'n,

801 F.2d 1505

TTT

Roosevelt Campobello Int')

Park Comm'n v. EPA

684 F.2d 1041

(Ist Cir. 1982) .......4..

State of California v. Federal

Energy Regulatory Comm'n

877 F.2d 743

(9th Cir. 1989) .........

-VvV~-

TABLE OF AUTHORITIES

Administrative Decisions

in._re Guadalupe-Blanco River

Authority,

42 FERC ¢ 61,079

(CCH) (January 28, 1988) ....

in re Horseshoe Bend

Hydroelectric Company,

42 FERC 461,072 (CCH)

(January 25, 1988) ...........

Legislative History

51 Cong. Rec. 13625

[ete ehe ees peeeooue

(1916) wccccccccccsccccccsese

Page

6,35

-vi-

TABLE OF AUTHORITIES

Laws and Statutes

Page

Electric Consumer Protection

Act, Pub.L.No. 99-495,

100 Stat. 1243 (1986) ....... 44

16 U.S.C.:

Section 797(@) ....seseeee. 27,45

Section 802 esenereneeeeneeneeeeee 19

Section 803(a)(2) .....««.- 32

Section 803(4j) ....-seeeee- 45

Section 821 ese ereneeeeneeeeeeee 14,37

33 U.S.C.:

Se@ction 1341 ...ceecccccces 30

Section 1344(a) ....seeeees 29

Section 1370 ..cccccccce eee 42

42 U.S.C.:

BSeStiom 6929 ..cccccccccccs 43

Section 7416 ...cscecccccces 42

43 U.S.C.:

Section 372 .cccccccccccces 21

; Section 373 eee eee eee ee eeee 21

—— a

—————————

17 :*+U~.C. Se L. Rev.

Miscellaneous

Page

11 Harv. Envtl. L. Rev.

77 (1987) se eeeeeeeneeeneeneeeee 16

Federal Energy Regulatory

Comm'n,

(January i, 1988) eee eee eee 5

Getches, Water Law (1984) .. 34

aaa

1179 (1984) wnccccceecceccees 16

-viii-

(1987) ....

| 18 U.c.

287 (1984)

135 (1986)

18 Pac. L.J. 1225

Whittaker, Federal Power Act

Rediscovering State Requlatory

Powers,

10 Harv. Envtl. L. Rev.

Thomas, Leacox and Farman,

fvdroelactric Power Protects

L. Rev.

No. 89-333

—.

This case is about who decides how

much water must be left flowing in

rivers which support hydroelectric

projects: the federal government, the

states, or the two together? Amici

submit that the Federal Power Act

mandates that the decision must be made

concurrently, with the federal

government, in effect, establishing a

minimum bypass flow as a “floor” and the

states free to establish a higher bypass

flow to protect their resources.

Amici’, non-profit conservation

‘amici joare American’ Rivers,

National Audubon Society, Friends of the

Earth, Sierra Club, American Whitewater

Affiliation, Friends of the River,

Environmental Policy Institute, Trout

Unlimited and Save Our Streams.

Pursuant to Supreme Court Rule 37.3, the

organizations with a cumulative

membership of over one million persons,

have a strong interest in the outcome of

this case.’ Amici believe that

hydropower is a useful source of

electricity and, especially in light of

the serious environmental concerns

associated with fossil-fuel and nuclear

power generation, nonpollutingo

hydropower has some distinct

environmental advantages. At the same

time, certain hydroelectric projects can

have serious, and in some instances

unacceptable, negative effects on the

ecological and recreational value of

rivers. Hydroelectric projects can

consent of the parties to the filing of

this amicus curiae brief is filed

herewith.

*Ssee Appendix for description of

Amici.

———

decimate salmon and other anadromous

fisheries by blocking upstream and

downstream migration, reduce dissolved

oxygen below the acceptable level for

fish and oti:sr species, or increase

water temperatures causing deleterious

effects on the ecology of the strean.

Impoundments associated with some

hydroelectric projects convert free-

flowing rivers into slack lagoons, and

altered flows below a project can cause

Geterioration of existing riparian

environments. When, as in the case of

the Rock Creek project, the water is

diverted out of the stream and returned

a mile or more downstream, the project

virtually eliminates the affected stream

segment. Amici believe that the control

and mitigation of the these adverse

environmental consequences demands

strong and effective governmental

regulation.

While hydropower is one of the

nation's oldest sources of electric

power, the pace of hydropower

development has significantly

accelerated in the last decade. Today,

approximately 2000 non-federal

hydroelectric projects are operating

under Federal Energy Regulatory

Commission ("FERC") licenses. Since the

late 1970's, however, FERC has received

over 7000 applications to study or

construct different hydroelectric

facilities. Each year since 1980, FERC

has licensed approximately 200 projects

nationwide, and between 1984 and 1988

the number of operating hydropower

—— etl

State agencies charged with protecting

fish and wildlife and managing river

resources closely monitor hydropower

development and its environmental

effects. As evidenced by the decision

of the California Water Resources

Control Board on the Rock Creek project,

the State of California generally seeks

to protect its resources against ill-

advised hydroelectric development. In

other instances, however, states have

not aggressively protected their river

resources, and have sometimes sought to

impose project operating conditions that

. Commission,

*yederal Ener Regulatory

(January 1, 1988).

are less protective of the environment

than those established by FERc.‘

Amici support the position of the

State of California that it can properly

set a higher minimum bypass flow for the

Rock Creek hydroelectric project than

required by the project license issued

by FERC. FERC required minimum flows in

the one-mile bypass reach of 11 cubic

feet per second (cfs) from May through

September and 15 cfs from October

“In_xre Horseshoe Bend Hydroelectric

Go., 42 FERC ¢ 61,072 (CCH) (January 25,

1988) (rejecting request of Idaho

of Water Resources to include

in license a condition subordinating

through April. California's Water Board

has set higher bypass flows to protect

fish populations in Rock Creek -- 60 cfs

from March through June and 30 cfs from

July through February. The Court of

Appeals for the Ninth Circuit upheld

FERC's assertion that it has exclusive

authority to set minimum bypass flows.

State of California v. FERC, 877 F.2d

743 (9th Cir. 1989). Amici join

California and the forty-three other

states acting as amicus curiae in

challenging the Court of Appeals’

decision.

Amici are filing this brief, however,

to emphasize that, just as FERC does not

have exclusive jurisdiction to set

minimum bypass flows, the states do not

have exclusive control over water flows

at hydroelectric projects either. As in

many areas of our federalist system, and

in the field of environmental regulation

in particular, both the states and the

federal government play a regulatory

role. Amici's position, based on the

language of the Federal Power Act (FPA)

and the traditional allocation of

environmental regulatory authority in

our federal system, is that the states

and FERC have concurrent jurisdiction

over water flow decisions and that

operators of hydroelectric facilities

must comply with the regulatory

requirements set by both FERC and the

states. Thus, where a state issues a

water permit that calls for a lower

water flow than that mandated by FERC

license, the licensee is required to

comply not only with the state water

“

permit but also with the more stringent

requirements of the FERC license.

The Federal Power Act (FPA) preserves

the traditional regulatory authority of

the states over their water resources

while granting overall responsibility

for the licensing of hydroelectric

projects to FERC. The Ninth Circuit

Court of Appeals' narrow reading of the

FPA would exclude state regulatory

authority and must be rejected in light

of Section 27's clear and straight-

forward language, its legislative

history and this Court's recent

interpretation of virtually identical

statutory language in California v.

ee ee 0 eee

United States, 438 U.S. 645 (1978). The

preservation of state authority over

non-federal hydroelectric projects

licensed by FERC is even more

appropriate in this case than in the

context of the federally sponsored

reclamation projects addressed in

California. While the FPA grants FERC

“comprehensive” planning authority, the

Court of Appeals was wrong to assume, in

the face of the plain language of

Section 27, that this grant of planning

authority also meant that Congress had

given FERC comprehensive and exclusive

regulatory authority.

The FPA requires hydroelectric project

owners to comply with the provisions of

state water law in addition to any

requirements imposed by FERC. The

bypass flow requirements established by

FERC are merely a minimum; « state may

set a higher bypass flow if necessary to

protect its river resources. The

practical effect of this concurrent

regulatory scheme is to require

hydroelectric licensees to comply with

the minimum bypass flows set by FERC and

the minimum bypass flows set by the

state water agency. Thus both FERC and

the states have the opportunity to

achieve their regulatory objectives and

there is no conflict between the two

sets of regulatory requirements because

the project operator can comply with

both at the same time.

This system of concurrent jurisdiction

is consistent with other federal

environmental laws which allow states to

impose more stringent environmental

requirements than those imposed by the

federal government. In Section 27 of

the FPA, Congress included an explicit

anti-preemption provision, affirming

that it did not intend for FERC

decision-making to displace state water

authority. At the same time, there is

no indication in the FPA that Congress

contemplated surrendering all water flow

decisions to the states.

ARGUMENT

The Federal Power Act provides, in

affirmative and explicit language, that

® FERC licensee, in addition to

complying with the terms of its FERC

license, must comply with the

requirements of state water law.

Section 27 of the Federal Power Act

states:

Nothing herein contained

—_ “ 3-- 4

affecting or intend to

affect or in any way to

interfere with the laws of

the respective States

relat a es

on, use, or

Giztsibublen of wanes east

in irrigation or for

municipal or other uses,

or any vested = right

acquired therein.

16 U.S.C. § 821.

This “anti-preemption" provision, gee

California Fed. Savings & Loan Ass'n v.

Guerra, 479 U.S. 272, 107 &.Ct. 683,

697 (1987) (Scalia, concurring),

encompasses state regulation of water

uses, as well as rights acquired under

state water law; the statute states that

the Federal Power Act does not interfere

with "the laws of the respective States

relating to the control, appropriation,

use, or Gistribution of water..., or any

vested right acquired therein" (emphasis

added). Section 27 preserves a wide

range of state water regulations because

the statute speaks of state laws

relating to the “control, appropriation,

use, or distribution of water." Section

27 also encompasses an unlimited range

of water uses, including hydropower,

because the statute refers to state

regulation of water “used in irrigation

or for municipal or other uses."

(emphasis added).

The most obvious way to construe the

Federal Power Act so as not tc "affect"

or “interfere” with state water law is

to conclude that state water law

requirements apply to nonfederal

hydroelectric projects. Stated

differently, state law is not affected

or interfered with as long as it is

recognized that a FERC licensee must

comply with state law. The plain

mandate of Section 27 is fulfilled by

requiring the sponsor of the Rock Creek

project to comply with the conditions of

its state water permit.’

As explained in detail in the Brief of

the State of California at Section III,

Pp. 22-35, the legislative history of

the Federal Power Act confirms that

Congress did not intend to displace

state law. For example, as stated by

‘This interpretation is supported

by scholarly opinion. Whittaker,

» 10 Harv. Envtl. L.

Rev. 135 (1986);

1l Harv.

. L. Rev. 77 (1987); gmall

, 18 Pac. L.d. 1225 (1987);

Arnold,

, 13

Envtl. L. Rep. 10135 (May 1983);

Thomas, Leacox Farman, Federal)

Dam? 17 U.C. Davis L. Rev. 1179 (1984).

Congressman Ferris in 1914 in

intgoducing H.R. 16673: "Section 14 [now

section 27) is a section disclaiming any

intention on the part of the Federal

Government to interfere with vested

rights or the State laws with reference

to water rights or the appropriate

distribution of water used for

irrigation or sunicipal purposes."

51 Cong. Rec. 13625 (1914) (statement of

Rep. Ferris). At this as well as many

other points during the deliberations on

the Act, Congress made plain its

intention to preserve ctate regulatory

authority over water.

In addition, the legislators clearly

and repeatedly stated that the Federal

Water Power Act was intended to be

consistent with the tradition of federal

deference to state water laws followed

in the Federal Mining Act of 1988 and

Reclamation Act of 1908. See, e@.g., 53

Cong. Rec. 740 (1916) (statement of Rep.

Taylor).

In reaching the conclusion that the

Water Board's minimum flow requirements

were preempted, the Court of Appeals

principally relied on the Court's

decision in First Jowa Hydro-Electric

Cooperative v. Federal Power Comm'n, 328

U.S. 152 (1946). In First Jowa, the

Court overturned a decision by the

Federal Power Commission (predecessor to

FERC) denying a license for a

hydroelectric project on the ground that

the developer had not received a use

permit under Iowa law. The only issue

squarely presented in First Iowa was

whether the Commission had properly

rejected the License application under

section 9(b) of the FPA, which requires

hydroelectric developers to present

"“(s)jatisfactory evidence that the

applicant has complied with the

requirements of the laws of the State or

States within which the proposed project

is to be located with respect to bed and

banks and to the appropriation,

diversion, and use of water for power

purposes and with respect to the right

to engage in the business of developing,

transmitting, and distributing power,

and in any other business necessary to

effect the purposes of a license under

this Act." 16 U.S.C. § 802. The Court

held that section 9(b) only requires a

showing of an effort to comply with that

law, not actual compliance, and

therefore the Commission had improperly

denied the license.* The First Iowa

Court also commented in dictum that

section 27 does not preempt state laws

"relating to property rights as to the

use of water" and that it “has primary,

if not exclusive reference to such

proprietary rights." 328 U.S. at 175-

76. In ruling that the State of

California lacked authority to require

higher minimum bypass flows than those

required in the FERC license, the Court

of Appeals adopted the view that Section

27 was applicable only to “proprietary

rights." 6877 "PF. 24 at 749.

‘The holding of the First lowa

Court on the proper interpretation of

Section 9(b) has not been challenged in

this case. Amici note that if the Court

rejects the expansive federal preemption

analysis followed in First Iowa, it may

be appropriate to revisit the proper

interpretation of Section 9(b).

In California v. United States, 438

U.S. 645 (1978), the Court effectively

rejected the conclusions and reasoning

of First Iowa. The Court held in

California that section 8 of the

Reclamation Act generally requires

federal agencies when constructing and

operating federal reclamation projects

to comply with terms and conditions

attached to state water permits.

Section 8 provides, in language

essentially identical to that of section

27 of the FPA, that federal reclamation

projects are subject to state laws

relating to "control, appropriation,

use, or distribution of water used in

irrigation or for municipal or other

uses, or any vested right acquired

therein." 43 U.S.C. §§ 372, 373.

Significantly, the First Iowa Court

expressly noted that section 27 was

modeled after the language of section 8

and should be interpreted in the same

fashion. 328 U.S. at 176 n.20.

Not only did this Court in California

reach an entirely different conclusion

than the First Iowa Court abcut the

meaning of the statutory language, the

California Court expressly rejected the

proprietary rights theory that was the

premise for the dictum in First JIowa

that section 27 was not intended to

preserve state regulatory authority over

hydroelectric projects. 438 U.S. at

674-75. Further, this Court in

California specifically disavowed two

decisions thet expressly relied on the

proprietary rights theory that Section

27 is limited to “takings” of water

rights -- Ivanhoe Irrigation District v.

McCracken, 357 U.S. 275,. 291-92 (1958)

and City of Fresno v, California, 372

U.S. 627, 629-30 (1963). 438 U.S. at

674-675. The rejection of the

proprietary rights theory in California

thus effectively overrules the dictum of

the Court in First Iowa.

The Court of Appeals offered several

unconvincing reasons for its refusal to

follow this Court's teachings in

California. First, it erroneously

suggested that this Court's

interpretation of section 8 in

California did not effectively overrule

this Court's interpretation of section

27 in First Jowa because the two

sections “address two different and

entirely separate water use systems."

877 F.2d at 749. This statement is

incorrect because both the FPA and the

Reclamation Act address federal programs

governing water development projects.

Bureau of Reclamation projects have the

same, if not greater, potential for

interfering with the objectives of state

water regulatory laws as do non-federal

hydropower projects licensed by FERC.

No difference between the Bureau of

Reclamation's water development program

and FERC's licensing program justifies

a different interpretation of the same

statutory language applicable to each

agency. Indeed, if anything, a stronger

case can be made for federal preemption

of state water laws applicable to Bureau

projects built and operated by the

federal government than non-federal

hydropower projects which are subject

only to federal licensing.

The second defect in the Court of

Appeals' decision is its reliance on the

"comprehensive hydropower planning

authority” vested in FERC as support for

the conclusion that the FPA preempts

inconsistent state regulation. 877 F.2d

at 748. Amici do not dispute that

Congress has directed FERC to ensure

that its licensing decisions with

respect to individual projects are

consistent with comprehensive, basin-

wide plans designed to achieve an

appropriate balance between competing

public uses of rivers. See LaFlamme v.

FERC, 842 F.2d 1063 (9th Cir. 1988);

National Wildlife Federation v. FERC,

801 F.2d 1505 (9th Cir. 1986). It

hardly follows, however, from this grant

of comprehensive planning responsibility

that Congress intended to vest exclusive

regulatory authority over hydroelectric

projects in FERC alone. It is not at

all contradictory for Congress to direct

FERC to take the lead in preparing plans

for hydropower development and at the

same time preserve a sphere for state

regulatton of hydroelectric projects.

This Court, in Escondido Mutual Water

Co. v. La Jolla Band of Mission Indians,

466 U.S. 765 (1984), already has

rejected the contention that Congress’

grant of comprehensive planning

responsibility must mean that Congress

intended to grant FERC’ exclusive

regulatory jurisdiction as well. The

Escondido decision dealt with section

4(e) of the FPA, which provides that

FERC may issue a license on certain

federal lands only after it determines

that the project “will not interfere or

be inconsistent with the purpose for

which such [federal] reservation was

created or acquired." 16 U.S.C. §

797(e). Section 4(e) also provides that

"(the license) shall be subject to and

contain such conditions as the Secretary

of the department under whose

supervision such reservation falls

{Interior or Agriculture) shall deem

necessary for adequate protection and

utilization of such reservation." J[d.

The Court rejected FERC's contention

that it had the authority to review

project conditions developed by the

Departments of Interior or Agriculture

and held, based on the plain language of

section 4(e), that FERC must include the

Departments' conditions in the license

without modification. 466 U.S. at 79%.

The petitioners in Escondido

explicitly argued, in line with the

thinking of the court below, that the

Departments' authority to require

inclusion of conditions in a FERC

license would be inconsistent with

FERC's responsibility under’ section

10(a) to determine that "the project

adopted ... will be best adapted to a

comprehensive plan." 466 U.S. at 778

n.21. The Court rejected this argument

as plainly inconsistent with the scheme

of the FPA. Jd. For the same reason,

the Court in this case should reject the

conclusion of the Court of Appeals below

that FERC's comprehensive planning

responsibilities preclude the

application of mandatory state water law

requirements to hydroelectric projects.

Congress also has provided for other

federal and state resource agencies to

play important roles in regulating

hydroelectric development, further

undermining the notion that FERC's

comprehensive planning responsibility

requires that FERC also have exclusive

regulatory authority. Under section 404

of the Water Pollution Control Act

Amendments of 1972, 33 U.S.C. § 1344(a),

the United States Army Corps of

Engineers is authorized to issue permits

for the discharge of dredged or fill

material to navigable waters at a

specific disposal site. Because the

construction of a dam or hydroelectric

facility typically involves the use of

Gredged or fill material, the Corps

generally has concurrent jurisdiction

with FERC over this aspect of

hydroelectric licensing. See

Monongahela v. Marsh, 809 F.2d 41, 51

(D.C. Cir. 1987) (rejecting contention

that FERC has exclusive jurisdiction

over hydroelectric development).

Similarly, under section 401 of the

Federal Water Pollution Control Act

Amendments of 1972, 33 U.S.C. § 1341, a

FERC licensee is required to obtain

water quality certification from state

officials before constructing a

hydroelectric project. In Roosevelt

Campobello Int’) Park Comm'n v. EPA, 684

F.2d 1041 (lst Cir. 1982), the court

affirmed the breadth of state control

over projects requiring federal

licensing and emphasized that a state

certification can include such

limitations as are necessary to assure

compliance “with any appropriate

requirement of state law." 684 F.2d at

1056. Under the holding in Roosevelt

Campobello, if a state legislature or

state agency prohibits or sets

conditions on a proposed hydroelectric

project, and if the state's water

quality agency includes those

requirements in its section 401 water

quality certification, those conditions

are binding on FERC and must become part

of the FERC license.

Finally, it is telling that, in recent

amendments to the FPA, Congress

specifically provided for independent

planning by other federal and state

agencies to complement FERC's own

comprehensive planning activities.

Section 10(a) of the FPA, as amended by

the Electric Consumers Protection Act of

1986, requires FERC to consider "[t)he

extent to which [a proposed) project is

consistent with a comprehensive plan...

for improving, developing or conserving

a waterway or waterways affected by the

project that is prepared by -- (i) an

agency established pursuant to Federal

law that has authority to prepare such

a plan; or (ii) the State in which the

facility is or will be located." 16

U.S.C § 803(a)(2)(A) (emphasis added).

Congress enacted this new provision in

reaction to FERC's traditional refusal

to consider state river development and

conservation plans in making its

licensing decisions. Since Congress has

now explicitly recognized state and

federal agency comprehensive planning

efforts it is absurd to try to equate

FERC's comprehensive planning mandate

with a grant of exclusive regulatory

jurisdiction.’

"While this case arises from the

State of California, and is likely to

have particular significance for other

western states that have similar

appropriative water rights laws, it is

important to emphasize that the Court's

decision will not be limited in its

impact to those states. The language of

Section 27 refers in broad terms to

state laws “relating to the control,

appropriation, use or distribution of

water;" there is no limitation in the

language of the provision as to the type

of state water law. Furthermore, while

the legislative history reveals a

special concern about the overlap

between FERC and state jurisdiction in

the western United States, there is no

hint in the legislative history that any

of the states were intended to be

excluded. As a result, Section 27

preserves state water regulatory

authority in a variety of forms. While

nine states follow the so-called

appropriative water rights doctrine

II. FERC AND THE STATES SHARE

CONCURRENT JURISDICTION OVER

BYPASS FLOWS

The most appropriate resolution of the

conflicting demands of the states and

FERC on water resources is to recognize

that the FPA establishes concurrent

jurisdiction over bypass flows at

hydroelectric projects licensed by FERC.

This is not only the proper reading of

Section 27 in the context of the

language and legislative history of the

FPA but also is consistent with the

adopted in California, 29 states have a

riparian water law system and 12 states

have hybrid systems. See Getches, Water

Law 3-7 (1984). Section 27 encompasses

all of these approaches to water

regulation.

traditional balance of state and federal

control over environmental resources.

While the State of California in this

case mandated higher bypass flows than

those required by FERC, it is important

to recognize that in other cases FERC

may decide to mandate higher flows than

the states. For example, in In re

Guadalupe-Blanco River Authority, 42

FERC 4 61,079 (CCH) (January 28, 1988),

which involved the construction of the

Canyon Dam Hydro Project on the

Guadalupe River in Texas, FERC rejected

the State of Texas' challenge to FERC's

authority to set higher flows than those

provided by the state water permit for

the project. The FERC license required

a continuous minimum flow of 90 cfs

during project operation. Id. By

~ 36

contrast, the state water permit

prescribed water releases equal to the

natural inflow to the reservoir. Id.

Strictly speaking, of course, this

case does not present the issue of

FERC's authority to require one of its

licensees to provide minimum flows

higher than those required by the state.

Nonetheless, this Court's decision will

necessarily shed important light on this

issue. While the forty-three states

supporting the position of the

Petitioner State of California have not

directly addressed this issue, it is

‘Clear from their brief in support of

California's petition for a_ writ

certiorari that they believe the FPA

should be construed to grant the states

“exclusive control" over state waters,

_—"

ee Pa *

_—_= atte —_

and to support "(a) single comprehensive

regulatory scheme" governed by the

states. Brief of Amici Curiae States of

Idaho, et al. in Support of Petitioner

at 15, 17. Amici conservation groups

disagree with this reading of the FPA.

Section 27 is, at most, an “anti-

preemption" provision, not a complete

surrender of federal authority over

water flows.

Section 27 states that the FPA should

not be construed "as affecting or

intending to affect or in any way to

interfere" with state water laws. 16

U.S.C. § 821. Nothing in the language

of section 27 suggests that it was

intended to grant either the federal

government or the states exclusive

jurisdiction to establish water flows at

Se tee Mee

woe toe —

hydroelectric projects. Section 27 does

not remove federal authority, it merely

preserves state authority. The FPA does

not “affect” or "interfere" with state

water law as required by Section 27 so

long as it is understood that a FERC

licensee is subject to concurrent state

and federal jurisdiction and must comply

with the water flow requirements of FERC

and the state.

The conclusion that the FPA allows

FERC to establish a minimum bypass flow

as a "floor" while leaving the states

free to set a higher bypass flow is

consistent with recent decisions of this

Court dealing with federal preemption.

For example, in California Fed. Savings

& Loan Ass'n v. Guerra, 479 U.S. 272,

107 S.Ct. 683 (1987), the Court upheld

against a preemption challenge a

California statute that required

employers to provide unpaid leave for

pregnant workers. The Court ruled that

the federal Pregnancy Discrimination Act

(PDA), which requires that pregnant

women be treated the same as other

disabled but nonpregnant employees, did

not prevent the state from providing

greater protection for pregnant workers.

Id. The Court expressly adopted the

Court of Appeals’ conclusion that

Congress intended the federal PDA to be

"'a floor beneath which pregnancy

Gisability benefits may not drop - not

a ceiling above which they may not

rise.'" California Fed. Savings & Loan

Ass'n vy. Guerra, 758 F.2d 390, 396 (9th

Cir. 1985). In reaching the conclusion

that the PDA's requirements were a floor

for worker benefits, not a ceiling, the

Court relied on the two anti-preemption

clauses contained in Title VII, of which

the PDA was a part, which “severely

limit Title VII's pre-emptive effect",

107 S.Ct. at 690, and the legislative

history of the PDA indicating that

"Congress repeatedly acknowledged the

existence of state anti-discrimination

laws that prohibit sex discrimination on

the basis of pregnancy." The Guerre

Court pointed out that employers could

comply with both federal and state law

and that "(tj)his is not a case where

"'compliance with both federal and state

regulations is a physical

impossibility.'" 107 S.Ct. at 695,

quoting Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132, 142-143

(1963).

Section 27 is an “anti-preemption"

Clause of the type that was at issue in

Guerra. 107 S.Ct. at 697 (Scalia, J.,

concurring). The legislative history of

the FPA evinces no intent on the part of

Congress to supercede state water law.

In fact, the legislative history

contains numerous comments on the need

for the protection of state authority.

Thus, as with the Pregnancy

Discrimination Act at issue in Guerra,

Congress recognized in the FPA that

states have legislated and would

continue to legislate in this area.*

And, as in Guerra, it is not a physical

impossibility for the operator of the

"sixteen of the nineteen western

states have incorporated instream flow

protection into their prior appro-

priation systems. Meyer,

(1989).

Rock Creek project to comply with both

federal and state law.

The notion that federal law provides

a floor for resource protection to which

states may add higher ceilings appears

throughout federal environmental

legislation. Under the Clean Air Act,

for example, a state may enforce

stricter air pollution emission

requirements than those required

nationwide by the Environmental

Protection Agency. 42 U.S.C. § 7416.

Similarly, under the Resource

Conservation and Recovery Act, a state

may set more stringent requirements for

solid waste’ disposal than the federal

government. 42 U.S.C. § 6929; gee also

33 U.S.C. § 1370 (Clean Water Act).

The conclusion that section 27

preserves concurrent FERC authority over

water flows is also supported by a

common sense understanding of, what is

involved in regulating the environmental

effects of hydroelectric development.

FERC simply cannot carry out its

responsibility to prevent and/or

mitigate the adverse effects of

hydroelectric development on rivers

unless it has the authority to mandate

specific water flows. In Federa] Power

Comm'n v. Udall, 387 U.S. 428 (1967),

the Court recognized that FERC's duty to

examine whether a proposed project will

serve the public interest requires “an

exploration of all issues relevant to

the ‘public interest,' including future

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

recreational purposes, and the

protection of wildlife." 387 U.S. at

450. The resolution of "all issues

relevant to the public interest," Jd.,

including instream recreation and

fisheries, obviously requires

consideration of minimum flows at

hydroelectric projects.

The Electric Consumer Protection Act

of 1986 (ECPA), Pub.L.No. 99-495,

100 Stat. 1243 (1986), further

reinforces FERC's duty to consider

instream flows as one aspect of its

regulatory responsibilities. For

example, section 10(}j) of the FPA, as

amended by ECPA, directs FERC to include

in project licenses terms and conditions

to protect fish and wildlife. 16 U.S.C.

803(j). In practice, the single most

common and significant condition

developed pursuant to section 10(j) is

a nininum flow requirement.

Furthermore, section 4(e) of the FPA, as

amended by ECPA, directs FERC in

deciding whether and on what terms to

license a project, to give “equal

consideration" to, on the one hand,

power generation and, on the other, to

"the protection, mitigation of damage

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." 16 «62UU.S.C.

797(e). FERC's “equal consideration"

mandate would be eviscerated if FERC

could not provide protection for

downstream fisheries and recreation by

setting appropriate nininzuz flow

requirements.

It would literally be impossible for

FERC to regulate the construction and

operation of hydroelectric facilities,

on the one hand, and for the states to

regulate the appropriation and use of

water, on the other. The issue of the

appropriate quantity of stream flow at

a hydroelectric project is critical in

the hydroelectric licensing process as

well as in the state regulatory process.

The unavoidable oractical overlap

between water regulation and

hydroelectric licensing requires some

overlap as well in the authority

exercised by FERC and by the state over

hydroelectric projects.

The conclusion that FERC and the

states exercise concurrent jurisdiction

over minimum flows avoids unnecessary

conflict between state and federal

requirements. In this particular case,

for example, FERC required a minimum by-

pass flow of 11 and 15 cfs depending on

the season, and the California Water

Board required a minimum by-pass flow of

30 and 60 cfs. While the minimum flow

required by the Water Board is higher

than the minimum flow required by FERC,

there is no actual conflict because the

licensee will comply with both

requirements if the licensee meets the

state standard. Similarly, if FERC were

to set a higher flow requirement than

the state, the licensee could comply

with both by meeting the FERC standard.

Finally, concurrent federal and state

jurisdiction over water flows at

hydroelectric developments is consistent

with this Court's recent decision in

California Coastal Comm'n v. Granite

Bock Co., 480. =—s«é«Ud«. S.. 572 (1987),

concerning the appropriate regulatory

balance between state and federal

control over natural resources. In

Granite Rock this Court approved the

state and federal government's shared

regulatory authority over federal

mineral resources by upholding a permit

requirement imposed by the California

Coastal Commission on a mining developer

operating on federal land. Although the

project was located on lands

administered by the United States Forest

Service, this Court required the mining

developer to obtain an additional permit

from the state agency. In reaching its

decision, this Court reversed the Ninth

Circuit Court of Appeals which had

relied on the so-called "First JIowa

doctrine" in reaching the conclusion

that the Coastal Commission's permit

authority intruded on federal authority.

Granite Rock Co. v. California Coastal

Comm'n, 768 F.2d 1077, 1082-83 (9th Cir.

1985).

The decision of the court below in the

case at bar directly conflicts with

Granite Rock's teaching that federal

agencies must accommodate state

environmental regulatory authority.

Moreover, under the Granite Rock

decision, FERC's assertion of exclusive

jurisdiction amounts to an argument that

there is no possible set of conditions

that the California State Water

Resources Control Board could place on

the hydroelectric license that would not

conflict with federal law, i.e., a

facial challenge to the State Water

Board's minimum flow requirement.

Granite Rock soundly rejected that

approach.

CONCLUSION

For the foregoing reasons, this Court

should reverse the decision of the court

below and remand the case for further

proceedings not inconsistent with its

opinion.

DATED: January 16, 1990

Respectfully submitted,

STEVEN W. WESTON

Counsel of Record

WARD L. BENSHOOF

THOMAS J.P. MCHENRY

McCLINTOCK, WESTON,

BENSHOOF, ROCHEFORT,

RUBALCAVA & MacCUISH

JOHN ECHEVERRIA

General Counsel

AMERICAN RIVERS

Attorneys for Amici Curiae:

American Rivers, National

Audubon Society, Friends of

the Earth, Sierra Club,

American Whitewater

Affiliation, Friends of the

River, Environmental Policy

Institute, Trout Unlimited

and Save Our Streams

APPENDIX

DESCRIPTION OF AMICI CURIAE

American Rivers is a non-profit

organization with offices located at 801

Pennsylvania Avenue, S.E., Washington,

D.C. The mission of American Rivers is

to preserve America's outstanding rivers

and their landscapes. With

approximately 12,000 members across the

country, American Rivers is the nation's

principal river conservation

organization.

National Audubon Society is one of the

oldest, largest, and most experienced

national conservation organizations. It

has approximately 500,000 members,

including approximately 65,000 members

in the State of California, who are

dedicated to the conservation and wise

use of natural resources and protection

of the environment. Wational Audubon

Society is incorporated under the laws

of the State of New York and has its

corporate headquarters at 950 Third

Avenue, New York, New York 10022. High

among National Audubon Society's

purposes is the conservation of the

nation's waters and the protection of

riparian and aquatic habitat.

Friends of the Earth is a national and

international conservation organization,

incorporated in the State of New York,

with approximately 15,000 members

residing in the fifty United States and

the affiliate conservation organizations

in thirty-one different countries around

the world. Its office is located at 218

D Street, S.E., Washington, %.C. 20003.

Friends of the Earth has a long history

of seeking to preserve special free-

flowing rivers and streams and promoting

ecologically sound hydroelectric

development. Its members use and enjoy

many of the rivers and streams that are

threatened by hydroelectric development.

The Sierra Club is a non-profit

corporation organized in 1892 under the

laws of the State of California, with

its principal place of business in San

Francisco, California and other offices

located throughout the nation. Its

office is located at 730 Polk Street,

San Francisco, California 94109. The

Sierra Club is a national conservation

organization with approximately 420,000

members dedicated to protecting natural

resources, including outstanding

riverine resources. Approximately

160,000 of the Club's members reside in

the State of California.

American Whitewater Affiliation was

established in 1961 to protect and

enhance the recreational enjoyment of

whitewater sports in America. Its

office is located at P.O. Box 375,

Denver, North Carolina 28037. The

primary focus of the Affiliation's

activities has been the preservation,

protection and enjoyment of whitewater

rivers in America and throughout the

world. The Affiliation is a Missouri

not-for-profit corporation with

approximately 1300 individual or

business members and 61 affiliate

members.

Friends of the River is a California

non-profit organization with 9,000

members. Its office is located at 909

12th Street, Suite 207, Sacramento,

California 95814. Its mission is to

preserve streams and rivers in their

natural state in the western United

States. Most of its members use rivers

and streams for fishing, boating,

walking, aesthetic appreciation and

other forms of recreation. Friends of

the River is frequently involved in

proceedings before the Federal Energy

Regulatory Commission and the State of

California Water Resources Control

Board.

Environmental Policy Institute is a

national conservation organization

Gedicated to the protection of the

environment and the conservation of

natural resources. Its office is

located at 218 D Street, S.E.,

Washington, D.C. 20003. It is vitally

interested in assuring the maximum

protection for America's most

outstanding rivers. Environmental

Policy Institute has a long-standing

interest in promoting sound water

development policy, and has assisted

state as well as local organizations in

river protection efforts.

Trout Unlimited is a national non-

profit conservation organization with

approximately 64,000 members dedicated

to the preservation, enhancement and

restoration of the coldwater fisheries

of America. It engages in a variety of

activities including assisting local,

state and federal agencies in fisheries

management. Its offices are located at

501 Church Street, N.E., Vienna,

Virginia 22180. A key to maintaining

coldwater fisheries' biological

integrity is the quantity and quality of

the water. Thus, Trout Unlimited works

to assure stream flows that support

strong trout and salmon populations.

Save Our Streams (SOS) is a grassroots

volunteer organization devoted to

preservation of free-flowing streams on

federal lands in California. Its office

is located at P.O. Box 56, North Fork,

California 93643. SOS has 750 members

who use California streams for hiking,

swimming, fishing, and spiritual

renewal.

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.