Amicus Curiae Brief — PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology

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AUG 0 6 1993

No. 92-1911 |

GL ERA

—_—

IN THE

Supreme Court of the Wuited States

OCTOBER TERM, 1993

PUD No. 1 oF JEFFERSON COUNTY

AND THE CITY OF TACOMA,

. Petitioners,

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY,

DEPARTMENT OF FISHERIES AND

DEPARTMENT OF WILDLIFE,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Washington

BRIEF OF AMICUS CURIAE

NORTHWEST HYDROELECTRIC ASSOCIATION

IN SUPPORT OF PETITIONERS

RICHARD M. GLICK

Counsel of Record

ELIZABETH A. SUMMERS

DAVIS WRIGHT TREMAINE

2300 First Interstate Tower

1300 S.W. Fifth Avenue

Portland, OR 97201

(503) 241-2300

Attorneys for Amicus Curiae

Northwest Hydroelectric

Association

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Does § 401 of the Clean Water Act grant the states

authority to condition a water quality certificate for a

hydroelectric project on minimum flows to protect fish

habitat in excess of the flows necessary to meet adopted

water quality standards.

(i)

TABLE OF CONTENTS

SIT IID sss sctrssenseccaseasnassssesocsnnecensesssens

TABLE OF AUTHORITIES .2000...20.......ccceccccccceeceeeeeeeees

INTEREST OF AMICUS CURIAE |W...

a aceacciatialaiedieniatintitenmemennedes ibinithinitiinesiais

SUMMARY OF THE ARGUMENT .......000..... —

ARGUMENT ..................... enews iiiasiasdiineaineen fitehihiettiaiensinens

I.

Il.

THIS CASE PRESENTS AN ISSUE OF

REGIONAL IMPORTANCE TO THE PaA-

CIFIC NORTHWEST HYDROPOWER IN-

DUSTRY ...... Setiaiaidicaailisvenestinpesencstapsecas Saeiiiaccbiovensees

A. The Pacific Northwest Hydropower Indus-

OS EEE a

B. The Hydropower Industry Will Be Signifi-

cantly Affected If States Are Able To Im-

pose Minimum Flow Conditions For Fish

EEE

1. A recognition of state authority to set

minimum flows for non-water quality

conditions will disrupt the FERC licens-

TAS Se janbeiiendinnes

2. State imposed non-water quality condi-

tions result in unauthorized veto power..

UNLESS ADDRESSED BY THIS COURT

THE WASHINGTON SUPREME COURT'S

DECISION CREATES UNCERTAINTY AS

TO THE STATE AUTHORIY GRANTED

UNDER § 401 OF THE CLEAN WATER ACT

AND WILL DISRUPT THE HYDROELEC-

TRIC LICENSING PROCESS .............. ouiatin .

(iii)

iv

TABLE OF CONTENTS—Continued

Page

A. The Washington Supreme Court’s Decision

Misinterprets State Authority Under § 401

Of The Clean Water Act... 7

1. The Washington Supreme Court’s Opin-

ion Fails to Recognize FERC’s Exclusive

ERE Se coed eal salen ee ee fe

2. The Washington Department of Ecology

Exceeded Narrow Authority to Limit

Discharge of Pollutants ....... 9

B. The Washington Decision Regarding The

Scope Of State Authority Under § 401 Con-

tributes To National Confusion Which Re-

quires This Court’s Direction 10

C. This Court Is The Only Forum To Resolve

The Conflict Regarding The Scope Of State

Authority Under § 401 ......0.0... 11

CONCLUSION .........W...... senishnaenniminidalaieaepsbdiniatenniianaioe 12

v

TABLE OF AUTHORITIES

Cases Page

Arnold Irrigation District v. Department of Envi-

ronmental Quality, 79 Or. App. 136, 717 P.2d

FO GF 8 ee 11

Bangor Hydro-Elec. Co. v. Board of Environmen-

tal Protection, 595 A.2d 438, 440 (Me. 1991)... 10

California v. FERC, 495 U.S. 490 (1990) 5, 6, 7,8

First lowa Hydro-Elec. Coop. v. Federal Power

Comm’n, 328 U.S. 152 (1946) .......00000000........ 5, 7, 8, 12

Hi-Line Sportsmen Club v. Milk River Irrigation

Dist., 241 Mont. 182, 786 P.2d 13 (Mont. 1990) .. 10

Niagara Mohawk Power Corp. v. New York State

Dept. of Envtl. Conservation, 187 A.D.2d 7, 592

N.Y.S.2d 141 (N.Y. App. Div. 1993), motion for

leave to appeal granted, N.Y. Ct. of App. May

ee a 10

Pacific Gas & Electric Co. v. State Energy Re-

sources Cons. & Dev. Com’n., 461 U.S. 190, 201-

ES en aan anae 11

Sayles Hydro Ass'n v. Maughan, 985 F.2d 451, 453

a eee 5

Simpson Paper (Vermont) Co. v. Department of

Envtl. Conservation, petition for cert. filed, 61

U.S.L.W. 3504 (Dec. 12, 1992) (No. 92-1012). 10

Summit Hydropower v. Commissioner of Envtl.

Protection, No. CV91-050-26-43, 1992 Conn.

Super. LEXIS 2177 (Conn. nate July 20,

1992) . aa AL CAPR ete EE ; 10

Administrative Decisions

Central Maine Power Co., 52 FERC ‘* 61,033

(1990) ......... Lee oe Tee ae ea RO 11, 12

Noah Corporation, 57 FERC © 61,170 (1991)... 11

Town of Summerville, 60 FERC © 61,291 (1992). 11

Statutes

Federal Power Act, 16 U.S.C. §§ 791-828 (1988)... 6, 7,8

§ 10(j) (2), 16 U.S.C. § 803(j) (2) ~

vi

TABLE OF AUTHORITIES—Continued

Page

Clean Water Act, 33 U.S.C. § 1251-2623 (1988)... 2, 3, 5,

7,9

I a 2

§ 401, 33 U.S.C. § 138411 ..................... 2,5, 7,9, 10,11, 12

§ 401(d), 33 U.S.C. § 1341 (d) —....0 2,7,9,11

Other Authorities

National Hydropower Association, Hydroguide:

Hydroelectric Resources of the United States,

“Introduction” (NHA, Washington, D.C. 1989) .. 4

Northwest Power Planning Council, 1991 North-

west Conservation and Electric Power Plan,

“Generating Resources”, Volume II, Part II

RENTS Lee EC AAR AS NN cae Rts VaR TN AE : 3

IN THE

Supreme Cant of the Wuited States

OcTOBER TERM, 1993

No. 92-1911

PUD No. | oF JEFFERSON COUNTY

AND THE City OF TACOMA,

Petitioners,

Vv.

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY,

DEPARTMENT OF FISHERIES AND

DEPARTMENT OF WILDLIFE,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Washington

BRIEF OF AMICUS CURIAE

NORTHWEST HYDROELECTRIC ASSOCIATION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

THE AMICUS

The Northwest Hydroelectric Association (NWHA)

submits this brief Amicus Curiae. NWHA is the trade

association of the Pacific Northwest hydroelectric indus-

try. Its members include publicly owned and investor

owned utilities, municipalities and independent power

producers located in Idaho, Montana, Northern Califor-

nia, Oregon and Washington.

2

SUMMARY OF THE ARGUMENT

In its order granting Tacoma’s water quality certifica-

tion request, the Washington Department of Ecology im-

posed minimum flow requirements based on its purported

authority under § 401(d)' of the Clean Water Act to

condition water quality certificates on the water quality

factors specified in § 401(d) and “any other appropriate

requirement of state law.” This order conflicts with the

FERC’s exclusive authority to regulate hydroelectric

projects.

The Washington Supreme Court upheld the conditions

imposed by the Washington Department of Ecology in

the Tacoma license. The Court’s decision incorrectly

concludes that § 401 grants the State of Washington the

authority to impose minimum stream flow conditions to

protect fish habitat. The Washington Supreme Court's

decision contradicts the express provisions of the Clean

Water Act, the balance of authority in the federal licens-

ing scheme created by Congress and this Court’s opinions

interpreting that licensing scheme.

The Washington Supreme Court’s opinion will cause

disruption in the FERC licensing process. If allowed to

stand, the opinion will permit an unauthorized state veto

power by imposing minimum flow standards which render

the projects uneconomical. Further, the opinion contrib-

utes to the uncertainty surrounding the definition of the

scope of state authority under § 401 of the Clean Water

Act.

FERC refuses to review the validity of water quality

certifications issued pursuant to § 401 of the Clean Water

Act, and licensees therefore cannut expect clarification

from any federal agency. In the absence of direction from

the United States Supreme Court, the scope of state au-

thority to condition a § 401 certification will remain in

1The Clean Water Act is codified at 33 U.S.C. § 1251 et seq.,

(1988).

3

question. This case presents an issue of national impor-

tance to the hydropower industry in the Pacific Northwest.

ARGUMENT

I. THIS CASE PRESENTS AN ISSUE OF REGIONAL

IMPORTANCE TO THE PACIFIC NORTHWEST

HYDROPOWER INDUSTRY.

A. The Pacific Northwest Hvdropower Industry.

The Northwest Hydroelectric Association membership

represents numerous entities that have a significant in-

terest in this petition for certification. The Pacific North-

west is a largely hydrobased system. Hydropower gener-

ates two-thirds of the region’s energy and makes up three

quarters of the region’s generating capacity. The hydro-

power industry provides more of the region’s electricity

than all other sources of power combined.

Hydropower will continue to develop and remain the

primary regional source of electricity. The Northwest

Conservation and Power Planning Counsel 1991 plan

calls for continued development of hydropower in the

Northwest. Indeed, the region’s new hydropower poten-

tial is substantial. The highest potential for new hydro-

power projects in the Pacific Northwest is approximately

2,300 megawatts of hydropower capacity, which produces

1,100 megawatts of average energy and 900 megawatts

of firm energy at 13.4 cents per kilowatt-hour.’

Other factors assure hydropower’s continuing impor-

tance to the Northwest. The low operating and mainte-

nance costs of hydroelectric power projects cause hydro-

power to be among the lowest cost sources of electricity

2 See the membership list in the attached Appendix.

8 Northwest Power Planning Council, 1991 Northwest Conserva-

tion and Electric Power Plan, “Generating Resources,” Volume II,

Part II (1991).

4

in the country... From an environmental perspective,

hydroelectric generation is a clean, renewable source of

energy. Additionally, hydroelectric projects accomplish

more than simply the production of electricity. Such

projects provide recreational opportunities to visitors and

benefits to fish and wildlife. Some projects enhance flood

control, navigation, irrigation and domestic water supplies

in addition to their primary purpose of generating power.

As a result of these benefits, hydropower has become an

integral part of a majority of the Northwest’s communi-

ties, businesses and industries. In order to maintain the

viability of hydropower as the traditional major resource

for electrical energy in the Pacific Northwest, it is essen-

tial that the FERC licensing process be definitive and

comprehensive.

B. The Hydropower Industry Will Be Significantly

Affected If States Are Able To Impose Minimum

Flow Conditions For Fish Habitat.

If states are allowed to mandate minimum flows for

non-water quality conditions, such as fish habitat, despite

the balancing assessments made by FERC, the effect on

the hydroelectric industry will be severe. An increase in

minimum flows at a hydroelectric project results in the

release of stored water at a time when it is uneconomical

to produce energy. With respect to run-of-river projects

(i.e. those with no water storage capability), the increased

minimum flows result in a loss of water for power genera-

tion. A special attribute of hydropower is the ability to

generate at the moment when power is needed. This

ability is lost when water is released from storage before

peak demand periods. To replace that lost generation,

electric suppliers rely on more costly forms of production.

Combustion turbines, which produce air emissions, are

the most common alternate energy source.

4 National Hydropower Association, Hydroguide: Hydroelectric

Resources of the United States, “Introduction” (NHA, Washington,

D.C. 1989).

5

FERC’s job is to balance these competing values.

FERC’s decision is final and must be so if developers

are to have the certainty needed for financing. Section

401 is not about balancing, but applying approved stand-

ards to protect water uses from pollution.

1. A recognition of state authority to set minimum

flows for non-water quality conditions will dis-

rupt the FERC licensing process.

State exercise of undelegated authority under the guise

of the Clean Water Act will disrupt the FERC licensing

process, If states can set minimum flows for fish habitat

and other non-water quality conditions, disputes over

§ 401 conditions will result in substantial delays in the

licensing process. Such delays will increase costs and

create an uncertain regulatory environment.

A recent Ninth Circuit case involved a hydro licensee

that had been refused a hearing on its state water rights

application. The licensee was not willing to undertake

additional studies regarding concerns which had already

been addressed by FERC. Following this Court’s deci-

sions in California v. FERC, 495 U.S. 490 (1990), and

First lowa Hydro-Elec. Coop. v. Federal Power Comm'n,

328 U.S. 152 (1946), the Ninth Circuit stated:

The hardship is the process itself. Process costs

money. If a federal licensee must spend years at-

tempting to satisfy an elaborate, shifting array of

State procedural requirements, then he must borrow

a fortune to pay lawyers, economists, accountants,

archaeologists, historians, engineers, recreational con-

sultants, environmental consultants, biologists and

others, with no revenue, no near-term prospect of

revenue, and no certainty that there ever will be rev-

enue. Meanwhile, politics, laws, interest rates, con-

struction costs, and costs of alternatives change.

Sayles Hydro Ass'n v. Maughan, 985 F.2d 451, 453 (9th

Cir. 1993). State imposed non-water quality standards

6

will present the procedural consequences that the Ninth

Circuit envisioned.

2. State imposed non-water quality conditions re-

sult in unauthorized veto power.

A state’s power to impose non-water quality conditions

such as minimum flows for fish habitat is equivalent to a

veto power. For example, in the instant case, the state

imposed conditions make the proposed hydroelectric

power project economically unjustifiable. As a result,

FERC would be unable to license the Project under the

comprehensive development standard of § 10(a) of the

Federal Power Act. In light of the significant policy con-

siderations inherent in the Federal Power Act, it is im-

proper to give state water resource agencies such veto

authority. The costs required to meet the state conditions

are much greater than the expense of meeting the FERC

conditions. The state imposed conditions could result in

a veto of a proposed project.

Indeed, this court has recently recognized that permit-

ting the states to exercise veto authority over non-federal

hydroelectric development improperly disturbs the Com-

mission’s comprehensive regulatory authority. In Califor-

nia v. FERC, 495 U.S. 490 (1990), this Court reaffirmed

that the Federal Power Act preempts state authority to set

minimum flow requirements for Commissicn licensed

hydroelectric projects. The Court reasoned taat “allow-

ing California to impose the challenged requirements

would be contrary to congressional intent regarding the

Commission’s licensing authority and would constitute a

veto of the project that was approved and licensed by

FERC.” Z/d. at 506-7. In the face of California v. FERC,

we now see the State of Washington trying to reach the

same result via § 401 of the Clean Water Act. The prin-

ciple against a state imposed veto remains the same.

7

Il. UNLESS ADDRESSED BY THIS COURT THE

WASHINGTON SUPREME COURT’S DECISION

CREATES UNCERTAINTY AS TO THE STATE

AUTHORITY GRANTED UNDER §401 OF THE

CLEAN WATER ACT AND WILL DISRUPT THE

HYDROELECTRI’ LICENSING PROCESS.

A. The Washington Supreme Court’s Decision Mis-

interprets State Authority Under § 401 Of The

Clean Water Act.

According to the Washington Supreme Court’s inter-

pretation of § 401(d), a state may impose any condition

on a license as long as the condition is water quality

related. By this definition, the Washington Department

of Ecology has authority to take actions, such as specify-

ing minimum stream flows to protect fish habitat, which

directly conflict with the authority granted FERC under

the Federal Power Act.

Congress did not intend for § 401(d) to have such

expansive application. Rather, in allowing states to condi-

tion water quality certificates pursuant to § 401(d), Con-

gress provided the states with specific authority to estab-

lish water quality standards designed to protect particular

identified beneficial uses from discharges or other activities

which add pollutants or degrade the receiving waters. In

contrast, FERC is charged with balancing all competing

interests in deciding whether a project is in the public

interest. California v. FERC, 495 U.S. 490 (1990).

The Supreme Court of Washington’s interpretation of

§ 401(d) greatly exceeds the narrow state role prescribed

by Congress and consequently disturbs the balance of

authority which Congress established in its federal licens-

ing scheme.

1. The Washington Supreme Court’s Opinion Fails

to Recognize FERC’s Exclusive Authority.

This Court has recognized a pervasive federal hydro-

electric licensing scheme which preempts conflicting state

action. In First lowa Hydro-Elec. Coop. v. Federal Power

8

Comm'n, 328 U.S. 152 (1946), the Court rejected the

State of Iowa’s efforts to impose a state permitting re-

quirement on a licensee which was attempting to obtain

a hydroelectric license from the Federal Power Commis-

sion. The Court concluded that allowing the state to

impose a permitting requirement would in effect grant the

state veto power over the license and therby subvert Con-

gress’ intention to concentrate comprehensive hydropower

planning authority in the FPC. First Iowa, 328 USS.

at 164.

In California v. FERC, 495 U.S. 490 (1990), the

Court considered the State of California’s authority to

impose minimum flow requirements to protect fisheries.

California argued that § 27 of the Federal Power Act,

which reserves certain authority regarding proprietary

water rights to the states, provided the state with author-

ity to impose mandatory flow requirements on a licensee.

The Court rejected this argument and unanimously held

that the flow requirements mandated by California were

preempted by the federal licensing scheme. In making

this determination, the Court specifically recognized that

the addition of § 10(j) to the FPA reaffirmed “First

lowa’s understanding that the FPA establishes a broad

and paramount regulatory role” in the area of fish and

wildlife license conditions. See California v. FERC, 495

U.S. at 499.

Pursuant to § 10(j) of the FPA, FERC is required

to include fish and wildlife conditions in hydroelectric

licenses based mainly on the recommendations of state

fish and wildlife agencies. While § 10(j) requires FERC

to give the recommendations of state fish and wildlife

agencies special deference in establishing fish and wildlife

conditions in the license, FERC possesses the authority

to reject the states’ recommendations when its finds that

such recommendations are inconsistent with the purposes

and requirements of Part I of the Federal Power Act. 16

U.S.C. § 803(j)(2). Under the Washington opinion, the

state can engage in regulatory activity that is outside its

9

narrow authority. § 401 does not allow states to define

non-water quality minimum flow requirements.

2. The Washington Department of Ecology Ex-

ceeded Narrow Authority to Limit Discharge of

Pollutants.

In 1973 the Clean Water Act granted the states nar-

row authority for the purpose of regulating the discharge

of pollutants into the Nation’s waters.’ In the Clean

Water Act, Congress empowered the Environmental Pro-

tection Agency (“EPA”) with authority to limit the dis-

charge of pollutants through a permitting process and by

developing water quality standards which are applied to

determine the specified levels of discharge in the permit.

Pursuant to the Clean Water Act, states can assume

responsibility for developing these water quality stand-

ards subject to the approval of EPA. Specifically, § 401

grants states the circumscribed authority to certify that

applicants for a federal license comply with the state’s

criteria concerning the discharge of pollutants developed

as part of the state’s water quality standards. The Clean

Water Act further provides that the state may condition

water quality certificates on the effluent limitations, water

quality standards and monitoring provisions specified in

§ 401(d), as well as other appropriate requirements of

state law.

The Washington Department of Ecology exceeded its

authority under the Clean Water Act by imposing stream

flow conditions for fisheries. Water quality standards con-

cern the discharge of pollutants. Specifically, Washing-

ton’s published water quality standards pertain to such

things as fecal coliform, dissolved oxygen, dissolved gases,

5 The term “pollutant” is defined as specific materials including,

among other things, dredged soil, solid waste, chemical wastes,

biological materials and radioactive materials. 33 U.S.C. § 1362(6).

Pursuant to the Act, the discharge of a pollutant “is any addition

of any pollutant to navigable waters from any point source.” 33

U.S.C. § 1862(12).

10

and other micro characteristics. The State of Washing-

ton did not limit its action to a determination of the levels

of discharge of pollutants from the dam that would com-

ply with water quality standards. Therefore, the state

exceeded the limited authority which Congress granted it

under § 401.

B. The Washington Decision Regarding The Scope Of

State Authority Under § 401 Contributes To Na-

tional Confusion Which Requires This Court’s

Direction.

State courts have produced divergent decisions inter-

preting the scope of state authority under § 401 to con-

dition certifications. For example, the Vermont Supreme

Court has determined that it is proper for its state agency

to regulate aesthetic flows under § 401.° In Connecticut,

however, minimum spill requirements based on subjective

aesthetic impact are beyond the scope of the state agen-

cies.’ Courts in Montana * and Maine * have upheld man-

datory § 401 conditions regarding fish passages and habi-

tat. By contrast, in Pennsylvania and New York,” courts

have found that such conditioning is beyond the scope of

authority provided to states under § 401. In Oregon, it

® See Simpson Paper (Vermont) Co. v. Department of Envtl.

Conservation, petition for cert. filed, 61 U.S.L.W. 3504 (U.S. Dee.

12, 1992) (No. 92-1012).

7 See Summit Hydropower v. Commissioner of Envtl. Protection,

No. CV91-050-26-43, 1992 Conn. Super. LEXIS 2177, 1992 WL

175241, (Conn. Super. July 20, 1992), Supreme Court of Connecticut

Nos. SC14618 and 14619, argued May 4, 1993.

8 See Hi-Line Sportsmen Club v. Milk River Irrigation Dist.,

241 Mont. 182, 786 P.2d 13 (Mont. 1990).

® See Bangor Hydro-Elec. Co. v. Board of Environmental Protec-

tion, 595 A.2d 438, 440 (Me. 1991).

10 See Nigara Mohawk Power Corp. v. New York State Dept. of

Envtl. Conservation, 187 A.D.2d 7, 592 N.Y.S.2d 141 (N.Y. App.

Div. 1993), motion for leave to appeal granted, N.Y. Ct. of App.,

May 11, 1993.

11

has been held that compliance wtih state land use laws is

not sufficiently water quality related to be included in

§$ 401 review."

Each state court decision complicates the body of law

with which an applicant for a federal hydroelectric project

license must comply. The licensing process is becoming

increasingly unpredictable. As this Court has explained:

“to require the industry to proceed without knowing

whether the [state regulation] is valid would impose

a palpable and considerable hardship on the utilities.

Pacific Gas & Electric Co. v. State Energy Resources

Cons. & Dev. Com’n., 461 U.S. 190, 201-202 (1983).

The differing state interpretations have created the current

confusion. This confusion requires the Court to examine

this issue.

C. This Court Is The Only Forum To Resolve The

Conflict Regarding The Scope Of State Authority

Under §401.

FERC has taken the position that it lacks the authority

to view conditions contained in state certifications. See

Town of Summerville, 60 FERC © 61,291 at 61,990

(1992) (“since pursuant to § 401(d) of the Clean Water

Act all of the conditions in the water quality certification

must become conditions in the license, review of the

appropriateness of the conditions is within the purview of

State courts and not the Commission’); Noah Corpora-

tion, 57 FERC € 61,170 at 61,601 (1991) (“we recog-

nize that review of the appropriateness of water quality

certification conditions is a matter for state courts to

decide”); Central Maine Power Co., 52 FERC € 61,033

at 61,172 (1990) (“review of the appropriateness of

water quality certification conditions is the purview of the

state courts”’).

11 Arnold Irrigation District v. Department of Environmental

Quality, 79 Or. App. 136, 717 P.2d 1274 (1986).

12

In Central Maine, 2 FERC at 61,172, FERC noted

that although several of the conditions imposed by the

state were unrelated to water quality, FERC was never-

theless bound by § 401 to include the conditions. FERC’s

position appears to require that a state water quality cer-

tification be automatically included in any license issued

by FERC. The consequence of this position is that states

are free to impose minimum flows or other conditions in

§ 401 certifications, regardless of whether such conditions

are indeed related to water quality standards.

Until this Court provides guidance, “a dual final au-

thority, with a duplicative system of state permits and

federal licenses required for each project, [is] unwork-

able.” First lowa, 328 U.S. at 169. This Court should

therefore grant certiorari and clarify the authority granted

the states under § 401 of the Clean Water Act with the

comprehensive federal licensing scheme established by

Congress.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

RICHARD M. GLICK

Counsel of Record

ELIZABETH A. SUMMERS

DAVIS WRIGHT TREMAINE

2300 First Interstate Tower

1300 S.W. Fifth Avenue

Portland, OR 97201

(503) 241-2300

Attorneys for Amicus Curiae

Northwest Hydroelectric

Association

APPENDIX

iv

be

-“s

— —_—

APPENDIX

Name

ABB Phoenix Controls

Alaska Power & Telephone

Central Oregon I.D.

Chelan PUD

Chelan PUD

CHI West, Inc.

City of Tacoma/Utility

Consolidated Hydro, Inc.

Consolidated Pumped Stor.

David Evans and Associates

Davis Wright Tremaine

Deschutes Valley Water Dist.

Douglas County PUD

EBASCO Services, Inc.

EDAW

EG&G Idaho, Inc.

Falls Creek HB Limited P.

Grant County PUD

Harza Northwest, Inc.

HCI Publications

HDR Engineering, Inc.

Hydro West Group, INc.

Hydro Y.E.S.

Ida-West Energy

Impsa International, Inc.

Kvaeme-Hydro Power, Inc.

Lilliwaup Falls Generating Co.

Middle Fork Irrigation Dist.

National Hydro

Northrop Devine & Tarbell, Inc.

NW Pipe & Casing Co.

NW Power Planning Council

Okanogan County PUD

Pacific Hydro Consulting Group

Pacific Water Works Supply

PacifiCorp

Pend Oreille County PUD

Portland General Electric

City

Bothell

Port Townsend

Redmond

Wenatchee

Wenatchee

Boise

Tacoma

Grenich Plaza

Greenwich

Portland

Portland

Madras

E. Wenatchee

Bellevue

San Francisco

Idaho Falls

Eugene

Ephrata

Bellevue

Kansas City

Bellevue

Bellevue

Ferndale

Boise

Pittsburgh

Stamford

Seattle

Parkdale

Boston

Portland

Portland

Portland

Okanogan

Alameda

Seattle

Portland

Newport

Portland

State

Name

Precision Machine & Supply

Puget Power

Puget Power

R W Beck & Associates

Ray Toney & Assoc.

Resource Management

Santiam Water Control Dist.

Shannon & Wilson, Inc.

Siemens Power Corporation

Sithe Energies USA, Inc.

Snohomish County PUD

STS HydroPower, Ltd.

STS HydroPower, Ltd.

Tetragenics

Van Ness, Feldman & Curtis

Van Ness, Feldman & Curtis

Warm Springs Power Ent.

Washington Water Power Co.

2a

City

Lewiston

Bellevue

Bellevue

Seattle

Redding

Portland

Aumsville

Seattle

Wes Allis

New York

Everett

Issaquah

Sacramento

Butte

Seattle

Washington

Warm Springs

Spokane

De.