Amicus Curiae Brief — Chemehuevi Tribe of Indians v. Federal Power Commission

Supreme Court brief1974

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Tue CHEMEHVEVI Triee ov INDIANS ET AL., Petitioners, =

| Ge Oe ee

Feperat, Power Commission, Respondent.

Anwzona Pusiic Sznvice. CoMPANY ET AL., Petitioners,

THe CHEMEHUEVI TRIBE OF INDIANS ET AL.,

| Respondents.

—_————

FepreraL Power Commission, Petitioner,

3 v.

THE CHEMERUEVI ‘TRIBE OF Tewrans ET AL.,

Respondents.

On Writs of Certiorari to the Unifed States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR THE MONTANA POWER COMPANY, PACIFIC

POWER & LIGHT COMPANY. PORTLAND GENERAL «-

ELECTRIC COMPANY. PUGET SOUND POWER &

LIGHT COMPANY. AND THE WASHINGTON

WATER POWER COMPANY.

AS AMICI CURIAE

(The names and addresses of Counsel appear on the inside cover.)

Paess or Byron S. Avams Paurrina, Inc., Wasmineron, D. C.

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. .

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lotunss for the A

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TR LAD ABA DE IAN POLRDEA LO D

TABLE OF CONTENTS

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TABLE OF CITATIONS

STATUTES :

Federal Power Act § 4(e), 41 Stat. 1065 (1920), as

aménded, 16 U.S.C. § T97(e) 3... 2... cccceess passim

Montana Environmental Policy Act, R.C.M. 1947, §§ 69-

a ih oe ee ws oven ge he 11, 12, 13,14 .

Montana Strip Mined Coal Conservation Act, R.C.M.

eB A nee ee ey ree 13

Montana. Strip Mining and Reclamation Act, R.C.M.

ge 8? Seen ee 14

Montana Utility Siting Act of 1973, R.C.M. 1947, §§ 70-

hg vow os tw eken re kens nea na 11, 12, 13

Montana Water Use Act, R.C.M. 1947, §§ 89-8-103 ff... 13

Nationa! Environmental Policy Act § 102(2)(C), 83

Stat. 853 (1970), 42 U.S.C. § 4332(2)(C) ..... 8, 10, 11

Wild and Scenic Rivers Act, 82 Stat. 906 uae as

amended, 16 U.S.C. §§ 1271 §. . 0 ove eens

MISCELLANEOUS:

Bureau of Reclamation, U. S. Department of - Interior,

Appraisal Report on ah eae W, yoming Aque-

WO TIT) ones tk kc cu rh fankcaces ee eNs sss 5, 7,8

Ecological Consulting Service, Report ‘e the Siete

Power Company: A Study of the Effects of heagaae

Withdrawal From the Yellowstone River (1974)..

North Central Power Study, Report of Phase I cit |

PEE ERROR BG IB Ne eI

BOR

ailetiedinieiineeeetbinieeaie

IN THE

Supreme Court of the United States

OcToBER TERM, 1974

No. 73-1380

THE CHEMEHUEVI TRIBE OF INDIANS ET AL., Petitioners,

FEDERAL Power ComMMIssion, Respondent.

No. 73-1666

ARIZONA PUBLIC SERVICE COMPANY ET AL., Petitioners,

THE CHEM)HUEVI TRIBE OF INDIANS ET AL.,

Respondents.

No. 73-1667

FEDERAL POWER COMMISSION, Petitioner,

THE CHEMEHUEVI TRIBE OF INDIANS ET AL.,

Respondents.

BRIEF FOR THE MONTANA POWER COMPANY, PACIFIC

POWER & LIGHT COMPANY, PORTLAND GENERAL

ELECTRIC COMPANY, PUGET SOUND POWER & —

LIGHT COMPANY, AND THE WASHINGTON

WATER POWER COMPANY,

AS AMICI CURIAE

The Montana Power Company, Pacific Power &

Light Company, Portland General Electric Company,

Puget Sound Power & Light Company, and The Wash-

BORNE Oer nr Secs Ree een i

ington Water Power Compauy file this brief as amici

curiae, pursuant to Rule 42 of the Court and with the

consents of all the parties.

INTEREST OF THE AMICI CURIAE

The five amici are investor-owned electric utilities

and are together the principal suppliers of electric

energy for commercial, industrial, and residential

purposes throughout the Northwest, serving parts of

Montana, Wyoming, Idaho, Washington, California,

Nevada, and Oregon, To meet the growing need for

electrical energy in the Northwest, these utilities have

jointly commenced construction of a coal-fired steam

electric generating project at Colstrip, Montana, in the

eastern part of the state and about thirty-five miles

south of the Yellowstone River at Forsythe, Montana.

The Colstrip project, which will ultimately have four

generating units with a total capacity of 2100 mw, will

use cooling water from the Yellowstone diverted pur-’

suant to an appropriative right under Montana law.

The first two units of the Colstrip project: are. now

being constructed jointly by two of the amici and are

scheduled to begin operation in 1975, The remaining

two units will be built by ali the amici and are

scheduled to commence operation in 1978 and 1979,

Fuel for the project will be supplied by a nearby coal

‘mine operated by a subsidiary of one of the antici.

The interest of the amici in the instant proceedings

is twofold. First, the Buffalo Rapids Irrigation

‘Project, Custer Rod & Gun Club, Tongue-Yellowstone

Beet Growers, and Trout Unlimited (hereinafter to-

gether ‘‘Buffalo Rapids”’) have jointly filed a ceom-

‘plaint with the Federal Power Commission to require

the amici to obtaima license from the Commission for

the Colstrip project under Section 4(e) of the Federal

Power Act, 41 Stat. 1065 (1920), as amended, 16 U.S.C.

§797(e). That proceeding thus raises in the Com-

mission the issues now pending before this Court

respecting the construction of Section 4(e) of the

Act. Second, Buffalo Rapids has filed an amicus

brief in this Court in which it argues that the projected

use of Yellowstone water for the Colstrip and other

projects demonstrates the need for reading the Act

broadly, enough to embrace steam plants within the

Commission’s licensing jurisdiction.

The arguments based upon the relevant statutory

language, legislative history, and the precedents in

support of the position of the Solicitor General and

of the Arizona Public Service Company et al. have

been adequately preseited in the briefs of those parties.

We shall therefore simply note our agreement in

general with those arguments and with the position

that Congress in enacting Section 4(e) of the Act did

not intend that the Commission embrace steam electric

generating plants within its licensing jurisdiction.

We shall, however, respond to the ad hominem argu-

ments made by Buffalo Rapids, because those argu-

ments erroneously are based on unsupportable factual

assertions about the Colstrip project of these amici.

ARGUMENT

The central contention of Buffalo Rapids through-

out its brief is that although the legislative history of

the Act ‘‘seems to focus on the hydroelectric basis for

the development of the’’ Act, the Court should give a

broad reading to the Act “to provide for a com pre-

hensive scheme of water development vis-a-vis power

production’? (Br. at 10; emphasis in original). With-

out this broad reading, argues Buffalo Rapids, there

will be no adequate federal regulation of steam power

plants using water from rivers such as the Yellow-

stone; and corporations like the amici, by exercising

state appropriative rights, will ‘‘pirate’’ these waters

and ‘‘dewater’’ rivers like the Yellowstone ‘‘with the

stroke of the pen’”’ (e.g. Br. at 9, 14-16). The example

Buffalo Rapids offers the Court in support of the

foregoing position is the use of Yellowstone water by

the amici for the Colstrip project, allegedly by way

‘of “‘a different factual perspective’ from the use of

Colorado River water by the ‘‘Four Corners plants”’’

(Br. at 2-3).

We show in this brief that Buffalo Rapids’

‘factual’? charges are untrue and sharply disputed.

The Court has no record before it respecting the

Yellowstone which would lend any support for a

reading of the Act so broad as to embrace the licensing

of steam plants. The analogy to the Colstrip project

is not apt, both because of the very small amounts of

water involved as compared with the flow of the river

and with uses other than for power generation, and

because of the extensive federal and state regulation

and environmental review to which the Colstrip project

is subject apart from FPC licensing.

1. We agree with Buffalo Rapids as to the need for

“factual perspective’’, especially respecting the

charges made about the Colstrip project and the al-

leged ‘‘dewatering”’ of the Yellowstone River by the

amici. The facts are that the average annual flow of

the Yellowstone into the Missouri River, just east of

the Montana border in North Dakota, is about 9 million

7 SEPSIS

Sat ON Spit AES

acre feet.‘ This is net of all depletions—municipal,

agricultural, and industrial. At normal operation,

which will not be reached at least until some time in

1979, the Colstrip project will divert from the Yellow-

stone for consumptive use about 30,000 acre feet per

year, or only about one-third of one percent of the

river’s present average annual fiow.? That miniscule

diversion for Colstrip should be contrasted with the

average annual diversion for agricultural purposes by

Buffalo Rapids. During the period from 1966 to 1971

Buffalo Rapids and three other reclamation projects

diverted annually an average of 424,000 acre feet —

1 Caleulations of the amount flowing into the Missouri differ.

One measures the average annual flow from 1911-1970 at Sidney,

Montana, a few miles downstream from the North Dakota border,

at 12,980 efs, or about 9.4 million acre feet. Ecological Consulting

Service, Report to the Montana Power Company: A Study of the

Effects of Water Withdrawal From the Yellowstone River, Table

IX at 39 (1974) (‘‘Data taken from Water Resources for Mon-

tana, Part I. USDI, USGS, 1961-1971’’). The Bureau of Ree-

lamation’s Appraisal Report on Montana-Wyoming Aqueducts

(1972), p. 3, estimates that the ‘‘{a]verage annual discharge into

the Missouri River is about 8.8 million acre-feet’’. For these pur-

poses we accept the estimate of Montana Governor Judge in a state-

-ment relied upon by Buffalo Rapids (Br. at 6) as to ‘‘a near an-

nual flow of about 9 million acre feet of water at our border.”’

2The annual consumptive use for Colstrip of about 30,000—out

of 9 million—acre feet assumes normal operations at 80% of ca-

pacity. The diversion will be pursuant to an appropriative right

claimed and to be perfected under Montana law, and no water will

be purchased from the United States. Given the small amount of

water to be diverted and the fact that state regulatory authorities

will require the project to be equipped with a storage pond capable

of supplying the plant’s requirements for nearly two months, the

Colstrip diversion will not be dependent upon the regulation of the

stream flow by a government dam. Thus, there is no support for

the allegation by Buffalo Rapids (Br. at 8) that the amici will

use ‘‘surplus water’’ from a government dam within the meaning |

of Section 4(e) of the Act.

| RRR WR EN tae Cotas

nearly fifteen times that calculated for Colstrip.* The

average annual diversion during that period by the

Buffalo Rapids irrigation project alone was 84,561

acre feet. Under the doctrine of prior appropriation

applicable in Montana, these agricultural uses are fully

- protected against the Colstrip or any other subsequent

use.

These circumstances illustrate, first, the fact that the

Colstrip diversion will not have any significant impact

on the flow of the Yellowstone — and no impact at all

on existing uses. These circumstances also demon-

strate that FPC licensing jurisdiction over steam

plants will not itself give the federal government com-

_ prehensive authority to regulate the use of water from

the Yellowstone or any other river. Moreover, in

addition to the demands for water for reclamation-

agricultural. projects, there are. significant additional

demands for industrial, municipal, recreational, and

agricultural uses which would not be covered’by FPC

licensing jurisdiction over steam plants.

Beyond the Colstrip project, there is no evidence

before the Court or otherwise available of which we are

aware giving any meaningful estimate of the future

demands on the Yellowstone of the magnitude com-

plained of by Buffalo Rapids. The Colstrip project

is the only steam generating plant currently under

construction which will use water from the Yellow-

stone River system. In making its sensational allega-

tions concerning potential uses, Buffalo Rapids relies

3 Ecological Consulting Service, supra n. 1, Table Vid~et 35

(‘Data taken from Crop Production Summary, Federal Reclama-

tion Projects—Region 6. USDI, Bureau of Reclamation, 1966-

re ae P

4 See n. 3 above.

aaa

(Br. at 2-3) on halite far ‘‘potential’’ electric’ power

development in a multi-state area from the ‘North

Central Power Study,” a joint federal-industry study

which was not continued after its first exploratory

phase. It is clear even from its description by Buffalo

Rapids, however, that that Study did not attempt to

estimate what development would ultimately take place.

Rather, the primary fecus of the Study was simply to

identify locations within a five-state area where suf-

ficient strippable coal reserves and water supply could

be made available to support generating plants of 1000

mw or more. °

The other sources relied upon by Buffalo Rapids

(Br. at 3-5) are equally hypothetical. They clearly

rely either upon the North Central Power Study (see

Br. at 3) or upon the Burean of Reclamation’s

Appraisal Report on Montana-Wyoming Aqueducts

(1972) (see Br. at 5). That reportfalso the first phase

of a study project whose funding was not continued,

only “‘identifie[d] water resources ... that may be

available for development’. of coal resources in the

Northern Great Plains states ‘to convey water from

sources to points of possible use’’ ( Report, Cover

Letter of the Project Direetor, April 1972). The

report assumed, ees investigation of its own, a

maximum ultimate demand of 2.6 million acre feet per

' year — an assumption based upon certain contracts

giving options to purchase water in the future from

the Bureau of Reclamation, ‘indicated interest’’ in

additional water by ‘‘[e]nergy companies”’, and the

-“reeently completed power study’’ discussed above

(Report at 11). The report concluded, nevertheiess, |

. Seé, c.g.. North Central Power Study, Berets of Phase I at 11

(October 1971).

’

ihr ape

that even ‘‘in the driest vear,”’ and ‘‘after meeting all

existing water uses. and after having supplied potential

industrial water needs,”’’ ‘‘there will be ample water

to"meet fuiure municipal. and agricultural needs”’

(Report at 31).°

Buffalo Rapids points to a number of ‘‘options”’

and ‘‘applications’’ for the purchase of Yellowstone

water fromm Bureau of Reclamation dams for industrial

uses referred to in the foregoing-Appraisal Report

(Br. at 5,6). But i#*making its charges that the river

will be ‘‘dewatered’’ as a result, Buffalo Rapids

assumes that all such options and applications will be

exercised or granted to the maximum extent. In 1967

the Department of Interior began entering into option

contracts for the sale of water stored behind Bureau

of Reclamation dams in the Yellowstone and Missouri

River systems, and several applieations for additional

option contracts have been filed but not granted.

However, in papers filed by the Department of Interior

within the last few weeks in litigation in the District

of Columbia, it was revealed that no such option con-

tracts have been entered into since 1971; that ‘*[nJo

water has been released pursuant to [these] options

or contracts’? dating back to 1967; and that ‘‘no

applications for release of water pursuant to options

or contracts’? are now pending.* Moreover, it cannot

®The report noted that an “environmental impact statement as

required by the National Environmental Policy Act of 1969 will

be prepared prior to initiating feasibility investigations’’ Report

at 30).

7 Affidavit of William W. Lyons, Deputy Under Secretary of

the Department ofj Interior at 5; Answers of Defendant Rogers .

C. B. Morton, Secretary of Interior, to Plaintiffs’ Revised Supple-

mental Interrogatories to Federal Defendants, Nos. 27, 28 (Novem-

ber 1974), Sierra Club Et Al. v. Rogers C. B. Morton Et Al., Civil

Action No. 1182-73 (D. D.C.), appeal pending, No. 74-1389 (D.C

Cir.).

be determined from an application or claim (by con-

tract or appropriation) for an amount of water how

much water will ultimately be put to beneficial con-

sumptive use. For example, the initial appropriation

claim tiled under Montana law for the Colstrip project

vas for 181,000 acre feet of water per year, but the

total annual consumptive use now projected for the

entire Colstrip project will only be about 30,000 acre

feet. It cannot be assumed that other so-called esti-

mates of future water claims upon the Yellowstone of

the kind relied upen by Buffalo Rapids will not prove

similarly greater than original ‘safe’? estimates.®

In short, the facts régarding the Colstrip project do

not support Buffalo Rapids’ extravagant claim that a

broad reading of Section +(e) of the Act is necessary to

prevent a ‘‘dewatering’’? of the Yellowstone. The

Court should not be asked to base its construction of

an Act of Congress on unproven and untrue assertions

that ‘‘corporations”’ are about to ‘‘pirate’’ the Yellow-

stone and ‘‘dewater’’ that river.

2. Nor is a strained reading of the Act to provide

the FPC licensing jurisdiction necessary to prevent

“the uncontrolled exhaustion of the region’s water

resources,’ as Buffalo Rapids claims (Br. at 16).

The Buffalo Rapids brief asserts that unless this Court

gives licensing jurisdiction to the Commission ‘‘a pri-

vate utility can, without any Federal guidance or

control whatever, pirate massive amounts of water

8 The Notice of Appropriation by the United States for the Buf-

falo Rapids reclamation project, Dawson County, Montana Docket

No. 193324, dated June 17, 1938, was for 1,340 cfs from the Yellow-

stone system, or approximately 970,830 acre feet per year, more

than ten times the average annual diversion of 84,561 acre feet for

that project some thirty years later.

from public streams” (Br. at 15), and that ‘‘water-

ways’’ like the Yellowstone, ‘‘dewatered at the

laissez-faire whim of the corporations, ery out for

some scheme of comprehensive Federal regulation”’

(Br. at 14). But the claim that there will be no

adequate regulation if the Commission does not reg-

ulate disregards the pervasive federal and state reg-

ulation and: envitonmental review of every phase of the

Colstrip project; “the exainple Buffalo Rapids proffers

for the Court’s attention.

To be sure, there is no other federal licensing juris-

diction over the siting per se of steam power plants.

However, because of the **checkerboard”’ arrangement

of federal and privately owned lands in the Great

Plains and in Montana in particular, federal regula-

tion, with environmental review, is pervasive. Thus,

the federal approvals which the owners of the Col-

strip project either have sought or will seek include

permits for the construction of transmission lines

across federal lands, the granting of new mining leases

of federally owned coal necessary to provide fuel for

later stages of the project, and approval of mining

plans. Each of these approvals by the Departments of

Interior or Agriculture will require an environmental

impact statement under Section 102(2)(C) of the

National Environmental Policy Act, 83 Stat. 853

(1970), 42 U.S.C. § 4832(2)(C), and that impact state-

ment will take into consideration the essential features

of the project and their impacts, if any, upon the

relevant environment. Indeed, the Bureau of Land

Management of the Department of the Interior and

the\Forest Service of the Department of Agriculture

have ulready commenced the preparation of an environ-

mental impact statement under NEPA respecting these

11 ‘

and other aspects of the Colstrip project; and the

Deputy Under Secretary of Interior has directed

that the impact ‘‘statement should cover the power-

plant, its transmission line, the water pipéline, the

-coal mine, and anv related ancillary facilities and

rights-of-way.’’* And, should application ever be made

to the Bureau of Reclamation by the developers of

Colstrip or any other industrial project for actual

purchase and delivery of water, Interior has made it

clear that an environmental impact statement will

be required under NEPA in each instance. "

Additional legislation for regulation and environ-

mental review by the State of Montana covers every

aspect of thé Colstrip project.. The Montana Environ-

mental Poliev Act, R.C.M. 1947, §§ 69-6501 ff., is

virtually identical to NEPA on the federal level and

applies to all state actions with respect to the con-

struction of a power plant and all associated facilities,

as well as all coal mining activties. Under the

Montana Utilitv Siting Act of 1973, R.C.M. 1947,

§§ 70-801 ff., no power facility may be constructed or

® Memorandum to the Director, Burean of Land Management,

from William W. Lyons, Deputy Under Secretary, U.S. Depart-

ment of Interior (February 22, 1974).

1° Letter from Martin H. Oleson, Jr.. Acting Regional Director,

Bureau of Reclamation, U.S. Department of Interior, to all holders

- of option contracts under the Industrial Water Marketing Program

(May 20, 1971).

'! Buffalo Rapids suggests the possibility of further federal reg-

ulation in the form of inclusion of a ‘‘part of the Yellowstone

River . . . under the Wild and Scenie Rivers Act,’’ 82 Stat. 906

(1968), 16 U.S.C. §§ 1271 ff. (Br. at 9). As Buffalo Rapids’ brief

itself reveals, however, the portion of the river under study

reaches ‘*from Gardiner to Pompey’s Pillar in Montana’”’ and is

no closer than forty miles upstream from the amici’s point of di-

version.

operated in Montana without a certificate of environ-

mental compatibility apd public need by the Montana

Board of Natural Resources and Conservation. Ap-

plications under this act are now pending for permis-

sion to construct the second phase of the generating

plant, two 500 kv transmission lines, and a pipeline to

earry.water from the Yellowstone River to Colstrip. ”

A six-volume draft environmental impact statement

respecting these applications has been prepared pur-

sant to ‘‘MEPA’’,”* and some nineteen public M tings

have been scheduled.

The Montana Board of Natural Resources and Con-

servation has already passed upon applications by the.

amici under the Siting Act to construct the facilities

necessary to divert water from the Yellowstone for use

in connection with the first phase of the generating

plant, including the construction of a water pumping

station, water pipeline, and power transmission line

from the river to Colstrip (Order of March 1, 1974).”

12 The construction of the cenerating plant itself for the first

phase of the Colstrip project was commenced prior to the enact-

ment of the Siting Act and is therefore not covered by that Act.

However, as the discussion in the text discloses, the associated fa-

cilities and environmental equipment necessary for the operation

of even this first phase are cov.yed by the Siting Act.

13 Montana Department of Naturai Resources and Conservation,

Draft Environmental Impact Statement on Colstrip Eiectric Gen-

erating Units 3 & 4, 500 Kilovolt Transmission Lines and Asso-

ciated Facilities (November 1974).

14 Letter announcement of the Montana Dept. Nat. Res. & Cons.

(October 10, 1974).

15 Thus, Buffalo Rapids asserts incorrectly (Br. at 6) that the

Montana legislature has passed a ‘*3-year moratorium on water di-

versions from the Yellowstone River.’’ The statute suspends the

g-anting of new permits for appropriations for three years or

until ‘‘a final determination of existing rights has been made’’

The action taken by the state with regard to these

facilities was preceded by an environmental impact

statement as required by ‘‘MEPA”’’.”® A similar appli-

eation by the amici for a transmission line from Col-

strip. to Broadview, Montana was cousidered and

approved by the Board of Natural Resources and Con-

servation (Order and Certificate. of November 15,

1974), and the Board had before it an environmental

impact statement as to this portion of the project also.”

Moreover, the Montana Utility Siting Act, R.C.M.

1947, §§ 70-801 ff., requires the State Department of

Health and Environmental Sciences to certify that a

proposed power facility will not violate established

state and federal air and water anti-pollution stand-

ards. The first phase of the Colstrip generating plant

has been so certified by that Department (Permit No.

513-111472, April 23, 1973) after the preparation of an

environmental impact statement which assessed all the

various water and air pollution control equipment with

which the Colstrip project is to be equipped.”

All mining operations associated with the Colstrip

project are governed by the Montana Strip Mined Coal

Conservation Act, R.C.M. 1947, §§ 50-1401 ff., which

under the state’s new Montana Water Use Act (R.C.M. 1947,

§§ §9-8-103 ff). Moreover, the Act ‘‘does not apply to applications

to appropriate water for use by a utility facility for which a cer-

tifieate of environmental compatibility and public need is granted

pursuant to the Montana Utility Siting Act of 1973’’ (R.C.M.

1947, § 89-8-109), as is the case with the proposed diversion for

the Colstrip project.

16 Tssued by the Mont. Dept. Nat. Res. & Cons. in January 1974.

17Tssued by the Mont. Dept. Nat. Res. & Cons. in June 1974,

with an addendum in October 1974.

18 Tssued by the Mont. Dept. Health & Env. Sciences in March

1973."

requires approval of mining plans on an annual basis

by the Montana Department of State’ Lands. Finally,

the Colstrip mining operations are also governed by

the Montana Strip Mining and Reclamation Act,

R.C.M. 1947, §§ 50-1034 ff. That Act may well be the

strictest mining reclamation law in the United States

and requires a mining operator to submit reclamation

plans for approval and to post a bond that all acreage

disturbed by strip mining is to be successfully re-

claimed.” And, all approvals ofgmining and reclama-

tion permits under these statutes must also be accom-

panied by environmental impact statements under

‘*MEPA’”’,

Whatever may be the case in other river basins, then,

the state and federal regulation respecting steam power

plants in Montana which draw water from the Yellow-

stone River or its tributaries is pervasive. Aeccord-

ingly, there simply is-no substance to Buffalo Rapids’

argument that this Court should read the Federal

Power Act broadly on the ground that without FPC

licensing jurisdiction there will be no adequate regu-

lation.

CONCLUSION

There js nothing in the record of this case or in the

arguments of counsel for Buffalo Rapids which would

warrant stretching Section 4(e) of the Federal! Power

Act in the fashion urged by the Chemehuevi Tribe and

by Buffalo Rapids. The dimensions of future develop-

19 Surface Mining Permit No. 00003, issued on December 17,

1973 by the Department of State Lands to the Western Energy

Company, a subsidiary of one of the amici operating at Colstrip,

requires a bond of $2,796,860 for reclamation of the acreg cur-

rently being mined.

ment of steam electric generating plants in the

Yellowstone River system cannot be predicted at this

time, but the facts regarding the Colstrip project

clearly do not support Buffalo Rapids’ argument in.

favor of FPC jurisdiction. Instead, they demonstrate

the absence of any need for such a strained reading of

the statute. A project that will divert only one-third

of one percent of the average annual flow of the Yellow-

stone River and which has been and will be scrutinized

in virtually every detail by agencies of both federal and

state governments, surely cannot accurately be said to

demonstrate that the nation’s rivers either are ‘‘being

dewatered’ “with a stroke of the pen”’ or ‘‘ery out for

some scheme of comprehensive Federal regulation’ by

the Federal Power Commission. Moreover, since the

amount of water needed for the project is so small com-

pared with known agricultural, municipal, and other

industrial uses, even the strained :reading of Section

4(e) of the Act would not confer upon the Commission

the authority necessary for a comprehensive regulation

of the river. For these and other reasons advanced in

the briefs of the Solicitor General and the Arizona —

Public Service Company ct al., the decision of the court

of appeals should be affirmed insofar as it held that the

‘project works” clause of Section 4(e) of the Act does

not apply to steam generating plants and reversed inso-

far as it held that the ‘‘surplis water’’ clause does

apply to steam plants. There is no warrant for any