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Monongahela Power Co. v. Marsh

Citation: 17 ELR 20422
No. Nos. 81-1201 et al., 809 F.2d 41/(D.C. Cir., 01/13/1987) Rev'd

The court holds that a Federal Water Pollution Control Act (FWPCA) § 404 permit is required to discharge fill material into navigable waters during construction of a hydroelectric facility previously licensed by the Federal Power Commission (FPC). The court initially holds that the Federal Power Act, which created the FPC to license and oversee waterpower projects, does not preclude application of the provisions of the subsequently adopted FWPCA. The court observes that the continued omission from the 1977 FWPCA amendments of any exemption for FPC-licensed facilities is striking, given a Second Circuit decision only three years earlier holding that a § 404 permit is required for the discharge of fill material incidental to hydroelectric construction. Language in the conference report to the Department of Energy Organization Act of 1977 thatthe FPC's "exclusive jurisdiction" over hydroelectric licensing was being transferred to the newly created Federal Energy Regulatory Commission does not preclude the Corps of Engineers from exercising its § 404 authority over hydroelectric projects. Further, a Supreme Court decision holding that the Environmental Protection Agency's authority under the FWPCA to control the disposal of nuclear waste does not include materials subject to regulation under the Atomic Energy Act is not on point.

The court next holds that an exception from FWPCA § 404's permit requirement for FPC-licensed hydroelectric projects, not expressly provided in the statute, cannot be implied. An analysis of the express exceptions to § 404's permit program reveals that all significant discharges, whether or not exempt from the permit requirement, must be subjected to scrutiny under § 404(b)(1) guidelines or the equivalent. The court therefore holds that the FPC was required to subject license applications to a test substantially equivalent to the § 404(b)(1) guidelines to comport with FWPCA's statutory scheme. The court holds that the guidelines applied by the FPC, which were designed merely to assist license applicants in submitting information and impose no direct restraints on the FPC, are not equivalent to the rigorous study demanded under the § 404(b)(1) guidelines.

[The district court decision appears at 11 ELR 20782.]

Counsel for Appellant
Dennis M. Abrams, Deputy Attorney General
Rm. E-26, State Capitol, Charleston WV 25305
(304) 348-2021

Counsel for Appellees
David I. Granger
Clifford & Warnke
815 Connecticut Ave. NW, Washington DC 20006
(202) 828-4213

Counsel for Intervenor
Andrea Wolfman
Office of General Counsel
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20002
(202) 357-5200

Before ROBINSON, Circuit Judge, BAZELON, Senior Circuit Judge,* and GASCH,** Senior District Judge.