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Washington State Dep't of Fisheries v. Federal Energy Regulatory Comm'n

Citation: 17 ELR 20117
No. Nos. 84-7669, 85-7088, 801 F.2d 1516/(9th Cir., 10/15/1986)

The court holds that the Federal Energy Regulatory Commission's (FERC's) decision pursuant to the Federal Power Act to issue five preliminary permits for hydroelectric power projects in the Snohomish River Basin without preparing a comprehensive plan for the area is unsupported by the record. The court holds that FERC erred by rejecting petitioners' proposals for development of a comprehensive plan for the same reasons stated in National Wildlife Federation v. Federal Energy Regulatory Commission, 17 ELR 20111, and incorporates that decision by reference. The court next holds that FERC does not need to consider the Northwest Power Planning Council's (NPPC's) Columbia River Basin Fish and Wildlife Program in reconsidering its permitting decision on remand because the terms of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), which created the Council, limits the application of the NPPC's program to the Columbia River and its tributaries. The court declines to rule on the issue of whether FERC violated the Northwest Power Act by not preparing a comprehensive regional plan giving consideration to fish and wildlife since the issue may be mooted on remand. The court holds, however, that FERC must abide by the consultation requirement of the Fish and Wildlife Conservation Act to consider and respond on the record to contentions that preliminary permits cannot be issued without first developing a comprehensive plan for the area that imposes uniform study guidelines and which requires permittees to gather data to measure the cumulative impacts of hydroelectric projects.

Counsel for Petitioners
D. Anthony Weeks, Ass't Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550

Counsel for Respondent
William H. Satterfield, General Counsel
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20002
(202) 357-8000

Before Alarcon and Stephens,* JJ.