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Monongahela Power Co. v. Alexander

ELR Citation: 11 ELR 20782
Nos. No. 78-1712, 507 F. Supp. 385/15 ERC 1670/(D.D.C., 12/19/1980)

The court holds that the Army Corps of Engineers is without jurisdiction to either grant or deny dredge and fill permits under §404 of the Federal Water Pollution Control Act (FWPCA) for hydroelectric power projects licensed by the Federal Energy Regulatory Commission (FERC). The court notes that the Federal Power Commission (now FERC) was created by the Federal Power Act in 1920 to exercise exclusive regulatory authority over federal water power projects. This authority has been so construed by administrative agencies, courts, and, most recently, by Congress in the Department of Energy Organization Act of 1977. The court recognizes that this issue is clouded by the FWPCA, which gives the Corps the authority to issue dredge and fill permits and makes no exception for FERC-licensed hydroelectric projects. The court, however, rejects the Corps' argument that Congress did not intend thereby to exempt such projects. This lack of intent is best illustrated by the Clean Water Act of 1977, in which Congress conspicuously failed to exempt FERC-licensed hydroelectric projects. Noting that the FWPCA does not explicitly repeal the Federal Power Act's grant of exclusive authority to FERC and that repeal of a statute by implication is not favored unless it is irreconcilable with or clearly repugnant to another statute, the court concludes that since the Corps and FERC consider similar factors in deciding whether a project is in the public interest, the statutes are neither irreconcilable nor repugnant and thus FERC's exclusive regulatory authority was not repealed by the FWPCA.

Counsel for Plaintiffs
David I. Granger, Barry J. Israel
Clifford & Warnke
815 Connecticut Ave. NW, Washington DC 20006
(202) 828-4200

Counsel for Defendants
Donald W. Stever
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Counsel for Defendant-Intervenors Sierra Club et al.
Ronald J. Wilson, Lee L. Bishop, Barbara B. Graham
810 18th St. NW, Washington DC 20006
(202) 628-3160