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California ex rel. State Water Resources Bd. v. Federal Energy Regulatory Comm'n

Citation: 19 ELR 21303
No. No. 87-7538, 877 F.2d 743/(9th Cir., 06/06/1989)

The court holds that the Federal Energy Regulatory Commission (FERC) has exclusive authority under the Federal Power Act (FPA) to set hydroelectric power project minimum water flow rates. The court first holds that the degree of deference owed to FERC's interpretation of the FPA is considerably relaxed since only issues of law are involved in this case. The general issues of preemption and division of regulatory authority between the state and federal governments do not involve technical aspects of the FPA and are within the sphere of judicial expertise. The court then holds that the FPA preempts state regulation in all aspects of hydropower projects except for the limited proprietary rights specified in §27. The proprietary rights reserved for state control are restricted to the appropriation and use of water for irrigation or municipal purposes. California's reliance on the Supreme Court's decision in California v. United States, 8 ELR 20593, is misplaced since the Court in that case was addressing the 1902 Reclamation Act and not the FPA.

Counsel for Petitioner
John K. Van de Kamp, Attorney General
800 Tishman Bldg., 3580 Wilshire Blvd., Los Angeles CA 90010
(213) 736-2304

Clifford T. Lee, Roderick E. Walston, Deputy Attorneys General
350 McAllister St., Rm. 6000, San Francisco CA 94102
(415) 557-2544

Counsel for Respondent
Catherine C. Cook, General Counsel; Jerome M. Feit, Solicitor
Office of General Counsel
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20002
(202) 357-8000

Before HUG, TANG and BOOCHEVER, Circuit Judges.