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Department of Commerce v. Federal Energy Regulatory Comm'n

ELR Citation: 24 ELR 21530
Nos. Nos. 93-70282 et al., 36 F.3d 893/39 ERC 1726/(9th Cir., 10/05/1994)

The court vacates and remands a Federal Energy Regulatory Commission (FERC) decision that a Federal Power Act (FPA) §23(b)(1) license is not required for a three-foot hydroelectric project on a non-navigable waterway on private land. The project supplies electricity only for the property on which it is situated, but it blocks the migration and upstream spawning of anadromous fish from the Columbia River Basin. FERC found that the project did not require a license because it did not occupy public lands, it did not use surplus water or water power from a federal dam, and no power generated by the project was transported across state lines or fed into an interstate power system. The court first holds that FERC has jurisdiction to license the project. The court holds that a project may affect interstate commerce even if it does not affect the navigable capacity of a waterway or generate power for interstate transmission. Congress' Commerce Clause powers extend to the protection of spawning of anadromous fish from the Columbia River Basin, and the loss of spawning habitat has depleted the stock of anadromous fish in the basin, impacting interstate and foreign commerce. The court next holds that FERC's interpretation of the FPA is not entitled to deference. The language setting forth the FPA's jurisdictional reach is not ambiguous, and the Supreme Court has determined that Congress intended to invoke its full Commerce Clause powers under the FPA. The court finds that FERC did not fully consider how the project's impact on anadromous fish affects commercial, recreational, and tribal fishing interests in the Columbia River Basin and the Pacific Ocean, and remands to FERC for development of a complete record on the question whether the project's impact is too insubstantial to affect commerce.

Counsel for Petitioner
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Respondent
Samuel Sooper
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Rm. 300, Washington DC 20426
(202) 208-0177

Before Norris and Trott, JJ.