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Snoqualmie Valley Preservation Alliance v. United States Army Corps of Engineers

ELR Citation: 42 ELR 20138
Nos. 11-35459, (9th Cir., 06/26/2012)

The Ninth Circuit upheld the U.S. Army Corps of Engineers' decision allowing a hydroelectric plant that operates at the Snoqualmie Falls to lower dam waters in the channel above the falls in order to mitigate upstream flooding problems while it undergoes plant upgrades and modifications. The operator has already obtained a license for the project from FERC. But because the upgrade involves discharging fill material into the waters of the United States, which is prohibited under the CWA without a permit, the operator sought verification from the Corps that it could proceed under a series of general nationwide permits (NWPs) authorizing certain discharges, rather than applying to the Corps for an individual permit. Downstream property owners filed suit, arguing that lowering the dam waters above the falls will exacerbate flooding problems below the falls. They claimed that hydropower projects may only be authorized if they fall under NWP 17, the only nationwide permit that specifically references hydropower projects. But this argument is not supported by the regulation. NWP 17 affirmatively licenses hydropower projects of less than 5000 kW of generating capacity, but it is silent concerning hydropower projects of more than 5000 kW of generating capacity, such as the plant at issue in this case. In addition, the Corps' verification letter contains a sufficient articulation of the basis for its decision. The Corps' interpretation of its own regulations, therefore, is entitled to deference.