On March 31, U.S. District Judge Christine Arguello ruled that the Federal Power Act (FPA) is the exclusive authority with respect to controversies over hydroelectric licenses issued by the Federal Energy Regulatory Commission (FERC ), including challenges arising from authorization decisions of other federal agencies acting under their independent statutory authority. In Save Colorado from Semonite, Civil Action No. 18-cv-03258 (D. Colo. March 31, 2021), the court ruled that it did not have jurisdiction over an appeal of a section 404 of the Clean Water Act (CWA) of the ‘US Army Corps of Engineers (USACE) permit and the associated US Fish and Wildlife Service (USFWS) Endangered Species Act (ESA) biological notice as they are “inherent” actions.[d] in the controversy ”related to the FERC license.
The City and County of Denver (Denver Water) hold the Gross Reservoir Hydroelectric Project (FERC # 2035-099) license (project), and in July 2020, the FERC approved a license amendment to expand the reservoir and raising the dam (Expansion) after a 17-year federal and state licensing process. However, in December 2018, a range of environmental groups (including the Sierra Club and Wild Earth Guardians) filed a lawsuit to block the expansion, alleging that the previous approval of USACE CWA Section 404 and the USFWS related biological advisory was issued incorrectly. While the petitioners asserted that the actions of USACE and USFWS were “separate” and “distinct” from the FERC authorization decision, the court found that the “three decisions [were] inextricably linked. Justice Arguello focused on the fact that the expansion required “tri-agency approval” and that allowing only the challenge of the USACE license could lead to “piecemeal” litigation. Thus, the court concluded that it lacked jurisdiction over the controversy as a collateral attack on the applicants’ modification of the FERC license and the exclusive review regime provided by the FPA.
While there is a fair amount of case law prohibiting a collateral attack on a hydroelectric license issued by FERC, this case is important because USACE issued a CWA 404 license under its own statutory authority. Here, the court concluded that since each agency’s participation was “a necessary ingredient in the approval process,” the previous USACE permit was part of the overall FERC approval for the expansion. Although the court considered a challenge to a corps permit issued prior to the FERC’s final order, it is not clear if and how this ruling will affect future proceedings when a corps permit is issued after an order. FERC, which can create uncertainty and additional pressure on the coordination of permits for a given project. This decision could also have an impact on the timing of legal challenges to proposed actions for dams authorized by FERC. USACE CWA Section 404 permits are generally appealed under the Administrative Procedure Act (which requires that applications be made within six years of the date the application was accumulated or arisen. ) while the FPA has a more rigid review structure (requiring that a request for a new hearing with the FERC be filed within 30 days of the FERC order, then the judicial review be filed within 60 days following the rehearing order).