## Facts

- FERC issued a new hydropower license to Eugene Water and Electric Board (EWEB) for continued operation of two hydroelectric projects on Oregon’s McKenzie River.
- In relicensing, FERC conducted environmental review under the Federal Power Act (FPA) and the National Environmental Policy Act (NEPA).
- Resource agencies provided fish and wildlife recommendations under FPA § 10(j), and federal secretaries issued (or asserted) fishway prescriptions under FPA § 18.
- FERC declined to adopt certain § 10(j) recommendations and rejected or reclassified certain asserted § 18 measures.
- Environmental organizations sought rehearing at FERC; after denial, they petitioned for judicial review in the Ninth Circuit.

## Issues

1. Whether FERC’s NEPA/FPA environmental analysis could use an “existing project” (status quo) baseline rather than a pre-project (pre-dam) baseline.
2. Whether NEPA required FERC to treat license denial (and resulting dam removal) as the “no action” alternative and to analyze that option in detail.
3. Whether FPA § 10(j) makes agency fish and wildlife recommendations binding on FERC, or instead permits FERC to reject or modify them upon statutory findings.
4. Whether FPA § 18 fishway prescriptions issued by the Secretaries of the Interior or Commerce are binding on FERC in the license.

## Decision

- The court upheld FERC’s use of an existing-project environmental baseline as reasonable under NEPA and the FPA.
- The court upheld FERC’s “no action” alternative as continued operation under the existing license and held NEPA did not require a detailed analysis of license denial and dam removal on this record.
- The court confirmed that under FPA § 10(j), FERC must address each agency recommendation but may reject or modify recommendations if it publishes the findings required by § 10(j)(2).
- The court held that properly issued FPA § 18 fishway prescriptions must be included in the license and may not be avoided through rejection or reclassification by FERC.
- Petitions for rehearing were denied.

## Legal Principles

- NEPA permits an agency to evaluate relicensing effects against an existing-conditions baseline when that choice is reasonable and the agency still considers cumulative and ongoing effects.
- NEPA’s “no action” alternative may be defined as continued operation under an existing authorization when the governing statute makes license denial an affirmative agency act rather than inaction.
- Under FPA § 10(j), FERC must consider and respond to fish and wildlife recommendations and may depart from them only by issuing the specific findings required by § 10(j)(2).
- Under FPA § 18, the Secretaries’ fishway prescriptions are mandatory licensing conditions; FERC’s role is to include and implement valid prescriptions rather than to revise them on the merits.

## Conclusion

The Ninth Circuit sustained FERC’s core NEPA approach to baseline and alternatives in hydropower relicensing, recognized conditional discretion to depart from resource-agency recommendations under FPA § 10(j), and limited FERC’s authority by requiring inclusion of valid fishway prescriptions issued under FPA § 18.


American Rivers v. FERC, 201 F.3d 1186 (9th Cir. 1999)