## Facts

- The Rock Island Hydropower Project (Project No. 943) on the Columbia River was originally licensed in 1930 and includes Rock Island Dam.
- The dam substantially affected anadromous fish runs (salmon and trout): while fish ladders aided adult upstream migration, downstream passage for juvenile fish was not effectively protected, causing significant juvenile mortality.
- Public Utility District No. 1 of Chelan County, Washington (Chelan PUD) sought a new long-term license as the original license neared expiration.
- FERC granted Chelan PUD a 40-year license.
- In the relicensing process, FERC did not require Chelan PUD to submit a fish-and-wildlife report required by FERC regulations for new licenses.
- FERC also deferred consideration of certain fish-protection and mitigation measures to later proceedings rather than resolving them in the license.
- The Yakima Indian Nation, federal fisheries officials (through the Secretary of Commerce and NMFS), state fisheries agencies, and National Wildlife Federation challenged the license based on continuing project impacts on Columbia River fish resources important to tribal fisheries and wildlife.

## Issues

1. Whether FERC could issue a new long-term license without requiring the applicant to submit the fish-and-wildlife report required by FERC regulations.
2. Whether FERC could defer analysis and conditions addressing major fish-protection measures to future proceedings instead of addressing them in the relicensing decision.
3. Whether FERC complied with the Federal Power Act requirement to give “equal consideration” to fish and wildlife resources in hydropower licensing.

## Decision

- The court granted the petitions for review, set aside FERC’s licensing order, and remanded to FERC.
- FERC’s failure to enforce its own fish-and-wildlife reporting regulations was a material defect in the relicensing process.
- FERC could not justify granting a 40-year license while postponing resolution of key fish-protection issues central to the project’s environmental effects.
- The record and FERC’s approach did not show that fish and wildlife impacts were considered on an equal footing with power development as required by the Federal Power Act.

## Legal Principles

- An agency must follow its own duly promulgated regulations; unexplained noncompliance can render agency action unlawful on judicial review.
- Under the Federal Power Act, fish and wildlife values must be integrated into hydropower licensing decisions through timely analysis and appropriate license conditions.
- Long-term licensing that leaves major environmental and fishery impacts unresolved is inconsistent with the statutory scheme requiring environmental considerations to be addressed at the licensing stage.
- Judicial deference to agency expertise does not extend to departures from binding regulations or failure to implement clear statutory directives.

## Conclusion

The Ninth Circuit vacated and remanded FERC’s 40-year hydropower license for the Rock Island Project because FERC failed to require mandated fish-and-wildlife documentation and improperly deferred core fish-protection analysis and conditions, contrary to the Federal Power Act’s equal-consideration mandate.


Confederated Tribes & Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466 (9th Cir. 1984)