## Facts

- Two hydroelectric projects on Nebraska’s central Platte River operated under FERC-issued annual licenses after expiration of long-term licenses.
- The river reach served as habitat for whooping cranes and other protected birds, including interior least terns and piping plovers.
- In earlier litigation, the court required FERC to assess whether interim, wildlife-protective conditions were needed for the annual licenses.
- On remand, FERC conducted an extensive administrative inquiry and concluded the projects contributed to channel narrowing and increased vegetation, degrading habitat conditions.
- FERC amended the annual license of Nebraska Public Power District (NPPD) by adding environmental conditions, including:
  - a minimum/maximum flow regime (Article 400), and
  - nesting-site development and maintenance requirements (Article 401).
- FERC declined to unilaterally amend Central Nebraska Public Power and Irrigation District’s (Central) annual license, reasoning that the original license lacked a clause reserving FERC’s authority to reopen and modify license terms.
- Central refused voluntary cooperation sought by FERC; without Central’s cooperation, NPPD could not meet the minimum-flow requirement.
- FERC stayed the minimum-flow requirement and denied rehearing requests.
- The Trust, NPPD, Central, and allied groups petitioned for judicial review of the interim-conditions order, the stay, and rehearing denials.

## Issues

1. Whether the Federal Power Act permits FERC to unilaterally impose new environmental conditions in an annual license when the original license lacks an express reservation of authority to modify (a reopener clause).
2. Whether the general public-interest and environmental directives in FPA §§ 4(e) and 10(a) authorize unilateral changes to annual licenses notwithstanding FPA § 6 and the requirement that annual licenses issue under the existing license’s terms.
3. Whether FERC’s interim conditions and related orders were supported by substantial evidence and reasoned decisionmaking under the Administrative Procedure Act.
4. Whether Central had standing to challenge conditions imposed on NPPD’s license, and whether NPPD’s challenge to the minimum-flow schedule was ripe.

## Decision

- The court upheld FERC’s interpretation that annual licenses must issue under the terms and conditions of the existing license and cannot be unilaterally altered absent either (i) mutual agreement under FPA § 6 or (ii) a reopener clause in the original license.
- The court sustained FERC’s authority to add interim conditions to NPPD’s annual license because NPPD’s original license contained a reservation permitting modification.
- The court affirmed FERC’s conclusion that it lacked authority to impose comparable unilateral amendments on Central’s annual license because Central’s original license lacked such a reservation.
- The court held FERC’s interim-conditions order was the product of reasoned decisionmaking supported by the administrative record.
- The court dismissed Central’s challenge for lack of standing because the conditions applied to NPPD, not Central.
- The court dismissed NPPD’s challenge to the minimum-flow schedule as unripe, particularly given the stay and the possibility of further agency action.

## Legal Principles

- Under FPA § 6, a hydropower license generally may be altered only by mutual agreement of the licensee and FERC after public notice, unless the original license reserves a unilateral power to reopen and modify.
- Under the annual-licensing provision, FERC must issue annual licenses under the terms and conditions of the existing license; this limits FERC’s ability to add new conditions during the annual-license period.
- General public-interest and environmental provisions in FPA §§ 4(e) and 10(a) do not override specific statutory constraints governing alteration of existing licenses and issuance of annual licenses.
- Agency adoption of interim environmental conditions is upheld when supported by a substantial administrative record and a reasoned explanation connecting findings (e.g., habitat degradation) to imposed measures (e.g., flow and nesting-site requirements).
- A party lacks standing to challenge agency-imposed conditions that do not legally bind it, even if those conditions may have indirect practical effects.
- Claims are unripe where the challenged requirement is stayed or contingent and further agency proceedings may change the obligation or clarify impacts.

## Conclusion

The D.C. Circuit upheld FERC’s interim wildlife-protective conditions on NPPD’s annual hydropower license while affirming that, absent a reopener clause or the licensee’s consent, FERC may not unilaterally add new conditions to an annual license issued under an existing license’s terms; the court also dismissed Central’s petition for lack of standing and found NPPD’s minimum-flow challenge unripe.


Platte River Whooping Crane Critical Habitat Maint. Tr. v. FERC, 962 F.2d 27 (D.C. Cir. 1992)