## Facts

- Wisconsin Public Service Corporation and Consolidated Water Power Company operated hydroelectric projects on the Wisconsin River under long-term federal licenses.
- When FERC issued new licenses (relicensing), it included “reopener” clauses requiring the licensees to construct, operate, and maintain fishways if later prescribed by the Secretary of the Interior under § 18 of the Federal Power Act (FPA).
- The clauses imposed no immediate fishway construction duty; they reserved authority to implement later fishway prescriptions.
- The licensees objected that the clauses (i) effectively shifted key decisionmaking to Interior and (ii) created unacceptable uncertainty because future fishway costs were unknown at relicensing.
- FERC denied rehearing and retained the clauses, and the licensees petitioned for judicial review.

## Issues

1. Whether FERC has statutory authority under FPA § 18 to include license conditions that require future compliance with fishway prescriptions that may later be made by the Secretary of the Interior.
2. Whether such § 18 reopener clauses conflict with FPA § 15’s requirement that relicenses be issued to original licensees on “reasonable terms,” given uncertainty about future costs.
3. Whether FERC’s inclusion of the clauses was arbitrary, capricious, or otherwise unlawful under the Administrative Procedure Act because no specific fishway need had been shown at relicensing.

## Decision

- The court denied the petitions for review and upheld FERC’s relicensing orders.
- FERC acted within its authority by including reopener clauses implementing § 18’s fishway-prescription scheme.
- The clauses were not rendered unreasonable under § 15 merely because future prescriptions could impose costs not quantifiable at relicensing.
- FERC’s action was not arbitrary or capricious; it reasonably implemented a statutory framework that anticipates later fish-protection determinations.

## Legal Principles

- FPA § 18 grants the Secretary of the Interior authority to prescribe fishways at licensed hydroelectric projects, and FERC may structure license conditions to ensure future compliance with valid § 18 prescriptions.
- A relicensing term is not per se “unreasonable” under FPA § 15 simply because it reserves authority for later environmental conditions whose content and cost cannot yet be specified.
- Under APA review, an agency may adopt a licensing mechanism that accommodates future statutorily authorized determinations, without needing present proof that a particular future requirement will in fact be imposed.
- The legality of the reopener turns on whether it faithfully implements the statutory allocation of authority and preserves later decisionmaking within applicable legal constraints.

## Conclusion

The Seventh Circuit held that FERC may include § 18 fishway reopener clauses in hydroelectric relicenses, even though the timing, design, and cost of any future fishways are unknown at relicensing, because the approach is authorized by the FPA, consistent with § 15’s “reasonable terms” requirement, and reasonable under the APA.


Wisconsin Pub. Serv. Corp. v. FERC, 32 F.3d 1165 (7th Cir. 1994)