Court: ESA does not trigger action on previously licensed project

A federal appeals court ruled Dec. 12 that the Endangered Species Act does not require the Federal Energy Regulatory Commission to open ESA consultation proceedings when a new endangered species is listed near the location of a previously FERC-licensed hydroelectric project.

The 9th U.S. Circuit Court of Appeals said ongoing operations of a hydro project under a FERC license do not constitute a federal �agency action� that would trigger the consultation requirement of ESA Section 7.

ESA ensures federal actions do not jeopardize species

Before a federal agency can take an action that might affect an endangered species, Section 7 requires the agency to consult with resource agencies to ensure that the proposed action is not likely to jeopardize the continued existence of the species or damage its habitat.

Citing Section 7, the California Sportfishing Protection Alliance and other environmental groups asked the court to force FERC to consult with the National Marine Fisheries Service about the operation of Pacific Gas &Electric Co.’s 26.65-MW DeSabla-Centerville project (No. 803) in California. Although PG&E operates the project under a license issued in 1980, the petitioners sought consultation for chinook salmon that were not ESA-listed until 1999.

Court: Federal action concluded 19 years before listing

The appeals court rejected the request, saying the ESA language deals with prospective agency actions, not, as in this case, a FERC licensing action that concluded in 1980.

�PG&E, a private party, operates the hydroelectric project challenged in this case,� the court said. �FERC, the agency, has proposed no affirmative act that would trigger the consultation requirement for current operations.�

The court also held that a �reopener� clause in a hydro license does not constitute �discretionary federal involvement or control� over project operations that would trigger ESA consultation.

�The reopener provisions do no more than give the agency discretion to decide whether to exercise discretion, subject to the requirements of notice and hearing,� the court said. �The reopener provisions in of themselves are not sufficient to constitute any discretionary agency �involvement or control’ that might mandate consultation by FERC.�

Ruling gives certainty to existing hydro projects

The law firm of Van Ness Feldman, which filed a brief in the case on behalf of the hydro industry, said the ruling is an important clarification of the ESA’s application to FERC-licensed projects.

If the court had ruled that ongoing project operations are a federal agency action or that a reopener clause constitutes discretionary agency �involvement or control,’ licensees would have faced substantial uncertainty, a statement by the law firm said.

�Under such an interpretation, FERC could have been required to undertake time-consuming and expensive formal ESA consultations every time a new species is listed or ongoing project operations result in alleged new effects on existing listed species,� Van Ness Feldman said. �This would have affected thousands of projects and could have seriously disrupted FERC’s hydroelectric program.�

The existing license for DeSabla-Centerville is scheduled to expire in 2009. Early ESA consultation between FERC and NMFS has begun in contemplation of license renewal proceedings.

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