The 9th U.S. Circuit Court of Appeals has upheld the relicensing of the 54.4-MW Snoqualmie Falls hydroelectric project on Washington’s Snoqualmie River.
The appeals court denied a petition to review the Federal Energy Regulatory Commission’s decision to relicense the project. The Snoqualmie Indian Tribe had petitioned for review of FERC’s 2004 decision to grant Puget Sound Energy a relicense to operate the project for another 40 years.
The project (No. 2493) features two power plants and Snoqualmie Falls, a 268-foot waterfall about 30 miles east of Seattle. Considered a sacred site by members of the Snoqualmie Tribe, the falls play a central role in the tribe’s creation story and are an important location for its religious practices.
The tribe argued FERC’s relicensing decision violated the Religious Freedom Restoration Act, claiming FERC employed the wrong legal standard for reviewing claims under the act. The tribe said substantial evidence does not support FERC’s conclusion relicensing does not substantially burden the tribe’s free exercise of religion. It also asserted that FERC failed to consult with the tribe on a government-to-government basis in violation of the National Historic Preservation Act.
In a 22-page order filed Oct. 7, the appeals court said substantial evidence supports FERC’s findings the relicensing decision does not substantially burden the tribe’s free exercise of religion. It agreed FERC employed the wrong standard for analyzing claims but added the error was harmless in that FERC’s standard was more generous to the tribe than another standard. On the third point, it said FERC was not obligated to consult with the tribe on a government-to-government basis because the administrative record for consultation closed in 1997, two years before the tribe gained federal recognition.
Court upholds FERC’s higher flow requirements
The appeals court also denied a cross-petition brought by PSE for review of FERC’s decision to impose water flow requirements that exceed those established by the Washington State Department of Ecology’s water quality certification. The appeals court said FERC’s amendment of the relicense order’s minimum instream flow provisions did not conflict with the conditions in Ecology’s water quality certification and was supported by substantial evidence.
In partial response to a rehearing request by the Snoqualmie Tribe, FERC agreed in March 2005 to increase flows over Snoqualmie Falls to 1,000 cubic feet per second in May and June to provide a historic mist that is central to the tribe’s religious practice. At the time, FERC called the nearly half-million-dollar operational change a “fairly small effect” on PSE, reducing the net annual benefit of the project to $10.41 million from $10.95 million.