Court: FERC can deny late intervention by environmental groups

The 9th U.S. Circuit Court of Appeals has ruled the Federal Energy Regulatory Commission did not act arbitrarily in denying late intervention by environmental groups opposing a plan to reduce flow releases from California’s Pyramid Dam in order to protect an endangered toad.

The California Department of Water Resources and the Los Angeles Department of Water and Power operate the 1,679.1-MW California Aqueduct hydroelectric project (No. 2426) of which Pyramid Dam is one of five developments.

DWR had applied to amend the FERC hydropower license to remove minimum flow requirements, saying a flow decrease was needed to protect the Piru Creek habitat of the endangered Arroyo Southwestern Toad. However, environmental groups California Trout and Friends of the River argued DWR wanted the change simply to divert more water to southern California cities, adding the lower flows threaten two other endangered species in Piru Creek.

Because the groups did not ask to intervene by FERC’s deadline in the 2005 license amendment request, FERC denied their late petitions to intervene, preventing them from challenging in court any decision to reduce flows.

In California Trout vs. Federal Energy Regulatory Commission, No. 07-73664, the groups challenged the denial as arbitrary and capricious. The 9th Circuit disagreed in a July 20, 2009, ruling.

“An agency’s procedural rules operate much as our own rules of procedure do,” the court said. “We require litigants to observe the orderly procedures of the court, even if such rules occasionally bar inattentive or ill-advised parties from our courtrooms.”

In a dissenting opinion, Judge Ronald Gould said FERC had “erected an unreasonably high barrier” to late intervention and “departed from its own precedent of routinely granting late intervention where there is no risk of prejudice.”

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