On March 31, U.S. District Judge Christine Arguello found that the Federal Power Act (FPA) is the exclusive authority with regards to controversies related to Federal Energy Regulatory Commission (FERC) -issued hydroelectric licenses, including challenges that stem from the permitting decisions of other federal agencies acting under their independent statutory authority. In Save the Colorado v. Semonite, Civil Action No. 18-cv-03258 (D. Colo. Mar. 31, 2021), the court ruled that it lacked jurisdiction over an appeal of a U.S. Army Corps of Engineers (USACE) Clean Water Act (CWA) Section 404 permit and the associated U.S. Fish and Wildlife Service (USFWS) Endangered Species Act (ESA) biological opinion since these are actions “inhere[d] in the controversy” related to the FERC license.
The City and County of Denver (Denver Water) is the licensee of the Gross Reservoir Hydroelectric Project (FERC No. 2035-099) (Project), and in July 2020 FERC approved a license amendment to expand the reservoir and raise the dam (Expansion) after a 17-year federal and state permitting process. However, back in December 2018, a collection of environmental groups (including Sierra Club and Wild Earth Guardians) sued to block the Expansion, alleging that the earlier issued USACE CWA Section 404 approval and related USFWS biological opinion were improperly issued. While the petitioners claimed that USACE’s and USFWS’ actions were “separate” and “distinct” from the FERC licensing decision, the court concluded that the “three decisions [were] inextricably intertwined.” Judge Arguello focused on the fact that the Expansion required the “approval of all three agencies” and that allowing just the USACE permit to be challenged had the potential for “piecemeal” litigation. Thus, the court concluded that it lacked jurisdiction over the controversy as a collateral attack on the FERC license amendment by the petitioners and the exclusive review scheme provided by the FPA.
While there is a fair amount of case law prohibiting a collateral attack on a FERC-issued hydroelectric license, this case is significant because USACE issued a CWA 404 permit under its own statutory authority. Here, the court concluded that since each agency’s participation was “a necessary ingredient in the approval process,” the earlier USACE permit was part of the overall FERC approval of the Expansion. While the court reviewed a challenge to a Corps permit issued before the final FERC order, it is unclear whether and how this decision will affect future proceedings where a Corps permit is issued after a FERC order, which may create uncertainty and additional pressure on coordination of permitting for a given project. This decision also has the potential to impact the timing of judicial challenges to proposed actions for FERC-licensed dams. USACE CWA Section 404 permits typically are appealed under the Administrative Procedure Act (which requires that claims to be filed within six years of when the claim accrued or originated) while the FPA has a more rigid review structure (requiring that a request for rehearing with FERC be filed within 30 days of the FERC order and then judicial review be filed within 60 days of an order on rehearing).