On Petition for Review of Orders of the Federal Energy Regulatory Commission
Before: Randolph, Rogers and Tatel, Circuit Judges.
The opinion of the court was delivered by: Rogers, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Opinion for the Court filed by Circuit Judge ROGERS.
Concurring opinion filed by Circuit Judge RANDOLPH.
In exercising judicial review under § 313(b) of the Federal Power Act (''FPA''), 16 U.S.C. § 825 l (b), the court is again confronted with the unusual statutory configuration where, in granting hydroelectric licenses, the Federal Energy Regulatory Commission is obligated both to conduct its own environmental assessment to protect and enhance fish and wildlife and to include such prescription conditions for fishways as the Secretary of the Interior may direct. See 16 U.S.C. §§ 803(j), 811. Wisconsin Power and Light Company (''WP&L'') petitions for review of Commission orders placing conditions on its license as a result of the Secretary's prescription. Essentially, WP&L contends that the Secretary's prescription is unsupported by substantial evidence. Although WP&L did not argue on rehearing before the Commission with the specificity presented in its brief on appeal, because we conclude, in light of the statutory scheme, that there was a ''reasonable ground for failure so to do'' under FPA § 313(b), the court has jurisdiction to address the merits of WP&L's petition. Upon so doing, we conclude that WP&L's challenges to the Secretary's prescription conditions lack merit and that any challenge it may have to potential costs of fishway devices is not ripe.
FPA § 10(j) provides that ''in order to adequately and equitably protect, mitigate damages to, and enhance, fish and wildlife (including related spawning groups and habitat) affected by the development, operation, and management of the project, each [hydroelectric] license issued ... [by the Commission] shall include conditions for such protection, mitigation, and enhancement.'' 16 U.S.C. § 803(j)(1). However, regardless of what conditions the Commission may or may not include in a license, FPA § 18 provides that ''the Commission shall require the construction, maintenance, and operation by a licensee at its own expense of ... such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce, as appropriate.'' Id. at § 811. Both provisions were at issue in the proceedings before the Commission involving WP&L's license application.
The Prairie du Sac Hydroelectric Project (''the project'') is a twenty-nine megawatt dam located on the Wisconsin River in south-central Wisconsin about ninety miles upstream of the Mississippi River. See Wisconsin Power & Light Co., 99 FERC ¶ 62,225 at 64,514 ¶ 1 (2002) (''Initial Order''). It was constructed and initially operated pursuant to a fifty year federal permit, which expired in 1961. See Wisconsin Power & Light Co., 52 FERC ¶ 62,294 (1990), reh'g denied, 55 FERC ¶ 61,169 (1991). After the Commission determined in 1990 that the project must be licensed, see id., WP&L applied for an original license to continue to operate and maintain the project. Notice of the application was published on August 11, 1994, and on December 31, 1996, notice issued that the application was ready for environmental analysis. See Initial Order at 64,514 ¶ 2. In 1997, the Secretary of the Interior, for the Fish and Wildlife Service, and in collaboration with the Wisconsin Department of Natural Resources (''the Department''), submitted recommended license conditions pursuant to FPA § 10(j). The Secretary also requested that any license include a provision reserving the Secretary's § 18 authority to prescribe the construction, operation, and maintenance of appropriate fishways at the project. The Commission issued a final environmental assessment on November 8, 2000. In January 2002, the Secretary and the Department called the Commission's attention to the recent removal of four dams opening up an additional 120 miles of river upstream of the project and providing substantial spawning and foraging habitat for riverine fish, and reiterated their § 10(j) recommendations that upstream fish passage facilities be installed at the project.
On June 27, 2002, the Commission granted WP&L a thirty year license for the project subject to conditions. The license included most § 10(j) recommendations, with the exception of those concerning fish passage. Rejecting the recommendations of the Secretary and the Department, the Commission did not include conditions in the license requiring WP&L to make provision for the upstream movement of fish around the dam or to take measures to protect fish from injury when traveling downstream through the project. The Commission, adopting a staff report, found no evidence of an effect on fish populations due to turbine mortality or fish entrainment, whereby fish enter the project's water intakes and pass through its generating turbines, and therefore declined to require the installation of ''expensive protection devices.'' Id. at 64,515 ¶ 14. The Commission likewise determined that, because of the ''dubious chance for success'' and high construction costs, measures were not required to permit fish to travel upstream around the dam. Id. at 64,516 ¶ 19. Instead, the Commission recommended that WP&L develop a plan in consultation with the Secretary and the Department to identify specific measures to enhance fishery and other aquatic resources in the project's vicinity. While concluding the fishways would not be in the public interest, the Commission stated that ''should new information in the future indicate a different finding,'' the Secretary's § 18 prescription authority was reserved. Id.
The Secretary and the Department requested rehearing, citing new information and changed circumstances, and the Secretary resubmitted her fishways recommendations as a § 18 prescription. The new information related to recent research on additional passage strategies applicable to the project, and the changed circumstances related to the removal of four upstream dams after the Commission had concluded its environmental assessment. The Commission included the prescription as conditions in the license and dismissed the rehearing requests as moot. See Order on Rehearing and Amending License, 101 FERC ¶ 61,055 (2002) (''Amended License Order''). Among other things, the amended license required WP&L, in coordination with the Secretary and the Department, to: install within one year fish protective devices to prevent fish from entering the turbines; complete within one year a detailed engineering and biological study of fishway alternatives at the dam, including identifying and detailing the costs of a proposed solution to allow fish passage; design, build, test and refine within three years the fishway approved by the Secretary and the Department; and incorporate within one year thereafter any fishway refinements found necessary by the Secretary and the Department. Id.
WP&L sought rehearing of the Amended License Order on the ground that the Commission inadequately explained the reversal of its Initial Order. In the request for rehearing, WP&L argued that there was no reasoned basis for the Commission's imposition of additional conditions in the amended license, and that no record evidence demonstrated the need for fish-protective devices. Even if circumstances had changed since the Commission completed its environmental assessment, WP&L argued, the Commission had erred by failing to consider cost and technical issues in amending the license. The Commission denied rehearing because ''[t]he Commission has no authority to amend or reject a Section 18 prescription that is timely filed.'' Order Denying Rehearing, 101 FERC ¶ 61,338 (2002) (''Rehearing Order'').
WP&L petitions for review of the Commission's orders on the ground that the Secretary's prescription was arbitrary and capricious because the record fails to show that fish entrainment at the project has an adverse effect on fishery resources, that the prescribed entrainment protective devices are technically feasible, would be effective, and survive a costbenefit analysis, and that the fish species ...