[co-author: Sahara Shrestha]*
On September 30, the U.S. Court of Appeals for the Tenth Circuit issued an opinion in Save the Colorado, et al. v. Spellmon. The case arose from various conservation group challenges to the U.S. Army Corps of Engineers (Corps) and U.S. Fish and Wildlife Service’s (Service) decision to grant the city and county of Denver, acting through its Board of Water Commissioners (Denver Water or municipality), a discharge permit to expand the reservoir of its Gross Reservoir Hydroelectric Project, which is licensed by the Federal Energy Regulatory Commission (FERC or Commission). The central issue revolved around whether the U.S. courts of appeals have exclusive jurisdiction over challenges to non-FERC decisions arising under statutes related to the development of hydropower projects under the Federal Power Act (FPA). The Tenth Circuit ultimately held that petitions against orders by non-FERC agencies do not warrant exclusive jurisdiction in the U.S. courts of appeals.
The case began after Denver Water proposed to increase its local water supply by raising the height of the dam, thereby expanding the reservoir of its $464 million Gross Reservoir Expansion Project located in Boulder County. Before Denver Water could implement the expansion, however, the municipality needed to: (1) apply to the Corps for a permit allowing discharge of dredge or fill materials into the surrounding waters pursuant to Section 404 of the Clean Water Act (CWA); and (2) apply to FERC to amend its license to carry out the proposed expansion.
Section 404 of the CWA authorizes the Corps to issue permits for the discharge of dredge or fill material into navigable waters. To expand the reservoir, the municipality planned to put concrete in the area downstream of the dam, which would inundate wetlands and require a 404 permit. After conducting a review under the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA), the Corps ultimately granted the municipality a discharge permit. Later, the municipality applied for an amendment to its license with FERC, and after conducting its own environmental assessment, the Commission amended the municipality’s license.
Various conservation groups petitioned the Federal District Court for the District of Colorado for review of the Corps’ discharge permit, claiming that the Corps violated the CWA, ESA, NEPA, and the Administrative Procedure Act. The District Court dismissed the petition for lack of subject-matter jurisdiction and found that jurisdiction over the matter belonged exclusively to the U.S. courts of appeals, due to the judicial review provision under the FPA, 16 U.S.C. § 825l(b). The District Court noted that while generally, a party challenging an agency action must file a petition in a federal district court, the FPA provides exclusive jurisdiction to the U.S. courts of appeals in challenges to orders issued by the Commission on “all issues inhering in the controversy.” The District Court interpreted this phrase as inclusive of non-FERC orders, such as the Corps’ grant of the discharge permit.
The Tenth Circuit reversed and found FPA’s provision on exclusive jurisdiction to be unambiguously limited to challenges involving the Commission’s order itself and non-inclusive of orders by other agencies, such as the Corps or the Service. The court noted that the only time courts have applied a jurisdictional limitation to challenges against other agencies’ orders under the FPA was when (1) the order was triggered by the FPA or the Commission’s obligations under another statute; (2) the order lacked significance outside the Commission’s process; or (3) the provisions of the order were incorporated as enforceable terms into the Commission’s license. The court found none of the exceptions applicable here because the Corps’ order was triggered by the CWA, ESA, and NEPA, not the FPA or FERC’s obligations under those statutes; (2) the Corps allowed the municipality to discharge fill into the water without requiring prior approval by FERC to amend the license, and (3) the Corps’ permitting conditions were not enforceable terms under the Commission’s amended license. The court thus concluded that since the conservation groups sought relief from the Corps’ decision and not the Commission’s approval of the amended license, the jurisdictional provision under the FPA did not restrict jurisdiction to the court of appeals.
The case has been remanded to the District Court for further proceedings.
A full text of the opinion can be found here.
* associate with Troutman Pepper, also contributed to this post.
