Snoqualmie Indian v. Ferc

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SNOQUALMIE INDIAN TRIBE, 
Petitioner,
STATE OF WASHINGTON DEPARTMENT
OF ECOLOGY,
Intervenor, No. 05-72739
v.  FERC No.
FEDERAL ENERGY REGULATORY 2493-016
COMMISSION,
Respondent,
PUGET SOUND ENERGY, INC.,
Intervenor.

PUGET SOUND ENERGY, INC., 
Petitioner,
STATE OF WASHINGTON DEPARTMENT
OF ECOLOGY,
No. 05-74060
Intervenor,
v.  FERC No.
2493-027
FEDERAL ENERGY REGULATORY
OPINION
COMMISSION,
Respondent,
SNOQUALMIE INDIAN TRIBE,
Intervenor.

On Petition for Review of an Order of the
Federal Energy Regulatory Commission
14233
14234 SNOQUALMIE INDIAN TRIBE v. FERC
Argued February 8, 2007
Submitted September 30, 2008
Seattle, Washington
Filed October 7, 2008
Before: Raymond C. Fisher and Richard C. Tallman,
Circuit Judges, and David A. Ezra,* District Judge.
Opinion by Judge Tallman
*The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
SNOQUALMIE INDIAN TRIBE v. FERC 14237
COUNSEL
Andrea Rodgers, Charles M. Tebbutt, Western Environmental
Law Center, Eugene, Oregon, for petitioner Snoqualmie
Indian Tribe.
Mark W. Schneider, Markham A. Quehrn, and Kristine R.
Wilson, Perkins Coie LLP, Bellevue, Washington, for
petitioner/intervenor Puget Sound Energy, Inc.
John S. Moot, Robert H. Solomon, Michael E. Kaufmann,
Washington, D.C., for respondent Federal Energy Regulatory
Commission.
Rob McKenna, Joan M. Marchioro, Olympia, Washington,
for intervenor Washington Department of Ecology.
14238 SNOQUALMIE INDIAN TRIBE v. FERC
Michael W. Gendler, Gendler & Mann LLP, Seattle, Wash-
ington, for amici curiae Washington Association of Churches,
the Church Council of Greater Seattle, and the Lutheran Pub-
lic Policy Office of Washington State.
Harold S. Shepherd, Clinton, Colorado, for amicus curiae
Center for Water Advocacy.
OPINION
TALLMAN, Circuit Judge:
The Snoqualmie Tribe petitions for review of a decision of
the Federal Energy Regulatory Commission (“FERC”) grant-
ing Puget Sound Energy, Inc. (“PSE”) a license to operate for
another forty years the Snoqualmie Falls Hydroelectric Proj-
ect. The Tribe argues that FERC’s relicensing decision vio-
lates the Religious Freedom Restoration Act (“RFRA”)
because FERC employed the wrong legal standard for review-
ing claims under RFRA and because substantial evidence
does not support FERC’s conclusion that the relicensing deci-
sion does not substantially burden the Tribe’s free exercise of
religion. The Tribe also asserts that FERC failed to consult
with the Tribe on a government-to-government basis in viola-
tion of the National Historic Preservation Act (“NHPA”). PSE
cross-petitions for review of FERC’s decision to impose water
flow requirements that exceed those established in the Wash-
ington State Department of Ecology’s (“Ecology”) water
quality certification (“WQC”).
We have jurisdiction under 16 U.S.C. § 825l(b). After hear-
ing argument in this appeal, we vacated submission pending
publication of Navajo Nation v. U.S. Forest Serv., No. 06-
15371, 535 F.3d 1058, slip op. 10033 (9th Cir. filed Aug. 8,
2008) (en banc). In reliance on that opinion, we now issue our
decision in this case. We deny the petitions for review.
SNOQUALMIE INDIAN TRIBE v. FERC 14239
First, substantial evidence supports FERC’s finding that the
relicensing decision does not substantially burden the Tribe’s
free exercise of religion. Second, we conclude that, although
FERC employed the wrong standard for analyzing RFRA
claims, this error was harmless because FERC’s standard was
more generous to plaintiffs than the standard we have now
articulated in Navajo Nation and the Tribe has failed to dem-
onstrate a substantial burden that would meet the Navajo
Nation standard. Third, because the record for purposes of
NHPA § 106 consultation closed in 1997—before the Tribe
gained federal recognition in 1999—FERC was not obligated
to consult with the Tribe on a government-to-government
basis. Finally, FERC’s amendment of the license order’s
minimum instream flow provisions did not conflict with the
conditions in Ecology’s WQC and was supported by substan-
tial evidence.
I
Snoqualmie Falls is a 268-foot waterfall about thirty miles
east of Seattle on the Snoqualmie River as it flows down from
the Cascade Mountains. If the Snoqualmie River flowed
freely over the Falls, water flows in years of normal rainfall
would exceed 1000 cubic feet per second (“cfs”) eighty per-
cent of the time.
Puget Sound Power and Light, predecessor to PSE, con-
structed a hydroelectric power plant at the Falls in 1898. The
Federal Power Commission issued a license for the project in
1975. Puget Sound Power & Light Co., 53 F.P.C. 1657
(1975), 54 F.P.C. 157 (1975), 54 F.P.C. 599 (1975). The proj-
ect consists of a low-level diversion dam located upstream
from the Falls, an underground power plant, and an above-
ground power plant downstream of the Falls, with a total gen-
erating capacity of 44.4 megawatts. Electricity produced by
the project annually averages about 273,000 megawatt hours,
depending upon rainfall. The 1975 license mandated that PSE
14240 SNOQUALMIE INDIAN TRIBE v. FERC
maintain an instream flow of 100 cfs over the Falls during
daylight hours.
The Falls is considered a sacred site by the few hundred
enrolled members who today comprise the Snoqualmie Tribe.
The Falls plays a central role in the Tribe’s creation story and
is an important location for its religious practices. The Tribe
believes that the mist generated by the Falls connects the earth
to the heavens and that a powerful water spirit lives in the
plunge pool below the Falls. A 1993 article co-authored by
anthropologist Kenneth Tollefson and sociologist Martin
Abbott found that “[t]he Falls provides a place for contempo-
rary Snoqualmie to gather to pray, to meditate, to worship,
and to renew their contact with their ancestors and their spiri-
tual powers.” The Tribe performs religious ceremonies at the
Falls, including “vision quests,” often multi-day events in
which individual tribal members seek spiritual contact
through meditation, fasting, and bathing in the water below
the Falls. The Falls has been designated as eligible for listing
on the National Register of Historic Places as a Traditional
Cultural Property.
On November 25, 1991, PSE filed an application with
FERC for the relicensing of its hydroelectric project pursuant
to the Federal Power Act, 16 U.S.C. §§ 791-828c. As required
by the Clean Water Act, 33 U.S.C. §§ 1251-1387 (“CWA”),
PSE also requested a WQC from the Department of Ecology.
Ecology issued a WQC for the project on September 24,
2003. The WQC specified minimum water flows over the
Falls, ramping rates, and water quality monitoring.
In evaluating PSE’s license application, FERC considered
several alternatives, including the proposed action (PSE’s pro-
posal to increase water diversion by an additional 1,500 cfs
and to make major structural modifications), a minor upgrade
(refurbishment of the existing project and a substantial
increase in flows), and the Tribe’s preferred alternative
(decommissioning the entire project). FERC took the middle
SNOQUALMIE INDIAN TRIBE v. FERC 14241
ground and ultimately recommended and licensed the minor
upgrade.
As part of the NHPA § 106 process, PSE prepared and sub-
mitted a Cultural Resources Mitigation and Management Plan
(“Cultural Plan”) and a Historical Resources Mitigation and
Management Plan (“Historical Plan”) on February 26, 1996.
On December 19, 1996, FERC filed a letter requesting the
Advisory Council on Historic Preservation to sign the Pro-
grammatic Agreement, which implemented these plans, and
indicated that the requirements of § 106 had been satisfied.
On January 22, 1997, the Advisory Council signed the Pro-
grammatic Agreement, thus closing the record for purposes of
NHPA § 106. The Snoqualmie Tribe did not achieve federal
recognition until October 6, 1999. See Final Determination To
Acknowledge the Snoqualmie Tribal Organization, 62 Fed.
Reg. 45,864 (Aug. 29, 1997).
On June 29, 2004, FERC issued an order relicensing the
project (the “License Order”). As required by § 401 of the
CWA, 33 U.S.C. § 1341(d), FERC made compliance with the
WQC a condition of the license. In the License Order, FERC
adopted the minimum water flows established in the WQC
except for requiring greater water flows during Labor Day
weekend. The resulting mandated minimum flows, as set forth
in Article 21 and Appendix A, were as follows: May 16-31:
200 cfs at all times; June 1-30: 450 cfs at all times; July 1-
August 31: 100 cfs during daytime and 25 cfs during night-
time (except weekends and holidays, which require 200 cfs at
all times); September 1-May 15: 100 cfs during daytime and
25 cfs during nighttime (except Labor Day weekend, which
requires 200 cfs during daytime).
On July 29, 2004, the Tribe filed a request for rehearing
and stay of the License Order. On August 30, 2004, FERC
temporarily granted rehearing for further consideration. On
March 1, 2005, FERC issued an order partially granting and
partially denying the Tribe’s request and denying a stay (the
14242 SNOQUALMIE INDIAN TRIBE v. FERC
“First Rehearing Order”). FERC revised Article 421 of the
License to require 1000 cfs at all times during May and June,
thus conforming the License to the higher minimum daytime
flows recommended by FERC staff in the final Environmental
Impact Statement (“EIS”). On April 28, 2005, the Tribe peti-
tioned us to review the First Rehearing Order.
On March 31, 2005, PSE requested that FERC rehear the
First Rehearing Order pursuant to 16 U.S.C. § 825l(a). On
June 1, 2005, FERC issued an order denying PSE’s request
for rehearing (the “Second Rehearing Order”). On July 8,
2005, PSE petitioned for review of the Second Rehearing
Order.
We granted PSE’s and the Tribe’s motions to intervene in
the petition for review proceedings. The Washington Depart-
ment of Ecology was also granted intervention. We granted
the parties’ joint motion to consolidate the proceedings. This
consolidated appeal challenges the Licensing Order, First
Rehearing Order, and Second Rehearing Order (collectively,
the “relicensing decision”).
II
Under the Administrative Procedure Act, agency decisions
may be set aside only if “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A); United States v. Bean, 537 U.S. 71, 77 (2002);
High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 638 (9th
Cir. 2004). An agency’s decision can be upheld only on the
basis of the reasoning in that decision. Anaheim Mem’l Hosp.
v. Shalala, 130 F.3d 845, 849 (9th Cir. 1997). We may
reverse under the arbitrary and capricious standard if the
agency relied on factors that Congress did not intend it to con-
sider, or offered an explanation for its decision that runs
counter to the evidence or is so implausible that it could not
be ascribed to a difference in view or the product of agency
SNOQUALMIE INDIAN TRIBE v. FERC 14243
expertise. Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir.
2003), amended by 352 F.3d 1186 (9th Cir. 2003).
Under the Federal Power Act, “[t]he finding of the Com-
mission as to the facts, if supported by substantial evidence,
shall be conclusive.” 16 U.S.C. § 825l(b); Pub. Utils. Comm’n
of Cal. v. FERC, 462 F.3d 1027, 1045 (9th Cir. 2006). Sub-
stantial evidence “means such relevant evidence as a reason-
able mind might accept as adequate to support a conclusion.”
Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1076 (9th
Cir. 2003) (quoting Eichler v. SEC, 757 F.2d 1066, 1069 (9th
Cir. 1985)). If the evidence is susceptible to more than one
rational interpretation, the court may not substitute its judg-
ment for that of the agency. See id. Where, as here, “a court
reviews an agency action ‘involv[ing] primarily issues of
fact,’ and where ‘analysis of the relevant documents requires
a high level of technical expertise,’ we must ‘defer to the
informed discretion of the responsible federal agencies.’ ”
Sierra Club, 346 F.3d at 961 (quoting Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 377 (1989)); see also Lands
Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008).
An agency’s interpretation or application of a statute is a
question of law reviewed de novo. Schneider v. Chertoff, 450
F.3d 944, 952 (9th Cir. 2006). When a statute is silent or
ambiguous on a particular point, the court may defer to the
agency’s interpretation if based on a permissible construction
of the statute. See Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843 (1984); Espejo v. INS, 311
F.3d 976, 978 (9th Cir. 2002).
III
[1] RFRA provides that the government “shall not substan-
tially burden a person’s exercise of religion even if the burden
results from a rule of general applicability” unless the govern-
ment “demonstrates that application of the burden to the per-
son (1) is in furtherance of a compelling governmental
14244 SNOQUALMIE INDIAN TRIBE v. FERC
interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-
(b). This statute was Congress’s response to a First Amend-
ment decision of the Supreme Court that, in Congress’s view,
“virtually eliminated the requirement that the government jus-
tify burdens on religious exercise imposed by laws neutral
toward religion.” Id. § 2000bb(a)(4). RFRA restores the com-
pelling interest test set forth in Sherbert v. Verner, 374 U.S.
398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and
“guarantee[s] its application in all cases where free exercise
of religion is substantially burdened.” 42 U.S.C.
§ 2000bb(b)(1); see also Navajo Nation, 535 F.3d at __ , slip
op. at 10051.
The Tribe contends that FERC violated RFRA by employ-
ing the wrong definition of substantial burden when issuing
the First Rehearing Order and License Order.1 The Tribe also
argues that FERC’s ultimate conclusion that the hydroelectric
project does not substantially burden the Tribe’s religious
exercise is not supported by substantial evidence because the
continued operation of the hydroelectric project prevents the
Tribe from having necessary religious experiences in three
ways: its operation deprives the Tribe of access to the Falls
for vision quests and other religious experiences, eliminates
the mist necessary for the Tribe’s religious experiences, and
alters the ancient sacred cycle of water flowing over the Falls.
1
The Tribe and Amici also argue that FERC conflated the requirements
of the Free Exercise Clause of the First Amendment with those of RFRA
through its reliance on Lyng v. Northwest Indian Cemetery Protective
Association, 485 U.S. 439 (1988). But, in its License Order, FERC only
cited to Lyng in a footnote immediately following a sentence solely
addressing the Tribe’s First Amendment claim. Similarly, in the First
Rehearing Order, FERC addressed Lyng only in the context of the Tribe’s
First Amendment claim. Because the Tribe did not raise a First Amend-
ment challenge before us, we need not assess FERC’s application of the
First Amendment or, within that context, Lyng. See Guam v. Guerrero,
290 F.3d 1210, 1215-19, 1222-23 (9th Cir. 2002) (differentiating between
protection afforded by, and standards under, the Free Exercise Clause of
the First Amendment and RFRA).
SNOQUALMIE INDIAN TRIBE v. FERC 14245
In our recent en banc decision in Navajo Nation, we recon-
sidered what constitutes a substantial burden under RFRA,
adopting a narrower definition of that term than we had in
prior decisions. There, the plaintiff tribe challenged the fed-
eral government’s approval of the use for skiing of artificial
snow containing recycled wastewater of which 0.0001% was
comprised of human waste. The tribe asserted that use of the
artificial snow on a mountain it considered sacred “desecrates
the entire mountain, deprecates [its] religious ceremonies, and
injures [its] religious sensibilities.” 535 F.3d at ___, slip op.
at 10040.
[2] We disagreed. Central to resolution of that case was
whether use of the recycled wastewater imposed a substantial
burden on the plaintiff tribe’s exercise of its religion. We reit-
erated congressional intent to “restore the compelling interest
test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)[,]
and Wisconsin v. Yoder, 406 U.S. 205 (1972)[,] and to guar-
antee its application in all cases where free exercise of reli-
gion is substantially burdened.” Navajo Nation, 535 F.3d at
__, slip op. at 10051 (quoting 42 U.S.C. § 2000bb(b)(1)).
Plainly, Congress intended that for RFRA to apply, a govern-
ment enactment first burden the exercise of religion and then
do so substantially. We emphasized that “the government is
not required to prove a compelling interest for its action or
that its action involves the least restrictive means to achieve
its purpose, unless the plaintiff first proves the government
action substantially burdens his exercise of religion.” Id.
(emphasis added).
[3] The term “substantial burden,” as used in RFRA, “ex-
pressly adopted and restored . . . Sherbert, Yoder, and federal
court rulings,” Id. at ___, slip op. at 10052, as “a workable
test for striking sensible balances between religious liberty
and competing governmental interests.” Id. at ___, slip op. at
10051 (quoting 42 U.S.C. § 2000bb(a)(5)). These cases led us
to conclude:
14246 SNOQUALMIE INDIAN TRIBE v. FERC
Under RFRA, a “substantial burden” is imposed only
when individuals are forced to choose between fol-
lowing the tenets of their religion and receiving a
governmental benefit (Sherbert) or [are] coerced to
act contrary to their religious beliefs by the threat of
civil or criminal sanctions (Yoder).
Id. at ___, slip op. at 10053.
Thus, when “[a]pplying Sherbert and Yoder,” we con-
cluded “there is no ‘substantial burden’ on the [plaintiff
tribe’s] exercise of religion in this case.” Id.
The use of recycled wastewater on a ski area that
covers one percent of the Peaks does not force the
Plaintiffs to choose between following the tenets of
their religion and receiving a governmental benefit,
as in Sherbert. The use of recycled wastewater to
make artificial snow also does not coerce the Plain-
tiffs to act contrary to their religion under the threat
of civil or criminal sanctions, as in Yoder. The Plain-
tiffs are not fined or penalized in any way for prac-
ticing their religion on the Peaks or on the
Snowbowl. Quite the contrary: the Forest Service
“has guaranteed that religious practitioners would
still have access to the Snowbowl” and the rest of the
Peaks for religious purposes.
The only effect of the proposed upgrades is on the
Plaintiffs’ subjective, emotional religious experi-
ence. That is, the presence of recycled wastewater on
the Peaks is offensive to the Plaintiffs’ religious sen-
sibilities. To plaintiffs, it will spiritually desecrate a
sacred mountain and will decrease the spiritual ful-
fillment they get from practicing their religion on the
mountain. Nevertheless, under Supreme Court prece-
dent, the diminishment of spiritual fulfillment—
SNOQUALMIE INDIAN TRIBE v. FERC 14247
serious though it may be—is not a “substantial bur-
den” on the free exercise of religion.
Id. at ___, slip op. at 10053-54 (internal citation omitted).
[4] Navajo Nation is dispositive here. The Tribe’s argu-
ments that the dam interferes with the ability of tribal mem-
bers to practice religion are irrelevant to whether the
hydroelectric project either forces them to choose between
practicing their religion and receiving a government benefit or
coerces them into a Catch-22 situation: exercise of their reli-
gion under fear of civil or criminal sanction. After reviewing
the voluminous record in this case, we have not found any
evidence demonstrating that Snoqualmie Tribe members will
lose a government benefit or face criminal or civil sanctions
for practicing their religion. We therefore hold that substantial
evidence supports FERC’s decision relicensing the project
and that it does not impose a substantial burden under RFRA
on the tribal members’ ability to exercise their religion, as we
have defined substantial burden in Navajo Nation.
[5] In light of Navajo Nation, the Tribe’s argument that
FERC violated RFRA fails because, although it did not have
the benefit of our recent en banc decision to guide it, the stan-
dard FERC applied, though erroneous in hindsight, was more
favorable to the Tribe, and thus any error was harmless. In the
License Order,2 FERC stated:
[RFRA] appears to apply to situations in which the
Government has either prohibited an individual’s
religious practice or required an individual to take
some action contrary to his or her religion [Fn. 41]—
not to situations in which the Government took some
2
In the First Rehearing Order, FERC did not reiterate its standard for
evaluating the Tribe’s RFRA claim, most likely because the Tribe did not
clearly challenge FERC’s elucidation of the RFRA standard in its Request
for Rehearing.
14248 SNOQUALMIE INDIAN TRIBE v. FERC
action which incidentally affected the quality of an
individual’s religious experience. [Fn. 42] The issu-
ance of a new license will not require the Snoqual-
mie to violate their religious beliefs. Nor does it
prohibit or prevent the Snoqualmies’ access to Sno-
qualmie Falls, their possession and use of religious
objects, or the performance of religious ceremonies.
Footnote 41 of the Order notes that “[RFRA] states that Fed-
eral activities which inhibit the free exercise of any religion
must satisfy a compelling Government interest and must be
the least restrictive means to accomplish the purpose.” Foot-
note 42 cites to Sherbert, 374 U.S. 398, and Yoder, 406 U.S.
205, “whose compelling interest test [RFRA] was intended to
restore.”
[6] Even if FERC’s definition of substantial burden in its
License Order comported with our elucidation of what a reli-
gious adherent must prove to establish a RFRA violation at
the time FERC issued the License Order, its articulation of the
substantial burden test is inconsistent with our definition of
that term in Navajo Nation. However, as should now be clear,
any error was harmless because the Tribe has not provided
evidence that the dam project imposes a substantial burden on
its members’ religious exercise under the Navajo Nation clari-
fication of the substantial burden standard.3
3
As an additional matter, the Tribe and Amici argue that FERC’s state-
ment that RFRA does not apply “to situations in which the Government
took some action which incidentally affected the quality of an individual’s
religious experience,” equates to a finding that incidental burdens arising
out of neutral and generally applicable laws never require more than ratio-
nal basis scrutiny. But FERC did not say that RFRA never applies to any
law of general applicability; rather, it indicated that RFRA does not pro-
hibit the government from taking an action “which incidentally affected
the quality of an individual’s religious experience.” That statement is con-
sistent with our conclusion in Navajo Nation that RFRA does not prohibit
a law of general applicability that merely diminishes the quality of an indi-
vidual’s religious experience, so long as the law does not force religious
adherents to choose between following the tenets of their religion and
receiving governmental benefits or coerce them to act contrary to their
religious beliefs by the threat of civil or criminal sanction. See Navajo
Nation, 535 F.3d at ___, slip op. at 10053.
SNOQUALMIE INDIAN TRIBE v. FERC 14249
IV
[7] The Tribe argues that FERC failed to engage in
government-to-government consultation with the Tribe as
required by NHPA and its own regulations.4 Section 106 of
NHPA, 16 U.S.C. § 470f, requires FERC to consider any
effects of the project upon the Falls, a Traditional Cultural
Property eligible for listing in the National Register of His-
toric Places. Section 106 and its accompanying regulations,
36 C.F.R. Part 800, require government-to-government con-
sultation with federally recognized tribes. See 36 C.F.R.
§§ 800.2(c)(2) (designating tribes as consulting party), 800.4
(regarding identification of historic properties), 800.5(a),
(c)(2)(iii) (regarding assessment of adverse effects), 800.6
(regarding resolution of adverse effects), 800.14(f) (regarding
generation of programmatic agreement); see also id. § 800.8
(regarding coordination with NEPA). In addition, in 2003
FERC promulgated a Policy Statement on Consultation with
Indian Tribes in Commission Proceedings, 18 C.F.R. § 2.1c,
which elucidates the meaning of “government-to-
government” consultation.
[8] The Tribe achieved federal recognition on October 6,
1999, more than two years after the finalization of the key
documents generated pursuant to § 106 of NHPA: the Cul-
tural Plan, the Historical Plan, and the Programmatic Agree-
ment. On December 19, 1996, FERC filed a letter requesting
the Advisory Council on Historic Preservation to sign the Pro-
grammatic Agreement, which incorporated the Cultural and
4
In its opening brief, the Tribe alleges that FERC’s failure to engage in
government-to-government consultation amounts to a violation of (1) the
American Indian Religious Freedom Act (“AIRFA”), 42 U.S.C. § 1996,
and (2) Bulletin 38, see Patricia L. Parker & Thomas F. King, U.S. Dep’t
of the Interior, National Register Bulletin 38: Guidelines for Evaluating
and Documenting Traditional Cultural Properties (1990). The Tribe did
not challenge FERC’s degree of tribal consultation under AIRFA or Bulle-
tin 38 in its Request for Rehearing, however, so we lack jurisdiction to
review these claims. See 16 U.S.C. § 825l(b).
14250 SNOQUALMIE INDIAN TRIBE v. FERC
Historical Plans, and indicated that the requirements of § 106
had been satisfied. On January 22, 1997, the Advisory Coun-
cil signed the Programmatic Agreement, thus closing the
record for purposes of NHPA § 106. See 36 C.F.R.
§ 800.14(b)(2)(iii) (“The programmatic agreement shall take
effect when executed by the Council . . . . Compliance with
the procedures established by an approved programmatic
agreement satisfies the agency’s section 106 responsibilities
for all individual undertakings of the program covered by the
agreement until it expires or is terminated . . . .”). When the
record was closed, the Tribe was not federally recognized.
Therefore, NHPA § 106 did not require FERC to consult with
the Tribe on a government-to-government basis. See id.
§ 800.16(m) (definition of “Indian tribe”).
[9] Thus, we reject the Tribe’s claim that FERC did not
engage in meaningful tribal consultation pursuant to NHPA
§ 106. Because the Snoqualmie Indians were not federally
recognized before the closure of the administrative record, we
need not evaluate the sufficiency of FERC’s government-to-
government consultation efforts or reach the Tribe’s claim
that FERC cannot delegate its tribal consultation obligations
to PSE.
V
In its cross-petition for rehearing, PSE argues that FERC’s
amendment of the WQC stream flows in the First Rehearing
Order denigrates the “beneficial use” of hydroelectric power
production and in so doing violates the CWA. PSE also
argues that FERC acted without substantial evidence in
amending the flow requirements. Neither of PSE’s arguments
has merit.
A
[10] As a preliminary matter, FERC asserts that PSE lacks
standing to challenge the revised flow requirements, because
SNOQUALMIE INDIAN TRIBE v. FERC 14251
PSE’s grievance—largely economic—is not within the “zone
of interests” protected by the CWA. However, PSE is the
party directly subject to the FERC action in question. As the
applicant for the license under consideration, PSE holds an
evident interest in the action. See Clarke v. Sec. Indus. Ass’n,
479 U.S. 388, 399 (1987) (“In cases where the plaintiff is not
itself the subject of the contested regulatory action, the [zone
of interest] test denies a right of review if the plaintiff’s inter-
ests are so marginally related to or inconsistent with the pur-
poses implicit in the statute that it cannot reasonably be
assumed that Congress intended to permit the suit.” (emphasis
added)); Stock West Corp. v. Lujan, 982 F.2d 1389, 1397 (9th
Cir. 1993) (“[W]hen a party is subject to the regulatory action,
we believe that only an explicit declaration of Congress bar-
ring judicial review could overcome Congress’ evident intent
to make agency action presumptively reviewable.” (internal
quotation omitted)). Therefore, we hold that PSE possesses
standing to challenge the relicensing of its hydroelectric proj-
ect.
B
PSE argues that FERC’s 2005 revised license unlawfully
adopts an aesthetic accommodation that alters the project’s
flow restrictions in conflict with Ecology’s WQC. PSE asserts
that, under the CWA, FERC is required to incorporate a
state’s WQC—without revision—into a license order, and
that, by requiring increased flow conditions, FERC has
degraded the existing beneficial use of hydropower produc-
tion. We disagree.
Pursuant to CWA § 401, 33 U.S.C. § 1341, states establish
the minimum water quality protections for projects requiring
a federal license to discharge into navigable waters. See also
33 U.S.C. § 1251(b) (“It is the policy of the Congress to rec-
ognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution
. . . .”). One aspect of water quality protection is an antidegra-
14252 SNOQUALMIE INDIAN TRIBE v. FERC
dation policy. See 40 C.F.R. § 131.12. While the term “antide-
gradation” is not defined within the CWA, the policy’s
purpose is that “[e]xisting instream water uses and the level
of water quality necessary to protect the existing uses shall be
maintained and protected.” Id. § 131.12(a)(1). State water
quality standards must at least meet these conditions, but may
be more stringent. See 33 U.S.C. §§ 1311(b)(1)(C), 1370; see
also 40 C.F.R. § 131.4(a) (“As recognized by section 510 of
the Clean Water Act [33 U.S.C. § 1370], States may develop
water quality standards more stringent than required by this
regulation.”).
In accordance with the CWA mandate, Washington State—
through its Department of Ecology—developed comprehen-
sive water quality standards to regulate all of the State’s navi-
gable waters. See Wash. Admin. Code 173-201A (1997).
Upon approval by the EPA, the Washington standard became
“the water quality standard for the applicable waters of that
State.” 33 U.S.C. § 1313(c)(3); see also Port of Seattle v. Pol-
lution Control Hearings Bd., 90 P.3d 659, 671 n.6 (Wash.
2004). Washington’s antidegradation policy effective at the
time of FERC’s 2005 revised license to PSE provided that
“[e]xisting beneficial uses shall be maintained and protected
and no further degradation which would interfere with or
become injurious to existing beneficial uses shall be allowed.”
Wash. Admin. Code 173-201A-070(1).
To renew its FERC license for operation of its hydroelec-
tric project, PSE sought and obtained a WQC from the state
certifying agency, Ecology. See 33 U.S.C. § 1341(a)(1); see
also 40 C.F.R. § 121.1(e). Ecology issued a WQC establish-
ing conditions that PSE’s hydroelectric plant must meet so as
not to degrade water quality and negatively affect “character-
istic” uses of the Snoqualmie River, a Class A water body.
See Wash. Admin. Code 173-201A-030(2)(b) (defining char-
acteristic uses for Class A water bodies as including water
supply, stock watering, fish and shellfish, wildlife habitat, rec-
reation, and commerce and navigation). One of the conditions
SNOQUALMIE INDIAN TRIBE v. FERC 14253
of the WQC involved minimum instream flow. Such a condi-
tion is an acceptable application of state and federal antide-
gradation regulations. See Pub. Util. Dist. No. 1 of Jefferson
County v. Wash. Dep’t of Ecology (“Jefferson County”), 511
U.S. 700, 719, 723 (1994).
FERC made compliance with the WQC a condition of the
License, as required by § 401 of the CWA. FERC adopted the
minimum water flows established in the WQC except for
requiring greater water flows during Labor Day weekend. On
March 1, 2005, FERC revised the License to require higher
minimum flows over the Falls at all times during May and
June. These higher minimum flow requirements necessarily
result in decreased diversion for use by PSE’s hydroelectric
project.
[11] Contrary to PSE’s claim, the increased minimum flow
requirements in FERC’s License afford greater—not
decreased—protection to the “beneficial uses” protected by
Washington’s antidegradation statute. Hydroelectric power is
not a “beneficial use” protected by Washington’s antidegrada-
tion policy. In Public Utility District No. 1 of Pend Oreille
County v. State Department of Ecology, the Supreme Court of
Washington construed the term “beneficial uses” to include
the enumerated characteristic uses of the water body poten-
tially affected by the proposed project.5 51 P.3d 744, 759
(Wash. 2002) (en banc) (citing Wash. Admin. Code 173-
201A-030, 173-201A-070); see also Dimidowich v. Bell &
Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (stating that the
Ninth Circuit “will follow a state supreme court’s interpreta-
tion of its own statute in the absence of extraordinary circum-
5
Moreover, the Department of Ecology—the agency charged with
administering Washington’s water quality statutes—interprets the term
“beneficial uses” to exclude hydroelectric power generation. Under Wash-
ington law, we defer to Ecology’s interpretation of a state statute within
Ecology’s expertise. See Alvarez v. IBP, Inc., 339 F.3d 894, 911 (9th Cir.
2003) (citing Budget Rent A Car Corp. v. State Dep’t of Licensing, 31
P.3d 1174, 1180 (Wash. 2001) (en banc)).
14254 SNOQUALMIE INDIAN TRIBE v. FERC
stances”), modified at 810 F.2d 1517 (9th Cir. 1987). Because
hydroelectric power generation is not a “beneficial use” of the
Snoqualmie River, see Wash. Admin. Code 173-201A-030(2),
FERC’s increased minimum flows do not violate Washing-
ton’s antidegradation policy or the policies animating the
CWA.
[12] Whether FERC may impose additional, more stringent
requirements above the standards contained in a state’s WQC
has not been addressed to date by any federal court. See, e.g.,
Jefferson County, 511 U.S. at 723 (refusing to read implied
limitations into a § 401 certification on the basis of a theoreti-
cal conflict between FERC’s authority under the FPA and the
state’s authority under the CWA). As PSE correctly noted, a
federal licensing agency lacks authority to reject WQC condi-
tions in a federal permit. See Am. Rivers, Inc. v. FERC, 129
F.3d 99, 110-11 (2d Cir. 1997); U.S. Dep’t of the Interior v.
FERC, 952 F.2d 538, 548 (D.C. Cir. 1992); Roosevelt Cam-
pobello Int’l Park Comm’n v. EPA, 684 F.2d 1041, 1056-57
(1st Cir. 1982). But FERC did not reject the WQC standards;
rather, it incorporated them in its License and strengthened
them.
[13] We hold that FERC may require additional license
conditions that do not conflict with or weaken the protections
provided by the WQC. See Pub. Serv. Co. of Colo., 79
F.E.R.C. ¶ 61,148, at 61,631 n.38 (1997); Noah Corp., 57
F.E.R.C. ¶ 61,170, at 61,601-02 (1991); Carex Hydro, 52
F.E.R.C. ¶ 61,216, at 61,769 (1990). FERC’s increase in
minimum water flows is not contrary to, nor did it weaken,
the minimum flow requirements in Ecology’s WQC. At mul-
tiple points in the relicensing proceeding, Ecology stressed to
PSE and FERC that the WQC instream flows would be mini-
mum, not maximum, flows. Ecology conveyed that, “[a]s long
as FERC requires the minimum instream flow conditions pro-
posed for the 401 water quality certification, we see no con-
flict between the certification and the license.” Implicit in this
statement is the conclusion that higher flows would not harm
SNOQUALMIE INDIAN TRIBE v. FERC 14255
beneficial uses of the Snoqualmie River. While it might not
always be true that mandating higher minimum flows than
those in a WQC would be permissible, we think it is permissi-
ble in this case.
C
[14] Finally, we hold that the FERC decision was supported
by substantial evidence and demonstrates that the Commis-
sion properly balanced the beneficial public purposes speci-
fied in § 10 of the Federal Power Act. The water flow
requirements adopted by FERC in the First Rehearing Order
were carefully considered during the thirteen-year relicensing
proceeding and were included in the option recommended in
the final EIS.6 The final EIS found that Flow Option C, with
1,000 cfs daytime flow for May and June, would meet the
widest variety of important objectives among the different
flow options considered and would enhance the Falls’ cultural
value. FERC found that a greater amount of water flow will
produce a greater amount of mist, in terms of water particles,
which is important to the Snoqualmie Tribe’s religious prac-
tice. Thus, it was not arbitrary or capricious for FERC to con-
clude that increasing the minimum flow during May and June
to 1,000 cfs would augment the Tribe’s religious experience
and result in a better balance of interests.
[15] The record also demonstrates that FERC carefully
weighed the implications of its decision for the Tribe’s reli-
gious experience against its effect on PSE’s bottom line.
FERC noted that “the Falls are of great religious significance
to the Snoqualmie Tribe, and the level of spray and resulting
mist produced by water flowing over the Falls is a critical
component of their spiritual experience. . . . [The flows] rec-
ommended in the final EIS track the seasonal variation in
flows at the Falls, . . . [and] would provide a greater threshold
6
PSE concedes that “careful analysis . . . was undertaken in preparation
of . . . FERC’s environmental impact statement.”
14256 SNOQUALMIE INDIAN TRIBE v. FERC
for mist during these months.” FERC detailed the costs of the
increased flows, which resulted in a $458,000 reduction in the
net annual benefit to PSE of $10,953,000, and concluded that
“the importance of the mist at this site to the Snoqualmie
Tribe” justified “the relatively small effect on net annual ben-
efit.” That judgment is not arbitrary or capricious.
VI
In its decision to relicense the Snoqualmie Falls hydroelec-
tric project, FERC did not violate RFRA or § 106 of NHPA.
FERC’s adoption of minimum water flows greater than those
included in the WQC was not contrary to, and did not
weaken, the WQC’s minimum flows requirement and was
supported by substantial evidence. The parties shall bear their
own costs.
PETITIONS DENIED.