Turlock Irrigation District v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 24, 2014 Decided May 15, 2015
No. 13-1250
TURLOCK IRRIGATION DISTRICT AND MODESTO IRRIGATION
DISTRICT,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
TUOLUMNE RIVER TRUST, ET AL.,
INTERVENORS
Consolidated with 13-1253
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
John A. Whittaker IV argued the cause for petitioners
Turlock Irrigation District and Modesto Irrigation District. With
him on the briefs was Erica E. Stauffer.
Mary Catherine Race argued the cause for petitioner
Tuolumne River Trust and Intervenors. On the briefs were
Richard Roos-Collins, Julie Gantenbein, Nicholas Niiro, Robert
A. Salerno, and Peter H. Day.
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Lisa B. Luftig, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. On the brief were
David L. Morenoff, Acting General Counsel, Robert H. Solomon,
Solicitor, Lona T. Perry, Senior Attorney, and Robert M. Kennedy
Jr., Attorney.
John A. Whittaker IV and Erica E. Stauffer were on the brief
for intervenors Turlock Irrigation District and Modesto Irrigation
District in support of respondent.
Richard Roos-Collins, Julie Gantenbein, Nicholas Niiro,
Robert A. Salerno, and Peter H. Day were on the brief for
intervenors Tuolomne River Trust and Conservation Groups in
support of respondent.
Before: PILLARD, Circuit Judge, and SILBERMAN and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: In the proceeding under
review, the Federal Energy Regulatory Commission determined
that La Grange Hydroelectric Project (“Project”) fell within the
mandatory licensing provisions of the Federal Power Act, 16
U.S.C. § 817(1), for three independent reasons, which we will
discuss more fully below. The owners of the Project, Turlock
Irrigation District and Modesto Irrigation District (collectively,
“Districts”) petition for review of FERC’s order, Turlock
Irrigation Dist. & Modesto Irrigation Dist., Order on
Rehearing, Clarifying Intervention Status, and Denying Stay
Pending Judicial Review, 144 FERC ¶ 61,051 (July 19, 2013),
contending that the Project does not fall within FERC’s
licensing jurisdiction. The Tuolumne River Trust and other
conservation groups (collectively, “Trust”) petition for review
of FERC’s order, arguing that FERC erred by not finding that it
3
had licensing jurisdiction for four reasons instead of three. For
the reasons set forth more fully below, we conclude that FERC’s
jurisdictional determinations were supported by substantial
evidence and deny the Districts’ petition for review. We dismiss
the Trust’s petition as it raises no justiciable case or controversy.
BACKGROUND
Between 1891 and 1893, the Districts constructed the
regional La Grange facility, which consisted of a dam at River
Mile1 (“RM”) 52.2 of the Tuolumne River, impounding the
waters of the river and creating a reservoir for the purpose of
irrigating river valley farmland. See Appendix 1 for a map of
the region. In 1924, the Districts expanded the facility and its
purpose by the construction of the La Grange Powerhouse for
the production of hydroelectricity. The Powerhouse was
comprised of a smaller unit with two 500 kilowatt generators,
and a larger unit with a 3750 kilowatt generator. In 1989,
Turlock replaced the Powerhouse’s turbines and generating
units.
In June 2011, FERC received an inquiry from the National
Marine Fisheries Service concerning the status of the theretofore
unlicensed La Grange Hydroelectric Project. In response to the
inquiry, Commission staff undertook a review of the Project to
determine whether it is subject to the Commission’s mandatory
licensing jurisdiction under the Federal Power Act (“FPA”).
Turlock Irrigation Dist. & Modesto Irrigation Dist., 141 FERC
¶ 62,211 (Dec. 19, 2012). FERC provided notice to the Districts
and other interested parties of its pending jurisdictional
determination. On December 19, 2012, the Director of the
Division of Hydropower Administration and Compliance issued
an order determining that the Project did require licensure within
1
River Miles are measured from the mouth of a river (RM 0).
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the jurisdiction of the Commission under the FPA and ordered
the Districts to proceed to come into compliance with the
requirements of licensure. Id. In the decision, the Director
concluded that the licensure was required under three governing
provisions of 16 U.S.C. § 817(1): the Project was (1) located on
a navigable water of the United States, (2) occupied public lands
of the United States, or (3) if the stream were not navigable, it
was in any event one over which Congress had jurisdiction
under its authority to regulate commerce. Thereafter, the
Districts and the Trust petitioned the Commission for rehearing
of the staff-level decision. The Districts argued that the Project
was not within the licensure provisions of the FPA. The Trust
contended that the Director’s opinion erred in not assigning a
fourth reason for imposing the licensing requirement: the Trust
argued that the Project required licensure because it formed a
complete unit of development with the Don Pedro Project, a
neighboring federally licensed hydroelectric project. The
Commission ruled against the Districts on all three grounds of
their appeal. It further concluded that it need not determine
whether the fourth ground asserted by the Trust was applicable,
as it would not change the result in any event. The Districts and
the Trust now petition this court for review of the Commission’s
order. For the reasons set forth below, we deny the petition of
the Districts and dismiss the petition of the Trust.
ANALYSIS
The Federal Power Act renders unlawful the unlicensed
construction, operation, or maintenance of any “dam, water
conduit, reservoir, power house, or other works incidental
thereto across, along, or in” any waters meeting statutory
criteria. More specifically, and as relevant here, such licensure
is required where the impounded waters are “navigable waters
of the United States, or upon any part of the public lands or
reservations of the United States . . . or . . . over which Congress
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has jurisdiction under its authority to regulate commerce with
foreign nations and among the several States . . . .” 16 U.S.C.
§ 817(1). The Commission found the Tuolumne River to be
covered by all three of the quoted criteria. The Trust argues that
while the Commission reached the right result that the Project is
required to be licensed, it should have ordered that the Project
be licensed as part of a single unit with another hydroelectric
project, the Don Pedro Project, 2.6 miles upstream from the La
Grange Project.
I. The Trust’s Petition
Before determining the merits of the cause, we must first
satisfy ourselves that we have jurisdiction. One element of
jurisdiction is standing. There is no question that the Districts
have standing to bring their current petition. They are entities
regulated by the order under review, and the relief prayed would
alleviate the harm asserted. They allege, and it is evident, that
the acts of the Commission have caused the injury of which they
complain, that is, that they must submit to licensure. It is
equally evident that the relief sought in the current litigation, the
vacating of the Commission’s order, would alleviate that harm.
The same is not true of the Trust.
The Trust seeks to have the Project made subject to the
licensure requirements of the FPA. The Commission entered an
order declaring that the Project is subject to the licensing
requirements of the FPA. The Trust does not seek to have the
court change the decision, but only asks the court to tell the
Commission that it should do so for four reasons instead of
three. Unlike Becket, the Trust does not speak of “do[ing] the
right deed for the wrong reason.” T.S. Eliot, Murder in the
Cathedral, Act 1. Rather, it accuses the Commission of doing
the right thing for too few reasons. This does not establish
standing. Because standing “is an essential and unchanging part
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of the case-or-controversy requirement of Article III,” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Trust must
establish it has standing before we may exercise jurisdiction
over its claims, County of Delaware, Pa. v. Department of
Transp., 554 F.3d 143, 147 (D.C. Cir. 2009).
It is well established “that the irreducible constitutional
minimum of standing contains three elements.” Lujan, 504 U.S.
at 560. “To establish constitutional standing, a petitioner must
show an actual or imminent injury in fact, fairly traceable to the
challenged agency action, that will likely be redressed by a
favorable decision.” Exxon Mobil Corp. v. FERC, 571 F.3d
1208, 1219 (D.C. Cir. 2009). An injury in fact is “an invasion
of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (quotations and citations
omitted).
The Trust did not suffer an injury in fact because the
Trust received exactly what it sought. FERC accepted some of
the jurisdictional theories advanced by the Trust, and found that
the La Grange Project was required to be licensed. The Trust
argues that it is aggrieved because FERC’s refusal to license La
Grange and the Don Pedro Project in a single proceeding
doubles the cost the Trust must bear in order to actively
participate in both licensing proceedings, and frustrates the
creation of a coordinated fish passage through the two dams,
thus resulting in a decline to the fish population. This decline in
fish population, they argue, reduces the number of tourists who
come to observe the spawning salmon, thus reducing the money
the Trust will make from guided tours.
Neither of the Trust’s asserted injuries satisfies the
constitutional requirement of injury in fact. We have previously
recognized that the expenditure of resources on advocacy is not
a cognizable Article III injury. See Center for Law and Educ. v.
Department of Educ., 396 F.3d 1152, 1162 n.4 (D.C. Cir. 2005)
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(“[T]o hold that a lobbyist/advocacy group had standing to
challenge government policy with no injury other than injury to
its advocacy would eviscerate standing doctrine’s actual injury
requirement.” (citing Sierra Club v. Morton, 405 U.S. 727,
739–40 (1972))). This is true whether the advocacy takes place
through litigation or administrative proceedings. See Nat’l
Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011)
(concluding that time and money spent “submitting comments
to the EPA” and “testifying before the United States Senate”
does not suffice to establish an injury in fact). “The mere fact
that an organization redirects some of its resources to litigation
and legal counseling in response to actions or inactions of
another party is insufficient to impart standing upon the
organization.” Nat’l Taxpayers Union, Inc. v. U.S., 68 F.3d
1428, 1434 (D.C. Cir. 1995) (quotations and citation omitted).
The Trust’s decision to expend more of its resources by
participating in both Don Pedro’s and La Grange’s licensing
proceedings is the type of alleged harm that we have repeatedly
held does not qualify as an injury in fact.
The Trust, relying on this Court’s decision in Equal
Rights Center v. Post Properties, Inc., argues that if a
“defendant’s allegedly wrongful action prompts an organization
to ‘increase[] the resources [it] must devote to programs
independent of its suit,’ . . . the organization has shown an injury
in fact.” 633 F.3d 1136, 1138 (D.C. Cir. 2011) (quoting Spann
v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). But
Equal Rights Center is inapposite. As we noted in that case, an
organization must allege that the defendant’s conduct
“perceptibly impaired” the organization’s ability to provide
services in order to establish injury in fact. 633 F.3d at 1138–39
(citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79
(1982)). The Trust does not allege impairment of its ability to
provide services, only impairment of its advocacy. As we noted
above, this will not suffice.
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The Trust’s second asserted injury, a decline in tourism
revenue, is also insufficient to satisfy the injury in fact
requirement. It is purely conjectural. The Trust theorizes that
if La Grange and Don Pedro are not licensed in a single
proceeding, then the two projects will not have a coordinated
fish passage, which will lead to a decline in the fish population,
potentially reducing the number of tourists to the river and,
consequently, the amount of money the Trust will make off of
tourism. “This theory stacks speculation upon hypothetical
upon speculation, which does not establish an ‘actual or
imminent’ injury.” New York Regional Interconnect, 634 F.3d
at 587. We may reject as overly speculative the Trust’s
assumption regarding the future behavior of third parties. See
Crete Carrier Corp. v. EPA, 363 F.3d 490, 494 (D.C. Cir. 2004).
Moreover, the Trust’s prediction that separate licensing
proceedings will result in the lack of a coordinated fish passage
hypothesizes as to the outcome of future legal proceedings, and
is thus “too speculative to invoke the jurisdiction of an Art[icle]
III Court.” Platte River Whooping Crane Critical Habitat
Maintenance Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir. 1992)
(quoting Whitmore v. Arkansas, 495 U.S. 149, 157 (1990)). The
record before us does not establish that FERC cannot coordinate
fish passage between La Grange and Don Pedro despite separate
licensing. See Nov. 14, 2014 FERC 28(j) Letter and attachment
at 2, 7–8. Indeed, FERC suggested at oral argument that it
intended to do so. Oral Arg. Rec. at 30:50–32:05, 33:25–34:00.
The FPA empowers FERC to formulate comprehensive plans
for, among other things, “enhancement of fish and wildlife.” 16
U.S.C. § 803(a)(1). On this record, it is wholly speculative to
suggest that separate licensing will lead to an uncoordinated fish
passage.
The Trust also seeks to proceed under associational
standing, arguing that a decline in fish population will diminish
its members’ ongoing use and enjoyment of the river for fly
fishing. To establish standing as an association, the Trust must
9
demonstrate that at least one of its members meets the three
element test set forth in Lujan. See NO Gas Pipeline v. FERC,
756 F.3d 764, 767 (D.C. Cir. 2014). However, the notion that
a lack of a coordinated fish passage will lead to a decline in the
fish population which in turn will lead to a decrease in tourism
is doubly speculative, and thus cannot be the basis for an injury
in fact for either the Trust or its members. As noted above, we
need not accept the Trust’s assertion that fish passage will not be
coordinated. Moreover, we have repeatedly held that litigants
cannot establish an Article III injury based on the “independent
action[s] of some third party not before th[is] court.” Florida
Audubon Soc. v. Bentsen, 94 F.3d 658, 670 (D.C. Cir. 1996) (en
banc) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S.
26, 42 (1976)). This is because “predictions of future events
(especially future actions taken by third parties)” are too
speculative to support a claim of standing. United Transp.
Union v. ICC, 891 F.2d 908, 912 (D.C. Cir. 1989). The Trust’s
theory of standing rests upon unsupported presumptions
regarding fish population, and guesswork about what future
tourists might do. This is insufficient to support a claim of
standing.
Because the Trust has failed to establish standing either
for itself or on behalf of its members, we dismiss its petition for
lack of jurisdiction.
II. The Petition of the Districts
As suggested above, our jurisdiction to entertain the
petition of the Districts is unquestionable, and we therefore will
proceed to determine whether their allegations merit relief.
They do not. The Districts argue that FERC acted arbitrarily
and capriciously and without substantial evidence in making its
determination that the Tuolumne River was navigable, that the
reservoir was upon public land to the United States, and that
even if the stream were not navigable, it was nonetheless one
over which Congress had jurisdiction under its authority to
10
regulate commerce. We disagree as to all three jurisdictional
findings.
When reviewing FERC’s hydroelectric licensing
decisions, “[w]e defer to the agency’s expertise . . . so long as its
decision is supported by ‘substantial evidence’ in the record and
reached by ‘reasoned decisionmaking,’ including an
examination of the relevant data and a reasoned explanation
supported by a stated connection between the facts found and
the choice made.” U.S. Dept. of Interior v. FERC, 952 F.2d 538,
543 (D.C. Cir. 1992) (quoting Electricity Consumers Resource
Council v. FERC, 747 F.2d 1511, 1513 (D.C. Cir. 1984)). If
supported by substantial evidence, FERC’s findings of fact are
conclusive. See Consolidated Hydro, Inc. v. FERC, 968 F.2d
1258, 1261 (D.C. Cir. 1992) (citing 16 U.S.C. § 825l(b)).
Moreover, “we are particularly reluctant to interfere with the
agency’s reasoned judgments” when its orders “involve complex
scientific or technical questions.” NRG Power Marketing, LLC
v. FERC, 718 F.3d 947, 953 (D.C. Cir. 2013) (quoting B&J Oil
& Gas v. FERC, 353 F.3d 71, 76 (D.C. Cir. 2004)).
A. Navigability Determination
The Districts first challenge FERC’s finding that La
Grange is located on a navigable water of the United States.
The Districts argue that FERC’s navigability finding is not
supported by substantial evidence. They also argue that FERC
failed to present credible evidence of the potential commercial
use to which the Tuolumne River may be put. We disagree, and
conclude that FERC reasonably found that the Tuolumne River
is suitable for use in interstate commerce, and that this finding
was supported by substantial evidence.
Under the FPA, navigable waters are defined as:
[T]hose parts of streams . . . which either in their natural or
improved condition notwithstanding interruptions between
the navigable parts of such streams or waters by falls,
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shallows, or rapids compelling land carriage, are used or
suitable for use for the transportation of persons or property
in interstate or foreign commerce.
16 U.S.C. § 796(8). A waterway is navigable within that
definition if “(1) it presently is being used or is suitable for use,
or (2) it has been used or was suitable for use in the past, or (3)
it could be made suitable for use in the future by reasonable
improvements.” Rochester Gas & Elec. Corp. v. Federal Power
Commission, 344 F.2d 594, 596 (2d Cir. 1965) (emphases in
original); see also FPL Energy Maine Hydro LLC v. FERC, 287
F.3d 1151, 1155 (D.C. Cir. 2002) (same). “Navigability can be
established based on any of these three requirements; each alone
is sufficient.” FPL Energy, 287 F.3d at 1155. In making the
determination of navigability of the Tuolumne, FERC relied on
evidence bearing on each of the three.
As to the present navigability, the Commission found that
the Tuolumne River is presently navigable from its confluence
with the navigable San Joaquin River at least to the La Grange
Project tailrace—the channel carrying water away from the
powerhouse—and with a short portage to the base of the La
Grange Dam at RM 52.2. Turlock Irrigation Dist., 144 FERC
¶ 61,051 P 34. The evidence supporting this finding included a
declaration submitted by the Trust reporting the experience of a
kayaker who had navigated the waters from a point
approximately 1.5 miles downstream of the La Grange Dam to
the base of the Dam. Additionally, the Commission relied on
evidence from the California Department of Fish and Game to
the effect that the Department’s employees have traveled
upstream to an area of the river just below the powerhouse.
We have previously found “evidence of recreational
use,” as well as evidence of “‘[a]ny similar personal or private
use not involving recreation,’” relevant to establishing a river’s
“‘suitability for commercial navigation.’” FPL Energy, 287
12
F.3d at 1157 (quoting Kennebec Water District, 88 FERC
¶ 61,118, 61,304 (July 28, 1999)). As the Supreme Court has
recognized, “personal or private use by boats demonstrates the
availability of the stream for the simpler types of commercial
navigation.” U.S. v. Appalachian Elec. Power Co., 311 U.S.
377, 416 (1940).
The governmental boat use provides sufficient evidence
that the River is currently navigable. The evidence in the record
establishes that between October 2011 and January 2012,
California DFG crews conducted weekly salmon surveys,
generally traveling upstream to RM 51.5, and at times as far as
RM 51.9, a point upstream of the Project’s tailrace. Joint
Appendix 358–60. This evidence of weekly trips is more
substantial than the evidence of boating we found sufficient in
FPL Energy. 287 F.3d at 1159 (concluding that “[three] test
canoe trips provide sufficient evidence that the Stream is
navigable”); see also Montana Power Co. v. Federal Power
Commission, 185 F.2d 491, 493–94 (D.C. Cir. 1950)
(concluding that use of the river by “several steamboats” was
sufficient to support a navigability finding).
The Districts contend that FERC was required to
demonstrate “that the river between the Powerhouse and Dam”
was navigable. Districts’ Br. 12. We disagree. The FPA does
not require FERC to show that the river is navigable “through
the La Grange site,” Districts’ Reply Br. 5 (emphasis added),
only that some part of the project is located on navigable waters,
see 16 U.S.C. § 817(1) (requiring licensing if the “dam, water
conduit, reservoir, power house, or other works incidental
thereto,” are located “in any of the navigable waters of the
United States” (emphasis added)). The tailrace is one of the
project works that make up the La Grange Project. See Report
of Turlock Irrigation District to FERC on the La Grange Project
at 1 (Oct. 11, 2011), Joint Appendix 72 (listing the tailrace as
part of the La Grange Project); see also 16 U.S.C. § 796(12)
(defining “project works” as the “physical structures of a
13
project”). Therefore, FERC need only show that the river up to
the tailrace is navigable in order to assert jurisdiction over the
La Grange Project. See, e.g., Sheldon Jackson College, 54
FERC ¶ 61,263, 61,763–61,764 (Mar. 8, 1991) (licensing
required where only a hydroelectric project’s tailrace was
located on navigable waters).
The Commission also found that the Tuolumne was
navigable in the past at least up to the falls where the La Grange
Dam is now located. This finding was based on an 1850
Stockton Times article, which stated that during the winter of
1849, gold seekers used whale boats to travel up the Tuolumne
River as far as Jacksonville, a town located 20 miles upstream
of the La Grange Dam. The Commission also relied upon an
1851 finding by the California legislature that the Tuolumne was
navigable up to the “foot of the rapids” that then existed at the
present day site of the La Grange Dam. Turlock Irrigation Dist.,
144 FERC ¶ 61,051, PP 57–64.
The Districts argue that the 1850 newspaper article
FERC used to establish that whaleboats traveled up the
Tuolumne River is unreliable as it conflicts with the Districts’
expert report discussing the physical characteristics of the River
in 1850. They also argue that FERC’s reliance on the 1851
findings of the California legislature that the Tuolumne River
was navigable up to the “foot of the rapids” was misplaced
because “[s]tate law is not determinative of navigability under
federal law,” State of Wisconsin v. Federal Power Commission,
214 F.2d 334, 336–37 (7th Cir. 1954), and because the
California legislature later changed its findings and moved the
head of navigation downstream.
In disputing the reliability of the 1850 newspaper article,
the Districts rely on the expert report of their historian, which
states that based on “the falls at La Grange, the river gradient,
upstream falls or rapids and the topography of the river canyon
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that would have made portaging extremely difficult . . . it seems
safe to conclude that navigation by whale boats above La
Grange was virtually impossible.” Report of Dr. Alan Paterson
at 12, Joint Appendix 302 (emphasis added). As we stated
above, FERC need only show that the river was navigable up to
the Project’s tailrace. Accordingly, the Districts’ contention that
the river above the falls was non-navigable does not undermine
FERC’s conclusion that the river was navigable in the past up to
the La Grange Dam. See Turlock Irrig. Dist., 144 FERC
¶ 61,051 P 60 (“[I]t is sufficient to find, as we do here, that the
river was navigable in the past at least up to the falls, where the
La Grange Dam is now located.”).
The Districts are correct that the 1851 findings of the
California legislature are not determinative of navigability under
federal law. See Brewer-Elliott Oil & Gas Co. v. U.S., 260 U.S.
77, 87 (1922) (“[T]he navigability of the stream is not a local
question for the state tribunals to settle.”). Indeed, fundamental
to our system of government is the notion that the laws of the
United States “form the supreme law of the land, ‘anything in
the constitution or laws of any state to the contrary
notwithstanding.’” M’Culloch v. Maryland, 17 U.S. (4 Wheat.)
316, 406 (1819) (quoting U.S. CONST. art. VI, cl. 2). But this
point is not dispositive, as nothing prevents FERC from citing
state navigability determinations as evidence of the historic
navigability of a river for federal law purposes. Nor does
evidence that the California legislature later amended its
determination defeat a finding of navigability. “When once
found to be navigable, a waterway remains so.” Appalachian
Elec. Power Co., 311 U.S. at 408.
FERC’s evidence of historic navigability is not
overwhelming. Nor is it so compelling as to completely
foreclose any argument that the River was non-navigable. But
evidence of past navigability need not be large to sustain a
finding of navigability. See id. at 416. When viewed as a
whole, the evidence is sufficient to support FERC’s finding that
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the River was used in the past up to the falls where La Grange
is now located.
Lastly, the Districts argue that FERC failed to present
credible evidence of the potential commercial use to which the
Tuolumne River may be put. This argument also fails. We have
previously rejected the notion that “FERC’s navigability test
was flawed because FERC failed to identify the possible
commercial use to which the Stream may be put.” FPL Energy,
287 F.3d at 1158. As we explained, “[t]he test is whether the
waterway is presently ‘suitable for use for the transportation of
persons or property in interstate or foreign commerce,’ not
whether the waterway is presently suitable for a specific type of
commercial activity named by FERC and approved of by an
opposing party.” Id. (quoting 16 U.S.C. § 796(8)).
To uphold FERC’s navigability determination, “we need
only find that the evidence on which the finding is based is
substantial.” FPL Energy, 287 F.3d at 1160. The “substantial
evidence” standard “requires more than a scintilla, but can be
satisfied by something less than a preponderance of the
evidence.” Id. We conclude that FERC’s evidence of actual use
in the past, together with current use of the Tuolumne River by
California DFG crews, constitutes substantial evidence
supporting FERC’s finding that La Grange is located on a
navigable water of the United States.
B. Federal Lands Determination
The Districts take issue with FERC’s determination that the
La Grange Reservoir extends onto federal lands. The Districts
argue that FERC acted arbitrarily by ignoring their water level
gradient analysis, which purported to show that the reservoir
ended about 5,300 feet upstream of the dam, short of federal
lands. They also argue that FERC’s attempt to calculate the
precise point where the reservoir ends disregards the practical
limitations of the data, namely that the results of FERC’s
16
backwater analysis can have no better than a 0.5 to 1.0 foot
degree of accuracy. We reject both arguments, and hold that
FERC properly relied on the results of its backwater analysis to
conclude that the La Grange reservoir extends onto federal
lands.
The FPA requires licensure of a hydroelectric plant if its
“dam, water conduit, reservoir, power house, or other works
incidental thereto” are located “upon any part of the public lands
or reservations of the United States.” 16 U.S.C. § 817(1). The
Commission found that the La Grange reservoir extends onto
federal lands located approximately 5,800 feet upstream of the
La Grange Dam. To support this determination, the
Commission relied upon its backwater analysis, as well as a
contour analysis submitted by the National Marine Fisheries
Service.
Contrary to the Districts’ arguments, FERC also considered
the Districts’ water level gradient analysis when making its
federal lands determination. It found the results “misleading.”
Turlock Irrig. Dist., 141 FERC ¶ 62,211 P 31. As FERC
explained in its order, the Districts’ analysis “assumes that
reservoir water surface gradients generally appear flat and
uniform, whereas river gradients in steeper areas appear higher
and follow the river bed.” Id. However, because reservoirs are
influenced by the terrain, they can have a gradient such that their
surface level varies, depending on where it is measured. Id.
Accordingly, FERC found that focusing on the gradient of the
water surface elevation “can lead to incorrect conclusions about
the extent of the reservoir.” Id.
Instead, FERC relied on the results of its backwater
analysis to determine whether the La Grange reservoir extends
onto federal lands. FERC has previously defined “backwater”
as “the amount the depth of flow has been increased by an
obstruction such as a dam.” Turlock Irrig. Dist., 141 FERC
¶ 62,211 P 28. (citing Public Utility Dist. No. 1 of Pend Oreille
17
County, Washington, 77 FERC ¶ 61,146, 61,543 n.11 (Nov. 13,
1996)). Under this definition, the upstream extent of the
reservoir is the point where the depth of the river for “with-dam”
and “without-dam” conditions are equal. Turlock Irrig. Dist.,
141 FERC ¶ 62,211 P 28. When performing this analysis,
FERC calculates the depth for “with-dam” and “without-dam”
conditions, plots the data as two lines on a graph, and then,
relying on “eye observation,” determines the point of tangency,
i.e., the point where the two lines meet. Turlock Irrig. Dist., 144
FERC ¶ 61,051 P 76. This point denotes the end of the
reservoir. Id.
Both FERC and the Districts used this method to
determine the end point of the reservoir, and their calculations
regarding the depth of the river for “with-dam” and “without-
dam” conditions were the same. Compare Joint Appendix
175–79 (the Districts’ calculations), with Joint Appendix 421–27
(FERC’s calculations). FERC and the Districts differed,
however, in their interpretation of this data. The Districts
interpreted the data as suggesting that the reservoir ended
somewhere around 5,300 feet, before the federal lands
boundary. FERC found that the Reservoir extended more than
11,300 feet upstream of the La Grange Dam, reaching BLM
land. FERC opined that this discrepancy in interpretation was
a result of the graphs upon which the Districts relied:
The Districts reach a different conclusion because they
plot their results on smaller graphs with a more
compressed scale and use thicker lines to depict the
with-dam and without-dam conditions. This makes the
two lines appear to converge at a point somewhere
between 4,700 and 5,300 feet upstream of the La Grange
Dam, downstream of the BLM land boundary. [FERC]
[s]taff, using slightly larger graphs with a less
compressed scale and thinner lines, determined the
correct point of tangency as occurring much farther
upstream, more than 11,300 feet upstream of the La
18
Grange Dam, and well upstream of the BLM
boundary. . . . . Staff used the same method as the
Districts, but its graphs showed the results more clearly.
Turlock Irrig. Dist., 144 FERC ¶ 61,051 P 77.
The Districts frame their arguments as objections to the
techniques or models employed by FERC, but they are actually
objecting to FERC’s interpretation of the data. The Districts
complain that FERC’s interpretation of the data is erroneous
because it ignores the 0.5 to 1.0 foot degree of accuracy
limitation inherent in any backwater analysis. They assert that
“[a]pplying this degree of accuracy, the upstream end of the La
Grange Reservoir would extend no further than 5,400 ft
upstream of the La Grange Dam.” Districts’ Request for
Rehearing at 23 (Jan. 18, 2013). Without more, such conclusory
statements do not provide sufficient evidence for us to overturn
FERC’s interpretation.
The Districts nowhere identify a methodology for taking
the degree of accuracy into account. In fact, in their 34-page
request for rehearing, the Districts devote only two sentences to
this issue, neither of which explains how FERC ought to adjust
its interpretation of the data based on the degree of accuracy.
Despite this lack of explanation, the Districts ask us to overturn
FERC’s determination. This we will not do. “We are reluctant
to interfere with an agency’s choice of methodology so long as
it is not irrational.” California v. Watt, 668 F.2d 1290, 1320
(D.C. Cir. 1981). In the absence of evidence establishing that
FERC’s interpretation was erroneous, we reject the Districts’
argument that FERC acted arbitrarily in its interpretation of the
backwater analysis.
However, even if we were to disregard FERC’s
interpretation of the backwater analysis, we could still sustain
FERC’s conclusion that the reservoir extends onto BLM land
based on the contour analysis survey performed by the National
Marine Fisheries Service. FERC often relies on contour lines to
19
determine the length of a reservoir. See 18 C.F.R.
§ 4.41(h)(2)(i)(A)(1) (contour lines are the “preferred method”
for describing project boundaries); Districts’ Request for
Rehearing at 25, Joint Appendix 452 (“A brief sampling of other
licenses shows that the Commission often uses a contour line for
establishing a reservoir’s upstream boundary.”). In this case, the
Fisheries Service used a contour elevation projected from the La
Grange Dam’s spillway crest elevation of 296.46 feet mean sea
level to demonstrate that the La Grange Reservoir extends onto
BLM land. FERC found that this analysis “conclusively
demonstrate[s] that the La Grange Reservoir occupies federal
lands.” Turlock Irrig. Dist., 144 FERC ¶ 61,051 P 86.
The Districts argue that the Fisheries Service’s analysis
was flawed because it used the spillway crest elevation of
296.46 feet mean sea level as the normal maximum surface
elevation, as opposed to using the level at which the Districts
normally operate La Grange. FERC rejected this argument,
noting that the “normal maximum surface elevation of a
reservoir is typically defined as the crest of the dam or
spillway.” Turlock Irrig. Dist., 144 FERC ¶ 61,051 P 85.
“[B]ecause the top of the [La Grange Dam] is almost entirely a
spillway,” the spillway crest defines the reservoir’s normal
maximum surface elevation, “not some lower elevation that a
project operator may choose to maintain for operational
reasons.” Turlock Irrig. Dist., 141 FERC ¶ 62,211 P 32 n.64.
This conclusion is consistent with FERC’s data documenting the
elevation of the reservoir between the years 2009 and 2011,
Turlock Irrig. Dist., 144 FERC ¶ 61,051 P 85 n.119, as well as
the Districts’ backwater analysis, which used 296.46 feet mean
sea level as the normal water surface elevation, Joint Appendix
158.
“[W]hen agency orders involve complex scientific or
technical questions . . . we are particularly reluctant to interfere
with the agency’s reasoned judgments.” B&J Oil and Gas, 353
F.3d at 76. Where, as in this case, the agency has “examined the
20
relevant data and has articulated an adequate explanation for its
action,” we will defer to the agency’s decision. City of
Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003)
(quotations and citation omitted).
C. Commerce Clause Determination
Finally, the Districts challenge FERC’s finding that the
La Grange Project is subject to FERC’s mandatory licensing
jurisdiction based on Congress’s “authority to regulate
commerce with foreign nations and among the several States.”
16 U.S.C. § 817(1). In order to assert jurisdiction based on
Congress’s Commerce Clause authority, FERC must find that
the project (1) is located on Commerce Clause waters,
(2) affects interstate commerce, and (3) was “constructed” or
enlarged after 1935. See L.S. Starrett Co. v. FERC, 650 F.3d 19,
23 (1st Cir. 2011) (citing 16 U.S.C. § 817(1)). FERC interprets
“construction” as any increase in a project’s generating capacity,
i.e., an increase in either the installed capacity or actual capacity
of a project. See id. at 27 (upholding FERC’s interpretation of
“construction”). The installed capacity is the “maximum
potential generating capacity of a turbine generator,” whereas
the actual capacity is the “measured capacity upon installation,
which is affected by various site conditions.” Id. at 21 n.3.
FERC found that La Grange is located on Commerce
Clause waters, that the Project affects interstate commerce
through its connection to the interstate electrical grid, and that
the Project’s generating capacity increased in 1989 when the
Districts replaced the Powerhouse’s turbines and generating
units. FERC relied upon an engineering report submitted by the
Districts to support these findings. Turlock Irrig. Dist., 144
FERC ¶ 61,051, PP 87–103.
The Districts do not dispute that the Project is located on
Commerce Clause waters and affects interstate commerce.
Instead, they challenge FERC’s finding that “post-1935
21
construction . . . occurred when the Project’s generating capacity
increased in 1989.” Id. at P 87. Before we address the Districts’
specific challenges, however, some background is necessary.
A hydroelectric project generates energy using a turbine,
which converts flowing water to mechanical power, and a
generator, which converts the mechanical power to electric
energy. Id. at PP 90–91. With unlicensed projects, FERC
determines whether there has been an increase in the generating
capacity of a project by looking to whether the project’s
“installed capacity” has increased. The “installed capacity” of
a unit is the lesser of the rating output of the unit’s generator,
determined by looking at the nameplate or manufacturer’s
rating, or the unit’s turbine. Id. at PP 91–92.
FERC determined that La Grange’s original generators
were rated at 1,000 kW and 3,750 kW, for a combined total of
4,750 kW, while the replacement generators were rated at 1,231
kW and 3,693 kW, for a combined total of 4,924 kW. Id. at PP
94–95. Because the combined rated output of the replacement
generators was 174 kW higher than the combined rated output
of the original generators, FERC concluded that the 1989
rehabilitation increased La Grange’s installed capacity, and thus,
La Grange required licensure. Id. at PP 95–103.
The Districts present three arguments for overturning
FERC’s determination. First, the Districts argue that FERC
never demonstrated that 4,750 kW was the correct pre-
rehabilitation rating for the old generators. Second, the Districts
assert that FERC erred in comparing the generating capacity of
the new turbines to the generating capacity of the generators.
Such an “apples to oranges” analysis, they argue, is flawed
because it assumes the generators are 100 percent efficient,
instead of taking into account the “standard efficiency factor” of
the generators. Lastly, the Districts argue that even if FERC’s
finding was correct, FERC abused its discretion in asserting
22
jurisdiction over such a de minimis increase in generating
capacity. All three of the Districts’ arguments lack merit.
First, FERC adequately demonstrated that 4,750 kW was
the correct pre-rehabilitation rating for the old generators.
FERC based the 4,750 kW number on an engineering report
prepared by the Districts’ contractor, Bechtel (“Bechtel
Report”), and submitted to FERC by the Districts. The Bechtel
Report notes that La Grange is made up of two turbine generator
units, a smaller unit “with two-500 kW generators coupled to
each side,” and a larger unit “with one directly coupled 3750-
kW Allis-Chalmers generator.” Joint Appendix 103.
The Districts contend that the Bechtel Report never
explicitly refers to those ratings as the nameplate or
manufacturer’s rating, and thus, they reason, it was arbitrary for
FERC to rely on those ratings as if they were the nameplate
rating. Conspicuously absent from the Districts’ brief is an
alternative explanation for the ratings listed in the Bechtel
Report. The Districts never explain what those ratings refer to,
or why Bechtel would provide ratings other than the nameplate
rating. The Districts note that because the original units were
taken from another site, the generators’ capacity “may have been
different from what may have been stated on the units.”
Districts’ Br. 26. However, speculation as to the actual capacity
of the generators is irrelevant to a determination of the rated
output of the generators. See L.S. Starrett Co., 650 F.3d at 21
n.3 (noting difference between installed capacity and actual
capacity). In the absence of proof to the contrary, it was
reasonable for FERC to assume that the ratings listed in the
Bechtel Report were the manufacturer’s ratings for the
generators.
Second, the Districts argue that FERC erred by comparing
the generating capacity of the old generators to the generating
capacity of the new turbines rather than the new generators—an
erroneous “apples to oranges” comparison, in the Districts’
23
view. This argument fails. FERC’s analysis followed standard
industry practice and was based on the information the Districts
provided. The chart upon which FERC relied to find the rated
output of the new generators listed the capacity of the new units
(pairs of turbines and generators) in kilowatts, the standard
expression of generator capacity, and horsepower, the standard
expression of turbine capacity. Joint Appendix 108; see
Districts’ Rehearing Request at 29, Joint Appendix 456 (noting
that “[t]urbines are rated as horsepower,” and “[g]enerator
capacity is . . . rated as kilowatt output”). FERC’s comparison
of the old generators to the new generators rests on FERC’s
finding that the kilowatt values in the chart reflected the capacity
of the generators, while the horsepower values reflected the
capacity of the turbines. Turlock Irrig. Dist., 144 FERC
¶ 61,051 PP 96–98. That finding is reasonable in light of
standard unit-labeling practice. The Districts argue that this
finding is wrong, as evidenced by the fact that the kilowatt
figures and the horsepower figures match when horsepower is
converted to kilowatts. The Districts emphasize that generator
capacity cannot actually match turbine capacity because no
generator is 100 percent efficient, and that the figures FERC
used thus must not be generator figures at all, but are alternate
expressions of turbine capacity in kilowatts and horsepower.
However, “[s]tandard engineering practice . . . require[s]” that
a generator’s capacity be matched to the capacity of a turbine.
Report of Turlock Irrigation District to FERC on the La Grange
Project at 8 (Oct. 11, 2011), Joint Appendix 79; Turlock Irrig.
Dist., 144 FERC ¶ 61,051 P 90 (“[T]he rated output of a
generator is chosen to match the output of the turbine . . . .”
(citing Engineering and Design, Hydropower, at 5-20,
Department of the Army, Corps of Engineers, Engineer Manual
EM1110-2-1701 (Dec. 31, 1985))). The fact that the turbine and
generator figures were reported as matching therefore appears
unsurprising. The Districts failed to provide any clearer or
better data requiring a contrary conclusion. Thus, it was
24
reasonable for FERC to assume that the kilowatt values in the
chart reflected the capacity of the new generators.
Lastly, we reject the Districts’ argument the FERC
should have declined to exercise jurisdiction over La Grange
because the increase in generating capacity was minimal. FERC
contends that it does not have the discretion to decline to
exercise jurisdiction over a hydroelectric project that meets the
statutory requirements. We need not go that far to resolve this
issue. It is sufficient to find, as we do here, that FERC did not
abuse its discretion in asserting jurisdiction over the La Grange
Project on the basis of post-1935 construction that resulted in an
increase in generating capacity of 174 kW. See L.S. Starrett
Co., 650 F.3d at 21–22 (affirming FERC’s assertion of
jurisdiction over a project that increased in generating capacity
by 86 kW).
CONCLUSION
For the reasons stated above, we deny the Districts’
petition for review because we conclude that FERC’s
jurisdictional determinations were supported by substantial
evidence, and reached by reasoned decisionmaking. We dismiss
the Trust’s petition for review for lack of jurisdiction.
So ordered.