ELR Citation: ELR 20245
No(s). 05-73064 (9th Cir. Dec 12, 2006)

The court denied a petition to review the Federal Energy Regulatory Commission's (FERC's) decision not to initiate formal consultation with National Oceanic and Atmospheric Administration (NOAA)-Fisheries about the operation of a hydroelectric project. The project is operated by a utility under a 30-year license that FERC issued in 1980. The petitioners seek the consultation in order to protect Chinook salmon that were declared a threatened species in 1999. The Endangered Species Act (ESA), however, imposes no duty to consult about activities conducted by the utility pursuant to the previously issued, valid FERC license. The ESA and the applicable regulations mandate consultation with NOAA-Fisheries only before an agency takes some affirmative agency action, such as issuing a license. Here, FERC took no affirmative action concerning the utility's existing license that would trigger the ESA's consultation requirements.