ELR Citation: ELR 20913
No(s). 89-333 (U.S. May 21, 1990)

The Court holds that California's minimum flow rate requirements, which allow water to remain in a bypassed section of a stream and unavailable to drive hydroelectric generators, are preempted by the Federal Energy Regulatory Commission's (FERC's) minimum flow rates set under the Federal Power Act (FPA). The FPA establishes a broad and paramount federal regulatory role in hydropower development. Allowing California to impose significantly higher minimum stream flow requirements would interfere with FERC's comprehensive planning authority and constitute a veto of FERC's approval process. The preemptive effect and meaning of FPA §27, which preserves state authority in the regulatory scheme, is not a matter of first impression. The Court's 1946 decision in First Iowa Hydroelectric Cooperative v. FPC holds that §27 is limited to laws relating to proprietary rights involving the control, appropriation, use, or distribution of water in irrigation or for municipal uses. In First Iowa, the Court interpreted §27's reservation of limited powers to the states as part of the congressional scheme to divide state from federal jurisdiction over hydroelectric projects and to allow the supersedure of state laws by federal legislation where rights are not saved to the states. California's minimum flow requirements do not implicate proprietary rights. Moreover, since correction can be had by legislation, the Court is bound by stare decisis to 44 years of precedent that addresses a complex and long-enduring regulatory regime and implicates considerable reliance interests of licensees and other participants in the regulatory process.

[The circuit court's decision is published at 19 ELR 21303.]

Counsel for Petitioner
Roderick Walston
Attorney General's Office
455 Golden Gate Ave., San Francisco CA 94102
(415) 557-3920

Counsel for Respondent
Stephen Nightingale
Office of the Solicitor General
10th & Constitution Aves., Washington DC 20530
(202) 514-2251