ELR Citation: ELR 20011
No(s). 71-2012 (D.C. Cir. Nov 9, 1973)

The Federal Power Commission has authority under the Federal Power Act to license the utilization of surplus water from federal impoundments by the six completed or proposed thermal electric power plants in the Four Corners area of the southwestern United States. The FPC does not have the power to license such plants directly since they are not project works within the meaning of the Act, but the portion of the statute which empowers the Commission to license surplus water use is independent of the project works provision and thus applies to thermal as well as to hydroelectric plants. Although the project works language seems literally to include both types of facilities, an examination of the legislative history in conjunction with the Act's historical background and subsequent judicial interpretation shows that Congress intended the FPC's direct licensing power to extend only to hydroelectric plants. This conclusion is supported by the Commission's consistent view of the limited nature of its jurisdiction, and such an administrative interpretation is entitled to great weight when the statutory language is ambiguous and the Congress has failed to express disapproval. Noting that technological changes since the Act's passage have produced circumstances which the drafters could not have foreseen, and that the lack of a comprehensive regulatory scheme to govern power plant siting is deplorable, the court nonetheless points out that it may not redraft the statute. The question of whether any or all of the Four Corners power plants, two of which will withdraw water directly from federal impoundments and four of which withdraw or will withdraw water downstream from federal dams, fall under the FPC's licensing power for the use of surplus water is remanded to the Commission with instructions to determine whether any jurisdiction the FPC might have is affected in any way by the jurisdiction of another federal agency.

Counsel for Plaintiffs
Edward Berlin
Berlin, Roisman & Kessler
1712 N St., NW
Washington, DC 20036

Reid Chambers
UCLA School of Law
Los Angeles, CA 90024

Counsel for Defendants
Daniel Goldstein Asst. General Counsel
Federal Power Commission
Washington, DC 20426

J. Richard Tiano
441 G St., NW
Washington, DC 20001

Counsel for Intervenor Arizona Public Service Company
Harry A. Poth, Jr.
Richard M. Merriman
Peyton G. Bowman, III
Reid & Priest
1701 K St., NW
Washington, DC 20006

Counsel for Intervenor San Diego Gas & Electric Company
Robert W. Tollen
Chickering & Gregory
111 Sutter St.
San Francisco, CA 94104

Counsel for Intervenor Utah Power & Light Company
Sidney G. Baucom General Counsel
Robert Gordon
P.O. Box 899
Salt Lake City, UT 84110

Counsel for Intervenor El Paso Electric Company
William Duncan
Kemp, Smith, White, Duncan & Hammond
1500 First National Bank Building
El Paso, TX 79901

Counsel for Intervenor Nevada Power Company
Samuel P. Cowley
P.O. Box 230
Las Vegas, NV 89101

Counsel for Intervenor Department of Water & Power of the City of Los Angeles
Edward C. Farrell
P.O. Box 111
Los Angeles, CA 90051

Counsel for Intervenor Salt River Project Agricultural
Improvement & Power District
Leroy Michael Director of Legal Services
P.O. Box 1980
Phoenix, AZ 85036

Counsel for Intervenor Southern California Edison Company
John R. Bury
P.O. Box 800
Rosemead, CA 91770