ELR Citation: ELR 20929
No(s). 95-1494 (D.C. Cir. May 9, 1997)

The court holds that a power company was not required to obtain Federal Water Pollution Control Act §401(a)(1) certification from North Carolina before obtaining a license amendment that allowed the company to add an intake pipeline structure to a power project in a lake that is partly within the state's borders. The court first holds that North Carolina did not waive its certification right by failing to assert that right during the dredge-and-fill permit proceeding. Section 401 places the burden of requesting a state water quality certification on the license applicant, and the license applicant in this case never requested that North Carolina provide certification for the proposed project. The court next holds the license amendment authorizes the pipeline project's operation and its resultant withdrawal of water from the lake. Although the withdrawal of water will reduce the volume of water passing through the dam turbines, this activity does not result in a discharge for the purposes of §401(a)(1).

Turning to North Carolina's Federal Power Act claims, the court holds that the findings underlying the Federal Energy Regulatory Commission's (FERC's) decision to grant the license amendment were supported by substantial evidence and the decision itself was not arbitrary or capricious. The mere fact that FERC relied on imperfect information in calculating an extrapolation rate for projected water demand for some of the years does not render the projection arbitrary. And FERC's water use projection was the product of a long-term trend analysis. FERC's exclusion of water available from aquifer storage and recovery systems in its calculation of water supply was not so unreasonable as to fail the deferential standard that the court must apply. Also, FERC's inclusion of an additional drought margin in predicting water need was not arbitrary or capricious.

Counsel for Petitioner
Bernard Nash
Dickstein, Shapiro, Morin & Oshinsky
2101 L St. NW, Washington DC 20037
(202) 785-9700

Counsel for Respondent
Edward S. Geldermann
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

Before: WALD, SILBERMAN, and SENTELLE, Circuit Judges.