ELR Citation: ELR 20687
No(s). 91-15934 (9th Cir. Feb 1, 1993)

The court holds that the Federal Power Act (FPA) preempts state regulation of a federally licensed hydroelectric power project in a national forest in California. The court first holds that the action is ripe for review even though plaintiff dam operator has not completed the state permitting process. The preemption challenge was purely legal, and fit for decision, and the licensees are suffering hardship from costs of undue process, stemming from the state process. Relying on the U.S. Supreme Court's decision in California v. FERC, 20 ELR 20913, in which the Court held that California's minimum stream flow requirement was preempted by the FPA because the requirement did not reflect proprietary rights in water, the court holds that California's attempt to require the dam operator to provide environmental impact reports is barred by federal preemption. Section 821 of the FPA dictates that states may control only proprietary rights to water, and California's requirement has nothing to do with determining proprietary rights in water. The court notes that preemption does not depend on whether the state permitting requirements conflict with the federal requirements, but whether Congress has occupied the field.

Counsel for Plaintiffs-Appellees
Stuart L. Somach
McDonough, Holland & Allen
555 Capitol Mall, Ste. 950, Sacramento CA 95814
(916) 444-3900

Counsel for Defendants-Appellants and Intervenor-Appellant
Clifford T. Lee, Deputy Attorney General
Attorney General's Office
455 Golden Gate Ave., Ste. 6200, San Francisco CA 94102
(916) 703-1985