ELR Citation: ELR 20398
No(s). s. 83-7584, -7699 (9th Cir. Mar 6, 1985)

The court holds that the Federal Energy Regulatory Commission (FERC) did not need to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) for the issuance of a preliminary permit for a hydroelectric project on the Tuolumne River, because the permit did not authorize any activities that might affect the environment. The sole purpose of a preliminary permit is to acknowledge the applicant's priority over subsequent applicants. It does not allow the applicant to construct facilities or conduct studies on federal lands without further permission. Therefore, the court holds, granting such a permit cannot significantly affect the environment and so never requires an EIS under NEPA. The court further holds that even if it had read NEPA to require FERC to prepare an environmental assessment evaluating the project's significance, FERC's detailed order granting the permit would satisfy that requirement. Also, neither FERC's nor the Council on Environmental Quality's regulations required FERC to hold an evidentiary hearing on the permit, since no substantial environmental controversy was involved. Finally, the court holds premature petitioner's argument that the Raker Act deprives FERC of jurisdiction over the proposed project. The Raker Act does vest the Secretaries of Agriculture and the Interior with exclusive authority over development of the Hetch Hetchy Reservoir on the Tuolumne, but the relationship between the proposed project and the Hetch Hetchy system cannot be known until final plans have been developed.

Counsel for Petitioner
Michael H. Remy
Remy & Thomas
801 12th St., Sacramento CA 95814
(916) 443-2745

Suzanne D. Case & Robert B. Thum
Pettit & Martin
35th Floor, 101 California St., San Francisco CA 94111
(415) 434-4000

Counsel for Respondent
William H. Satterfield, Jerome M. Feit, Joshua Z. Rokach, Bonnie Cord & Marilyn M. Gossel
Office of the General Counsel, FERC
825 N. Capitol St. NE, Washington DC 20426
(202) 357-8000

Counsel for Intervenor
Lee C. White & Peter S. Leyton
White, Fine & Verville
1156 15th St. NW, Washington DC 20005
(202) 659-2900

Before: PHILLIPS^*, POOLE, and CANBY, Circuit Judges.