All dress up and no place to go: FERC Hydro regulation after Tacoma
- Van Ness Feldman, A Professional Corp., Washington, DC (United States)
The United States Supreme Court`s 1994 Tacoma decision altered the balance of state and federal authority which Congress established in 1920 in enacting the Federal Water Power Act and reaffirmed in the Electric Consumers Protection Act of 1986. In Tacoma the Court held that a state water quality agency, in exercising its authority under {section} 401 of the Clean Water Act to certificate compliance of a proposed hydroelectric project with state water quality requirements, could impose mandatory minimum streamflows for fish habitat as conditions on the federal license. The Court upheld the streamflow conditions even though the developer argued the minimum streamflows would render the project economically infeasible. The Court further indicated that a state could impose any conditions in a {section} 401 condition necessary or appropriate to achieve broadly defined state goals for a waterway such as aesthetics or fishery management. The result of the Court`s ruling has been a fundamental shift of control over hydroelectric development and relicensing from the Federal Power Act, administered primarily by the Federal Energy Regulatory Commission, to the Clean Water Act, administered by state water quality agencies and the federal Environmental Protection Agency. This paper examines: the scope of the Tacoma decision; the decision`s implications for the federal licensing process; state and federal conflicts arising from the decision; and potential impacts on the nation`s hydroelectric resources. The paper also looks at some solutions which have been offered, including possible amendments to the Federal Power Act and the Clean Water Act, to address the conflicts of authority posed by the Tacoma decision.
- OSTI ID:
- 219981
- Report Number(s):
- CONF-9507190-; TRN: 96:000708-0063
- Resource Relation:
- Conference: Waterpower 1995: international conference, San Francisco, CA (United States), 25-28 Jul 1995; Other Information: PBD: 1995; Related Information: Is Part Of Waterpower`95. Volume 1-3; Cassidy, J.L. [ed.]; PB: 2869 p.
- Country of Publication:
- United States
- Language:
- English
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