United States Department of the Interior v. Federal Energy Regulatory Commission

In 1988, the Federal Energy Regulatory Commission (FERC) (defendant) issued a draft environmental-impact statement (EIS) concerning proposed hydroelectric-power projects at 19 sites in the Upper Ohio River Basin. The Department of the Interior (the department) (plaintiff) submitted comments to FERC regarding (1) the projects’ effects on dissolved-oxygen (DO) levels in the river, (2) fish mortality from entrainment (i.e., passing through turbines), and (3) disruptions to recreational sport fishing. FERC subsequently released a final EIS and decided to license projects at 16 sites. With respect to water-quality concerns, FERC adopted a 6.5 mg/l minimum-DO standard based on an Environmental Protection Agency (EPA) report that identified 6.5 mg/l as the necessary level to maintain fish development. FERC also required licensees to join a water-quality-management group and retained the authority to order modifications to project operations if necessary to conserve or develop fish and wildlife resources. With respect to fish entrainment, FERC analyzed scientific evidence and data from other hydroelectric projects and determined that the fish-mortality rate would be at most 10 percent, which FERC deemed acceptable. However, FERC imposed several conditions to minimize fish deaths, including monitoring and mitigation efforts. With respect to sport fishing, FERC required licensees to provide on-site sport-fishing access if possible or to provide off-site recreational facilities. The department petitioned for review of FERC’s licensing decision, challenging FERC’s environmental analyses. The department also contended that FERC had improperly refused to conduct studies that various fish-and-wildlife agencies had deemed necessary during a required statutory coordination process between FERC and the agencies.