FERC trumps State

SOURCE: Ken Taylor (taylork021@hawaii.rr.com) SUBHEAD: In case you had any doubts about the federal authority over water flow, once they are involved. From Ken Taylor on 23 April 2011 - Image above: Inside the Federal 9nth Circuit Court in San Francisco where Hawaii appeals are heard. From (http://www.allvoices.com/news/8564298/image/69946181-a-view-of-the-9th-circuit-court-of-appeals-during-the-hearing-on-california-s-proposition-8). In the case of The State of California versus the Federal Energy Regulatory Commission #495 U.S. 490 (1990): Facts. FERC and the State agency with authority to issue water quality certification disagreed on the appropriate interim flow for a project. FERC issued an order in which it concluded it had exclusive jurisdiction to set minimum flows. FERC denied the State agency’s request for rehearing of the order, and the State appealed. The court of appeals affirmed FERC’s order denying rehearing, and the Supreme Court granted certiorari. Issue. Does FERC have exclusive jurisdiction to determine the minimum flow schedule for a hydropower project? Holding. FERC has exclusive jurisdiction to set the flow schedule for a hydropower project to the extent that the schedule provides for non-proprietary uses of water. The Court’s holding relied heavily on the precedent established in First Iowa Hydro- Electric Coop. v. FPC, 328 U.S. 152 (1946). The Court in First Iowa held that the effect of Federal Power Act (FPA) § 27, which protects certain state laws from supersedure, was limited to laws governing the control, appropriation, use or distribution of water in irrigation or for municipal or other uses of the same nature. Here, the Court cited three reasons for upholding this interpretation of FPA § 27. First, the Court cited the strong deference courts must give to precedent. Second, the Court noted the “highly complex and long-enduring regime” that would have to be restructured as a result of accepting the State’s reading of the statute. Third, the Court rejected the State’s contention that the relevant portion of First Iowa was dicta, finding instead that the Court’s interpretation of § 27 of the FPA was essential to the Court’s rationale in its resolving the primary dispute in that case. The Court concluded that FPA § 27 allows federal preemption for all non-proprietary uses of water, but preserves the States’ authority to determine proprietary uses of water, i.e., distribution of water for municipal uses. For entire PDF file (1 meg) that is the source of material above: (http://www.islandbreath.org/2011Year/04/110423cal_vs_ferc.pdf) .

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