California v. Federal Energy Regulatory Commission

PETITIONER: California
RESPONDENT: Federal Energy Regulatory Commission
LOCATION: Cumberland County Central Booking

DOCKET NO.: 89-333
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 495 US 490 (1990)
ARGUED: Mar 20, 1990
DECIDED: May 21, 1990

Roderick Eugene Walston - on behalf of the Petitioner
Sternen L. Nightingale - on behalf of the Respondents

Facts of the case


Media for California v. Federal Energy Regulatory Commission

Audio Transcription for Oral Argument - March 20, 1990 in California v. Federal Energy Regulatory Commission

William H. Rehnquist:

We'll hear argument next in Number 89-333, California v. Federal Energy Regulatory Commission.

Mr. Walston.

Roderick Eugene Walston:

Mr. Chief Justice, and may it please the Court:

The question presented in this case is whether state water laws apply to hydropower projects that are licensed by the Federal Energy Regulatory Commission, or FERC, as it is commonly known.

The case involves a dispute between California and FERC over minimum flows for the Rock Creek project out in California.

California has established higher flow requirements for the project than those imposed by FERC.

FERC makes the argument in this case that the Federal Power Act completely preempts state flow requirements.

California argues that Section 27 of the Federal Power Act authorizes the state to set its own flow requirements.

California's position in this case, I might add, is supported literally by all 49 sister states.

Section 27 provides on its face that the Federal Power Act does not interfere with state laws relating to control, appropriation, use or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.

California's flow requirements in this case relate to control, appropriation and use of water for other uses, mainly in-stream uses and also hydropower uses.

Indeed, under California law, in-stream fish flows are specifically defined as a beneficial use of water.

And therefore, Section 27 literally encompasses the California flow requirements in this case.

The legislative history we believe makes especially clear that Congress intended to defer to the states preeminent water rights authority and to preserve the state's existing traditional water right laws.

Congress indeed has traditionally deferred the state's water laws, and in passing the Federal Power Act, and particular Section 27, Congress intended to continue the same tradition of deference that has been followed in the past.

And that legislative history indicates that Congress specifically intended for hydropower projects to comply with state water laws to the same extent that other persons must comply.

Congressman Doremus stated during their legislative debates,

"Water power companies organized under this act will be obliged to be obliged to operate under state law. "

Congressman Mondell stated that the bill disclaims any intent to take over control of water from the states.

No congressman during the legislative debates offered any different interpretation of Section 27 or suggested that the hydropower projects are not required to comply with state water laws.

Byron R. White:

Well, literally I take it you would say then that the state would have the authority... the authority to require a license from the state.

Roderick Eugene Walston:

Yes, that is correct.

And our position is that--

Byron R. White:

Even though it's licensed by the--

Roderick Eugene Walston:

--By the... by FERC under the Federal Power Act.

Yes, that is correct.

The scheme established by Congress is this.

Section 4 of the Act authorizes FERC to issue licenses for hydropower projects and requires those hydropower projects to comply with FERC-imposed terms and conditions.

Sandra Day O'Connor:

--Well, Mr. Claps, what's... what has been happening as a practical matter in the years since the First Iowa decision?

Have any states been requiring licenses of these hydroelectric projects that are authorized by the Federal government?