Jun 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 11-35459. Appealed from the United States District Court for the Western District of Washington. The Appeals Court explains that Puget Sound Energy (PSE) maintains and operates a hydroelectric power plant at the 268-foot-high Snoqualmie Falls in the State of Washington. The Snoqualmie River drains a large watershed above the falls, and all of the water from this area must pass through a single narrow channel before it reaches the falls, creating a bottleneck during heavy rains. This subjects the City of Snoqualmie, located just upstream of the falls, to persistent and significant flooding.
In the process of upgrading and modifying the plant, PSE plans to lower the dam located in the channel above the falls in order to mitigate these upstream flooding problems. PSE has already obtained a license for the project from the Federal Energy Regulatory Commission (FERC). Because the upgrade involves discharging fill material into the waters of the United States, which is prohibited under the Clean Water Act (CWA) without a permit, PSE sought verification from the U.S. Army Corps of Engineers (Corps) that it could proceed under a series of general nationwide permits (NWPs) authorizing certain discharges, rather than applying to the Corps for an individual permit.
The Corps verified that it could. Downstream property owners formed the Snoqualmie Valley Preservation Alliance (Alliance) to challenge this decision, which they contend will exacerbate flooding problems below the falls. The district court granted summary judgment for the Corps and the Appeals Court affirm the district court decision.
The Alliance challenged a Verification Letter as inadequate, however, the Appeals Court said, "The Verification Letter at issue here does state reasons for the action taken: the agency verified that PSE could proceed under section 404 of the CWA because the project had minimal individual and cumulative impacts and it complied with all terms and conditions of NWPs 3, 33, and 39. This conclusion is amply supported by facts in the administrative record. To require more would be contrary to the regulatory scheme, which devised the system of general nationwide permits to streamline the process, reduce redundancy, and conserve agency resources."
The Appeals Court also responded to a NEPA challenge saying, "The Alliance bases its NEPA claim on the argument that the Corps was required by the CWA to inform PSE that it could not proceed under general nationwide permits, but instead must apply for an individual permit. However, because the Corps did not violate the CWA, it also did not violate NEPA. Verifying that permittees may properly proceed under a nationwide permit does not require a full NEPA analysis at the time of the verification."
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