Ferc

This is a petition to review a decision of the Federal Energy Regulatory Commission (“FERC”) not to initiate formal consultation with the National Marine Fisheries Service (“NMFS”) about the operation of the DeSabla-Centerville hydroelectric project. The project is operated by respondent Pacific Gas and Electric (“PG & E”) under a 30-year license that FERC issued in 1980. The petitioners seek the consultation in order to protect Chinook Salmon that were declared a threatened species in 1999.

The petitioners include California Sport-fishing Protection Alliance and other environmental groups. The operative statute is section 7 of the Endangered Species Act (“ESA”) that provides for formal consultation with NMFS to insure that “agency action” does not jeopardize continued existence of an endangered species. 16 U.S.C. § 1536 (a)(2). We have jurisdiction pursuant to the Federal Power Act, 16 U.S.C. § 825 (Z)(b), to review the FERC orders denying petitioners’ petition for consultation and petition for rehearing.

The dispositive issue is whether there was any “action authorized, funded, or carried out” by a federal agency, that would have triggered the ESA’s consultation requirement in…