State of California, Ex Rel. State Water Resources Board v. Federal Energy Regulatory Commission, Rock Creek Limited Partnership, Intervenor

The State of California petitions us to review the Federal Energy Regulatory Commission’s decision finding exclusive federal control over the setting of hydroelectric power project water flow rates. After examining the preemption implications of the Federal Power Act (“FPA”), 16 U.S.C. §§ 791a-825r (1982 & Supp. V 1987), we affirm the Commission’s conclusion that the Act awards the federal government sole authority to set flow rates.

BACKGROUND

Rock Creek is a small tributary of the South Fork of the American River near Placerville, California. Rock Creek runs entirely within the state of California and lies on public lands administered by the U.S. Bureau of Land Management.

The Rock Creek Limited Partnership chose the creek as the site for a small hydroelectric power project. They proposed a project that will consist of a concrete diversion dam located about one mile upstream from Rock Creek’s confluence with the American River. The dam will divert water through a tunnel into three penstocks, and then into a powerhouse equipped with three turbine generators having a total capacity of 3,000 kilowatts. After passing through the powerhouse, the water will empty into the American…