California Sportfishing Protection Alliance v. Federal Energy Regulatory Commission

MEMORANDUM **

This case consolidates several petitions to review an order of the Federal Energy Regulatory Commission (“FERC”) amending a license for Pacific Gas and Electric (“PG & E”) to operate the Potter Valley hydroelectric project. The amendment essentially increased the flow of water in the Eel River in order to protect anadromous fish over what had been authorized in Article 38 of the original, 1983 license. The increase was not as much as California Sportfishing Protection Alliance (“California Sportfishing”) and Friends of the Eel River (collectively referred to as “Environmental Petitioners”) would have liked, and more than Mendocino County Petitioners (“Mendocino”) would have liked. Mendocino’s principal argument is that FERC improperly deferred to the National Marine Fisheries Service (“NMFS”) Biological Opinion that adopted a baseline intended to approximate the natural ebbs and flows of the river.

1. Environmental Baseline

Mendocino, citing 50 C.F.R. § 402.02 , argues that because the Porter Valley Irrigation District (“PVID”) alternative was marginally better than Article 38, NMFS could not have reasonably concluded the PVID alternative would jeopardize the…