San Bernardino Valley Audubon Society v. Federal Energy Regulatory Commission

MEMORANDUM **

San Bernardino Audubon Society and California Trout, Inc. (collectively, Audubon) petition for review of FERC’s order of July 22, 2003, relicensing the Mill Creek hydroelectric project operated by Southern California Edison (SCE). We affirm.

1. Audubon challenges Article 407, a license condition that requires SCE to release into the bypass reach of Mill Creek only existing leakage flow, as unsupported by substantial evidence. FERC rejected Audubon’s seven cfs flow recommendation because FERC’s staff found that such a flow was unlikely to establish continuous flows, a substantial vegetation corridor, or suitable conditions for a trout fishery in the bypass reach. In reaching its decision, FERC considered voluminous scientific evidence submitted by Audubon, SCE, and others. That FERC apparently found SCE’s evidence more persuasive does not make FERC’s decision unsupported by substantial evidence. See ASARCO, Inc. v. OSHA, 746 F.2d 483 , 490 *465 (9th Cir.1984) (“Although we must review contradictory evidence in the record, ‘the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being…

concurring:

I concur in the result.