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Save the Colorado v. Spellmon.

No. 21-1155. 9/30/2022. D.Colo. Judge Bacharach. Federal Energy Regulatory Commission License—US Army Corps of Engineers Permit—District Court—Federal Court of Appeals—Jurisdiction.

September 30, 2022

The City and County of Denver (municipality) sought to increase its water supply by raising a local dam and expanding a reservoir. This action required it to (1) amend its license with the Federal Energy Regulatory Commission (FERC) and (2) obtain a US Army Corps of Engineers (Corps) permit allowing discharge of fill materials into the surrounding waters. The municipality applied for the license amendment and permit. The Corps consulted the US Fish and Wildlife Service (Service) as part of its permitting process, and the Corps granted the discharge permit. A group of conservation organizations challenged the Corps’ decision in federal district court, alleging that the Corps and Service had violated the National Environmental Policy Act (NEPA), the Clean Water Act, the Endangered Species Act, and the Administrative Procedure Act. The municipality intervened to side with the Corps and Service.

After the district court action had been pending for nearly two years, FERC allowed the municipality to amend its license. In allowing the amendment, FERC cooperated with the Corps and the Service to ensure compliance with the statutory requirements governing the project. It issued its own supplemental environmental assessment to comply with NEPA, concluding that the license amendment would not result in significant environmental damage. After FERC issued its supplemental environmental assessment, the conservation organizations moved to intervene in the FERC proceedings. FERC denied the motion and a subsequent motion for rehearing. The conservation organizations then petitioned the federal district court for review of the Corps’ issuance of a discharge permit. The Corps, Service, and municipality then moved to dismiss the petition pending in district court, arguing that the federal courts of appeals had exclusive jurisdiction over the petition. The district court ordered dismissal.

On appeal, the conservation organizations challenged the Corps’ issuance of a discharge permit. Generally, a party challenging an agency action must petition in federal district court, but some statutory exceptions allow a petition to be filed in a court of appeals. The Federal Power Act provides exclusive jurisdiction to courts of appeals in challenges to FERC orders, giving those courts jurisdiction over issues only if FERC could have considered them. Here, the conservation organizations are not requesting relief from FERC’s approval of an amended license. Instead, they seek relief from Corps and Service decisions that were based on their obligations under the Clean Water Act, NEPA, and Endangered Species Act, which are statutes that don’t restrict jurisdiction to the court of appeals. Further, FERC did not incorporate the Corps or Service decisions, so the federal court of appeals lacked exclusive jurisdiction. Therefore, the district court misapplied the jurisdictional statute and erred by dismissing the petition for lack of subject-matter jurisdiction.

The order was reversed and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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