On December 4, 1989, the United States Supreme Court granted the State of California's petition for certiorari in a case which will resolve whether the Federal Power Act (FPA) preempts state water regulatory laws or whether Congress intended that hydroelectric projects licensed by the Federal Energy Regulatory Commission (FERC) must comply with the requirements of state water law. Resolution of this issue will have far reaching implications on the balance between state and federal management of water and other natural resources.
The Federal Power Act (FPA) was enacted in 1935 to establish a broad and paramount federal regulatory role in the development of the nation's hydroelectric resources. The cornerstone of the FPA is 10(a), which requires the Federal Energy Regulatory Commission (FERC) to ensure that projects it licenses are "best adapted to a comprehensive plan" for the waterway. This mandate requires the Commission to equally consider all issues relevant to the public interest: energy demand and supply; conservation; protection, mitigation and enhancement of fish and wildlife resources; impacts on irrigation and water supplies; and recreation. The Commission must seek and consider the views of the states on all of these matters. Under the FPA, weighing these often conflicting considerations and determining what conditions a license should contain are the Commission's responsibility.