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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2004 Decided April 6, 2004
No. 03-1026
WISCONSIN POWER & LIGHT COMPANY,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
STATE OF WISCONSIN AND
UNITED STATES DEPARTMENT OF THE INTERIOR,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Michael C. Griffen argued the cause and filed the briefs for
petitioner.
Beth G. Pacella, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
the brief were Cynthia A. Marlette, General Counsel, and
Dennis Lane, Solicitor.
Ronald M. Spritzer, Attorney, U.S. Department of Justice,
argued the cause for intervenor United States Department of
the Interior. With him on the brief was Andrew C. Mergen,
Attorney. Mary A. Thurston, Attorney, entered an appear-
ance.
Peggy A. Lautenschlager, Attorney General, Attorney Gen-
eral’s Office of the State of Wisconsin, and Philip Peterson,
Assistant Attorney General, were on the brief for intervenor
State of Wisconsin.
Before: RANDOLPH, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Concurring opinion filed by Circuit Judge RANDOLPH.
ROGERS, Circuit Judge: In exercising judicial review under
§ 313(b) of the Federal Power Act (‘‘FPA’’), 16 U.S.C.
§ 825l(b), the court is again confronted with the unusual
statutory configuration where, in granting hydroelectric li-
censes, the Federal Energy Regulatory Commission is obli-
gated both to conduct its own environmental assessment to
protect and enhance fish and wildlife and to include such
prescription conditions for fishways as the Secretary of the
Interior may direct. See 16 U.S.C. §§ 803(j), 811. Wisconsin
Power and Light Company (‘‘WP&L’’) petitions for review of
Commission orders placing conditions on its license as a
result of the Secretary’s prescription. Essentially, WP&L
contends that the Secretary’s prescription is unsupported by
substantial evidence. Although WP&L did not argue on
rehearing before the Commission with the specificity present-
ed in its brief on appeal, because we conclude, in light of the
statutory scheme, that there was a ‘‘reasonable ground for
failure so to do’’ under FPA § 313(b), the court has jurisdic-
tion to address the merits of WP&L’s petition. Upon so
doing, we conclude that WP&L’s challenges to the Secretary’s
prescription conditions lack merit and that any challenge it
may have to potential costs of fishway devices is not ripe.
3
I.
FPA § 10(j) provides that ‘‘in order to adequately and
equitably protect, mitigate damages to, and enhance, fish and
wildlife (including related spawning groups and habitat) af-
fected by the development, operation, and management of the
project, each [hydroelectric] license issued TTT [by the Com-
mission] shall include conditions for such protection, mitiga-
tion, and enhancement.’’ 16 U.S.C. § 803(j)(1). However,
regardless of what conditions the Commission may or may
not include in a license, FPA § 18 provides that ‘‘the Commis-
sion shall require the construction, maintenance, and opera-
tion by a licensee at its own expense of TTT such fishways as
may be prescribed by the Secretary of the Interior or the
Secretary of Commerce, as appropriate.’’ Id. at § 811. Both
provisions were at issue in the proceedings before the Com-
mission involving WP&L’s license application.
The Prairie du Sac Hydroelectric Project (‘‘the project’’) is
a twenty-nine megawatt dam located on the Wisconsin River
in south-central Wisconsin about ninety miles upstream of the
Mississippi River. See Wisconsin Power & Light Co., 99
FERC ¶ 62,225 at 64,514 ¶ 1 (2002) (‘‘Initial Order’’). It was
constructed and initially operated pursuant to a fifty year
federal permit, which expired in 1961. See Wisconsin Power
& Light Co., 52 FERC ¶ 62,294 (1990), reh’g denied, 55
FERC ¶ 61,169 (1991). After the Commission determined in
1990 that the project must be licensed, see id., WP&L applied
for an original license to continue to operate and maintain the
project. Notice of the application was published on August
11, 1994, and on December 31, 1996, notice issued that the
application was ready for environmental analysis. See Initial
Order at 64,514 ¶ 2. In 1997, the Secretary of the Interior,
for the Fish and Wildlife Service, and in collaboration with
the Wisconsin Department of Natural Resources (‘‘the De-
partment’’), submitted recommended license conditions pursu-
ant to FPA § 10(j). The Secretary also requested that any
license include a provision reserving the Secretary’s § 18
authority to prescribe the construction, operation, and main-
tenance of appropriate fishways at the project. The Commis-
sion issued a final environmental assessment on November 8,
4
2000. In January 2002, the Secretary and the Department
called the Commission’s attention to the recent removal of
four dams opening up an additional 120 miles of river up-
stream of the project and providing substantial spawning and
foraging habitat for riverine fish, and reiterated their § 10(j)
recommendations that upstream fish passage facilities be
installed at the project.
On June 27, 2002, the Commission granted WP&L a thirty
year license for the project subject to conditions. The license
included most § 10(j) recommendations, with the exception of
those concerning fish passage. Rejecting the recommenda-
tions of the Secretary and the Department, the Commission
did not include conditions in the license requiring WP&L to
make provision for the upstream movement of fish around the
dam or to take measures to protect fish from injury when
traveling downstream through the project. The Commission,
adopting a staff report, found no evidence of an effect on fish
populations due to turbine mortality or fish entrainment,
whereby fish enter the project’s water intakes and pass
through its generating turbines, and therefore declined to
require the installation of ‘‘expensive protection devices.’’ Id.
at 64,515 ¶ 14. The Commission likewise determined that,
because of the ‘‘dubious chance for success’’ and high con-
struction costs, measures were not required to permit fish to
travel upstream around the dam. Id. at 64,516 ¶ 19. Instead,
the Commission recommended that WP&L develop a plan in
consultation with the Secretary and the Department to identi-
fy specific measures to enhance fishery and other aquatic
resources in the project’s vicinity. While concluding the
fishways would not be in the public interest, the Commission
stated that ‘‘should new information in the future indicate a
different finding,’’ the Secretary’s § 18 prescription authority
was reserved. Id.
The Secretary and the Department requested rehearing,
citing new information and changed circumstances, and the
Secretary resubmitted her fishways recommendations as a
§ 18 prescription. The new information related to recent
research on additional passage strategies applicable to the
project, and the changed circumstances related to the remov-
5
al of four upstream dams after the Commission had concluded
its environmental assessment. The Commission included the
prescription as conditions in the license and dismissed the
rehearing requests as moot. See Order on Rehearing and
Amending License, 101 FERC ¶ 61,055 (2002) (‘‘Amended
License Order’’). Among other things, the amended license
required WP&L, in coordination with the Secretary and the
Department, to: install within one year fish protective devices
to prevent fish from entering the turbines; complete within
one year a detailed engineering and biological study of fish-
way alternatives at the dam, including identifying and detail-
ing the costs of a proposed solution to allow fish passage;
design, build, test and refine within three years the fishway
approved by the Secretary and the Department; and incorpo-
rate within one year thereafter any fishway refinements
found necessary by the Secretary and the Department. Id.
WP&L sought rehearing of the Amended License Order on
the ground that the Commission inadequately explained the
reversal of its Initial Order. In the request for rehearing,
WP&L argued that there was no reasoned basis for the
Commission’s imposition of additional conditions in the
amended license, and that no record evidence demonstrated
the need for fish-protective devices. Even if circumstances
had changed since the Commission completed its environmen-
tal assessment, WP&L argued, the Commission had erred by
failing to consider cost and technical issues in amending the
license. The Commission denied rehearing because ‘‘[t]he
Commission has no authority to amend or reject a Section 18
prescription that is timely filed.’’ Order Denying Rehearing,
101 FERC ¶ 61,338 (2002) (‘‘Rehearing Order’’).
WP&L petitions for review of the Commission’s orders on
the ground that the Secretary’s prescription was arbitrary
and capricious because the record fails to show that fish
entrainment at the project has an adverse effect on fishery
resources, that the prescribed entrainment protective devices
are technically feasible, would be effective, and survive a cost-
benefit analysis, and that the fish species the Secretary seeks
to protect would use or benefit from the prescribed upstream
fish passage facilities.
6
II.
As a threshold matter, the Secretary challenges the juris-
diction of the court to consider WP&L’s challenge to the
Secretary’s fishways prescription. Because WP&L, accord-
ing to the Secretary, did not argue in its request for rehear-
ing by the Commission that the Secretary’s § 18 conditions
are not supported by substantial evidence, but instead
claimed only that the Commission had failed to justify the
change from its original decision not to impose fishway condi-
tions, the Secretary maintains that the court may not consid-
er the contentions presented in WP&L’s brief.
FPA § 313(b) provides in pertinent part that ‘‘[n]o objec-
tion to the order of the Commission shall be considered by
the court unless such objection shall have been urged before
the Commission in the application for rehearing unless there
is reasonable ground for failure so to do.’’ 16 U.S.C.
§ 825l(b). This court strictly construes the jurisdictional
requirement that such objections must be specific. See Office
of the Consumers Counsel, State of Ohio v. FERC, 914 F.2d
290, 295 (D.C. Cir. 1990); Town of Norwood v. FERC, 906
F.2d 772, 774 (D.C. Cir. 1990). Although the court seldom
finds reasonable grounds for failure to raise specifically objec-
tions before the Commission prior to raising them on judicial
review, see Public Service Co. of New Mexico v. FERC, 863
F.2d 1021, 1022–23 (D.C. Cir. 1988) (rehearing en banc de-
nied), WP&L’s petition presents an ‘‘extraordinary situation’’
where such reasonable grounds existed. See Public Service
Co. of New Mexico v. FERC, 857 F.2d 833, 836 (D.C. Cir.
1988); cf. ASARCO, Inc. v. FERC, 777 F.2d 764, 774 (D.C.
Cir. 1985).
In Bangor Hydro–Electric Company v. FERC, 78 F.3d 659
(D.C. Cir. 1996), the court held that FPA § 18 mandates
inclusion of the Secretary’s fishway prescriptions as a condi-
tion of the Commission’s license. See also American Rivers
v. FERC, 201 F.3d 1186, 1210 (9th Cir. 2000); Wisconsin
Pub. Serv. Corp. v. FERC, 32 F.3d 1165, 1170–71 (7th Cir.
1994) (‘‘WiscPSC’’); Lynchburg Hydro Assocs., 39 FERC
¶ 61,079, at 61,218 (1987); cf. Escondido Mut. Water Co. v. La
7
Jolla Band of Mission Indians, 466 U.S. 765, 778 n.21 (1984).
The court also held that while the Commission is the proper
party to be named as respondent, the Commission has no
authority to review the Secretary’s prescription and instead
acts as a neutral forum responsible for compiling the record
for judicial review. See Bangor, 78 F.3d at 662. At most, if
the Commission determines that a license as conditioned
should not issue, it can refuse to license a project. See id. at
663; cf. Escondido, 466 U.S. at 778 n.20. It followed that
once the Commission issues a license containing the Secre-
tary’s prescription, the challenge to the prescription occurs in
the court of appeals, and not before the Commission on
rehearing. See Bangor, 78 F.3d at 663; cf. Escondido, 466
U.S. at 778 n.21.
Under the interpretation of the statutory scheme adopted
in Bangor, 78 F.3d at 662–63, where a party seeks to chal-
lenge the Secretary’s § 18 prescription, as opposed to a
determination that the Commission has authority to review,
the request for rehearing by the Commission is a mere
formality necessitated by FPA § 313(b). In order to pre-
serve its right to judicial review, then, WP&L had to apply
for rehearing, but it did not have to develop its objections
with the usual specificity that is required under FPA § 313.
Compare Motor & Equipment Mfrs. Ass’n v. Nichols, 142
F.3d 449, 462 (D.C. Cir. 1998). Doing so would have been
useless because the Commission could not review the Secre-
tary’s prescription. The fact that WP&L’s rehearing request
was succinct does not affect the court’s jurisdiction over
WP&L’s petition for review based upon the administrative
record before the Commission. Although the rehearing re-
quest focused on the Commission’s failure to examine the
administrative record underlying the Secretary’s prescription,
it also stated that there was a lack of record evidence to
support the § 18 conditions imposed in the amended license.
Conceivably, the Commission could have responded to the
rehearing request by inviting the Secretary to supplement the
administrative record. Cf. Bangor, 78 F.3d at 662. But at
this stage of the proceedings it is too late to pursue that
alternative. In Bangor, the court declined to remand to allow
8
the Secretary to supplement the administrative record, and
also denied the Secretary’s motion to add to the record before
the court because Congress intended that the Secretary’s
prescription be supported based on the record before the
Commission ‘‘as would any other Commission licensing re-
quirement.’’ Id.; see 18 C.F.R. § 4.34(b)(1).
Accordingly, because FPA § 313(b) contemplates situations
in which the court will review matters not presented to the
Commission, we hold in light of the statutory scheme that
WP&L had ‘‘a reasonable ground’’ for failing to set forth its
objections to the Amended License Order in its request for
rehearing by the Commission with the specificity that is
customarily required. We therefore turn to the merits of
WP&L’s challenge to the Secretary’s prescription as set forth
in the Amended License Order.
III.
FPA § 313(b) provides that ‘‘[t]he finding of the Commis-
sion as to the facts, if supported by substantial evidence, shall
be conclusive.’’ 16 U.S.C. § 825l(b). The statute implicitly
invokes the familiar arbitrary and capricious standard. See
Bangor, 78 F.3d at 663 & n.3. Thus, in seeking to have the
court declare the Secretary’s prescription to be arbitrary or
capricious, WP&L bears a heavy burden. See Transmission
Access Policy Study Group v. FERC, 225 F.3d 667, 714 (D.C.
Cir. 2000). The court may not substitute its judgment for
that of the Secretary, and must consider only ‘‘whether the
[Secretary’s] decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment,’’ Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971), bearing in mind that ‘‘ ‘[s]ubstantial
evidence’ means more than a ‘scintilla,’ but less than a
preponderance of the evidence.’’ Burns v. Director, Office of
Workers Comp. Programs, 41 F.3d 1555, 1562 n.10 (D.C. Cir.
1994). The court, accordingly, must sustain the Secretary’s
prescription if it is ‘‘consistent with law and supported by the
evidence presented to the Commission, either by the Secre-
tary or other interested parties.’’ Escondido, 466 U.S. at 778
9
n.20. In a prescription case, ‘‘it is the Secretary’s, and not
the Commission’s, judgment to which the court is giving
deference.’’ Id. at 778.
In contending that the Secretary’s prescription for up-
stream fish passage was arbitrary and capricious, WP&L
focuses on the Secretary’s 1997 statement that, as regards
turbine mortality of fish, ‘‘biological significance is not the
primary issue,’’ but rather that ‘‘project operation results in
the mortality of important fishery resources, which are the
property of the State of Wisconsin.’’ WP&L contends that
the record lacks substantial evidence to support the proposi-
tion that fishery resources have economic value, and implicitly
maintains that any prescription based on an unsupported
rationale is arbitrary and capricious. But WP&L confuses
the rationale provided by the Secretary in 1997 for recom-
mendations to the Commission pursuant to FPA § 10(j), 16
U.S.C. § 803(j), which obligates the Commission to include
license conditions that protect and enhance fish and wildlife,
with the revised rationale applicable to the Secretary’s § 18
prescription. In any event, the Secretary’s 1997 recommen-
dations proffered further rationales that are supported by
substantial record evidence, such as that ‘‘reestablishing up-
stream and safe downstream passage around the [project] for
paddlefish would help considerably to preclude the need for
the [Fish and Wildlife Service] to formally list this species on
the Federal list of threatened and endangered species and
would help considerably to allow this species to be removed
from the State list.’’ And, although the Secretary’s 2002
prescription incorporated by reference her 1997 recommenda-
tions, the prescription provided further justifications for the
new requirements, namely to provide for ‘‘safe, timely, and
effective fish passage,’’ as well as the protection of threatened
species.
Moreover, that the protection and conservation of fishery
resources underlies the Secretary’s § 18 prescriptions need
not be proved in every such prescription, for Congress has
made clear that the purpose of § 18 is to provide for ‘‘safe
and timely’’ fish passage, see Pub. L. 102–486, § 1701(b), 106
Stat. 3008 (1992), as well as other ‘‘fish and wildlife benefits
10
both downstream and upstream of a project.’’ H.R. Conf.
Rep. No. 99–934, at 23 (1986). Furthermore, the Secretary
issued a comprehensive plan that has been accepted by the
Commission pursuant to FPA § 10(a), 16 U.S.C. § 803(a).
The plan identifies the Secretary’s commitment to protect the
quality and quantity of the nation’s recreational fisheries that
she has found to be socially and economically significant. See
Fisheries USA: The Recreational Fisheries Policy of the U.S.
Department of the Interior Fish and Wildlife Service at 4–5,
available at http://policy.fws.gov/a1npi89 25.pdf. To serve
these goals requires restoration or enhancement of depleted
or declining fisheries, such as exist at the project. Hence, the
Secretary need not establish whether fishery resources war-
rant protection as a general proposition, but rather must
provide substantial evidence to show that fishery resources
will be adversely affected by a particular project as well as to
support the particular solutions for protecting those re-
sources.
WP&L contends for the first time on appeal, however, that
the Secretary is bound by a regulation of the Commission to
the rationale and evidence provided for the prescription in
her initial comments in 1997. See 18 C.F.R. § 4.34(b)(1).
Although this contention is raised in WP&L’s reply brief, see
City of Nephi v. FERC, 147 F.3d 929, 934–35 (D.C. Cir. 1998),
the contention is flawed in any event. The Commission’s
regulation requires the Secretary to present her prescription
as part of her ‘‘initial comments filed with the Commission,’’
18 C.F.R. § 4.34(b)(1), but it does not limit the Secretary’s
§ 18 prescription to the state of knowledge and circumstances
at the time of her initial comments. Nor has the Commission
so construed it. The Initial Order, while concluding that a
fishway or rehabilitation of the navigation lock would not be
in the public interest, provided that ‘‘should new information
in the future indicate a different finding,’’ the Secretary’s
prescription authority was preserved, as is only sensible
where, as here, a license extends thirty years into the future.
Moreover, in enacting legislation to reform Commission pro-
cedures for the issuance of hydroelectric project licenses,
Congress left intact Commission authority to modify licenses:
11
‘‘The Committee believes that the Commission should have
authority to ensure that licenses reflect current information
concerning the need to protect fish and wildlife. The legisla-
tion does not change existing law, including case law, govern-
ing FERC authority to modify licenses during their term.’’
H.R. Rep. No. 99–507, at 32 (1986) (House Committee on
Energy and Commerce report on Electric Consumer Protec-
tion Act of 1986); see Department of the Interior v. FERC,
952 F.2d 538, 547 (D.C. Cir. 1992).
WP&L also contends that substantial evidence is lacking to
support the Secretary’s prescription because the administra-
tive record cites to studies that were not formally submitted
to the Commission and in some instances were not specifically
identified. This contention fails for two reasons: WP&L
relies on a misunderstanding of the information on which the
Secretary may properly rely and ignores the record address-
ing the prescriptions and establishing that the Secretary did
not act arbitrarily or capriciously. Firstly, the substantial
evidence standards normally applicable to review of the Com-
mission’s orders apply to the findings of the Secretary. See
Bangor, 78 F.3d at 662, 663; cf. Escondido, 466 U.S. at 778.
Under our precedents, the Secretary could properly take
official notice of matters of common knowledge, of evidence
available to her from other proceedings, and of matters
known to the agency through its cumulative experience and
consequent expertise. See Nat’l Classification Comm. v.
United States, 779 F.2d 687, 695 (D.C. Cir. 1985). Where a
matter primarily involves a question of fact, the Secretary
may rely on her expertise, even where there is conflicting
evidence. See Wisconsin Valley Improvement Co. v. FERC,
236 F.3d 738, 746–47 (D.C. Cir. 2001). The Secretary may
rely on publicly available information so long as it is refer-
enced, thereby enabling ‘‘meaningful adversarial comment
and judicial review;’’ such material need not be directly
introduced into the record. A footnote is enough. See U.S.
Lines v. Federal Maritime Comm., 584 F.2d 519, 534–35 &
534 n.44 (D.C. Cir. 1978) (citing City of Chicago v. FPC, 458
F.2d 731 (D.C. Cir. 1971)). However, the Secretary may not
12
rely on data known only to the agency. Nat’l Classification
Comm., 779 F.2d at 695.
The record before the Commission meets this standard
because it was appropriate, given the paucity of site-specific
information as a consequence of WP&L’s resistance to studies
at the project, for the Secretary to cite relevant, publicly
available studies, which need not have been introduced into
the record. Insofar as the Secretary mentioned studies not
specifically cited for given propositions but that were included
in attached bibliographies, the studies that were cited with
particularity constitute substantial evidence sufficient to sup-
port the Secretary’s prescription. For example, the Commis-
sion’s final environmental assessment established that turbine
mortality rates at the project could range up to twenty
percent, therefore showing the need for entrainment protec-
tion devices; the report of WP&L’s consultant indicated that
several entrainment protection devices may be effective at the
project and warrant further study; a Department report
demonstrated that enabling upstream passage around the
dam would help to reestablish the threatened paddlefish to its
traditional habitat on the upper reaches of the Wisconsin
River; a 1932 study proved that operation of the project’s
navigation lock facilitated upstream fish passage; and the
Secretary’s request for rehearing cited research demonstrat-
ing that new prototype fishways had successfully enabled
passage of fish species found at the project. In sum, the
Secretary’s reference to other studies for which no detailed
footnotes were provided served merely to bolster, and does
not detract from, the independent sufficiency of substantial
evidence that was properly cited or introduced into the rec-
ord.
Secondly, in contending that there is not substantial evi-
dence to show that fish entrainment at the project has an
adverse effect on fishery resources, WP&L ignores record
evidence, including that in its license application. An analysis
provided by the Department to WP&L in response to a draft
of the license application indicated that thirty-four percent of
walleye tagged above the dam were recovered below it.
Because the dam is a complete barrier to upstream fish
13
movement, the Department stated that ‘‘those fish are forever
lost to the [above-dam] lake fishery.’’ In addition, the Com-
mission’s environmental assessment of the project estimated
turbine mortality for small fish at four to six percent, and for
large fish, such as walleye, at ten to twenty percent. The
Commission concluded that ‘‘[t]he total number [of] fish en-
trained may be greater than at most sites because of the
greater hydraulic capacity’’ of the project powerhouse.
WP&L nonetheless maintains that the record permits no
conclusions about entrainment and turbine mortality at the
project because only one study, which did not directly evalu-
ate entrainment, was done at the project. The record shows
that further studies at the project were not completed be-
cause WP&L rescinded its proposal to do so, despite its
consultant’s acknowledgment that such studies were ‘‘justi-
fied.’’ The applicable standard of review does not demand
perfect information, but only requires substantial evidence,
see 16 U.S.C. § 825l(b), which may include findings made in
light of uncertainty. See Department of the Interior, 952
F.2d at 546. Under the circumstances, the Secretary reason-
ably relied on data from facilities similar to the project in
concluding that entrainment was harming fishery resources.
WP&L additionally contends that record evidence fails to
show that the Secretary’s downstream passage prescriptions
are technically feasible and effective. The Commission’s envi-
ronmental assessment cast doubt on certain entrainment pro-
tective devices, such as a mesh net. However, the Secretary
could reasonably rely on the more favorable assessment
contained in WP&L’s application as well as recent research at
similar facilities. Given conflicting views, the Secretary had
‘‘discretion to rely on the reasonable opinions of [her] own
qualified experts even if, as an original matter, a court might
find contrary views more persuasive.’’ Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 378 (1989). For
instance, the Secretary reasonably credited WP&L’s license
application, which, based on its consultant’s detailed research
and analysis, stated that ‘‘WP&L believes the net would
protect a large percentage of fish now susceptible to entrain-
ment.’’ The Secretary also noted a 2001 study demonstrating
14
the effectiveness of other devices at preventing the entrain-
ment of lake sturgeon, one of the species of concern at the
project. From this evidence the Secretary could reasonably
conclude that the downstream passage prescriptions were
feasible and would be effective.
With regard to the upstream passage prescription, WP&L
similarly identifies record material evidencing doubts about
whether the prescribed fishways are technically feasible and
would be effective. The Commission’s environmental assess-
ment concluded in 2000 that ‘‘based on the analyses done to
date, TTT there is no technically feasible means to provide
upstream fish passage at Prairie du Sac dam, particularly for
the primary species of concern.’’ However, the Secretary’s
prescription relied on evidence, which was not available at the
time of the Commission’s environmental assessment, that
refuted the Commission’s conclusion that a fishway would not
be effective for target species like lake sturgeon. Moreover,
a 1932 study, which the Commission failed to credit, contra-
dicted the Commission’s hypotheses; the study showed that a
then-operable, preexisting navigation lock at the project per-
mitted thousands of fish from a wide range of species, includ-
ing sturgeon, to bypass the dam. WP&L’s license application
also included a 1993 study that concluded that threatened
‘‘[p]addlefish would probably enter the Prairie du Sac dam
lock if it were operational.’’ Based on such substantial evi-
dence, the Secretary reasonably concluded that upstream
passage facilities would be effective.
Lastly, WP&L contends that prescription of entrainment
protective devices potentially requiring expenditure of a
‘‘huge sum’’ for a ‘‘questionable return’’ constitutes arbitrary
and capricious action by the Secretary. In its view, ‘‘the cost
of any downstream fish protection facilities would far out-
weigh any benefit to fish or fisheries in the Wisconsin River.’’
Petitioner’s Br. 20. Such a prescription, WP&L maintains,
cannot be ‘‘consistent with law’’ or ‘‘reasonably related to [its]
goal.’’ Bangor, 78 F.3d at 663 (citing Escondido, 466 U.S. at
778 & n.20). However, the Secretary has not prescribed
particular fishway devices for the project, and hence no such
costs have been determined. Any challenge that WP&L
15
might have as it pertains to potential costs is therefore not
ripe. See Metzenbaum v. FERC, 675 F.2d 1282, 1289–90
(D.C. Cir. 1982).
Accordingly, we deny the petition for review.
1
RANDOLPH, Circuit Judge, concurring: Bangor Hydro–Elec-
tric Co. v. FERC, 78 F.3d 659 (D.C. Cir. 1996), drew an
analogy to Escondido Mutual Water Co. v. La Jolla Band of
Mission Indians, 466 U.S. 765 (1984), and held (1) that in
licensing cases such as this, the Federal Energy Regulatory
Commission must accept conditions the Department of the
Interior prescribes, and (2) that Interior’s conditions must be
supported by substantial evidence. 78 F.3d at 662–63. This
odd division of authority raises the question whether Interior
can develop all of its evidence internally, without affording
the applicant some sort of hearing. See Henry J. Friendly,
Some Kind of Hearing, 123 U. PA. L. REV. 1267 (1975). So
far as we can tell, Interior offered the petitioner here no
opportunity for a hearing. I nonetheless join the court’s
opinion because the petitioner did not raise, before us or the
Commission, any objection to Interior’s procedure for devel-
oping its prescription.