CALIFORNIA v. FERC(1990)
Pursuant to the Federal Power Act (FPA), respondent Federal Energy Regulatory Commission (FERC) issued a license authorizing the operation in California of a hydroelectric project, which draws, and releases a mile later, water from Rock Creek to drive its generators. After considering the project's economic feasibility and environmental consequences, FERC set an interim "minimum flow rate" of water that must remain in the bypassed section of the stream and thus remains unavailable to drive the generators. The State Water Resources Control Board (WRCB) issued a state water permit that conformed to FERC's interim minimum requirements, but reserved the right to set different permanent ones. When WRCB later considered a draft order requiring permanent minimum flow rates well in excess of the FERC rates, the licensee petitioned FERC for a declaration that FERC possessed exclusive jurisdiction to determine the project's minimum flow rates. FERC ordered the licensee to comply with the federal permit's rates, concluding that the task of setting such rates rested within its exclusive jurisdiction. It reasoned that setting the rates was integral to its planning and licensing process under the FPA, and that giving effect to competing state requirements would interfere with its balancing of competing considerations in licensing and would vest in States a veto power over federal projects inconsistent with the FPA, as interpreted in First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S. 152 . WRCB adopted the higher flow requirements and intervened seeking a rehearing of FERC's order. FERC denied the request, concluded that the State sought to impose conflicting license requirements, and reaffirmed its conclusion that it had exclusive jurisdiction to determine the rates. The Court of Appeals affirmed, concluding that FPA 27 - which saves from supersedure state "laws . . . relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein" - as construed in First Iowa, did not preserve the State's right to regulate minimum flow rates, and that the FPA pre-empted WRCB's minimum flow rate requirements. [495 U.S. 490, 491]
The California requirements for minimum stream flows cannot be given effect and allowed to supplement the federal flow requirements. Pp. 496-507.
O'CONNOR, J., delivered the opinion for a unanimous Court.
Roderick E. Walston, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, R. H. Connett, Assistant Attorney General, and Clifford T. Lee, Deputy Attorney General.
Stephen L. Nightingale argued the cause for respondents. With him on the brief for respondent Federal Energy Regulatory Commission were Solicitor General Starr, Deputy Solicitor General Merrill, Jerome M. Feit, Joseph S. Davies, and Raymond E. Hagenlock. Louis Touton and Erwin N. Griswold filed a brief for respondent Rock Creek Limited Partnership. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the State of Idaho et al. by Jim Jones, Attorney General, and Clive J. Strong, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Douglas B. Baily of Alaska, Robert K. Corbin of Arizona, Steve Clark of Arkansas, Duane Woodard of Colorado, Clarine Nardi Riddle of Connecticut, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, [495 U.S. 490, 493] Warren Price III of Hawaii, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Tom Miller of Iowa, Robert T. Stephan of Kansas, Frederic J. Cowan of Kentucky, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, J. Joseph Curran, Jr., of Maryland, James M. Shannon of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, William L. Webster of Missouri, Marc Racicot of Montana, Robert M. Spire of Nebraska, Brian McKay of Nevada, John P. Arnold of New Hampshire, Peter N. Perretti, Jr., of New Jersey, Hal Stratton of New Mexico, Robert Abrams of New York, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Anthony J. Celebrezze, Jr., of Ohio, Robert H. Henry of Oklahoma, Dave Frohnmayer of Oregon, Ernest D. Preate, Jr., of Pennsylvania, James E. O'Neil of Rhode Island, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, Charles W. Burson of Tennessee, Jim Mattox of Texas, Paul Van Dam of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Kenneth O. Eikenberry of Washington, Roger Tompkins of West Virginia, Donald J. Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming; for American Rivers et al. by Steven W. Weston; and for the Council of State Governments et al. by Benna Ruth Solomon and Richard J. Lazarus.
Briefs of amici curiae urging affirmance were filed for the City of Klamath Falls, Oregon, by Edward Weinberg and Richmond F. Allan; for the Edison Electric Institute et al. by Jerome C. Muys, Peter Kelsey, Robert L. McCarty, Wallace F. Tillman, and William J. Madden; for the Modesto Irrigation District et al. by Joel S. Moskowitz and Gregory J. Kerwin; for Pacific Gas and Electric Company et al. by Jack F. Fallin, Jr., Howard V. Golub, Thomas H. Nelson, and Jody L. Williams; and for Pacific Northwest Utilities by Jay T. Waldron.
Antonio Cosby-Rossmann filed a brief for the County of Inyo et al. as amici curiae. [495 U.S. 490, 493]
JUSTICE O'CONNOR delivered the opinion of the Court.
This case concerns overlapping federal and state regulation of a hydroelectric project located near a California stream. California seeks to ensure that the project's operators maintain water flowing in the stream sufficient, in the State's judgment, to protect the stream's fish. The Federal Government claims the exclusive authority to set the minimum stream flows that the federally licensed powerplant must maintain. Each side argues that its position is consistent with the Federal Power Act, ch. 285, 41 Stat. 1063, as [495 U.S. 490, 494] amended, 16 U.S.C. 791a et seq. (1982 ed.), and, in particular, with 27 of that Act. We granted certiorari to resolve these competing claims.
The Rock Creek hydroelectric project lies near the confluence of the South Fork American River and one of the river's tributaries, Rock Creek. Rock Creek runs through federally managed land located within California. The project draws water from Rock Creek to drive its generators and then releases the water near the confluence of the stream and river, slightly less than one mile from where it is drawn. The state and federal requirements at issue govern the "minimum flow rate" of water that must remain in the bypassed section of the stream and that thus remains unavailable to drive the generators.
In 1983, pursuant to the Federal Power Act (FPA or Act), the Federal Energy Regulatory Commission (FERC) issued a license authorizing the operation of the Rock Creek project. Keating, 23 FERC § 62,137. Section 4(e) of the FPA empowers FERC to issue licenses for projects "necessary or convenient . . . for the development, transmission, and utilization of power across, along, from, or in any of the streams . . . over which Congress has jurisdiction." 16 U.S.C. 797(e) (1982 ed.). Section 10(a) of the Act also authorizes FERC to issue licenses subject to the conditions that FERC deems best suited for power development and other public uses of the waters. 16 U.S.C. 803(a) (1982 ed.). Congress' subsequent amendments to those provisions expressly direct that FERC consider a project's effect on fish and wildlife as well as "power and development purposes." Electric Consumers Protection Act of 1986, Pub. L. 99-495, 100 Stat. 1243, 16 U.S.C. 797(e), 803(a)(1). FERC issued the 1983 license and set minimum flow rates after considering the project's economic feasibility and environmental consequences. In part to protect trout in the stream, the license [495 U.S. 490, 495] required that the project maintain interim minimum flow rates of 11 cubic feet per second (cfs) during May through September and 15 cfs during the remainder of the year. 23 FERC § 62,137, at 63,204. The license also required the licensee to submit studies recommending a permanent minimum flow rate, after consulting with federal and state fish and wildlife protection agencies. Ibid. In 1985, the licensee submitted a report recommending that FERC adopt the interim flow rates as permanent rates. The California Department of Fish and Game (CDFG) recommended that FERC require significantly higher minimum flow rates.
The licensee had also applied for state water permits, and in 1984 the State Water Resources Control Board (WRCB) issued a permit that conformed to FERC's interim minimum flow requirements but reserved the right to set different permanent minimum flow rates. App. 65-67. When the WRCB in 1987 considered a draft order requiring permanent minimum flow rates of 60 cfs from March through June and 30 cfs during the remainder of the year, the licensee petitioned FERC for a declaration that FERC possessed exclusive jurisdiction to determine the project's minimum flow requirements. Rock Creek Limited Partnership, 38 FERC § 61,240, p. 61,772 (1987). The licensee, by then respondent Rock Creek Limited Partnership, also claimed that the higher minimum flow rates sought by the WRCB would render the project economically infeasible. Ibid.
In March 1987, FERC issued an order directing the licensee to comply with the minimum flow requirements of the federal permit. In that order, FERC concluded that the task of setting minimum flows rested within its exclusive jurisdiction. Id., at 61,774. The Commission reasoned that setting minimum flow requirements was integral to its planning and licensing process under FPA 10(a); giving effect to competing state requirements "would interfere with the Commission's balancing of competing considerations in licensing" and would vest in States a veto power over federal [495 U.S. 490, 496] projects inconsistent with the FPA, as interpreted in First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S. 152 (1946). 38 FERC, at 61,773. FERC also directed an Administrative Law Judge to hold a hearing to determine the appropriate permanent minimum flow rates for the project. Id., at 61,774. After considering proposals and arguments of the licensee, the CDFG, and FERC staff, the Administrative Law Judge set the minimum flow rate for the project at 20 cfs during the entire year. Rock Creek Limited Partnership, 41 FERC § 63,019 (1987). Four days after FERC's declaratory order, the WRCB issued an order directing the licensee to comply with the higher minimum flow requirements contained in its draft order. App. 73. The WRCB also intervened to seek a rehearing of FERC's order. FERC denied the rehearing request, concluded that the State sought to impose conflicting license requirements, and reaffirmed its conclusion that the FPA, as interpreted in First Iowa, provided FERC with exclusive jurisdiction to determine minimum flow rates. Rock Creek Limited Partnership, 41 FERC § 61,198 (1987).
The Court of Appeals for the Ninth Circuit affirmed FERC's order denying rehearing. California ex rel. State Water Resources Board v. FERC, 877 F.2d 743 (1989). That court, too, concluded that First Iowa governed the case; that FPA 27 as construed in First Iowa did not preserve California's right to regulate minimum flow rates; and that the FPA pre-empted WRCB's minimum flow rate requirements. Ibid. We granted certiorari, 493 U.S. 991 (1989), and we now affirm.
In the Federal Power Act of 1935, 49 Stat. 863, Congress clearly intended a broad federal role in the development and licensing of hydroelectric power. That broad delegation of power to the predecessor of FERC, however, hardly determines the extent to which Congress intended to have the mines the extent to which Congress intended to have the Federal Government exercise exclusive powers, or intended [495 U.S. 490, 497] to pre-empt concurrent state regulation of matters affecting federally licensed hydroelectric projects. The parties' dispute regarding the latter issue turns principally on the meaning of 27 of the FPA, which provides the clearest indication of how Congress intended to allocate the regulatory authority of the States and the Federal Government. That section provides:
But the meaning of 27 and the pre-emptive effect of the FPA are not matters of first impression. Forty-four [495 U.S. 490, 498] years ago, this Court in First Iowa construed the section and provided the understanding of the FPA that has since guided the allocation of state and federal regulatory authority over hydroelectric projects. The Court interpreted 27 as follows:
We decline at this late date to revisit and disturb the understanding of 27 set forth in First Iowa. As petitioner prudently concedes, Tr. of Oral Arg. 7, First Iowa's interpretation of 27 does not encompass the California regulation at issue: California's minimum stream flow requirements neither reflect nor establish "proprietary rights" or "rights of the same nature as those relating to the use of water in irrigation or for municipal purposes." First Iowa, supra, at 176; see Fullerton v. State Water Resources Control Board, 90 Cal. App. 3d 590, 153 Cal. Rptr. 518 (1979); accord, California Trout, Inc. v. State Water Resources Control Board, 90 Cal. App. 3d 816, 153 Cal. Rptr. 672 (1979). Instead, petitioner [495 U.S. 490, 499] requests that we repudiate First Iowa's interpretation of 27 and the FPA. This argument misconceives the deference this Court must accord to longstanding and well-entrenched decisions, especially those interpreting statutes that underlie complex regulatory regimes. Adherence to precedent is, in the usual case, a cardinal and guiding principle of adjudication, and "[c]onsiderations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done." Patterson v. McLean Credit Union, 491 U.S. 164, 172 -173 (1989). There has been no sufficient intervening change in the law, or indication that First Iowa has proved unworkable or has fostered confusion and inconsistency in the law, that warrants our departure from established precedent. Cf. id., at 173. This Court has endorsed and applied First Iowa's limited reading of 27, see FPC v. Oregon, 349 U.S. 435 (1955); cf. FPC v. Niagara Mohawk Power Corp., 347 U.S. 239 (1954), and has employed the decision with approval in a range of decisions, both addressing the FPA and in other contexts. See, e. g., New England Power Co. v. New Hampshire, 455 U.S. 331, 338 , n. 6 (1982); Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 773 (1984); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 334 (1958); Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 223 , n. 34 (1983). By directing FERC to consider the recommendations of state wildlife and other regulatory agencies while providing FERC with final authority to establish license conditions (including those with terms inconsistent with the States' recommendations), Congress has amended the FPA to elaborate and reaffirm First Iowa's understanding that the FPA establishes a broad and paramount federal regulatory role. See 16 U.S.C. 803(a)(1)-(3) (FERC to issue license on conditions that protect fish and wildlife, after considering [495 U.S. 490, 500] recommendations of state agencies), as amended by the Electric Consumers Protection Act of 1986, 16 U.S.C. 803(j) (1)-(2) (FERC license conditions protecting fish and wildlife to be based on recommendations of federal and state wildlife agencies, with FERC to issue findings if it adopts conditions contrary to recommendations); cf. Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 424 (1986) ("We are especially reluctant to reject this presumption [of adherence to precedent] in an area that has seen careful, intense, and sustained congressional attention").
Petitioner asks this Court fundamentally to restructure a highly complex and long-enduring regulatory regime, implicating considerable reliance interests of licensees and other participants in the regulatory process. That departure would be inconsistent with the measured and considered change that marks appropriate adjudication of such statutory issues. See Square D Co., supra, at 424 (for statutory determinations, "`it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true, even where the error is a matter of serious concern, provided correction can be had by legislation,'" quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).
Petitioner also argues that we should disregard First Iowa's discussion of 27 because it was merely dictum. It is true that our immediate concern in First Iowa was the interpretation of 9(b) of the FPA, which governs submission to the federal licensing agency of evidence of compliance with state law. 1 The Court determined that 9(b) did not require [495 U.S. 490, 501] licensees to obtain a state permit or to demonstrate compliance with the state law prerequisites to obtaining such a permit. First Iowa, 328 U.S., at 163 -164, 167, 177. Instead, the Court construed the section merely as authorizing the federal agency to require evidence of actions consistent with the federal permit. Id., at 167-169, 177-179. First Iowa's limited reading of 27 was, however, necessary for, and integral to, that conclusion. Like this case, First Iowa involved a state permit requirement that related to the control of water for particular uses but that did not relate to or establish proprietary rights. Iowa had required as one condition of securing a state permit that diverted water be "returned . . . at the nearest practicable place without being materially diminished in quantity or polluted or rendered deleterious to fish life," Iowa Code 7771 (1939), a provision the Court found to conflict with the federal requirements and to "strik[e] at the heart of the present project." First Iowa, 328 U.S., at 166 -167, 170-171. The Court reasoned that, absent an express congressional command, 9(b) could not be read to require compliance with, and thus to preserve, state laws that conflicted with and were otherwise pre-empted by the federal requirements. See id., at 166-167 ("If a state permit is not required, there is no justification for requiring the petitioner, as a condition of securing its federal permit, to present evidence of the petitioner's compliance with the requirements of the State Code for a state permit"); id., at 177. Only the Court's narrow reading of 27 allowed it to sustain this interpretation of 9(b). Had 27 been given the broader meaning that Iowa sought, it would have "saved" the state requirements at issue, made the state permit one that could be issued, and supported the interpretation of 9(b) as [495 U.S. 490, 502] requiring evidence of compliance with those state requirements, rather than compliance only with those requirements consistent with the federal license.
The Court's related, but more general, rationale for its reading of 9(b) in First Iowa also necessarily rested on its narrow construction of 27. The Court framed the issue as whether the Act allowed the States to regulate through permit requirements such as Iowa's "the very requirements of the project that Congress has placed in the discretion of the Federal Power Commission." Id., at 165 (footnote citing FPA 10(a) omitted). The Court rejected the possibility of concurrent jurisdiction and interpreted the FPA as mandating divided powers and "a dual system involving the close integration of these powers rather than a dual system of futile duplication of two authorities over the same subject matter." Id., at 171; see id., at 174 (no "divided authority over any one subject"); id., at 181 (comprehensive federal role "leave[s] no room or need for conflicting state controls"). Section 9 reflected the operation of this exclusive federal authority. See id., at 167-169; id., at 168 ("Where the Federal Government supersedes the state government there is no suggestion that the two agencies both shall have final authority"). In accord with this view, the Court interpreted 9(b) as requiring compliance only with state measures relevant to federal requirements rather than, as would exist under a system of concurrent jurisdiction, compliance with the state requirements necessary to secure the state permit. Id., at 167-169. Instead, only 27 preserved and defined the States' exclusive regulatory sphere. Id., at 175-178. That is, the Court rejected an interpretation of 9(b) that would have "saved" or accommodated the state permit system and its underlying requirements. To reach its interpretation of 9(b), however, the Court had to interpret 27 consistently with the limited state regulatory sphere and in a manner that did not, by "saving" the Iowa requirements, establish "divided authority over any one subject." Id., at 174. Constricting [495 U.S. 490, 503] 27 to encompass only laws relating to proprietary rights, and thus leaving the permit requirements at issue to the federal sphere, accomplished that goal. The Court's discussion immediately after its extended discussion of 27 illustrates the relation between the sections. Before distinguishing 27's role in saving state law from 9(b)'s role in the sphere of exclusive federal regulation, the Court concluded:
Petitioner also argues that our decision in California v. United States, 438 U.S. 645 (1978), construing 8 of the Reclamation Act of 1902, 2 requires that we abandon First Iowa's interpretation of 27 and the FPA. Petitioner reasons that 8 is similar to, and served as a model for, FPA 27, that this Court in California v. United States interpreted 8 in a manner inconsistent with First Iowa's reading of 27, and that that reading of 8, subsequent to First Iowa, in some manner overrules or repudiates First Iowa's understanding of 27. [495 U.S. 490, 504] California v. United States is cast in broad terms and embodies a conception of the States' regulatory powers in some tension with that set forth in First Iowa, but that decision bears quite indirectly, at best, upon interpretation of the FPA. The Court in California v. United States interpreted the Reclamation Act of 1902; it did not advert to, or purport to interpret, the FPA, and held simply that 8 requires the Secretary of the Interior to comply with state laws, not inconsistent with congressional directives, governing use of water employed in federal reclamation projects. California v. United States, supra. Also, as in First Iowa, the Court in California v. United States examined the purpose, structure, and legislative history of the entire statute before it and employed those sources to construe the statute's saving clause. See 438 U.S., at 649 -651, 653-670, 674-675. Those sources indicate, of course, that the FPA envisioned a considerably broader and more active federal oversight role in hydropower development than did the Reclamation Act. Compare FPA 4, 9, 10, as codified, 16 U.S.C. 797, 802, 803, and First Iowa, 328 U.S., at 164 , 167-169, 171-174, 179-181, with Reclamation Act of 1902 1, 2, 32 Stat. 388, as codified, 43 U.S.C. 391, 411 (1982 ed.), and California v. United States, supra, at 649-651, 663-670.
Even if the two saving clauses were properly viewed in isolation from the remainder of their respective Acts and resulting regulatory schemes, significant differences exist between them. Section 8 of the Reclamation Act, after referring to state water laws relating to water used in irrigation and preserved by the Act, contains an explicit direction that "the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such [state] laws." 43 U.S.C. 383 (1982 ed.). This language has no counterpart in 27 of the FPA and was crucial to the Court's interpretation of 8. See California v. United States, supra, at 650, 664-665, 674-675. Although California v. United States and First Iowa accord different effect to laws relating [495 U.S. 490, 505] to water uses, this difference stems in part from the different roles assumed by the federal actor in each case, as reflected in 8's explicit directive to the Secretary. The Secretary in executing a particular reclamation project is in a position analogous to a licensee under the FPA and need not comply with state laws conflicting with congressional directives respecting particular reclamation projects, see 438 U.S., at 672 -674; similarly, a federal licensee under the FPA need not comply with state requirements that conflict with the federal license provisions established pursuant to the FPA's directives. An additional textual difference is that 8 refers only to "water used in irrigation" and contains no counterpart to 27's reference to "other uses," the provision essential to petitioner's argument. Laws controlling water used in irrigation relate to proprietary rights, as the First Iowa Court indicated, 328 U.S., at 176 , and n. 20, and 8 does not indicate the appropriate treatment of laws relating to other water uses that do not implicate proprietary rights.
Given these differences between the statutes and saving provisions, it should come as no surprise that California v. United States did not refer either to 27 or to First Iowa. Since the Court decided California v. United States, we have continued to cite First Iowa with approval. See, e. g., Escondido Mut. Water Co., 466 U.S., at 773 ; Pacific Gas & Electric Co., 461 U.S., at 223 , n. 34; New England Power Co., 455 U.S., at 338 , n. 6. We do not believe that California v. United States requires that we disavow First Iowa in this case.
Finally, petitioner argues that 27's legislative history requires us to abandon First Iowa's interpretation of that section. Whatever the usefulness of legislative history for statutory interpretation in the usual case, that source provides petitioner with no aid. If a quite natural reading of the statutory language fails to displace an intervening decision providing a contrary interpretation, legislative history supporting that reading and by definition before the Court that [495 U.S. 490, 506] has already construed the statute provides little additional reason to overturn the decision. Cf. Patterson, 491 U.S., at 172 -174 (reviewing sources most likely to prompt overruling of decision). Indeed, First Iowa expressly considered the legislative history of the FPA and of 27 in particular and found that source to support its interpretation of both. First Iowa, supra, at 171-174, 176, n. 20, 179. Given the tangential relation of the legislative history to the issue at hand and the interests supporting adherence to First Iowa, we decline to parse again the legislative history to determine whether the Court in First Iowa erred in its understanding of the development, as well as the meaning, of the statute.
Adhering to First Iowa's interpretation of 27, we conclude that the California requirements for minimum instream flows cannot be given effect and allowed to supplement the federal flow requirements. A state measure is "pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984) (citations omitted). As Congress directed in FPA 10(a), FERC set the conditions of the license, including the minimum stream flow, after considering which requirements would best protect wildlife and ensure that the project would be economically feasible, and thus further power development. See Rock Creek Limited Partnership, 41 FERC § 63,019 (1987); Keating, 23 FERC § 62,137 (1983); see also Rock Creek Limited Partnership, 41 FERC § 61,198 (1987). Allowing California to impose significantly higher minimum stream flow requirements would disturb and conflict with the balance embodied in that considered federal agency determination. FERC has indicated that the California requirements interfere with its comprehensive planning authority, and we agree that allowing California to impose the challenged requirements would be contrary to congressional intent [495 U.S. 490, 507] regarding the Commission's licensing authority and would "constitute a veto of the project that was approved and licensed by FERC." 877 F.2d, at 749; cf. First Iowa, supra, at 164-165.
For the foregoing reasons, the decision of the Court of Appeals for the Ninth Circuit is
[ Footnote 2 ] Section 8 of the Reclamation Act of 1902, 32 Stat. 390, now 43 U.S.C. 372, 383 (1982 ed.), provided in part: