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SCENIC HUDSON PRESERVATION CONF. v. CALLAWAY

December 28, 1973

SCENIC HUDSON PRESERVATION CONFERENCE et al., Plaintiffs,
v.
Howard H. CALLAWAY, Individually and as Secretary of the Army, Department of the Defense, U.S.A., et al., Defendants


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

This suit opens the third round of federal litigation involving the controversial Storm King project *fn1" since approval for its construction was first sought in 1963. *fn2" The proposed facility is a pumped storage hydroelectric generating plant of approximately 2,000 megawatts capacity to be constructed by the Consolidated Edison Company ("Con Ed") on the west bank of the Hudson River at Storm King Mountain in the vicinity of Cornwall, New York. It is primarily intended to provide electric power during periods of peak demand for New York City and parts of Westchester County.

The Storm King project was first licensed by the Federal Power Commission ("FPC") in March, 1965. 33 F.P.C. 428. That license, however, was set aside by the Court of Appeals for this Circuit and Con Ed's application was remanded to the FPC for further proceedings. Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), cert. denied sub nom. Consolidated Edison Co. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S. Ct. 1462, 16 L. Ed. 2d 540 (1966) [" Scenic Hudson I "]. Construction and operation of the project, as presently proposed, was licensed on August 19, 1970 (44 F.P.C. 350), and issuance of the license was sustained by the Court of Appeals in October, 1971. Scenic Hudson Preservation Conference v. Federal Power Commission, 453 F.2d 463 (2d Cir. 1971), cert. denied, 407 U.S. 926, 92 S. Ct. 2453, 32 L. Ed. 2d 813 (1972) [" Scenic Hudson II "]. Con Ed had intended to begin construction in November or December of this year, but awaits decision of the present motions.

 The phase of construction which this case involves concerns excavation or dredging in the Hudson River in order to construct intake facilities for the project's underground powerhouse and deposit or filling of the excavated or dredged materials into the Hudson. The latter would create new land along the river which would be conveyed to the Village of Cornwall for use as a park. Plaintiffs, three conservationist organizations and one individual, seek to enjoin these activities unless Con Ed obtains permits for them from the Army Corps of Engineers ("the Corps").

 At the outset of the present case, plaintiffs moved for preliminary injunctive relief. Thereafter the Corps and Con Ed cross-moved to dismiss the complaint, the latter also cross-claiming against the former and counter-claiming against plaintiffs for a declaratory judgment that no Corps permits are required. Plaintiffs subsequently moved for summary judgment granting them permanent injunctive and declaratory relief and for dismissal of Con Ed's counterclaim. The parties are agreed that no genuine issue of material fact exists to prevent the disposition of the case by summary judgment on the merits.

 Plaintiffs contend that Con Ed is required to obtain permits from the Corps for its proposed activities under two provisions, Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. § 403) and Section 404 of the Federal Water Pollution Control Act, as amended in 1972 (33 U.S.C. § 1344). They argue that these sections on their face require obtaining permits and that nothing in the acts themselves or in any other act relieves Con Ed of this obligation.

 Con Ed maintains that the permit authority of the Corps under the 1899 Act as to hydroelectric projects was removed by the Federal Power Act of 1920, 16 U.S.C. § 792 et seq., which vested licensing power over such projects solely in the FPC. As to the 1972 Amendments to the Federal Water Pollution Control Act, *fn3" Con Ed argues that the Storm King project is exempt from the permit requirements of § 404 of the Act because 1) that section is merely an environmental adjunct to Section 10 of the 1899 Act and applies only to discharges resulting from the dredging of ship channels in navigable waters; 2) Congress did not intend § 404 to apply to FPC licensed activities and the proposed Corps regulations under § 404 do not in fact apply to such activities; and 3) applying § 404 to projects previously licensed by the FPC would violate the "Grandfather" clause (§ 28) of the Federal Power Act.

 The Corps originally granted three permits to Con Ed pursuant to § 10 of the 1899 Act. These permits have expired by their own terms and the Corps now maintains that granting them in the first instance was an administrative error since no permit is required under the 1899 Act. As to § 404, although at the outset of this suit the Corps took the position that it was inapplicable to the Storm King project, its present posture is that Con Ed is required to seek a permit under that section.

 I. Rivers and Harbors Act.

 Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, provides:

 
"The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; . . . and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity . . . of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same."

 Con Ed concedes that on its face § 10 requires a permit for its proposed activities at Cornwall, but argues that the Federal Power Act has superseded § 10 and eliminated any obligations to secure a permit.

 The 1920 Federal Water Power Act, which became Part I of the present Federal Power Act, *fn4" gave the FPC licensing control over the construction and operation of hydroelectric projects. Specifically, the FPC was authorized

 
"to issue licenses . . . to any corporation organized under the laws of . . . any State . . . for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction. . . . " § 4(e), 16 U.S.C. § 797(e).

 Furthermore, § 23 of the Act made it unlawful to construct any hydroelectric plant without an FPC license. 16 U.S.C. § 817. Since the Storm King project's construction unquestionably falls under the jurisdiction of the FPC, there is no doubt that an FPC license is required for it. Such a license has been obtained and the sole remaining question is whether its acquisition relieves Con Ed of any obligation under the 1899 Act.

 Con Ed argues that the Federal Power Act vests exclusive jurisdiction over hydroelectric plants in the FPC and denies any other federal agency licensing power over projects within its jurisdiction. It supports this argument by reference to § 29 of the Federal Power Act which states that "All Acts or parts of Acts inconsistent with this chapter are repealed." 16 U.S.C. § 823. Con Ed submits that Corps licensing of hydroelectric plants under § 10 of the 1899 Act is inconsistent with § 29 of the Federal Power Act and that the former, to the extent that it applied to hydroelectric plants, has been repealed by the latter. Plaintiffs contend that the statutes are not inconsistent and licenses are required under both.

 In the most literal sense, the two Acts are not inconsistent since additional licensing by the Corps does not detract from the licensing power accorded the FPC under § 4(e) of the Power Act. Con Ed's argument is more far-reaching, however, since it flows from the alleged over-all purpose rather than any specific provision of the Power Act. The thrust of Con Ed's approach is simply that in enacting the Power Act Congress intended to do away with piece-meal licensing of hydroelectric plants, so that duplicative licensing violates the spirit if not the words of the Act.

 Fortunately, we are not required to speculate in the dark. Both legislative history and judicial interpretation of the Power Act are extensive and leave little doubt that Con Ed's approach more closely accords with the Act than that urged by plaintiffs.

 Taking the legislative history first, we note that the House Report discussion of the bill, as quoted in Con Ed's brief, states:

 
"The salient features of the bill herewith reported are the creation of a commission known as the Federal Power Commission, to be composed of the Secretaries of War, Interior and Agriculture. To the Commission are given the powers heretofore exercised by the Secretaries in connection with water power development under their several jurisdictions . . . .
 
The [Water Power] bill . . . proposes a method by which the water powers of the country, wherever located, can be developed by public or private agencies under conditions which will give the necessary security to the capital invested and at the same time protect and preserve every legitimate public interest. It provides that the administration of water power within Federal jurisdiction, which have hitherto been handled independently by three separate departments [War, Agriculture and Interior] in order that duplication may be avoided, that a common policy may be pursued, and that the combined efforts of the three agencies may be ...

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