In a significant victory for the hydropower industry, last week the U.S. District Court for the District of Oregon issued an order in Cascadia Wildlands v. EWEB (Case No. 6:25-00446), reaffirming that the U.S. courts of appeals, on review of orders of the Federal Energy Regulatory Commission (FERC), have exclusive jurisdiction over controversies related to fish passage and other environmental measures included in hydropower licenses issued by FERC. This decision adds to precedent making clear that project opponents may not collaterally attack fish passage conditions in FERC licenses via citizen suits filed under the Endangered Species Act (ESA).
Cascadia Wildlands involved fish passage requirements for the Eugene Water and Electric Board’s (EWEB) Trail Bridge Dam, which is part of the Carmen-Smith Hydroelectric Project on the McKenzie River in Oregon. EWEB operates the Trail Bridge Dam under the terms of a FERC license issued in 2019. The Trail Bridge Dam presents a barrier to upstream passage of Chinook salmon and bull trout protected under the ESA. The 2019 license required EWEB to implement a permanent trap-and-haul program for upstream fish passage and spillway improvements at the Trail Bridge Dam. The fish passage requirements are consistent with the terms and conditions of Incidental Take Statements (ITS) in the National Marine Fisheries Service’s and Fish and Wildlife Service’s (collectively, the Services) Biological Opinions for ESA-listed Chinook salmon and bull trout, respectively.
In March 2025, a coalition of environmental organizations filed a citizen suit under ESA Section 9, alleging that EWEB had failed to timely complete the fish passage requirements in its license, and thus the take coverage provided in the ITSs was no longer valid. The plaintiffs sought an order requiring EWEB to either complete volitional fish passage at the Trail Bridge Dam as quickly as possible or, alternatively, decommission and remove the dam. Subsequently, the plaintiffs requested a preliminary injunction seeking immediate modifications to EWEB’s ongoing temporary trap-and-haul program.
In response, EWEB filed a motion to dismiss, arguing that the district court lacked subject matter jurisdiction over the plaintiffs’ ESA claims. More specifically, EWEB argued that Section 313(b) of the Federal Power Act (FPA) conferred exclusive jurisdiction to the U.S. courts of appeals, following proceedings at FERC, for actions that implicate hydropower licenses. The plaintiffs countered that their ESA Section 9 claim was independent of the FERC license and could be heard by the district court. The plaintiffs also argued that proceedings before FERC were unnecessary with respect to fish passage, as FERC has no authority under FPA Section 18 to modify or reject fishways prescribed by the Services.
The court first analyzed the jurisdictional provisions of the FPA and ESA, concluding that the FPA’s exclusive grant of jurisdiction prevailed over the ESA’s general grant of jurisdiction. Considering the exclusive jurisdiction conferred by Section 313(b), “all objections to [FERC’s] order, to the license it directs to be issued, and to the legal competence of the licensee to execute its terms, must be made in the Court of Appeals or not at all.” Slip Op. at 8 (quoting City of Tacoma v. Taxpayers ofTacoma, 357 U.S. 320 (1958)). In contrast, the court observed that the ESA’s judicial review provisions included a “general” grant of jurisdiction to the district court, which “must therefore give way to the more specific language of the FPA.” Id.
The court then examined whether the plaintiffs’ ESA Section 9 claim was, in substance, a collateral attack on the FERC license. Relying on Ninth Circuit precedent, the court ruled that the plaintiffs’ claims, though styled as ESA violations, effectively challenged FERC’s licensing decisions regarding fish passage, including a remedy proposed by the plaintiffs (volitional fish passage) that FERC considered and rejected during relicensing. Slip Op. at 10-11 (citing Sauk-Suiattle Indian Tribe v. City of Seattle, 56 F.4th 1179 (9th Cir. 2022)). Because FPA Section 313(b) expressly grants exclusive jurisdiction to the U.S. courts of appeals to hear challenges to FERC’s licensing decisions, the court concluded it lacked subject matter jurisdiction over the plaintiffs’ claims. The court made clear that the plaintiffs “may not avoid the FPA’s strict jurisdictional limits” by styling their challenge to conditions of the FERC license as ESA Section 9 violations. Slip Op. at 9 (quoting California Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 911 (9th Cir. 1989) (internal quotations omitted)).
The court also stated that its ruling would not “exempt” FERC-licensed hydropower projects from ESA Section 9 liability, considering FERC’s obligation to monitor license compliance (including compliance with ITS terms and conditions included in a license) and to reinitiate consultation under ESA Section 7 if “the amount or extent of taking specified in the incidental take statement is exceeded.” Slip Op. at 10-11 (quoting 50 C.F.R. § 402.16).
Finally, the court observed that, while ESA Section 9 was the trigger for the plaintiffs’ lawsuit, “it is impossible to ignore the extent to which this Court would be required to wade into the issue of adequate fish passage in addressing any remedy, which is the exact issue being considered in ongoing conversations between the Services, FERC, and [EWEB].” Slip Op. at 13. Because FPA Section 313(b) grants the U.S. courts of appeals exclusive jurisdiction, it would “frustrate the purpose of the FPA by creating a parallel proceeding that addresses the same fish passage issues being discussed by [EWEB], FERC, and the Services related to [EWEB’s] license.” In light of these determinations, the court dismissed the lawsuit with prejudice on jurisdictional grounds.
Troutman Pepper Locke represented EWEB in Cascadia Wildlands v. EWEB. A copy of the court’s order is available here.
