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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 appearance.

Peggy A. Lautenschlager, Attorney General, Attorney General’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 licenses, the Federal Energy Regulatory Commission is obligated 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 presented 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 jurisdiction 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) affected by the development, operation, and management of the

project, each [hydroelectric] license issued TTT [by the Commission] shall include conditions for such protection, mitigation, 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 Commission shall require the construction, maintenance, and operation 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 Commission 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 Department’’), submitted recommended license conditions pursuant 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 maintenance of appropriate fishways at the project. The Commission 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 upstream 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 recommendations 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 construction 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 identify 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 fishway alternatives at the dam, including identifying and detailing 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 incorporate 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 environmental 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 costbenefit 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 jurisdiction of the court to consider WP&L’s challenge to the

Secretary’s fishways prescription. Because WP&L, according to the Secretary, did not argue in its request for rehearing 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 conditions, the Secretary maintains that the court may not consider the contentions presented in WP&L’s brief.

FPA § 313(b) provides in pertinent part that ‘‘[n]o objection 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 objections 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 denied), 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 condition 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 Secretary’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 challenge 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 preserve 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 Secretary’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 request 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 requirement.’’ 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 Commission 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 Secretary 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 upstream 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 proposition 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 recommendations 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 recommendations proffered further rationales that are supported by

substantial record evidence, such as that ‘‘reestablishing upstream 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 recommendations, 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 warrant 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 resources.

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 procedures 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 legislation does not change existing law, including case law, governing 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 Protection 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 administrative 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 addressing the prescriptions and establishing that the Secretary did

not act arbitrarily or capriciously. Firstly, the substantial

evidence standards normally applicable to review of the Commission’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 referenced, 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 support the Secretary’s prescription. For example, the Commission’s final environmental assessment established that turbine

mortality rates at the project could range up to twenty

percent, therefore showing the need for entrainment protection 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 demonstrating 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 record.

Secondly, in contending that there is not substantial evidence 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 Commission’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 entrained 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 evaluate entrainment, was done at the project. The record shows

that further studies at the project were not completed because WP&L rescinded its proposal to do so, despite its

consultant’s acknowledgment that such studies were ‘‘justified.’’ 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 reasonably 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 environmental assessment cast doubt on certain entrainment protective 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 entrainment.’’ The Secretary also noted a 2001 study demonstrating
14

the effectiveness of other devices at preventing the entrainment 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 assessment 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, contradicted the Commission’s hypotheses; the study showed that a

then-operable, preexisting navigation lock at the project permitted thousands of fish from a wide range of species, including 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 evidence, 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 outweigh 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–Electric 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 developing its prescription.