FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SNOQUALMIE INDIAN TRIBE, 

Petitioner,

STATE OF WASHINGTON DEPARTMENT

OF ECOLOGY,

Intervenor, No. 05-72739

v.  FERC No.

FEDERAL ENERGY REGULATORY 2493-016

COMMISSION,

Respondent,

PUGET SOUND ENERGY, INC.,

Intervenor. 

PUGET SOUND ENERGY, INC., 

Petitioner,

STATE OF WASHINGTON DEPARTMENT

OF ECOLOGY,

No. 05-74060 Intervenor,

FERC No.

v.  2493-027

FEDERAL ENERGY REGULATORY OPINION COMMISSION,

Respondent,

SNOQUALMIE INDIAN TRIBE,

Intervenor. 

On Petition for Review of an Order of the

Federal Energy Regulatory Commission

14233
Argued February 8, 2007

Submitted September 30, 2008

Seattle, Washington

Filed October 7, 2008

Before: Raymond C. Fisher and Richard C. Tallman,

Circuit Judges, and David A. Ezra,* District Judge.

Opinion by Judge Tallman

*The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation. 

14234 SNOQUALMIE INDIAN TRIBE v. FERC
COUNSEL

Andrea Rodgers, Charles M. Tebbutt, Western Environmental

Law Center, Eugene, Oregon, for petitioner Snoqualmie

Indian Tribe. 

Mark W. Schneider, Markham A. Quehrn, and Kristine R.

Wilson, Perkins Coie LLP, Bellevue, Washington, for

petitioner/intervenor Puget Sound Energy, Inc. 

John S. Moot, Robert H. Solomon, Michael E. Kaufmann,

Washington, D.C., for respondent Federal Energy Regulatory

Commission. 

Rob McKenna, Joan M. Marchioro, Olympia, Washington,

for intervenor Washington Department of Ecology. 

SNOQUALMIE INDIAN TRIBE v. FERC 14237
Michael W. Gendler, Gendler & Mann LLP, Seattle, Washington, for amici curiae Washington Association of Churches,

the Church Council of Greater Seattle, and the Lutheran Public Policy Office of Washington State. 

Harold S. Shepherd, Clinton, Colorado, for amicus curiae

Center for Water Advocacy. 

OPINION

TALLMAN, Circuit Judge: 

The Snoqualmie Tribe petitions for review of a decision of

the Federal Energy Regulatory Commission (“FERC”) granting Puget Sound Energy, Inc. (“PSE”) a license to operate for

another forty years the Snoqualmie Falls Hydroelectric Project. The Tribe argues that FERC’s relicensing decision violates the Religious Freedom Restoration Act (“RFRA”)

because FERC employed the wrong legal standard for reviewing claims under RFRA and because substantial evidence

does not support FERC’s conclusion that the relicensing decision does not substantially burden the Tribe’s free exercise of

religion. The Tribe also asserts that FERC failed to consult

with the Tribe on a government-to-government basis in violation of the National Historic Preservation Act (“NHPA”). PSE

cross-petitions for review of FERC’s decision to impose water

flow requirements that exceed those established in the Washington State Department of Ecology’s (“Ecology”) water

quality certification (“WQC”). 

We have jurisdiction under 16 U.S.C. § 825l(b). After hearing argument in this appeal, we vacated submission pending

publication of Navajo Nation v. U.S. Forest Serv., No. 06-

15371, 535 F.3d 1058, slip op. 10033 (9th Cir. filed Aug. 8,

2008) (en banc). In reliance on that opinion, we now issue our

decision in this case. We deny the petitions for review. 

14238 SNOQUALMIE INDIAN TRIBE v. FERC
First, substantial evidence supports FERC’s finding that the

relicensing decision does not substantially burden the Tribe’s

free exercise of religion. Second, we conclude that, although

FERC employed the wrong standard for analyzing RFRA

claims, this error was harmless because FERC’s standard was

more generous to plaintiffs than the standard we have now

articulated in Navajo Nation and the Tribe has failed to demonstrate a substantial burden that would meet the Navajo

Nation standard. Third, because the record for purposes of

NHPA § 106 consultation closed in 1997—before the Tribe

gained federal recognition in 1999—FERC was not obligated

to consult with the Tribe on a government-to-government

basis. Finally, FERC’s amendment of the license order’s

minimum instream flow provisions did not conflict with the

conditions in Ecology’s WQC and was supported by substantial evidence.

I

Snoqualmie Falls is a 268-foot waterfall about thirty miles

east of Seattle on the Snoqualmie River as it flows down from

the Cascade Mountains. If the Snoqualmie River flowed

freely over the Falls, water flows in years of normal rainfall

would exceed 1000 cubic feet per second (“cfs”) eighty percent of the time. 

Puget Sound Power and Light, predecessor to PSE, constructed a hydroelectric power plant at the Falls in 1898. The

Federal Power Commission issued a license for the project in

1975. Puget Sound Power & Light Co., 53 F.P.C. 1657

(1975), 54 F.P.C. 157 (1975), 54 F.P.C. 599 (1975). The project consists of a low-level diversion dam located upstream

from the Falls, an underground power plant, and an aboveground power plant downstream of the Falls, with a total generating capacity of 44.4 megawatts. Electricity produced by

the project annually averages about 273,000 megawatt hours,

depending upon rainfall. The 1975 license mandated that PSE

SNOQUALMIE INDIAN TRIBE v. FERC 14239
maintain an instream flow of 100 cfs over the Falls during

daylight hours. 

The Falls is considered a sacred site by the few hundred

enrolled members who today comprise the Snoqualmie Tribe.

The Falls plays a central role in the Tribe’s creation story and

is an important location for its religious practices. The Tribe

believes that the mist generated by the Falls connects the earth

to the heavens and that a powerful water spirit lives in the

plunge pool below the Falls. A 1993 article co-authored by

anthropologist Kenneth Tollefson and sociologist Martin

Abbott found that “[t]he Falls provides a place for contemporary Snoqualmie to gather to pray, to meditate, to worship,

and to renew their contact with their ancestors and their spiritual powers.” The Tribe performs religious ceremonies at the

Falls, including “vision quests,” often multi-day events in

which individual tribal members seek spiritual contact

through meditation, fasting, and bathing in the water below

the Falls. The Falls has been designated as eligible for listing

on the National Register of Historic Places as a Traditional

Cultural Property. 

On November 25, 1991, PSE filed an application with

FERC for the relicensing of its hydroelectric project pursuant

to the Federal Power Act, 16 U.S.C. §§ 791-828c. As required

by the Clean Water Act, 33 U.S.C. §§ 1251-1387 (“CWA”),

PSE also requested a WQC from the Department of Ecology.

Ecology issued a WQC for the project on September 24,

2003. The WQC specified minimum water flows over the

Falls, ramping rates, and water quality monitoring. 

In evaluating PSE’s license application, FERC considered

several alternatives, including the proposed action (PSE’s proposal to increase water diversion by an additional 1,500 cfs

and to make major structural modifications), a minor upgrade

(refurbishment of the existing project and a substantial

increase in flows), and the Tribe’s preferred alternative

(decommissioning the entire project). FERC took the middle

14240 SNOQUALMIE INDIAN TRIBE v. FERC
ground and ultimately recommended and licensed the minor

upgrade. 

As part of the NHPA § 106 process, PSE prepared and submitted a Cultural Resources Mitigation and Management Plan

(“Cultural Plan”) and a Historical Resources Mitigation and

Management Plan (“Historical Plan”) on February 26, 1996.

On December 19, 1996, FERC filed a letter requesting the

Advisory Council on Historic Preservation to sign the Programmatic Agreement, which implemented these plans, and

indicated that the requirements of § 106 had been satisfied.

On January 22, 1997, the Advisory Council signed the Programmatic Agreement, thus closing the record for purposes of

NHPA § 106. The Snoqualmie Tribe did not achieve federal

recognition until October 6, 1999. See Final Determination To

Acknowledge the Snoqualmie Tribal Organization, 62 Fed.

Reg. 45,864 (Aug. 29, 1997). 

On June 29, 2004, FERC issued an order relicensing the

project (the “License Order”). As required by § 401 of the

CWA, 33 U.S.C. § 1341(d), FERC made compliance with the

WQC a condition of the license. In the License Order, FERC

adopted the minimum water flows established in the WQC

except for requiring greater water flows during Labor Day

weekend. The resulting mandated minimum flows, as set forth

in Article 21 and Appendix A, were as follows: May 16-31:

200 cfs at all times; June 1-30: 450 cfs at all times; July 1-

August 31: 100 cfs during daytime and 25 cfs during nighttime (except weekends and holidays, which require 200 cfs at

all times); September 1-May 15: 100 cfs during daytime and

25 cfs during nighttime (except Labor Day weekend, which

requires 200 cfs during daytime). 

On July 29, 2004, the Tribe filed a request for rehearing

and stay of the License Order. On August 30, 2004, FERC

temporarily granted rehearing for further consideration. On

March 1, 2005, FERC issued an order partially granting and

partially denying the Tribe’s request and denying a stay (the

SNOQUALMIE INDIAN TRIBE v. FERC 14241
“First Rehearing Order”). FERC revised Article 421 of the

License to require 1000 cfs at all times during May and June,

thus conforming the License to the higher minimum daytime

flows recommended by FERC staff in the final Environmental

Impact Statement (“EIS”). On April 28, 2005, the Tribe petitioned us to review the First Rehearing Order. 

On March 31, 2005, PSE requested that FERC rehear the

First Rehearing Order pursuant to 16 U.S.C. § 825l(a). On

June 1, 2005, FERC issued an order denying PSE’s request

for rehearing (the “Second Rehearing Order”). On July 8,

2005, PSE petitioned for review of the Second Rehearing

Order. 

We granted PSE’s and the Tribe’s motions to intervene in

the petition for review proceedings. The Washington Department of Ecology was also granted intervention. We granted

the parties’ joint motion to consolidate the proceedings. This

consolidated appeal challenges the Licensing Order, First

Rehearing Order, and Second Rehearing Order (collectively,

the “relicensing decision”). 

II

Under the Administrative Procedure Act, agency decisions

may be set aside only if “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A); United States v. Bean, 537 U.S. 71, 77 (2002);

High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 638 (9th

Cir. 2004). An agency’s decision can be upheld only on the

basis of the reasoning in that decision. Anaheim Mem’l Hosp.

v. Shalala, 130 F.3d 845, 849 (9th Cir. 1997). We may

reverse under the arbitrary and capricious standard if the

agency relied on factors that Congress did not intend it to consider, or offered an explanation for its decision that runs

counter to the evidence or is so implausible that it could not

be ascribed to a difference in view or the product of agency

14242 SNOQUALMIE INDIAN TRIBE v. FERC
expertise. Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir.

2003), amended by 352 F.3d 1186 (9th Cir. 2003). 

Under the Federal Power Act, “[t]he finding of the Commission as to the facts, if supported by substantial evidence,

shall be conclusive.” 16 U.S.C. § 825l(b); Pub. Utils. Comm’n

of Cal. v. FERC, 462 F.3d 1027, 1045 (9th Cir. 2006). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1076 (9th

Cir. 2003) (quoting Eichler v. SEC, 757 F.2d 1066, 1069 (9th

Cir. 1985)). If the evidence is susceptible to more than one

rational interpretation, the court may not substitute its judgment for that of the agency. See id. Where, as here, “a court

reviews an agency action ‘involv[ing] primarily issues of

fact,’ and where ‘analysis of the relevant documents requires

a high level of technical expertise,’ we must ‘defer to the

informed discretion of the responsible federal agencies.’ ”

Sierra Club, 346 F.3d at 961 (quoting Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 377 (1989)); see also Lands

Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008). 

An agency’s interpretation or application of a statute is a

question of law reviewed de novo. Schneider v. Chertoff, 450

F.3d 944, 952 (9th Cir. 2006). When a statute is silent or

ambiguous on a particular point, the court may defer to the

agency’s interpretation if based on a permissible construction

of the statute. See Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843 (1984); Espejo v. INS, 311

F.3d 976, 978 (9th Cir. 2002).

III

[1] RFRA provides that the government “shall not substantially burden a person’s exercise of religion even if the burden

results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental

SNOQUALMIE INDIAN TRIBE v. FERC 14243
interest; and (2) is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)-

(b). This statute was Congress’s response to a First Amendment decision of the Supreme Court that, in Congress’s view,

“virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral

toward religion.” Id. § 2000bb(a)(4). RFRA restores the compelling interest test set forth in Sherbert v. Verner, 374 U.S.

398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and

“guarantee[s] its application in all cases where free exercise

of religion is substantially burdened.” 42 U.S.C.

§ 2000bb(b)(1); see also Navajo Nation, 535 F.3d at __ , slip

op. at 10051. 

The Tribe contends that FERC violated RFRA by employing the wrong definition of substantial burden when issuing

the First Rehearing Order and License Order.1 The Tribe also

argues that FERC’s ultimate conclusion that the hydroelectric

project does not substantially burden the Tribe’s religious

exercise is not supported by substantial evidence because the

continued operation of the hydroelectric project prevents the

Tribe from having necessary religious experiences in three

ways: its operation deprives the Tribe of access to the Falls

for vision quests and other religious experiences, eliminates

the mist necessary for the Tribe’s religious experiences, and

alters the ancient sacred cycle of water flowing over the Falls.

1The Tribe and Amici also argue that FERC conflated the requirements

of the Free Exercise Clause of the First Amendment with those of RFRA

through its reliance on Lyng v. Northwest Indian Cemetery Protective

Association, 485 U.S. 439 (1988). But, in its License Order, FERC only

cited to Lyng in a footnote immediately following a sentence solely

addressing the Tribe’s First Amendment claim. Similarly, in the First

Rehearing Order, FERC addressed Lyng only in the context of the Tribe’s

First Amendment claim. Because the Tribe did not raise a First Amendment challenge before us, we need not assess FERC’s application of the

First Amendment or, within that context, Lyng. See Guam v. Guerrero,

290 F.3d 1210, 1215-19, 1222-23 (9th Cir. 2002) (differentiating between

protection afforded by, and standards under, the Free Exercise Clause of

the First Amendment and RFRA). 

14244 SNOQUALMIE INDIAN TRIBE v. FERC
In our recent en banc decision in Navajo Nation, we reconsidered what constitutes a substantial burden under RFRA,

adopting a narrower definition of that term than we had in

prior decisions. There, the plaintiff tribe challenged the federal government’s approval of the use for skiing of artificial

snow containing recycled wastewater of which 0.0001% was

comprised of human waste. The tribe asserted that use of the

artificial snow on a mountain it considered sacred “desecrates

the entire mountain, deprecates [its] religious ceremonies, and

injures [its] religious sensibilities.” 535 F.3d at ___, slip op.

at 10040. 

[2] We disagreed. Central to resolution of that case was

whether use of the recycled wastewater imposed a substantial

burden on the plaintiff tribe’s exercise of its religion. We reiterated congressional intent to “restore the compelling interest

test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)[,]

and Wisconsin v. Yoder, 406 U.S. 205 (1972)[,] and to guarantee its application in all cases where free exercise of religion is substantially burdened.” Navajo Nation, 535 F.3d at

__, slip op. at 10051 (quoting 42 U.S.C. § 2000bb(b)(1)).

Plainly, Congress intended that for RFRA to apply, a government enactment first burden the exercise of religion and then

do so substantially. We emphasized that “the government is

not required to prove a compelling interest for its action or

that its action involves the least restrictive means to achieve

its purpose, unless the plaintiff first proves the government

action substantially burdens his exercise of religion.” Id.

(emphasis added). 

[3] The term “substantial burden,” as used in RFRA, “expressly adopted and restored . . . Sherbert, Yoder, and federal

court rulings,” Id. at ___, slip op. at 10052, as “a workable

test for striking sensible balances between religious liberty

and competing governmental interests.” Id. at ___, slip op. at

10051 (quoting 42 U.S.C. § 2000bb(a)(5)). These cases led us

to conclude: 

SNOQUALMIE INDIAN TRIBE v. FERC 14245
Under RFRA, a “substantial burden” is imposed only

when individuals are forced to choose between following the tenets of their religion and receiving a

governmental benefit (Sherbert) or [are] coerced to

act contrary to their religious beliefs by the threat of

civil or criminal sanctions (Yoder). 

Id. at ___, slip op. at 10053. 

Thus, when “[a]pplying Sherbert and Yoder,” we concluded “there is no ‘substantial burden’ on the [plaintiff

tribe’s] exercise of religion in this case.” Id.

The use of recycled wastewater on a ski area that

covers one percent of the Peaks does not force the

Plaintiffs to choose between following the tenets of

their religion and receiving a governmental benefit,

as in Sherbert. The use of recycled wastewater to

make artificial snow also does not coerce the Plaintiffs to act contrary to their religion under the threat

of civil or criminal sanctions, as in Yoder. The Plaintiffs are not fined or penalized in any way for practicing their religion on the Peaks or on the

Snowbowl. Quite the contrary: the Forest Service

“has guaranteed that religious practitioners would

still have access to the Snowbowl” and the rest of the

Peaks for religious purposes. 

The only effect of the proposed upgrades is on the

Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on

the Peaks is offensive to the Plaintiffs’ religious sensibilities. To plaintiffs, it will spiritually desecrate a

sacred mountain and will decrease the spiritual fulfillment they get from practicing their religion on the

mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment—

14246 SNOQUALMIE INDIAN TRIBE v. FERC
serious though it may be—is not a “substantial burden” on the free exercise of religion. 

Id. at ___, slip op. at 10053-54 (internal citation omitted). 

[4] Navajo Nation is dispositive here. The Tribe’s arguments that the dam interferes with the ability of tribal members to practice religion are irrelevant to whether the

hydroelectric project either forces them to choose between

practicing their religion and receiving a government benefit or

coerces them into a Catch-22 situation: exercise of their religion under fear of civil or criminal sanction. After reviewing

the voluminous record in this case, we have not found any

evidence demonstrating that Snoqualmie Tribe members will

lose a government benefit or face criminal or civil sanctions

for practicing their religion. We therefore hold that substantial

evidence supports FERC’s decision relicensing the project

and that it does not impose a substantial burden under RFRA

on the tribal members’ ability to exercise their religion, as we

have defined substantial burden in Navajo Nation. 

[5] In light of Navajo Nation, the Tribe’s argument that

FERC violated RFRA fails because, although it did not have

the benefit of our recent en banc decision to guide it, the standard FERC applied, though erroneous in hindsight, was more

favorable to the Tribe, and thus any error was harmless. In the

License Order,2 FERC stated:

[RFRA] appears to apply to situations in which the

Government has either prohibited an individual’s

religious practice or required an individual to take

some action contrary to his or her religion [Fn. 41]—

not to situations in which the Government took some

2

In the First Rehearing Order, FERC did not reiterate its standard for

evaluating the Tribe’s RFRA claim, most likely because the Tribe did not

clearly challenge FERC’s elucidation of the RFRA standard in its Request

for Rehearing. 

SNOQUALMIE INDIAN TRIBE v. FERC 14247
action which incidentally affected the quality of an

individual’s religious experience. [Fn. 42] The issuance of a new license will not require the Snoqualmie to violate their religious beliefs. Nor does it

prohibit or prevent the Snoqualmies’ access to Snoqualmie Falls, their possession and use of religious

objects, or the performance of religious ceremonies.

Footnote 41 of the Order notes that “[RFRA] states that Federal activities which inhibit the free exercise of any religion

must satisfy a compelling Government interest and must be

the least restrictive means to accomplish the purpose.” Footnote 42 cites to Sherbert, 374 U.S. 398, and Yoder, 406 U.S.

205, “whose compelling interest test [RFRA] was intended to

restore.” 

[6] Even if FERC’s definition of substantial burden in its

License Order comported with our elucidation of what a religious adherent must prove to establish a RFRA violation at

the time FERC issued the License Order, its articulation of the

substantial burden test is inconsistent with our definition of

that term in Navajo Nation. However, as should now be clear,

any error was harmless because the Tribe has not provided

evidence that the dam project imposes a substantial burden on

its members’ religious exercise under the Navajo Nation clarification of the substantial burden standard.3

3As an additional matter, the Tribe and Amici argue that FERC’s statement that RFRA does not apply “to situations in which the Government

took some action which incidentally affected the quality of an individual’s

religious experience,” equates to a finding that incidental burdens arising

out of neutral and generally applicable laws never require more than rational basis scrutiny. But FERC did not say that RFRA never applies to any

law of general applicability; rather, it indicated that RFRA does not prohibit the government from taking an action “which incidentally affected

the quality of an individual’s religious experience.” That statement is consistent with our conclusion in Navajo Nation that RFRA does not prohibit

a law of general applicability that merely diminishes the quality of an individual’s religious experience, so long as the law does not force religious

adherents to choose between following the tenets of their religion and

receiving governmental benefits or coerce them to act contrary to their

religious beliefs by the threat of civil or criminal sanction. See Navajo

Nation, 535 F.3d at ___, slip op. at 10053. 

14248 SNOQUALMIE INDIAN TRIBE v. FERC
IV

[7] The Tribe argues that FERC failed to engage in

government-to-government consultation with the Tribe as

required by NHPA and its own regulations.4 Section 106 of

NHPA, 16 U.S.C. § 470f, requires FERC to consider any

effects of the project upon the Falls, a Traditional Cultural

Property eligible for listing in the National Register of Historic Places. Section 106 and its accompanying regulations,

36 C.F.R. Part 800, require government-to-government consultation with federally recognized tribes. See 36 C.F.R.

§§ 800.2(c)(2) (designating tribes as consulting party), 800.4

(regarding identification of historic properties), 800.5(a),

(c)(2)(iii) (regarding assessment of adverse effects), 800.6

(regarding resolution of adverse effects), 800.14(f) (regarding

generation of programmatic agreement); see also id. § 800.8

(regarding coordination with NEPA). In addition, in 2003

FERC promulgated a Policy Statement on Consultation with

Indian Tribes in Commission Proceedings, 18 C.F.R. § 2.1c,

which elucidates the meaning of “government-togovernment” consultation. 

[8] The Tribe achieved federal recognition on October 6,

1999, more than two years after the finalization of the key

documents generated pursuant to § 106 of NHPA: the Cultural Plan, the Historical Plan, and the Programmatic Agreement. On December 19, 1996, FERC filed a letter requesting

the Advisory Council on Historic Preservation to sign the Programmatic Agreement, which incorporated the Cultural and

4

In its opening brief, the Tribe alleges that FERC’s failure to engage in

government-to-government consultation amounts to a violation of (1) the

American Indian Religious Freedom Act (“AIRFA”), 42 U.S.C. § 1996,

and (2) Bulletin 38, see Patricia L. Parker & Thomas F. King, U.S. Dep’t

of the Interior, National Register Bulletin 38: Guidelines for Evaluating

and Documenting Traditional Cultural Properties (1990). The Tribe did

not challenge FERC’s degree of tribal consultation under AIRFA or Bulletin 38 in its Request for Rehearing, however, so we lack jurisdiction to

review these claims. See 16 U.S.C. § 825l(b). 

SNOQUALMIE INDIAN TRIBE v. FERC 14249
Historical Plans, and indicated that the requirements of § 106

had been satisfied. On January 22, 1997, the Advisory Council signed the Programmatic Agreement, thus closing the

record for purposes of NHPA § 106. See 36 C.F.R.

§ 800.14(b)(2)(iii) (“The programmatic agreement shall take

effect when executed by the Council . . . . Compliance with

the procedures established by an approved programmatic

agreement satisfies the agency’s section 106 responsibilities

for all individual undertakings of the program covered by the

agreement until it expires or is terminated . . . .”). When the

record was closed, the Tribe was not federally recognized.

Therefore, NHPA § 106 did not require FERC to consult with

the Tribe on a government-to-government basis. See id.

§ 800.16(m) (definition of “Indian tribe”). 

[9] Thus, we reject the Tribe’s claim that FERC did not

engage in meaningful tribal consultation pursuant to NHPA

§ 106. Because the Snoqualmie Indians were not federally

recognized before the closure of the administrative record, we

need not evaluate the sufficiency of FERC’s government-togovernment consultation efforts or reach the Tribe’s claim

that FERC cannot delegate its tribal consultation obligations

to PSE. 

V

In its cross-petition for rehearing, PSE argues that FERC’s

amendment of the WQC stream flows in the First Rehearing

Order denigrates the “beneficial use” of hydroelectric power

production and in so doing violates the CWA. PSE also

argues that FERC acted without substantial evidence in

amending the flow requirements. Neither of PSE’s arguments

has merit.

A

[10] As a preliminary matter, FERC asserts that PSE lacks

standing to challenge the revised flow requirements, because

14250 SNOQUALMIE INDIAN TRIBE v. FERC
PSE’s grievance—largely economic—is not within the “zone

of interests” protected by the CWA. However, PSE is the

party directly subject to the FERC action in question. As the

applicant for the license under consideration, PSE holds an

evident interest in the action. See Clarke v. Sec. Indus. Ass’n,

479 U.S. 388, 399 (1987) (“In cases where the plaintiff is not

itself the subject of the contested regulatory action, the [zone

of interest] test denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit.” (emphasis

added)); Stock West Corp. v. Lujan, 982 F.2d 1389, 1397 (9th

Cir. 1993) (“[W]hen a party is subject to the regulatory action,

we believe that only an explicit declaration of Congress barring judicial review could overcome Congress’ evident intent

to make agency action presumptively reviewable.” (internal

quotation omitted)). Therefore, we hold that PSE possesses

standing to challenge the relicensing of its hydroelectric project.

B

PSE argues that FERC’s 2005 revised license unlawfully

adopts an aesthetic accommodation that alters the project’s

flow restrictions in conflict with Ecology’s WQC. PSE asserts

that, under the CWA, FERC is required to incorporate a

state’s WQC—without revision—into a license order, and

that, by requiring increased flow conditions, FERC has

degraded the existing beneficial use of hydropower production. We disagree. 

Pursuant to CWA § 401, 33 U.S.C. § 1341, states establish

the minimum water quality protections for projects requiring

a federal license to discharge into navigable waters. See also

33 U.S.C. § 1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate pollution

. . . .”). One aspect of water quality protection is an antidegraSNOQUALMIE INDIAN TRIBE v. FERC 14251
dation policy. See 40 C.F.R. § 131.12. While the term “antidegradation” is not defined within the CWA, the policy’s

purpose is that “[e]xisting instream water uses and the level

of water quality necessary to protect the existing uses shall be

maintained and protected.” Id. § 131.12(a)(1). State water

quality standards must at least meet these conditions, but may

be more stringent. See 33 U.S.C. §§ 1311(b)(1)(C), 1370; see

also 40 C.F.R. § 131.4(a) (“As recognized by section 510 of

the Clean Water Act [33 U.S.C. § 1370], States may develop

water quality standards more stringent than required by this

regulation.”). 

In accordance with the CWA mandate, Washington State—

through its Department of Ecology—developed comprehensive water quality standards to regulate all of the State’s navigable waters. See Wash. Admin. Code 173-201A (1997).

Upon approval by the EPA, the Washington standard became

“the water quality standard for the applicable waters of that

State.” 33 U.S.C. § 1313(c)(3); see also Port of Seattle v. Pollution Control Hearings Bd., 90 P.3d 659, 671 n.6 (Wash.

2004). Washington’s antidegradation policy effective at the

time of FERC’s 2005 revised license to PSE provided that

“[e]xisting beneficial uses shall be maintained and protected

and no further degradation which would interfere with or

become injurious to existing beneficial uses shall be allowed.”

Wash. Admin. Code 173-201A-070(1). 

To renew its FERC license for operation of its hydroelectric project, PSE sought and obtained a WQC from the state

certifying agency, Ecology. See 33 U.S.C. § 1341(a)(1); see

also 40 C.F.R. § 121.1(e). Ecology issued a WQC establishing conditions that PSE’s hydroelectric plant must meet so as

not to degrade water quality and negatively affect “characteristic” uses of the Snoqualmie River, a Class A water body.

See Wash. Admin. Code 173-201A-030(2)(b) (defining characteristic uses for Class A water bodies as including water

supply, stock watering, fish and shellfish, wildlife habitat, recreation, and commerce and navigation). One of the conditions

14252 SNOQUALMIE INDIAN TRIBE v. FERC
of the WQC involved minimum instream flow. Such a condition is an acceptable application of state and federal antidegradation regulations. See Pub. Util. Dist. No. 1 of Jefferson

County v. Wash. Dep’t of Ecology (“Jefferson County”), 511

U.S. 700, 719, 723 (1994). 

FERC made compliance with the WQC a condition of the

License, as required by § 401 of the CWA. FERC adopted the

minimum water flows established in the WQC except for

requiring greater water flows during Labor Day weekend. On

March 1, 2005, FERC revised the License to require higher

minimum flows over the Falls at all times during May and

June. These higher minimum flow requirements necessarily

result in decreased diversion for use by PSE’s hydroelectric

project. 

[11] Contrary to PSE’s claim, the increased minimum flow

requirements in FERC’s License afford greater—not

decreased—protection to the “beneficial uses” protected by

Washington’s antidegradation statute. Hydroelectric power is

not a “beneficial use” protected by Washington’s antidegradation policy. In Public Utility District No. 1 of Pend Oreille

County v. State Department of Ecology, the Supreme Court of

Washington construed the term “beneficial uses” to include

the enumerated characteristic uses of the water body potentially affected by the proposed project.5

 51 P.3d 744, 759

(Wash. 2002) (en banc) (citing Wash. Admin. Code 173-

201A-030, 173-201A-070); see also Dimidowich v. Bell &

Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (stating that the

Ninth Circuit “will follow a state supreme court’s interpretation of its own statute in the absence of extraordinary circum5Moreover, the Department of Ecology—the agency charged with

administering Washington’s water quality statutes—interprets the term

“beneficial uses” to exclude hydroelectric power generation. Under Washington law, we defer to Ecology’s interpretation of a state statute within

Ecology’s expertise. See Alvarez v. IBP, Inc., 339 F.3d 894, 911 (9th Cir.

2003) (citing Budget Rent A Car Corp. v. State Dep’t of Licensing, 31

P.3d 1174, 1180 (Wash. 2001) (en banc)). 

SNOQUALMIE INDIAN TRIBE v. FERC 14253
stances”), modified at 810 F.2d 1517 (9th Cir. 1987). Because

hydroelectric power generation is not a “beneficial use” of the

Snoqualmie River, see Wash. Admin. Code 173-201A-030(2),

FERC’s increased minimum flows do not violate Washington’s antidegradation policy or the policies animating the

CWA. 

[12] Whether FERC may impose additional, more stringent

requirements above the standards contained in a state’s WQC

has not been addressed to date by any federal court. See, e.g.,

Jefferson County, 511 U.S. at 723 (refusing to read implied

limitations into a § 401 certification on the basis of a theoretical conflict between FERC’s authority under the FPA and the

state’s authority under the CWA). As PSE correctly noted, a

federal licensing agency lacks authority to reject WQC conditions in a federal permit. See Am. Rivers, Inc. v. FERC, 129

F.3d 99, 110-11 (2d Cir. 1997); U.S. Dep’t of the Interior v.

FERC, 952 F.2d 538, 548 (D.C. Cir. 1992); Roosevelt Campobello Int’l Park Comm’n v. EPA, 684 F.2d 1041, 1056-57

(1st Cir. 1982). But FERC did not reject the WQC standards;

rather, it incorporated them in its License and strengthened

them. 

[13] We hold that FERC may require additional license

conditions that do not conflict with or weaken the protections

provided by the WQC. See Pub. Serv. Co. of Colo., 79

F.E.R.C. ¶ 61,148, at 61,631 n.38 (1997); Noah Corp., 57

F.E.R.C. ¶ 61,170, at 61,601-02 (1991); Carex Hydro, 52

F.E.R.C. ¶ 61,216, at 61,769 (1990). FERC’s increase in

minimum water flows is not contrary to, nor did it weaken,

the minimum flow requirements in Ecology’s WQC. At multiple points in the relicensing proceeding, Ecology stressed to

PSE and FERC that the WQC instream flows would be minimum, not maximum, flows. Ecology conveyed that, “[a]s long

as FERC requires the minimum instream flow conditions proposed for the 401 water quality certification, we see no conflict between the certification and the license.” Implicit in this

statement is the conclusion that higher flows would not harm

14254 SNOQUALMIE INDIAN TRIBE v. FERC
beneficial uses of the Snoqualmie River. While it might not

always be true that mandating higher minimum flows than

those in a WQC would be permissible, we think it is permissible in this case.

C

[14] Finally, we hold that the FERC decision was supported

by substantial evidence and demonstrates that the Commission properly balanced the beneficial public purposes specified in § 10 of the Federal Power Act. The water flow

requirements adopted by FERC in the First Rehearing Order

were carefully considered during the thirteen-year relicensing

proceeding and were included in the option recommended in

the final EIS.6 The final EIS found that Flow Option C, with

1,000 cfs daytime flow for May and June, would meet the

widest variety of important objectives among the different

flow options considered and would enhance the Falls’ cultural

value. FERC found that a greater amount of water flow will

produce a greater amount of mist, in terms of water particles,

which is important to the Snoqualmie Tribe’s religious practice. Thus, it was not arbitrary or capricious for FERC to conclude that increasing the minimum flow during May and June

to 1,000 cfs would augment the Tribe’s religious experience

and result in a better balance of interests. 

[15] The record also demonstrates that FERC carefully

weighed the implications of its decision for the Tribe’s religious experience against its effect on PSE’s bottom line.

FERC noted that “the Falls are of great religious significance

to the Snoqualmie Tribe, and the level of spray and resulting

mist produced by water flowing over the Falls is a critical

component of their spiritual experience. . . . [The flows] recommended in the final EIS track the seasonal variation in

flows at the Falls, . . . [and] would provide a greater threshold

6PSE concedes that “careful analysis . . . was undertaken in preparation

of . . . FERC’s environmental impact statement.” 

SNOQUALMIE INDIAN TRIBE v. FERC 14255
for mist during these months.” FERC detailed the costs of the

increased flows, which resulted in a $458,000 reduction in the

net annual benefit to PSE of $10,953,000, and concluded that

“the importance of the mist at this site to the Snoqualmie

Tribe” justified “the relatively small effect on net annual benefit.” That judgment is not arbitrary or capricious.

VI

In its decision to relicense the Snoqualmie Falls hydroelectric project, FERC did not violate RFRA or § 106 of NHPA.

FERC’s adoption of minimum water flows greater than those

included in the WQC was not contrary to, and did not

weaken, the WQC’s minimum flows requirement and was

supported by substantial evidence. The parties shall bear their

own costs. 

PETITIONS DENIED.

14256 SNOQUALMIE INDIAN TRIBE v. FERC