United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 24, 2014 Decided May 15, 2015

No. 13-1250

TURLOCK IRRIGATION DISTRICT AND MODESTO IRRIGATION

DISTRICT,

PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

TUOLUMNE RIVER TRUST, ET AL.,

INTERVENORS

Consolidated with 13-1253

On Petitions for Review of Orders of the

 Federal Energy Regulatory Commission

John A. Whittaker IV argued the cause for petitioners

Turlock Irrigation District and Modesto Irrigation District. With

him on the briefs was Erica E. Stauffer.

Mary Catherine Race argued the cause for petitioner

Tuolumne River Trust and Intervenors. On the briefs were

Richard Roos-Collins, Julie Gantenbein, Nicholas Niiro, Robert

A. Salerno, and Peter H. Day.
2

Lisa B. Luftig, Attorney, Federal Energy Regulatory

Commission, argued the cause for respondent. On the brief were

David L. Morenoff, Acting General Counsel, Robert H. Solomon,

Solicitor, Lona T. Perry, Senior Attorney, and Robert M. Kennedy

Jr., Attorney.

John A. Whittaker IV and Erica E. Stauffer were on the brief

for intervenors Turlock Irrigation District and Modesto Irrigation

District in support of respondent.

Richard Roos-Collins, Julie Gantenbein, Nicholas Niiro,

Robert A. Salerno, and Peter H. Day were on the brief for

intervenors Tuolomne River Trust and Conservation Groups in

support of respondent. 

Before: PILLARD, Circuit Judge, and SILBERMAN and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: In the proceeding under

review, the Federal Energy Regulatory Commission determined

that La Grange Hydroelectric Project (“Project”) fell within the

mandatory licensing provisions of the Federal Power Act, 16

U.S.C. § 817(1), for three independent reasons, which we will

discuss more fully below. The owners of the Project, Turlock

Irrigation District and Modesto Irrigation District (collectively,

“Districts”) petition for review of FERC’s order, Turlock

Irrigation Dist. & Modesto Irrigation Dist., Order on

Rehearing, Clarifying Intervention Status, and Denying Stay

Pending Judicial Review, 144 FERC ¶ 61,051 (July 19, 2013),

contending that the Project does not fall within FERC’s

licensing jurisdiction. The Tuolumne River Trust and other

conservation groups (collectively, “Trust”) petition for review

of FERC’s order, arguing that FERC erred by not finding that it
3

had licensing jurisdiction for four reasons instead of three. For

the reasons set forth more fully below, we conclude that FERC’s

jurisdictional determinations were supported by substantial

evidence and deny the Districts’ petition for review. We dismiss

the Trust’s petition as it raises no justiciable case or controversy. 

BACKGROUND

Between 1891 and 1893, the Districts constructed the

regional La Grange facility, which consisted of a dam at River

Mile1

 (“RM”) 52.2 of the Tuolumne River, impounding the

waters of the river and creating a reservoir for the purpose of

irrigating river valley farmland. See Appendix 1 for a map of

the region. In 1924, the Districts expanded the facility and its

purpose by the construction of the La Grange Powerhouse for

the production of hydroelectricity. The Powerhouse was

comprised of a smaller unit with two 500 kilowatt generators,

and a larger unit with a 3750 kilowatt generator. In 1989,

Turlock replaced the Powerhouse’s turbines and generating

units.

In June 2011, FERC received an inquiry from the National

Marine Fisheries Service concerning the status of the theretofore

unlicensed La Grange Hydroelectric Project. In response to the

inquiry, Commission staff undertook a review of the Project to

determine whether it is subject to the Commission’s mandatory

licensing jurisdiction under the Federal Power Act (“FPA”). 

Turlock Irrigation Dist. & Modesto Irrigation Dist., 141 FERC

¶ 62,211 (Dec. 19, 2012). FERC provided notice to the Districts

and other interested parties of its pending jurisdictional

determination. On December 19, 2012, the Director of the

Division of Hydropower Administration and Compliance issued

an order determining that the Project did require licensure within

1

River Miles are measured from the mouth of a river (RM 0).
4

the jurisdiction of the Commission under the FPA and ordered

the Districts to proceed to come into compliance with the

requirements of licensure. Id. In the decision, the Director

concluded that the licensure was required under three governing

provisions of 16 U.S.C. § 817(1): the Project was (1) located on

a navigable water of the United States, (2) occupied public lands

of the United States, or (3) if the stream were not navigable, it

was in any event one over which Congress had jurisdiction

under its authority to regulate commerce. Thereafter, the

Districts and the Trust petitioned the Commission for rehearing

of the staff-level decision. The Districts argued that the Project

was not within the licensure provisions of the FPA. The Trust

contended that the Director’s opinion erred in not assigning a

fourth reason for imposing the licensing requirement: the Trust

argued that the Project required licensure because it formed a

complete unit of development with the Don Pedro Project, a

neighboring federally licensed hydroelectric project. The

Commission ruled against the Districts on all three grounds of

their appeal. It further concluded that it need not determine

whether the fourth ground asserted by the Trust was applicable,

as it would not change the result in any event. The Districts and

the Trust now petition this court for review of the Commission’s

order. For the reasons set forth below, we deny the petition of

the Districts and dismiss the petition of the Trust.

ANALYSIS

The Federal Power Act renders unlawful the unlicensed

construction, operation, or maintenance of any “dam, water

conduit, reservoir, power house, or other works incidental

thereto across, along, or in” any waters meeting statutory

criteria. More specifically, and as relevant here, such licensure

is required where the impounded waters are “navigable waters

of the United States, or upon any part of the public lands or

reservations of the United States . . . or . . . over which Congress
5

has jurisdiction under its authority to regulate commerce with

foreign nations and among the several States . . . .” 16 U.S.C.

§ 817(1). The Commission found the Tuolumne River to be

covered by all three of the quoted criteria. The Trust argues that

while the Commission reached the right result that the Project is

required to be licensed, it should have ordered that the Project

be licensed as part of a single unit with another hydroelectric

project, the Don Pedro Project, 2.6 miles upstream from the La

Grange Project. 

I. The Trust’s Petition

Before determining the merits of the cause, we must first

satisfy ourselves that we have jurisdiction. One element of

jurisdiction is standing. There is no question that the Districts

have standing to bring their current petition. They are entities

regulated by the order under review, and the relief prayed would

alleviate the harm asserted. They allege, and it is evident, that

the acts of the Commission have caused the injury of which they

complain, that is, that they must submit to licensure. It is

equally evident that the relief sought in the current litigation, the

vacating of the Commission’s order, would alleviate that harm. 

The same is not true of the Trust. 

The Trust seeks to have the Project made subject to the

licensure requirements of the FPA. The Commission entered an

order declaring that the Project is subject to the licensing

requirements of the FPA. The Trust does not seek to have the

court change the decision, but only asks the court to tell the

Commission that it should do so for four reasons instead of

three. Unlike Becket, the Trust does not speak of “do[ing] the

right deed for the wrong reason.” T.S. Eliot, Murder in the

Cathedral, Act 1. Rather, it accuses the Commission of doing

the right thing for too few reasons. This does not establish

standing. Because standing “is an essential and unchanging part
6

of the case-or-controversy requirement of Article III,” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Trust must

establish it has standing before we may exercise jurisdiction

over its claims, County of Delaware, Pa. v. Department of

Transp., 554 F.3d 143, 147 (D.C. Cir. 2009).

It is well established “that the irreducible constitutional

minimum of standing contains three elements.” Lujan, 504 U.S.

at 560. “To establish constitutional standing, a petitioner must

show an actual or imminent injury in fact, fairly traceable to the

challenged agency action, that will likely be redressed by a

favorable decision.” Exxon Mobil Corp. v. FERC, 571 F.3d

1208, 1219 (D.C. Cir. 2009). An injury in fact is “an invasion

of a legally protected interest which is (a) concrete and

particularized, and (b) actual or imminent, not conjectural or

hypothetical.” Lujan, 504 U.S. at 560 (quotations and citations

omitted).

The Trust did not suffer an injury in fact because the

Trust received exactly what it sought. FERC accepted some of

the jurisdictional theories advanced by the Trust, and found that

the La Grange Project was required to be licensed. The Trust

argues that it is aggrieved because FERC’s refusal to license La

Grange and the Don Pedro Project in a single proceeding

doubles the cost the Trust must bear in order to actively

participate in both licensing proceedings, and frustrates the

creation of a coordinated fish passage through the two dams,

thus resulting in a decline to the fish population. This decline in

fish population, they argue, reduces the number of tourists who

come to observe the spawning salmon, thus reducing the money

the Trust will make from guided tours. 

Neither of the Trust’s asserted injuries satisfies the

constitutional requirement of injury in fact. We have previously

recognized that the expenditure of resources on advocacy is not

a cognizable Article III injury. See Center for Law and Educ. v.

Department of Educ., 396 F.3d 1152, 1162 n.4 (D.C. Cir. 2005)
7

(“[T]o hold that a lobbyist/advocacy group had standing to

challenge government policy with no injury other than injury to

its advocacy would eviscerate standing doctrine’s actual injury

requirement.” (citing Sierra Club v. Morton, 405 U.S. 727,

739–40 (1972))). This is true whether the advocacy takes place

through litigation or administrative proceedings. See Nat’l

Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011)

(concluding that time and money spent “submitting comments

to the EPA” and “testifying before the United States Senate”

does not suffice to establish an injury in fact). “The mere fact

that an organization redirects some of its resources to litigation

and legal counseling in response to actions or inactions of

another party is insufficient to impart standing upon the

organization.” Nat’l Taxpayers Union, Inc. v. U.S., 68 F.3d

1428, 1434 (D.C. Cir. 1995) (quotations and citation omitted). 

The Trust’s decision to expend more of its resources by

participating in both Don Pedro’s and La Grange’s licensing

proceedings is the type of alleged harm that we have repeatedly

held does not qualify as an injury in fact.

The Trust, relying on this Court’s decision in Equal

Rights Center v. Post Properties, Inc., argues that if a

“defendant’s allegedly wrongful action prompts an organization

to ‘increase[] the resources [it] must devote to programs

independent of its suit,’ . . . the organization has shown an injury

in fact.” 633 F.3d 1136, 1138 (D.C. Cir. 2011) (quoting Spann

v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). But

Equal Rights Center is inapposite. As we noted in that case, an

organization must allege that the defendant’s conduct

“perceptibly impaired” the organization’s ability to provide

services in order to establish injury in fact. 633 F.3d at 1138–39

(citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79

(1982)). The Trust does not allege impairment of its ability to

provide services, only impairment of its advocacy. As we noted

above, this will not suffice.
8

The Trust’s second asserted injury, a decline in tourism

revenue, is also insufficient to satisfy the injury in fact

requirement. It is purely conjectural. The Trust theorizes that

if La Grange and Don Pedro are not licensed in a single

proceeding, then the two projects will not have a coordinated

fish passage, which will lead to a decline in the fish population,

potentially reducing the number of tourists to the river and,

consequently, the amount of money the Trust will make off of

tourism. “This theory stacks speculation upon hypothetical

upon speculation, which does not establish an ‘actual or

imminent’ injury.” New York Regional Interconnect, 634 F.3d

at 587. We may reject as overly speculative the Trust’s

assumption regarding the future behavior of third parties. See

Crete Carrier Corp. v. EPA, 363 F.3d 490, 494 (D.C. Cir. 2004).

Moreover, the Trust’s prediction that separate licensing

proceedings will result in the lack of a coordinated fish passage

hypothesizes as to the outcome of future legal proceedings, and

is thus “too speculative to invoke the jurisdiction of an Art[icle]

III Court.” Platte River Whooping Crane Critical Habitat

Maintenance Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir. 1992)

(quoting Whitmore v. Arkansas, 495 U.S. 149, 157 (1990)). The

record before us does not establish that FERC cannot coordinate

fish passage between La Grange and Don Pedro despite separate

licensing. See Nov. 14, 2014 FERC 28(j) Letter and attachment

at 2, 7–8. Indeed, FERC suggested at oral argument that it

intended to do so. Oral Arg. Rec. at 30:50–32:05, 33:25–34:00. 

The FPA empowers FERC to formulate comprehensive plans

for, among other things, “enhancement of fish and wildlife.” 16

U.S.C. § 803(a)(1). On this record, it is wholly speculative to

suggest that separate licensing will lead to an uncoordinated fish

passage.

The Trust also seeks to proceed under associational

standing, arguing that a decline in fish population will diminish

its members’ ongoing use and enjoyment of the river for fly

fishing. To establish standing as an association, the Trust must
9

demonstrate that at least one of its members meets the three

element test set forth in Lujan. See NO Gas Pipeline v. FERC,

756 F.3d 764, 767 (D.C. Cir. 2014). However, the notion that

a lack of a coordinated fish passage will lead to a decline in the

fish population which in turn will lead to a decrease in tourism

is doubly speculative, and thus cannot be the basis for an injury

in fact for either the Trust or its members. As noted above, we

need not accept the Trust’s assertion that fish passage will not be

coordinated. Moreover, we have repeatedly held that litigants

cannot establish an Article III injury based on the “independent

action[s] of some third party not before th[is] court.” Florida

Audubon Soc. v. Bentsen, 94 F.3d 658, 670 (D.C. Cir. 1996) (en

banc) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S.

26, 42 (1976)). This is because “predictions of future events

(especially future actions taken by third parties)” are too

speculative to support a claim of standing. United Transp.

Union v. ICC, 891 F.2d 908, 912 (D.C. Cir. 1989). The Trust’s

theory of standing rests upon unsupported presumptions

regarding fish population, and guesswork about what future

tourists might do. This is insufficient to support a claim of

standing.

Because the Trust has failed to establish standing either

for itself or on behalf of its members, we dismiss its petition for

lack of jurisdiction.

II. The Petition of the Districts

As suggested above, our jurisdiction to entertain the

petition of the Districts is unquestionable, and we therefore will

proceed to determine whether their allegations merit relief. 

They do not. The Districts argue that FERC acted arbitrarily

and capriciously and without substantial evidence in making its

determination that the Tuolumne River was navigable, that the

reservoir was upon public land to the United States, and that

even if the stream were not navigable, it was nonetheless one

over which Congress had jurisdiction under its authority to
10

regulate commerce. We disagree as to all three jurisdictional

findings.

When reviewing FERC’s hydroelectric licensing

decisions, “[w]e defer to the agency’s expertise . . . so long as its

decision is supported by ‘substantial evidence’ in the record and

reached by ‘reasoned decisionmaking,’ including an

examination of the relevant data and a reasoned explanation

supported by a stated connection between the facts found and

the choice made.” U.S. Dept. of Interior v. FERC, 952 F.2d 538,

543 (D.C. Cir. 1992) (quoting Electricity Consumers Resource

Council v. FERC, 747 F.2d 1511, 1513 (D.C. Cir. 1984)). If

supported by substantial evidence, FERC’s findings of fact are

conclusive. See Consolidated Hydro, Inc. v. FERC, 968 F.2d

1258, 1261 (D.C. Cir. 1992) (citing 16 U.S.C. § 825l(b)). 

Moreover, “we are particularly reluctant to interfere with the

agency’s reasoned judgments” when its orders “involve complex

scientific or technical questions.” NRG Power Marketing, LLC

v. FERC, 718 F.3d 947, 953 (D.C. Cir. 2013) (quoting B&J Oil

& Gas v. FERC, 353 F.3d 71, 76 (D.C. Cir. 2004)).

A. Navigability Determination

The Districts first challenge FERC’s finding that La

Grange is located on a navigable water of the United States. 

The Districts argue that FERC’s navigability finding is not

supported by substantial evidence. They also argue that FERC

failed to present credible evidence of the potential commercial

use to which the Tuolumne River may be put. We disagree, and

conclude that FERC reasonably found that the Tuolumne River

is suitable for use in interstate commerce, and that this finding

was supported by substantial evidence.

Under the FPA, navigable waters are defined as:

[T]hose parts of streams . . . which either in their natural or

improved condition notwithstanding interruptions between

the navigable parts of such streams or waters by falls,
11

shallows, or rapids compelling land carriage, are used or

suitable for use for the transportation of persons or property

in interstate or foreign commerce.

16 U.S.C. § 796(8). A waterway is navigable within that

definition if “(1) it presently is being used or is suitable for use,

or (2) it has been used or was suitable for use in the past, or (3)

it could be made suitable for use in the future by reasonable

improvements.” Rochester Gas & Elec. Corp. v. Federal Power

Commission, 344 F.2d 594, 596 (2d Cir. 1965) (emphases in

original); see also FPL Energy Maine Hydro LLC v. FERC, 287

F.3d 1151, 1155 (D.C. Cir. 2002) (same). “Navigability can be

established based on any of these three requirements; each alone

is sufficient.” FPL Energy, 287 F.3d at 1155. In making the

determination of navigability of the Tuolumne, FERC relied on

evidence bearing on each of the three.

As to the present navigability, the Commission found that

the Tuolumne River is presently navigable from its confluence

with the navigable San Joaquin River at least to the La Grange

Project tailrace—the channel carrying water away from the

powerhouse—and with a short portage to the base of the La

Grange Dam at RM 52.2. Turlock Irrigation Dist., 144 FERC

¶ 61,051 P 34. The evidence supporting this finding included a

declaration submitted by the Trust reporting the experience of a

kayaker who had navigated the waters from a point

approximately 1.5 miles downstream of the La Grange Dam to

the base of the Dam. Additionally, the Commission relied on

evidence from the California Department of Fish and Game to

the effect that the Department’s employees have traveled

upstream to an area of the river just below the powerhouse. 

We have previously found “evidence of recreational

use,” as well as evidence of “‘[a]ny similar personal or private

use not involving recreation,’” relevant to establishing a river’s

“‘suitability for commercial navigation.’” FPL Energy, 287
12

F.3d at 1157 (quoting Kennebec Water District, 88 FERC

¶ 61,118, 61,304 (July 28, 1999)). As the Supreme Court has

recognized, “personal or private use by boats demonstrates the

availability of the stream for the simpler types of commercial

navigation.” U.S. v. Appalachian Elec. Power Co., 311 U.S.

377, 416 (1940). 

The governmental boat use provides sufficient evidence

that the River is currently navigable. The evidence in the record

establishes that between October 2011 and January 2012,

California DFG crews conducted weekly salmon surveys,

generally traveling upstream to RM 51.5, and at times as far as

RM 51.9, a point upstream of the Project’s tailrace. Joint

Appendix 358–60. This evidence of weekly trips is more

substantial than the evidence of boating we found sufficient in

FPL Energy. 287 F.3d at 1159 (concluding that “[three] test

canoe trips provide sufficient evidence that the Stream is

navigable”); see also Montana Power Co. v. Federal Power

Commission, 185 F.2d 491, 493–94 (D.C. Cir. 1950)

(concluding that use of the river by “several steamboats” was

sufficient to support a navigability finding).

The Districts contend that FERC was required to

demonstrate “that the river between the Powerhouse and Dam”

was navigable. Districts’ Br. 12. We disagree. The FPA does

not require FERC to show that the river is navigable “through

the La Grange site,” Districts’ Reply Br. 5 (emphasis added),

only that some part of the project is located on navigable waters,

see 16 U.S.C. § 817(1) (requiring licensing if the “dam, water

conduit, reservoir, power house, or other works incidental

thereto,” are located “in any of the navigable waters of the

United States” (emphasis added)). The tailrace is one of the

project works that make up the La Grange Project. See Report

of Turlock Irrigation District to FERC on the La Grange Project

at 1 (Oct. 11, 2011), Joint Appendix 72 (listing the tailrace as

part of the La Grange Project); see also 16 U.S.C. § 796(12)

(defining “project works” as the “physical structures of a
13

project”). Therefore, FERC need only show that the river up to

the tailrace is navigable in order to assert jurisdiction over the

La Grange Project. See, e.g., Sheldon Jackson College, 54

FERC ¶ 61,263, 61,763–61,764 (Mar. 8, 1991) (licensing

required where only a hydroelectric project’s tailrace was

located on navigable waters).

The Commission also found that the Tuolumne was

navigable in the past at least up to the falls where the La Grange

Dam is now located. This finding was based on an 1850

Stockton Times article, which stated that during the winter of

1849, gold seekers used whale boats to travel up the Tuolumne

River as far as Jacksonville, a town located 20 miles upstream

of the La Grange Dam. The Commission also relied upon an

1851 finding by the California legislature that the Tuolumne was

navigable up to the “foot of the rapids” that then existed at the

present day site of the La Grange Dam. Turlock Irrigation Dist.,

144 FERC ¶ 61,051, PP 57–64.

The Districts argue that the 1850 newspaper article

FERC used to establish that whaleboats traveled up the

Tuolumne River is unreliable as it conflicts with the Districts’

expert report discussing the physical characteristics of the River

in 1850. They also argue that FERC’s reliance on the 1851

findings of the California legislature that the Tuolumne River

was navigable up to the “foot of the rapids” was misplaced

because “[s]tate law is not determinative of navigability under

federal law,” State of Wisconsin v. Federal Power Commission,

214 F.2d 334, 336–37 (7th Cir. 1954), and because the

California legislature later changed its findings and moved the

head of navigation downstream.

In disputing the reliability of the 1850 newspaper article,

the Districts rely on the expert report of their historian, which

states that based on “the falls at La Grange, the river gradient,

upstream falls or rapids and the topography of the river canyon
14

that would have made portaging extremely difficult . . . it seems

safe to conclude that navigation by whale boats above La

Grange was virtually impossible.” Report of Dr. Alan Paterson

at 12, Joint Appendix 302 (emphasis added). As we stated

above, FERC need only show that the river was navigable up to

the Project’s tailrace. Accordingly, the Districts’ contention that

the river above the falls was non-navigable does not undermine

FERC’s conclusion that the river was navigable in the past up to

the La Grange Dam. See Turlock Irrig. Dist., 144 FERC

¶ 61,051 P 60 (“[I]t is sufficient to find, as we do here, that the

river was navigable in the past at least up to the falls, where the

La Grange Dam is now located.”).

The Districts are correct that the 1851 findings of the

California legislature are not determinative of navigability under

federal law. See Brewer-Elliott Oil & Gas Co. v. U.S., 260 U.S.

77, 87 (1922) (“[T]he navigability of the stream is not a local

question for the state tribunals to settle.”). Indeed, fundamental

to our system of government is the notion that the laws of the

United States “form the supreme law of the land, ‘anything in

the constitution or laws of any state to the contrary

notwithstanding.’” M’Culloch v. Maryland, 17 U.S. (4 Wheat.)

316, 406 (1819) (quoting U.S. CONST. art. VI, cl. 2). But this

point is not dispositive, as nothing prevents FERC from citing

state navigability determinations as evidence of the historic

navigability of a river for federal law purposes. Nor does

evidence that the California legislature later amended its

determination defeat a finding of navigability. “When once

found to be navigable, a waterway remains so.” Appalachian

Elec. Power Co., 311 U.S. at 408. 

FERC’s evidence of historic navigability is not

overwhelming. Nor is it so compelling as to completely

foreclose any argument that the River was non-navigable. But

evidence of past navigability need not be large to sustain a

finding of navigability. See id. at 416. When viewed as a

whole, the evidence is sufficient to support FERC’s finding that
15

the River was used in the past up to the falls where La Grange

is now located.

Lastly, the Districts argue that FERC failed to present

credible evidence of the potential commercial use to which the

Tuolumne River may be put. This argument also fails. We have

previously rejected the notion that “FERC’s navigability test

was flawed because FERC failed to identify the possible

commercial use to which the Stream may be put.” FPL Energy,

287 F.3d at 1158. As we explained, “[t]he test is whether the

waterway is presently ‘suitable for use for the transportation of

persons or property in interstate or foreign commerce,’ not

whether the waterway is presently suitable for a specific type of

commercial activity named by FERC and approved of by an

opposing party.” Id. (quoting 16 U.S.C. § 796(8)).

To uphold FERC’s navigability determination, “we need

only find that the evidence on which the finding is based is

substantial.” FPL Energy, 287 F.3d at 1160. The “substantial

evidence” standard “requires more than a scintilla, but can be

satisfied by something less than a preponderance of the

evidence.” Id. We conclude that FERC’s evidence of actual use

in the past, together with current use of the Tuolumne River by

California DFG crews, constitutes substantial evidence

supporting FERC’s finding that La Grange is located on a

navigable water of the United States.

B. Federal Lands Determination

The Districts take issue with FERC’s determination that the

La Grange Reservoir extends onto federal lands. The Districts

argue that FERC acted arbitrarily by ignoring their water level

gradient analysis, which purported to show that the reservoir

ended about 5,300 feet upstream of the dam, short of federal

lands. They also argue that FERC’s attempt to calculate the

precise point where the reservoir ends disregards the practical

limitations of the data, namely that the results of FERC’s
16

backwater analysis can have no better than a 0.5 to 1.0 foot

degree of accuracy. We reject both arguments, and hold that

FERC properly relied on the results of its backwater analysis to

conclude that the La Grange reservoir extends onto federal

lands. 

The FPA requires licensure of a hydroelectric plant if its

“dam, water conduit, reservoir, power house, or other works

incidental thereto” are located “upon any part of the public lands

or reservations of the United States.” 16 U.S.C. § 817(1). The

Commission found that the La Grange reservoir extends onto

federal lands located approximately 5,800 feet upstream of the

La Grange Dam. To support this determination, the

Commission relied upon its backwater analysis, as well as a

contour analysis submitted by the National Marine Fisheries

Service.

Contrary to the Districts’ arguments, FERC also considered

the Districts’ water level gradient analysis when making its

federal lands determination. It found the results “misleading.” 

Turlock Irrig. Dist., 141 FERC ¶ 62,211 P 31. As FERC

explained in its order, the Districts’ analysis “assumes that

reservoir water surface gradients generally appear flat and

uniform, whereas river gradients in steeper areas appear higher

and follow the river bed.” Id. However, because reservoirs are

influenced by the terrain, they can have a gradient such that their

surface level varies, depending on where it is measured. Id.

Accordingly, FERC found that focusing on the gradient of the

water surface elevation “can lead to incorrect conclusions about

the extent of the reservoir.” Id.

Instead, FERC relied on the results of its backwater

analysis to determine whether the La Grange reservoir extends

onto federal lands. FERC has previously defined “backwater”

as “the amount the depth of flow has been increased by an

obstruction such as a dam.” Turlock Irrig. Dist., 141 FERC

¶ 62,211 P 28. (citing Public Utility Dist. No. 1 of Pend Oreille
17

County, Washington, 77 FERC ¶ 61,146, 61,543 n.11 (Nov. 13,

1996)). Under this definition, the upstream extent of the

reservoir is the point where the depth of the river for “with-dam”

and “without-dam” conditions are equal. Turlock Irrig. Dist.,

141 FERC ¶ 62,211 P 28. When performing this analysis,

FERC calculates the depth for “with-dam” and “without-dam”

conditions, plots the data as two lines on a graph, and then,

relying on “eye observation,” determines the point of tangency,

i.e., the point where the two lines meet. Turlock Irrig. Dist., 144

FERC ¶ 61,051 P 76. This point denotes the end of the

reservoir. Id.

Both FERC and the Districts used this method to

determine the end point of the reservoir, and their calculations

regarding the depth of the river for “with-dam” and “withoutdam” conditions were the same. Compare Joint Appendix

175–79 (the Districts’ calculations), with Joint Appendix 421–27

(FERC’s calculations). FERC and the Districts differed,

however, in their interpretation of this data. The Districts

interpreted the data as suggesting that the reservoir ended

somewhere around 5,300 feet, before the federal lands

boundary. FERC found that the Reservoir extended more than

11,300 feet upstream of the La Grange Dam, reaching BLM

land. FERC opined that this discrepancy in interpretation was

a result of the graphs upon which the Districts relied: 

The Districts reach a different conclusion because they

plot their results on smaller graphs with a more

compressed scale and use thicker lines to depict the

with-dam and without-dam conditions. This makes the

two lines appear to converge at a point somewhere

between 4,700 and 5,300 feet upstream of the La Grange

Dam, downstream of the BLM land boundary. [FERC]

[s]taff, using slightly larger graphs with a less

compressed scale and thinner lines, determined the

correct point of tangency as occurring much farther

upstream, more than 11,300 feet upstream of the La
18

Grange Dam, and well upstream of the BLM

boundary. . . . . Staff used the same method as the

Districts, but its graphs showed the results more clearly.

Turlock Irrig. Dist., 144 FERC ¶ 61,051 P 77. 

The Districts frame their arguments as objections to the

techniques or models employed by FERC, but they are actually

objecting to FERC’s interpretation of the data. The Districts

complain that FERC’s interpretation of the data is erroneous

because it ignores the 0.5 to 1.0 foot degree of accuracy

limitation inherent in any backwater analysis. They assert that

“[a]pplying this degree of accuracy, the upstream end of the La

Grange Reservoir would extend no further than 5,400 ft

upstream of the La Grange Dam.” Districts’ Request for

Rehearing at 23 (Jan. 18, 2013). Without more, such conclusory

statements do not provide sufficient evidence for us to overturn

FERC’s interpretation.

The Districts nowhere identify a methodology for taking

the degree of accuracy into account. In fact, in their 34-page

request for rehearing, the Districts devote only two sentences to

this issue, neither of which explains how FERC ought to adjust

its interpretation of the data based on the degree of accuracy. 

Despite this lack of explanation, the Districts ask us to overturn

FERC’s determination. This we will not do. “We are reluctant

to interfere with an agency’s choice of methodology so long as

it is not irrational.” California v. Watt, 668 F.2d 1290, 1320

(D.C. Cir. 1981). In the absence of evidence establishing that

FERC’s interpretation was erroneous, we reject the Districts’

argument that FERC acted arbitrarily in its interpretation of the

backwater analysis.

However, even if we were to disregard FERC’s

interpretation of the backwater analysis, we could still sustain

FERC’s conclusion that the reservoir extends onto BLM land

based on the contour analysis survey performed by the National

Marine Fisheries Service. FERC often relies on contour lines to
19

determine the length of a reservoir. See 18 C.F.R.

§ 4.41(h)(2)(i)(A)(1) (contour lines are the “preferred method”

for describing project boundaries); Districts’ Request for

Rehearing at 25, Joint Appendix 452 (“A brief sampling of other

licenses shows that the Commission often uses a contour line for

establishing a reservoir’s upstream boundary.”). In this case, the

Fisheries Service used a contour elevation projected from the La

Grange Dam’s spillway crest elevation of 296.46 feet mean sea

level to demonstrate that the La Grange Reservoir extends onto

BLM land. FERC found that this analysis “conclusively

demonstrate[s] that the La Grange Reservoir occupies federal

lands.” Turlock Irrig. Dist., 144 FERC ¶ 61,051 P 86.

The Districts argue that the Fisheries Service’s analysis

was flawed because it used the spillway crest elevation of

296.46 feet mean sea level as the normal maximum surface

elevation, as opposed to using the level at which the Districts

normally operate La Grange. FERC rejected this argument,

noting that the “normal maximum surface elevation of a

reservoir is typically defined as the crest of the dam or

spillway.” Turlock Irrig. Dist., 144 FERC ¶ 61,051 P 85. 

“[B]ecause the top of the [La Grange Dam] is almost entirely a

spillway,” the spillway crest defines the reservoir’s normal

maximum surface elevation, “not some lower elevation that a

project operator may choose to maintain for operational

reasons.” Turlock Irrig. Dist., 141 FERC ¶ 62,211 P 32 n.64. 

This conclusion is consistent with FERC’s data documenting the

elevation of the reservoir between the years 2009 and 2011,

Turlock Irrig. Dist., 144 FERC ¶ 61,051 P 85 n.119, as well as

the Districts’ backwater analysis, which used 296.46 feet mean

sea level as the normal water surface elevation, Joint Appendix

158.

“[W]hen agency orders involve complex scientific or

technical questions . . . we are particularly reluctant to interfere

with the agency’s reasoned judgments.” B&J Oil and Gas, 353

F.3d at 76. Where, as in this case, the agency has “examined the
20

relevant data and has articulated an adequate explanation for its

action,” we will defer to the agency’s decision. City of

Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003)

(quotations and citation omitted).

C. Commerce Clause Determination

Finally, the Districts challenge FERC’s finding that the

La Grange Project is subject to FERC’s mandatory licensing

jurisdiction based on Congress’s “authority to regulate

commerce with foreign nations and among the several States.” 

16 U.S.C. § 817(1). In order to assert jurisdiction based on

Congress’s Commerce Clause authority, FERC must find that

the project (1) is located on Commerce Clause waters,

(2) affects interstate commerce, and (3) was “constructed” or

enlarged after 1935. See L.S. Starrett Co. v. FERC, 650 F.3d 19,

23 (1st Cir. 2011) (citing 16 U.S.C. § 817(1)). FERC interprets

“construction” as any increase in a project’s generating capacity,

i.e., an increase in either the installed capacity or actual capacity

of a project. See id. at 27 (upholding FERC’s interpretation of

“construction”). The installed capacity is the “maximum

potential generating capacity of a turbine generator,” whereas

the actual capacity is the “measured capacity upon installation,

which is affected by various site conditions.” Id. at 21 n.3.

FERC found that La Grange is located on Commerce

Clause waters, that the Project affects interstate commerce

through its connection to the interstate electrical grid, and that

the Project’s generating capacity increased in 1989 when the

Districts replaced the Powerhouse’s turbines and generating

units. FERC relied upon an engineering report submitted by the

Districts to support these findings. Turlock Irrig. Dist., 144

FERC ¶ 61,051, PP 87–103.

The Districts do not dispute that the Project is located on

Commerce Clause waters and affects interstate commerce. 

Instead, they challenge FERC’s finding that “post-1935
21

construction . . . occurred when the Project’s generating capacity

increased in 1989.” Id. at P 87. Before we address the Districts’

specific challenges, however, some background is necessary.

A hydroelectric project generates energy using a turbine,

which converts flowing water to mechanical power, and a

generator, which converts the mechanical power to electric

energy. Id. at PP 90–91. With unlicensed projects, FERC

determines whether there has been an increase in the generating

capacity of a project by looking to whether the project’s

“installed capacity” has increased. The “installed capacity” of

a unit is the lesser of the rating output of the unit’s generator,

determined by looking at the nameplate or manufacturer’s

rating, or the unit’s turbine. Id. at PP 91–92.

FERC determined that La Grange’s original generators

were rated at 1,000 kW and 3,750 kW, for a combined total of

4,750 kW, while the replacement generators were rated at 1,231

kW and 3,693 kW, for a combined total of 4,924 kW. Id. at PP

94–95. Because the combined rated output of the replacement

generators was 174 kW higher than the combined rated output

of the original generators, FERC concluded that the 1989

rehabilitation increased La Grange’s installed capacity, and thus,

La Grange required licensure. Id. at PP 95–103.

The Districts present three arguments for overturning

FERC’s determination. First, the Districts argue that FERC

never demonstrated that 4,750 kW was the correct prerehabilitation rating for the old generators. Second, the Districts

assert that FERC erred in comparing the generating capacity of

the new turbines to the generating capacity of the generators. 

Such an “apples to oranges” analysis, they argue, is flawed

because it assumes the generators are 100 percent efficient,

instead of taking into account the “standard efficiency factor” of

the generators. Lastly, the Districts argue that even if FERC’s

finding was correct, FERC abused its discretion in asserting
22

jurisdiction over such a de minimis increase in generating

capacity. All three of the Districts’ arguments lack merit. 

First, FERC adequately demonstrated that 4,750 kW was

the correct pre-rehabilitation rating for the old generators. 

FERC based the 4,750 kW number on an engineering report

prepared by the Districts’ contractor, Bechtel (“Bechtel

Report”), and submitted to FERC by the Districts. The Bechtel

Report notes that La Grange is made up of two turbine generator

units, a smaller unit “with two-500 kW generators coupled to

each side,” and a larger unit “with one directly coupled 3750-

kW Allis-Chalmers generator.” Joint Appendix 103. 

The Districts contend that the Bechtel Report never

explicitly refers to those ratings as the nameplate or

manufacturer’s rating, and thus, they reason, it was arbitrary for

FERC to rely on those ratings as if they were the nameplate

rating. Conspicuously absent from the Districts’ brief is an

alternative explanation for the ratings listed in the Bechtel

Report. The Districts never explain what those ratings refer to,

or why Bechtel would provide ratings other than the nameplate

rating. The Districts note that because the original units were

taken from another site, the generators’ capacity “may have been

different from what may have been stated on the units.” 

Districts’ Br. 26. However, speculation as to the actual capacity

of the generators is irrelevant to a determination of the rated

output of the generators. See L.S. Starrett Co., 650 F.3d at 21

n.3 (noting difference between installed capacity and actual

capacity). In the absence of proof to the contrary, it was

reasonable for FERC to assume that the ratings listed in the

Bechtel Report were the manufacturer’s ratings for the

generators.

Second, the Districts argue that FERC erred by comparing

the generating capacity of the old generators to the generating

capacity of the new turbines rather than the new generators—an

erroneous “apples to oranges” comparison, in the Districts’
23

view. This argument fails. FERC’s analysis followed standard

industry practice and was based on the information the Districts

provided. The chart upon which FERC relied to find the rated

output of the new generators listed the capacity of the new units

(pairs of turbines and generators) in kilowatts, the standard

expression of generator capacity, and horsepower, the standard

expression of turbine capacity. Joint Appendix 108; see

Districts’ Rehearing Request at 29, Joint Appendix 456 (noting

that “[t]urbines are rated as horsepower,” and “[g]enerator

capacity is . . . rated as kilowatt output”). FERC’s comparison

of the old generators to the new generators rests on FERC’s

finding that the kilowatt values in the chart reflected the capacity

of the generators, while the horsepower values reflected the

capacity of the turbines. Turlock Irrig. Dist., 144 FERC

¶ 61,051 PP 96–98. That finding is reasonable in light of

standard unit-labeling practice. The Districts argue that this

finding is wrong, as evidenced by the fact that the kilowatt

figures and the horsepower figures match when horsepower is

converted to kilowatts. The Districts emphasize that generator

capacity cannot actually match turbine capacity because no

generator is 100 percent efficient, and that the figures FERC

used thus must not be generator figures at all, but are alternate

expressions of turbine capacity in kilowatts and horsepower. 

However, “[s]tandard engineering practice . . . require[s]” that

a generator’s capacity be matched to the capacity of a turbine. 

Report of Turlock Irrigation District to FERC on the La Grange

Project at 8 (Oct. 11, 2011), Joint Appendix 79; Turlock Irrig.

Dist., 144 FERC ¶ 61,051 P 90 (“[T]he rated output of a

generator is chosen to match the output of the turbine . . . .”

(citing Engineering and Design, Hydropower, at 5-20,

Department of the Army, Corps of Engineers, Engineer Manual

EM1110-2-1701 (Dec. 31, 1985))). The fact that the turbine and

generator figures were reported as matching therefore appears

unsurprising. The Districts failed to provide any clearer or

better data requiring a contrary conclusion. Thus, it was
24

reasonable for FERC to assume that the kilowatt values in the

chart reflected the capacity of the new generators.

Lastly, we reject the Districts’ argument the FERC

should have declined to exercise jurisdiction over La Grange

because the increase in generating capacity was minimal. FERC

contends that it does not have the discretion to decline to

exercise jurisdiction over a hydroelectric project that meets the

statutory requirements. We need not go that far to resolve this

issue. It is sufficient to find, as we do here, that FERC did not

abuse its discretion in asserting jurisdiction over the La Grange

Project on the basis of post-1935 construction that resulted in an

increase in generating capacity of 174 kW. See L.S. Starrett

Co., 650 F.3d at 21–22 (affirming FERC’s assertion of

jurisdiction over a project that increased in generating capacity

by 86 kW).

 CONCLUSION

For the reasons stated above, we deny the Districts’

petition for review because we conclude that FERC’s

jurisdictional determinations were supported by substantial

evidence, and reached by reasoned decisionmaking. We dismiss

the Trust’s petition for review for lack of jurisdiction.

So ordered.