American Whitewater v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2024 Decided January 14, 2025
No. 23-1291
AMERICAN WHITEWATER,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
CONSERVATION LAW FOUNDATION, ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Haley Nicholson argued the cause for petitioner. With her
on the briefs were Robert A. Nasdor and Kevin Cassidy.
Sean Mahoney and Charles Owen Verrill, Jr. were on the
brief for intervenors Conservation Law Foundation and Maine
Rivers in support of petitioner.
Angela X. Gao, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were Matthew R. Christiansen, General Counsel, and

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Robert H. Solomon, Solicitor. Jared Fish, Attorney, entered an
appearance.
Julia S. Wood and Sharon L. White were on the brief for
intervenor Aclara Meters, LLC in support of respondent.
Before: HENDERSON and PAN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: This case
arises from the surrender of a license for a hydroelectric project
on the Salmon Falls River between New Hampshire and Maine.
From 2016 to 2023, Aclara Meters LLC (Aclara) owned the
license to the Somersworth Hydroelectric Project (the Project).
Aclara sought to surrender its project license to the Federal
Energy Regulatory Commission (FERC or the Commission) in
2019. After conducting an environmental assessment, the
Commission authorized Aclara’s surrender in 2023. American
Whitewater (Whitewater)—a conservation organization
working to restore America’s whitewater rivers—requested
rehearing and argued that two dams from the Project should be
removed as a condition of surrender. After FERC denied that
request, Whitewater petitioned this Court for relief, arguing
that the Commission acted arbitrarily and capriciously under
the Federal Power Act (the FPA) and the National
Environmental Policy Act (NEPA).
FERC’s analysis was neither arbitrary nor capricious. It
reasonably determined that dam removal was unfeasible
because local municipalities relied on the reservoir for key
water needs. Even if it were feasible, FERC appropriately
considered dam removal as an alternative to surrender without
removal and rejected it because the benefits to local
municipalities of keeping the dams outweighed the benefits to

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the environment and recreation from removal. The
Commission also appropriately assessed the public interest and
did not unreasonably depart from its situation-specific
precedents. Accordingly, we deny Whitewater’s petition for
review.
I.
A.
The Project is located on the Salmon Falls River, on the
border between the City of Somersworth, New Hampshire and
the Town of Berwick, Maine, and includes two dams—Stone
Dam and Back Dam.1 The Project also includes a canal to
divert water from Stone Dam’s reservoir (or impoundment), a
gatehouse to control water flow from the reservoir to the canal,
1 Aclara disputes whether Back Dam is included in its project
license. Intervenor for Resp’t’s Br. 20 n.9, 21. At oral argument,
FERC and Whitewater agreed that Back Dam is not included in the
project license. Oral Arg. Tr. 9:1–6 (Whitewater), 14:18–19
(FERC). When initially applying to the Commission for relicensing
of the Project, Aclara referenced Back Dam as part of the project
facilities, boundary, features and license. J.A. 64, 68, 73. “Figure
1” in the amended license identifies Back Dam as a “principal
feature[]” of the Project but locates it just outside the “project
boundary” and the license does not list it explicitly among the
“project works,” although there is a residual clause for “appurtenant
works.” J.A. 233, 239. The record is therefore unclear on whether
Back Dam is part of the project license. Even if it is not, Aclara
forfeited any argument that FERC lacks the authority to require
removal of a structure that is not part of a project’s license as a
condition of license surrender by not raising the issue in its brief.
See, e.g., Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32,
39 (D.C. Cir. 1997) (a litigant does not argue an issue by raising it
only in “cursory fashion”).

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a penstock to connect the canal to the powerhouse and a
powerhouse containing turbines to generate electricity. The
reservoir extends 0.8 miles upstream from Stone Dam and
Back Dam is 0.3 miles downstream of Stone Dam. Water not
diverted to the powerhouse is released into the river
downstream of Stone Dam, known as the “bypass reach,” and
water is released at around the same rates as the river’s natural
flow to protect fish and wildlife. The Project has not generated
power since a penstock failure in 2011 so that all water flows
into the bypass reach.
There are fifteen functioning dams on the Salmon Falls
River, and Stone and Back Dams are respectively the fifth and
fourth from the mouth of the river. Three other FERC-licensed
projects with dams are downstream of the Project: Lower Great
Falls, Rollinsford and South Berwick. Green Mountain Power
Corporation (Green Mountain) operates all three downstream
projects. Relicensing of the Lower Great Falls and Rollinsford
Projects in 2022 and 2023 included conditions for fish passage.
Specifically, Green Mountain had to either construct
permanent fishways at both projects—so fish can swim around
the dams and migrate upstream—or build a “trap and truck”
facility at South Berwick to transport fish for release upstream,
bypassing the Rollinsford, Lower Great Falls and Somersworth
Projects. Ultimately, on May 1, 2024 Green Mountain chose
the trap-and-truck option and thus fishways will not be built at
Rollinsford or Lower Great Falls in the foreseeable future.
Stone Dam was built in 1929 and Back Dam likely dates
from around the same time. FERC licensed the Project to
General Electric (GE) for 40 years in 1981 to power a
manufacturing plant on site. In 2016, Aclara obtained the
license after buying the plant and Project facilities from GE.
Aclara initially intended to fix the penstock and restart the

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Project but abandoned those plans after determining that it
would be unprofitable to do so.
The FPA authorizes FERC to regulate the licensing of
hydropower projects on “navigable waters of the United
States.” 16 U.S.C. § 817(1); S.D. Warren Co. v. Me. Bd. of
Env’t Prot., 547 U.S. 370, 373 (2006). An existing license may
be “surrendered only upon mutual agreement between the
licensee and the Commission.” 16 U.S.C. § 799; see also 18
C.F.R. § 6.2. To initiate surrender, a licensee must file an
application stating the reasons for surrender, 18 C.F.R. § 6.1,
and FERC may impose “conditions” that the licensee must
fulfill before surrender is complete, including with respect to
decommissioning any project works that have been built, id.
§ 6.2.
Decommissioning can range from “simply shutting down
the power operations” to “tearing out all parts of the project,
including the dam, and restoring the site to its pre-project
condition”; and “solutions necessarily will vary from one
situation to another.” Project Decommissioning at
Relicensing; Policy Statement, 60 Fed. Reg. 339, 340 (Jan. 4,
1995) (Decommissioning Policy). If a “mutually acceptable
resolution” cannot be reached among interested parties, FERC
may “take steps necessary to assure that the public interest is
suitably protected, including, in the rare case, requiring
removal of the project dam.” Id. Upon surrender, the
Commission’s jurisdiction ends; FERC therefore takes the
position that it does not have “the authority to require the
existing licensee to install new facilities, such as fish ladders,”
as a condition of surrender. Id. at 346. Requiring a “new
facility is a step for any successor agency to take.” Id.
Similarly, although the Commission “may require licensees to
provide certain recreational opportunities in association with

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licensed activities, that obligation ends when the project is no
longer licensed.” Id.
Aclara filed a surrender application with FERC on March
29, 2019, which proposed to fill in the penstock with sand,
remove electrical equipment and hydraulic fluid from the
powerhouse and leave the dams in place. Citing comments
from the City of Somersworth, Aclara highlighted that Stone
Dam is critical for water supply in Somersworth and Berwick,
and that the City’s water treatment plant would be affected by
a change in water levels if Stone Dam were removed. Aclara
also referenced City comments that removing the dam could
negatively affect upstream infrastructure, including the bridges
that cross the reservoir. Aclara also stated that Stone Dam is
required to rewater the canal, which must be maintained for the
industrial purposes of providing cooling water and back-up fire
protection at Aclara’s adjacent manufacturing plant.
B.
FERC’s consideration of a surrender application requires
environmental review under NEPA. 42 U.S.C. § 4321 et seq.
“Any proposed ‘major Federal action[] significantly affecting
the quality of the human environment’ triggers in an agency the
obligation to prepare an Environmental Impact Statement (EIS)
discussing in detail the environmental impact of the proposed
action, alternatives to the action, and other considerations.”
Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d
1301, 1322 (D.C. Cir. 2015) (quoting 42 U.S.C. § 4332(C)).
NEPA mandates that an agency “consider every
significant aspect of the environmental impact of a proposed
action.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc.,
462 U.S. 87, 97 (1983) (quoting Vt. Yankee Nuclear Power
Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553
(1978)). In other words, an agency is required to “take a ‘hard

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look’ at the environmental consequences before taking a major
action.” Id. (citing Kleppe v. Sierra Club, 427 U.S. 390, 410
n.21 (1976)). “[A]n agency has taken a ‘hard look’ at the
environmental impacts of a proposed action if ‘the statement
contains sufficient discussion of the relevant issues and
opposing viewpoints,’ and . . . the agency’s decision is ‘fully
informed’ and ‘well-considered.’” Myersville, 783 F.3d at
1324–25 (quoting Nevada v. Dep’t of Energy, 457 F.3d 78, 93
(D.C. Cir. 2006)). “Congress in enacting NEPA, however, did
not require agencies to elevate environmental concerns over
other appropriate considerations.” Balt. Gas, 462 U.S. at 97
(citing Strycker’s Bay Neighborhood Council v. Karlen, 444
U.S. 223, 227 (1980) (per curiam)).
In conducting an EIS, “agencies may reject unreasonable
[or impractical] alternatives after only brief discussion.” Ctr.
for Biological Diversity v. FERC, 67 F.4th 1176, 1182 (D.C.
Cir. 2023). “An agency may preliminarily prepare an
Environmental Assessment (EA) to determine whether the
more rigorous EIS is required.” Myersville, 783 F.3d at 1322
(citing 40 C.F.R. §§ 1501.4, 1508.9). If an agency finds no
significant environmental impact, an EIS is unnecessary under
NEPA. Id. Although an EIS requires an agency to
“[r]igorously explore and objectively evaluate all reasonable
alternatives,” an EA requires only “brief discussion[]” of
reasonable alternatives. Id. at 1323 (citing 40 C.F.R.
§§ 1502.14(a), 1508.9(b)). “An alternative is reasonable if it is
‘technically and economically practical or feasible and meet[s]
the purpose and need of the proposed action.’” Biological
Diversity, 67 F.4th at 1182 (citing 43 C.F.R. § 46.420(b)). We
also give “considerable deference to the agency’s expertise and
policy-making role” regarding both “whether [its] objectives
are reasonable” and “whether a particular alternative is
reasonable in light of these objectives.” City of Alexandria v.
Slater, 198 F.3d 862, 867 (D.C. Cir. 1999).

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FERC completed its environmental assessment on January
6, 2021.2 It determined that approving surrender as proposed
would not be a major federal action significantly affecting the
quality of the human environment and so an EIS was not
required. No party contests that determination. FERC also
concluded that leaving the dams in place would not affect
recreation, fisheries or federally protected species. The
Commission found that keeping the dams would have a
negligible impact on recreational opportunities because the
Project is in an industrial setting and lacks formal recreation
facilities. FERC further noted that the Market Street bridge,
just upstream from Stone Dam, prevents boaters from
accessing Stone Dam and that summer water flows are too low
to support boating even when all the water is spilled over into
the bypass reach. The Commission also observed that the
Lower Great Falls and Rollinsford Projects blocked fish
passage, although they would not do so if fish passage facilities
were installed.
Finally, FERC found that there were “no feasible
alternatives” to surrender without removal because (1) Stone
Dam’s reservoir was a source of water supply for Somersworth
2 After the parties fully briefed the case sub judice, we held that
NEPA’s implementing regulations are ultra vires and therefore non-
binding because the Council on Environmental Quality lacks
rulemaking authority. Marin Audubon Soc’y v. FAA, 121 F.4th 902,
908–15 (D.C. Cir. 2024). As a result, FERC arguably had no
obligation to issue an environmental assessment. However, the
Court “must judge the propriety of [agency] action solely by the
grounds invoked by the agency.” SEC v. Chenery Corp., 332 U.S.
194, 196 (1947). Here, the Commission’s surrender and rehearing
orders relied on its environmental assessment. Therefore, we
consider that assessment in determining whether FERC’s actions
were arbitrary or capricious.

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and Berwick and used for local firefighting, (2) Stone Dam’s
removal could affect local infrastructure, (3) the dams were
important historic features,3 (4) the benefits of removing Back
Dam without Stone Dam were limited as both are in an
industrial area and close to each other and (5) the Commission
could not require Aclara to install fish passage facilities as a
condition of surrender. J.A. 384–85.
C.
FERC considered comments on the environmental
assessment in its Order Approving Surrender of License
(Surrender Order), issued May 22, 2023. It found that
removing the dams or adding fish passage facilities would have
“significant and permanent” “beneficial effects” of
“connectivity to upstream habitat[s],” “removing obstructions
that limit boating opportunities” and “sustainable fishing.”
J.A. 440. It also found that “[n]egative effects” “would include
temporary effects on water quality,” “temporary adverse
effects on aquatic species due to displacement,” “impacts to air
quality during construction” and “an increase in noise and
construction traffic.” Id. FERC observed that it was “unknown
3 FERC considered the potential impact on historic properties
under section 106 of the National Historic Preservation Act. See 54
U.S.C. § 306108. In its opening brief, Whitewater alleges that the
Commission’s approval of Aclara’s surrender application
improperly relied on the dams’ potential eligibility for listing as
historic properties. FERC disclaimed any such reliance and noted
that neither its surrender nor rehearing order discussed historical
impact as a reason for rejecting the dam removal alternative.
Because Whitewater in its reply brief does not contest the
Commission’s response, we consider this issue to be abandoned. See
Wal-Mart Stores, Inc. v. Sec’y of Labor, 406 F.3d 731, 736 n.* (D.C.
Cir. 2005).

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what effect dam removal would have on the City of
Somersworth’s existing water supply infrastructure” but that
the City “stated that . . . its water treatment plant, as well as two
bridges upstream, would be negatively impacted by any
changes in impoundment levels.” J.A. 440–41. FERC also
noted that it was unknown at that time whether the Town of
Rollinsford would choose to construct a fishway at Rollinsford
or trap and truck fish from South Berwick.4
Applying its “broad ‘public interest’ standard” for
evaluating the voluntary surrender of a license under the FPA,
the Commission determined that “no environmental impacts
are expected” apart from the end of federal jurisdiction over the
potentially historic structures.5 J.A. 445–46; see also id. at 486
(stating that “the baseline, pre-project condition considered in
the environmental analysis includes existence of the dams”
because “the dams were constructed before the project was
licensed”). FERC emphasized that the reservoir was a source
of water for Somersworth and Berwick as well as for local
manufacturing needs and firefighting efforts and that
Somersworth was concerned that infrastructure may be
negatively affected by changes to water levels. The
Commission decided that further quantification of these
impacts was unnecessary and that dam removal was not
warranted as part of the license surrender. FERC also relied on
4 The Town of Rollinsford owns the Rollinsford Dam but Green
Mountain operates it and handles the licensing process.
5 FERC requested comments from the Advisory Council on
Historic Preservation and the Council agreed with FERC that an
adverse effect on the potentially historic structures of “demolition by
neglect” was not reasonably foreseeable and opined that approving a
license surrender application would not constitute an adverse effect
per se on historic properties.

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its policy not to require installing fish passage facilities as a
condition of license surrender and concluded that new facilities
“would be for any ‘successor’ agency to consider.” J.A. 447.
On June 20, 2023, Whitewater timely sought rehearing,
arguing that FERC’s approval of Aclara’s surrender was not in
the public interest under the FPA and that the Commission
acted arbitrarily and capriciously by failing to take the NEPA-
required hard look at the dam removal alternative. The
Commission ultimately addressed Whitewater’s arguments in
its Order Addressing Arguments Raised on Rehearing
(Rehearing Order), issued on September 21, 2023. FERC
highlighted that if Green Mountain decided to trap and truck
fish, then the dams would not block fish passage, that it was
unknown whether the area would be publicly accessible for
recreation and that both access to recreation and fish passage
facilities were for a New Hampshire regulatory authority to
consider. It also emphasized that there had been no history of
public safety incidents at the dams and recited that FERC
properly considered the dams’ potential historic significance.
Overall, the Commission determined that the “Surrender Order
. . . appropriately concluded that the proposed surrender is in
the public interest” because it “balanced the benefits and
negative impacts” and concluded “that the concrete benefits
provided by the dam far outweigh[ed] the speculative benefits
to recreation and fish passage” of dam removal. J.A. 487–88.
Whitewater petitioned this Court for review on October
23, 2023. Maine Rivers and Conservation Law Foundation—
two organizations that advocate for river restoration through
eliminating barriers to fish passage—intervened on
Whitewater’s behalf and Aclara intervened on behalf of FERC.

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II.
The Commission had jurisdiction to issue orders relating
to the licensing of the Somersworth Hydroelectric Project
under the FPA. 16 U.S.C. § 791a et seq. We have jurisdiction
to review FERC final orders. 16 U.S.C. § 825l(b).
We will set aside FERC action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). The
Commission’s orders must be upheld so long as it “examine[d]
the relevant [considerations] and articulate[d] a satisfactory
explanation for its action[,] including a rational connection
between the facts found and the choice made.” FERC v. Elec.
Power Supply Ass’n, 577 U.S. 260, 292 (2016) (quoting Motor
Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto.
Ins., 463 U.S. 29, 43 (1983)). If supported by substantial
evidence, the Commission’s factual findings are conclusive.
16 U.S.C. § 825l(b). Substantial evidence “is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion and requires more than a scintilla but less
than a preponderance of evidence.” S.C. Pub. Serv. Auth. v.
FERC, 762 F.3d 41, 54 (D.C. Cir. 2014) (per curiam) (cleaned
up). “For the agency to reverse its position in the face of a
precedent it has not persuasively distinguished is
quintessentially arbitrary and capricious.” La. Pub. Serv.
Comm’n v. FERC, 184 F.3d 892, 897 (D.C. Cir. 1999). NEPA
“does not mandate particular results, but simply prescribes the
necessary process.” Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989). This Court “applies a rule
of reason to an agency’s NEPA analysis and has repeatedly
refused to flyspeck the agency’s findings in search of any
deficiency no matter how minor.” Myersville, 783 F.3d at
1322–23 (quotation omitted).

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A.
No party disputes standing. “Nevertheless, we have an
independent obligation to review petitioner’s standing before
addressing the merits.” Norfolk S. Ry. Co. v. Surface Transp.
Bd., 72 F.4th 297, 304 (D.C. Cir. 2023) (cleaned up). To
establish Article III standing, a plaintiff must show (1) injury
in fact that is concrete and particularized and actual or
imminent rather than conjectural or hypothetical, (2) causation
fairly traceable to the defendant’s challenged action and (3)
redressability by a favorable decision that is likely as opposed
to merely speculative. Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992).
Whitewater has standing based on its members’ submitted
declarations that they would recreate on this section of the
Salmon Falls River if the Project dams were removed; they
further declared that if FERC had conducted a proper analysis
under NEPA, its decision may have been different, enabling its
members to recreate there. That suffices to demonstrate
standing. See WildEarth Guardians v. Jewell, 738 F.3d 298,
305–07 (D.C. Cir. 2013) (holding that an association’s
members sufficiently alleged a procedural injury in fact
because they suffered harm to recreational interests from the
agency’s failure to adequately consider environmental factors,
causation because the procedural defect was connected to the
substantive result and redressability because the agency could
change its mind if required to reconsider environmental
concerns).
Intervenors must also satisfy standing requirements.
Deutsche Bank Nat’l Tr. v. FDIC, 717 F.3d 189, 193 (D.C. Cir.
2013). Aclara has standing because Whitewater challenges the
Commission’s approval of Aclara’s license surrender. See
Ameren Servs. Co. v. FERC, 893 F.3d 786, 792 (D.C. Cir.

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2018) (“[A] regulated party generally has standing to challenge
an agency action regulating its behavior” and “[intervenor],
unlike petitioner[], is the direct ‘object of the action’ being
challenged.”).
Intervenors Maine Rivers and Conservation Law
Foundation advocate for river restoration by removing barriers
to fish passage and their members are Maine residents who live
and recreate in the river’s watershed. They assert that they
have an interest in this case because they are involved in other
proceedings before FERC that involve similar statutory
environmental analyses. That is not enough to support
standing. An association must show that at least one of its
members has been injured. Sierra Club v. FERC, 827 F.3d 59,
65 (D.C. Cir. 2016). Intervenors for Petitioner have not done
so. And the mere fact that the case sub judice involves issues
that may bear on separate proceedings does not satisfy
standing. See City of Cleveland v. Nuclear Regul. Comm’n, 17
F.3d 1515, 1515–16 (D.C. Cir. 1994) (per curiam) (“[C]oncern
about the precedential effect of an adverse decision is not
sufficient to confer standing . . . .”). We will, however,
exercise our discretion to “accord [Intervenors for Petitioner]
amicus status so that [their] views on the common issues can
be considered.” Rio Grande Pipeline Co. v. FERC, 178 F.3d
533, 539 (D.C. Cir. 1999) (citing Fed. R. App. P. 29(a)).6
6 The Commission also has not challenged whether the statutory
cause of action encompasses Whitewater’s claim. See Myersville,
783 F.3d at 1316 (citing Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 127–28 (2014)). In any event, the
test for whether a petitioner’s “interests fall within the zone of
interests protected by the law invoked” is “lenient” and “not
especially demanding.” Id. A would-be petitioner is outside the
statute’s zone of interests only if its “interests are so marginally

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B.
Aclara argues that Whitewater’s petition is untimely
because it was filed 94 days after the Denial Notice, although
it was filed only 32 days after the Rehearing Order. Aclara is
wrong.
Under the FPA, an aggrieved party “may apply for a
rehearing within thirty days after the issuance of [the
aggrieving] order.” 16 U.S.C. § 825l(a). “Upon such
application the Commission shall have power to grant or deny
rehearing or to abrogate or modify its order without further
hearing. Unless the Commission acts upon the application for
rehearing within thirty days after it is filed, such application
may be deemed to have been denied.” Id. An aggrieved party
seeking judicial review must petition for review “within sixty
days after the order of the Commission upon the application for
rehearing.” Id. § 825l(b). Until the record is filed in a court of
appeals, however, FERC “may at any time, upon reasonable
notice and in such manner as it shall deem proper, modify or
set aside, in whole or in part, any finding or order.” Id.
§ 825l(a).
related to or inconsistent with the purposes implicit in the statute that
it cannot reasonably be assumed that Congress intended to permit the
suit.” Id. (quoting Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012)).
Whitewater relies on FPA and NEPA provisions requiring the
Commission to assess the public interest and consider any
environmental effects in a license surrender proceeding and “it is
precisely injuries in those domains that [Whitewater] assert[s].” Id.
That is enough to establish a cause of action under Lexmark’s lenient
standard.

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Environmental Defense Fund v. FERC, 2 F.4th 953 (D.C.
Cir. 2021), decides this issue.7 In EDF, we held that the 60-
day deadline to petition for review did not preclude
consideration of a petition filed within 60 days of a final denial
of relief even if there had been a deemed denial more than 60
days before the petition was filed. Id. at 972 (citing Texas-Ohio
Gas. Co. v. Fed. Power Comm’n, 207 F.2d 615, 616–17 (D.C.
Cir. 1953)). Although a rehearing request may be deemed
denied 30 days after it is filed, that does not mean that it must
be and a litigant may either appeal after 30 days have elapsed
or wait for the Commission to act. Texas-Ohio Gas Co., 207
F.2d at 616–17; see also N.Y. State Dep’t of Env’t Conservation
v. FERC, 991 F.3d 439, 446 (2d Cir. 2021) (“[T]he 30-day
timeline . . . binds only the agency, affording the aggrieved
party discretion to either proceed to federal court after the
expiration of the 30-day window or wait until FERC’s order
denying rehearing.”). It would be an “unreasonable result” to
deem “the time for appealing to the courts [to] have passed” if
the Commission does act on the rehearing request more than 60
days after those 30 days elapse. Texas-Ohio Gas Co., 207 F.2d
at 617.
Although EDF involved a tolling order rather than the
Denial Notice at issue here, that is a distinction without a
difference. In Allegheny Def. Project v. FERC, 964 F.3d 1, 16
(D.C. Cir. 2020) (en banc), we held that FERC “cannot use
tolling orders to change the statutorily prescribed jurisdictional
consequences of its inaction.” In other words, the Commission
may not avoid a deemed denial after 30 days of inaction by
issuing an order that falls short of “substantive engagement
7 EDF interpreted the Natural Gas Act but the FPA is
“interpreted similarly.” Allegheny Def. Project v. FERC, 964 F.3d 1,
16 (D.C. Cir. 2020) (en banc) (quoting City of Clarksville v. FERC,
888 F.3d 477, 484 (D.C. Cir. 2018)).

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with the application.” Id. at 13. Nevertheless, Allegheny also
emphasized that the “question is not one of labels, but of
signification.” Id. Whether a deemed denial is accompanied
by a Denial Notice, a tolling order or nothing, after 30 days of
inaction an applicant may seek judicial review or wait for
FERC to act on the application. As we stated in EDF, our
invalidation in Allegheny of FERC’s practice of issuing tolling
orders “did not disturb th[e] binding precedent [of Texas-Ohio
Gas Co.], which is squarely controlling in this case.” 2 F.4th at
972.
C.
Aclara next contends that the case is moot because, upon
confirmation that Aclara had completed decommissioning in
compliance with the Surrender Order, jurisdiction over the
Project moved from FERC to New Hampshire, leaving the
Commission without authority to order dam removal. If we
vacate the Surrender Order, however, the license surrender
would no longer be effective and FERC would regain
jurisdiction to consider dam removal. See N.Y. Cross Harbor
R.R. v. Surface Transp. Bd., 374 F.3d 1177, 1182 n.5, 1188
(D.C. Cir. 2004) (vacating and remanding an agency decision
although the decision had terminated agency jurisdiction).
Accordingly, this case is not moot.

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III.
A.
Whitewater principally argues that the Commission
improperly excluded the dam removal alternative from detailed
consideration under NEPA.8 We disagree.
Whitewater emphasizes that the Surrender Order noted
“significant and permanent” “beneficial effects” of dam
removal relating to river connectivity, boating opportunities
and sustainable fishing compared to mostly “temporary”
“[n]egative effects” of air and water pollution, species
displacement and construction noise and traffic. J.A. 440.
However, FERC also credited the City of Somersworth’s
statement that its water treatment process and upstream
infrastructure would be negatively affected by water level
changes and that the reservoir was used for firefighting. The
City may have merely stated that it was “concerned” about
potential impacts to upstream infrastructure but it was more
emphatic as to its water supply, asserting that its water
8 Maine Rivers and Conservation Law Foundation argue that
FERC erred in not conditioning Project surrender on the construction
of fish passage facilities. This issue is not properly before the Court
for two reasons. First, Whitewater did not raise the issue in its
opening brief and no extraordinary circumstance otherwise permits
an intervenor to raise an issue not brought before the court by the
petitioner. See Cal. Dep’t of Water Res. v. FERC, 306 F.3d 1121,
1126 (D.C. Cir. 2002). Second, the fish passage facility issue was
not raised with specificity in the only request for agency rehearing—
Whitewater’s—thereby failing to meet the FPA’s strict exhaustion
requirement. See Ameren Servs. Co., 893 F.3d at 793. In any event,
the Commission reasonably rejected this alternative because it lacks
jurisdiction to require maintenance and monitoring after surrender.
Jackson County v. FERC, 589 F.3d 1284, 1291–92 (D.C. Cir. 2009).

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treatment process would “most likely be negatively impacted”
by changes to water levels. J.A. 336–40. Moreover, the
Commission was authorized to “modify . . . in whole or in part”
its Surrender Order until the record was filed as part of a
petition for review. 16 U.S.C. § 825l(a). In its Rehearing
Order, FERC “conclud[ed] that the concrete benefits provided
by [Stone Dam] far outweigh[ed] the speculative benefits to
recreation and fish passage” from dam removal. J.A. 487–88.
Contrary to Whitewater’s assertions, “[b]ecause
[Whitewater] points to nothing suggesting that the information
provided by [the City] was unreliable,” the Commission did not
have to “verif[y]” it by collecting further data. Honeywell Int’l,
Inc. v. EPA, 372 F.3d 441, 447 (D.C. Cir. 2004). Instead,
“absent evidence to the contrary,” FERC was “entitled to rely
on . . . representations by parties who were uniquely in a
position to know the [relevant information].” Id. (quoting Nat’l
Ass’n of Regul. Util. Comm’rs v. FCC, 737 F.2d 1095, 1125
(D.C. Cir. 1984) (per curiam)). Granted, in Lacson v. DHS,
726 F.3d 170, 179 (D.C. Cir. 2013), we said that Honeywell-
type hearsay statements are barely enough to constitute
substantial evidence and that agencies would “be well-advised
to provide more direct evidence of the facts at issue, or
affidavits by officials who possess personal knowledge of the
facts, or more expansive explanations of the manner in which
the officials confirmed those facts.” Although not submitted in
affidavit form, the City’s comments were made in a signed
motion to intervene before the Commission, which “constitutes
a certificate” that the “contents are true as stated, to the best
knowledge and belief of the signer.” 18 C.F.R.
§ 385.2005(a)(2)(ii). That is a fortiori reliable enough
compared to the statements that passed muster—even if barely
so—in Honeywell and Lacson.

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NEPA also does not require quantifying every
environmental impact. See Myersville, 783 F.3d at 1325.
Rather, “NEPA ‘involves an almost endless series of judgment
calls’ left primarily to the agency, . . . including the question of
how much information to seek from [interested] parties.” Food
& Water Watch v. FERC, 104 F.4th 336, 344 (D.C. Cir. 2024)
(quoting Duncan’s Point Lot Owners Ass’n v. FERC, 522 F.3d
371, 376 (D.C. Cir. 2008)). In Food & Water Watch we went
on to explain that FERC “reasonably declined to seek more
information” because “no evidence suggest[ed] that a request
would have produced useful information.” Id. That showing
may be sufficient to justify not seeking more information, but
it is not required in every circumstance. Instead, here the
Commission highlighted that the dam provided a supply of
water for local residents as well as firefighting and
manufacturing needs and that the City was concerned about
negative impacts on its water treatment process and upstream
infrastructure. Under Myersville and Food & Water Watch,
FERC appropriately considered these existing uses and made a
reasonable judgment call not to request data to quantify the
impacts. We “refuse[] to ‘flyspeck’ the agency’s findings in
search of ‘any deficiency no matter how minor.’” Myersville,
783 F.3d at 1322–23 (quoting Nevada, 457 F.3d at 93).
Whitewater further argues that the reasons not to remove
Stone Dam do not apply to Back Dam. That is beside the point.
The Commission reasonably concluded that removing only
Back Dam would provide limited benefits because the dams are
near each other and in an industrial setting. It is true that the
surrounding area is also partly forested, residential, mixed
urban and commercial. As FERC noted, however, there are no
formal recreation facilities, it is not clear whether the bypass
reach would be publicly accessible after surrender and Stone
Dam would continue to present a barrier to boating.
Whitewater, in turn, points out that the public has a right to use

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the navigable waters of the United States. See Slaughterhouse
Cases, 83 U.S. 36, 79 (1872). But Aclara highlights that “there
are no public access points on either side of the river” near the
dams and “both sides are private property with steep, rocky
ledges.” Intervenor for Resp’t’s Br. 23. Whitewater’s reply
brief does not dispute Aclara’s assertions, which corroborate
FERC’s findings on public accessibility.
Moreover, the Commission credited Aclara’s assertion
that even when all water is spilled into the bypass reach,
summer water flows are too low for boating. Whitewater
claims that FERC did so without evidence but Whitewater
itself provided a photo of the river dried up during the summer
and data on historical river flows that corroborated the low
summer flows. Although water flows are higher at other times
of the year, it was reasonable for the Commission to put limited
weight on foregone boating opportunities in New England
outside the summer months. Finally, FERC’s conclusion that
the recreational benefits of removing Back Dam were
speculative is supported by Whitewater itself, which provided
FERC with only unsupported statements that recreation
“would” or “could” occur after Back Dam’s removal.
Whitewater next contends that the dam removal alternative
should have been considered in greater detail because it was
feasible in light of FERC’s purpose. Whitewater alleges that
the Commission’s actions are at odds with Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190, 197–98 (D.C. Cir.
1991), in which we held that the Federal Aviation
Administration acted reasonably by not discussing in detail
alternatives that did not meet the agency’s purpose. That an
agency may decline to discuss in detail alternatives that do not
meet its purpose does not mean that an agency must discuss in
detail any alternative that does meet its purpose. Here, FERC’s
stated “purpose and need” for its EA was to satisfy its

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responsibilities under NEPA relating to Aclara’s proposed
surrender of its license. J.A. 381. Although Whitewater asserts
the purpose of the Commission’s action was “license
surrender” Pet’rs Reply Br. 13, FERC’s purpose is more
accurately characterized as “act[ing] upon” the application for
surrender in accordance with its NEPA responsibilities,
Theodore Roosevelt Conservation P’Ship v. Salazar, 661 F.3d
66, 74 (D.C. Cir. 2011). That purpose neither presupposes
granting license surrender nor prejudges whether to approve
surrender with or without dam removal.
Instead, FERC’s responsibility under NEPA is to “take[] a
‘hard look’ at the environmental impacts of a proposed action.”
Myersville, 783 F.3d at 1324. In performing an EA
specifically, one of the Commission’s key responsibilities is to
determine whether an action would have a significant impact
on the environment, thereby triggering the need for an EIS. Id.
at 1322. FERC fulfilled that obligation here by finding no such
impact, which no party contests. An EA then requires only
“brief discussion” of reasonable alternatives, id. at 1323
(cleaned up), suggesting that even less (if any) discussion of
unreasonable alternatives is required. NEPA also does “not
require agencies to elevate environmental concerns over other
appropriate considerations.” Balt. Gas, 462 U.S. at 97 (citing
Strycker’s Bay, 444 U.S. at 227). In light of water supply and
infrastructure concerns, among other reasons, the Commission
reasonably found that there were “no feasible alternatives” to
surrender without dam removal. J.A. 384–85.
In any event, and as explained above, the Surrender Order
and Rehearing Order supplemented the EA and discussed the
benefits and drawbacks of dam removal in detail, going well
beyond what NEPA requires absent a significant impact on the
environment. See Friends of the River v. FERC, 720 F.2d 93,
106–08 (D.C. Cir. 1983) (agency may supplement its NEPA

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analysis before a petition for review is filed). The Commission
even “devot[ed] especially thorough attention” to
Whitewater’s favored dam removal alternative, having laid out
and considered the no-action alternative of denying license
surrender and the surrender approval alternatives of leaving the
dams in place, removing the dams or ordering the construction
of fish passage facilities. Minisink Residents for Env’t Pres. &
Safety v. FERC, 762 F.3d 97, 107 (D.C. Cir. 2014). Under the
deferential “rule of reason” standard applicable here, FERC has
done enough. Myersville, 783 F.3d at 1322.
B.
Finally, Whitewater argues that the Commission violated
the FPA by determining that dam removal was not in the public
interest and by veering from its precedent. But NEPA
challenges “fare no better when framed as [FPA] challenges.”
Biological Diversity, 67 F.4th at 1188. As discussed above,
FERC considered the benefits and drawbacks of dam removal
and reasonably considered that the public interest would be
better served by leaving the dams in place. Of particular
relevance here, under the Commission’s Decommissioning
Policy it “is unlikely that a dam or reservoir serving key
municipal water needs . . . is going to be shut down.”
Decommissioning Policy, 60 Fed. Reg. at 345. Moreover,
ordering dam removal against a licensee’s wishes is a “rare
case,” id. at 340, and the Commission is reluctant to require a
licensee to remove a structure that it did not build itself, Pub.
Util. Dist. No. 1 of Okanogan Cnty., 169 F.E.R.C. ¶ 61215, P
18 (2019) (“Requiring the developer of a failed, unconstructed
project [to] be subjected, in addition to the loss of capital and
money invested in the project, to requirements designed to
remedy actions taken by others could provide a substantial,
unwarranted disincentive to hydropower development.”). In
one case, FERC did order removal of a dam that predated the

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licensee’s ownership despite the licensee’s request for
relicensing, but that was because several important fish species
could not otherwise be restored to their historical habitat.
Edwards Mfg. Co., 81 F.E.R.C. ¶ 61255, at 62210 (1997).
There are no such concerns here.
The Commission’s actions are also not at odds with its past
orders. Similar to FERC’s analysis of Back Dam here, in
Rochester Gas & Electric Corp., 100 F.E.R.C. ¶ 61113, P 11
(2002), the Commission noted that dam removal “would
recover very little natural river channel” because there was
another dam 1.5 miles upstream, limiting the environmental
benefits from removal. Granted, there are migratory fish
species here that were not present in Rochester but the trap-
and-truck approach being considered at the time of the
Commission’s orders—and ultimately adopted—means the
downstream dams will still prevent fish from swimming
upstream even if the Project dams were removed. In any event,
project decommissioning “solutions necessarily will vary from
one situation to another.” Decommissioning Policy, 60 Fed.
Reg. at 340. FERC’s order approving Aclara’s surrender
application without dam removal is a reasonable solution for
the Salmon Falls River situation.
For the foregoing reasons, Whitewater’s petition for
review is denied.
So ordered.

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