216 F.3d 41 (D.C. Cir. 2000)
Conservation Law Foundation, et al.,Petitionersv.Federal Energy Regulatory Commission, RespondentState of Maine;  Great Northern Paper, Inc.,Intervenors
Nos. 99-1035, Nos. 99-1159, 99-1161 & 99-1162
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2000Decided June 23, 2000

[Copyrighted Material Omitted]
On Petitions for Review of Orders of theFederal Energy Regulatory Commission
Sean H. Donahue, Attorney, U.S. Department of Justice,  argued the cause for the federal petitioners.  With him on the briefs were Lois J. Schiffer, Assistant Attorney General,  Peter Coppelman, Acting Assistant Attorney General, James  C. Kilbourne, Ellen Durkee, and M. Alice Thurston, Attorneys.  Ellen D. Katz, Attorney, entered an appearance.
Carol A. Blasi argued the cause for petitioner Conservation  Law Foundation, et al.  With her on the briefs was Alexander W. Sierck.  Mona M. Janopaul entered an appearance.
Kaighn Smith, Jr. argued the cause for petitioner Penobscot Indian Nation.  With him on the briefs was Mark  Chavaree.
Beth G. Pacella, Attorney, Federal Energy Regulatory  Commission, argued the cause for respondent.  With her on  the brief were John H. Conway, Acting Solicitor, and Timm  L. Abendroth, Attorney.
Andrew Ketterer, Attorney General, and Paul Stern, Deputy Attorney General, were on the brief for intervenor State of  Maine.
Catherine R. Connors and Matthew D. Manahan were on  the brief for intervenor Great Northern Paper, Inc.
Before:  Randolph, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
The Department of the Interior  and the Environmental Protection Agency, conservation  groups,1 and the Penobscot Indian Nation petition for review  of the Federal Energy Regulatory Commission's relicensing  of a hydroelectric project in north-central Maine.  The issues  presented go mainly to the adequacy of the Commission's  consideration of the various factors governing license renewals.  Because the Commission gave sufficient attention to  these factors and carefully explained its conclusions, the  petitions are denied.


2
* Located on the West Branch of the Penobscot River, the  Ripogenus and Penobscot Mills Hydroelectric Projects produce approximately 108 megawatts of power for Great Northern Paper mills in Millinocket and East Millinocket, Maine.The projects consist of a series of reservoirs, dams, and  powerhouses.  This case focuses on one of the dams--the  1262 foot long Stone Dam, which is part of the Penobscot  Mills Project.2  Constructed in 1899, Stone Dam diverts  water through a canal to a 37 megawatt powerhouse.  This  diversion blocks the main channel of the Penobscot's West  Branch for a 4.5 mile stretch known as the "Back Channel."Because of Stone Dam, the Back Channel receives only  leakage flows of 2 to 5 cfs (cubic feet per second), except for  occasional "spillage" when flows exceed power requirements.


3
The Penobscot Mills Project, like any project used for the  "development, transmission, and utilization of power across,  along, from, or in any of the streams or other bodies of water  over which Congress has jurisdiction," requires a license from  the Federal Energy Regulatory Commission.  16 U.S.C.   797(e).  When the original license for Penobscot Mills  expired at the end of 1993, Great Northern applied for a new  one.  The Commission issued a Final Environmental Impact  Statement analyzing three different proposals regarding the  new license:  the "Applicant's Proposal," in which Great  Northern would "operate the project[ ] nearly as it has over  the past 50 years" with some new environmental and recreational enhancements but no increased flows in the Back  Channel;  "Alternative 1," which reflected the Interior Department's recommendations for enhancements including  minimum flows of 350 to 500 cfs in the Back Channel;3  and "Alternative 2," recommending "enhancement measures intermediate between those proposed by GNP and those in Alternative 1."  FEIS at xix.  As a baseline for comparison, the  Commission adopted the terms and conditions of the existing  license as the "no action" option.  The impact statement  recommended a modified version of Alternative 2 that did not  include flow requirements for the Back Channel.  See FEIS  at xxiii.


4
Shortly after issuance of the final impact statement, the  Commission granted a new license for Penobscot Mills.4  See  77 F.E.R.C. p 61,068 (1996).  The order conditioned the license on Great Northern's commitment to wetland enhancements, project boundary expansion, and increased flows into  Millinocket Stream.  See id. at 61,275-79.  As to the Back  Channel, the Commission decided not to order minimum flows  "given the modest fisheries benefit likely to occur and the  significant adverse impact on the project's energy benefits,"  id. at 61,276, a decision it affirmed on rehearing, see 85  F.E.R.C. p 61,316 (1998), and reconsideration, see 86 F.E.R.C.  p 61,184 (1999).

II

5
"In deciding whether to issue any license [for hydroelectric  projects,] the Commission, in addition to the power and  development purposes for which licenses are issued, shall give  equal consideration to the purposes of energy conservation,  the protection, mitigation of damage to, and enhancement of,  fish and wildlife (including related spawning grounds and  habitat), the protection of recreational opportunities, and the  preservation of other aspects of environmental quality."  16  U.S.C.  797(e).  The Federal Power Act also requires the  Commission to include conditions for the "protection, mitigation and enhancement" of fish and wildlife affected by the project, such conditions to be "based on recommendations  received pursuant to the Fish and Wildlife Coordination Act  (16 U.S.C. 661 et seq.) from the National Marine Fisheries  Service, the United States Fish and Wildlife Service, and  State fish and wildlife agencies."  16 U.S.C.  803(j)(1).  The  Commission retains authority to decide that recommended  conditions are "inconsistent with the purposes" of the FPA or  other laws, in which event it shall of course reject them. 16  U.S.C.  803(j)(2);  see United States Dep't of the Interior v.  FERC, 952 F.2d 538, 544 (D.C. Cir. 1992).  While the Commission must give "equal consideration" to environmental  factors, those factors do not have "preemptive force."  952  F.2d at 545.  The Commission "still is charged with determining the 'public interest,' i.e., balancing power and non-power  values."  Id.


6
The petitioners contend that the Commission's rejection of  minimum flow requirements in the Back Channel violates  these Federal Power Act provisions and the National Environmental Policy Act, see 42 U.S.C.  4321 et seq.  Their  arguments can be grouped into two categories:  that the  Commission did not fully recognize the recreational and environmental (i.e., nonpower) benefits that would have resulted  if it had imposed minimum flow requirements;  and that the  Commission inflated the economic costs Great Northern  would incur from increased Back Channel flows.

A. Nonpower Issues

7
The main argument of the federal petitioners is that the  Commission should not have treated existing conditions at  Stone Dam as the baseline "no action" option because this  caused "the Commission to ignore ongoing impacts directly  attributable to the new license...."  Brief for the Federal  Petitioners at 29.  We think there is nothing to this objection.The statute--16 U.S.C.  803(j)--invites a comparative inquiry.  It charges the Commission with the duty of protecting,  mitigating the damage to, and enhancing "fish and wildlife  (including related spawning grounds and habitat) affected by  the development, operation and management of the project."To do this properly the Commission must compare what  might occur to fish and wildlife if the license does not include  protection for nonpower resources against what will occur  with conditions imposed. The statutory words "fish and  wildlife ...  affected" by the project seems to refer to the  fish and wildlife currently existing in the vicinity of the  project, which supports the Commission's choice of existing  conditions as a baseline.  The quoted language surely cannot  refer to the animals inhabiting the area in 1899, when the  project came into being.  They are long gone and so cannot  be "affected" by a Commission licensing decision in the 1990s.Granted, it is possible to treat the words "fish and wildlife"  generically, so that it is not just the animals currently residing in the region that get protected or enhanced, but different  species that might be introduced or reintroduced.  But this  view of  803(j) does not help petitioners because it says  nothing about whether the baseline for the Commission's  comparative inquiry should be today or sometime other than  today.  In other words, even if the statute refers generally to  all "fish and wildlife" it hardly follows that the Commission  must imagine the Back Channel as it existed before 1899 and  assess the effect of relicensing by pretending that Stone Dam  does not exist--at least when no one advocates decommissioning the Penobscot Mills Project and tearing down the dam.


8
Given the language of  803(j), the Commission certainly  had the leeway to conduct its comparative assessments using  existing conditions as a baseline.  To the reasons just mentioned, we incorporate by reference those given in American  Rivers v. FERC, 201 F.3d 1186, 1195-99 (9th Cir. 2000),  which sustained the Commission's use of an existing conditions baseline as a reasonable construction of  803(j).


9
In any event, the baseline business has the whiff of a red  herring.  Baseline or no baseline, the question is whether the  Commission has fully examined options calling for greater or  lesser environmental protection.  Here the Commission spoke  of environmental "benefits" and the economic "costs" to Great  Northern of options calling for stronger environmental protection.  It could just as easily spoken of economic "benefits"  to Great Northern from licensing the project and environmental "costs."  So long as the Commission adequately examines both the power and nonpower impacts of recommended  licensing conditions, we do not see why it matters on which  side of the equation environmental concerns are placed.  In  issuing the new licenses in these proceedings, the Commission  adopted twelve of Interior's fourteen recommended environmental enhancements while using an existing conditions baseline.  See FEIS tbls.5-8 to 5-9, at 5-20 to 5-21, adopted at 77  F.E.R.C. at 61,275.  This in itself proves that the federal  petitioners are mistaken in thinking that an existing conditions baseline preordains the rejection of any new conditions  for the protection of fish and wildlife.  So long as the Commission examines options that include recommended environmental enhancements, its choice of a baseline will not prevent  it from giving "equal consideration" to nonpower values.5


10
Petitioners also argue that the Commission did not give  "equal consideration" to nonpower values because it refused  to assess in economic terms the nonpower benefits that would  result from restoring significant flows to the Back Channel. Restored flows, petitioners believe, would attract anglers and  whitewater rafting enthusiasts to this 4.5 mile stretch of  river. In the rehearing order, the Commission explained its refusal  to quantify these nonpower benefits:  "[T]he public-interest  balancing of environmental and economic impacts cannot be  done with mathematical precision, nor do we think our statutory obligation to weigh and balance all public interest considerations is served by trying to reduce it to a mere mathematical exercise....  [F]or non-power resources such as aquatic  habitat, fish and wildlife, recreations, and cultural and aesthetic values, to name just a few, the public interest cannot be  evaluated adequately only by dollars and cents."  85 F.E.R.C.  at 62,244-45.  Certainly nothing in the statute requires the  Commission to place a dollar value on nonpower benefits. Nor does the fact that the Commission assigned dollar figures  to Great Northern's economic costs require that the Commission do the same for nonpower benefits:  " 'Equal consideration' is not the same as 'equal treatment.' "  State of California v. FERC, 966 F.2d 1541, 1550 (9th Cir. 1992).  The  refusal to quantify nonpower benefits did not "stack the deck"  against those concerns.  The Commission approved "a variety  of enhancements related to instream flows for fisheries and  recreation, stabilization of impoundment levels, wetlands, recreational facilities, shoreline protection, and cultural resources."  85 F.E.R.C. at 62,245;  see also id. at 62,245 n.31.A critical factor in the Commission's refusal to impose minimum flows was the increased power expenses that would  result, not the Commission's failure to appreciate nonpower  values.  Minimum flows of 350 cfs in the Back Channel would,  the Commission concluded, increase annual power expenses  by $916,300;  the total increase in annual power costs of the  enhancements the Commission approved for Penobscot Mills  was $262,600.  See FEIS tbl.5-3, at 5-13.


11
Petitioners' final complaint under this heading is that the  Commission did not focus on the possibility of a brook trout6  fishery in the Back Channel.  In its original order, the  Commission observed that "fish species such as brook trout,  eels, minnows and suckers would benefit slightly from the  recommended flows, [but] the Back Channel would at best  only produce several hundred adult land-locked salmon."  77  F.E.R.C. at 61,275.  The order then explained why the Back  Channel would not be a desirable habitat for land-locked  salmon, but did not mention brook trout again.  See id.  On  rehearing, the Commission stated that there was "a low  likelihood of re-establishing limited habitat" for brook trout.85 F.E.R.C. at 62,243.  It relied, at least in part, on "a Maine  Department of Inland Fish and Wildlife priority to maintain  and protect fishery resources elsewhere in the project area."Id.  "During dry years, requiring minimum flows above leakage in the Back Channel could affect the ability to maintain constant flows in the West Branch and Millinocket Stream,  and lake level in the North Twin reservoir, which could cause  stress and potential damage to salmon and trout populations  in those areas."  Id.  Given the plentiful brook trout fisheries  in the Penobscot Mills-Ripogenus area, the Commission cannot be faulted for believing that adding another 4.5 mile  stretch would have little benefit.  See id.


12
The Federal Power Act requires the Commission to consider the recommendations of the United States Fish and Wildlife Service and State fish and wildlife agencies.7  See 16  U.S.C.  803(j)(1).  Even when the recommendations of federal and state agencies are in concert, those agencies do not  have "veto power" over Commission licensing decisions.  Department of Interior, 952 F.2d at 545 (citing National Wildlife Fed'n v. FERC, 912 F.2d 1471, 1480 (D.C. Cir. 1990)).  In  this case the federal and State agencies disagreed about the  desirability of promoting a brook trout fishery in the Back  Channel.  The Commission adequately explained why Interior's recommendation was inconsistent with the purposes of  the FPA.  See 16 U.S.C.  803(j)(2).  Not only would Interior's proposal curtail power production from the Penobscot  Mills Project, but the Commission had reason to believe a  Back Channel brook trout fishery would actually do more  harm than good to the region's fish habitats.

B. Power Issues

13
The Commission stated that the "reduction in the project's  ... annual energy benefits for the Back Channel flows outweighs the enhancement in aquatic resources that the flows  would produce."  77 F.E.R.C. at 61,276.  The Commission  calculated this annual reduction as $916,0008 (6% of the project's total benefits), see id., based on the price of purchasing replacement power from the least-cost alternative  source--Bangor Hydro & Electric Company,9 see FEIS   2.4.4, at 2-33 to 2-34.


14
Petitioners complain that the Commission failed to consider  the alternative of Great Northern conserving energy, something the statute requires the Commission to consider.  See  16 U.S.C. §§ 797(e), 808(a)(2)(C);  see also 42 U.S.C.   4322(2)(E);  40 C.F.R.  1502.14.  They put it this way:"By considering conserved power as the least cost alternative  to hydropower, rather than the more expensive purchased  power used by the Commission, the cost of environmental  enhancements, such as Back Channel flows, are much lower."Final Brief for Petitioners Conservation Law Foundation, et  al. and Trout Unlimited at 12.  But the Commission did  consider the alternative of energy conservation.  After examining Great Northern's plant data, the Commission concluded  that the mills had recently increased energy efficiency as the  result of plant modernization efforts and the use of steam  generation and that no reliable evidence supported petitioners' view that "enormous conserved power potential" still  existed at the mills.  See FEIS E-3, cited in 77 F.E.R.C. at  61,269 n.16;  id. at E-24.  The final impact statement also  noted that Great Northern, "operating as a private for-profit  enterprise, would have a strong economic incentive to maximize savings from conservation and not waste electric power,  particularly as it manufactures an energy-intensive product."  Id. at E-23, cited in 85 F.E.R.C. at 62,243 n.14.  Any  conservation that did occur would be "used to displace higher cost fossil fuel power ... [s]ince the entire output from the  two projects supplies only a portion of GNP's total annual  power needs...."  Id., cited in 85 F.E.R.C. at 62,243 n.14.We see no ground for disagreeing with this reasoning.  The  Penobscot Mills (31% of energy needs) and Ripogenus (19%  of energy needs) Projects supply only half of the energy needed for Great Northern's paper manufacturing.  See 77  F.E.R.C. at 61,242, 61,270.  Until the company's conservation  measures achieved a 50% reduction in its energy needs  (something no one contends is likely), the consequence of  increased energy efficiency would be a decrease in the company's purchase of other, more expensive, sources of power. Thus, the "replacement cost" of reduced hydroelectric power  would still be the price of power from Bangor, namely  $916,000.10


15
Petitioners' other cost-side argument is that the Commission relied on unsupported claims that the increased cost of  Back Channel flows would result in job losses at the Great  Northern mills.  This misinterprets the Commission decision. In the original order, the Commission recognized "Great  Northern's need for inexpensive power to remain competitive  in its paper making operations."  77 F.E.R.C. at 61,275.Then, in a footnote, the Commission stated that it could not  verify the company's claim that flows in the Back Channel  "would result in the loss of approximately 238 jobs," so the  Commission was just relying on what it did know--that  "Great Northern's operating costs are high compared to other  paper manufacturers, and cost increases could reduce the  company's competitiveness."  Id. at 61,275 n.31 (italics added).  On rehearing, the Commission once again indicated that  it was only relying on the risk of economic harm:  "A 350-cfs  minimum flow would reduce the annual energy benefit of  Penobscot Mills substantially, with the possibility of causing  Great Northern to further curtail operations at, or close, its  paper mills...."  85 F.E.R.C. at 62,242 (italics added) (footnotes omitted).  There is ample evidence in the record to  support the Commission's findings.  Papermaking is a highly  competitive industry, see FEIS  5.3.5, at 5-14, cited in 77  F.E.R.C. at 61,275 n.31;  Great Northern is a high cost producer compared to other paper manufacturers, see id.,  cited in 77 F.E.R.C. at 61,275 n.31, and Great Northern  recently closed some Millinocket facilities, resulting in the  elimination of about 350 jobs, see 85 F.E.R.C. at 62,242 n.9.11

III

16
The Penobscot River Basin is "home to the Penobscot  Indian Nation (PIN), much of whose cultural heritage is  closely associated with the river and the resources it provides."  FEIS  3-1, at 3-1.  Under the Maine Indian Claims  Settlement Act, the " 'Penobscot Indian Reservation' " is defined as "the islands in the Penobscot River reserved to the  Penobscot Nation by agreement with the States of Massachusetts and Maine consisting solely of Indian Island, also known  as Old Town Island, and all islands in that river northward  thereof that existed on June 29, 1818...."  25 U.S.C.   1722(i) (incorporating 30 Me. Rev. Stat. Ann.  6203(8)). The Penobscot Nation claims that its reservation includes the  islands in the West Branch of the Penobscot.  The State of  Maine disagrees, contending that nothing "even remotely  suggests that any land or islands in any branches or tributaries of the Penobscot River were being reserved" to the Tribe. FEIS  4.11.1.2, at 4-69.


17
The land issue is of some consequence to this case.  The  Tribe believes it should have been a consulting party to the "programmatic agreement" the Commission adopted in fulfilling its duty to take "into account the effect of [the licenses on  any site] that is included in or eligible for inclusion in the  National Register" of Historic Places.  16 U.S.C.  470f;  see  also 36 C.F.R.  800.13 (authorizing agencies to delegate this  responsibility to "programmatic agreements").  An Indian  Tribe must be named a concurring party to a programmatic  agreement when the agency "undertaking will affect Indian  lands." 36 C.F.R.  800.1(c)(2)(iii).  But the Penobscot Nation  had not established legal title to the islands in the West  Branch, and so the Commission did not confer consulting  party status on it.  See 85 F.E.R.C. at 62,245.  The Commission made clear on rehearing that it was not determining the  merits of the Tribe's land claims and that, should the Tribe  establish legal title to the lands, it would be added as a  consulting party.  See id. at 62,245 & n.35.  We agree that  the Commission was under no obligation to make the Penobscot Nation a consulting party;  nor was its failure to do so an  abuse of discretion.


18
The Tribe also contends that increased flows in the Back  Channel would provide its members with canoe access to  religious sites, which means that the Commission violated the  American Indian Religious Freedom Act.  This statute requires the "United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American  Indian ... including but not limited to access to sites...."42 U.S.C.  1996.  The Commission's response is conclusive: even with flows of 350 cfs, canoe navigation of the Back  Channel would not be possible.  See 77 F.E.R.C. at 61,275  n.39.  The Commission also noted that "there is a nearby canoe route on the Penobscot that permits canoe passage to  the same sites"--presumably the route the Tribe has used  since 1899.  See 85 F.E.R.C. at 62,243.  Federal agencies are  to consider, "but not necessarily to defer to, Indian religious  values."  Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983).The Commission has performed its duty under this legislation.12


19
The petitions for review are denied.



Notes:


1
 American Rivers, American Whitewater Affiliation, Appalachian  Mountain Club, Conservation Law Foundation, and Trout Unlimited.


2
 Petitioners raise no specific objection to the Commission's order  relicensing the Ripogenus Project, see 77 F.E.R.C. p 61,316 (1996),  though that order was also listed in the petitions for review.


3
 Interior initially recommended flows of 500 cfs and later increased the recommendation to 945 cfs.  See 85 F.E.R.C. at 62,242 n.6.  In its petition for rehearing before the Commission, however,  Interior only "argue[d] for a minimum flow 350 cfs."  Id. at 62,242.


4
 During the interim, the Commission had issued annual renewals  of the Penobscot Mills license under the same terms as the expired  license.  See 16 U.S.C.  808(a).


5
 We also agree with the American Rivers court, see 201 F.3d at  1199-2001, that the Commission's thorough examination of a range  of licensing alternatives satisfies NEPA's procedural requirements,  see 42 U.S.C.  4332(2)(C)(iii).


6
 A "brook trout" (Salvelinus fontinalis) is actually a char."Chars are distinguished from trout by their mouth structure;  the  vomerine bone in the center of a trout's mouth has teeth all along it,  while the vomer of the char has only a few teeth on the front end of  the bone."  A.J. McClane, ed., McClane's New Standard Fishing  Encyclopedia and International Angling Guide 207 (1998 ed.).


7
 The same provision requires the Commission to "attempt to  resolve any inconsistency" between its proposed license and other  agency recommendations.  See 16 U.S.C.  803(j)(2).  The Commission did so in a "dispute-resolution meeting with representatives  from Interior on February 8, 1996."  77 F.E.R.C. at 61,274.


8
 The Commission concluded that the annual cost of Interior's  request for 950 cfs would be $2.5 million, or 16% of the project's  power production.  See 77 F.E.R.C. at 61,274-75.


9
 The Commission (as well as the parties) assume that Great  Northern would purchase fossil fuel power--not hydro power--from  Bangor.


10
 Although conservation would not change the $916,000 replacement cost of increased Back Channel flows, it would reduce Great  Northern's total energy costs.  But it was the magnitude of the  replacement cost, not the impact it would have on the company's  overall economic condition, that led the Commission to reject the  proposal for increased Back Channel flows.  See infra note 11.


11
 Petitioners' pre-argument motion to remand the case to the  Commission for the taking of additional evidence, see 16 U.S.C.   825l(b), is denied. In November 1999, Great Northern Paper  submitted an application to the Commission seeking the transfer of  the Penobscot Mills license to a new subsidiary, Great Northern  Energy.  A subsidiary of Duke Energy Corporation has a minority  interest in Great Northern Energy.  Petitioners believe these developments affect two of the Commission findings:  that Back  Channel flows could threaten the mills' economic viability and that  expanded conservation efforts are not plausible.  We do not see,  however, how these developments could alter the two dominant  factors in the Commission's decision:  the replacement energy cost  of $916,000 and the minimal (perhaps even detrimental) effect on  fisheries.  See 77 F.E.R.C. at 61,275 ("Interior's recommendations  ... would entail a significant reduction in energy benefits on behalf  of only marginal improvements to aquatic habitat....");  id. at  61,276 ("Given the modest fisheries benefit likely to occur and the  significant adverse impact on the project's energy benefits, we are  not requiring minimum flows for the Back Channel.").  It does not  "clearly appear that the new evidence would compel or persuade to  a contrary result," so we deny the motion.  Friends of the River v.  FERC, 720 F.2d 93, 99 n.6 (D.C. Cir. 1983) (quoting Rocky Mountain Power Co. v. FERC, 409 F.2d 1122, 1128 n.21 (D.C. Cir. 1969)).


12
 The Tribe raises several other arguments that do not warrant  written exposition.  These have been considered and rejected.


