Alabama Power Company is mulling how to proceed after a federal appellate court on Monday threw out its license to operate seven dams on the Coosa River.
The ruling called the Federal Energy Regulatory Commission’s decision to issue the 30-year license “arbitrary and capricious.” The court said the decision was based on reviews and opinion that “were unreasoned and unsupported by substantial evidence.”
The decision by the U.S. Circuit Court of Appeals for the District of Columbia requires the case be returned to the Federal Energy Regulatory Commission to perform a more extensive environmental impact assessment.
The decision was a rare reversal of a FERC dam licensing ruling. In an emailed statement, Alabama Power expressed disappointment, arguing that FERC’s findings “fully support the licensing decision.”
The ruling does not require any immediate change in the dams’ operation. For now, the dams are operating under the 2013 license since the court order does not become effective until seven days after Alabama Power’s 45-day window to file for a rehearing on the decision, according to a company spokesperson, Michael Sznajderman. He said the company is conferring with FERC on what would happen if no rehearing request is filed.
“Possibly, we would revert to the old license until the relicensing issue is resolved,” he said.
A more extensive study of the dams’ impact on the environment would include a public hearing and comment period and could take months to complete and for FERC to consider. Environmentalists want “expeditious” action, but not at the expense of rushing the study, according to Gil Rogers of the Southern Environmental Law Center, which represented two environmental groups that brought the action.
Court Doubted Environment Claims
The unanimous appellate court opinion slammed the commission’s finding when it issued the license in 2013 that power generation along the Coosa would not have a substantial impact on the environment, endanger aquatic wildlife or produce low dissolved oxygen levels in the river. That was despite a FERC review that documented the dams’ operation would destroy multiple endangered aquatic wildlife populations, incur a large loss of native fish and result in “perilously low dissolved oxygen levels for substantial periods of time.”
The court added that FERC had “declined to factor in the decades of environmental damage already wrought by exploitation of the waterway for power generation and that damage’s continuing ecological effects.”
The case originated in a 2013 petition by the two environmental groups to FERC to deny the Coosa River licenses to Alabama Power. When the petition was denied in 2016, the groups, The Alabama Rivers Alliance and American Rivers, filed suit through the Southern Environmental Law Center.They said the license violated aspects of the National Environmental Policy Act, the Endangered Species Act and the Federal Power Act.
Cindy Lowry, executive director of the Alabama Rivers Alliance, said, “We are ecstatic about the outcome of this case and what it means for future dam relicensing projects.”
The alliance’s policy director, Curt Chaffin, said that, under a new license following a comprehensive environmental impact study, Alabama Power will have to take measures to improve the degradation of the river system that has occurred under its watch. “We can’t cut corners when it comes to protecting our rivers, and this is an example of corners were cut,” he said. “The court’s message is that our environment won’t take a back seat and that laws are in place to protect the incredible biodiversity and wonder that is the Coosa.”
The Coosa River Basin includes about 10,161 square miles in Alabama, Georgia and Tennessee. Originating near Rome, Georgia, it flows 267 miles south, where it enters the Tallapoosa River and eventually exits into Mobile Bay. Almost all the Coosa’s water levels and flows are regulated by dams owned by Alabama Power. The U.S. Corps of Engineers operates two other dams on the Coosa, but they are not affected by the court’s ruling.
The power company operates seven hydroelectric generator and storage developments along the Coosa. From upstream to downstream, the dams are: Weiss, H. Neely Henry, Logan Martin, Lay, Mitchell, Jordan and Bouldin. None have locks for passage by boats or fish.
Ecological damage to the Coosa is among the worst in the Southeast and is primarily due to poor regulation of the dams, Rogers said.
“This decision ought to be a wake-up call for (FERC) to do the right thing on the front end and require protections to be built into licenses that will improve river systems’ health,” Rogers said. An example would be technological advances that the power company could have been using to improve dissolved oxygen levels.
“We’re not advocating dams to come down, (but) there are ways to run the river better than the power company has done or that FERC required them to do. That’s the point the court made and that we’ve been making for years,” Rogers said. He said that FERC should evaluate the entire system from Georgia to Mobile Bay and including tributaries, to see where the biggest improvements could be made.
He added, “It feels good to have a court validate those arguments. At the end, we hope to have a license to operate these dams that’s more protective of the health of the river system.”
American Rivers’ senior conservation director Gerrit Jöbsis called the Coosa “among the worst examples” of extreme damage caused by poorly conceived and operated dams.