Alabama Power Co. v. F.E.R.C., s. 91-1466

Decision Date04 December 1992
Docket Number91-1534,Nos. 91-1466,s. 91-1466
Citation979 F.2d 1561
Parties, 138 P.U.R.4th 352, Util. L. Rep. P 13,906, 23 Envtl. L. Rep. 20,238 ALABAMA POWER COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petition for Review of Orders of the Federal Energy Regulatory Commission.

Marshall Timberlake, Birmingham, Ala., argued the cause for petitioner. With him on the brief were Glenn G. Waddell, Birmingham, Ala., and William J. Madden, Jr., McNeill Watkins, II, Washington, D.C., also entered an appearance for petitioner.

Joel M. Cockrell, Atty., Washington, D.C., argued the cause for respondent. With him on the brief were William S. Scherman, General Counsel, and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C.

Before: WILLIAMS, SENTELLE, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

This case is here on petitions for review of orders of the Federal Energy Regulatory Commission directing Alabama Power Company to increase the minimum amounts of water regularly released from its Jordan Dam on the Coosa River and refusing to stay those orders. The principal question is whether the Commission, in these rulings, complied with sections 7(a)(2) and 7(a)(4) of the Endangered Species Act, 16 U.S.C. §§ 1536(a)(2) & 1536(a)(4).

From its source near Rome, Georgia, the Coosa River flows southwestwardly 286 miles through Alabama to its confluence with the Alabama River. Dams of the Alabama Power Company along the river have created an uninterrupted series of impoundments, with the exception of a 7.5 mile reach of the river directly below the Jordan Dam, where a riverine environment still exists. The dam, located several miles north of Montgomery and built in 1928 pursuant to a 50-year license to provide hydroelectric power, impounds the Jordan Reservoir. During relicensing proceedings in 1980, the Commission ordered Alabama Power to conduct a "study to determine what minimum flow release is necessary to insure protection of downstream fisheries and recreation within the operational constraints of the generating units." (Alabama Power Co., 13 F.E.R.C. p 62,082, at 63,115 (1980)).

Alabama Power's study, completed in 1984, disclosed a considerable variance in the flow of the Coosa River at the Jordan Dam, ranging from a low of several dozen cubic feet per second (cfs) in October to a high of several hundred thousand cfs in April in any given year. The company recommended that the minimum flow of the river be set at 188 cfs, a figure corresponding to the estimated seepage from the dam. The United States Fish and Wildlife Service and the Alabama Department of Conservation and Natural Resources opposed this plan, stating that the "leakage flow release would further degrade an already depressed fishery," "reduce an already limited recreational resource," and "potentially degrade water quality." Alabama Power Co.,53 F.E.R.C. p 61,217, at 61,877 (1990). In the interests of fishing and recreational boating, both agencies recommended a minimum continuous discharge rate of 4,475 cfs between June and February, and a doubling of that rate during March, April, and May. Id.

During the rest of the 1980's, the proceeding moved along at the customary pace until the snails were detected. In 1988, Dr. Robert Hershler reported the existence of Tulotoma magnifica in the Jordan Dam tailwater, a discovery of some note because mollusk experts--malacologists--considered the species extinct. The only previously known populations, located in other sections of the Coosa River, met their doom in the 1960's when additional hydroelectric dams were constructed and the snail's habitat was flooded. 56 Fed.Reg. 737, 737 (1991). This is not to suggest that in the stretch of river below the Jordan Dam, the snail itself, although not its significance, could have gone undetected, especially by Coosa River fishermen. Tulotoma grows to the size of a golf ball. Long ago, when the Coosa River was in its natural state, Indians ate these gill-breathing snails and used their shells as ornaments. Because tulotoma prefers "cool, oxygenated, clean, free-flowing waters," id., the snail is generally found in riffles and shoals, spending the daylight hours clinging to the undersides of large rocks. Id.

With the discovery of the tulotoma snail, and the consequent prospect that the Interior Department would eventually list the creature as endangered, Alabama Power argued for the first time in 1990 that the Commission's judgment about minimum continuous flows ought to give more attention to protecting the snails. There is no need to recount at this stage the details of the proceedings leading to the Commission's final order on rehearing on July 31, 1991. It is enough to point out that the Commission rejected Alabama Power's request for a stay of an interim order requiring a minimum continuous release of 2,000 cfs from June through February, and 4,475 cfs from March through May; for a stay of the Commission's decision affirming this order; and for a stay pending the company's petition for rehearing. On December 20, 1990, while the petition for rehearing was pending, Alabama Power implemented the new flow regime ordered on November 20, 1990.

One event of note occurred thereafter, on June 1, 1991, when Alabama Power abruptly reduced the continuous flow of water from 4,475 cfs to 2,000 cfs. This had the utterly predictable result of leaving a good many tulotoma high and dry. Many of the stranded snails perished. Alabama Power puts the number at "high hundreds to low thousands" and places the blame on the Commission's order, with which it was "simply complying." Brief of Petitioner at 9, 13. The Commission, in its July 31, 1991, decision on rehearing, responded to the catastrophe by modifying the original order to require the company to ramp down the flows from May 29 to May 31 each year. Alabama Power Co., 56 F.E.R.C. p 61,173, at 61,616 (1991).

After Dr. Hershler's discovery in 1988, the Interior Department's Fish and Wildlife Service started the process for listing Tulotoma magnifica as an endangered species under the Endangered Species Act, 16 U.S.C. § 1533. The Service published its proposed listing of tulotoma on July 11, 1990. 55 Fed.Reg. 28,573 (1990). The proposal generated two comments, both from Alabama agencies supporting the listing. 56 Fed.Reg. at 798. The final rule, published on January 9, 1991, became effective February 8, 1991. 56 Fed.Reg. at 737. Since that time, federal law has protected tulotoma from capture, harm or relocation. 16 U.S.C. §§ 1532(19), 1538(a) & 1539.

The legal effect of the Service's proposing tulotoma for listing was to trigger the requirement, in section 7(a)(4) of the Endangered Species Act, 16 U.S.C. § 1536(a)(4), that the Commission "confer" with the Secretary of the Interior about any agency action "likely to jeopardize the continued existence" of the species. After tulotoma made the list, section 7(a)(2) of the Act, 16 U.S.C. § 1536(a)(2), required the Commission, "in consultation with and with the assistance of the Secretary," to "insure" that any agency action would not be likely to have this effect; and to "use the best scientific and commercial data available" in fulfilling the Act's directive. As Alabama Power sees it, the Commission's continuous flow orders and denials of stays after July 11, 1990, when the Service proposed tulotoma for listing, violated section 7(a)(4), and its order on rehearing issued after tulotoma's listing violated section 7(a)(2).

As to section 7(a)(4), there is no doubt that the Commission satisfied its duty to "confer" with the Secretary's designee, the Fish and Wildlife Service. The Service was deeply involved in these proceedings from their onset in 1980, when it recommended continuous flows in order to improve the fishery in the Jordan Dam tailwater. By the time the Commission issued its order in late 1990 directing Alabama Power to implement the continuous flow regime, it had already heard from the Service about the effect on the snail. On May 1, 1990, the Service informed the Commission in writing that continuous minimum flows at the Jordan Dam, far from having an adverse impact on the tulotoma snail, "would improve the quality and quantity of the aquatic habitat for this species." Letter from Larry E. Goldman, Field Supervisor, Fish and Wildlife Service, to Lois D. Cashell, FERC 2 (May 1, 1990). Thereafter, in a meeting with Commission staff on December 13, 1990, and through a letter dated December 24, 1990, the Service provided further technical advice. Letter from Larry E. Goldman, Fish and Wildlife Service, to Lois D....

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