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Eastern Hydroelectric Corp. v. Federal Energy Regulatory Commission

United States Court of Appeals, Eleventh Circuit

April 18, 2018


          Petition for Review of a Decision of the Federal Energy Regulatory Commission Agency No. 7019-069

          Before WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and CORRIGAN, [*] District Judge.


         Eastern Hydroelectric Corporation ("Petitioner") is licensed by the Federal Energy Regulatory Commission to generate hydroelectricity at the Juliette Dam, located on the Ocmulgee River outside of Juliette, Georgia. As a condition of increasing its licensed generating capacity, Petitioner agreed to design and construct a fishway, which is a facility that would allow American shad[1] to swim past the dam and gain access to upstream spawning grounds. After over a decade had passed-without significant progress on the fishway, and with Petitioner having never increased its generating capacity-the Commission revoked Petitioner's license. As a result, the dam still obstructs the shad, as it always did, but given the action taken by the Commission, the dam can no longer generate hydroelectricity. Petitioner challenges the revocation of its license. Although it is unclear what useful purpose has been served by the above course of events, we conclude that the Commission's decision to revoke Petitioner's license is authorized by law. Accordingly, we deny the petition.

         I. BACKGROUND

         Although much could be said about the decade-and-a-half talkathon between Petitioner and the Commission over the construction of a fishway at the Juliette Dam as a condition for authorization of increased generating capacity that was never even implemented, we limit our summary of the facts to only those most essential to the disposition of this case. In 1995, Petitioner obtained a license from the Commission to generate 643 kilowatts ("kW") of hydroelectricity at the Juliette Dam. 150 FERC 61099, 61673-74 & nn. 3-4 (2015). In 2000, Petitioner filed an application to amend its license to increase its generating capacity. 99 FERC 62207, 64489 (2002). The U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the Georgia Department of Natural Resources (collectively, the "Resource Agencies") recommended-and the Commission's staff agreed- that a fishway should be constructed to allow American shad to swim past the dam, giving the fish access to additional spawning grounds. Id. at 64489-90.

         Thereafter, in 2002, the Commission issued an order approving Petitioner's application, subject to the requirement that Petitioner design and construct a fishway. The Commission amended Petitioner's license "to increase the total project authorized installed capacity from 643 kW to 1, 843 kW." Id. at 64490. The Commission also amended the license to incorporate the conditions imposed by the Water Quality Certification Petitioner received from the Georgia Department of Natural Resources, which required that "a fish passage structure . . . be constructed as part of the project upgrade." Id. at 64492. The Commission "added to the license" Article 401, which required Petitioner to "within 90 days from the date of the issuance of this amendment . . . file with the Commission, for approval, a plan to construct a fishway at the Juliette Dam." Id. at 64491. Article 401 also required Petitioner to "prepare the plan after consultation with" the Resource Agencies and to include "(1) a fishway construction schedule; (2) a detailed description of proposed fishway design and operation; (3) a provision for consulting annually with the [Resource Agencies] to address fish passage and entrainment issues at the project; and (4) documentation of consultation with the [A]gencies." Id.

         Over the next decade, the expected costs of the fishway began to skyrocket and Petitioner struggled to come to agreement with the Resources Agencies on the details of a fishway design. Nevertheless, Petitioner and the Commission were twice able to come to preliminary agreement-in 2006 and 2012-on general fishway designs, with each agreement resulting in an order from the Commission directing Petitioner to submit finalized specifications and to construct the fishway. After each order, Petitioner ran into problems negotiating with the Resource Agencies, neglected to submit revised specifications and plans, and failed to meet construction deadlines. With each failure by Petitioner to meet the requirements set forth in the Commission's orders, the Commission repeatedly warned Petitioner that it was in violation of its license conditions and that the Commission could revoke Petitioner's license if it continued not to comply. See 149 FERC 61036, 61143-45 (2014) (summarizing Petitioner's compliance history).

         Most relevant here is the aftermath of the Commission's 2012 order. In 2012, the Commission accepted revised fishway designs submitted by Petitioner. 141 FERC 62176, 64530-31 (2012). Accordingly, in December 2012, the Commission issued an order approving the new design, requiring certain modifications, and setting new deadlines for Petitioner. Id. at 64531-32. Among other things, the order required Petitioner to file "[w]ithin 120 days . . . a Fishway Operation Plan which shall describe . . . a method for determining the effectiveness of the fishway following its first year of operation (i.e., are the target species finding the fishway entrance and negotiating the fishway)." Id. at 64532. The order further specified that the plan "shall be developed in consultation with" the Resource Agencies and that Petitioner "shall include with the plan documentation of consultation, copies of comments and recommendations on the completed plan after it has been prepared and provided to the [R]esource [A]gencies, and specific descriptions of how the [A]gencies' comments are accommodated by the plan." Id.

         In April 2013, after Petitioner missed the deadline to file its revisions and plans, the Commission sent Petitioner a letter instructing Petitioner to file the overdue items within fifteen days. 144 FERC 62211, 64485 (2013). In May, Petitioner sent the Commission a construction schedule that proposed beginning construction in July, along with fishway operation plans. Id. The Commission wrote back to Petitioner that the plans did not include documentation of consultation with Resource Agencies and did not include effectiveness protocols, both of which were required by the 2012 order. Id. Petitioner responded by asking for additional time to develop effectiveness protocols in consultation with the Resource Agencies. Id. A month later, in June, the Commission informed Petitioner that, according to the Resource Agencies, Petitioner had not consulted the Agencies about the effectiveness protocols since March. Id. at 64486. The Commission advised Petitioner that, to comply with its license, Petitioner needed to file effectiveness protocols and documentation of consultation with the Resource Agencies. Id. The Commission warned Petitioner that this was a violation of its license and gave Petitioner sixty days to come into compliance. Id.

         After Petitioner failed to submit plans for effectiveness protocols and documentation of consultation with the Resource Agencies, id., the Commission issued a compliance order in September 2013. The compliance order commanded Petitioner to file within fifteen days "a plan and schedule for complying with all of the requirements of the December 7, 2012 order, " including "specific protocols for monitoring the effectiveness of the fishway" and "copies of all correspondence between" Petitioner and the Resource Agencies. Id. The Commission warned that failure to comply could result in revocation of Petitioner's license. Id. Although Petitioner submitted some of the requested documents in response (such as an updated construction schedule pushing back construction another year), Petitioner did not submit documentation of consultation with the Resource Agencies or effectiveness protocols. 147 FERC 62045, 64164 (2014). Instead, Petitioner proposed continuing discussions with the Agencies about how to measure the fishway's effectiveness. Id.

         Two months later, in October, the Commission issued a show cause order to Petitioner, asserting that Petitioner was in violation of its license, the 2012 order, and the 2013 compliance order. 145 FERC 62003 (2013). The Commission ordered Petitioner to show cause why the Commission should not require Petitioner to cease power generation. Id. Petitioner responded by detailing the economic reasons why it would be harmful for it to cease generation and asked for additional time to prepare the effectiveness protocols. 148 FERC 61028, 61110 (2014).

         In April 2014, the Commission ordered Petitioner to cease generation. 147 FERC 62045, 64165 (2014). Over the next month and a half, the Commission sent two separate letters to Petitioner asking Petitioner to contact the Commission to resolve the matter. 148 FERC at 61110. Petitioner responded to neither. Id.

         Accordingly, in July, the Commission issued an order proposing to revoke Petitioner's license. Id. The order observed that Petitioner "failed to develop fishway effectiveness protocols in consultation with" the Resource Agencies, and that Petitioner had ultimately "failed to comply with its project license and staff orders requiring the construction of required fish passage facilities." Id. The Commission gave Petitioner thirty days to respond and the option of requesting an evidentiary hearing. Id. at 61110-11. ...

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