The D.C. Circuit Holds that Hydroelectric Facilities May Not Ignore Historic Impacts In Relicensing

Earlier this month, the D.C. Circuit Court of Appeals issued a decision that is a must-read for anyone who will be needing at some point to relicense an existing hydroelectric facility.  The short version is the status quo may no longer be good enough and dam operators may have to improve on existing conditions in order to succeed in relicensing.  At a minimum, facility operators will have to take the cumulative impacts of dam operation into account in performing environmental assessments under NEPA required for relicensing. The case involves a series of dams on the Coosa River operated by the Alabama Power Company.  The licenses were due to expire in 2007.  Alabama Power timely applied to renew the licenses.  FERC duly issued an environmental assessment and issued a FONSI, a Finding of No Significant Impact.  Later, in 2012, the Fish & Wildlife Service, issued a biological opinion that relicensing would not “jeopardize” any…

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