[00:00:04] Speaker 00:
It's number 16, that's 1195 at L, American Rivers at L.

[00:01:15] Speaker 06:
Good morning, Your Honors, and may it please the Court.

[00:01:17] Speaker 06:
My name is Megan Nguyen.

[00:01:18] Speaker 06:
I'm here today on behalf of American Rivers and Alabama Rivers Alliance.

[00:01:23] Speaker 06:
This case concerns a license for the operation of seven hydroelectric dams on the Cusa River in Alabama.

[00:01:30] Speaker 06:
The dams span nearly 275 miles.

[00:01:32] Speaker 06:
That's almost the entire length of the Cusa River.

[00:01:36] Speaker 06:
Now, the Cusa is an incredibly biodiverse river, but it's also an incredibly vulnerable one.

[00:01:41] Speaker 06:
Since the construction of these dams, according to the U.S.

[00:01:44] Speaker 06:
Fish and Wildlife Service, the river, quote, has experienced one of the largest extinction rates in North America.

[00:01:52] Speaker 06:
Many of the species that remain are on the brink of extinction.

[00:01:55] Speaker 06:
The project area alone is home to numerous threatened and endangered species.

[00:02:01] Speaker 06:
And that is why it is so critical that the agencies follow the correct procedures and make a fully informed decision here.

[00:02:09] Speaker 06:
because the terms of this license will continue through at least 2043.

[00:02:12] Speaker 06:
I plan to address two arguments today.

[00:02:16] Speaker 06:
First, the Commission violated NEPA by failing to prepare an environmental impact statement

[00:02:22] Speaker 02:
for a project that will have significant... I'd like to hear just a little bit about jurisdiction on this case first.

[00:02:28] Speaker 02:
The intervener raises a serious jurisdictional question as to whether we have jurisdiction over the matters decided in the first re-hearing.

[00:02:36] Speaker 02:
You were rather dismissive of that in your brief.

[00:02:39] Speaker 02:
First, that it's untimely, which my understanding of jurisdictional objections is they can be raised at any time.

[00:02:45] Speaker 02:
Is there some sense that that doesn't apply in this kind of case?

[00:02:51] Speaker 06:
No, Your Honor.

[00:02:52] Speaker 06:
I think the primary argument that we intended to make in our brief was first that the petition wasn't incurably premature.

[00:03:00] Speaker 02:
Yeah.

[00:03:01] Speaker 02:
The intervener has raised a jurisdictional objection.

[00:03:04] Speaker 02:
Correct.

[00:03:05] Speaker 02:
That objection is that you did not reserve the issues from rehearing number one in your petition for rehearing number two.

[00:03:14] Speaker 02:
Before you get to that, if it's a jurisdiction objection, it can't be untimely, can it?

[00:03:19] Speaker 02:
We could hear it today if it were raised for the first time, couldn't we?

[00:03:22] Speaker 06:
That's correct, Your Honor.

[00:03:23] Speaker 02:
Okay, so forget the untimely.

[00:03:25] Speaker 02:
Now, the objection goes on to say that the petition that you filed with reference to Rehearing Number 1 was incurably premature.

[00:03:34] Speaker 02:
You did not reiterate that issue in petition number two.

[00:03:39] Speaker 02:
Why aren't they correct that we don't have jurisdiction over the first three hearings?

[00:03:46] Speaker 06:
I think there's three reasons here.

[00:03:48] Speaker 06:
First, we disagree that the first petition was incurably premature.

[00:03:54] Speaker 06:
What we were trying to do there was follow this court's directive in Smith Lake.

[00:03:59] Speaker 06:
But second, even if the first petition were incurably premature under the introvision cage, which is what Alabama's power cited in their brief, an inexact or mistaken specification of the order on review is not fatal.

[00:04:13] Speaker 02:
So long as petitioners intent was clear and one of the ways that introvision says petitioners intent could be made clear is through Contemporaneous or near contemporaneous filings and I looked at your joint petition for review and it says nothing about the issues all it seems to be bringing before us is review of the

[00:04:34] Speaker 02:
uh... order denying re-hearing 156f for 61-171 which is the second re-hearing order and the fish and wildlife service biological opinion it doesn't say anything at all about the first re-hearing so how can we infer that you were bringing before us in the second petition i understand you say the first petition was not incredibly premature but assume that i disagree with you or we disagree with you on that

[00:05:03] Speaker 02:
How do you have anything before us other than what's recited in your petition for review in 161336?

[00:05:12] Speaker 06:
Because introvision guides us that this court is permitted to look at contemporaneous or near-contemporaneous filings to show petitioners' intent.

[00:05:20] Speaker 06:
Here we filed a motion to consolidate the first and second petitions for review almost immediately after filing.

[00:05:25] Speaker 06:
our second petition for review and in that we made clear exactly what we were seeking to review and why we structured our filings the way we did because we wanted to make sure that we had that first petition for review given this court's order in Smith Lake because this is a license order that goes through 2043 and we wanted to make extra clear that we were not missing our opportunity for judicial review like the petitioners did in Smith Lake.

[00:05:54] Speaker 02:
re-hearing orders in your petition in 1336, can you?

[00:05:59] Speaker 06:
Yes, and because we already had a petition for review of the first, we thought that the more proper course was to move to consolidate other near-contemporaneous filings that the court can look to under introvision are the docketing statement that specified that we were seeking review of the license order.

[00:06:14] Speaker 06:
Also, the certificate as to parties, rulings, and related cases, that specified that we were seeking review of the license order.

[00:06:21] Speaker 05:
And you had the first petition for review, which was still at that point, it was still docketed, right?

[00:06:29] Speaker 06:
Yes, the first petition for review was still docketed.

[00:06:31] Speaker 06:
And that, there had been a motion to dismiss.

[00:06:36] Speaker 06:
And we had made clear why we filed that when we did.

[00:06:39] Speaker 06:
And so again, the key under introvision is it's a mistake in specification of the order on review isn't fatal so long as petitioner's intent was clear.

[00:06:48] Speaker 06:
I think here our intent was very clear from the motion to consolidate that was filed after the second petition for review from that docketing statement from the first petition for review.

[00:06:58] Speaker 06:
But the third point is even if this court finds that those filings didn't adequately show intent,

[00:07:06] Speaker 06:
petitioners properly incorporated all of our arguments in our second petition for rehearing before FERC.

[00:07:12] Speaker 06:
And not only did we incorporate those arguments, in FERC's second rehearing order, they acknowledged that we had incorporated those arguments.

[00:07:21] Speaker 06:
This is in footnote seven of their rehearing order.

[00:07:25] Speaker 06:
at J571 to 572, they acknowledged that we had incorporated those arguments and they summarily denied those arguments that were made in our first petition for review.

[00:07:36] Speaker 06:
And they cited to the section of their first rehearing order on why they had denied those.

[00:07:42] Speaker 06:
So I think for any of those three reasons here, the court has jurisdiction.

[00:07:51] Speaker 06:
So moving on to the merits, the first issue I want to address is the NEPA issue.

[00:07:54] Speaker 06:
And as this court is well aware, under NEPA, if any significant environmental impacts might result from the proposed agency action, then an EIS must be prepared.

[00:08:05] Speaker 06:
And if the commission doesn't prepare an EIS, it must make a convincing case for why it determined the project would have no significant impact.

[00:08:14] Speaker 06:
The NEPA regulations lay out several factors to be considered in evaluating significance.

[00:08:19] Speaker 06:
We walked through several of those in our brief, but I want to focus on just a couple this morning.

[00:08:23] Speaker 06:
First, does the license have impacts that may be either beneficial or adverse?

[00:08:28] Speaker 06:
And I want to talk about three points here, because I think they are crucial to understanding the long-term impacts of this license.

[00:08:34] Speaker 06:
The first is the dissolved oxygen standard allowed under the license.

[00:08:39] Speaker 06:
And dissolved oxygen just means how much oxygen there is in the water.

[00:08:42] Speaker 06:
And it is an essential measure of biological health

[00:08:45] Speaker 06:
which none of the parties here dispute, because aquatic species need oxygen just in the same way that terrestrial species do to survive and grow and reproduce.

[00:08:55] Speaker 06:
Here the license sets a 4.0 milligrams per liter standard during generation, but it places absolutely no restrictions on dissolved oxygen during non-generation.

[00:09:05] Speaker 06:
And to put that in some context, if you look at the license,

[00:09:09] Speaker 06:
At the Logan Martin development, for example, the generation period that the license talks about is only one to six hours per day.

[00:09:17] Speaker 06:
So that means nongeneration is the majority of this time.

[00:09:20] Speaker 06:
That's joint appendix 14.

[00:09:24] Speaker 06:
And the dissolved oxygen studies have shown that dissolved oxygen is below that 4.0 milligrams per liter standard 55% of the time during nongeneration.

[00:09:34] Speaker 06:
So that is a lot of the time that you were having dissolved oxygen drop below 4.0 milligrams per liter.

[00:09:42] Speaker 09:
Now, the commission states in the... Do you know how far below it drops?

[00:09:45] Speaker 09:
Does the record show how far below it drops?

[00:09:48] Speaker 06:
I don't have that in front of me.

[00:09:49] Speaker 06:
It varies from day to day, but I can get you a record site on the bottle.

[00:09:53] Speaker 09:
I don't know if there was a certain... If there was sort of an extreme low or a range of... I assume it's obviously not stat...

[00:10:01] Speaker 09:
constant, but I wasn't sure how wide that range below four even was.

[00:10:05] Speaker 06:
It is a range and it varies by day, but I will, and I don't have that in front of me, but I'll get you a response on rebuttal.

[00:10:13] Speaker 06:
But I can say that at joint appendix 499, it talks about the fact that four of these dams go below 4.0 on a daily basis, at least for that study period.

[00:10:23] Speaker 06:
Now, the commission states in the environmental assessment and in their brief that 4.0 milligrams per liter is the accepted minimum for federal agencies.

[00:10:34] Speaker 06:
But that entirely ignores what some of these federal agencies and as well as concerned scientists have actually said about this.

[00:10:41] Speaker 06:
And I think this is one area where they failed to take the hard look required under NEPA.

[00:10:45] Speaker 06:
The U.S.

[00:10:46] Speaker 06:
Fish and Wildlife Service, who is the

[00:10:48] Speaker 06:
agency that is statutorily mandated to ensure the continued survival of the endangered species in this river.

[00:10:54] Speaker 06:
In their 2005 comments on the draft environmental assessment, they advocated for a 5.0 minimum during generation.

[00:11:02] Speaker 06:
That's at Joint Appendix 635.

[00:11:04] Speaker 06:
And in the biological opinion, they said that the failure to address dissolved oxygen during non-discharge periods is a, quote, major concern.

[00:11:18] Speaker 06:
since it does not consider that the biological needs of fish and mollusks must still be met when a hydroelectric project is not generating.

[00:11:26] Speaker 06:
So fish and wildlife is called this a major concern.

[00:11:29] Speaker 06:
The EPA has said, quote, based on the potential biological effects of sub 5.0 milligrams per liter dissolved oxygen concentration to fishes and aquatic invertebrates, it seems clear

[00:11:43] Speaker 06:
that low dissolved oxygen concentrations in many of the facility's tailwaters during non-generation periods impact the abilities of fishes, mussels, snails, and other aquatic habitats, other aquatic animals from using these habitats.

[00:11:58] Speaker 06:
And they go on to say, this is an unreasonable disturbance given the fact that the water should serve multiple purposes, including enhancing fish and wildlife.

[00:12:09] Speaker 06:
And that was on their comments to Alabama's water quality standards at Joint Appendix 1355.

[00:12:14] Speaker 09:
What did FERC say about why it couldn't require maintenance of at least the 4ML level during non-generation?

[00:12:26] Speaker 09:
Did they say it was economically infeasible, that it would have its own adverse environmental effects, that it wasn't technically feasible?

[00:12:34] Speaker 09:
What reason did they give?

[00:12:36] Speaker 06:
Well, they very much gloss over this.

[00:12:38] Speaker 06:
One reason that they give is because they say that 4.0 is the accepted minimum standard among federal and state agencies.

[00:12:44] Speaker 06:
I think those quotes from the federal agencies show that that's not necessarily the case.

[00:12:49] Speaker 06:
It is true that Alabama has a 4.0 standard.

[00:12:54] Speaker 06:
But I think what's important to remember about that 4.0 standard is that that is a carve out for existing hydroelectric utilities in the state of Alabama.

[00:13:06] Speaker 06:
Every other water user in the state has to meet a 5.0 milligrams per liter standard.

[00:13:12] Speaker 09:
So what you're saying is that the only reason PERC gave was that we don't have to because we think that, because that's what state law says.

[00:13:20] Speaker 06:
Yes, and they also mentioned that as a reason for not requiring it during non-generation, because some of these technologies only apply during generation.

[00:13:31] Speaker 06:
But in response to that, there are

[00:13:33] Speaker 06:
dams all over the country that meet these standards during nongeneration.

[00:13:38] Speaker 06:
And there are technologies that would allow them to meet the standard during nongeneration.

[00:13:46] Speaker 09:
I'm sorry, Alabama Power Company said it was going to use, and I forget what the formal name was they gave, but a diffuser system.

[00:13:58] Speaker 09:
And FERC noted that.

[00:14:00] Speaker 09:
When they referenced that, is that a...

[00:14:05] Speaker 09:
known entity, the language they used, the title or label they gave for the diffuser system, is that just one thing that everyone knows what it is or is it a type of technology that can come in many different forms and many different levels of efficiency and operation and maybe different applications for amounts of water or things like that?

[00:14:27] Speaker 09:
I just don't know much about diffusers.

[00:14:31] Speaker 06:
They did talk about the fact that they were going to consider turbine narration here, but what Your Honor has pointed out is one of the major flaws of that.

[00:14:39] Speaker 06:
They didn't provide any details of the system.

[00:14:41] Speaker 06:
They didn't provide how it would be effective at these particular dams.

[00:14:46] Speaker 06:
And so the efficiency of those mitigation measures, we really don't know what that would be.

[00:14:51] Speaker 06:
And the other problem there is these mitigation measures that they talk about are only designed to bring or only required under the license to bring that dissolved oxygen standard up to the 4.0 level.

[00:15:07] Speaker 06:
So they mentioned the possibility that it could bring it up higher, but the point is the license doesn't require it to go up higher.

[00:15:12] Speaker 06:
What the license requires is a 4.0 standard, and it doesn't require any standard during nongeneration.

[00:15:17] Speaker 09:
I thought Ferg had said, well, there's another dam a little bit away that uses one of these.

[00:15:24] Speaker 09:
It sounded like it operates kind of like my heating system at my home.

[00:15:27] Speaker 09:
I set it on 70, and it'll push it up to 72, and then it'll cool down to 68, and it'll kick in.

[00:15:34] Speaker 09:
It just tries to keep within a range.

[00:15:36] Speaker 09:
Is that how diffusers work?

[00:15:38] Speaker 09:
Are they actually able to keep it at essentially 4.0 at a constant level?

[00:15:45] Speaker 09:
Or we don't know.

[00:15:47] Speaker 06:
I specifically don't know the details of the technology.

[00:15:51] Speaker 06:
Certainly one of the points that they argue is that if you raise that dissolved oxygen level enough during generation that then during non-generation the dissolved oxygen level will come up as well.

[00:16:01] Speaker 06:
And certainly there are places around the country where they have effectively used aeration turbines, other

[00:16:08] Speaker 06:
mitigation measures to raise dissolved oxygen.

[00:16:10] Speaker 06:
And again, the problem is it's not what the license requires here.

[00:16:14] Speaker 06:
And there's no, we have no assurance in the license that this will be done.

[00:16:19] Speaker 06:
So one of the big points that we make is that this is what NEPA requires to be done before the federal action is taken, before the license is

[00:16:32] Speaker 06:
extended because what we need to know here is that that will work and that will bring the dissolved oxygen level up to a level that is safe for these endangered species that will promote the ecological health of the river.

[00:16:44] Speaker 06:
And when the studies are not done until after you have a license that's in place until 2043, it really does no good to look at those issues after they have already set the dissolved oxygen standard at the very low level of 4.0.

[00:16:59] Speaker 09:
Would you, because you already spent your time here, but would you be able to address what I thought was one of the main points of contention here, and that is in assessing cumulative effects or even just measuring what the environmental consequences of relicensing are, what is the baseline?

[00:17:17] Speaker 09:
What is the role of past harm and damage in that analysis?

[00:17:23] Speaker 06:
For the cumulative impacts analysis, it is absolutely crucial that they look at the past harm.

[00:17:29] Speaker 06:
And here I think it is very instructive, because this is a river where the Fish and Wildlife Service, as I mentioned, has acknowledged that it is one of the largest extinction rates in 20th century North America, with the extinction or extirpation of nearly 40 species.

[00:17:45] Speaker 06:
And so it's critical that they look at that as part of the cumulative impacts.

[00:17:48] Speaker 06:
But I think where

[00:17:51] Speaker 06:
their baseline analysis breaks down is that they say, because of the baseline, we don't have to consider any of these impacts going forward because the stream already doesn't have, or the river already doesn't have minimum flows, the river already has low dissolved oxygen, so these aren't new impacts that we need to consider going forward.

[00:18:09] Speaker 02:
And I don't really... Why isn't that correct?

[00:18:12] Speaker 02:
If it's already the situation, how can it be part of the impact of this project?

[00:18:17] Speaker 06:
Because the purpose of relicensing isn't simply the continuation of the status quo.

[00:18:21] Speaker 06:
full reconsideration of the operation of these dams going forward.

[00:18:25] Speaker 06:
And one of the reasons for that is that many of these dams were originally licensed somewhere in the 1920s, somewhere in 1957.

[00:18:32] Speaker 06:
And the law has changed tremendously since then.

[00:18:35] Speaker 06:
We've passed the Endangered Species Act, the NEPA, the 1987 amendments to the Federal Power Act.

[00:18:41] Speaker 02:
That doesn't mean we can take those, the Environmental Impact, the ESA, all these other acts, and read them retroactively to apply to the

[00:18:52] Speaker 02:
dam that was built in 1957.

[00:18:55] Speaker 06:
We're not asking that they be red.

[00:18:56] Speaker 02:
You have to start with some baseline when you're getting the impact of the new projects or the new acts by the government.

[00:19:05] Speaker 02:
So why wouldn't that be part of the baseline we're talking about?

[00:19:09] Speaker 02:
Not stating all the impacts that everything that happened in the world history has happened on that river.

[00:19:15] Speaker 02:
What is the impact of this government action, aren't we?

[00:19:18] Speaker 06:
Correct.

[00:19:18] Speaker 06:
And I'll take your question in two parts.

[00:19:20] Speaker 06:
First, we're not asking for these acts to be applied retroactively.

[00:19:25] Speaker 06:
What we're asking for is for them to be applied moving forward, for this license that is going to be an impact for the next 30 years.

[00:19:34] Speaker 06:
And I think this court has acknowledged this.

[00:19:37] Speaker 06:
In the City of Tacoma case, the court said, quote, FERC not only has the authority but also the obligation to evaluate existing projects completely anew upon expiration of their license terms.

[00:19:50] Speaker 05:
So are we talking about the cumulative impacts part of the analysis under NEPA?

[00:19:56] Speaker 05:
Are we talking about the biological opinion

[00:19:59] Speaker 05:
issue by FWS, are we talking about both?

[00:20:03] Speaker 05:
Because it seems like this question about how you determine the baseline is germane to both.

[00:20:10] Speaker 09:
Yes.

[00:20:11] Speaker 09:
May not be the same for both.

[00:20:13] Speaker 05:
I'm sorry?

[00:20:13] Speaker 09:
May not be the same for both.

[00:20:14] Speaker 05:
May not be the same for both, but you're talking about all of that together?

[00:20:20] Speaker 06:
I was intending to talk about it in the context of NEPA, but I would be happy to discuss it in the context of the Endangered Species Act as well.

[00:20:28] Speaker 09:
Because I think I just want to clear that I know what we're talking about.

[00:20:33] Speaker 09:
So would you mind doing cumulative impacts personally giving me a signal when you're doing biological opinion?

[00:20:37] Speaker 06:
Absolutely.

[00:20:38] Speaker 06:
And so the cumulative impacts, I want to separate that a little cumulative impacts underneath.

[00:20:42] Speaker 06:
I want to separate that slightly from the baseline issue underneath.

[00:20:47] Speaker 06:
Cumulate impact of impacts.

[00:20:49] Speaker 06:
Yes, you have to look at the past but the baseline issue I think that the Commission and Allium of Power have tried to use this Baseline issue to say we don't have to continue consider the impacts of these dams going forward and that's just not the case It's not what this court said in City of Tacoma when they required

[00:21:06] Speaker 06:
the commission to consider impacts moving forward completely anew.

[00:21:10] Speaker 06:
We cite some other case law in our brief as to that.

[00:21:13] Speaker 06:
And so I think the distinction here is that the existence of the dams are part of

[00:21:20] Speaker 06:
the baseline, we recognize that.

[00:21:22] Speaker 06:
But the operation of those dams moving forward, what the dissolved oxygen level should be for the next 30 years, whether there should be fish passage for the next 30 years, whether there should be minimum flows for the next 30 years, these are all parts of effects of the action.

[00:21:36] Speaker 06:
They were affirmative decisions that were made in this license to select what should be done moving forward for the next three decades, and that has to be considered as effects of the action.

[00:21:49] Speaker 02:
I'm not asking you to give up anything, but the question I'm about to ask you, and it may sound like it, even if we don't agree with you on this point, it's still possible for the Fish and Wildlife Service to have been arbitrary and capricious in their decision, is it not?

[00:22:02] Speaker 06:
Absolutely.

[00:22:03] Speaker 06:
Because I think, again, the Fish and Wildlife Service, going on to the Endangered Species Act claim, first, the baseline issue is

[00:22:13] Speaker 06:
slightly different under the Endangered Species Act, there is actually direction in the consultation handbook for the Fish and Wildlife Service.

[00:22:21] Speaker 02:
Even if we disagree on the baseline, you're not conceding that there's an adequate explanation or connection between what they have to say about incidental take and their conclusion that it isn't going to be violative of the ESA.

[00:22:39] Speaker 02:
Would that

[00:22:41] Speaker 06:
That's correct, because I think that this incidental take statement is done even under an inadequate baseline analysis.

[00:22:48] Speaker 06:
And so even this incidental take statement done under what they contend the environmental baseline should be is arbitrary and capricious.

[00:22:57] Speaker 06:
It just doesn't connect the impacts that they find to the conclusions that they reach.

[00:23:03] Speaker 05:
Can you give us your synopsis on the baseline under the biological opinion part of it?

[00:23:10] Speaker 06:
Absolutely.

[00:23:10] Speaker 06:
So the baseline issue there, there's actually a specific section of the handbook that talks about baseline there.

[00:23:20] Speaker 06:
And what it says within effects of the action, it says, quote, under the Federal Power Act, FERC issues new licenses for existing hydropower projects as the original licenses expire.

[00:23:32] Speaker 06:
FERC has determined that these new licenses represent a new commitment of resources.

[00:23:37] Speaker 06:
Therefore, a section seven analysis of the project's effect on listed species is done as the same way as new projects.

[00:23:43] Speaker 06:
So I think the result you reach is somewhat the same.

[00:23:45] Speaker 06:
It's just the law you use in getting there is different because you're looking at the consultation handbook as opposed to the case law underneath that.

[00:23:54] Speaker 06:
But I think the point is, again, the operation of these dams can be considered in that baseline.

[00:24:01] Speaker 06:
But how they are going to be operated for the next 30 years is very much part of the effects of this action.

[00:24:09] Speaker 05:
Because that's going to continue to have impacts on these species that are not part of the past impacts or... Can you draw a distinction between the effect on the species and the condition that's creating the effect?

[00:24:24] Speaker 05:
So to be a little more concrete, if you look at the

[00:24:29] Speaker 05:
DO levels, the oxygen levels.

[00:24:31] Speaker 05:
So under the existing state of affairs, it sets forth some plan for DO levels.

[00:24:38] Speaker 05:
And so one way to look at it would be to say that you assume that those stay in effect, and you assume that those stay in effect going forward.

[00:24:46] Speaker 05:
So we're only talking about the future.

[00:24:47] Speaker 05:
We're not talking about the past.

[00:24:48] Speaker 05:
We eliminate the issue of retroactive.

[00:24:49] Speaker 05:
We're only talking about the future.

[00:24:50] Speaker 05:
But in talking about the future, we're assuming that the DO levels that are in place as a result of existing measures

[00:24:56] Speaker 05:
remain in place.

[00:24:58] Speaker 05:
So you put that as part of the baseline.

[00:25:00] Speaker 05:
But then the effect on the species, as the future effect on the species as a consequence of that, wouldn't be part of the baseline.

[00:25:08] Speaker 05:
That would be something that you'd have to consider as an effect.

[00:25:12] Speaker 05:
Because it sounds to me like your argument is that the going forward DO levels are also part of the effects, not part of the baseline.

[00:25:20] Speaker 05:
And I guess what I'm suggesting is that maybe one could draw a distinction between the going forward DO levels under the existing state of affairs, assume that that's part of the baseline, but then still say that the consequence of that for species has to be considered as a fact.

[00:25:34] Speaker 05:
Is that making sense?

[00:25:36] Speaker 05:
Or is that, am I, am I conceptualizing this wrong?

[00:25:38] Speaker 06:
Well, our position is that

[00:25:40] Speaker 06:
The DO levels going forward are part of the effects of the action.

[00:25:43] Speaker 06:
And here's the reason we say that because both the whether you're looking at this under NEPA or whether you're looking at this under the Endangered Species Act and whether you're relying on city of Tacoma or whether you're relying on the consultation handbook.

[00:25:59] Speaker 06:
It's very clear that the purpose of relicensing can't be to continue the status quo.

[00:26:03] Speaker 06:
The discretionary impacts of relicensing have to be evaluated completely anew.

[00:26:08] Speaker 06:
So that affirmative decision to say going forward, we're going to set a 4.0 dissolved oxygen level, that is

[00:26:15] Speaker 06:
not part of the baseline.

[00:26:16] Speaker 06:
That is a decision that is going to impact these dams for the next, or this river for the next 30 years.

[00:26:22] Speaker 06:
And so that is part of the effects of the action of the Endangered Species Act, and it's a significant effect under NEPA.

[00:26:30] Speaker 06:
So we don't think those ongoing operations of the dams fall into the baseline.

[00:26:35] Speaker 06:
But that said, with the cumulative impacts analysis,

[00:26:39] Speaker 06:
under NEPA and with the required baseline analysis under the Endangered Species Act, what is very clear is that you have to consider them somewhere.

[00:26:50] Speaker 06:
And so we don't agree they should be considered as part of the baseline, but as a very last resort, they at least need to be considered as part of the baseline, and that wasn't even done here.

[00:27:00] Speaker 09:
Can you speak quickly on the biological opinion that, at least, just as to the shoreline management plan?

[00:27:05] Speaker 09:
So a new Fish and Wildlife Service biological opinion came out in 2015, and the service mentions that in this brief, and I didn't see anything in your reply.

[00:27:17] Speaker 09:
So as to that particular aspect, are your objections moot now by this new biological opinion?

[00:27:26] Speaker 06:
I don't believe they are, because that biological opinion

[00:27:30] Speaker 06:
was not triggered by reopening or re-initiating, and I believe it deals with an additional population of one of these species that may have been found.

[00:27:40] Speaker 06:
So I don't think our objections to the portion of the incidental take statement that relates to the shoreline management plan are moot, but in any event, I think our

[00:27:52] Speaker 06:
objections to all other portions of the incidental take statement.

[00:27:56] Speaker 09:
Part of your argument was that we didn't know what the trigger was going to be for knowing that you exceeded the incidental take.

[00:28:03] Speaker 09:
And the new opinion had more specific habitat markers.

[00:28:08] Speaker 09:
So why wouldn't that cover your initial objection?

[00:28:13] Speaker 06:
Yes, and I apologize, Your Honor.

[00:28:15] Speaker 09:
I don't have that directly in front of me, but... You didn't say any reply, Bruce, so I guess I wasn't... I had assumed that you no longer contest that, and I get... This is a big case, and that's a small corner of it, but if it's no longer contested, that's important for us to know.

[00:28:29] Speaker 06:
Contest that, and more importantly, I think the bulk of our complaints about the incidental take statement involve other portions of the incidental take statement and are still very much in effect here.

[00:28:43] Speaker 05:
Thank you.

[00:28:50] Speaker 04:
Good morning.

[00:28:51] Speaker 04:
On behalf of the commission.

[00:28:53] Speaker 04:
So I can start just briefly with, I think, the first question from Judge Santel on jurisdiction.

[00:29:01] Speaker 04:
We pointed this out in our brief.

[00:29:03] Speaker 04:
We agree that the first petition for review was incurably premature, and that's the case regardless of whether the second rehearing request was required or not.

[00:29:16] Speaker 04:
Our position that we stated in our brief was that in light of the second petition for review being timely and the fact that the petitioners moved to consolidate the petitions, we didn't see any practical effect to dismissing the first petition.

[00:29:31] Speaker 04:
On the merits, Judge Malette, you asked the question about first reasons for not having a standard during periods when the project is not generating electricity.

[00:29:44] Speaker 04:
What the commission said there is that the need for additional measures when the project's not generating would depend in part on how successful albumin power was in raising dissolved oxygen levels when the project was generating electricity.

[00:30:00] Speaker 09:
So isn't that just unstating it quite a problem because you didn't know what they were going to do just saying we'll do some kind of aeration diffuser system.

[00:30:11] Speaker 09:
You didn't even know it.

[00:30:12] Speaker 09:
You said come back in six months and tell me what your proposal is six months after.

[00:30:16] Speaker 09:
you license this plan and take 18 months to implement it.

[00:30:20] Speaker 09:
So then two years before anything's going to start, you didn't analyze the impact for those two years.

[00:30:25] Speaker 09:
But how can you say, we're not worried about it because they tell us they have a plan and we'll figure out what that plan is going forward.

[00:30:33] Speaker 09:
And by the way, what happens if they come back with a plan that you don't approve?

[00:30:37] Speaker 09:
But you've already licensed it.

[00:30:38] Speaker 09:
I don't understand how that answer is remotely sufficient.

[00:30:41] Speaker 04:
Well, I think that what the Commission did say in one of its orders was that it did have experience with these kinds of diffuser systems, I think they're called 4-bay oxygen diffuser systems, and that they've been successful in other projects in raising dissolved oxygen levels.

[00:30:58] Speaker 09:
Yeah, but you didn't say whether those other projects were anything like this project, which is just a series of sort of

[00:31:07] Speaker 09:
captured confined environments as you go down this river, you gave no details on what it did.

[00:31:13] Speaker 09:
You said, oh, I think it got up to 6.0 and then dissipated.

[00:31:17] Speaker 09:
We didn't say how often it did that, how it dissipated, whether conditions are remotely similar to these.

[00:31:23] Speaker 09:
So how is saying I've heard of one of those things remotely sufficient?

[00:31:29] Speaker 09:
Again, and you don't, you didn't even have a proposal from Alabama Power.

[00:31:32] Speaker 09:
You gave them six months to come back with a proposal.

[00:31:35] Speaker 09:
And if you're hinging everything on that,

[00:31:37] Speaker 04:
Well, respectfully, I think the commission did say more than that.

[00:31:41] Speaker 04:
It's it's had some experience.

[00:31:42] Speaker 04:
It said that this specific licensee has had success in raising salt oxygen levels using this kind of system.

[00:31:48] Speaker 09:
So we've seen say give me a proposal right now before I license this and you show me.

[00:31:54] Speaker 09:
But the fact that it was successful somewhere else matters here because the conditions are at all comparable and that you're going to do the same thing.

[00:32:03] Speaker 09:
And don't show me that it got up to 6.0 for a bit without showing me how rapidly it dissipated.

[00:32:11] Speaker 09:
Isn't that what agencies are supposed to do?

[00:32:13] Speaker 04:
Well, I think what the agency is supposed to do is that, at least under NEPA, it's supposed to adequately identify and evaluate the various environmental concerns.

[00:32:20] Speaker 04:
I think the commission's record reflects that it tried to do that here.

[00:32:24] Speaker 04:
With respect to dissolved oxygen,

[00:32:27] Speaker 04:
the commission has required in other licenses these kinds of provisions where the licensee comes back to the commission with more details about some particular aspect of the proposal in the past, and that's something this court's approved in the past.

[00:32:40] Speaker 04:
I'm sorry, with, go ahead.

[00:32:44] Speaker 05:
I assume it would depend on what else was also baked into it.

[00:32:47] Speaker 05:
It's one thing if that's basically the only protection that's in place.

[00:32:51] Speaker 05:
It's another thing if it's supplemental to all sorts of other stuff.

[00:32:55] Speaker 04:
Yeah, and I think that that's a good point because the Commission also pointed out that the dissolved oxygen levels were not being enhanced here simply by the use of the diffuser systems, of the aeration systems.

[00:33:09] Speaker 04:
It was also by other aspects of the license.

[00:33:12] Speaker 04:
For example, the

[00:33:13] Speaker 04:
what's known as the adaptive management plans, with respect to several other developments where they would have to essentially improve their water flow to mimic a more natural river environment, in the commission's view, and STASU would also enhance water quality and dissolve oxygen.

[00:33:30] Speaker 04:
In the commission's view, taking all of these parts of the license together, not just the aeration system, but these other aspects as well, led it to believe, and also the fact that other agencies

[00:33:43] Speaker 04:
or an agreement that this standard was the appropriate one, led the Commission to believe that this is an appropriate standard for now to the extent... Hang on, but that standard revealed that, I think if I'm understanding you, the no diffuser option, or the no diffuser stage.

[00:34:01] Speaker 09:
57.8% of the time at Logan Martin it was going to drop below 4.0 during non-generation.

[00:34:06] Speaker 09:
I'm only talking about during non-generation.

[00:34:08] Speaker 09:
50% of the time at Lay it was going to go below for ML.

[00:34:12] Speaker 09:
37% of the time at Neely it was going to go below.

[00:34:17] Speaker 09:
And 11% of the time at Mitchell it was going to go below.

[00:34:21] Speaker 09:
How is that remotely a sufficient determination that until they get around to the diffuser project, we're going to be able to safely maintain the 4ML level of oxygen on this record?

[00:34:34] Speaker 09:
How is that supported by substantial evidence?

[00:34:39] Speaker 04:
In response to, I think those numbers came from a report from the company, I believe, to FERC staff.

[00:34:46] Speaker 04:
And I think in response, FERC staff submitted a number of information requests to the company.

[00:34:51] Speaker 04:
So it's not as if the agency was doing nothing.

[00:34:54] Speaker 09:
I may have asked, where is the information on the record that says that's inaccurate?

[00:34:57] Speaker 09:
In fact, even without us knowing what the diffuser system's gonna be, we are gonna be able to maintain 4ML as the level

[00:35:07] Speaker 09:
even during non-generation.

[00:35:09] Speaker 09:
Where is that evidence in the records?

[00:35:10] Speaker 09:
I really missed that.

[00:35:12] Speaker 04:
Where is the evidence in the record that we would be able to maintain 4.0?

[00:35:15] Speaker 09:
Yeah, with this new, more river-like flow that you were talking about.

[00:35:20] Speaker 04:
Sure.

[00:35:21] Speaker 04:
So that is in the... So for example, if we look at the rehearing order, that's JA574.

[00:35:36] Speaker 09:
Is that the first rehearing order?

[00:35:38] Speaker 04:
That's correct.

[00:35:39] Speaker 04:
That's 574.

[00:35:40] Speaker 04:
There's also a number of places in the environmental assessment, but maybe we start with the re-hearing order first.

[00:35:50] Speaker 09:
Sorry, you said 574, right?

[00:35:53] Speaker 04:
Oh, I apologize.

[00:35:54] Speaker 04:
That was actually the second re-hearing order.

[00:35:58] Speaker 09:
Sorry, which page of the JA are we in?

[00:36:00] Speaker 04:
574.

[00:36:17] Speaker 04:
and this is paragraph paragraph nine

[00:36:26] Speaker 04:
And so that's, it's really the sort of middle of that paragraph.

[00:36:31] Speaker 04:
The commission concluded that the water quality certifications requirement for Alabama Power to maintain a minimum dissolved oxygen level of 4.0 milligrams per liter.

[00:36:38] Speaker 04:
One of the project is discharging along with the other required dissolved oxygen and aquatic resource protections and water quality monitoring will sufficiently protect aquatic resources.

[00:36:48] Speaker 07:
That's a conclusion.

[00:36:49] Speaker 05:
That's just stating what you needed to state.

[00:36:52] Speaker 05:
It doesn't set forth support.

[00:36:55] Speaker 09:
And I think that's all predicated on Alabama power doing what has yet to be determined it will do to improve oxygen levels during non-generation.

[00:37:06] Speaker 09:
That's the whole point here.

[00:37:07] Speaker 09:
Nobody knew what it was yet.

[00:37:11] Speaker 04:
So I can also direct you to the environmental assessment as well.

[00:37:16] Speaker 04:
That has more information.

[00:37:17] Speaker 04:
There's a few different pages.

[00:37:19] Speaker 04:
997 is the first one.

[00:37:22] Speaker 04:
There's also 1046 and 1084.

[00:37:46] Speaker 04:
Actually, you know, I think 1046 is probably the best place to start.

[00:37:50] Speaker 04:
That's the reference to the adaptive management plan.

[00:37:55] Speaker 04:
Actually, it's the first full paragraph on that page.

[00:38:01] Speaker 04:
This reference is the Weiss bypass adaptive management plan.

[00:38:05] Speaker 09:
Does that apply to anything else other than Weiss?

[00:38:08] Speaker 04:
There is another adaptive management plan for, I believe, the Logan Martin development as well.

[00:38:16] Speaker 09:
Okay, so we've got Lay at 50% and Neely at 37%, right?

[00:38:23] Speaker 09:
Mitchell at 11%, so.

[00:38:24] Speaker 09:
Right, I mean, I think.

[00:38:28] Speaker 09:
I mean, Weiss was not one that seemed to have the problems, or the worst statistical problems, maintaining it during non-generation, so that's not a lot of help.

[00:38:36] Speaker 09:
You said you have a site where Logan takes care of this 57.8% failure rate?

[00:38:43] Speaker 04:
So to be clear, I mean, I don't have a site that that discusses that specific percentage of the dissolved oxygen falling below 4.0 and how the Commission would address that, but what we have in the record is that, well, first of all, I mean, one point I'll make before all this is that

[00:39:05] Speaker 04:
Certainly, the commission has the ability to require additional protections.

[00:39:11] Speaker 04:
I think what the commission's trying to balance here is those various environmental concerns against all the other concerns that it's required to consider under the Federal Power Act, the need for the power, the cost of maintaining these systems, and so forth.

[00:39:26] Speaker 09:
Where did you find that it would be too expensive to require a 4-ml level during non-generation?

[00:39:35] Speaker 09:
It wasn't so much that it would be too expensive, but there was a finding that it would require additional costs Okay, I mean sure everything cost something more Is that so if it costs a penny more?

[00:39:49] Speaker 09:
Then we can go the desire without Alabama Power Company saying or a FERC finding that it would cost so much more that it would be a

[00:39:58] Speaker 09:
damaging to the operator would impair the operation going forward or require reduced operation or something like that.

[00:40:05] Speaker 09:
You can just go if it costs more, power wins.

[00:40:09] Speaker 09:
Is that what you just said?

[00:40:10] Speaker 04:
No, that's not what I meant.

[00:40:11] Speaker 09:
So then we need to know how much more it costs and we don't know that in this record.

[00:40:15] Speaker 04:
We do know that actually.

[00:40:17] Speaker 04:
I can give you a site for that.

[00:40:18] Speaker 09:
I don't even need like a dollar sign.

[00:40:20] Speaker 09:
I think don't we need, I'm telling you if I'm wrong, don't we need the commission making a determination that requiring maintenance of that formal level during non-generation will harm power production, that balancing that will cost X number and it's not worth it because.

[00:40:42] Speaker 09:
And I just didn't see that in the first place.

[00:40:44] Speaker 04:
No, I don't think that there's that discussion that, as you put it, requiring a standard during periods of non-generation will harm power production.

[00:40:54] Speaker 04:
I think what the commission did say is that there wasn't a demonstration that a higher standard was required.

[00:41:02] Speaker 09:
It was appropriate to use a standard that the other agencies had agreed with, and I think a big part of the commission... What other agency agreed that it would be okay to go below 4 ml 50% of the time?

[00:41:15] Speaker 04:
Well, no agency agreed to that, but all of the agencies agreed with the commission's approach in the order to require 4.0 during periods of generation, with the caveat, as the commission put it in its orders, that to the extent that more was needed, it could... You're talking about during generation.

[00:41:30] Speaker 09:
I'm talking about during non-generation.

[00:41:33] Speaker 04:
Right.

[00:41:34] Speaker 04:
Well, so I think we also have an indication of the record that the Alabama water quality certification applied only during periods of generation, not during periods on the project.

[00:41:45] Speaker 05:
Does that absolve the first?

[00:41:46] Speaker 05:
Why is that conclusive?

[00:41:48] Speaker 05:
Because I thought

[00:41:49] Speaker 05:
I don't think you're taking the position to argue that whenever a state has a particular baseline, then it's necessarily enough.

[00:41:56] Speaker 04:
No, no, no.

[00:41:57] Speaker 04:
We're not taking that position at all.

[00:41:58] Speaker 04:
But I think that it's part of what the commission considered when it was going through what it was required to do under NEPA and under the Federal Power Act to both evaluate these environmental concerns and appropriately balance these issues.

[00:42:11] Speaker 09:
I'm sorry.

[00:42:14] Speaker 09:
I'm hung up on your appropriately balance because

[00:42:17] Speaker 09:
That's usually in these cases, that's what we see.

[00:42:20] Speaker 09:
Okay, well, you know, of course, the Cadillac technology would get us up to 7.7 ml on oxygen, but it's prohibitively expensive, or it'll require some big machine that's going to have these other adverse consequences, or it's just too expensive, it's not worth it, or golly gee, that's too much oxygen, it's going to hurt some other species.

[00:42:40] Speaker 09:
What I didn't see in this whole decision was why you couldn't

[00:42:47] Speaker 09:
have required the more protective measures.

[00:42:50] Speaker 09:
For example, at a minimum, requiring 4ML during non-generation, which was actually the Commission's original requirement.

[00:42:58] Speaker 09:
And then they just dropped it to only during generation.

[00:43:01] Speaker 09:
I didn't see why, why the needs for generating power, why it wasn't technologically feasible, any of these things.

[00:43:10] Speaker 04:
So that's a great question.

[00:43:13] Speaker 04:
I think that leads me to a point that I should have addressed earlier.

[00:43:16] Speaker 04:
The commission talked in the record about the practical difficulties of maintaining the dissolved oxygen standard in part based on the fact that Alabama powers essentially receiving these waters from upstream, and so it wouldn't be able to control the dissolved oxygen levels that it's receiving from some other development.

[00:43:37] Speaker 04:
That was part of the thinking here.

[00:43:39] Speaker 09:
The commission also try to understand what it so does that mean We can't even keep it at 4m l even though that's what we require Because then that doesn't marry well with your statement that oh no what we did was say Alabama's got a plan They're going to come back and tell us what the plan is and they're going to put it in place Everything's going to be okay.

[00:44:00] Speaker 09:
That's very inconsistent with the

[00:44:02] Speaker 09:
It's actually not doable here because there's just a chain of dams and power systems going up and down this river.

[00:44:09] Speaker 09:
That seems to be contradictory.

[00:44:11] Speaker 04:
No, no, I think that my point on the upstream waters is that the Commission was just emphasizing that there's practical limitations on the company's ability.

[00:44:22] Speaker 09:
Well, presumably that's what the 4ML represents, is the practical limitation.

[00:44:27] Speaker 04:
No, I think actually the practical limitation was some higher standard than 4.0, and that's at 1045.

[00:44:34] Speaker 09:
We're talking about not even maintaining 4.0.

[00:44:37] Speaker 09:
That's what we're talking about.

[00:44:38] Speaker 09:
So that wasn't a practical concern.

[00:44:43] Speaker 09:
That's what you required.

[00:44:44] Speaker 09:
You said during generation.

[00:44:45] Speaker 09:
And originally you said during non-generation, but then dropped that, and I just wasn't sure what happened.

[00:44:52] Speaker 04:
Well, I think part of the reason that was dropped was that, I think that was a recognition that that may have been a mistake because it was trying to be consistent with what the Alabama certification was.

[00:45:06] Speaker 09:
And I think the commission, as I mentioned- Is Alabama law so you can go before low 4.0 ML during non-generation?

[00:45:13] Speaker 09:
I thought it said maintain 4.0 ML.

[00:45:16] Speaker 04:
So what we have in the record is that the Alabama agency does not have regulatory authority to require a standard when a project is not generating.

[00:45:26] Speaker 07:
Yeah, but you do.

[00:45:27] Speaker 04:
That's true.

[00:45:29] Speaker 04:
But at the same time, as I mentioned before, the Commission's ability to require more depends.

[00:45:35] Speaker 04:
It needs to be tempered by the fact that the Commission has to balance a number of other considerations.

[00:45:42] Speaker 04:
The fact that dissolved oxygen may be dipping below 4.0 is something that the Commission has the ability to address.

[00:45:51] Speaker 04:
As I mentioned, there are communications in the record where staff

[00:45:55] Speaker 04:
was requesting information from the licensee about what he could do to rectify that issue.

[00:46:03] Speaker 09:
Putting aside that sort of- Well, you had conservation groups telling you what you could do to rectify that issue in this record, and you didn't say it wouldn't work.

[00:46:14] Speaker 04:
Respectfully, Judge Mallette, I think the Commission did address all of the concerns, and this specific argument raised by the conservation groups,

[00:46:27] Speaker 04:
what the commission, I think I mentioned this before, but part of the determination was the fact that it found that because it's monitoring, even though there's only a standard for dissolved oxygen during periods when the project is generating, the water quality monitoring is in effect at all times.

[00:46:47] Speaker 04:
So the commission has the ability to

[00:46:49] Speaker 04:
uh, perceive when there's a problem, um, to the extent that conservation groups or anyone else thinks that, um, there is a real issue, they can bring that to commission staff and then commission staff can pursue that with the licensee and obviously the commission itself can reopen the license as needed in the future.

[00:47:06] Speaker 04:
The other agencies have the ability to come to the Commission and ask that it reopen.

[00:47:12] Speaker 04:
But the ultimate biological opinion by Fish and Wildlife, because I think I mentioned the other agencies before, the ultimate conclusion was that the relicensing of a project, as long as the Commission took into account a number of mitigation measures, would not jeopardize the existence of any species or critical habitat.

[00:47:30] Speaker 09:
Any endangered species?

[00:47:32] Speaker 04:
That's correct.

[00:47:34] Speaker 05:
Can you just give your quick synopsis on cumulative effects?

[00:47:39] Speaker 05:
Sure.

[00:47:40] Speaker 05:
And why the challenger's suggestion that you're not assessing cumulative effects properly is erroneous?

[00:47:48] Speaker 04:
Sure.

[00:47:48] Speaker 04:
And I think what they said in their brief was that the commission failed to consider the past action being the construction and operation of the dams.

[00:47:59] Speaker 04:
Right.

[00:48:00] Speaker 05:
As part of that- The existing, the pre-new project status quo.

[00:48:04] Speaker 04:
That's right.

[00:48:05] Speaker 04:
And so what the commission, the commission did actually address the operation and construction of the dams as part of its cumulative effects analysis in the environmental assessment.

[00:48:16] Speaker 04:
I can give you all sites and then we can turn to the pages if that would be helpful.

[00:48:25] Speaker 04:
JA 1010 is one place we can start.

[00:48:29] Speaker 04:
There's also JA 1093, JA 1248, and JA 1250.

[00:48:36] Speaker 04:
Yes, I'm about to pull that up.

[00:48:42] Speaker 04:
So this is in the paragraph labeled geographic scope, and this is under the cumulative effects section here.

[00:48:49] Speaker 04:
Looks like the second sentence.

[00:48:51] Speaker 04:
The construction and operation of dams in the Cusa River and Alabama River basins have cumulatively affected water quality, specifically DO concentrations in fish and mollusk populations in the basin.

[00:49:02] Speaker 04:
So that's one place that we have that discussion happening.

[00:49:07] Speaker 04:
We have similar language in the other pages that I referenced, including

[00:49:11] Speaker 04:
Sorry, 1093 and 1248 and 1250.

[00:49:18] Speaker 04:
We can turn to those pages as well if you would like, but my point here is that it's not accurate to suggest that the commission's cumulative effects analysis did not consider this past action.

[00:49:29] Speaker 04:
I think we do need to consider what the commission also said about cumulative effects.

[00:49:35] Speaker 09:
Generally, we'll... Surely its consideration means more than

[00:49:40] Speaker 09:
We put a sentence in our decision, which it has to be, consideration means reflective analysis.

[00:49:50] Speaker 05:
Yeah, and I think that... It could be enough if it just says we know we're supposed to take into account cumulative effects and we've taken into account cumulative effects.

[00:49:58] Speaker 04:
Well, I think that the cumulative effects discussion, I think as the commission pointed out, and it referenced one of this court's decisions, is that the commission can give a description of the current aggregate effects of past actions.

[00:50:11] Speaker 04:
It doesn't have to go into detail to specific historical details of any individual past action.

[00:50:16] Speaker 04:
And the regulation itself

[00:50:20] Speaker 04:
on cumulative effect states that there needs to be a description of the impact on the human environment that results from the incremental effects of the action when added to other past, present, and reasonably foreseeable future actions.

[00:50:30] Speaker 04:
So I don't think there needs to be some sort of breakdown of here's the effects based on the incremental effect when added to past actions, here's the incremental effect added to future actions, and so forth.

[00:50:42] Speaker 04:
It needs to be in the record.

[00:50:44] Speaker 04:
It needs to be reasonably addressed.

[00:50:45] Speaker 04:
And we have a number of places in the record

[00:50:47] Speaker 04:
where construction and operation was reasonably addressed, and this was not the only cumulative effects and now argument that was raised before the Commission.

[00:50:56] Speaker 04:
Now, the construction and operation of the dams is the only issue on cumulative effects that was raised to this Court.

[00:51:02] Speaker 04:
The Commission also considered

[00:51:04] Speaker 04:
the location of other dams in the area as well as climate change as part of that cumulative effects analysis.

[00:51:10] Speaker 04:
So it's not accurate to say that this one sentence is the sum total of the cumulative effects analysis.

[00:51:16] Speaker 09:
I'm just not sure whether it's just it's probably just my lack of understanding.

[00:51:21] Speaker 09:
I'm not even sure if everyone agrees on what they mean by considering the effects of past actions.

[00:51:29] Speaker 09:
So suppose

[00:51:31] Speaker 09:
before you ever had to make this relicensing decision, an original license from 1928 or something.

[00:51:37] Speaker 09:
And what was happening is, as a result of that original licensing, not governed by any of these statutes, dissolved oxygen levels have been driven down to 3.8.

[00:51:51] Speaker 09:
And species are dying, including endangered species, are dying off at a rate

[00:51:58] Speaker 09:
of 10 percent.

[00:52:00] Speaker 09:
We'll just say there's golden fish is dying off at 10 percent when it's 3.8.

[00:52:07] Speaker 09:
And now you come in for your licensing decision and for relicensing and under the relicensing you're going to continue at 3.8 and golden fish is going to continue to die off at 10 percent

[00:52:24] Speaker 09:
coming to full extinction at that 10% rate, that's going to lead to full extinction within the forthcoming 30-year period.

[00:52:33] Speaker 09:
When you say, is your view

[00:52:36] Speaker 09:
that that's just not part of our analysis.

[00:52:39] Speaker 09:
That's just continuing what was happening before.

[00:52:42] Speaker 09:
And we don't have to deal with it at all.

[00:52:44] Speaker 09:
We don't have to address that problem at all.

[00:52:46] Speaker 09:
Or is your view, look, we're sorry you lost 50% of your golden fish before.

[00:52:52] Speaker 09:
We can't deal with that.

[00:52:53] Speaker 09:
That was over and done by the time we came along.

[00:52:56] Speaker 09:
But going forward, under our license and our discretionary decision making, we, Alabama Power, we had to take ownership

[00:53:05] Speaker 09:
of golden fish that die in the next 30 years, including the fact that if we don't do something about this oxygen level, they're going to go extinct.

[00:53:14] Speaker 04:
So I think that, well, there's a couple of pieces there.

[00:53:17] Speaker 04:
First, the commission, when it's considering this as part of a NEPA analysis, it certainly has to consider past effects as part of the cumulative effects analysis.

[00:53:27] Speaker 04:
And I think in that hypothetical, that's something that certainly would have to be considered.

[00:53:32] Speaker 04:
And it would have to be considered.

[00:53:33] Speaker 05:
It would be considered in what way?

[00:53:35] Speaker 05:
It has to be considered because it has to be referenced, but I think the point of the question is, what do you do with the fact that under the existing state of affairs there's going to be continued depletion of the species?

[00:53:48] Speaker 05:
That seems like that's a strike against that has to be taken into account.

[00:53:52] Speaker 05:
Not just that, well, that's just the way things are right now.

[00:53:55] Speaker 05:
And therefore, although we're considering him in the sense that we're noting that that's going to continue to happen, that's okay.

[00:54:00] Speaker 04:
Sure.

[00:54:01] Speaker 04:
And I think that that gets to the second part of the answer, which is at the end of the day, FERC has to look to

[00:54:09] Speaker 04:
the expert agency, Fish and Wildlife, on issues related to the Endangered Species Act and specifically the issue of the proper baseline.

[00:54:18] Speaker 09:
Well, let's assume it's not endangered yet.

[00:54:20] Speaker 09:
I mean, it's going to be within the next 30 years at this 10% rate, but we're assuming it's just not there yet.

[00:54:24] Speaker 09:
So I don't want to divert over to that.

[00:54:27] Speaker 09:
I want to focus just on NEPA analysis, cumulative analysis.

[00:54:31] Speaker 04:
So in other words, in this hypothetical, the species isn't quite endangered, but it's getting there.

[00:54:35] Speaker 09:
Yeah, because it's dropping off at 10%.

[00:54:37] Speaker 09:
But boy, there were a lot to begin with.

[00:54:39] Speaker 04:
I mean, I think that the commission would still have to take into account the judgment of fish and wildlife when it comes to species, but as far as NEPA,

[00:54:49] Speaker 04:
there needs to be a reasonable discussion in the commission record as to the cumulative effects.

[00:54:57] Speaker 04:
I couldn't say for certain.

[00:54:59] Speaker 05:
Well, the question we're ultimately trying to get to here is whether an EIS was required, right?

[00:55:03] Speaker 05:
I mean, ultimately, we were, if you look at the macro level, the point is that if there's a significant enough impact, then an EIS has to be put together and an EA is not, an environmental assessment is not enough.

[00:55:17] Speaker 05:
And part of that analysis is what's the cumulative impact.

[00:55:21] Speaker 05:
And when you're looking at cumulative impact, if you could say that carrying forward the existing state of affairs as it continues to deplete the species is not a significant impact because it's just part of what's already been going on and therefore there's no EIS.

[00:55:38] Speaker 05:
required.

[00:55:38] Speaker 05:
That's one thing.

[00:55:39] Speaker 05:
But if you would say that no, carrying forward the existing state of affairs continues to deplete the species, and that's part of the cumulative impact we need to take into account in determining whether an EIS is required, that seems like something else.

[00:55:52] Speaker 05:
And I thought the point of Judge Millett's question was,

[00:55:55] Speaker 05:
if you carry forward the existing state of affairs and it continues to result in depletion of the species, can the agency just say, well, that's not something that's significant in terms of cumulative impact, because that's just status quo.

[00:56:09] Speaker 05:
And so no EIS is necessary.

[00:56:11] Speaker 05:
Or would you have to say, actually, depletion at a significant rate, let's leave aside endangerment, but depletion at a significant rate is a significant impact

[00:56:22] Speaker 05:
And we need to take that into account in determining whether the EIS is required.

[00:56:27] Speaker 04:
I think it's the latter in that the commission, if the species is being depleted at that rate, it would necessarily have to be part of the consideration of whether there is a significant impact on species such that an environmental impact statement would be required.

[00:56:44] Speaker 05:
Because I understood you to be making the other argument that you were taking the former position, but maybe I misunderstood.

[00:56:50] Speaker 05:
I thought you were taking the former position in the brief.

[00:56:52] Speaker 05:
And part of the reason that an EA is enough is because the analysis purpose is that prong of NEPA.

[00:57:01] Speaker 05:
We consider the going forward effects of the existing state of affairs as a given.

[00:57:06] Speaker 08:
But maybe I'm... Only look at new effects, I think.

[00:57:09] Speaker 08:
I'm sorry?

[00:57:09] Speaker 08:
Yeah, you'd only look at new effects.

[00:57:11] Speaker 05:
Right, you'd only look at new effects.

[00:57:12] Speaker 04:
You wouldn't... I don't think we tried to take the position in our brief that you only consider new effects.

[00:57:18] Speaker 04:
I think what we tried to say in our brief is that

[00:57:21] Speaker 04:
The question on whether it was appropriate to just rely on an environmental assessment instead of an impact statement is whether any significant impacts or consequences are being ignored.

[00:57:33] Speaker 04:
Part of the difficulty here is there wasn't really a showing from petitioners that of the kind of hypothetical we've been talking about of a certain species being depleted at such a rate that that constituted some significant impact.

[00:57:46] Speaker 02:
This may be a better question for the FWS, but wasn't there a high likelihood of incidental take noted in the Fish and Wildlife Services bio?

[00:58:00] Speaker 02:
I'm sorry, what was the?

[00:58:02] Speaker 02:
High likelihood of incidental take, I think 100% maybe with respect to one fish.

[00:58:07] Speaker 04:
Yeah, and I think that, I mean, it'd probably be best to let the DOJ's council cover the incident.

[00:58:14] Speaker 04:
I'll take a statement, but I think from FERC's perspective, if there's a concern about the species, it's obviously something that needs to be taken into account when you're considering whether there's a significant impact.

[00:58:28] Speaker 04:
What the commission did say is that there was not a showing that any species was

[00:58:35] Speaker 04:
in jeopardy as a result of the commission's relicensing decision, then obviously that was supported by the fact that fish and wildlife's ultimately- But they did find that at least the bull trout continues to remain in decline.

[00:58:47] Speaker 09:
and that it may not, it'll be moderated, so it might not decline right, so it might go now to, in my hypothetical, from 10% to 7%, but it would continue to remain in decline and have negative population consequences.

[00:59:02] Speaker 09:
But I didn't see FERC addressing that.

[00:59:06] Speaker 09:
That's in the biological opinion, but I didn't see FERC addressing that.

[00:59:09] Speaker 09:
Continued decline.

[00:59:11] Speaker 04:
I mean, so the environmental assessment contained

[00:59:15] Speaker 04:
a large section devoted to species.

[00:59:18] Speaker 04:
I can't stand in here tell you where a specific species was discussed.

[00:59:21] Speaker 04:
I mean, we put in our brief the overall range of, it was something like at least 30 to 40 pages where this is discussed.

[00:59:29] Speaker 04:
What I'll say is that, I think I mentioned this before, but underneath the commission has to

[00:59:35] Speaker 04:
Its obligation is to adequately identify and evaluate all the potential environmental impacts.

[00:59:42] Speaker 04:
In a circumstance like this one, where you have a fairly extensive environmental assessment, the question, I think, turns less on the issue of whether it should have been an impact statement or not, but was the commission's analysis grounded in the record per the substantial evidence standard, and did it engage in the appropriate balancing as it was required to do so under the Federal Power Act?

[01:00:03] Speaker 04:
The form of the document I think matters less.

[01:00:08] Speaker 05:
Thank you.

[01:00:28] Speaker 01:
Thank you.

[01:00:29] Speaker 01:
May it please the Court, Alan Brabender, on behalf of the Secretary of the Interior and the United States Fish and Wildlife Service.

[01:00:35] Speaker 01:
The Fish and Wildlife Service's role in this relicensing proceeding was that of a consulting agency under Section 7 of the Endangered Species Act.

[01:00:44] Speaker 01:
And its obligation was to analyze the action that FERC put before it, and to analyze whether that particular action was likely to jeopardize an ESA-listed species or adversely modify the critical habitat of a listed species.

[01:00:59] Speaker 01:
And the action that FERC put before it proposed continuing current operations for 30 years into the future with modifications that were designed to be beneficial to species, such as dissolved oxygen enhancements, a new flow regime in the Weiss bypass, a shoreline management plan that is beneficial to species, a wildlife management plan that is beneficial to species,

[01:01:22] Speaker 01:
and a drought plan that is beneficial to species.

[01:01:27] Speaker 01:
Ultimately, the service concluded, in the biological opinion, that continuing operations, current operations 30 years into the future with these modifications was not likely to jeopardize a species or adversely modify critical habitat.

[01:01:41] Speaker 02:
And it so concluded... Did the service explain the connection between the facts it found with reference to incidental take and the conclusion that they would not jeopardize?

[01:01:52] Speaker 01:
Yes, I think the biological opinion as a whole does explain that.

[01:01:55] Speaker 01:
And it's because the take that was found is limited mostly to non-lethal harassment of individuals within the action area.

[01:02:04] Speaker 01:
And moreover, these individuals have been living under these conditions for decades.

[01:02:09] Speaker 03:
Where's the best explanation of that in the opinion?

[01:02:14] Speaker 01:
I think you'd have to draw from the opinion as a whole, Your Honor.

[01:02:18] Speaker 02:
You would have to first look to the baseline and look at the... You understand that it's the obligation of not just this agency, but all agencies to explain the connection between facts found and conclusions reached.

[01:02:31] Speaker 09:
In a way that we can see.

[01:02:32] Speaker 01:
That's true.

[01:02:34] Speaker 01:
But I think this court needs to look at the record as a whole and the biological opinion as a whole.

[01:02:39] Speaker 01:
And there is more than sufficient information in the biological opinion to explain the Fish and Wildlife Service's opinion, including the baseline of where the species are located, the factors that are affecting them, and what this particular action does, which is continue operations into the future with the same impacts but

[01:03:01] Speaker 01:
with the addition of modifications that are beneficial to the species.

[01:03:08] Speaker 01:
And again, the take that is predicted by this service is mostly non-lethal take, where these species have been living with this sort of harassment for decades.

[01:03:21] Speaker 09:
Well, it's not directly lethal, but the definition of harm is a likelihood.

[01:03:27] Speaker 09:
As opposed to actual killing.

[01:03:29] Speaker 09:
So there's going to be, anytime you have a hundred percent level in a certain area of harm, harassment, you're really going to have some that die as well.

[01:03:42] Speaker 09:
You find that actually no one is going to die.

[01:03:45] Speaker 09:
No species is going to die from this harassment.

[01:03:48] Speaker 09:
We're certain of that.

[01:03:50] Speaker 01:
As a result, yes, that would be the conclusion from the Fish and Wildlife Service.

[01:03:54] Speaker 01:
100% harassment for continuing operations at the Logan Martin Dam, for instance, which is the one dam where there are ESA listed species in the vicinity.

[01:04:05] Speaker 01:
The other location where there are ESA listed species is in the Weiss Bypass.

[01:04:10] Speaker 01:
And what this action does is impose a new minimum flow regime for the first time that will be beneficial

[01:04:17] Speaker 01:
to the species.

[01:04:18] Speaker 01:
Now, with respect to the take for that one particular action, what the service predicted was that there would be 90 percent harassment, 10 percent harm to the sensitive individuals of the species.

[01:04:31] Speaker 01:
But, of course, there was mitigation put in place because the harm was going to come through higher water temperatures on that one-time release for a few days after the release.

[01:04:40] Speaker 01:
But there were mitigation measures put in place to monitor the water.

[01:04:43] Speaker 09:
One time in 30 years?

[01:04:45] Speaker 01:
One time in the 30-year term of the license, Your Honor.

[01:04:50] Speaker 01:
And there are mitigation measures put in place to make sure that those higher water temperatures wouldn't result in the predicted harm.

[01:05:00] Speaker 01:
And I think, more importantly, with respect to this particular action, that one-time release of water occurred in 2014.

[01:05:06] Speaker 01:
And therefore, this particular provision is no longer operative.

[01:05:10] Speaker 01:
It's no longer in effect.

[01:05:11] Speaker 01:
It's no longer, it's perhaps moot.

[01:05:14] Speaker 01:
And again, the only other place where we're talking about ESA listed species in the vicinity is below or in the vicinity of Logan Martin Dam, which is also an area known as Lay Lake.

[01:05:29] Speaker 09:
So if dissolved oxygen levels in Logan Dam are below 4 ml, 57% of the non-generation time,

[01:05:42] Speaker 09:
What are the consequences of that for the endangered species in that area?

[01:05:46] Speaker 01:
Well, of course, species have been living under these conditions for decades, and they're still found there.

[01:05:51] Speaker 01:
But that being said, the service did consider it to be a big issue, the issue of

[01:05:57] Speaker 09:
What do you mean a big issue?

[01:05:59] Speaker 01:
The issue of dissolved oxygen levels during non-generation periods.

[01:06:04] Speaker 01:
And the service did express concern that the water quality certificate from the state of Alabama didn't address the issue.

[01:06:10] Speaker 01:
But the service did address the issue.

[01:06:12] Speaker 01:
It made recommendations to FERC to monitor water quality during non-generation periods and to require Alabama Power to come up with a plan to address

[01:06:24] Speaker 01:
Dissolve oxygen issues during nongenerational issues.

[01:06:29] Speaker 09:
Plan should be in place before the license issues.

[01:06:32] Speaker 09:
Or is it okay to wait a couple of years for a plan to come in place with that not jeopardize?

[01:06:36] Speaker 01:
Well, again, the service, the services obligation here is only that of a consulting agency.

[01:06:41] Speaker 01:
You can only make recommendations.

[01:06:43] Speaker 09:
I'm just under your judgment about the jeopardy to the endangered species in this area.

[01:06:47] Speaker 01:
And again, we have to consider both the fact that these species have been living with these dissolved oxygen levels for decades during non-generation periods.

[01:06:57] Speaker 01:
This action improves dissolved oxygen and tries to enhance dissolved oxygen period during generation periods, which could have some impact.

[01:07:06] Speaker 09:
Fills them less slowly, if that counts?

[01:07:09] Speaker 01:
And then that moves to the other point, which is the type of take that is predicted in the tail race for Logan Martin is harassment, non-lethal take.

[01:07:22] Speaker 09:
And you were considering the dissolved oxygen levels during that?

[01:07:27] Speaker 09:
Did you factor into that, because it's factoring also that not just this one-time dump, but also the not the dissolved oxygen levels during that generation?

[01:07:35] Speaker 01:
Of course.

[01:07:36] Speaker 01:
The service fully considered the issue of dissolved oxygen.

[01:07:39] Speaker 01:
And it also has to be

[01:07:41] Speaker 09:
the two together, is what I'm saying.

[01:07:44] Speaker 01:
Well, yes, it considered during generation periods, and it also made recommendations to bring levels to satisfy the 4.0 standard during non-generation periods, which is a requirement that FERC did include in the license at JA 155.

[01:08:02] Speaker 01:
But with respect to jeopardy, again,

[01:08:07] Speaker 01:
Not only does the fact that it's only non-legal harassment being predicted, but it also has to be considered that these populations, these individuals, are only a very small percentage of the population as a whole.

[01:08:20] Speaker 01:
And the Fish and Wildlife Services... In that area?

[01:08:23] Speaker 01:
No, in the United States as a whole.

[01:08:28] Speaker 09:
The service makes population level... We care for endangered species about presence within a range.

[01:08:34] Speaker 09:
Is it okay to say we're going to render the species extinct in the Cusa River, as long as there's enough elsewhere in the country?

[01:08:46] Speaker 09:
I thought that was jeopardy.

[01:08:48] Speaker 01:
I mean, under certain circumstances, that could be true.

[01:08:51] Speaker 09:
But of course, that's not... Well, this is part of this as a range, so it's okay to just extinct.

[01:08:54] Speaker 09:
That wouldn't be jeopardy to render them extinct in this range?

[01:08:58] Speaker 01:
That would be true, because it's a population... I'm sorry, that would be true.

[01:09:00] Speaker 09:
It would not be jeopardy.

[01:09:01] Speaker 01:
It would not necessarily be jeopardy.

[01:09:03] Speaker 01:
Of course, it depends on the facts.

[01:09:05] Speaker 01:
But the services analysis pertains to the population as a whole, not in this particular area.

[01:09:13] Speaker 01:
That is the analysis that's required under the ESA.

[01:09:17] Speaker 01:
It's a population level.

[01:09:18] Speaker 09:
I could have sworn the ESA also looked at the presence of species within their range.

[01:09:22] Speaker 01:
Well, there's something called a distinct population segment.

[01:09:28] Speaker 01:
But there is these, as far as I know, these particular species are not in distinct populations.

[01:09:34] Speaker 02:
Is that all explained in the biological opinion?

[01:09:40] Speaker 03:
Everything you just told Judge Millett, is that all in there?

[01:09:44] Speaker 01:
Well, certainly the type of take that the small percentage of the population as a whole, certainly that is in the biological opinion.

[01:09:57] Speaker 01:
The fact that the service has to take a species-level look, that is also in the biological opinion.

[01:10:03] Speaker 09:
Do you know what percentage of the time these turbines are generating and what percentage of the time they're not generating?

[01:10:09] Speaker 09:
So how much time are we not at 4 ml?

[01:10:11] Speaker 01:
Well, so there are seven different developments on the river, and I believe Weiss, Neely Henry, and Logan Martin are the only

[01:10:23] Speaker 01:
I forget the proper term, but they're only ones that generate intermittently.

[01:10:29] Speaker 01:
One to six hours a day is my understanding.

[01:10:32] Speaker 01:
The rest of the balance.

[01:10:33] Speaker 09:
In fact, one to six is when they are generating?

[01:10:35] Speaker 01:
Correct.

[01:10:36] Speaker 01:
During early morning hours and evening hours during peak times is my understanding.

[01:10:41] Speaker 09:
So they may not even be doing that every day?

[01:10:43] Speaker 01:
It's Monday through Friday.

[01:10:45] Speaker 09:
Okay, so the overwhelming majority of the time is non-generation, as to those places that you specified.

[01:10:51] Speaker 01:
That's correct.

[01:10:52] Speaker 01:
And the other developments are run-of-the-river developments.

[01:10:55] Speaker 01:
Otherwise, the river just runs through them.

[01:10:58] Speaker 05:
Can I ask you a question about the baseline, unless you... Your conceptual understanding of the baseline?

[01:11:07] Speaker 05:
So in a situation in which the existing status quo

[01:11:11] Speaker 05:
not taking into account relicensing just under the existing state of affairs would cause a continued depletion of a species at a particular rate.

[01:11:21] Speaker 05:
Are you considering that continued depletion under the existing state of affairs to be part of the baseline?

[01:11:30] Speaker 01:
What the service would consider was that continuing depletion into the future, yes.

[01:11:34] Speaker 01:
And certainly that is what... Yeah, the continued depletion into the future would be part of the baseline?

[01:11:38] Speaker 01:
No, that would be an effect of the action, Your Honor.

[01:11:40] Speaker 05:
Oh, because I thought I understood you to be making the other.

[01:11:43] Speaker 05:
Maybe I just completely misunderstood your argument, but I had the same...

[01:11:47] Speaker 05:
question for Ferg, but I understood you to be making the argument that under the existing state of affairs, continued depletion of the species would be part of the baseline, so you wouldn't take that into account in determining what the incremental effect of the new project would be.

[01:12:04] Speaker 05:
I may be completely off on this.

[01:12:06] Speaker 09:
I mean, certainly that is... I read it that way, too, for what it's worth, but that may just mean I'm off base, too.

[01:12:11] Speaker 01:
You got it the same way, though.

[01:12:12] Speaker 01:
Yeah.

[01:12:15] Speaker 01:
I mean, certainly the environmental factors and the current impact are considered as part of the baseline, but going forward, the project operations are considered an effect of the action.

[01:12:25] Speaker 05:
No, but I get that, but that's just saying it at a high level of generality.

[01:12:30] Speaker 05:
I'm just saying that suppose you have an existing project that results in a 10% – making more concrete than that – 100 snails die each year from an existing project.

[01:12:44] Speaker 05:
And then we're considering realizing we have a project with some new conditions.

[01:12:51] Speaker 05:
Are we saying that the additional hundred that would continue to die each year under the existing state of affairs is just part of the baseline?

[01:13:00] Speaker 05:
It's going to happen in the future.

[01:13:02] Speaker 05:
It would continue to happen in the future if we kept things the same way.

[01:13:05] Speaker 05:
But it's something, it's an additional depletion of a hundred snails per year going into the future.

[01:13:11] Speaker 05:
Are you taking that as part of the baseline or are you saying that's an effect?

[01:13:16] Speaker 01:
Well, let me put it this way because, you know, whether something belongs in the baseline or is an effect of the action is...

[01:13:21] Speaker 01:
somewhat hazy, I would say.

[01:13:23] Speaker 01:
But what the service does is it aggregates the two.

[01:13:26] Speaker 01:
It looks at the baseline and it adds to the baseline the effects of the action.

[01:13:30] Speaker 01:
So no matter what in that situation, that fact would be taken into consideration by the service in making its jeopardy determination.

[01:13:38] Speaker 01:
And the existing, the operations going forward into the future were considered by the service in this.

[01:13:46] Speaker 05:
It seems surprising, I guess conceptually it seems like it would be important and it's surprising to me that it wouldn't be important because the administrative materials that the agency has goes to some trouble to explain what properly belongs in the baseline and what doesn't, presumably because that is of some consequence.

[01:14:06] Speaker 05:
And I guess it's,

[01:14:08] Speaker 05:
it's surprising to me to hear that it actually doesn't end up mattering whether you consider it in the baseline or consider it in the effects because it all's taken into consideration anyway.

[01:14:18] Speaker 05:
Is that true that it doesn't?

[01:14:19] Speaker 05:
I'm not necessarily saying that's wrong.

[01:14:21] Speaker 01:
Well, I'm saying the handbook goes into some detail as to what is considered in the baseline and what's considered in the effects because that's how the ESA itself structures the analysis.

[01:14:33] Speaker 01:
But as a practical matter, because it's going to be either considered, the impact is either going to be considered

[01:14:39] Speaker 01:
as part of the baseline or as part of the effects of the action.

[01:14:42] Speaker 01:
And those two things are considered in the aggregate when making a jeopardy determination.

[01:14:48] Speaker 01:
In practicality, it doesn't matter.

[01:14:50] Speaker 01:
And here, the service did consider current operations going forward.

[01:14:55] Speaker 01:
I would refer the court to JA 1496, which is the conclusion in the biological opinion where it notes

[01:15:04] Speaker 01:
that it considered both current and proposed future operations and their impact.

[01:15:09] Speaker 01:
And JA 1498, which is the incidental take statement, I think provides further evidence that existing impacts were considered, since it provides take coverage for current operations going forward into the future.

[01:15:23] Speaker 01:
And you can see that at Actions 1B and 1C, the Logan Martin Dam and the Jordan Dam.

[01:15:30] Speaker 09:
How do we know when too many have been taken?

[01:15:34] Speaker 01:
I think that's a fact-specific inquiry.

[01:15:40] Speaker 09:
How will we know when too many have been taken?

[01:15:42] Speaker 09:
Some of the argument is we can't figure out how to count them.

[01:15:47] Speaker 01:
Well, the service knows where these species are located, and again, the type of take predicted is just harassment.

[01:15:55] Speaker 09:
That's predicted, but the whole point of incidental take is recognize this could happen, but if more happens than we expect, we have to be able to revisit this.

[01:16:05] Speaker 08:
That's right.

[01:16:06] Speaker 09:
It has to be a concrete trigger, normally either counting the species or, if you can't, having some sort of

[01:16:13] Speaker 09:
habitat proxy, habitat alteration proxy, and I just wasn't clear here how anyone was supposed to know when the incidental take was off.

[01:16:24] Speaker 01:
So with respect to the incidental take statement, where the service had population data, it expressed take in forms of a specific number.

[01:16:34] Speaker 01:
So there's a specific numeric trigger.

[01:16:36] Speaker 01:
But the service explained that for many of the species it lacked population density data.

[01:16:42] Speaker 01:
And so what it did there for purposes of the jeopardy analysis is it conservatively assumed that 100% of the species in the action of the individuals in the action area would be affected.

[01:16:54] Speaker 01:
And so by definition, you cannot exceed the level of 100%.

[01:16:57] Speaker 01:
So there would be no reason to reinitiate consultation based on the number of individuals affected alone.

[01:17:03] Speaker 09:
If you can't count them, though, how will you know if in fact you're, what if you're wrong and in fact 50% die and 50% are harassed but survive?

[01:17:11] Speaker 09:
How will that be?

[01:17:12] Speaker 01:
Well, that goes to my next point, which is just because the TAKE statement is also clear that just you have to reinitiate consultation not only if the amount of TAKE is exceeded, but also the extent of TAKE.

[01:17:25] Speaker 01:
So for the most part, only non-lethal harassment is predicted.

[01:17:30] Speaker 01:
Harm is either not predicted at all or predicted only in a very specific situation, like the Weiss bypass example I gave earlier.

[01:17:38] Speaker 01:
So if take ended up being different from what was predicted, if these species were killed instead of harassed, that would require a reinitiation of consultation on the part of Burke.

[01:17:50] Speaker 09:
My question is really more basic than that.

[01:17:52] Speaker 09:
Given that you said, we can't count.

[01:17:57] Speaker 09:
How will anyone know?

[01:17:58] Speaker 01:
Well, the service actually knows where the species are located and provided a specific, they know exactly where the species are located and they gave it a trigger for the reinitiation of consultation with respect to the extent of the take.

[01:18:15] Speaker 01:
What's the trigger?

[01:18:16] Speaker 01:
With respect to, the species are being harassed and if the extent of take is greater or different,

[01:18:23] Speaker 01:
than mere harassment, which is non-lethal, then that would require additional consequences.

[01:18:28] Speaker 09:
You had just said that the reason, we couldn't do numeric numbers like we often do because we just couldn't.

[01:18:34] Speaker 09:
As to these teensy-meansy little muscles, we just can't count them.

[01:18:37] Speaker 09:
We may know where they are, we know they're in there, but we can't count them, so no one's gonna know.

[01:18:43] Speaker 09:
if 50% die off, are they?

[01:18:46] Speaker 09:
Don't you need a habitat marker of some sort?

[01:18:48] Speaker 01:
Well, they wouldn't know under a habitat market either if nobody can detect the take.

[01:18:54] Speaker 09:
So then what's the point of your incidental take statement if no one can tell if it's right or wrong?

[01:19:00] Speaker 01:
Well, it is a requirement of the ESA to have a take statement.

[01:19:03] Speaker 09:
It sounds like a pretty empty exercise.

[01:19:06] Speaker 09:
We think 100% will get hurt, but we have no way of knowing if 100% will die.

[01:19:10] Speaker 01:
Well, and again, there is ongoing monitoring required under the license, it's my understanding.

[01:19:17] Speaker 01:
And again, to the extent that, or the conservation groups for their part could also go out and monitor.

[01:19:24] Speaker 01:
Ongoing monitoring of what?

[01:19:26] Speaker 01:
Of project operations.

[01:19:27] Speaker 01:
And to the extent that conservation groups could also go out and monitor.

[01:19:35] Speaker 05:
Thank you.

[01:19:36] Speaker 05:
Thank you.

[01:19:40] Speaker 05:
Given how long we've gone, we'll give you four minutes back for rebuttal to address what you need to address, please.

[01:19:48] Speaker 06:
I want to begin just by responding to Judge Millett's question that I did not have a record site for.

[01:19:53] Speaker 06:
The dissolved oxygen levels at some of these dams drop as low as 0.1 milligrams per liter if you look at Joint Appendix, page 1534.

[01:20:02] Speaker 06:
So that is incredibly low and not sufficient.

[01:20:05] Speaker 06:
What's the site for that, JA1?

[01:20:07] Speaker 06:
JA1534.

[01:20:08] Speaker 09:
Do you agree with the statement about the ratio of generating to non-generating time?

[01:20:17] Speaker 06:
Yes, at the peaking dams the license says it'll be one to six hours Monday through Friday, so the vast majority of the time it's not generating and there's no standard whatsoever.

[01:20:28] Speaker 06:
I want to address first one of the last points made by the Fish and Wildlife Service.

[01:20:34] Speaker 06:
We do not see the incidental take statement as

[01:20:37] Speaker 06:
a requirement that is some sort of incidental or empty exercise that only needs to be done to comply with the statute.

[01:20:44] Speaker 06:
It is a critical part of keeping these species alive, and it is a critical part of the doctrine of institutionalized caution, which is the purpose of the Endangered Species Act.

[01:20:58] Speaker 06:
Also want to address a couple of the points.

[01:20:59] Speaker 09:
What should they do if they can't count them?

[01:21:01] Speaker 09:
These things are too teeny to count.

[01:21:04] Speaker 09:
What should they do?

[01:21:04] Speaker 09:
How would they know?

[01:21:06] Speaker 09:
Is there a way that they, were they wrong when they said there's no way to know whether in fact the incidental take here was exceeded or different than predicted, materially different than predicted?

[01:21:15] Speaker 06:
We think that's the precise problem is there isn't a way to know here whether the incidental take statement was exceeded and that's why it doesn't meet the surrogate regulations.

[01:21:23] Speaker 06:
Critical to the concept of an incidental take statement is to know

[01:21:29] Speaker 06:
when that incidental take is exceeded.

[01:21:33] Speaker 06:
I don't think it's true that you can't always have a number for these species.

[01:21:36] Speaker 06:
The Ptoleotoma snail, for example, they give a very specific number.

[01:21:40] Speaker 06:
It's 5,000 and a certain hundred.

[01:21:44] Speaker 06:
And so it's not impossible to know how many of these species are out there.

[01:21:48] Speaker 06:
It does allow for, the regulations do allow for surrogates, but you have to use those surrogates properly, and they haven't done that here.

[01:21:55] Speaker 06:
I also want to address the point that the majority of the take here is non-lethal harassment.

[01:22:00] Speaker 06:
I believe they said the only place that you have harm is in the Weiss Bypass.

[01:22:03] Speaker 06:
That's not accurate.

[01:22:04] Speaker 06:
One example of that is the harm from the drawdown of

[01:22:11] Speaker 06:
Lay Lake, they discussed the fact on JA1500 that there will be harm to the rough horn snail.

[01:22:17] Speaker 06:
This is a species, the Yellowleaf Greek portion of Lay Lake has 80% of the species range.

[01:22:24] Speaker 06:
The rough horn snail is only found in a couple of locations anywhere, 80% of its range is here.

[01:22:30] Speaker 06:
They discussed the fact that there may be harm or harassment.

[01:22:33] Speaker 06:
And so that's critical.

[01:22:35] Speaker 06:
But even where there is non-lethal harassment, the definition of harassment is

[01:22:40] Speaker 06:
You have to injure a species to such an extent that you disrupt their breeding and their feeding.

[01:22:45] Speaker 06:
When we're talking about endangered species, issues like can they reproduce are critically important to the continued success.

[01:22:58] Speaker 06:
Going back momentarily to the baseline issue, I just want to highlight the fact that here the existing condition.

[01:23:05] Speaker 02:
Excuse me, just one second, sir.

[01:23:07] Speaker 02:
Where does that definition of harass come from?

[01:23:11] Speaker 06:
It should come from the US Fish and Wildlife Service Regulations.

[01:23:14] Speaker 06:
And I don't have the citation, but I believe it is in their brief.

[01:23:18] Speaker 02:
The definition of take is statutory, but I'm not sure where.

[01:23:21] Speaker 02:
But OK, I think there's a lot of words here, and I'll take your word for it.

[01:23:25] Speaker 06:
There's a slight and a footnote in their brief.

[01:23:30] Speaker 02:
I'm sorry, I took you off your plate.

[01:23:33] Speaker 05:
You were saying something about baseline, I think.

[01:23:35] Speaker 06:
Yes, going back to the baseline issue, I just want to highlight that moving forward, again, the operation of these dams, the existing conditions going forward are only going to be existing because of the affirmative decisions made in this license.

[01:23:47] Speaker 06:
And so it very much has to be considered as an effect under NEPA and as an effect of the action under the Endangered Species Act.

[01:23:55] Speaker 06:
And finally, just to

[01:23:57] Speaker 06:
Very briefly conclude going back to the standard underneath, but the real question here before the court for the need my question is.

[01:24:04] Speaker 06:
May there be significant impacts and we are talking about 7 dams over 275 miles of river.

[01:24:16] Speaker 06:
Operating these dams in the past has caused the extinction or extirpation of nearly 40 species.

[01:24:20] Speaker 06:
It has brought many more species to the brink of extinction.

[01:24:24] Speaker 06:
And the commission's position is, but going forward, there won't be any more significant impacts.

[01:24:28] Speaker 06:
Your Honors, that is the definition of arbitrary and capricious, and that is why we would ask that the court vacate the finding of no significant impact and vacate the biological opinion and remand this to agencies to do the full and statutorily required inquiries.

[01:24:45] Speaker 05:
Thank you, Council.

[01:24:46] Speaker 05:
Thank you, Council.

[01:24:47] Speaker 05:
The case is submitted.