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

[00:00:01] Speaker 00:
Okay.

[00:00:02] Speaker 00:
Number 23 dash 12 91.

[00:00:04] Speaker 00:
American White Water petitioner versus Federal Energy Regulatory Commission.

[00:00:09] Speaker 00:
Miss Nicholson for the petitioner.

[00:00:10] Speaker 00:
Miss Gail are the respondents.

[00:00:14] Speaker 02:
Good morning.

[00:00:16] Speaker 00:
Good morning and may it please the court.

[00:00:18] Speaker 00:
My name is Haley Nicholson and I represent the petitioner American White

[00:00:23] Speaker 00:
In this case, every single resource agency and non-governmental stakeholder urged the removal of the two dams of the Somersworth Hydroelectric Project.

[00:00:32] Speaker 00:
And for good reason, there are many significant and permanent benefits to removing the dams, including providing 192 acres of habitat for at-risk species,

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increasing river connectivity, opening up boating opportunities on this stretch of the Salmon Falls River, and providing nine miles of spawning and rearing habitat for migratory fish.

[00:00:54] Speaker 00:
In weighing these benefits and making decisions on how corporations may properly surrender their hydropower licenses, FERC undoubtedly has some level of discretion.

[00:01:04] Speaker 00:
But no amount of discretion stretches as far as to allow the agency to project actual evidence of environmental and recreational benefit in favor of pure speculation.

[00:01:15] Speaker 01:
Could you please just point to me the evidence and the record that supports that there would be actual recreational benefits?

[00:01:25] Speaker 01:
Because from what I've read, it seems the way you frame this, there could be a restoration to a more natural state.

[00:01:34] Speaker 01:
And I just, I'm trying to understand what the actual recreational benefits would be, because the FERC seemed to think that these were speculative recreational benefits.

[00:01:46] Speaker 01:
And I guess the record reflects that there's no public access to this area, this 0.3 mile stretch, and it's an industrial area.

[00:01:55] Speaker 01:
So I'd appreciate your guidance as to where in the record there's evidence of actual recreational benefit.

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FERC's determination is contradicted by the record evidence.

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The only record evidence that FERC had before it about recreation opportunities were American Whitewater's comments, which this court can find in the joint appendix at AR 461 and also at 419.

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And in both of those comments, American Whitewater asserted that there would be boating opportunities if these dams were removed because there would no longer be any blockages to boating on this stretch of the river.

[00:02:29] Speaker 01:
because I looked at those exact pages and what I saw was it was phrased as quote with the removal of the lower dam.

[00:02:36] Speaker 01:
I'm especially interested in the lower dam because I feel like that's not as well supported.

[00:02:40] Speaker 01:
This section of the river could be restored to a more natural state.

[00:02:45] Speaker 00:
Yes your honor and it's American White Water's contention throughout its comments that their members would in fact recreate on the stretch of the river if the dams were there.

[00:02:53] Speaker 00:
So where's the evidence that they would

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The best evidence, Your Honor, is through the comments and also American Whitewater's declarations in both of them through Skipper Morris and the declaration of Ryan Waterhouse, which this court can find in the appendix to petitioner's opening brief.

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Both of those declarations assert that the A, American Whitewater members would, in fact, recreate on this stretch of the river if the dams were removed.

[00:03:18] Speaker 01:
Is that enough?

[00:03:19] Speaker 01:
It seems to me that it's a rare thing for FERP to order the removal of a dam.

[00:03:24] Speaker 01:
They repeatedly say that's a rare thing.

[00:03:27] Speaker 01:
And just a few people saying that we would boat on the river if there were no dam, is that enough to trigger greater scrutiny?

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It just seems to me that there should be more evidence of recreational benefits than a few people saying we would boat there if we could.

[00:03:42] Speaker 00:
The key point here is that there was record evidence before FERC that they did not sufficiently grapple with.

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And as the Supreme Court held in Motor Vehicle Manufacturers Association versus State Farm, where there's that contrary evidence in the record, FERC has to grapple with it and make a rational connection between the facts and the decision made.

[00:04:01] Speaker 01:
So the evidence you're relying on is that JA-419 and JA-461-62, is that all you're relying on?

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There are there's another set of American Whitewater comments in joint appendix 247.

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So that works as well.

[00:04:15] Speaker 01:
OK, so those are the only only areas of the record where there's evidence of recreational benefit.

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And that's what we should look to.

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Yes, your honor recreational benefit.

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In weighing these benefits and making decisions on how corporations may properly surrender their hydropower licenses, FERC must support its decision with substantial evidence.

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And while substantial evidence is a deferential standard of review, it still has limits.

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As the Ninth Circuit held in Woods versus United States, quote, substantial evidence cannot be based upon an inference drawn from facts which are uncertain or speculative and which raise only a conjecture or a possibility, end quote.

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Here, FERC does not have evidentiary support.

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It just has speculation.

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And their primary argument to reject the dam removal alternative highlights just how speculative and unsupported the agency's reasoning actually is.

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FERC claims that there are four detriments to removing the dams.

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impacts to the city's water supply, impacts to the city's infrastructure, aesthetic changes and temporary water quality and noise effects from construction.

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But not a single one of these is actually supported by a scintilla of evidence.

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And you don't have to take my word for it.

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All you have to do is look at FERC's own conclusions and its surrender order, which this court can find in the joint appendix on page 440, where FERC concluded that out of all the evidence before it, the detriments to the city of Somersworth were, quote, unknown, end quote.

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In that same paragraph, FERC concluded that changes to aesthetics could be, quote, either beneficial or negative, end quote.

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Water quality and noise temporary effects, the last man standing,

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has no site-specific evidentiary support whatsoever.

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In other words, each of FERC's detriments have no record support, or they're drawn from inferences of admittedly unknown facts.

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Whatever the standard for substantial evidence, it requires more than drawing inferences from unknown facts.

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To make matters worse, not a single one of these detriments applies to backdam, which FERC did not independently address in its orders.

[00:06:23] Speaker 01:
At a minimum, ask you about back damn because it looks like a Clara's license doesn't include back damn as part of the project.

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So I'm just wondering why back damn.

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Is an issue in this case.

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It's an issue in this case, your honor, because throughout the surrender process proceedings for repeatedly states that it's part of the project boundary and part of the project itself.

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And so it's still at issue before this worked.

[00:06:47] Speaker 01:
How does the project boundary differ from the project description?

[00:06:51] Speaker 01:
This just could be my lack of familiarity with FERC, but I don't understand that.

[00:06:55] Speaker 00:
They're pretty synonymous, Your Honor.

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So the project boundary will include all of the project features, which in this case FERC listed as including backdam.

[00:07:03] Speaker 01:
Because the project description and the license doesn't include backdam.

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So I'm just trying to understand how

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the project boundary upon surrendering the license.

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Why does that differ from the project boundary for getting the license?

[00:07:17] Speaker 00:
It doesn't necessarily differ, Your Honor.

[00:07:19] Speaker 00:
So while the license doesn't explicitly mention back dam, a cleric did receive ownership over back dam and stone dam.

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And that project boundary includes all of a cleric's ownership rights.

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And so here it is still at issue because FERC continues to claim that it's part of the project description and part of the project features.

[00:07:37] Speaker 01:
So I guess I'm just wondering, how do we know that they own BackDam?

[00:07:44] Speaker 01:
Because nobody uses BackDam, apparently, and it's not part of the project license.

[00:07:49] Speaker 00:
That is correct, Your Honor, that it's not part of the project license and it's not used, but it's still part of the project features and project description that FERC considers.

[00:07:56] Speaker 00:
Is there a source for why a CLAR is responsible for BackDam?

[00:08:00] Speaker 00:
There is not a particular source that I could point you to, Your Honor, but I again would assert that this court should look at the language and FERC's surrender and rehearing orders, in both of which FERC acknowledged the back dam was part of the project.

[00:08:12] Speaker 00:
On the other side of the scale from FERC's missing analysis and purely speculative discussion of detriments is overwhelming record evidence of the benefits of dam removal.

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This court can find the evidence of those benefits in the joint appendix from comments of the US Fish and Wildlife Service on page 403.

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from the National Marine Fisheries Service on page 261, from the New Hampshire Department of Environmental Services on page 343, from the New Hampshire Department of Fish and Game on page 423, from the Maine Department of Environmental Protection on page 427, the Maine Department of Inland Fisheries and Wildlife on page 415, and from non-governmental stakeholder Trout Unlimited on page 416.

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Therefore, FERC's rejection of the dam removal alternative was not supported by substantial evidence.

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And not only was FERC's rejection not supported by substantial evidence, but it was particularly problematic under the FPA and NEPA.

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Turning to the FPA, FERC's public interest determination was arbitrary and capricious because it had insufficient information to adequately weigh the factors it was considering.

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As the circuit held in Bangor Hydroelectric Co.

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versus FERC and as the Second Circuit emphasized in Scenic Hudson Preservation Conference versus FPC, reliance on conclusory assertions does not satisfy the substantial evidence standard and is highly problematic under the FPA.

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As those courts discussed, FERC, when acting under the FPA in the public interest, has an affirmative duty to inquire into and consider all relevant facts.

[00:09:42] Speaker 00:
FERC did not do so here.

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FERC's conclusory determinations fare no better under NEPA, namely because FERC failed to take a hard look at the dam removal alternative.

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As the circuit held in American Rivers versus FERC, FERC's hard look, quote, will pass muster only if it undertook a well-considered and fully informed analysis of the relevant issues and opposing viewpoints, end quote.

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FERC did not do so here, as it had only admittedly unknown effects of the dam removal detriments.

[00:10:13] Speaker 00:
Therefore, FERC violated NEPA by failing to take a hard look at the dam removal alternative.

[00:10:18] Speaker 00:
For the foregoing reasons, American Whitewater respectfully requests that this court grant its petition to vacate FERC's surrender and rehearing orders and remand for further consideration of the dam removal alternative.

[00:10:28] Speaker 01:
Thank you.

[00:10:51] Speaker 02:
Please the court.

[00:10:52] Speaker 02:
I'd like to start with Judge Pan's question about the evidence of recreational benefit in the record and

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Judge Pan, you're correct that there really is no evidence of concrete recreational benefit.

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And that's the heart of the issue here.

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There were concrete uses of the dam as to the city's water supply, fire suppression, infrastructure, and other essential services.

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And the commission had to balance those concrete uses against what it viewed were speculative benefits on the other side to recreation in Fish Passage.

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So to be frank, we're considering recreation along a 0.3 mile stretch of industrial riverbank.

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And this isn't, for example, whitewater rafting in the Colorado River in the Grand Canyon.

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So when balancing those potential benefits against the concrete uses of the dam, the commission reasonably determined that dam removal was not in the public interest.

[00:11:48] Speaker 01:
So it does seem to me, Ms.

[00:11:50] Speaker 01:
Gao, that

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The commission focused heavily on the stone dam, which did have all of these, I think, clear benefits in terms of water supply and fire suppression, et cetera, and gave a lot less attention to back dam.

[00:12:06] Speaker 01:
And basically just said, if we're not going to do stone dam, it doesn't make sense to do back dam because it's only 0.3 miles.

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And then there were some general things that it said.

[00:12:14] Speaker 01:
But I feel like the case is not as strong about back dam.

[00:12:19] Speaker 01:
It doesn't seem that the commission

[00:12:20] Speaker 01:
considered the option of keeping stone dam, but removing back dam.

[00:12:27] Speaker 02:
Your honor is correct that without removing the stone dam, the commission recognized that the benefits removing back dam, especially as to increasing river connectivity for recreation fish passage were even more limited.

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But the point is under long standing commission policy, the status quo is to leave the dams in place if the licensee doesn't voluntarily agree to removal.

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And that's especially true where, as here, the dams predate the project by several decades.

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They were built in the 1920s, and this project wasn't first licensed until 1981.

[00:13:00] Speaker 02:
The commission is typically not in the business of ordering licensees to remove dams that they weren't responsible for creating in the first place.

[00:13:08] Speaker 01:
Has the commission ordered licensees who didn't want to remove the dam?

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Has the commission required them to remove the dam as a condition of granting a surrender license?

[00:13:18] Speaker 02:
I'm only aware of that happening once, and that's cited in our brief as the Edwards case.

[00:13:28] Speaker 02:
And in that case, there were very specific circumstances.

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That case was actually a relicensing proceeding.

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And the project had to comply with several different comprehensive development plans for the river at issue.

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I think there were 11 different plans in total.

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And it was determined that there was no way for the project to continue operating

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and also comply with all those different comprehensive development plans in part because there were special very several very important species of fish that could not achieve passage by any alternative means.

[00:14:02] Speaker 02:
The only way that these fish could survive is through dam removal and so.

[00:14:07] Speaker 02:
The commission ordered dam removal, but in doing so, it also emphasized that it wasn't ordering removal, quote, on the basis of an opinion that these several species may or could return one day.

[00:14:20] Speaker 02:
The need for dam removal had been demonstrated concretely and the fish were immediately available to take advantage of removal.

[00:14:27] Speaker 02:
Here, there's no comprehensive development plan at issue for the stretch of the river and the fish passage benefits are too speculative to support removal.

[00:14:50] Speaker 01:
question about the scope of the project because the license doesn't include the back damn, but the project does.

[00:14:57] Speaker 01:
I was trying to understand how that happened, right?

[00:15:00] Speaker 02:
Uh, you're right.

[00:15:02] Speaker 02:
Your honor that the license indeed does not include the back damn.

[00:15:06] Speaker 02:
Um, the commission included it in its analysis, given the proximity to other project features, and that's explained at J A 382 of the environmental assessment.

[00:15:17] Speaker 02:
But the court is correct that it's

[00:15:19] Speaker 02:
technically not included in the license itself.

[00:15:23] Speaker 01:
So is a Clara responsible for the back damn?

[00:15:27] Speaker 02:
It doesn't see it does own the back damn.

[00:15:30] Speaker 02:
Um, and you know, operates and maintains it, but it's technically not included within the license that the commission regulates.

[00:15:40] Speaker 01:
I see.

[00:15:41] Speaker 01:
So when I guess it acquired these assets from GE, it got everything, including the back damn, but the license only covers

[00:15:49] Speaker 01:
Stoneham.

[00:15:50] Speaker 01:
That's correct.

[00:15:51] Speaker 02:
If the court has no further questions, I'm happy to see the rest of my time.

[00:15:58] Speaker 02:
Thank you.

[00:16:01] Speaker 02:
Ms.

[00:16:02] Speaker 02:
Nicholson, do you want to take a couple minutes?

[00:16:07] Speaker 00:
I have three points on rebuttal, Your Honors.

[00:16:16] Speaker 00:
First, FERC's determination that the recreational and fish passage benefits were speculative were not supported by the record.

[00:16:23] Speaker 00:
The record, as I stated earlier, contains ample record evidence of the environmental and recreational benefits of removing the dams.

[00:16:30] Speaker 00:
But even if this court just focuses on the recreational values in particular, the record does not support FERC's argument that there would be no recreation here because of the industrial setting.

[00:16:39] Speaker 00:
FERC has no record support for that argument, and if anything, the record contradicts FERC's determination.

[00:16:45] Speaker 00:
This court can look to Eclair's pre-application document, which you can find in the joint appendix on pages 154 and 155, where Eclair describes the project boundary as, primarily residential, forested, or commercial, and abutted by a forested natural area.

[00:17:01] Speaker 00:
So FERC's determination here was contradicted by the record, and they did not grapple with that other evidence.

[00:17:06] Speaker 00:
Secondly, the benefits of removing back dam are also not speculative or minimal, as Council for FERC suggests.

[00:17:13] Speaker 00:
At a minimum, FERC was required to grapple with the contrary record evidence put forth by the National Oceanic and Atmospheric Administration and the Joint Appendix at 261, and from the New Hampshire Fish and Game Department on page 350, where both agencies talked about the benefits of just removing back dam.

[00:17:32] Speaker 00:
FERC did not grapple with this evidence, and thus its determination was arbitrary and capricious.

[00:17:38] Speaker 01:
That wasn't recreational, though, was it?

[00:17:40] Speaker 00:
No, Your Honor, that was with respect to fish and wildlife values.

[00:17:44] Speaker 00:
And finally, with regards to FERC's position on licensees not having to remove dams unless they offered, this policy position is inconsistent with the public interest standard that FERC applies and even its decommissioned policy statement.

[00:17:58] Speaker 00:
FERC, throughout the decommissioned policy statement and even in its brief, affirms the idea that FERC has the authority to require dam removal even when the dam owner does not offer to do so.

[00:18:09] Speaker 00:
And that's consistent with the public interest standard that they apply.

[00:18:12] Speaker 00:
Because as Your Honors may imagine, there might be situations where the dam owner does not want to remove the dams, but it's still in the public interest to do so.

[00:18:19] Speaker 00:
So FERC's determination on that specific point was arbitrary and capricious and should not be followed by this court.

[00:18:25] Speaker 00:
Thank you.