P-2165 - Hydropower Reform Coalition

Transcription

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
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Alabama Power Company
Black Warrior River Hydroelectric Project
Project No. 2165-022
SMITH LAKE IMPROVEMENT STAKEHOLDERS ASSOCIATION’S
COMMENTS ON ENVIRONMENTAL ASSESSMENT
The Smith Lake Improvement Stakeholders Association (SLISA) provides these
comments in response to the “Notice of Availability of Environmental Assessment” (EA)
issued on March 7, 2008 for Alabama Power Company’s (APC) Warrior River Hydroelectric
Project (e-Library no. 20080307-3006).
SLISA is a non-profit organization representing more than 3,000 property owners and
other interested parties in and around Smith Lake. Our office is located at 729 County Road
3948, Arley, AL 35541. SLISA is a party, having timely intervened on April 16, 2007 (eLibrary no. 20070416-5060).
I.
INTRODUCTION
In the EA, the Office of Energy Projects (OEP) Staff recommends a new license,
including certain operational, environmental and other measures. EA, pp. 23-25, 120-131
(Staff Alternative). We agree that a new license which incorporates these measures will
enhance the baseline condition of the affected resources to a limited extent. However, the
EA does not have a clear statement of purpose (Section I); does not consider a reasonable
range of alternatives (Section II); and uses incorrect legal standards, and is not supported by
substantial evidence, in finding that the recommended new license will not have significant
environmental impacts on resources protected under Federal Power Act (FPA) section
10(a)(1) (Section III). Further, the recommended measures, if adopted in a new license, will
be insufficient for: protection of the Bankhead National Forest, under FPA section 4(e)
(Section IV); protection of the outstandingly remarkable qualities of the Sispey Fork, under
the National Wild and Scenic Rivers Act (WSRA) (Section V); navigation, under FPA
sections 4(e) and 10(a)(1) (Section VI); fish passage, under FPA sections 18 and 10(a)(1)
(Section VII); and recovery of affected listed species, under Endangered Species Act (ESA)
section 7(a)(2) (Section VIII). In sum, SLISA respectfully submits that a new license based
on the Staff Alternative will not be best adapted to a comprehensive plan of development of
the Black Warrior watershed under FPA section 10(a) (Section IX). As stated in Section X,
SLISA’s Comments on Environmental Assessment
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Alabama Power, Black Warrior River Project ((P
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we request that OEP Staff hold a technical conference to address disputed factual issues,
respond specifically to each of these comments, supplement the EA or prepare an
Environmental Impact Statement, and promptly respond to our pending information request
under the Freedom of Information Act.
We submit declarations by Jared Key, SLISA (Exhibit 1), Marvin Feldman, Ph.D.,
Resource Decisions (Exhibit 2), and Brian J. McCrodden, P.E., HydroLogics (Exhibit 3), in
support of these comments.
I.
THE EA DOES NOT CLEARLY STATE A PURPOSE FOR THE PROPOSED ACTION.
The EA does not include a clear statement of purpose of the new license. Although
Section 1.2 (“Purpose of Action and Need for Power”) cites the standard of comprehensive
development under Federal Power Act section 10(a)(1), that standard is generally applicable
to any licensing decision and is not the specific purpose of this new license for this project.
In Section 1.2, the EA states: “Issuing a new license for the Warrior Project would
allow APC to continue generating electricity for the term of a new license, making electric
power from a renewable resource available to the region.” EA, p. 2. It elsewhere states that
flood control is a project purpose: “APC’s license requires the project be operated for flood
control and hydroelectric power generation.” Id., p. 12. It states that compliance with
APC’s NPDES permit for Gorgas Steam Plant is a project purpose.
“The Smith development is primarily operated for hydroelectric generation but as a
secondary benefit provides flows downstream for maintenance of water quality near
APC’s Gorgas Steam Plan (Gorgas Plant). Typically, during the months May through
October, releases from Smith dam supply cold water to the Gorgas Plant for use in
once-through cooling. This cooler water allows the Gorgas plant to meet its National
Pollutant Discharge Elimination System (NPDES) requirements for water
temperature.”
Id., p. 14. Finally, the EA states that navigation is another project purpose. “APC’s
priority for water use is for power generation, although they must release a minimum flow of
245 cfs during drought, or low-flow conditions, to ensure the Corps has adequate water to
meet its navigation needs.” Id., p. 38.
NEPA requires that an environmental document clearly state each purpose of the
proposed federal action. See 40 C.F.R. § 1502.13. That statement drives the development
and consideration of alternatives to the proposed action to advance each such purpose.
Section 1.2 recognizes only one of the purposes described for the project elsewhere in the
EA. OEP Staff did not consider any action alternatives for the non-power purposes of flood
control, water quality, and navigation.
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II.
THE EA DOES NOT CONSIDER A REASON
REASONABLE
SONABLE RANGE OF ALTERNATIVES.
The EA considers the No Action Alternative (EA, pp. 10-15) and two action
alternatives: the Applicant’s Proposal (id., pp. 16-23), and Staff Alternative (id., pp. 23-25).
Since no party has advocated denial of new license, these action alternatives differ only in
their mitigation measures. There is only three-tenths of one percent difference between the
annual net benefit of the Applicant’s Proposal and the Staff Alternative. See id., p. 116; see
also Ex. 2, ¶4. These are the only alternatives addressed in the “Developmental Analysis”
(EA Section 4) and the “Comprehensive Development Analysis” (Section 5).
EA Section 2.4 states that OEP Staff considered three other alternatives and
eliminated them from detailed analysis. These are: Non-Power License, Project Retirement,
and Federal Government Takeover. Id., pp. 25-27.
Regulatory agencies, SLISA, and other non-governmental organizations proposed
alternatives for operation of Smith Dam. For example, SLISA offered an alternative to the
existing rule curve: “Reduced water level fluctuation with a constant low pool level of 508
feet and a high pool level of 510 feet.” See “Motion to Intervene” (Apr. 17, 2007) (elibrary no. 20070416-5060), attaching letter from SLISA to Steve F. Casey, Balch &
Bingham (Jan. 4, 2007). In subsequent correspondence, SLISA refined its proposal to state:
“Smith Lake water levels remain between the 505’ and 510’ msl between Memorial Day and
Labor Day,” and “the level never drop below the 502’ msl.” See letter from SLISA to
Willard Bowers, APC (Sept. 27, 2007) (Ex. 4). Various stakeholders had made proposals
related to modifying the rule curve, for the purpose of stabilizing the lake level, as early as
2001.1
1
APC’s report, “Smith Recreation Issues R1, R2, R3, R4, and R5 Standard Process Tracking
Document,” (Jan. 2005), describes such early proposals.
“21. Are there changes to reservoir level operations that you would like to see addressed to improve
the overall value of the reservoir, and how specifically would such changes benefit recreation?
•
•
October 24, 2001 Meeting – Minimize lake level fluctuations to provide better access and
recreation.
The USFS is currently reviewing operations data from 1988 to 2001 to identify any change in
lake levels and how those changes may have impacted USFS facilities (beaches and ramps) or
the Wild and Scenic River.
…
22. Are there seasonal and/or daily variations in reservoir level that can occur without adversely
impacting the overall value of the project (including impoundment objectives such as recreation, fish
and wildlife, flood control, generation, navigation, etc.)?
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Similarly, River Groups proposed that the minimum release would be adequate to
attain dissolved oxygen (DO) water quality standards of 4 mg/l in each tailrace during
generation and 5 mg/l in the tailraces during non-generation. See “Motion To Intervene And
Comments By Alabama Rivers Alliance And American Rivers” (May 4, 2007) (e-Library no.
20070504-5064), pp. 13, 15.
The EA does not acknowledge, accept, or reject these proposals in Section 2, where
the EA states the alternatives OEP Staff considered to achieve the project purpose of power
generation. Instead, the EA discusses these proposals only in the Environmental and
Developmental Analyses, and only in the context of the Applicant’s Proposal and the Staff
Alternative. For example, the EA addresses SLISA’s lake level proposal not as alternative,
but in the course of explaining OEP Staff’s preference for the existing rule curve:
“While we understand the entities’ concern regarding Smith Lake levels, the lake level
is influenced by a combination of factors that include project operation in a peaking
mode for hydropower purposes, coordination with the Corps operation for navigation,
municipal water withdrawals, enhancement of black bass spawning habitat, and the
natural variation in precipitation….”
EA, p. 98. Other than the unsupported conclusion above, the EA does not model or
specifically analyze the proposal’s hydrologic impacts on power generation or other beneficial
uses, or any of its benefits.
Similarly, SLISA proposed an alternative to a minimum release from Smith Dam for
the purpose of cooling Gorgas Plant: namely, the installation of cooling towers. See eLibrary no. 20061109-5057. The EA does not include this proposal as an action alternative
for the secondary project purpose. Instead, the EA discusses this proposal only in the
context of rejecting it.
“APC estimated these [capital and annual operating] costs would be approximately 85
to 190 million dollars to construct a cooling tower at Gorgas. There would also be
annual operation costs, penalty costs (i.e., reductions in plant efficiency or reduced
output on unusually warm days), which APC did not quantify. In addition to costs,
one must consider whether the measure would accomplish the desired objectives.…
As explained by APC in their correspondence filed on December 7, 2006, even if
cooling towers were installed at the Gorgas Plant and cooling water releases were
stopped, APC would still operate the Smith dam to meet other downstream demands,
•
October 4, 2001 Meeting – Low water levels impact launching of boats, navigation in sloughs,
and at 495 msl marinas close (this usually occurs in August).
There appears to be a potential impact to recreational resources at both the high and low range of the
lake level operations. This is dependent on the design of the facilities.…”
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including hydropower, flood control, navigation, recreation, water quality, and
municipal and industrial water supply. APC proposes to continue to operate the Smith
development according to its existing rule curve and in concert with the Corps
operation.”
EA, pp. 36-37. The EA does not verify Alabama Power’s estimate of capital or other cost,
does not model or specifically analyze hydrologic impacts on downstream uses, and does not
consider any of the potential benefits of the proposal.
The fundamental decision in any relicensing proceeding relates to flow control. Yet
here, the EA did not consider any alternatives to: (A) the existing rule curve for operation of
Smith Dam, (B) the minimum flow schedule of 50 cfs at that development, (C) baseline
operation of Bankhead or other Army Corps developments downstream for flood control and
navigation,2 or (D) baseline coordination of Smith Dam and Gorgas Plant. Thus, the EA
considers one action alternative to the Applicant’s Proposal action for the purpose of power
generation. It addresses other proposals not as discrete alternatives but instead solely in the
context of explaining why the Staff Alternative is superior in some respect. This approach
does not comply with the Commission’s fundamental duty under NEPA to consider, in equal
form, a reasonable range of alternatives to the proposed action for each purpose, before
determining which alternative best advances the public interest.
NEPA expressly requires that an EA consider a reasonable range of alternatives to the
proposed action which would achieve a given purpose. See 42 U.S.C. § 4332(2)(E); 40
C.F.R. § 1508.9(b), Bob Marshall Alliance, 852 F.2d at 1229; Native Ecosystem Council v.
U.S. Forest Service, 428 F.3d 1233, 1245-46 (9th Cir. 2005). This necessarily means that a
NEPA document must include more than one action alternative in the virtually universal
circumstance where other alternatives are reasonable.
“[40 C.F.R.] section 1502.14 requires the EIS to examine all reasonable alternatives
to the proposal. In determining the scope of alternatives to be considered, the
emphasis is on what is "reasonable" rather than on whether the proponent or applicant
likes or is itself capable of carrying out a particular alternative. Reasonable
alternatives include those that are practical or feasible from the technical and
economic standpoint and using common sense, rather than simply desirable from the
standpoint of the applicant….
For some proposals there may exist a very large or even an infinite number of
possible reasonable alternatives. For example, a proposal to designate wilderness areas
2
“An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS
if it is reasonable. A potential conflict with local or federal law does not necessarily render an alternative
unreasonable, although such conflicts must be considered. Section 1506.2(d).” CEQ, “Forty Most Asked
Questions Concerning CEQ’s National Environmental Policy Act Regulation,” 46 Fed. Reg. 18,026 (Mar. 23,
1981), Answer 2b.
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within a National Forest could be said to involve an infinite number of alternatives
from 0 to 100 percent of the forest. When there are potentially a very large number of
alternatives, only a reasonable number of examples, covering the full spectrum of
alternatives, must be analyzed and compared in the EIS. An appropriate series of
alternatives might include dedicating 0, 10, 30, 50, 70, 90, or 100 percent of the
Forest to wilderness. What constitutes a reasonable range of alternatives depends on
the nature of the proposal and the facts in each case.”
Council on Environmental Quality, Forty Questions, supra, Answers 1b, 2a.
Further, NEPA requires that the environmental document state reasonable alternatives
as discrete alternatives, so that their comparative merits may be systematically compared.
This is the “heart” of an environmental document. 40 C.F.R. § 1502.14. The document
must “present the environmental impacts of the proposal and the alternatives in comparative
form, thus sharply defining the issues and providing a clear basis for choice among options
by the decisionmaker and the public.” Id. It must also “[d]evote substantial treatment to
each alternative considered in detail including the proposed action so that reviewers may
evaluate their comparative merits.” Id.
“The degree of analysis devoted to each alternative in the EIS is to be substantially
similar to that devoted to the ‘proposed action.’ Section 1502.14 is titled
‘Alternatives including the proposed action’ to reflect such comparable treatment.
Section 1502.14(b) specifically requires ‘substantial treatment’ in the EIS of each
alternative including the proposed action. This regulation does not dictate an amount
of information to be provided, but rather, prescribes a level of treatment, which may
in turn require varying amounts of information, to enable a reviewer to evaluate and
compare alternatives.”
CEQ, Forty Questions, supra, Answer 5b.
Finally, the Commission may not reject an alternative as unreasonable merely because
OEP Staff is concerned about a potential impact. This is an improper form which frustrates
the purpose of the environmental document: namely, “sharply defining the issues and
providing a clear basis for choice…” NEPA requires that the environmental document
include “all reasonable alternatives …” not eliminated from detailed study. 40 C.F.R. §
1502.14(a). This requirement is particularly important when the proposed action “involves
unresolved conflicts concerning alternative uses of available resources ….” 42 U.S.C. §
4332(E). For example:
“… a commentor on a draft EIS may indicate that there is a possible alternative
which, in the agency's view, is not a reasonable alternative. Section 1502.14(a). If
that is the case, the agency must explain why the comment does not warrant further
agency response, citing authorities or reasons that support the agency's position and,
if appropriate, indicate those circumstances which would trigger agency reappraisal or
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further response. Section 1503.4(a). For example, a commentor on a draft EIS on a
coal fired power plant may suggest the alternative of using synthetic fuel. The agency
may reject the alternative with a brief discussion (with authorities) of the
unavailability of synthetic fuel within the time frame necessary to meet the need and
purpose of the proposed facility.”
III.
II.
THE EA USES INCORRECT LEGAL STANDARDS, AND IS NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE, IN FINDING THAT THE PROPOSED NEW LICENSE
WILL NOT HAVE SIGNIFICANT ENVIRONMENTAL IMPACTS
IMPACTS ON RESOURCES
PROTECTED UNDER FPA SECTION 10(A)(1).
10(A)(1).
The EA concludes: “On the basis of our independent analysis, the issuance of a new
license for the Warrior River Project, pursuant to the staff alternative, would not constitute a
major federal action significantly affecting the quality of the human environment.” EA, p.
144. The EA applies incorrect legal standards, and is not supported by substantial evidence,
in that ultimate finding.
A.
Incorrect Legal Standards
1.
Thresholds of Significance.
Significance.
In finding that the Staff Alternative will not cause any significant impact on environmental
quality, the EA does not define any standards of significance. See EA, p. 144. Similarly,
the EA does not state any such definition or standards in reaching such conclusions for
individual resources. The EA does not acknowledge or apply the standards of significance
stated in the NEPA rules. See 40 C.F.R. § 1508.27.
SLISA submits that the recommended new license will meet many of these NEPA
standards for significance of impact. The impacts will be variously “beneficial” (relative to
baseline) and “adverse” (by failing to mitigate the continuing impacts of the Project). Id., §
1508.27(b)(1). The Staff Alternative may affect unique characteristics of “wild and scenic
rivers” (id., § 1508.27(b)(3)), namely the Sipsey Fork. The Staff Alternative will be “highly
controversial” (id., § 1508.27(b)(4), as already demonstrated by the number of filings by
stakeholders about appropriate Smith Lake levels and other mitigation measures – and as will
be shown again by the EA comments. The Staff Alternative may establish a “precedent”
(id., § 1508.276) for the treatment of lake levels, downstream flows, listed species, and other
common issues in the future relicensing decisions for APC’s Coosa River and Martin
Projects. It is “related” to other actions (id., § 1508.27(b)(7), such as NPDES permitting for
Gorgas Plant and the Army Corps’ regulation of the Black Warrior – Tombigbee Lake
system (Bankhead, Holt, Oliver, Warrior, Demopolis, and Coffeeville) for flood control,
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navigation, and recreation., and may cause cumulative impacts. It may adversely affect
endangered and threatened species (by failing to require APC to comply with a 5.0 mg/L DO
concentration during times of generation).
2.
Change in Baseline Condition.
Condition.
The Developmental Analysis makes a series of findings that the proposed action will
improve the existing conditions of various resources. See, e.g., EA, p. 123 (defining
existing conditions as leakage flows in the Smith tailrace and showing that the recommended
minimum flow schedule will help keep waters moving that are stagnant under the existing
license). Similarly, as discussed elsewhere in these comments, the Environmental Analysis
finds that the Staff Alternative will improve: flow below Smith Dam, by establishing a
minimum to supplement leakage (EA, p.123); dissolved oxygen, by establishing a minimum
concentration during periods of generation (id., p. 123); and recreation, by requiring various
measures to improve the conditions of lake shoreline and facilities (id., p. 128-29).
NEPA baseline is the existing conditions of the lands, waters, and other resources of
the Warrior River. American Rivers v. FERC, 201 F.3d 1186, 1199 (9th Cir. 2000). The
impact of a measure relative to the baseline is the incremental change to existing conditions
expected to result from that measure. If a mitigation measure will cause a beneficial change
in baseline condition, it does not follow that the remaining impact is insignificant.
The EA must compare alternatives to the New License Application (NLA). Indeed,
that “comparative form” is the “heart” of the environmental document, “…sharply defining
the issues and providing a clear basis for choice among options.…” 40 C.F.R. § 1502.1.
The purpose of the comparison is to “…avoid or minimize adverse effects…” Id. at §
1500.2(f). Adverse impacts include cumulative impacts. Id. § 1508.25(c)(25). Cumulative
impacts are the totality of impacts “…which results from the incremental impact of the action
when added to other past, present, and reasonably future actions…” Id. at § 1508.7.
Here, the original license is a present action, since it is still in effect. Thus, the
Commission must consider how to mitigate the continuing impacts of the project as permitted
under the existing license. The Commission must ask: how do reasonable alternatives
compare in mitigating each continuing impact, such as the draw-down of Smith Lake during
late summer months to the detriment of lake recreation? That necessarily follows from the
definition of cumulative impact and the nature of a new license. Under FPA section
10(a)(1), a new license is a “new decision” whether to continue or change the original
license. Confederated Tribes and Bands of the Yakima Indian Nation v. FERC, 746 F.2d
466, 476 (9th Cir. 1984). That new decision may improve the environmental baseline,
insofar as the change is within the reasonable control of the Project. Among other things,
FPA section 10(a)(1) authorizes “protection, mitigation, and enhancement of fish and
wildlife…” (emphasis added).
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If, under the Staff Alternative, a continuing impact is partly mitigated, then it is partly
unmitigated. That unmitigated impact may be significant under NEPA. For example, the
recommended minimum flow schedule at Smith Dam will marginally improve the baseline
condition of the downstream fishery and the related recreational use of bank fishing. Even
the EA acknowledges, however, that the minimum flow schedule, in the absence of a
ramping rate, will only partly mitigate the continuing impact of the Project on the fishery.
“We conclude that the continued operation of the Smith development would not be buffered
by the proposed minimum flow release of 50 cfs.” EA, p. 57. In another example, the
recommendation that APC improve identified boat launches to provide boat access during low
water elevations (see, e.g., id., p. 92) will only partly mitigate the continuing impact of
drawing down Smith Lake during late summer months on lake recreation; and it will not
address associated problems of navigational hazards or make private docks fully functional at
low lake levels.
The EA appears to assume that cost-effectiveness of mitigation affects whether a
proposed action has a significant impact. For example, the EA dismisses the proposal by
Rivers Groups for a ramping rate at the tailraces to enhance fish populations downstream of
the developments. The basis for this dismissal is a finding that the implementation of a
ramping rate below the Smith development “would be very costly for the benefits that would
be received.” EA, p. 57. The EA applies this law of diminishing returns as a basis for the
conclusion that the minimum flow schedule below the Smith development, without any
ramping rate, will not have a significant impact on water quality, fish and aquatic life, and
water quality. If so, this assumption is improper for the purpose of the FONSI. As the EA
acknowledges, the absence of a ramping rate means that flow may change from 50 cfs to
10,000 cfs on a nearly instantaneous basis, plainly causing unnatural changes in aquatic
habitat. EA, p. 32.
3.
Treatment of Cumulative Impacts
NEPA requires analysis of the cumulative impacts of a proposed action in conjunction
with all past, present, and reasonably foreseeable future actions. See 40 C.F.R. §§ 1508.7,
1508.27(b)(7); Kern v. U.S. Bureau of Land Management, 284 F.3d at 1075-76; Idaho
Sporting Congress v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002). Cumulative impacts
help determine the overall significance of the impacts of the proposed action. See 40 C.F.R.
§ 1508(b)(7). “Significance exists if it is reasonable to anticipate a cumulatively significant
impact on the environment.” Id.
The EA acknowledges that the Warrior is a heavily regulated river system. “The
basin serves as an important municipal water supply source and, as a highly regulated river
system, is also used for a variety of other purposes such as flood control, hydroelectric
power generation, environmental management, navigation, and recreation.” EA, p. 30. The
EA claims that its topical scope includes “other existing and foreseeable hydroelectric and
non-hydroelectric activities in basin upstream and downstream from the project.” Id., p. 28.
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Its geographic scope extends to the headwaters and at least downstream as Bankhead Dam.
Id., pp. 28-29. Its claimed temporal scope is 30 to 50 years hence. Id., p. 29.
Despite the claimed scope of cumulative impact analysis, the EA does not include: (A)
any diagram of the hydrologic controls, including this project and the Army Corps’ facilities,
in the basin, (B) any modeling analysis of the water balance subject to such controls; (C) any
forecast of potential changes in operations at other facilities; or (D) any analysis of the
impacts of climate change on such operations. See Ex. 3. For example, the Environmental
Analysis states that many activities in addition to the proposed new license which impact
Smith Lake levels: “…the lake level is influenced by a combination of factors that include
project operation, coordinating operation with the Corps for purposes of navigation,
municipal water withdraws [sic], enhancement of fish spawning habitat in the lake,
recreation, and natural variation in precipitation.” EA, p. 98. However, the EA does not
analyze the nature and scale of influence of any non-project facility. It begs the question:
what is the individual contribution of each such activity to Smith Lake levels?
Similarly, the EA states that various point discharges are tributary to the waters
controlled by Smith Dam.
“Currently the Smith Lake watershed has 36 NPDES industrial discharge permits, two
municipal/semi-public discharges, seven concentrated animal feeding operation permits
(Feed Permits), 4 storm water construction permits, an 10 mining permits. The
Bankhead Lake watershed has many more NPDES permits. Currently there are 415
industrial discharge permits, 24 municipal/semi-public permits, 35 Feed Permits, 114
storm water construction permits and 205 mining permits for Bankhead Lake. These
discharges into both watersheds affect water quality at the project.…”
EA, p. 32. The EA further claims: “we analyzed the project’s site-specific and cumulative
effects on water quality from the data contained in the license application and from APC’s
responses to our additional information requests. Because there would be little change in
current project operation, we would expect little effect on current point source discharges
(and TMDL).” Id., p. 42. However, the EA does not specifically identify the permits or
sources for such discharges; analyze the nature, volume and other conditions of these
discharges; analyze whether such discharges may change in the future; or analyze how
alternative operations of Smith Dam might affect the water quality impacts of such
discharges. Instead, the analysis is limited to the tautology that continuing baseline project
operations will not affect the impacts of such discharges.
The EA does not contain any finding about the condition of flow or biological
resources 30 to 50 years after issuance of a new license. Instead the perspective is limited to
near-term changes in baseline condition. This temporal scope is inconsistent with NEPA.
“The EIS must identify all the indirect effects that are known, and make a good faith
effort to explain the effects that are not known but are ‘reasonably foreseeable.’
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Section 1508.8(b). In the example, if there is total uncertainty about the identity of
future land owners or the nature of future land uses, then of course, the agency is not
required to engage in speculation or contemplation about their future plans. But, in the
ordinary course of business, people do make judgments based upon reasonably
foreseeable occurrences. It will often be possible to consider the likely purchasers and
the development trends in that area or similar areas in recent years; or the likelihood
that the land will be used for an energy project, shopping center, subdivision, farm or
factory. The agency has the responsibility to make an informed judgment, and to
estimate future impacts on that basis, especially if trends are ascertainable potential
purchasers have made themselves known. The agency cannot ignore these uncertain,
but probable, effects of its decisions.”
CEQ, Forty Questions, supra, Answer 18.
4.
Treatment of Mitigation Measures.
Measures.
The EA discusses only a very limited range of mitigation measures for each impact of
the project. For example, it discusses: the ramping rate proposed by the River Groups
versus no ramping rate, or the minimum flow schedule of 50 cfs versus the baseline leakage.
It does not analyze a reasonable range of alternative measures. This approach does not fulfill
the Commission’s NEPA duty.
“All relevant, reasonable mitigation measures that could improve the project are to be
identified, even if they are outside the jurisdiction of the lead agency or the
cooperating agencies, and thus would not be committed as part of the RODs of these
agencies. Sections 1502.16(h), 1505.2(c). This will serve to alert agencies or officials
who can implement these extra measures, and will encourage them to do so. Because
the EIS is the most comprehensive environmental document, it is an ideal vehicle in
which to lay out not only the full range of environmental impacts but also the full
spectrum of appropriate mitigation.”
B.
NonNon-Substantial Evidence in Support of FONSI
The EA describes disputed factual issues. It identifies evidence as the basis for its
many findings. Nonetheless, it is not based on substantial evidence as required by FPA
section 313(b), 16 U.S.C. § 825l(b) and the APA sections 556-7 and 706(2).
The EA appears to assume that substantial evidence is the existence of record
evidence consistent with a finding. Under that assumption, if evidence in a proceeding is
consistent with findings X or –X, Staff could pick either result and, without more, recite that
evidence supports that result. If so, FERC would have largely unreviewable discretion in its
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findings in a typical relicensing proceeding (like this one) where evidence is potentially
consistent with competing results.
As required by FPA section 313(b) and APA sections 556(d)-557 and 706(2),
substantial evidence is record evidence which is expressly found to be: (A) reliable and
probative for the purpose of supporting a finding and (B) superior to competing evidence
with respect to a given finding. See Fed. Rules Evid. 702; Daubert v. Merrell Dow
Pharmaceuticals, 113 S. Ct. 2786 (1993); Motor Vehicle Mfrs. Association v. State Farm
Insurance, 463 U.S. 29 (1983). Thus:
“[i]f the administrative action is to be tested by the basis upon which it purports to
rest, that basis must be set forth with such clarity as to be understandable. It will not
do for a court to be compelled to guess at the theory underlying the agency’s action,
nor can a court be expected to chisel that which must be precise from what the agency
has left vague and indecisive.”
Security and Exchange Commission v. Chenery Corporation, 332 U.S. 194, 196-7 (1947),
see also FPC v. Texaco, Inc., 417 U.S. 380, 397 (1974); Columbia Gas Transmission Corp.
v. FERC, 628 F.2d 578, 593 (D.C. Cir. 1979). Similarly,
“We noted in [a prior case] that we do not pretend to have the competence or the
jurisdiction to resolve technical controversies in the record or … to second-guess an
agency decision that falls within a ‘zone of reasonableness.’ Rather, our task is to
‘ensure public accountability,’ by requiring the agency to identify relevant factual
evidence, to explain the logic and the policies underlying any legislative choice, to
state candidly any assumptions on which it relies, and to present its reasons for
rejecting significant contrary evidence and argument.”
United Steelworkers Of America et al. v. Marshall, 647 F.2d 1189, 1207 (D.C. Cir. 1980)
(internal citations omitted).
1.
Citation to Whole Documents
The EA repeatedly cites to the NLA and other documents as the basis for findings.
See, e.g., EA, p. 27 (“Unless mentioned otherwise, the source of our information is the
Warrior Project license application (APC, 2005a) or supplemental filings.”). This form does
not establish substantial evidence in support of such findings. The EA generally does not
explain why the evidence is reliable or probative for that purpose. It repeatedly cites to the
NLA exhibits without acknowledging that, as applicant, APC has the burden of proof on
disputed factual issues. 5 U.S.C. § 556(d). While the Commission may rely on APC’s
evidence, it must have and state an independent basis for such reliance. 40 C.F.R. §
1502.14(a); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620-1 (2nd Cir.
1965). Finally, the practice of citing to a whole document effectively obliges an objecting
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party to infer which part was relied on or to challenge the entirety. This is an unreasonable
burden, given the complexity and length of the NLA exhibits.
2.
Citation to Disputed Evidence without More
The EA repeatedly cites to the NLA on disputed issues where SLISA or its
consultants submitted competing evidence. It generally does not explain why the evidence
relied upon is superior. For example, it accepts APC’s argument that economic benefits of
Smith Lake recreation must be weighed against the competing value of downstream uses such
as navigation. See EA, p. 112. We agree. However, APC’s argument (which does not
include any evidence of the economic value of downstream uses) is not a sufficient basis to
disregard the expert evidence we submitted to show that lake recreation provides substantial
economic value; and that a more stable lake level will enhance that value. The EA reports
but does not directly respond to this expert evidence. This practice violates FERC’s
obligation to test competing evidence in a transparent manner, before deciding which
evidence to rely upon. Farmers Union Central Exchange v. FERC, 734 F.2d 1486 (D.C.
Cir. 1984).
3.
Incomplete Information
The EA repeatedly refers to the fact that Smith Lake levels are “influenced by a
combination of factors that include project operation in a peaking mode for hydropower
purposes, coordination with the Corps operation for navigation, municipal water withdrawals,
enhancement of black bass spawning habitat, and the natural variation in precipitation.” EA,
pp. 37, 98. The EA uses the uncertainty regarding how the specific contribution of
individual factors on lake levels as a basis for rejecting SLISA’s proposals to maintain more
stable lake levels. The EA does not explain why OEP Staff, since the Notice of Intent (Nov.
16, 2001), did not require APC to undertake additional studies or otherwise gather such
information, pursuant to 18 C.F.R. Parts 4 and 16 and § 380.3(b)(2). It does not describe
any effort by OEP Staff to undertake an independent investigation to resolve such
uncertainties.
Similarly, the EA does not address concerns raised by stakeholders and agencies
regarding the quality of APC’s water quality data, specifically APC’s data regarding
compliance with the state standard for dissolved oxygen (DO) concentration. See, e.g.,
Rivers Groups Motion to Intevene, supra, pp. 9-10. FWS reviewed APC’s data purporting
to show compliance with the DO standard over 90% of the time under original licenses. “A
closer look at the data reveals that there are many inconsistencies in the intervals and times at
which data are reported, or otherwise not presented, in the assessment. This type of data
aggregation can have a drastic effect on the results.” Letter from Larry E. Goldman, FWS,
to Russell A. Kelly, ADEM (Feb. 14, 2005), p. 3. The FWS further stated:
“It is clear that these standards are being violated and the type of assessment
presented in this application does not provide reasonable assurance that state water
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standards for DO will be met in the future. Data should be compiled, aggregated,
and presented in a standardized format showing either operational hours or nonoperational hours, but not compositing the values into invalid summaries based on
undue statistical extrapolations.”
Id., p. 6.
The Alabama Department of Conservation and Natural Resources (ADCNR) stated:
“APC uses DO data to report values such as minimum, maximum, average and
percent time in compliance with state DO standards.…[t]he use of averages and
percent time in compliance are very questionably values for analyzing the meeting of
state standards or determining the possible acute or chronic impacts to fish, mussels,
snails, crayfish and macroinvertebrates. The use of averages simply dilutes the
reporting of DO non-compliance … Averages mean nothing when a fish is dying from
lack of oxygen.”
Letter from M. Barnett Lawley, ADCNR, to Russell A. Kelly, ADEM (Feb. 9, 2005), p.
11.
The EA cannot rely on the water quality certification to substantiate this data.
Alabama Department of Environmental Management (ADEM) staff have acknowledged that
they did not specifically respond to these concerns or attempt to correct deficiencies in the
data. See Deposition of Lynn Sisk, Alabama Rivers Alliance et al. v. Environmental
Management Commission (Nov. 18, 2005), p. 130.3
This passivity is an abuse of discretion under FPA section 10(a). “...Congress gave
the [Commission] a specific planning responsibility …. The Commission must see to it that
the record is complete. The Commission has an affirmative duty to inquire into and consider
all relevant facts.” Scenic Hudson, 354 F.2d at 620.
“In this case, as in many others, the Commission has claimed to be the representative
of the public interest. This role does not permit it to act as an umpire blandly calling
balls and strikes for adversaries appearing before it; the right of the public must
receive active and affirmative protection at the hands of the Commission.”
Id.
Indeed, under NEPA rules, the Commission must resolve or minimize such record
uncertainties before publishing an environmental document, unless the cost is exorbitant.
3
Due to size (149 pages) we have not included this document as an exhibit. We will make it available
in electronic form upon request.
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“When an agency is evaluating reasonably foreseeable significant adverse effects on
the human environment in an environmental impact statement and there is incomplete
or unavailable information, the agency shall always make clear that such information
is lacking.
(a) If the incomplete information relevant to reasonably foreseeable significant adverse
impacts is essential to a reasoned choice among alternatives and the overall costs of
obtaining it are not exorbitant, the agency shall include the information in the
environmental impact statement.
(b) If the information relevant to reasonably foreseeable significant adverse impacts
cannot be obtained because the overall costs of obtaining it are exorbitant or the
means to obtain it are not known, the agency shall include within the environmental
impact statement:
(1) A statement that such information is incomplete or unavailable; (2) a statement
of the relevance of the incomplete or unavailable information to evaluating
reasonably foreseeable significant adverse impacts on the human environment; (3)
a summary of existing credible scientific evidence which is relevant to evaluating
the reasonably foreseeable significant adverse impacts on the human environment,
and (4) the agency's evaluation of such impacts based upon theoretical approaches
or research methods generally accepted in the scientific community. For the
purposes of this section, "reasonably foreseeable" includes impacts which have
catastrophic consequences, even if their probability of occurrence is low, provided
that the analysis of the impacts is supported by credible scientific evidence, is not
based on pure conjecture, and is within the rule of reason.”
40 C.F.R. § 1502.22.
4.
Modeling
The EA does not discuss or disclose any modeling of alternatives considered,
including the No-Action Alternative, APC’s Proposal and the Staff Alternative. It does not
discuss or disclose any modeling of alternatives eliminated from further consideration. It
does not discuss or disclose any modeling of proposals recommended by SLISA and the
Rivers Groups. The only reference to modeling we located was in a footnote to the
Developmental Analysis:
“To obtain [the value of the annual generation of APC’s Proposal], staff reduced the
existing project average annual generation (430, 968 MWh) by the ration of
394,865/398,222. The first number is APC’s modeled generation for the APC
proposed alternative and the second number is APC’s modeled generation for the noaction alternative.”
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EA, p. 116, n. 35.
The NLA does not disclose APC’s model or modeling results. See Ex. 3, ¶¶. 4-6.
Neither the EA nor the NLA provide sufficient data to replicate even the data that are
presented. See id., ¶ 6. Further, the EA’s finding that the “existing rule curve provides
multiple benefits and should be maintained,” (EA, p. 123) implies a definiteness regarding
the rule curve that is not there. See Ex. 3, ¶¶ 7-14.
“It is misleading to assert that a project will be operated according to a rule curve
without specifying the conditions that will necessitate or permit a deviation from it.
APC’s past operations have not followed the rule curve, but there is scant information
as to why not. It is clear that the rule curve is only one part of the operating
protocol, but the remaining arts are not addressed with sufficient specificity to allow a
complete analysis of the project’s operations.”
Id., ¶ 10. It may be more accurate to state that Alabama Power attempts to operate within
the band represented by the “rule curve,” and the “lower guide curve,” rather than to imply
that it follows a rule curve. See id., ¶ 12.
The factors that determine how Alabama Power uses its discretion to operate inside
this permissible band are not explained adequately in the EA. See Ex. 3. Peaking operations
do not appear to be the cause of deviations from the rule curve, but the EA does not present
detailed analysis of any non-power uses which may contribute to deviation from the rule
curve. See id., ¶ 18. For example, the EA refers to water quality permits and municipal
and industrial withdrawers, but these withdrawers are not identified. See id., ¶ 23. This is a
significant omission because, based on our preliminary analysis of the EA and NLA, it
appears that 600 cfs or 388 million gallons per day (mgd) is unaccounted for between Smith
and Bankhead Lakes. “Although it is possible that the reach between Smith and Bankhead
loses some water during low flow periods, it seems more likely that the majority of the lost
water is the result of withdrawals that are either consumed or diverted out of the basin.” Id.,
¶ 25. Regardless of cause, the failure to fully account for water in the system shows how
poorly the water balance is understood. The EA should have, but did not contribute to this
understanding. Instead of conducting a detailed analysis, the EA seems to shrug: “Water
quantity issues and conflicts which arise among the many diversified users, where request for
water withdrawal permits are likely to continue to exceed the supply of water into Smith
Lake, would continue into the foreseeable future under any new license issued for the
Warrior Project.” EA, p. 126.
The findings in the EA are meaningless given the lack of clarity regarding water
balance in the Black Warrior River basin. The EA cannot purport to find benefits in
continuation of the existing rule curve if the rule curve is not defined, and there has been no
modeling as to how the existing rule curve, if strictly followed, will effect the water balance
in the basin. See id., ¶ 27. As stated in Section X, infra, we recommend preparation of
hydrologic model which simulates the operation of the existing project and alternatives
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thereto over a long period of hydrologic history in the context of other water users in the
basin. See id., ¶¶ 5-6, 27.
C.
Potentially Significant Impacts on Specific Resources
Despite the FONSI, the Environmental Analysis in Section 3 discloses that the
proposed new license may have a number of significant impacts on water quality, fisheries,
listed species, recreation, and socioeconomics.
1.
Water Quality
According to the EA, the Smith Lake tailwaters “frequently fail to meet state water
quality standards during the summer and early fall months as a result of turbine operations
discharging water withdrawn from the deeper, anoxic waters near the dam.” Id., p. 33. The
EA does not provide adequate information to determine whether the proposed new license
will mitigate the Project’s direct impact on DO The EA recommends acceptance of APC’s
proposal to address this direct impact by “design[ing], install[ing] and operat[ing] an aeration
system at the Smith development within 18 months of license issuance in order to meet 4.0
mg/L during generation.” Id., p. 127. It accepts APC’s proposal to monitor DO in the
tailrace for 3 years following installation of the aeration system. See id. It also accepts
APC’s plan for DO monitoring following installation of the aeration system. The EA does
not include any discussion of APC’s progress in designing or preparing to implement aeration
devices. The EA does not include any information regarding the type of aeration devices
Alabama Power intends to install, including any information regarding the success of such
designs in other, similar settings. Thus, it is not clear whether the proposed new license will
mitigate the project’s direct effect on DO in the Smith tailrace.
The EA does not acknowledge that the water quality certification only regulates DO
during periods of generation. The limitation on 4 mg/L, as stated in paragraph 1 of the
certification, only applies at locations which are monitored during generation, as specified in
paragraph 3. ADEM Staff acknowledge that the certification does not regulate DO during
periods of non-generation. See Sisk Declaration, supra, pp. 40 – 42 (discussing Coosa
Project, which contains identical paragraphs).
The EA omits discussion of the project’s impacts on any other water quality criteria,
e.g., temperature, so it is not clear whether the proposed new license will have significant
impacts on attainment of such criteria.
The EA recommends that Alabama Power continue peaking operations and regulate
lake levels according to the existing rule curve under the proposed new license. See EA, p.
123. It lists erosion as an unavoidable adverse effect of such operation: “There is potential
for erosion to continue to occur below the Smith development because of its operational
mode, the river’s morphometry, and bank soil types, but the extent of the erosion is difficult
to determine.” Id., p. 48. Elsewhere it acknowledges that the proposed new license will not
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fully mitigate the Project’s impact on erosion: “Efforts by APC to minimize the occurrences
of lowering the lake below 495 feet msl, should also help to reduce any shoreline erosion
effects that may be occurring, thereby reducing turbidity.” Id., p. 42 (emphasis added). The
EA indirectly acknowledges that fluctuations at Smith Lake will continue to cause shoreline
erosion and turbidity effects which extend to the Clear Lake, Corinth, and Houston
Recreation Areas. See EA, pp. 41, 42 (“Efforts by APC to minimize the occurrences of
lowering the lake below 495 feet msl, should also help to reduce any shoreline erosion effects
that may be occurring, thereby reducing turbidity.”); see also Forest Service, “Preliminary
Terms and Conditions, Comments, Section 7(a) Determination” (Mar. 10, 2005) (e-library
no. 20050310-5001), p. 14 (“ongoing shoreline damage is occurring due to fluctuating lake
action”)
Erosive impacts on the lake under present operations are significant. See Ex. 1, ¶ 14.
The EA did not consider any alternative flow schedules or rule curves, so the EA does not
provide adequate information on which determine if there are alternatives that would mitigate
the Project’s impacts on erosion in the Smith Tailrace and on Smith Lake.
The EA recommends that Alabama Power continue current peaking operations at
Smith development. See EA, p. 123. Cold, hypolimnetic water releases from Smith
development under current peaking operations has converted approximately 12 miles of
stream downstream of Smith Dam from a warmwater fishery to a cool/coldwater fishery.
Id., p. 49. The EA does not analyze how conversion of 12 miles of river from warmwater
to coldwater aquatic habitat affects water quality. It does not discuss whether this conversion
is consistent with the designated uses of this reach. Thus, the EA does not contain adequate
information to determine whether the proposed new license will impact water quality.
In sum, the EA does not quantify the impacts or identify appropriate mitigation
measures for the alternatives of No Action, APC’s Proposal, or the Staff Alternative. The
EA accepts APC’s assertions that mitigation proposed under the APC Proposal, and largely
incorporated into the Staff Alternative, should result in some enhancement of baseline.
“Contrary to some assertions, we find the water quality data contained in the license
application to be adequate for determining project effects on water quality in Smith
Lake and its tailwater. Furthermore, APC’s proposed continuation of its current
operation regime for Smith Lake should not cause any additional water quality
problems than that which currently exists.”
EA, p. 42.
2.
Fisheries
The EA finds that there would be unavoidable adverse effects to fisheries under the
proposed license:
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“There would likely continue to be some limited amount of fish mortality associated
with turbine entrainment. Also there would continue to be a cool/coldwater fishery
below the Smith dam that replaces the original warmwater fishery that would occur in
river in the absence of the Smith development.”
EA, p. 58. The EA further finds that the proposed new license would mitigate existing
impacts, but this is acceptable:
“The continued operation of the Warrior Project, as proposed, would have little effect
on fishery resources beyond what currently occurs. The proposal by APC to ensure
that the project’s tailwaters meet state water quality standards would benefit fish and
aquatic resources. Overall, there would be negligible effects on the cumulative effects
on fish and aquatic resources in the Warrior River.”
Id., p. 58.
The EA does not address the fact that the presence of Smith Dam will continue to
cause habitat fragmentation within and between tributaries to Smith Lake and fragmentation
within the Warrior River. EA, p. 52.
It mentions, but does not analyze the impacts of the cold, hypolimnetic water releases
from the Smith development which have converted several miles of stream downstream of the
dam from a warmwater fishery to a cool/coldwater fishery. EA, p. 49. The EA states that
flow changes from leakage to 10,000 cfs with no ramping flows erodes streambanks and
displaces fish downstream. Id., p. 57. However, it does not analyze these impacts beyond
this statement.
3.
Recreation
The EA finds:
“Overall, APC’s proposed recreation measures would enhance or improve recreation
sties that are located within or adjacent to the Warrior project boundary … We find
that the proposed measures would result in a beneficial effect on recreation resources
due to: (1) improved public access to Smith Lake and the tailrace; (2) designated
vehicle and boat trailer parking to relieve congestion and improve traffic flow; (3)
improved policing and litter removal through partnerships; and (4) construction of a
boat launch at APC boat launch site 40 to provide boat access during low water
elevations.”
EA, p. 93. Under the proposed new license APC will also prepare a recreation plan. See
id., p. 129. While these measures will improve existing conditions for recreation, the Staff
Alternative plainly will not fully mitigate the project’s continuing impacts on recreation.
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The EA does not address the significance of project impacts on recreation as raised in
Marvin Feldman, “Economic Analysis of Non-Power Values of Smith Lake” (Feb. 11, 2008)
(e-Library no. 20080211-5114). Dr. Feldman found APC’s deviation from the rule curve
“have reduced recreational usage by approximately 20% over the past nine years, causing a
$34 million per year reduction in recreation benefits.” Id., p. 61. The EA does not address
the report’s finding that recreation is a primary, non-power economic driver in the region.
By the report’s estimation, Smith Lake could create at least $29 million per year in recreation
benefits if the proposed new license required Alabama Power to adhere strictly to the rule
curve. See id., p. 6.
Recreation at the project is primarily lake-based. According to the EA, recreational
users made 243,428 trips to Smith Lake in 2000, totaling more than 1.5 million recreation
hours. EA, p. 80. More than 70% of those recreation hours were spent on lake-related
activities such as boating (457,000 hours), boat fishing (267,000 hours) and general water
recreation (370,000 hours). Id., p. 81. In general, the most heavily used recreation facilities
in the project were operated at less than 80% capacity, meaning that there is significant
potential for the expansion of lake-based recreation. Id.
Lake levels are closely tied to recreational use in the Smith Development. The FIMS
study, for example, indicated that recreation use falls by 5% for each 1 foot drop in water
level. Ex. 2.,¶5. This appears to be caused by the decrease in recreational enjoyment at
lower lake levels. When the lake is at 495 msl, boat launches become stranded. See Ex. 1,
¶7; Ex. 1.2, Photos E, F, M, N, O. Swimming areas are similarly left dry. See id., Ex.
1.2, Photo H. Sandbars and other navigational hazards are also exposed at 495 msl. See
id., Ex. 1.2, Photos J, K. Indeed, on Labor Day weekend 2007, when the lake was at 495
msl, visitorship to Forest Service recreations areas was so low that the Forest Service
restriped the parking lot. See id., Ex. 1.2., Photo D.
The EA does not analyze the significance of these continuing impacts. It does not
analyze alternative flow schedules and rule curves which may better mitigate the Project’s
existing impacts on recreation. It provides inadequate information on which to base a
determination that the proposed new license will not have significant impacts on recreation.
4.
SocioSocio-Economics
The EA states the proposed new license will not result in any unavoidable adverse
effects, and does not include any measures for socioeconomics. See EA, p. 113.
The EA states, “[t]he four counties affected by the Project are located in Appalachian
Alabama, and thus, part of a plan that assists counties to generate sufficient economic
development and therefore stabilize their respective economies.” EA, p. 108. It suggests
that these counties would benefit from efforts to develop recreation-based tourism as a viable
industry. See id., p. 110. However, it largely ignores evidence submitted in Dr. Feldman
(2008) regarding the potential economic benefits of improved recreation as a result of the
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Project adhering to the existing rule curve. With the minor exception of a single survey in
the Feldman report, the EA does not refute the data or findings of the report. See EA at
112-13; see also Ex. 2, ¶ 8 (stating that EA’s criticism of survey “runs contrary to accepted
social science research procedures”).
As indicated above, Smith Lake is a major recreational destination, and recreational
tourism plays a significant role in the regional economy. One study estimated that the value
of recreation at Smith Lake is $135 million annually. Ex. 2, ¶20. The Feldman report
estimates that the total of public and private recreation is closer to $172 million per year.
The reduction in recreational use of Smith Lake that occurs when water levels drops
therefore has a significant economic effect. Accepting the FIMS study’s conclusion that
recreation use falls by 5% for each 1 foot drop in water level, Ex. 2, ¶5, each 1 foot drop in
water level takes $6-8 million from the local economy. Based on data from 1999-2007
showing that Alabama Power kept Smith Lake levels 2.3 feet below the rule curve during the
summer, Feldman estimates that the local economy suffered an average annual loss of
approximately $34 million. Ex. 2, ¶5.
The impact of low lake levels on recreation is vividly demonstrated by the Key
declaration. On Labor Day weekend, 2007, Smith Lake levels were so low that recreational
tourists had all but disappeared from the region. The Lakeshore Inn and Marina, which was
booked for the Labor Day Weekend, had to cancel all reservations because the lack of water
rendered the Marina inoperable. Ex. 1, ¶10.
In addition to recreation, the Smith Lake region is also impacted by the diminished
property values that result from low lake levels. Residential and commercial development
along Smith Lake is presently valued at $1.8 billion. Ex. 2, ¶23. Lake levels play a key
role in the valuation of this property. For example, Alabama Power’s departure from the
existing rule curve has resulted in an estimated $205 million decrease in property values in
the past two years. Id. Extending the summer full pool period by 60 days would raise
property values by an estimated $342 million. Id. And maintaining a year-round minimum
lake elevation of 502 feet would increase property values by an estimated $492 million. Id.
Although Smith Lake homeowners stand to gain from any increases to their property
values, the effect of such increased values will also benefit local tax revenues, real estate
workers, and even communities that may have difficulty attracting year-round residents.
Indeed, numerous local communities have submitted comments to FERC supporting higher
lake levels, such as the town of Addison and Winston County. The EA refers to these
community concerns in passing, but does not include them in its analysis section. See EA at
111-113.
The EA acknowledges the existence of many of these impacts, but it dismisses them
without any analysis of alternatives or measures that could be taken as mitigation.
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IV.
THE RECOMMENDED
RECOMMENDED NEW LICENSE WILL
WILL NOT PROTECT
PROTECT THE BANKHEAD
NATIONAL FOREST UNDER FPA SECTION 4(E).
The project occupies lands and waters of the Bankhead National Forest. EA, p. 86.
The Forest Service submitted conditions for the protection of these resources, under FPA
section 4(e) (e-Library 20070529-0269). The submittal consists of “An Agreement between
Alabama Power Company and the United States Forest Service Regarding Relicensing Issues
Related to the Warrior River Project” (Aug. 18, 2007). That agreement requires Alabama
Power to make payments to the Forest Service for maintenance of certain facilities, conduct
water quality monitoring, and report. Id. The EA generally recommends that the new
license not include these measures. EA, pp. 133 – 136. The Agreement, and this proposed
rejection, do not comply with the duties of the Forest Service and the Commission,
respectively, for protection of the Bankhead National Forest under FPA section 4(e).
A.
Inadequate Protection and Use of Resources of Bankhead National Forest
The Agreement includes an Explanatory Statement prepared by the Forest Service.
The Explanatory Statement does not analyze the project’s continuing and future impacts on
the Bankhead National Forest. It does not show how the agreed-to measures will mitigate
such impacts, other than generally acknowledging that funding will permit better operation
and maintenance of the Forest Service’s facilities. It does not describe any specific physical
action that Alabama Power will take to prevent or mitigate project impacts on these
resources. It does not analyze consistency with any specific management objectives or other
requirements of the Forest Plan.
The Agreement does not comply with the Forest Service’s duty under FPA section
4(e), 16 U.S.C. § 797(e), which provides:
“That licenses shall be issued within any reservation only after a finding by the
Commission that the license will not interfere or be inconsistent with the purpose for
which such reservation was created or acquired, and shall be subject to and contain
such conditions as the Secretary of the department under whose supervision such
reservation falls shall deem necessary for the adequate protection and utilization of
such reservation.”
The Agreement, including Explanatory Statement, does not assure or show that the agreed-to
measures are adequate for such protection and use. While the non-appropriated funds under
the Agreement will provide a fiscal benefit to the Forest Service; that is not the requirement
of FPA Section 4(e).
The Agreement does not comply with the Organic Administration Act, which
governs the Forest Service’s decision in this proceeding. That 1897 statute establishes this
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bedrock purpose: “No national forest shall be established, except to improve and protect the
forest within the boundaries, or for the purpose of securing favorable conditions of water
flows, and to furnish a continuous supply of timber for the use and necessities of citizens of
the United States….” 16 U.S.C. § 475. The Agreement, including Explanatory Statement,
does not assure or show that the recommended new license will secure favorable conditions
of water flow. Specifically, it will permit continued fluctuation in Smith Lake detrimental to
resources of the Bankhead National Forest.
The Agreement does not comply with the Multiple Use-Sustained Yield Act, 16
U.S.C. §§ 528 et seq., which also governs the Forest Service’s decision here under FPA
section 4(e) That 1960 statute provides that each National Forest will be administered for
multiple uses, and specifically for the “harmonious and coordinated management” of timber,
water, outdoor recreation, fish and wildlife. 16 U.S.C. §§ 539, 531, 528. It must be
administered for the “sustained yield” – the “high level” of productivity – of the renewable
resources without impairment of the land. Id., §§ 529, 531. The Agreement, including
Explanatory Statement, does not assure or show that the recommended new license will
achieve the sustained yield, as so defined, of the affected resources of the Bankhead National
Forest.
The Agreement does not comply with the administrative requirement that Section
4(e) conditions for the project will be consistent with the Standards, Guidelines, and other
management requirements of the Forest Plan for the affected land. See Forest Service
Handbook 1909.12, Ch. 5.31a. The Revised Land and Resource Management Plan, National
Forests in Alabama (Jan. 2004) includes specific goals applicable to the Bankhead National
Forest:
“Goal 4. Watersheds are managed and/or restored to provide resilient and stable
conditions to support the quality and quantity of water necessary to protect ecological
functions and support intended beneficial water uses. Id., p. 2-17.
…
Goal 8. Riparian ecosystems, wetlands and aquatic systems are managed and/or
restored to protect and maintain soil, water, vegetation, fish and wildlife associated
resource values. Id., p. 2-23.
Goal 9. Provide riparian and aquatic ecosystem conditions that are suitable to
maintain well distributed viable populations of all aquatic species native to the
planning area. Manage for diverse, balanced, integrated, and adaptive
aquatic/riparian communities, and provide habitat conditions to support desirable
population levels and distribution of selected species (e.g. species with special habitat
needs such as shoal, cave, or spring obligates; recreationally important species;
threatened or endangered species; or species of special interest). Id.
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Goal 10. Lakes, ponds, and reservoirs support balanced, productive recreational
fisheries to the extent appropriate for native aquatic species viability, threatened and
endangered species, State and federal water quality standards, funding, and public
demand.
Objective 10.1. Develop lake and reservoir management plans and periodically
(every 1-5 years) review and update the plans in coordination with state and other
agencies and partners. Id., p. 2-24.
Goal 11. Substantially contribute to the recovery of federally listed threatened and
endangered species, and provide for the conservation of sensitive species so as to
minimize the need for additional federal listings under the Endangered Species Act.
Id., p. 2-28.
…
Goal 22. Provide a spectrum of high quality, nature-based recreation settings and
opportunities that reflect the unique or exceptional resources of the Forest and
interests of the recreating public on an environmentally sound and financially
sustainable basis. Adapt management of recreation facilities and opportunities as
needed to shift limited resources to those opportunities. Id., p. 2-55.
The Agreement, including Explanatory Statement, does not assure or show that the
recommended new license will comply with any of these requirements.
B.
Inconsistency with Purposes of Bankhead National Forest
The EA does not analyze the consistency of the recommended new license and the
purposes for the Bankhead National Forest. It does not provide a basis for the
Commission’s mandatory finding under FPA section 4(e) (first proviso, first clause) “…that
“…
the license will not interfere or be inconsistent with the purpose for which such reservation
was created or acquired….”
The EA generally recommends that the new license exclude the conditions which the
Forest Service submitted under claim of authority of FPA section 4(e). While SLISA agrees
with OEP staff that the conditions do not have a nexus with project impacts (EA, pp. 133136), the Commission has a mandatory duty to include conditions timely submitted for a
project which occupies any part of a federal reservation. See Escondido Mutual Water
Company v. La Jolla Band of Mission Indians, 466 U.S. 765, 779 (1984). The EA does not
state any authority for the recommended rejection of the Agreement, or any alternative to
cure the conflict between OEP Staff and the Forest Service under FPA section 4(e).
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V.
THE PROPOSED NEW LICENSE WILL NOT PROTECT THE OUTSTANDINGLY
REMARKABLE VALUES OF SISPEY FORK UNDER NATIONAL WILD AND SCENIC
RIVERS ACT SECTION 7(a).
The EA finds that the project will have direct and adverse impacts on the outstanding
resource values for which the Sipsey Fork was designated under the Wild and Scenic Rivers
Act (WSRA). The discussion of these adverse impacts does not support the conclusion that
the Warrior Project will not unreasonably diminish the values present in the Sipsey Fork. See
EA, pp. 8-9.
The Sipsey Fork of the West Fork River was designated as a National Wild and
Scenic River on October 28, 1988. See Sipsey Wild and Scenic River and Alabama Addition
Act of 1988, Pub. L. 100-547, 102 Stat. 2236 (October 28, 1988). According to filings by
the United States Forest Service (FS), the values for the Sipsey Fork are:
“Scenery—Rock bluffs and shelters, waterfalls, seepages and crystal clear water occur
throughout the corridor. For most of its length, the Sipsey Fork flows in a deeply
entrenched canyon or through areas of high bluffs, constantly curving and
meandering. Vegetation types are diverse with seasonal color. The flora is
characterized by a biotic community unique to the Sipsey Fork river corridor, and
includes many endemic and/or threatened, endangered and sensitive plant species and
their habitats.
Recreation—The diversity of natural features and scenic beauty of the Sipsey Fork
corridor provide the base for a diversity of recreation opportunities, including:
canoeing, fishing, hiking, photography, rock climbing, sightseeing, wildlife viewing,
day-use and primitive camping. The River also provides outstanding opportunities for
solitude. The Sipsey Fork river corridor encompasses some of the highest density
areas for archeological sites on the Bankhead National Forest, comprised primarily of
bluff shelters and sandy terraces near the river.
Geology—The Sipsey Fork flows through a deeply incised gorge and areas of
overhanging bluffs in excess of 100 feet. There are markedly different geologic
formations. The northeast section of the watershed exhibits semi-Karts topography,
with small caves and sinkholes common. An almost continuous sandstone escarpment,
ranging from 25 to 100 feet, characterizes the headwaters of the northwest section.
The central and southern sections of the watershed transition to broad-rolling ridge
tops with short steep side slopes.”
Forest Service, “Preliminary Terms and Conditions, Comments, Section 7(a)
Determinations” (March 10, 2005) (e-Library No. 20050310-5001), p. 24.
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Section 7(a) of the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. § 1278(a),
prohibits FERC from licensing any development below or above a wild, scenic or
recreational river area if the development will “invade the area or unreasonably diminish the
scenic, recreational, and fish and wildlife values present in the area on the date of designation
of a river as a component of the National Wild and Scenic Rivers System.” Id. Despite the
absolute nature of this statutory command, the EA contains only a cursory analysis of the
effect the Warrior Project will have on the Sipsey River’s values.
The EA acknowledges that the operation of Smith Dam is affecting the lower reaches
of the designated river corridor. When Smith Lake is used for flood storage and its elevation
rises above normal elevation of 510 feet or less, slack water is created in the Sipsey Fork,
altering the river’s character. EA at 8; Forest Service, Preliminary Terms and Conditions,
supra, p. 24. This slack water remains until pool levels are returned to normal.
This slack water has a number of different effects on the Sipsey Fork’s values. First,
shoreline erosion caused by the fluctuating water levels affects the river’s scenery. Forest
Service, Preliminary Terms and Conditions, supra, p. 25. Second, the slack water alters the
habitat of flora and fauna found in the lower reaches of the Sipsey Fork. Id. As the EA
acknowledges, the slack water affects a number of the “threatened, endangered, and sensitive
species” that are found in the Sipsey Fork. EA at 8; see also id. at 6, 74 (identifying Sipsey
Fork as a critical habitat unit for freshwater mussels). Finally, use of motorized personal
watercraft increases when the slack water exists, dramatically altering the nature of the
recreation opportunities available. EA, p. 8; Forest Service, Preliminary Terms and
Conditions, supra, p 25.
VI.
THE RECOMMENDED NEW LICENSE WILL NOT PROTECT NAVIGATION UNDER
FPA SECTION 4(E) AND 10(A)(1).
10(A)(1).
Referring to the Army Corps’ “Reservoir Regulation Manual,” the EA states that
Smith Dam will release a minimum of 245 cfs for navigation, and specifically, to maintain
540 cfs of cumulative inflow to Bankhead Dam. EA, p. 13. This statement does not include
a footnote for the reference. Since EA Section 7 only identifies the “Black WarriorTombigbee River Basin Reservoir Regulation Manual,” the EA apparently is referring to the
manual of that title as published in 1975. EA, p. 150.
The EA does not consider any alternatives to the recommended minimum release.
It does not analyze the sufficiency of that release for navigation. It does not analyze changed
circumstances since the manual’s adoption in 1975. It does not forecast future changes,
including impacts of climate change to the pattern of flow in the Black Warrior watershed. It
does not report any consultation with the Army Corps in the course of this proceeding. It
does not report whether the Army Corps believes that the minimum release will be sufficient
over the term of the new license, and if so, the reasons.
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The EA does not provide the basis for compliance with FPA Section 4(e) (second
proviso), which states “[t]hat no license affected the navigable capacity for any navigable
waters of the United States shall be issued until the plans of the dam or other structures
affecting the navigation have been approved by the Chief of Engineers and the Secretary of
the Army.” Such approval, for the purpose of a new license, may not be grandfathered by
the original license: the statute does not limit the approval to the original license, and a new
license is a new decision, whether for the purpose of navigation or other purposes.
Similarly, the EA does not comply with FPA section 10(a)(1), which requires that a new
license “shall be…best adapted…for navigation.” Best adapted, by plain meaning, is
comparative: the recommended operation shall be superior to alternatives for the purpose of
navigation. That ultimate decision is impossible in the absence of consideration of such
alternatives.
VII.
THE RECOMMENDED NEW LICENSE WILL NOT PROTECT FISH PASSAGE UNDER
FPA SECTIONS
SECTIONS 18 AND 10(A)(1).
10(A)(1).
The FWS reserved its authority to prescribe fishways during the term of the new
license. See FWS, “Comments, Final Recommendations, Terms and Conditions, and
Prescriptions (May 3, 2007) (e-Library no. 20070503-5050), p. 9. OEP Staff recommend
such reservation, without more. This final action and recommendation do not comply with
the FWS and the Commission’s respective duties under FPA sections 18 and 10(a).
FPA section 18 provides that the Interior Department may prescribe fishways as
appropriate. FPA section 10(a)(1) provides that a new license “shall…be best adapted to a
comprehensive plan for … the adequate protection, mitigation, and enhancement of fish and
wildlife (including related spawning ground and habitat)….” These provisions establish duties
to consider and adopt appropriate fishways for mitigation of a project’s adverse impacts on
fish passage.
The project, which does not have a fish ladder, blocks upstream passage and has
contributed to the fragmentation of fish habitat in the Black Warrior watershed. FWS did not
submit a Record of Decision in support of its reservation of Section 18 authority and did not
state any reason for its decision not to require passage. In turn, the EA summarily accepts
the reservation: “We recognized that future fish passage needs and management objectives
cannot always be determined at the time of project licensing.” EA, p. 4. However, the EA
does not describe any effort by FWS or OEP Staff to determine such needs and objectives in
the course of this proceeding. The EA does not consider any alternatives for such passage.
The EA, like FWS’ Final Terms and Conditions, does not show the infeasibility of
prevention, mitigation, or compensation for the project’s continuing impacts of fish passage,
as required by NEPA.
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The EA states that “[w]e have determined that there is no immediate need for fish
passage at the Warrior Project because there are no anadromous or catadromous fish species
present at the project.” EA, p. 128. That is an incorrect legal standard. FPA section 18
nor 10(a)(1), on their faces, are limited to anadromous or catadromous fish. As a matter of
policy, FWS correctly states that these provisions apply to any fish species that moves
naturally between riverine habitats. See FWS, Final Terms and Conditions, supra, p. 9.
Indeed, the Commission has issued many licenses that require passage for the benefit of
diadromous fish.
The EA does not consider whether Bankhead Dam affects fish passage. That
apparently is because the dam is owned by the Army Corps. EA, p. 12. However, Alabama
Power owns not only the powerhouse, but also a non-overflow part of the dam between the
powerhouse and spillway which includes a trash rack. Id., p. 15. The EA does not consider
any alternatives for fish ladder or other form of passage at Bankhead using that part of the
structure owned by APC. It does not provide any reason for not requiring such passage.
VIII.
THE RECOMMENDED NEW LICENSE WILL NOT PROTECT THREATENED AND
ENDANGERED SPECIES UNDER THE ENDANGERED SPECIES ACT.
Thirteen animal species which are listed as threatened or endangered under the
Endangered Species Act, 16 U.S.C. §§ 1531 et seq., may exist within the project boundaries
or may otherwise be affected by its continuing operations. EA, pp. 6, 66. The FWS has
designated critical habitat for five mussel species partly within these boundaries. The Sispey
Fork Critical Habitat Unit 10 includes: the dark pigtoe, orange-nacre mucket, Alabama
moccasinshell, triangular kidneyshell, and ovate clubshell. Id., p. 74. The EA finds that the
Staff Alternative will not adversely affect these species or their habitats. See id., p. 76.
This finding is based on incorrect legal standards under NEPA and ESA whereby a
continuation of baseline conditions is deemed to mean that the new license will not have an
adverse impact.
A.
Treatment of Continuing Adverse Impacts under NEPA
The EA finds that the Staff Alternative will not change baseline conditions for the
listed species. For example, with respect to the mussels in the Sispey Fork Critical Habitat
Unit 10, the EA acknowledges hat reservoir fluctuation may affect the habitat, and
specifically the feeding and reproductive success of the mussels as well as listed fish. EA,
pp. 75-75. It then finds:
“The upstream mussel populations in habitat the critical habitat unit have persisted
since the Smith development was built but would not survive colonization attempts in
the transition zone. Any changes made by APC that do not extend the lake further
would not have an affect on the upstream populations. Therefore, major affects to
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existing populations are not expected, because APC does not propose to change lake
level operations from the existing scheme.”
Id. at 76.
The FONSI for listed species is defective in its legal standard for continuing and
cumulative impacts, as discussed in Section III above. The continuation of an existing
impact, without more, is an impact on these species. The EA does not find that the existing
impacts on listed species are insignificant – merely, that they will not change under the Staff
Alternative.
1.
Habitat Degradation and Fragmentation
Fragmentation
The EA acknowledges that this project and other large dams have degraded and
fragmented riverine habitat to an extent that has contributed to “drastic declines in the
abundance and diversity” of freshwater mussels and other species. EA, p. 74. However, the
EA does not consider or require any measure to mitigate the continuing blockage of passage
and other fragmentation caused y Smith Dam. Indeed, the EA acknowledges that the dam
will continue to cause habitat fragmentation for flattened musk turtles and mussels. See id.,
pp. 73, 74. Siltation associated with Smith Lake will continue to degrade mussel and turtle
habitat. Id. And fluctuations in the level of Smith Lake will directly affect the Sipsey Fork
Critical Habitat Unit and its resident mussels. Id., p. 75 (“The existing populations of
federally listed mussels in the Sipsey Fork Critical Habitat Unit could potentially be affected
by lake level fluctuations due to project operations at the Smith development”).
FWS has found that the habitat fragmentation for listed mussel species will continue
under a new license.
“[Bankhead National Forest] contains an extremely significant mussel
assemblage of at least 16 species, including two endangered and two threatened
species. Portions of the aquatic habitat on BNF have been designated as
critical habitat for listed mussels. These systems are permanently isolated
from the remainder of the Black Warrior Basin by the Lewis Smith Lake
development. Except for one population, all occurrences of the endemic dark
pigtoe (Pleurobema furvum) are found only on BNF land (Haag 2003).
Several other species that are endemic to the Mobile River Basin are found on
BNF. These include the largest known populations o the orange-nacre mucket
(Lampsilis peravatis) and the triangular kidneyshell (Ptychobranchus greeni)
(Haag 2004a, Haag 2004b).”
FWS, Terms and Conditions, supra, pp. 4-5 (emphasis added). FWS has also found that
“[s]horeline management could potentially affect the Sipsey Fork Critical Habitat unit and
associate mussel populations.” Id. at 6.
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The FONSI for the flattened musk turtle also does not square with the evidence in the
record. The flattened musk turtle occurs only within the Black Warrior River System, yet it
has been extirpated from all but 10-20% of that system; it is estimated that only 142 out of
947 stream miles support viable flattened musk turtle populations. FWS, Flattened Musk
Turtle Recovery Plan (1990), p. 1. There are numerous causes for this decline, some
traceable to this project and other dams. The turtle has specific habitat requirements, which
include free flowing creeks and small rivers, many of which have been lost to impoundments.
Id., pp. 3, 5. Further, siltation associated with impoundments also has a serious negative
effect on flattened musk turtles. Id., p. 4. Indeed, the Recovery Plan states that the most
significant factor affecting flattened musk is the degradation of its aquatic habitat. Id., p. 6.
Another factor associated with dams – habitat fragmentation and isolation – also has a serious
impact on flattened musk turtles. Id. The ongoing adverse effect of project operations on
the flattened musk turtle is best illustrated by the 2001 finding that flattened musk turtle
populations were declining in the Sipsey Fork. FWS, Candidate Listing and Priority
Assignment Form: Black Warrior Waterdog (2001), p. 5. As FWS concluded, this is likely
an indication of deteriorating habitat quality in the Sipsey Fork and shows that the flattened
musk turtle is likely to be adversely affected by Alabama Power’s proposed new license. Id.
The Black Warrior waterdog is another species subject to continuing adverse impacts
of the project. It occupies the same habitat as the flattened musk turtle. FWS, Candidate
Listing and Priority Assignment Form: Black Warrior Waterdog, supra, p. 2. The waterdog
has an extremely limited range; surveys of 120 sites since 1990 revealed only 10 sites at
which the waterdog was present. Id. Like the flattened musk turtle, the waterdog is affected
by isolation and habitat fragmentation. Id., p. 6. The biggest risks to the waterdog stem
from habitat degradation, including siltation and the loss of habitat to impoundments, which
are considered unsuitable as waterdog habitat. Id., p. 5. Indeed, only three waterdogs have
been reported to have been found in impoundments. Id. Since the main channel of the Black
Warrior River has been affected by impoundments (id. p. 6), the Staff Alternative will
continue these adverse impacts on the waterdog. Id.
2.
Dissolved Oxygen
Under the original license, the project frequently does not attain the DO standard of 4
mg/L during periods of generation. FWS has found that even achieving that standard during
periods of generation may not be adequate to protect listed mussels downstream of Smith
Dam.
“We are concerned that APC dismissed the proposed “voluntary 5 mg/L DO
(during generation) alternative” in the APEA (Section 4.4.2). Some of APC’s
supporting analysis raises questions and many of the references were not
accurately represented or were out of context. . . . There are also partial
explanations and incomplete references provided concerning
macroinvertebrates. Paragraph 5 [of APEA Section 4.4.2], “many species
require a minimum DO of about 4 mg/L to survive; but DO levels less than 3
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mg/L are adequate.” Alabaster and Floyd (1980) demonstrated that “the
normal development of several lotic benthic macroinvertebrates is no longer
possible at levels below 5 mg/L. Paragraph 6 references a personal
communication with Saylor saying “higher densities of invertebrates occur
where DO is as low as 4 m/L. . . .” There was no mention of the relationship
between invertebrate density and DO. For invertebrates, primarily
chironomids (which are extremely tolerant of low DO levels), an increase in
density was offset by a decrease in the diversity of organisms. One of the
primary objectives in the establishment of state water quality standards,
including higher DO levels is to sustain a healthy aquatic system, and this can
only be accomplished by maintaining a diversity of organisms. In addition, a
discussion is necessary to describe the effects of low DO on mussels and
snails. Although scientific the literature may be sparse in this area, Johnson
and others (2001) report that mortality in several species of mussels increased
when DO levels fell below 5 mg/L following drought conditions in southwest
Georgia.
FWS, Final Terms and Conditions, supra, p. 7.
The EA describes the provision of the water quality certification that the project,
during periods of generation, will attain the 4 mg/L DO standard. That will improve
baseline conditions. However, the EA does not respond to expert evidence submitted by
FWS and others that such attainment will probably not contribute to the recovery of the
affected listed species downstream of Smith Dam.4 See Alabama Rivers Alliance and
American Rivers, “Comments on Biological Assessment for Threatened and Endangered
Species for the Warrior Hydroelectric Project” (Dec. 17, 2007) (e-Library No. 200712175110), pp. 12-15. Further, the EA does not address impacts on listed species downstream of
Smith Dam during non-generation.
B.
Treatment of Continuing Adverse Impacts under ESA
The EA finds that the Staff Alternative will not adversely affect listed species. EA, p.
6. This finding means that OEP Staff will not request formal consultation with the FWS to
4
Lynn Sisk (Chief, Water Quality Branch, Water Quality Division, ADEM) testified that ADEM did not
analyze impacts on mussels or other listed species in the course of issuing the water quality certifications for
APC’s Coosa and Black Warrior Projects. See Sisk Deposition, supra, p. 124. Indeed, the relevant water
quality standard, which covers all discharges from “hydroelectric generation impoundments,” does not purport
to be based on scientific data on the needs of aquatic life. See, e.g., Ala. Adm. Code §§ 335-6-10.09(2)(e)(4),
(3)(c)(4), (5)(e)(4). The Alabama Administrative Code explicitly recognizes that DO levels of 5 mg/L or higher
are necessary “[f]or a diversified warm water biota.” Ala. Adm. Code §§ 335-6-10.09(2)(e)(4), (3)(c)(4),
(5)(e)(4). Thus, waters classified as “Fish and Wildlife” waters must have at least a 5.0 mg/L DO
concentration. Ala. Adm. Code §§ 335-6-10.09(25)(e)(4).
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develop a Biological Opinion for protection of the listed species.5 The finding applies
incorrect legal standards under ESA to dismiss the project’s continuing adverse impacts on
listed species.
1.
Continuation of Baseline Conditions
The ESA is “an explicit congressional decision to require agencies to afford first
priority to the declared national policy of saving endangered species . . . [and] reveals a
conscious decision by Congress to give endangered species priority over the ‘primary
missions’ of federal agencies.” TVA v. Hill, 437 U.S. 153, 185 (1978); see also Klamath
Water Users Protective Association v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 1999); 18
C.F.R. § 380.13. Under the ESA, a new license must “insure” that the Project is not likely
to (1) “jeopardize the continued existence of any endangered species or threatened species”
or (2) “result in the destruction or adverse modification of [critical] habitat of such species.”
16 U.S.C. § 1536(a)(2). Indeed, it must contribute to the recovery of affected species. The
“ESA was enacted not merely to forestall the extinction of the species (i.e., promote a
species survival), but to allow a species to recover to the point where it may be delisted.”
Gifford Pinchot Task Force v. FWS, 378 F.3d 1059, 1070 (9th Cir. 2004).
The EA states that it uses “existing conditions” as “the baseline environmental
condition for comparison with other alternatives.” EA at 11. It limits analysis to the
immediate effects of anticipated operation of the Warrior Project. Under the ESA, however,
baseline is defined as: “the past and present impacts of all Federal, State, or private actions
and other human activities in the action area, the anticipated impacts of all proposed Federal
projects in the action area that have already undergone formal or early section 7 consultation,
and the impact of State or private actions which are contemporaneous with the consultation in
process.” 50 C.F.R. § 402.02. Thus, an ESA jeopardy analysis, however, cannot be
conducted “in a vacuum.” See National Wildlife Federation v. National Marine Fisheries
Service, 481 F.3d 1224, 1235 (9th Cir. 2007). Rather, the jeopardy analysis must consider
the combined effect that all human activities will have on a species’ chances for survival and
recovery. As the Ninth Circuit recently held: “[A]n agency may not take action that will tip
5
The ESA establishes procedural requirements for protecting listed species. Resources Limited, Inc. v.
Robertson, 35 F.3d 1300, 1304-05 (9th Cir. 1994); see also Center for Biological Diversity v. Rumsfeld, 198
F. Supp. 2d 1139, 1145 (D. Ariz. 2002). Procedurally, ESA requires FERC to consult with FWS to determine
whether the Project is likely to jeopardize the species or result in the destruction or adverse modification of
critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01(b). FWS must then issue a biological opinion that
analyzes whether the Project will adversely affect either the survival or recovery of the listed species. See
Gifford Pinchot Task Force v. FWS,, 378 F.3d 1059, 1070 (9th Cir. 2004) (emphasis added). The “ESA was
enacted not merely to forestall the extinction of the species (i.e., promote a species survival), but to allow a
species to recover to the point where it may be delisted.” Id. If the agency concludes that the Project will
cause such impacts, it may suggest reasonable and prudent alternatives that would not violate the ESA. 16
U.S.C. § 1536(b)(3)(A). And if the agency determines that the incidental take of the listed species will not
jeopardize its continued existence or recovery, it may issue an incidental take statement authorizing the legal
take of that species. 16 U.S.C. § 1536(b)(4); Arizona Cattle Growers v. FWS, 273 F.3d 1229, 1239 (9th Cir.
2001).
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a species from a state of precarious survival into a state of likely extinction. Likewise, even
where baseline conditions already jeopardize a species, an agency may not take action that
deepens the jeopardy by causing additional harm.” Id. at 1236.
The consequences of this improper baseline are illustrated by the 2001 finding that
flattened musk turtle populations were declining in the Sipsey Fork. FWS, Candidate Listing
and Priority Assignment Form: Black Warrior Waterdog, supra, p. 5. As FWS concluded,
this is indicates deteriorating habitat quality in the Sipsey Fork. Id. The EA does not
analyze how the project affects this deteriorating habitat quality. Since the Sipsey Fork is the
best or only remaining refuge for many listed species in the entire Black Warrior River, any
such deterioration, continuing from the original license, is an adverse impact.
2.
Improper Omission of Recovery Standard
The EA relies on and repeats the conclusions of the Biological Assessment (BA)
(November 2006) submitted by APC. The BA finds that the Applicant’s Proposal will
improve existing conditions for listed species in the project area. However, the BA des not
address the ESA’s requirement that a federal action, in the course of avoiding take of listed
species, must also contribute to the recovery of such listed species.
The Ninth Circuit recently rejected a biological opinion by the National Marine
Fisheries Service (NMFS) in similar circumstances. “Its jeopardy analysis did not adequately
consider the proposed action’s impacts on the listed species’ chances of recovery.” National
Wildlife Federation v. NMFS, 481 F.3d 1224, 1236 (9th Cir. 2007). The Court rejected
NMFS’s view that the ESA only barred actions that would affect a species’ chances of
survival. Id. at 1236-37. Rather, the court held that the proposed action’s impact on
recovery was an independent limitation that had to be separately considered by the agency.
Id. (“The only reasonable interpretation of the jeopardy regulation requires NMFS to
consider recovery impacts as well as survival.”); see also Gifford Pinchot, 378 F.3d 1059,
1069 (9th Cir. 2004) (“The agency’s controlling regulation on critical habitat thus offends the
ESA because the ESA was enacted not merely to forestall the extinction of species (i.e.,
promote a species survival), but to allow a species to recover to the point where it may be
delisted.”); Sierra Club v. FWS., 245 F.3d 434 (5th Cir. 2001); New Mexico Cattle
Growers Association v. FWS, 248 F.3d 1277, 1283 (10th Cir. 2001).
The BA uses a marginal benefit analysis which is inconsistent with this recovery
standard: how will the Staff Alternative change the baseline? It does not show that listed
species will survive and recover: the affected waters may still be inhospitable to listed
species, though less so than before. This is a “slow slide into oblivion,” which is “one of
the very ills the ESA seeks to prevent.” See National Wildlife Federation, 481 F.3d at 1235
(“Under this approach, a listed species could be gradually destroyed, so long as each step on
the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of
the very ills the ESA seeks to prevent.”).
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Federal courts have repeatedly noted the inadequacy of the “marginal benefit”
approach utilized by APC. In National Wildlife Federation, for example, the Ninth Circuit
considered a biological opinion that conducted precisely the same “marginal benefit” analysis
as Alabama Power’s BA. See id., 481 F.3d at 1235 (“The 2004 BiOp initially evaluated the
effects of the proposed action as compared to the reference operation [of Columbia River
dams] ….”). The court held that this approach was inadequate; the biological opinion should
have evaluated “whether the action effects, when added to the underlying baseline conditions,
would tip the species into jeopardy.” Id. In Aluminum Co. of America v. Bonneville Power
Administration, 175 F.3d 1156 (9th Cir. 1999), the Ninth Circuit put the same conclusion in
another way:
“We agree with NMFS that the regulatory definition of jeopardy, i.e., an appreciable
reduction in the likelihood of both survival and recovery, 50 C.F.R. § 402.02, does
not mean that an action agency can “stay the course” just because doing so has been
shown slightly less harmful to the listed species than previous operations. Here, the
species already stands on the brink of extinction, and the incremental improvements
pale in comparison to the requirements for survival and recovery.”
Id. at 1162 n.6.
Other courts have also recognized that dam operators can “cherry pick” favorable
results by utilizing a marginal benefit analysis. For example, in In re Operation of Missouri
River System Litigation, 421 F.3d 618 (8th Cir. 2005), the Eighth Circuit rejected the
Nebraska Public Power District’s claim that the effects of dam operation on endangered
species should be measured relative to existing license conditions, explicitly mentioning this
concern: “Because continued operation under the 1979 Master Manual would cause the
protected species’ chances of recovery to deteriorate, its inclusion in the baseline would tend
to eliminate a finding of jeopardy for any proposed action.” Id. at 632.
3.
Formal Consultation with FWS
ESA section 7(a)(2) provides that an action agency, which is FERC in a relicensing
proceeding:
“shall, in consultation with and with the assistance of the Secretary, insure
that any action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification of habitat
of such species. . . determined . . . to be critical . . . .
16 U.S.C. § 1536(a)(2).
In this proceeding, the Commission has an “affirmative duty” to ensure that its
proposed action does not jeopardize a listed species. Id.; see also NRDC v. Houston, 146
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F.3d 1118, 1127 (9th Cir. 1998). “Substantial compliance” with the consultation procedure
is essential to effect the statutory purpose of conservation. Sierra Club v. Marsh, 816 F.2d
1376, 1384 (9th Cir. 1987); see also Pacific Rivers v. Thomas, 30 F.3d 1050, 1056-57 (9th
Cir. 1994); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1230 (9th Cir. 1988); Thomas
v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985).
“Congress has assigned to the agencies and to the Fish & Wildlife Service the
responsibility for evaluation of the impact of agency actions on endangered
species, and has prescribed procedures for such evaluation. Only by following
the procedures can proper evaluations be made. It is not responsibility of the
plaintiffs to prove, nor the function of the courts to judge, the effect of a
proposed action on an endangered species when proper procedures have not
been followed.”
Thomas, 753 F.2d at 765.
The threshold for formal consultation is set lower than NEPA threshold of
significance -- “sufficiently low to allow Federal agencies to satisfy their duty to ‘insure’
under section 7(a)(2).” FWS, “Interagency Cooperation--Endangered Species Act of 1973,
as Amended; Final Rule,” 51 Fed. Reg. 19,926 (June 3, 1986) (emphasis added). Thus,
“[a]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character,”
triggers formal consultation. Id. Formal consultation is required if evidence exists that a
listed species “may be present in the area of the proposed action.” City of Sausalito v.
O’Neill, 386 F.3d 1186, 1215 (9th Cir. 2004) (emphasis added); Pacific Rivers, 30 F.3d at
1054. As shown in the EA itself, the Staff Alternative plainly will have continuing and other
adverse affects on listed species and designated critical habitat.
The improper treatment of continuing adverse impacts is a fatal flaw in OEP Staff’s
“Request for Concurrence with Endangered Species Determination” (March 11, 2008) (eLibrary no. 20080311-3026). The request compounds the error by limiting the geographic
scope to the project boundaries. “In summary, of the 14 species discussed in the EA only
the flattened musk turtle is currently found within the project area.” Id. For purposes of
ESA consultation, the geographic scope, or “action area,” includes “all areas directly or
indirectly by the federal action and not merely the immediate area involved in the action.”
50 C.F.R. § 402.02. Further, under ESA section 7, formal consultation is required for
actions which may adversely affect critical habitat. 16 U.S.C. § 1536(a)(2). Portions of the
Sipsey Fork Critical Habitat Unit occur within the project boundary for the Smith
Development, near the upstream limits of the impoundment, and are affected by operation of
Smith Lake. See EA, p. 75.
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IX.
THE RECOMMENDED NEW LICENSE WILL NOT BE BEST ADAPTED
ADAPTED TO A
COMPREHENSIVE PLAN OF DEVELOPMENT OF THE BLACK WARRIOR
WATERSHED, AS REQUIRED BY FPA SECTION 10(A)(1)10(A)(1)-(2).
(2).
FPA section 10(a)(1) requires that each license is “best adapted to a comprehensive
plan for improving or developing a waterway...” for the beneficial uses specifically listed in
the statute, including power, water supply, recreation, and the “protection, mitigation, and
enhancement of fish and wildlife.” Section 10(a)(1) requires such adaptation to “...all
beneficial uses” (Scenic Hudson, 354 F.2d at 612) (emphasis added)), since those uses
“while unregulated, might be contradictory rather than harmonious” (FPC v. Union Electric
Company, 381 U.S. 90, 98 (1965)). The EA does not assure that the recommended new
license will meet this ultimate standard.
A.
Improper Balancing under FPA section 10(a)(1)
The EA does not comply with FPA section 10(a)(1) in two fundamental respects.
First, it only considered one action alternative to Alabama Power’s application: the Staff
Alternative. It does not state any other alternative in Section 2, “Proposed Action and
Alternatives.” It does not include any alternative in the “Developmental Analysis” of Section
4 or the “Comprehensive Development Analysis” in Section 5. This violates the
Commission’s duty under FPA section 10(a)(1) to select an alternative after due diligence
including systematic comparison with other alternatives for the comprehensive plan of
development.
Second, the Developmental Analysis in EA Section 4 only considers the economic
benefits of power generation at the project. EA, p. 114. It omits the economic benefits and
costs associated with all other beneficial uses affected by the project, including the value of
lakeside properties and recreation as quantified by SLISA. Further, the Comprehensive Plan
analysis does not state any standard for its rolling-up of the impacts (including some not
capable of economic quantification) of Staff Alternative versus alternatives. Thus, it finds
that “The Lake Association’s alternative would have APC alter its release of water from
Smith Dam negatively affecting downstream developmental resources, such as navigation and
water supply.” EA, p. 132. The EA does not quantify such impacts on downstream
resources, whether navigation or water supply; does not compare such impacts against the
benefits associated with a more stable lake level. Similarly, it does not acknowledge that the
Staff Alternative will adversely affect the use and enjoyment of lakeside properties and
associated recreation, and it does not include such adverse impacts in its Developmental
Analysis. This approach is inconsistent with “…the duty of the [Commission] properly to
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weigh each factor” relevant to its Section 10(a)(1) balancing. Scenic Hudson, 354 F.2d at
614 (emphasis added).
“Where the Commission balances competing interests in arriving at its decision, it
must explain on the record the policies which guide it. Only if the Commission
observes these minimum standards can we be confident that missing facts, gross flaws
in agency reasoning, and statutorily irrelevant or prohibited policy judgments will come
to a reviewing court's attention. Moreover, by requiring that the Commission fully
articulate the basis for its decision, we assure the Commission, itself, the first
opportunity to correct any defects which may emerge from such disclosure.”
Columbia Gas Transmission Corporation v. FERC, 628 F.2d 578, 593 (D.C. Cir. 1979).
Such transparency is a fundamental principle of good government under the APA and
also is necessary for accountability under FPA section 10(a)(1).
“The grant of authority to the Commission to alienate federal water resources does
not, of course, turn simply on whether the project will be beneficial to the licensee.
Nor is the test solely whether the region will be able to use the additional power. The
test is whether the project will be in the public interest. And that determination can
be made only after an exploration of all issues relevant to the ‘public interest,’
including future power demand and supply, alternate sources of power, the public
interest in preserving reaches of wild rivers and wilderness areas, the preservation of
anadromous fish for commercial and recreational purposes, and the protection of
wildlife. [¶] The need to destroy the river as a waterway, the desirability of its
demise, the choices available to satisfy future demands for energy – these are all
relevant to a decision under [FPA section 10] but they were largely untouched by the
Commission. [¶] On our remand there should be an exploration of these neglected
phases of the cases.”
Udall v. FPC, 387 U.S. 428, 450 (1967) (emphasis added).
B.
NonNon-Transparent Treatment of Comprehensive
Comprehensive Plans.
Plans.
The EA reports that OEP staff reviewed 26 comprehensive plans that address
resources in Alabama. “We did not identify any inconsistencies.” EA, p. 144. The EA
does not describe the specific requirements of any of these plans, including the Bankhead
National Forest Plan, or state any reason why the recommended new license is consistent
with such requirements. The EA, as a basis for the licensing decision, violates the
Commission’s plain duty under FPA section 10(a)(2).
Under FPA section 10(a)(2), the Commission shall consider “the extent to which a project
is consistent with a comprehensive plan . . .” adopted by another federal or state agency for
improving or developing the waterway. 16 U.S.C. § 803(a)(2). On its face, Section 10(a)(2)
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requires consideration of other agencies’ plans “in order to ensure” that the project is best
adapted to the purposes of the FPA, as required by Section 10(a)(1). (Emphasis added.)
Such consideration is not a formality – rather, it is an essential element of the Section
10(a)(1) judgment.
Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549 (2nd Cir. 1992) illustrates
this duty. FERC licensed a project to develop a waterfall in a manner inconsistent with a
State plan that barred development of that waterfall for protection of its scenic beauty. The
court found that the license’s requirement for a continuous flow release over the waterfall
“would minimize conflict with the [plan] and appropriately balance power needs and aesthetic
values.” Id. at 1554.
. . . The Commission is required to give due consideration to all recommendations
from relevant agencies, to reconcile inconsistencies between those agencies’
recommendations and the Commission’s plans to the extent possible, and to explain its
reasons for departing from the agencies’ recommendations when it concludes it must
do so in order to fulfill its statutory mandate.
Id.
X.
REQUEST FOR RELIEF
SLISA respectfully requests that OEP Staff provide the following relief:
1. Grant and respond to our pending “Freedom of Information Act Request” (March
20, 2008) (e-Library no. 20080321-5012);
2. Respond specifically to these comments in a form which includes citations to the
EA (if OEP Staff believe that the EA includes analysis which our comments claim
is omitted) or applicable legal authority;
3. Convene a Technical Conference pursuant to 18 C.F.R. Part 601, to address the
following issues which may best be resolved by direct communications between of
OEP Staff, Alabama Power, and SLISA’s experts (Brian McCrodden, Marvin
Feldman, and others), including: (A) water balance modeling (see Section III.B.4),
(B) the comparative economic impacts of the Staff Alternative and SLISA’s lake
level proposal, and (C) navigation and water quality requirements downstream of
Smith Dam.
4. Prepare a supplemental EA or Environmental Impact Statement in order to: (A)
state and consider alternatives to the Staff Alternative and Applicant’s Proposal for
each project purpose; and (B) resolve disputed issues of fact regarding project
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impacts (Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 86465 (9th Cir. 2004); Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149-50
(9th Cir. 1998); Foundation for North American Wild Sheep v. USDA, 681 F.2d
1172, 1178 (9th Cir. 1982)).
XI.
CONCLUSION
SLISA respectfully requests that OEP Staff consider these comments, prepare a
supplement to the EA or an Environmental Impact Statement, and provide other relief as
stated above.
Dated: April 7, 2008
Respectfully submitted,
______________________________
Julie Gantenbein
NATURAL HERITAGE INSTITUTE
1423 Marshall Street
Houston, TX 77006
(707) 931-0034
(866) 779-4316 (efax)
[email protected]
Richard Roos-Collins
John Tighe
100 Pine Street, Suite 1550
San Francisco, CA 94111
(415) 693-3000 ext. 103
[email protected]
Attorneys for SMITH LAKE IMPROVEMENT
STAKEHOLDERS ASSOCIATION
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DECLARATION OF SERVICE
Alabama
Alabama Power Company, Black Warrior River Project (P. no. 21652165-022)
022)
I, C. Russell Hilkene, declare that I today served the attached “Smith Lake
Improvement Stakeholders Association’s Comments On Environmental Assessment,” by
electronic mail, or by first-class mail if no e-mail address is provided, to each person on the
official service list compiled by the Secretary in this proceeding.
By:
________________________________
C. Russell Hilkene
100 Pine St., Ste. 1550
San Francisco, CA 94111
(415) 693-3000 ext. 118
[email protected]
FOIA
SLISA Request for Additional Time and FOI
A Request
2165
65--022
022--AL)
Alabama Power’s Black Warrior River Project ((P
P-21
65
Exhibit List
1. Declaration of Jared Key
2. Declaration of Marvin Feldman, Ph.D.
3. Declaration of Brian J. McCrodden
4. Letter from Willard L. Bowers dated September 27, 2007
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Exhibit 1
DECLARATION OF JARED KEY
I, Jared Key, declare the following:
1.
I submit this declaration on behalf of the Smith Lake Improvement
Stakeholders Association (SLISA). The facts stated herein are personally known to me.
2.
I know Smith Lake and the surrounding area very well. I was raised in Arley,
Alabama, and grew up on Smith Lake. In 1987 I enlisted in the U.S. Navy and served for
eight years. Shortly after completion of my service, I settled back in Alabama. I returned to
Arley, and have been a resident for 12 years.
3.
I am the President of SLISA, a non-profit organization with over 3000
members. SLISA was formed primarily to respond to the relicensing proceeding for
Alabama Power Company’s Warrior River Project. Our Mission is, “To Forge Partnerships
among Stakeholders, Home Owners and Professionals which will foster better management
practices that will not only protect the quality of Smith Lake, but also protect the rights of
stakeholders and the property rights of owners.”
4.
As a President of SLISA I have become very involved in the relicensing
proceeding and the controversy regarding lake levels. I have met with Alabama Power staff
to discuss Alabama Power’s operations and their regulation of Smith Lake. I have flown to
Washington, D.C. and met with Senators Sessions, Shelby and Congressman Aderholt. At
the State level, I have consulted with many Congressman and Senators including, but not
limited to, Beason, Bishop, Bedford and Little. I have traveled to Montgomery, Alabama and
met with the Governor’s Staff and the Public Service Commission. I have raised SLISA’s
concerns and advocated its position in the relicensing proceeding to many County
Commissions, City Councils, Industrial Boards, School Boards and thousands of
Stakeholders. I have searched FERC’s Library extensively, and reviewed many internet
databases. I have consulted with experts in the filed of economics, hydrology and
environmental science. All of this I did to ensure that SLISA’s position will improve the
lake as a public resource. I pored over the FERC record for this proceeding, including the
Environmental Assessment (EA).
5.
Despite my research and record review, I still do not understand how Alabama
Power administers shoreline permitting guidelines and its lake rule curve. This confusion
was echoed by FERC staff: “There appears to be some level of uncertainty regarding how
the licensee’s shoreline permitting guidelines and its lake rule curve were established and are
implemented. While the licensee has addressed the site-specific concerns, we would
encourage a more pro-active approach in communicating with members of the public on how
it administers its reservoir and shoreline management programs.” Email from Isis Johnson,
Declaration
Declaration of Jared Key
SLISA’s Comments
Comments on Environmental Assessment
Alabama Power,
Power, Black Warrior River Project (P.
(P. 21652165-022)
-1-
Environmental Biologist, FERC (Oct. 10, 2007) (Ex. 1.1). Despite this recommendation
from FERC staff, Alabama Power did not provide SLISA with additional information
regarding these aspects of its operations. Given the uncertainty, I believe modeling
performed to ensure the best use of all stakeholders and measures to ensure compliance with
the rule curve. However, based on the data that is presently available, it is my opinion that
all uses of Smith Lake and the Warrior River will benefit from a rule curve that ensures less
lake level fluctuations.
6.
In addition to my work for SLISA, I routinely use Smith Lake for recreation,
including boating, fishing and scuba diving with my family and friends. Smith Lake is great
recreational resource However, based on my firsthand observations, I believe the lake level
fluctuations under the current FERC license adversely affect the use of private and public
boat landings, boater safety, contribute to the endangerment of aquatic species (i.e., mussels,
flattened musk turtle), and have a significant detriment to property and general use of the
lake. When lake levels drop below 502 msl, the quality of the recreational and aesthetic
experience of being on the lake diminishes greatly. That’s why I am confused and frustrated
that the lake drawdown begins mid-summer. I feel like we forfeit the recreational and
aesthetic benefits of the lake during August and September.
7.
During the holiday weekend of Labor Day 2007, which is the last big summer
weekend on Smith Lake, the low water level greatly affected recreation on the lake. I took
several photographs of conditions on the lake during this weekend. My understanding is that
the lake was at 495 mean sea level (msl). The photographs show that many of the boat
launches are completely out of the water at the 495 msl. See Ex. 1.2, Photo E, F. By my
estimate, water levels would need to be at 500 msl for these launches to be functional.
8.
Low lake levels affect use of the Forest Service’s recreation areas. The
visitation at the Forest Service’s Clear Creek Campground and Park was so low Labor Day
weekend that the park elected to re-stripe the parking lot. The swimming areas of the Forest
Service’s Corinth, Houston and Clear Creek areas were unusable. The actual swimming
areas to the buoy markers were nothing but dirt and/or grass. See id., Photos D, E, F, G,
H.
9.
Low lake levels affect boat launches. Most public and private boat launches
were completely out of the water by Labor Day 2007 rendering them unusable. So many
boat launches were in this condition that many watercraft owners found themselves unable to
remove their boats and seadoos. Residents of Smith Lake that are not full time residents
often find their boat docks, swim piers and watercrafts damaged due to the water level
fluctuations. The water recedes so rapidly, that if left unattended for weeks, boat docks and
piers can experience severe damages and many walkways end up teetering on rocks. See id.,
Photos M, N, O, P.
Declaration
SLISA’s Comments
Alabama Power,
(P. 21652165-022)
-2-
10.
The lake drawdown also affects businesses on Smith Lake. The Lakeshore Inn
and Marina, which was booked for the Labor Day Weekend, had to cancel all reservations
due to the lack of water rendering the Marina inoperable. The gas tanks that boats would
normally use to put fuel in their boats are sitting in dirt and grass. See id., Photos Q, R.
11.
Low lake levels hurt aquatic species. While we were boating on the holiday
weekend, we came across a massive mussel kill which appeared to be caused by rapid water
level reductions. See id., Photos A, B, C.
12.
Low lake levels can affect infrastructure for water suppl. The Arley Water
Works pumping station had to extend their floating dock to raise there pumping station so
they could continue to supply drinking water to thousands of customers due to the low water
levels. See id., Photo I.
13.
Low lake levels can create dangers for boaters. When Smith Lake is at or
below 500 msl there are several, unmarked sandbars and submerged hazards. We saw
several such hazards Labor Day weekend. See id., Photos J, K.
14.
I understand that adverse impacts of lake drawdown on Labor Day weekend
last year were aggravated by the drought conditions Alabama suffered. However, I have
observed similar impacts during non-drought years. Further, problems like erosion are the
result of years of irregular, lake level fluctuations. The fact that many lakeside property
owners have lost several feet of their yards over the years shows the persistence of the
problem. See id., Photo L.
I declare under penalty of perjury of the laws of the State of Alabama and the United
States of America that the foregoing is true and correct and that this declaration was executed
the 7th day of April, 2008 in Arley, Alabama.
_________________________
Jared Key
President, SLISA
Declaration
SLISA’s Comments
Alabama Power,
(P. 21652165-022)
-3-
Exhibit 1.1
Page 1 of 2
doxieland.com
From:
To:
Sent:
Attach:
Subject:
"Whiteman" <[email protected]>
"Jared Key" <[email protected]>
Friday, March 28, 2008 3:32 PM
Drought Conditions.pdf
Fw: Warrior River Project (P-2165) - Smith Lake concerns
----- Original Message ----From: Isis Johnson
To: [email protected] ; [email protected] ; [email protected] ; [email protected] ;
[email protected] ; [email protected] ; [email protected] ;
[email protected]. ; [email protected]
Cc: [email protected] ; Stuart Fischer ; Nicole Brisker ; Hossein Ildari ; Steven Naugle ; Robert Fletcher
Sent: Wednesday, October 10, 2007 12:21 PM
Subject: Warrior River Project (P-2165) - Smith Lake concerns
The Commission has reviewed a number of stakeholder concerns received through its hotline between August 31 and
September 12, 2007, regarding lake levels and permitting guidelines at the Warrior River Project (FERC No. 2165). We have
carefully reviewed each of these concerns and the licensee responses.
Our review of lake-level fluctuations finds that Alabama Power Company (APC), the project licensee, follows a rule curve for
Smith Lake, ranging between elevations 488 and 510 feet mean sea level (MSL). Operation of the project is coordinated with
the Corps of Engineers for downstream navigational purposes, and is based on the Corps’ reservoir regulation manual.
During periods of extreme drought the Corps’ District Engineer specifies release flows. Due to currently on-going extreme
drought condition in the southeast (see attached map), the project reservoir has been below its average water surface
elevation since February 2007, and is currently about four feet below its average pool level for this time of year.
The licensee’s permitting program guidelines allow for a certain degree of flexibility in granting shoreline use permits, based
on site-specific circumstances. Commission licensees may exercise some latitude in applying their general permitting
guidelines to specific shoreline development proposals. The licensee is also within its rights to negotiate the removal of
grandfathered facilities through the use of incentives. Based on all available information, we conclude that the licensee is in
compliance with its license in managing the project reservoir and shoreline.
There appears to be some level of uncertainty regarding how the licensee’s shoreline permitting guidelines and its lake rule
curve were established and are implemented. While the licensee has addressed the site-specific concerns, we would
encourage a more pro-active approach in communicating with members of the public on how it administers its reservoir and
shoreline management programs. Also, any individual who believes the licensee has unreasonably denied them a permit
may want to consider resubmitting their requests to APC for further review, with proper documentation (e.g. permit requests
for rip-rap/seawalls between elevations 510 and 522 feet MSL).
The Warrior River Project is presently under review for relicensing. The Commission’s Division of Hydropower Licensing is
aware of lake-level and shoreline-permitting issues at Smith Lake, and will carefully consider them during the project relicensing process.
Isis Johnson
<<Drought Conditions.pdf>>
http://www.alabamapower.com/lakelevel/detailspage.asp?Plant=Smith
___________________________________
4/4/2008
Page 2 of 2
Isis Johnson
Environmental Biologist
Federal Energy Regulatory Commission
Washington, DC 20426
202-502-6346 (tel)
202-219-2732 (fax)
___________________________________
Please consider the environment before printing this e-mail 4/4/2008
Exhibit. 1.2
Exhibit 2
DECLARATION OF MARVIN FELDMAN
I, Marvin Feldman, declare the following:
I submit this declaration on behalf of the Smith Lake Improvement Stakeholders
Association (SLISA). This declaration follows the report “Economic Analysis of Non-Power
Values of Smith Lake,” (Feldman (2008)) which I prepared on behalf of SLISA and filed with
the Federal Energy Regulatory Commission (FERC) on February 11, 2008 (see e-Library no.
20080211-5114), as well as comments I submitted on SLISA’s behalf on November 5, 2007 (eLibrary no. 20071105-5037), November 20, 2007 (e-Library no. 20071120-5014), and March 7,
2008 (e-Library no. 20080307-5076).
Background and Qualifications
For the past 20 years I have served as the principal of Resource Decisions, which
specializes in advising clients on energy and environmental economics policies. My public
sector clients have included the California Energy Commission, the California Department of
Conservation, Division of Oil, Gas, and Geothermal Resources, the U.S. Army Corps of
Engineers, the California Environmental Protection Agency, and the U.S. Agency for
International Development. My private sector clients have included Exxon/ Mobil,
ChevronTexaco, ConocoPhillips, Marathon Oil, Pacific Gas and Electric Company, Idaho
Power, and Taiwan Power Company. Resource Decisions has teamed with several consulting
firms including URS, Itron, SAIC, HDR, and Northern Economics.
I hold a B.S. in Geology from the City University of New York, M.S. degrees in Water
Resource Management and Agricultural Economics from the University of Wisconsin and a
doctorate in Natural Resource Economics, also from the University of Wisconsin.
I have been hired as an economic expert in several other unrelated FERC relicensing
proceedings. In California I was the principal economic expert for Pacific Gas and Electric
Company on FERC relicensing proceedings on the Upper North Fork of the Feather River, the
North Fork of the Feather River the Middle fork of the Stanislaus River, and (for Southern
California Edison) the Kern River. For Idaho Power I was hired as the economic expert for the
FERC license renewal of the Shoshone Falls hydroelectric project on the Middle Fork of the
Snake River. My curriculum vitae are provided at Exhibit 2.1.
In preparing this declaration I reviewed Alabama Power Company’s New License
Application (NLA), including the Applicant Prepared Environmental Assessment (APEA), and
the Environmental Assessment (EA) prepared by FERC. I examined peer-reviewed and public
agency studies specific to recreational values of Smith Lake. I developed a survey instrument
and analyzed a survey of Smith Lake property owners. I have also visited the project area and
toured the Smith Lake project area by helicopter.
Declaration of Marvin Feldman
Alabama Power, Black Warrior River Project (P. 2165-022)
-1-
Introductory Comments on the Economic Value Analysis in the EA
1.
It is my opinion that the EA does not give equal consideration to power and nonpower values, as required by Federal Power Act section 4(e), 16 U.S.C. § 797(e). Specifically, it
provides disparate economic analysis of power and non-power values.
2.
In contrast to accepted economic practice of cost-benefit analysis, the EA
quantifies power benefits but fails to quantify non-power benefits that are readily quantifiable.
In the EA, power values and related power generation costs are given detailed, quantitative
consideration. Non-power values, notably recreation values are noted but not quantified.
Similarly, water supply, water quality and navigation benefits are noted but not quantified.
According to the EA,
“Our analysis shows that the annual net benefit would be $42,821,890 for the proposed
action; $42,967,287 for the staff alternative; and $44,135,190 for the no-action
alternative.
On the basis of our independent analysis, we conclude that issuing a new license for the
project, with the environmental measures that we recommend, would not be a major
federal action significantly affecting the quality of the human environment.”
EA, p. xi. The annual net benefit reported is simply the difference between power values and
power costs; no non-power values are included in the “annual net benefit.”
3.
Based on my review, the NLA, the APEA, and the EA lack sufficient
documentation of assumptions or sufficient data to permit independent verification of the
conclusions reached in the EA. The EA omits data regarding generation operating procedures,
hydrology and downstream beneficial uses (such as the cooling of Gorgas power plant)
necessary to allow SLISA and other stakeholders to compute the complete benefits of
alternatives. In this declaration and the report, Feldman (2008), filed previously, I attempt to
make reasonable assumption and inferences from known data points that allow quantification of
power and non-power benefits.
4.
The EA does not consider the impacts of a range of alternatives that would
mitigate loss of recreation and other non-power values under potential water level regimes.
Quantitatively, the APC proposed alternative and the Staff Recommendation are essentially
identical: there is only three-tenths of one percent difference between them. The No-action
alternative is actually shown as having slightly greater net benefits than either the APC or the
Staff alternatives. I assume that FERC Staff considered the environmental protection measures
in the alternative proposals to be of value, but this is not evident from the net benefit calculation.
-2-
5.
The EA does not consider the impact of lake level management regimes on
recreation use. The ADECA/FIMS study indicated that recreation use falls by 5% for each one
foot drop in water level. The EA does not address the ADECA/FIMS-based estimate (reported
in Feldman (2008), page 27) that lake levels associated with current management practices,
which allow below rule curve operations, resulted in an average annual loss of recreational
consumer surplus of $34 million over the 1999-2007 period. According to the EA (page 81):
“Based on information obtained from the 2003 Form 80 for the project, the recreation facilities
on Smith Lake are typically below facility capacity.” The data Resource Decisions obtained
from the USFS concessionaire that operates the entrance station, which are analyzed on page 18
of Feldman (2008), indicated a statistically significant relationship between visitation and lake
elevation levels.
6.
The EA appears to apply a double standard to the evidence submitted by APC and
that submitted by other parties. The EA appears to accept readily the undocumented assertions
by APC, but it casts doubt on well-documented analysis presented by Resource Decisions in the
Economic Report. For example, in referring to the U.S. Forest Service (USFS) visitation data,
the EA states, “Because the report does not include any specific information on the data (e.g.,
methodology) we can not assess the quality of the data or draw any conclusions.” EA, p. 82, fn.
25. Again, in referring to this USFS data the EA states: “Although survey results (E/PRO, 2002)
indicate low capacity recreational use at Houston Recreation Area, Corinth Recreation Area,
and Clear Creek Recreation Area, Feldman (2008) cites different data, which we can not
substantiate as previously noted.” EA, p. 96. The E/EPRO 2002 source refers to a document
that I have been unable to locate in either the FERC record or from publicly available sources.
By contrast, the data referenced by Resource Decisions (see Economic Report, Section 3.1.2 and
the footnote to Table 3-2) was actual visitation data collected by a USFS contactor based on car
counts and cash receipts and was properly sourced in two different places in the Feldman (2008)
report.
7.
In response to the Lakeshore Owner Survey, the EA states, “Furthermore, the
Lake Association’s survey (Appendix A in Feldman, 2008) inquires how Smith Lake water
levels affect one’s ability to enjoy lake-related recreation activities. The survey does not inquire
about the respondents’ knowledge of how the Smith development is operated in concert with
other interests (e.g., municipal water supply), and the economic impacts on these interests that
would result from maintaining the lake levels. Therefore, we conclude that the limitations with
the survey may have influenced the survey results.” EA, p. 113.
8.
This criticism runs contrary to accepted social science research procedures. It is
well established in survey research literature that the validity of survey responses is improved by
having respondents answer questions directly related to their own personal experience. See
Ajzen, I. 1991. The Theory of Planned Behavior. Organizational Behavior and Human Decision
Processes, 50, 179-211. See also Cummings, R., Brookshire, D., and Schulze, W. 1986. Valuing
Environmental Goods: And Assessment of the Contingent Valuation Method. Rowman and
Allandheld, Totowa, NJ. Thus it was appropriate to ask lakeshore owners how their own
behavior would change with alternative lake levels. It would not have been valid to ask them to
-3-
make statements about other Smith Lake Development interests. Neither recreation theory nor
economic theory would suggest that their own visitation behavior in response to alternative lake
levels would change if they were told that the lake levels were influenced by other project
objectives. Thus the conclusion that the limitations of the survey may have influenced the results
is unwarranted and could be construed as biased against SLISA.
Power Value Comments
9.
The EA accepts APC’s calculation of the value of generated power without
verification or substantiating computations. This value, 120 mills per kWh, is demonstrably too
high. APC sells power to its large customers for approximately that amount during peak time-ofuse period only. The remainder of the time the retail energy price is either 49 mills
(Intermediate) or 22 mills (Off-peak)1. To place a wholesale value of 120 mills on all the power
produced, regardless of time of generation clearly overestimates the power value.
10.
Only during the summer peak hours is electricity sold for over 120 mills per kWh.
Generation at all other months and times is sold at 49 or 22 mills per kWh. Neither the
Commission’s EA nor the NLA provides detail as to the average generation by month. But it is
clear that not all generation occurs solely during the summer peak periods.
11.
Although these are prices for power sold to large customers, they are retail prices
that must include the transmission and distribution cost as well as administrative cost and profit.
The wholesale value of power generation, generated throughout the year, must be considerably
lower than the retail cost of power sold during the summer peak period.
12.
It is further apparent from the EA that discharge from Smith Lake is managed
partly to provide cooling water for APC’s Gorgas Power Plant. “The procedure typically
requires releases from Smith dam five days per week for five or six hours per day. The Gorgas
1
APC RATE LPTL: LIGHT AND POWER - TIME-OF-USE - LARGE
(ALTERNATE). By order of the Alabama Public Service Commission dated October 3, 2000 in Informal Docket #
U-4226. The kWh charges shown reflect adjustment pursuant to Rates RSE and CNP for application to monthly
bills effective for January 2008 billings.
JUNE 1 through SEPTEMBER 30
12.6841¢ per kWh (on-peak)
4.9041¢ per kWh (intermediate)
2.2441¢ per kWh (off-peak)
OCTOBER 1 through MAY 31:
4.9041¢ per kWh (intermediate)
2.2441¢ per kWh (off-peak)
DEFINITION OF TIME-OF-USE PERIODS
The on-peak period for June 1 through September 30 is defined as being those hours between
12:00 noon and 7:00 p.m., Monday through Friday. The intermediate period is defined as being
those hours between 10:00 a.m. to 12:00 noon and between 7:00 p.m. to 9:00 p.m., Monday through Friday. All
other hours are off-peak.
-4-
Plant withdraws a daily combined average of approximately 978 million gallons per day
(mgd)(1,513 cfs). These releases are scheduled to meet the peak load usage on APC’s electric
grid.” EA, p. 25. Given the time of transit between Smith Dam and Gorgas power plant, located
35 miles downstream, it is not possible operate Smith Lake hydroelectric generation to provide
peak period power and also provide cooling for Gorgas during peak periods. Neither the NLA
nor the EA clarify what percentage of time Smith Dam generates power during the APC system
peak period.
13.
The apparent conflict between optimizing peak generation at Smith Dam and
providing peak period cooling water for Gorgas calls into doubt the above statement which is in
direct contradiction to APC’s statement of December 7, 2006, to the effect that Gorgas cooling
needs have no effect on Smith Lake releases. See EA, p. 37.
14.
Based on my review, the NLA does not justify the 120 mill per kWh figure on
page H-7. The calculation is based on the cost of a combined cycle gas-fired power plant as the
least cost alternative. This is curious because combined cycle plants are not typically used as
peaking plants, and thus represent an imperfect substitute for the Smith generation plant, which
is used primarily to provide peak period power. In any case, the NLA erroneously states: “Two
and one half life cycles (20 years each) of combined cycle capacity is deemed equivalent to
hydro capacity over a 30 year study period.” This would be equivalent to a 50-year replacement.
15.
The large premium for which summer peak power is sold does help explain why
APC systematically departs from the rule curve during the summer. During the utility’s peak
pricing dates (June 1 to September 30) the existing rule curve specifies an average elevation of
506.8 feet. The actual elevation observed during the same period 1999-2007 was 504.0 feet.
Excluding the drought year 2007, the average elevation was 504.5 feet, 2.3 feet below the rule
curve. APC appears to maximize its revenues by departing from the rule curve.
16.
The EA uses actual rather than the modeled average power generation. See EA,
p. 115, Table 4.1, fn. a. The 6% discrepancy between modeled and actual generation over a 14year period indicates a problem in the hydrologic modeling. Because neither the modeled
generation methodology nor the action generation figures have been made public, I am unable to
determine the basis for this discrepancy.
17.
Based on sound economic practices, in order to quantify the power values of
Smith Lake, it would be necessary, at minimum, to provide data on:
a. the amount of power generated during each load period of the APC system under
alternative generation regimes and flow conditions,
b. the amount of power that could be generated during the APC load periods if the
generation were optimized for peak period generation at Smith Lake versus for a
trade-off discharge between cooling water for Gorgas and
c. the least-cost alternative power available to the utility system during each of these
periods if hydroelectric power were not available.
-5-
These data are absent or incompletely specified in the NLA, the APEA and the EA. The absence
of these data render it impossible to transparently replicate or verify the power benefits specified
in the EA.
18.
Without the information specified in item 17, above, I am unable to provide a
quantitative estimate of the impact on power values of SLISA’s proposed alternative for lake
levels. However, I am able to make some qualitative conclusions. By maintaining a more stable
lake level (e.g., 505-510 feet Memorial Day to Labor Day, not to go below 502 feet) as proposed
by SLISA, some of the peak power value might be lost. This would be partly compensated for
by the greater average head on the generation flows. Under this alternative the total flows
through the turbine would be the same as the Staff Alternative. By avoiding generation from
lower lake elevations (i.e., 496 feet) 6 feet of additional head would be available. This represents
2.6% higher head than the head at the minimum elevation, which results in approximately 3
additional MW’s of capacity. See NLA, p. B-19. Thus, the total energy generated would be
greater under the SLISA alternative.
Recreation Value Comments
19.
Despite well-documented public sources of recreation values in Feldman (2008)
and in ADECMA/FIMS, the EA omits quantitative economic consideration of recreation and
other non-power values. EA Section 4.0, “Development Analysis” is the only section which
includes quantitative economic analysis. The discussion and analysis of non-power benefits and
environmental effects is confined to Section 3.0, “Environmental Analysis,” and is nonquantitative. The basis for omitting non-power values from Section 4.0 is not stated.
20.
Table 4-2, “Summary of annual net benefits of the alternatives for the Warrior
Project,” omits mention of non-power values and their associated costs. Whereas the gross
annual power value generated at Smith Lake is reportedly $52 million, the value of recreation
based on Alabama Department of Economics and Community Affairs (ADECA/FIMS) totals
$135 million annually.2 The EA does not address the evidence provided in Feldman (2008) of
the greater impacts of recreation, and provides no explanation for its omission from the
developmental analysis. Other non-power values are also quantitatively ignored, but are
considered to run contrary to recreation values. Further detailed issues relating to recreationrelated project benefits are discussed below. I discuss other non-power values and the possibility
that these other values might be coincident with an alternative that enhances recreation values
below.
21.
As noted above, the EA did not quantitatively assess recreation values and their
impacts on local economic values were not given equal consideration in the EA, despite evidence
that they are of equal or greater economic importance as the power values. In my review of the
EA, I did not find discussion of independent investigation or review of existing, peer reviewed
2
Ibid. Volume 4, page 81 reports a recreation consumer surplus value of $85 million in 1995$ which is equivalent to
$135 million in 2007$.
-6-
research3 or research published by Alabama state agencies4 regarding Smith Lake. The only
references to these values in the EA are in connection to the information previously entered into
the record by Resource Decisions. These references are mainly noted but then not included or
discredited in the Staff analysis. The paragraphs below summarized some of the analysis on
recreation values presented in Feldman (2008) with regard to recreation consumer surplus,
recreation property values, and local economic effects.
22.
As stated in Feldman (2008), recreation activities from private residences produce
an estimated consumer surplus value of $71 million annually. Based on Resource Decisions’
updated estimates from ADECA/FIMS, the annual value of recreation from both public and
private facilities on Smith Lake can be valued at $172 million annually. These benefits should
be accounted for in the National Economic Development (NED) Account according the US
Water Resource Council Principals and Guidelines.5 In addition to these values, preservation
values including option values, existence values, and bequest values are also benefits to be
accounted for in the NED Account. As reported in Feldman (2008), based on ADECA/FIMS
recreation related preservation values for Smith Lake add an additional $47 million per year6.
Recreational Property Value Comments
23.
As stated in Feldman (2008), residential and commercial development on the
shores of Smith Lake is presently valued at $1.8 billion. The EA does not consider the impacts
of alternative lake level management regimes on this development. The EA does not
independently explore the relationship between project operations and property values. It omits
from consideration the existing peer-reviewed and public agency reports documenting economic
impact analyses (noted in Feldman (2008) based on Hansen, Hatch and Clonts (2002) and the
ADECA/FIMS studies) which show that:
a. Departure from the existing rule curve has resulted in an estimated $205 million
decrease in property values in the past two years;
b. An alternative extending the summer full pool period by 60 days would raise
property values by an estimated $342 million, and;
c. Maintaining a year-round minimum lake elevation of 502 feet would increase
property values by an estimated $492 million.
Failure to consider these values is inconsistent with standard practice by federal agencies
including the equal consideration clause of the FPA. The U.S. Environmental Protection Agency
3
Hanson, T. R., Hatch, L. U. and Clonts, 2002. Reservoir Water Level Impacts on Recreation, Property and NonUser Values. Journal of American Water Resources Association 38(4), 1007-1018.
4
ADECA/FIMS, 1997. Fishery Information Management Systems, Potential Impacts of Water Diversion on
Recreational Use and Economic Values Associated with Six Alabama Reservoir Systems — Final Report. Alabama
Department of Economics and Community Affairs, ADECA-OWR-97-07.
5
USWRC, 1983. Economic and Environmental Principles and Guidelines for Water and Related Land Resource
Implementation Studies. U.S. Water Resources Council. USGPO, Washington, DC.
6
Feldman (2008), page 21.
-7-
and U.S. Forest Service frequently apply existing literature on recreation use relationships and
economic values to evaluate their projects (this is known as benefit transfer).
Local Economic Value Comments
24.
The EA notes the contribution to the local economy of construction of recreation
facilities, but ignores the losses in income and employment in tourism and service sectors. The
EA does not consider the impacts of this development on the continuation of current lake level
management practices, as recommended in all the alternatives specified in the EA. Section 3.3.7,
“Socioeconomics,” notes the loss of income to marinas, food stores and other lake-related local
businesses. The failure to include these considerations in the EA is inconsistent with accepted
economic practices and the equal consideration clause of the FPA.
25.
The EA (page 113) incorrectly suggests that these impacts are drought-related.
While current drought conditions have exacerbated these effects, lake level draw-downs and
their local economic consequences were not limited to the current drought period. Additionally,
the EA passes over many significant impacts pointed out by Feldman (2008) and various other
commentators in the docket. The EA does not state that there would have been be an estimated
$34 million increase in annual local expenditures if the rule curve had been strictly enforced.
The EA does not address the additional estimated $9.7 million per year in repairs to private
docks necessitated by shoreline erosion due to the extreme lake level fluctuations permitted
under the proposed alternative.
26.
The analysis section of Section 3.3.7 mentions the effect on the tax base of
Winston County due to the large area of USFS lands in that county, but ultimately dismisses that
issue as being “…beyond the scope of this EA.” EA, p. 113. The EA does not deal with the
more important issue of protecting property values and the potential to generate an additional
$1.8 million in local county property tax revenues by extending the summer full pool period. See
Feldman (2008), p. 13.
27.
The EA repeatedly refers to downstream flow requirements of the waters of Smith
Lake for purposes such as navigation, water supply, stream recreation, and providing cooling
water for the Gorgas power plant. Except for the low-flow condition requirements for
navigation, the EA does not quantify these flow requirements, discuss their economic
significance relative to lake recreation values, or demonstrate the flow requirements are
inconsistent with maintaining more stable lake levels
Other Non-Power Value Comments
28.
The EA treats the benefits of providing cooling water flows to APC’s Gorgas
steam plant similarly to the manner in which the other non-power benefits are treated, i.e., they
are not quantified. However, the EA (see pp. 36-37) attempts to consider the tradeoffs between
lake levels and the provision of cooling water. They quote APC’s range of construction costs for
a cooling tower to replace the once-through cooling system now in place, and also note APC’s
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claim of higher operating costs. The staff analysis cites APC’s claim that “even if cooling
towers were installed at the Gorgas Plant and cooling water releases were stopped, APC would
still operate the Smith dam to meet other downstream demands, including hydropower, flood
control, navigation, recreation, water quality, and municipal and industrial water supply.”
29.
There are several flaws it this analysis. First, additional costs are not
independently verified by staff, but rely upon the very wide range estimated by APC. Second,
the claim that APC would still need to release the same flows regardless of Gorgas requirements
because of other downstream demands is alleged without any supporting evidence. In the
absence of evidence it cannot be concluded that the current operating practices are necessary for
downstream benefits. In fact it is highly questionable that the massive flow requirement for
Gorgas cooling delivered over a period of five to six hours is beneficial to other downstream
uses. Finally, the costs for constructing and operating the cooling tower are not compared with
the substantial benefits of providing more stable lake levels.
30.
Another non-power economic benefit that is nowhere quantified in the EA or
elsewhere in the license record is the value of fee-based water withdrawals from Smith Lake and
downstream releases. The EA (page 37) notes: “Under the current APC withdrawal policy,
charges for water withdrawals are based on the loss of reservoir storage that is reserved for the
withdrawing entity, and the loss of energy that could have been generated from the use of the
water that was withdrawn.” The quantity and value of Smith Lake water resulting from these
fee-based withdrawals constitutes a possibly significant non-power benefit that could likely vary
under a range of water release regimes. The charges associated with the “loss of energy” which
could also shed light on the power values, are not specified. Accepted economic cost-benefit
practice requires that these benefits be accounted for. This accounting is not presented in the
EA, the APEA or the NLA.
Concluding Economic Comments
Accepted economic cost-benefit practice requires that:
a. where trade-offs between benefits exist, the full range of alternative water release
regimes be postulated;
b. the coincidence or conflict between all power and other non-power values be
verified and quantified, and;
c. the value of ALL power and non-power benefits be analyzed for each of these
regimes.
These data and analyses are either absent or incompletely specified in the NLA, the APEA
and the EA. The absence of these data and analyses render it impossible to transparently
replicate or verify the net benefits for alternative water release regimes.
I conclude that the EA and supporting analysis fall short of accepted standards of practice for
economic cost-benefit analysis and the equal consideration clause of the FPA. Given the
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deficiencies in the economic analysis in the project record, it is not possible to support the
Finding of No Impact contained in Section 6.0 of the EA. A thorough Environmental Impact
Statement providing the missing data and analysis would remedy these shortcomings.
I declare under penalty of perjury of the laws of the State of California and the United
States of America that the foregoing is true and correct and that this declaration was executed the
7th day of April, 2008 in San Francisco, CA.
_________________________
Marvin Feldman
Resource Decisions
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Exhibit. 2.1
Marvin Feldman, Ph.D.
Resource Decisions
934 Diamond Street
San Francisco CA 94114
415-282-5330
e-mail: <[email protected]>
EXPERTISE
Water Resource Economics
Energy Economics
Socioeconomics
Recreation Economics
Environmental Economics
Decision Analysis
ACADEMIC BACKGROUND
BS Geology, 1965, City College of New York
MS Water Resource Management, 1970 U. of Wisconsin
MS Agricultural Economics, 1978, U. of Wisconsin.
Ph.D. Natural Resources Economics, 1979, U. of Wisconsin
Dissertation: "Portfolio Multiattribute Utility Analysis: An Application to The
Wisconsin Energy Conservation Plan
EMPLOYMENT HISTORY
1988 to Present: Principal, Resource Decisions
1987-1988: Associate, Manager of Economics, Dames & Moore
o Managed firm-wide Policy & Economics Group
o Line management and sales responsibility
1984-86 Senior Economist, Dames & Moore, San Francisco
1980-83 Project Economist, Dames & Moore, San Francisco
1976-79 Assistant. Editor Land Economics Journal (Part time)
1973-75 Research Associate, Washington State University:
o Supervised major study of conjunctive use of groundwater and surface water
o Developed economic model of deep well irrigated agriculture
o Engineering economic simulation of irrigation well investments.
1970-72 Hydrologist (GS-9) National Park Service:
o Supervised water resource studies of National Parks
o Coordinated development of agency-wide water quality standards program.
1967-69 High School Earth Science Teacher
1966-67 Columbia University: Research Assistant in Geophysics:
o Arctic geophysical and hydrologic surveys
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Water Resources and Environmental Economics
Port of Los Angeles: Developed a scorecard methodology for evaluating the Port’s
environmental health and to measure improvements in environmental quality.
USAID, Sri Lanka: Conducted a seminar in environmental economics for Sri Lankan
economics professors and government officials.
USAID, Philippines: Assisted in the preparation of an action agenda for projects to foster
environmental improvement an economic development in urban environments.
Taiwan Power Company: Developed a standard practice manual to assist professionals in
evaluating the economic effects of environmental externalities in power production.
California Urban Water Conservation Council (CUWCC): Project manager of a study of the
state-of-the-art of water conservation benefit evaluation techniques. Based on a literature search
covering both water and energy utilities, identified promising methods for application by
CUWCC member water agencies in evaluating their conservation options.
Pacific Gas & Electric: Project manager-economic cost benefit evaluation of power and nonpower values on the North Fork of the Feather River (Rock Creek-Cresta Project) in support of
FERC relicensing.
Monterey County Water Resources Agency: Analysis of the effects of proposed re-regulation
of Lake Naciemento on property values and local tax revenues.
Pacific Gas & Electric: Project manager-economic analysis of the effects of Lake Almanor
water levels on recreation and property values in support of FERC relicensing.
Pacific Gas & Electric: Project manager-economic analysis alternative flow regimes on the
recreational values of the Pit River (Pit 3,4,5) in support of FERC relicensing.
Idaho Power: Evaluated the recreation and power production benefits associated with alternative
hydroelectric by-pass flows at Shoshone Falls.
Pacific Gas & Electric: Analyzed the non-market values associated with hydroelectric
generation facilities in the Plumas and Stanislaus National Forests.
California Division of Water Resources: Analyzed the agricultural and aquacultural impacts of
alternative levels of Mono Lake for the Mono Lake EIR/EIS.
Glenn-Colusa Irrigation District: Analyzed the economic impacts on agriculture of diversion
alternatives and constraints on Sacramento River irrigation water supplies.
April 7, 2008
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Santa Clara Irrigation District: Modeled the regional economic impacts of water shortages
using an input-output model of the county economy.
Corps of Engineers: Developed and applied a methodology for the incremental analysis of
alternative mitigation measures to enhance the habitat of the endangered winter-run salmon on
the Sacramento River.
Bureau of Reclamation: Evaluated national and regional economic benefits of a major flood
control and regulatory storage project.
Michigan DNR: Estimated the benefits of reducing power plant emissions in protecting
recreational fisheries from acidification.
Northern States Power: Analyzed the natural resource damage to a recreational fishery using a
multinomial logit travel cost model.
California EPA: Prepared a guide to cost-benefit analysis and other economic techniques for use
by CalEPA environmental decision makers.
Eight Central California Counties: Prepared a guide for natural resource damage assessment
to assist coastal counties in their oil spill contingency planning efforts.
California Dept. of Health Services: Provided economic basis for forecasting hazardous waste
generation trends for all manufacturing industry sectors in "California.
Ford Motor Company: Analyzed present and future hazardous waste streams and
recommended waste disposal options. Evaluated environmental liabilities and estimated
associated costs.
San Diego County: Projected solid waste generation rates and analyzed their implications for
landfill siting alternatives.
Kings County: Analyzed the financial and fiscal implications of alternative landfill sites and
transportation configurations.
Phillips Oil: Applied Input-Output analysis to project the economic impacts on Oklahoma of
alternative rates of production from the Hugoton Gas Field.
Energy Economics
California PUC: Self Generation Incentive Program evaluation. Conducted interviews with
renewable and distributed generation manufacturers and third-party developers to determine
effectiveness of program. Development of survey instrument and evaluation program.
April 7, 2008
-3 of 5-
California Energy Commission: In support of the Renewables Program, conducted a survey of
manufacturers of renewable electric generation equipment. Also conducted a survey of
renewable generation end-users. Assisted in the consumer education program support.
Exxon-Mobil: Principal Investigator for Socioeconomics: Prepared analysis and documentation
on the socioeconomic impacts of an offshore LNG receiving terminal, an onshore terminal, a
graving dock, onshore and offshore pipelines, and onshore storage facilities proposed for the U.S.
Gulf Coast. Documentation used to support both FERC and U.S. Coast Guard environmental
approval applications.
Chevron Mexico: Principal Investigator for Socioeconomics: Prepared socioeconomic analysis
and documentation to support environmental approvals for a major offshore LNG facility in Baja
California.
California Energy Commission: Developed a method for measuring the risk mitigation effects
of increasing fuel and technology diversity through renewable generation. Applied this method
to California’s historic electricity system data to develop policy recommendations for fuel
diversity. Phase 2 of this project applied the risk mitigation methodology to projection for
California’s restructured electricity system.
Western States Petroleum Association: Policy analyses of the impacts of proposed electricity
industry restructuring proposals.
California Division of Oil and Gas: Assessed the status of the California petroleum industry.
Provided policy guidance in identifying environmental regulations that are redundant or have an
unfavorable benefit cost ratio.
California Energy Commission: Forecast the electricity prices and the prospects for emerging
technologies under alternative restructuring proposals.
California Energy Commission: Analyzed a survey of qualified facilities to evaluate the current
status of cogeneration opportunities.
California Energy Commission: Analyzed the economic costs and benefits associated with
developing a strategic petroleum products reserve in California.
California Energy Commission: Evaluated the impacts of price and supply disruptions on
California households. Identified target groups and existing programs to assist these groups.
Minerals Management Service: Analyzed cumulative economic impacts of Bering Sea
petroleum development.
Minerals Management Service: Forecasted the marketability of Bering Sea natural gas on the
U.S. West Coast.
April 7, 2008
-4 of 5-
Yukon Pacific: Forecasted impacts on domestic gas prices due to exporting North Slope LNG to
the Orient. Prepared documentation used to obtain export authorization.
Alaska Power Authority: Analyzed economic feasibility of providing geothermal electric power
to Dutch Harbor, Alaska.
Alaska Power Authority: Assessed Technical and Economic Feasibility of Development of
Northwestern Alaska Coal Resources.
Phillips Oil: Projected economic impacts of exporting LNG from Cook Inlet Alaska to Japan.
Prepared documentation used to obtain export authorization.
Minerals Management Service: Evaluated the technical and economic feasibility of deep water
far offshore petroleum development on southern California's outer continental shelf.
Decision Analysis and Operations Research
Sacramento Municipal Utility District: Developed and implemented a multiattribute approach
evaluating environmental impacts of powerline corridor alternatives.
National Science Foundation: Developed a linear programming model for using location
decisions to mitigate seismic damage to structures.
Office of the Governor of California: Performed a preliminary analysis of regional indirect and
induced loses associated with the 1994 Northridge earthquake.
Applied Technology Council: Developed and implemented a methodology for assessment of
economic damage to lifelines resulting from earthquakes as part of ATC-25.
Contra Costa County: Developed an economic model for maximizing net benefits (avoided
costs minus project costs for evaluating seismic improvements to the county water system.
California Energy Commission: Critiqued and modified the R & D screening tool used to
evaluate Opportunity Technologies.
Department of Energy: Developed a multiattribute site selection model for evaluating
alternative sites for a High Level Nuclear Waste Repository.
Corps of Engineers: Developed multiattribute utility analysis of environmental, social, and costs
considerations of a major water resource project.
Alaska Dept. of Natural Resources: Applied Risk/Cost/Benefit analysis to environmental
protection methods for petroleum exploration in the Beaufort Sea.
April 7, 2008
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ACADEMIC AWARDS:
Scholarship--New York State Regents (1961-65)
Fellowship--Federal Water Quality Administration (1969-70)
Research Assistantship (1976-79)
PROFESSIONAL MEMBERSHIPS:
Association of Environmental and Resource Economists
Society for Risk Analysis
American Economics Association
National Association of Business Economists
PERSONAL DATA:
Citizenship: U.S.
Languages: French, Nepali, some Spanish
Interests: Sea Kayaking, Swimming, Tai Chi
April 7, 2008
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Health: Excellent
DOB: 2/22/45
Married, 2 grown children
Exhibit 3
DECLARATION OF BRIAN J. MCCRODDEN
I, Brian J. McCrodden, declare the following:
1.
I submit this declaration on behalf of the Smith Lake Improvement and
Stakeholders Association (SLISA).
2.
I have worked professionally in the area of water resources for over 25 years.
I have been the Vice President of HydroLogics, Inc., a water resources consulting firm, since
1989. HydroLogics is the developer of the OASIS water resources modeling suite, a
software package that has been used in five major Federal Energy Regulatory Commission
(FERC) relicensing proceedings to evaluate the tradeoffs, both power and non-power,
between alternative operating protocols. OASIS is also being used for dispatch scheduling in
the hydropower industry. I am a registered professional engineer in North Carolina currently
on inactive status. My complete resume is attached as Exhibit 3.1.
3.
In preparing this declaration I have reviewed Alabama Power Company’s
(APC) Final Application for New License, Warrior River Project, FERC No. 2165, July 27,
2005, (NLA) and the FERC Environmental Assessment for Hydropower License, Warrior
River Hydroelectric Project, P-2165-022, March 2008 (EA). My major findings are that the
EA contains inadequate information to understand the water balance in the Black Warrior
basin, the existing rule curve is not adequately defined, non-power uses appear to drive
existing operations, and a water balance model is needed to analyze baseline operations and
alternatives. I discuss each finding below.
The Record Provides Inadequate Water Balance Information
4.
The information presented in the NLA and EA is inadequate to understand the
water balance in the Black Warrior River basin and, hence, the impact of the Lewis Smith
Development on that balance. A model of the system would allow a proper examination of
the effects, both positive and negative, of proposed as well as alternative operating protocols.
Preparation of the time series of inflows to such a model are the most time-consuming and
expensive part of model development. Given that APC already has a model with those
inflow data, developing a model that will produce results that are meaningful and
understandable to all parties is not a difficult undertaking. If provided this information, I
could prepare a model of the system in 60 days.
5.
To fully understand the impact of the proposed new license, one needs to know
how the project would behave if operated as proposed and contrast the results with those
Declaration of Brian J. McCrodden
SLISA’s Comments on Environmental
Environmental Assessment
Alabama Power,
(P. 21652165-022)
-1-
from alternative operating protocols. The simplest and most straightforward way to do this is
by simulating the operation of the project over a long period of hydrologic history. To put
the project in the proper environmental context, the model must include other water users in
the basin. That is, other water withdrawals and returns must be treated explicitly. The
geographical extent of the model should include that portion of the Black Warrior River basin
over which the Smith Lake project exerts any significant influence. Because the Smith Lake
drainage area is approximately one third that of Bankhead Lake, and because the two
developments are operated as a system, at a minimum the model should include the basin as
far downstream as Bankhead Lake. Depending upon activities downstream of Bankhead, it
might need to include significant additional area.
6.
Such a model would allow an examination of lake elevations in both
developments as well as flows at points up and down the river over a long period of history.
From those data, any number of summary statistics could be generated that would allow one
to understand the dynamics of the system and the impact that the Lewis Smith Development
causes. No such information is presented in the NLA and EA. Although it is clear that APC
has used some sort of model (see EA, 115, Table 4-1, fn. a), no results related to the water
balance (flows and lake levels) are presented for the proposal or any alternatives. SLISA’s
request for this and other, additional information is still pending before FERC. See eLibrary no. 20080307-3006. There are insufficient data in the NLA and EA to replicate even
the scant results presented.
Existing Rule Curve Is Not Adequately Defined
7.
Because APC proposes no change to the present operations, the EA implies
that conditions in the future will be the same as in the past. For several reasons covered
below, this may not be true.
8.
APC proposes to “continue to operate the Smith development in peaking mode
and regulate the Smith lake level according to the current rule curve.” EA, p. ix. However,
“the current rule curve” is not defined. There is no rule curve stated in the original license.
There is no description of the circumstances under which APC developed the “current rule
curve.” The “current rule curve” does not reflect the entire operating protocol for the
development, and it appears to be, at best, a secondary rule. That is, factors that are not
explicitly articulated appear to have significant (perhaps primary) control over the operations
of the development.
9.
As commonly used, the term “rule curve” refers to a plot of desired reservoir
elevation over the course of the year. As a “rule,” the reasonable expectation is that the
Alabama Power,
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reservoir is operated to attain that elevation except in unusual circumstances. For reservoirs
for which flood control is an authorized purpose, such as Smith Lake, it is common that the
rule curve is violated during flood control operations. That is, lake levels rise above the rule
curve to temporarily store water in order to prevent flooding downstream. As flows
downstream subside, the water in the reservoir is released and the elevation returns to the
rule curve. There are cases where other factors, such as power contracts, cause the curve to
be violated on the low side. In other words, if inflows are insufficient to meet the power
contracts, the contracts take priority and the lake level falls below the curve. In such cases,
however, it is clear that lake levels are of secondary importance, and the plot of desired
elevation is more appropriately referred to as a “guide curve.”
10.
It is misleading to assert that a project will be operated according to a rule
curve without specifying the conditions that will necessitate or permit a deviation from it.
APC’s past operations have not followed the rule curve, but there is scant information as to
why not. It is clear that the rule curve is only one part of the operating protocol, but the
remaining parts are not addressed with sufficient specificity to allow a complete analysis of
the project’s operations.
11.
The most complete discussion of the rule curve is in the NLA. The “rule
curve” is described thus: “From April 1st until July 1st, the Rule Curve shows a full pool
elevation of 510.0 ft msl. The Rule Curve begins to lower on July 1st and reaches 496.0 ft
msl by December 1st. The Rule Curve remains constant until February 1st, and then begins
rising, reaching full pool by April 1st.” NLA, p. B-3. The fact that this information, which
is shown graphically in NLA at Figure B-1, is presented with such specificity reinforces the
notion of the primacy of the rule curve. However, the following paragraph states that “[t]he
curve in Figure B-1 delineates the storage in Smith Lake allocated to power generation and
flood control throughout the year.” Id. It represents “a firm division between the power and
flood control pools. The lake level is normally maintained at or below the curve except
when storing floodwater.” Id. (emphasis added). Hence, the rule curve is a rule curve in
name only and, except during flood control operations, represents the maximum rather than
the desired lake level.
12.
Figures 1 and 2 (see Exhibits 3.2, 3.3), which were obtained from APC by
SLISA, show maximum, minimum, and average lake levels since 1962. It is clear that the
project is not operated to the rule curve. The higher priority factors that cause such
significant departure from the rule curve are not adequately explained. In my opinion, a
more accurate statement of the method of operation is that APC attempts to operate within
the band represented by the “rule curve” and the “lower guide curve.”
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13.
To add to the confusion, the lower guide curve is also referred to as the
“drought contingency” curve (see EA, p. 158, Figure 3). The EA further states that the
lower rule is used during “extreme drought conditions,” but there is no definition of extreme
drought conditions. Id., p. 14. The National Weather Service definition cited (see id., p 35)
is too vague to be operationally useful. The lack of precision regarding when and how the
drought rule is to be implemented is likely the reason that FERC staff have recommended the
development of a drought contingency plan. A drought contingency plan, or low flow
protocol, is an integral and indispensable part of an operating protocol, and is much needed
given that the most contentious issues raised relate to periods of low flow.
14.
So, one is left with the question of just what rule(s) APC proposes to follow in
the proposed new license. It is impossible to provide meaningful comments absent a
complete statement of the operating protocol for the project, including the recommended
drought contingency plan. In my opinion, the public is entitled to see the complete operating
plan before a license is issued. The operating protocol should cover all anticipated conditions
and also contain a methodology for addressing those that cannot be anticipated. A good test
for the completeness of the statement of an operating protocol is whether it is adequate to
permit modeling the project to within an acceptable margin of error.
NonNon-Power Uses Appear to Drive Operations at Smith Development
15.
Factors other than peaking are major determinants of the operation of the
Lewis Smith Development but were not analyzed in the NLA or EA.
16.
In the EA and NLA, seven major project purposes are discussed in varying
degrees of detail: (1) flood control, (2) hydroelectric generation, (3) navigation, (4) cooling
water for the Gorgas Steam Plant, (5) water quality, (6) recreation, and (7) other downstream
uses. These will be addressed in order.
17.
During flood control operations, control of the project is essentially turned
over to the U.S. Army Corps of Engineers. The manner in which the development will be
operated for flood control is covered in great detail. See EA, p. 13. The EA does not
address the effectiveness of the flood control protocol, but there is likewise no indication that
past flood control practices have been unacceptable. Because flood control operations are not
a primary issue for SLISA, the operation of the development for flood control will not be
addressed further.
18.
The development is operated for peaking power, although it is not clear that
operations during the summer follow the common definition of this term (see paragraph 20,
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infra). The manner in which the project is integrated in the market is not discussed, but it is
stated that the project operates on a weekly cycle. See NLA, p. B-3. Therefore, it is
reasonable to assume that the desired method of operation is to generate primarily on
weekdays, when prices are usually higher, and less on weekends. Such operations, which
are common in the industry, do not lend themselves to daily adherence to a rule curve.
However, on average and particularly during the summer months, past operations have not
come close to meeting the rule curve on a weekly basis, either. See Ex. 3.2, 3.3. From the
perspective of power operations only, and excluding high flow periods when operation of the
project is coordinated with the Corps of Engineers, near-perfect adherence to the rule curve
on a weekly basis is possible. Therefore, either extra energy is being generated or the
deviations from the rule curve are the result of non-power factors.
19.
Releases from Smith Lake for downstream navigation are cited several times as
a major project purpose. See, e.g., EA, p. 98. However, even the maximum navigation
requirement of 245 cubic feet per second (cfs) (see id., p. 13) imposes almost no burden on
the system. For July, August, and September, the three months of the year when the inflows
to Smith Lake are the lowest, 245 cfs is approximately 20 percent, 40 percent, and 50
percent, respectively, of the median flow. For all other months, 245 cfs is much less than 5
percent of the median inflow. See NLA, p. B-11, Figures B-2a through B-2l. Even in a
drought of one year’s duration and assuming no inflow to Smith Lake, a constant release of
245 cfs represents less than 45 percent of the 394,300 acre-feet of storage available below the
flood pool (elevation 510) and above elevation 488. See EA, p.12.
20.
The release of cold water for once-through cooling of the Gorgas Steam Plant
appears to be a major driver of operations during the period June 1 through September 30
when there are temperature limits imposed via the plant’s NPDES permit. Figures 1 and 2
show a clear difference in the method of operation prior to and after Gorgas went into
operation in 1974. See Ex. 3.2, 3.3. To my knowledge, this operational change was made
without a modification to APC’s FERC license.1 Although not highlighted, the cooling water
needed averages 1513 cfs during the summer months. See EA, p. 15. This requirement
overwhelms the 245 cfs release needed for navigation and explains why the Corps rarely calls
for navigation releases (personal comm., Jared Key, SLISA). There is also no mention of
the travel time between Smith dam and the Gorgas plant, 35 river miles downstream. Unless
the time of travel is a multiple of 24 hours, the Smith development is not being dispatched
during the highest value hours. For example, if the 6 highest value hours are hours ending
1
Absent an analysis of the hydrology, I cannot say categorically that the differences are due to Gorgas
and not to a difference in the hydrology of the periods in the two graphs. While it is theoretically possible that
hydrology caused the difference, I would consider this to be highly unlikely.
Alabama Power,
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1600 through 2100 and the time of travel to Gorgas is 18 hours, the release from Smith will
have to begin at hour ending 2200 and continue through hour ending 0300, which is not the
highest value time of day. It is true that the months during which cooling water is required
are the months in which prices are generally highest, so cooling water releases will cause
additional energy to be generated during high value months. However, from the perspective
of the Smith powerhouse only, the dispatch will not be economically optimal. One would
expect APC to try to minimize systemwide cost even if that required that Smith generate
during non-optimal hours. This is not an inappropriate operating objective, but it is
misleading to call Smith a peaking plant when there are clearly factors other than peaking
that heavily influence its operation and are not completely analyzed.
21.
Other than for Gorgas, releases to maintain or enhance downstream water
quality are inconsequential. The proposed 50 cfs instantaneous release (i.e., when not
generating) is so small as to be within the margin of error of the measured inflows. While
the release of 50 cfs for an average of 18 hours per day over the course of 120 days is
roughly 9,000 acre-feet, it is only about nine inches of storage assuming absolutely no
inflow. This quantity pales in comparison to evaporation and the other factors discussed
below.
22.
There do not appear to be any requirements to release water for purposes of
downstream recreation. It is interesting, however, that water levels at Bankhead (which may
require releases from Smith) are preserved because there is development around the lake (see
NLA, p. B-21) whereas no such deference is paid to development and the associated
recreation on Smith Lake.
23.
APC says that it would release water for other downstream users even if
cooling towers were installed at Gorgas. See EA, p. 37. Water quality permits and
municipal and industrial withdrawers are referred to (see, e.g., EA, p. 31), but nowhere in
the NLA or the EA are these withdrawers listed. I could not obtain a list from Alabama’s
Office of Water Resources within the time period allowed for comments. As evidenced by
the following, either these withdrawals are huge and have no associated returns, or there are
other major, unspecified, and unexplained variables involved. Either way, it appears that the
water balance in the basin is poorly understood. Such a lack of understanding cannot be in
the public interest, particularly when such information could have been produced with
relative ease.
24.
Based on my analysis of information in the record, I find there are
unaccounted water losses between the Smith and Bankhead developments. For the following
analysis I have used the period July 1, 2007 through September 30, 2007, the height of the
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recent drought.2 Because APC makes reference to the Sipsey River near Elrod (USGS Gage.
No. 02446500) as being representative of the watershed (see EA, p. 31), I have used the
same gage for this analysis.
Flows at the Sipsey River gage averaged 112 cfs over the period, which is 0.2 cfs per
square mile of drainage area.3
If the Sipsey River gage is representative, the inflow to Smith Lake over the period
was approximately 188 cfs.4 Likewise, the intervening inflow between Smith Lake
and the USGS gage at the Bankhead Lock and Dam (USGS Gage No. 02462500) was
607 cfs.5
Over the same period, Smith Lake was drawn down from elevation 504 to elevation
493 (www.Smithlake.info using data from APC). From Figure B-3 of the NLA, this
amounts to approximately 200,000 acre-feet of storage. If one assumes that 18 inches
of storage (approximately 43,000 acre-feet6 were lost to evaporation, the 157,000
acre-feet of drawdown amounts to 860 cfs over the 92 days.
The release from Smith Lake over the period is the inflow plus the water taken out of
storage, or approximately 1,050 cfs.
The average flow at Bankhead should have been the release from Smith Lake plus the
intervening inflow, or approximately 1,650 cfs.
25.
But the flows at Bankhead as measured at the gage were 1,053 cfs, a
difference of 597 cfs. In other words, there are approximately 600 cfs or 388 million gallons
per day (mgd) unaccounted for between Smith and Bankhead Lakes. Although it is possible
that the reach between Smith and Bankhead loses some water during low flow periods, it
seems more likely that the majority of the lost water is the result of withdrawals that are
either consumed or diverted out the basin. This may be part of the “withdrawals managed by
2
October 1 begins a new water year, and USGS data are not readily available after September 30, 2007.
3
112 cfs divided by the drainage area of 528 square miles.
4
0.2 cfs multiplied times the Smith Lake drainage area of 944 square miles.
5
0.2 cfs multiplied by the intervening drainage area of 3037 square miles.
6
Evaporation is 1.5 ft multiplied by the average storage per foot of elevation, or 1.5 multiplied by
(200,000 ac-ft divided by 7 ft.).
Alabama Power,
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APC in conjunction with Alabama’s Office of Water Resources.” EA, p. 31 (emphasis
added). But, there is no accounting of these withdrawals in the NLA or EA, and no
indication of whether they are projected to increase or decrease during the term of the next
FERC license.
26.
According to the EA, “Water resources within this highly regulated basin are
managed for a variety of uses including: hydroelectric generation, flood control, water
supply, environmental management, navigation, and recreation.” EA, p. 28. However,
because APC provides the only regulation in the upper part of the basin, the assertion that,
“The developments are primarily operated for flood control, hydroelectric generation, and
navigational flow augmentation” (id., p. 28), is at best disingenuous. Major aspects of the
management plan for the upper part of the Black Warrior River basin were not included in
the analysis, and it is impossible to comment intelligently on the recommended alternative
without understanding what else is going on in the basin and how the project interacts with it.
A Water Balance Model Should be Prepared
27.
A water balance model should be prepared to analyze baseline operations and
alternatives thereto. I recommend such modeling work be undertaken prior to license
issuance, rather than post-license as recommended under the Staff Alternative. The Staff
Alternative requires the development of an operations and flow monitoring plan to ensure
compliance with the “recommended rule curve.” EA, p. 25. As noted above, operations to
the rule curve would be substantially different than current operations, and that alternative
was not analyzed. The rule curve is not followed now and hence there is no basis to assume
it will be followed during the term of the new license.
I declare under penalty of perjury of the laws of the State of North Carolina and the
United States of America that the foregoing is true and correct and that this declaration was
executed the 7th day of April, 2008 in Raleigh, North Carolina.
_________________________
Alabama Power,
(P. 21652165-022)
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Brian J. McCrodden
Vice President, HydroLogics, Inc.
Alabama Power,
(P. 21652165-022)
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Exhibit. 3.1
Brian J. McCrodden, Vice President/Business Manager, HydroLogics, Inc. EXPERTISE Integrated management and operation of water resources systems. EXPERIENCE 27 years REGISTRATIONS Professional Engineer, North Carolina, 1983 North Carolina State Bar, 1987 EDUCATION Juris Doctor, 1986 North Carolina Central University M.S., Environmental Management, 1977 Duke University B.S., Engineering, 1967 United States Military Academy AFFILIATIONS American Society of Civil Engineers American Water Resources Association N.C. Water Resources Association, (former member, Board of Directors) PROFESSIONAL HISTORY Vice President, HydroLogics, Inc., 1989present Senior Research Engineer, Research Triangle Institute, 19791989 Facilities Management Officer, Office of the Adjutant General for North Carolina, 19761979 Environmental Engineer, Energy Strategies Branch, Office of Air Quality Planning and Standards, U.S. EPA, 19751976 Command & Staff positions, Corps of Engineers, U.S. Army, 19671974 PROJECT EXPERIENCE Roanoke River, VA, Appalachian Power Company (2005present) Principalincharge of the development an OASIS model of APC’s Smith Mountain/Leesville hydroelectric project for use in Federal Energy Regulatory Commission (FERC) relicensing proceedings. The model used is an updated version of the Roanoke River Basin Reservoir Operations Model originally developed to support the relicensing of two other projects downstream. HydroLogics is facilitating negotiations among the stakeholders represented on the Work Groups through interactive, computeraided negotiating sessions using the model. At
these sessions, participantdirected scenarios are modeled in real time and comparative information is provided on the impacts of the alternatives on power generation, recreational and instream flows, and lake levels. To achieve a better balance between upstream and downstream interests, the first ever low flow protocol with a probability based release policy using ensemble forecasts is being proposed. Roanoke River, NC Dominion North Carolina Power (2005present) Principalincharge. Since 2005 HydroLogics has been assisting Dominion with the scheduling of its hydrogeneration assets at Lake Gaston and Roanoke Rapids Lake. Gaston and Roanoke Rapids are immediately downstream of the Corps of Engineers’ John H. Kerr Reservoir. Each week the Corps “declares” the amount of water that will be released from Kerr during the next week. HydroLogics’ effort, begun in 2005, included the development of an OASISbased optimization program that uses information regarding current lake levels, inflows, the declaration, and operating constraints to schedule generation optimally over the week. The first day’s schedule is submitted in PJM’s day ahead market. Because it is not always possible to adhere to the schedule exactly, the process is repeated each day with the remainder of the declaration scheduled over the remainder of the week. Rivanna River, VA Rivanna Water Sewer Authority, and The Nature Conservancy (2004Present) Prinicipalincharge of the development of an OASIS application for the Rivanna River basin in central Virginia. The model was developed for the Rivanna Water and Sewer Authority (Charlottesville) in collaboration with The Nature Conservancy. The model was used for capacity expansion planning and to develop a riskbased drought management plan that resulted in improved instream flows without jeopardizing water supply reliability. The drought management plan was used successfully during the drought of 2007. Asheville, NC (20032004) Principalincharge of the development of a drought management plan for the City of Asheville. An OASIS application of the system was developed and used to determine probabilistic triggers for each of three phases of the plan. The same application is used prospectively in real time to determine if current conditions indicate that any of the triggers has been met thereby requiring activation of that phase of the plan. Yadkin River, NC Alcoa Power Generating, Inc. (2001present) Principal in charge. HydroLogics is one of several consulting firms assisting Alcoa in the relicensing of its Yadkin hydroelectric system under FERC’s traditional relicensing protocol (with enhanced communication). HydroLogics’ role is to develop the hydrology for the Yadkin River Basin, including the Pee Dee River, and to develop and use an application of the OASIS model for system simulation. The system consists of seven reservoirs: Kerr Scott (Corps of Engineers); High Rock, Tuckertown, Narrows, and Falls (APGI); and Tillery and Blewett (Progress Energy), all located in North Carolina. The relicensing effort is complicated by the multiple parties involved (including two states and two power companies) and the memory of a recent multiyear drought, which severely disrupted hydropower operations, angered homeowners with lakeside property, and heavily impacted water suppliers and industry in South Carolina.
Delaware River Basin Commission (20002004) Principalincharge of a team of four consulting firms to develop a strategy for resolving interstate flow management issues for the Delaware River Basin Commission. The project consisted of three major components: (1) the identification of flowrelated issues throughout the basin with an emphasis on the relationships between flows and benefits; (2) the development of a suite of analytical tools to analyze the issues identified; and (3) the development of a strategy for using the tools to resolve interstate flow management issues. The centerpiece of the analytical suite is a basinwide application of HydroLogics’ OASIS model. Flow management in the basin is currently controlled, in part, by the Supreme Court Decree of 1954, which can be modified only by unanimous consent of the five parties (the federal government, the States of New York, New Jersey, and Pennsylvania, and the City of New York). The goal of the project is to provide the parties with stateofthe art tools and techniques to promote more effective flow control to enhance beneficial uses throughout the basin. Cheoah River, NC Alcoa Power Generating Inc. (20002002) Principalincharge in charge of the development an OASIS model of APGI’s’s Tapoco hydroelectric system for use in Federal Energy Regulatory Commission (FERC) relicensing proceedings. The system consists of four reservoirs that are integrated into TVA’s larger system. HydroLogics developed an hourly OASIS model that simulates system operation under userspecified operating protocols and provides comparative information on the impacts to power generation, recreational and instream flows, and lake levels. Lower Roanoke River, NC (1999 present) Principalincharge of team of consultants developing a GISbased flood animation of the lower Roanoke River for The Nature Conservancy. The floodplain is ecologically significant and appears to be threatened by changes in the hydroregime associated with the operation of upstream dams. This model uses simulated hourly discharges from the Roanoke River Reservoir Operations Model (see below) and, by means of regression equations, converts those discharges first to downstream river stages and, subsequently, to swamp stages. Duck River, TN Tennessee Duck River Development Agency, and The Nature Conservancy (20012002) The Duck River is the water supply source for a significant portion of southcentral Tennessee. The Duck River is also a center of aquatic biodiversity and of great interest to The Nature Conservancy. These two interests are potentially in conflict. For TDRA and TNC, HydroLogics developed an OASIS model of the upper Duck River and Normandy Reservoir, which is a part of the TVA system and currently the only reservoir in the watershed. HydroLogics conducted longterm simulations with different demand levels and minimum release requirements to establish system reliability under a wide range of hydrologic conditions. The analysis showed that the system would be able to meet projected system demand and downstream flow targets for the next 50 years with very high reliability. HydroLogics recommended that the Duck River Agency formally establish a planning process that will periodically (and within the planning cycle of its member utilities) review demand projections and other system requirements and
reallocate the resource by means of modifications to its contracts with its member utilities. In 2003, the Agency adopted its first basin water supply plan. Roanoke River, VA/NC (1994 present) Project Manager in developing a basinwide reservoir operations model for the NC Department of Environment and Natural Resources, The Nature Conservancy, and Dominion Generation. The OASIS simulation model uses a high speed linear programming routine to maximize hydropower generation subject to userspecified constraints on reservoir levels and reservoir releases. The Roanoke River Basin Operations Model was used by Dominion Generation in the FERC relicensing process for two stations; by The Nature Conservancy in evaluating ecosystem conversion in the lower floodplain; and by the State of North Carolina for fisheries, water supply and water quality management. The model is currently being updated for use in the Corps of Engineers’ Section 216 Study to evaluate alternative operations of Kerr Lake. City of Rocky Mount, Project Manager for developing a realtime drought management tool for the City of Rocky Mount, North Carolina. The technique used involves N.C. the generation of multiple, equallylikely, oneyear streamflow forecasts. (1997 present) Using present starting conditions, the system performance is simulated using each of the forecasts. If the probability of system failure is unacceptable, the user can rerun the simulation using a different minimum release regime and/or reduced demand level. The tool can thus be used to aid in the decision of when (or if) demand reductions should be imposed and what the magnitude of the reductions should be. Since the model was completed in 1998, the City has adopted a drought trigger based on its use and added an abandoned quarry to its raw water system. The quarry was activated based on predictions from the model to mitigate the impact of the drought of 2002. South Florida Water Project Manager for one of two contractor teams that assisted the South Management District Florida Water Management District in the development of the South Florida Regional Simulation Model. This objectoriented model simulates (1996 1999) ground and surface water transport throughout South Florida. In addition to specifying changes in the operating rules for existing structures, users are able to simulate the addition or deletion of canals and other surface water structures. HydroLogics’ main roles in the project were conceptual design and the development of a control language by means of which management options are specified to the models. South Florida Water Project Manager in assisting the South Florida Water Management Management District District with the development of the Lower East Coast Regional Water (1991 1994) Supply Plan. The Plan integrates municipal water supply policies for the Lower East Coast of Florida with the delivery of water to enhance and maintain conditions in the Everglades and in Lake Okeechobee. Environmental conditions, ground water drawdown, economic impacts, and water supply reliability are considered. This project included: guiding the development of the methodology for evaluating alternatives; developing the performance measures and displays to be used in the
evaluations; obtaining the approval of that methodology by the Advisory Committee to the planning effort; and helping design and develop the modifications to the South Florida Water Management Model required to carry out those evaluations. Savannah River (19881990) Project Manager for developing a basinwide water budget and reservoir operation model of the Savannah River basin for the South Carolina Water Resources Commission. The model uses multiple streamflow forecasts produced by the National Weather Service and optimizes the value of energy over the next year given userspecified constraints. The model can be used for longterm simulation or realtime operations. City of Raleigh, N.C. CoPrincipal Investigator in developing an optimization model for the City of Raleigh to schedule raw water pumping to take the best advantage of (1988) timeofuse electric rates. Savings to the City of Raleigh exceed $100,000 per year (20% of the total pumping cost). Saluda River (1987) Project Leader in developing a water budget model of the Saluda River basin for the South Carolina Water Resources Commission to evaluate the impact of various interbasin transfers on lake levels, hydroelectric generation, and downstream flows at two reservoirs. PUBLICATIONS, “Water Resources Risk Management, A Solution to the MultiUser Conundrum?” presented December 5, 2007 to the Institute of Public REPORTS, PRESENTATIONS Utilities (IPU) Annual Regulatory Policy Conference in Charleston, SC. “The Role of Forecasting in Low Flow Operating Protocols” presented November 16, 2007 at CEATI (Center for Energy Advancement through Technological Innovation) conference in Knoxville, TN. “Optimal Economic Dispatch of Hydroelectric Projects o the Roanoke River, presented July 23, 2007 at the Waterpower XV Conference, Chattanooga, TN. Pearsall, S. H., McCrodden, B. J. and Townsend, P., “Adaptive Management of Flows in the Lower Roanoke River, North Carolina, USA” Environmental Management, Vol. 35, No. 1, pp.115. May 3, 2005. “Use of the OASIS Model in Developing Reservoir Operations Agreements Among Various Interest Groups” presented at 2004 Conference of United States Society on Dams, St. Louis Missouri, March 31, 2004 (coauthor.) “Using Streamflow Forecasts to Improve Realtime Drought Management.” presented at the American Water Works Association Annual Conference, Denver, Colorado, June 2000. “Using Forecasts for Improved Drought Management,” presented at the American Water Resources Association Annual Conference, Point Clear,
Alabama, November 1998. “Using Forecasts for Improved Drought Management,” presented at the North Carolina Water Works Association and Water Environment Association Annual Conference, Durham, North Carolina, November, 1998. "Using Forecasts for Improved Drought Management," presented at the Tennessee Water Resources Symposium, Nashville, Tennessee, March 1998. Little, K.W., and McCrodden, B.J., “A Mixed Linear Programming Model for Optimization of Raw Water Pumping,” ASCE Journal of Water Resources Planning and Management, 1989. Little, K.W. and McCrodden, B.J., “A Mathematical Model for Minimizing Energy Costs at Falls Lake Pump Station,” Research Triangle Institute, North Carolina, May 1988. McCrodden, B.J., and Nichols, R.C., “Review of Monitoring Requirements in NPDES Permits and the Discharge Monitoring Report,” Research Triangle Institute, May 1987. “The Response of the Research Triangle Area of North Carolina to the Drought of 1986,” presented at the American Society of Civil Engineers Water Resources Planning and Management Division Annual Conference, Kansas City, Missouri, March 1987. “The Response of the Research Triangle Area to the Drought of 1986,” presented at the South Carolina Water Resources Commission Water Week ’86 Symposium, Hilton Head, South Carolina, September 1986. Little, K.W., McCrodden, B.J., and Moreau, D.H., “A Yield Analysis of the Surface Water Supply System Serving Southside Hampton Roads, Virginia,” Research Triangle Institute, July, 1986.
Exhibit 3.2
Exhibit 3.3
Exhibit 4
P.O. Box 496
Arley, AL 35541
September 27, 2007
Willard L. Bowers
Vice President Environmental Affairs
600 North 18th Street
Post Office Box 2641
Birmingham, Alabama 35291
Re: Smith Lake Water Levels
Mr. Bowers:
I am writing this letter in a proactive attempt to resolve many current issues dealing
with Smith Lake. I noticed in your letter dated April 24th that you and Alabama Power
committed to SLISA representatives that you would consider any reasonable proposal to
change project operations to reduce lake level fluctuations. In that spirit we would like to begin
with our proposals now.
Concerning Water Level Fluctuations:
•
•
•
We are requesting that Smith Lake water levels remain between the 505’ and 510’ msl
between Memorial Day and Labor Day.
We are also requesting the level never to drop below the 502’ msl.
Permits and quantity of water used for hydropower, flood control, navigation,
environmental concerns, water quality, municipal and industrial water supply,
operational coordination with downstream steam plant, natural evaporation, and other
considerations.
Concerning Public Access:
•
•
The Upgrading of the two public launches that were committed to in the initial
information package date October 2000 page 145.
We would also like two additional public launches (to be agreed upon by all parties as
to the location).
Concerning Other Issues:
•
•
•
Begin constructive dialogue for committee on rules and regulations for Smith Lake.
Discuss foundation principal on property rights and easements.
Discuss possible solutions for marking of safety hazards.(i.e. Marine Police)
We have stated in the past that we felt like cooling towers at Gorgas would solve the
water level problems; however, we are in no way concluding that cooling towers is the only
solution. SLISA would very much like to be part of the solution with the above mentioned
items and we are looking forward to meeting with you very soon to resolve these issues.
Sincerely,
Jared Key

P-2165 - Hydropower Reform Coalition

Transcription

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