By: Whitney Fleshman, Associate
Because climate change is one of the major environmental issues of the day, alternative energy (such as hydropower) will be integral to providing future energy needs. Though alternative energy may spare the air from greenhouse gas emissions, alternative energy sources can come with their own set of environmental impacts. Dams that provide hydropower are currently the largest source of alternative energy within the United States. Dams, however, often have a wide range of harmful effects on the environment, if not properly mitigated. Many of these dams were built before the environmental movement and a result of legislation of the 1970s. The Federal Energy Regulatory Commission (FERC) relicenses these dams every 30 to 50 years. Therefore, the opportunity to analyze and mitigate the environmental effects of hydropower will not come around again for a long time. Unfortunately, FERC’s most recent issuance of a license of the Coosa River Hydroelectric Project (the Coosa Project) fails to adequately address environmental concerns.
The Coosa River is one of the most biologically diverse rivers in the United States and is home to many species that are endemic to the basin. The once free-flowing river is now the most developed river in Alabama and has been described as more a series of slow-moving reservoirs than a river. The dams have prevented aquatic organisms from accessing feeding and spawning grounds and inundated hundreds of acres of land, destroying terrestrial, riverine, and wetland habitat. Ecological degradation caused the extinction of nearly forty freshwater species, mostly snails and mussels, which experts have described as the largest extinction event in the United States during the 20th century. An additional twenty-one species in the project vicinity are listed as endangered or threatened.
The dams that comprise the Coosa Project were first built in 1957—before the major environmental statutes were enacted, including the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). This is the first time that five of the seven Coosa River dams have been re-licensed in fifty-six years. Thus, this is the first time that FERC has had the opportunity and the mandate to consider the environmental impacts of the Coosa Project. In June 2013, FERC issued a new thirty-year license to Alabama Power Company (APC) for the continued operation of the Coosa Project. American Rivers and Alabama Rivers Alliance—conservation groups—filed a petition for rehearing in July challenging the license, claiming that FERC’s decision was based on a flawed and incomplete record. They have identified several problems with the license itself, the Environmental Assessment (EA), and the Biological Opinion (BiOp).
It is particularly disheartening to note that in April 2009 FERC issued a draft EA for the Coosa Project, but then issued a final EA (including a Finding of No Significant Impact) in December that was virtually identical to the draft, including typographical errors. FERC neglected to prepare an EIS for the relicensing despite evidence that the Coosa Project will have significant effects on water quality and aquatic species, and failed to develop and study a reasonable range of alternatives. Though Alabama Power claims that the licensing process involved numerous public stakeholder groups, experts, and resource agencies, FERC still lacked the information necessary to make an informed decision, and instead relied on assurances that such studies and mitigation plans will be developed after the license has already been issued. This is a clear violation of NEPA.
In addition, the BiOp claims that the project is unlikely to destroy or modify any critical habit, or jeopardize the continued existence of any species, despite an anticipated take which is significant for numerous species, including a 100% take of 4 rare species in the Weiss Bypass, as well as any reintroduced species. In many cases, the effects of the take on the overall viability of the species are unknown because FWS neither quantifies nor provides a baseline for the take. If conservation is the goal, it is hard to see the rational basis behind FWS’ claims. Despite the sobering facts in the BiOp, FERC’s license does nothing to impose conditions on APC to ensure against jeopardizing the numerous listed species.
Finally, the license does not require minimum flow levels at five of the seven Coosa River dams. One of the other dams is home to two endangered mussel species and has a set minimum flow that is well below ten-year drought levels. The license also does not require minimum dissolved oxygen (DO) levels at the majority of the dams. DO above 5mg/l is essential for fish and mussel growth and reproduction. The one dam requiring specific DO levels requires only 4mg/l, a level that is associated with increased mortality of aquatic species.
By relicensing the Coosa Project, FERC is rubber-stamping a long-term license for a project with serious and uncertain impacts on a unique, important river habitat. While hydropower is an important part of the nation’s energy portfolio, the environmental effects cannot be overlooked. Though conservation groups delay the licensing process of hydropower dams, the importance of holding FERC accountable for its licensing decisions is necessary to ensure that the environmental impacts can be mitigated.
 See Hydropower’s Impact on Rivers, Hydropower Reform Coalition, http://www.hydroreform.org/abouthydro/impacts-on-rivers (last visited Oct. 18, 2013).
 International Energy Statistics, U.S. Energy Information Administration, http://www.eia.gov/cfapps/ipdbproject/iedindex3.cfm?tid=2&pid=33&aid=12&cid=regions&syid=2005&eyid=2011&unit=BKWH (last visited Oct. 18, 2013).
 Outdated dams degrade water quality, destroy wetlands and riverine habitats by creating impoundments, entrain fish and bar passage to spawning grounds. Hydropower’s Impact on Rivers, Hydropower Reform Coalition, http://www.hydroreform.org/abouthydro/impacts-on-rivers (last visited Oct. 18, 2013).
 Andrea Kraljevic et al., Seven Sins of Dam Building, World Wildlife Fund, 9 (2013), available at http://awsassets.panda.org/downloads/wwf_seven_sins_of_dam_building.pdf.
 Alabama Rivers Alliance and American Rivers Petition for Rehearing of Order Issuing New License for Coosa Project 22, FERC Docket No. P-2146 (July 18, 2013) [hereinafter Petition for Rehearing].
About the Coosa River, Coosa River Basin Initiative, http://www.coosa.org/Our%20River (last accessed Oct. 18, 2013).
 Ben Raines, Alabama’s Coosa River listed in international report on the impact of dams by the World Wildlife Fund, All Alabama (Mar. 28, 2013). http://blog.al.com/wire/2013/03/alabamas_coosa_river_listed_in.html.
 Petition for Rehearing 22.
 Andrea Kraljevic et al, Seven Sins of Dam Building, World Wildlife Fund, 10 (2013), available at http://awsassets.panda.org/downloads/wwf_seven_sins_of_dam_building.pdf.
 Petition for Rehearing 22.
 Id. at 21.
 Id. at 2.
 Id. at 2-3.
 Id. at 30-31.
 Id. at 24.
 Id. at 26.
 LaFlamme v. FERC, 852 F.2d 389 (9th Cir. 1988) (LaFlamme I).
 Id. at 114-16.
 Id. at 106.
 Id. at 3.
 Id. at 41.
 Id. at 45.
 Id. at 32.
 Id. at 35.
 Id. at 34.
 Evan Belanger, Conservation groups challenge new license for Alabama Power dams on Coosa River, All Alabama (July 22, 2013), http://blog.al.com/wire/2013/07/conservation_groups_say_federa.html.
 Lea-Rachel D. Kosnik, Sources of Bureaucratic Delay: A Case Study of FERC Dam Relicensing, 22 J.L. Econ. & Org. 258, 259 (2005).