Alabama Rivers Alliance v. FERC., 325 F.3d 290 (2003)

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Legal Case/Hearing: Alabama Rivers Alliance v. FERC., 325 F.3d 290 (2003)

Abstract

On December 22, 2000, Alabama Power filed an application with FERC to amend its license to authorize the replacement of three 33-MW turbine generators. Alabama Rivers Alliance et al. (Alliance) moved to intervene, arguing § 401(a)(1) of the Clean Water Act (CWA) required Alabama Power to obtain state water quality certification before FERC could amend the existing license. Alliance argued that the installation and operation of the new turbine generators would result in at least two discharges: (1) an increased flow of low-DO water passing through the dam’s replacement turbines; and (2) the release of dust, grease and oil during the installation of the replacement turbines. According to FERC, the replacement of the turbine generators would merely alter an existing discharge; therefore, it was not an activity “which may result in any discharge” within the meaning of CWA § 401(a)(1).

The court found that the licensee must obtain a new or amended water quality certification under CWA section 401(a)(1) if the replacement of the generators will alter (increase) the quantity of flow discharge.

Section 401(a)(1) of the CWA, 33 U.S.C. § 1341(a)(1), provides that “any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate.” FERC’s interpretation of the CWA is not entitled to the usual judicial deference because the Environmental Protection Agency (EPA) – and not FERC – is charged with administering the statute. See 33 U.S.C § 1251(d).

The court relied on the plain language of CWA § 401(a)(1), and the court’s previous opinion for North Carolina v. FERC, 112 F.3d 1175 (D.C. Cir. 1997), to conclude that Alabama Power’s installation and operation of the new turbine generators was subject to certification under CWA § 401(a)(1).

The court distinguished the facts here from the facts in North Carolina. The court in North Carolina held that a decrease in the volume of water passing through the dam turbines could not be considered a “discharge,” because “discharge” contemplated the addition of a substance.






Hearing 
Alabama Rivers Alliance v. FERC, 2003

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Citation

Alabama Rivers Alliance v. FERC, 325 F.3d 290 (2003).