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Victory in the Courts for Alabama's Tallapoosa River!Submitted by John Seebach on Tue, 2003-11-04 07:00
On April 11, the DC Circuit Court of Appeals ruled in favor of American Rivers, Alabama Rivers Alliance, and Lake Watch Lake Martin on the question of what action triggers the need for a Clean Water Act section 401 water quality certification.
In November, a three-judge panel in the DC Circuit Court of Appeals heard oral arguments on whether the Federal Energy Regulatory Commission can amend a hydropower license to allow a power company to modify dam operations without requiring a water quality permit from the state water quality agency.
Alabama Power Company applied to FERC for a turbine upgrade that would change the hydraulic capacity and generating capacity of the dam's facilities. The proposed amendment to its hydropower license included a change in the amount of water and duration of water level for the dam's daily flow cycle. However, Alabama Power did not request water quality certification under the Clean Water Act and FERC did not require one prior to taking action on the amendment.
The plaintiffs in this case, Alabama Rivers Alliance, American Rivers, and Lake Watch Lake Martin, argued that under the Clean Water Act, the state - not FERC - has authority to determine whether a license amendment has an impact on water quality and to impose conditions in a water quality certificate as a result.
What is the effect of this ruling? It will inevitably lead to greater protection of our rivers by ensuring that project changes are accompanied by measures that protect water quality.