United States Department of the Interior v. Federal Energy Regulatory Commission

876 F.3d 360
CourtCourt of Appeals for the First Circuit
DecidedFebruary 12, 2015
DocketNo. 13-2439
StatusPublished
Cited by1 cases

This text of 876 F.3d 360 (United States Department of the Interior v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Department of the Interior v. Federal Energy Regulatory Commission, 876 F.3d 360 (1st Cir. 2015).

Opinion

TORRUELLA, Circuit Judge.'

The United States Department .of the Interior (“Interior”) petitions this Court to review two orders of the Federal Energy Regulatory Commission (“FERC”) which granted Boott Hydropower, Inc. and the Eldred L. Field Hydroelectric Facility Trust (collectively, “Boott”) an amendment to their license for the Lowell Hydroelectric Project No. 2790. The amendment permitted Boott to replace the historic wooden flashboard system atop the Pawtucket Dam (the “Dam”) in Lowell National Historic Park, Massachusetts, (“Lowell Park” or the “Park”) with a modern pneumatic crest gate system. Interior alleges that replacing the flashboard system creates an adverse effect and is contrary to the standards established to protect the historical nature of Lowell Park, both of which are prohibited by the Lowell Act. For the reasons stated below, we disagree and deny Interior’s petition for review.

[362]*362I. Background

In 1978, Congress passed the Lowell Act, Pub. L. No. 95-290, 92 Stat. 290 (1978) (codified at 16 U.S.C. §§ 410cc to 410cc-37 (1978)), which recognized that “certain sites and structures in Lowell, Massachusetts, historically and culturally the most significant planned industrial city in the United States, symbolize in physical form the Industrial Revolution.” 16 U.S.C. § 410cc(a)(l). As such, it created Lowell Park and the Lowell Historic Preservation District. Id. § 410cc-11(a)(1). Located within the Park (which is itself located within the Preservation District) on the Merrimack River is the Dam.

The Dam was completed in 1830. In 1837, James Francis became the Dam’s chief engineer and served in that role, for forty years. Beginning in 1838, the Dam began using a. system of flashboards. Flashboards are wooden planks, attached to the top of the Dam via metal pins drilled into the Dam’s capstone, which are designed to “fail” under the pressure of high flows by bending over and falling out when the height of the river exceeds the flashboards, thus allowing the flows to safely pass over the crest of the Dam. By “failing,” the flashboard system helps regulate water levels behind the Dam, control upstream flooding, and generate more power. Once the water levels recede to a certain level, workers manually replace the failed flashboards with new wooden planks; this cycle usually occurs four to five times per year. Throughout the history of the Dam, flashboards of various sizes have been used: two-foot boards from 1838-1883, three-foot boards from 1883 to 1896, and five-foot boards (in different configurations) from 1896 to the present.

In 1983, pursuant to its authority under the Federal Power Act, 16 U.S.C. § 797(e), FERC issued a license to Boott to construct, operate, and maintain the Lowell Hydroelectric Project.1 The project included the Dam. In 2007, FERC began receiving complaints from homeowners along a tributary to the Merrimack River regarding flooding in May 2006 and April 2007 which the homeowners attributed to the Dam’s flashboards. In response, FERC sought- information from Boott and subsequently ordered a backwater analysis? to determine the effect of the flashboards on upstream flooding. The study revealed that the flashboards reacted unpredictably -under water pressure and did not consistently fail as designed, so -FERC ordered Boott to propose alternatives which could alleviate this issue.

Boott’s report proposed three options: (1) continuing to employ the current flash-board system; (2) continuing to use flash-boards but reducing the height of the wooden planks; or (3) replacing the flash-boards with a five-foot-high pneumatic crest gate system. This latter option wbuld entail installing a rubber membrane on top of the Dam so that its height could be mechanically raised or lowered as water conditions dictated by remotely inflating the membrane with pressurized air. After analyzing all three options, Boott concluded that the pneumatic crest control system was the best choice because it would eliminate the issue of the flashboards failing unpredictably, enhance project operational control and power generation, and provide significant advantages for other activities that are dependent on water levels, including flood control, recreation, and fish passage. Boott subsequently filed an application with FERC on July 6, 2010, to amend its license to permit installation of the ■crest gate.

[363]*363On August 10, 2010, FERC issued a Notice of Application for the amendment and sought comments, motions to intervene, and protests from the public. Interi- or, among others, filed motions primarily arguing that the proposed amendment would not solve the flooding issues and would create an adverse effect on the Dam by removing a feature of the Dam which the objectors believe to be an integral part of the Dam’s historic engineering and structure.2 In response, Boott modified its proposal to try to mitigate these effects. Despite almost three years of negotiations, the parties were unable to agree on a proposal. During this time, on December 19, 2011, FERC also issued an Environmental Assessment touting the long-term beneficial effects of the proposed amendment.

On April 18, 2013, FERC issued an order granting Boott’s proposed amendment. 143 FERC P 61048 (2013). In its sixty-page order, FERC agreed with the findings in the Environmental Assessment and Boott’s reports. It found that the inflatable crest gate would: “provide[ ] the most reliable and complete attenuation of the backwater effect that results from high flows,” id. ¶ 50; increase worker safety since workers would no longer have to “approach the dam in boats, often during high flow periods” in order to replace the flash-boards, id. ¶ 51; “improve fish passage,” id. ¶ 83; help maintain “a consistent impoundment level [that] would benefit two utilities that use the impoundment as a source for water supply,” id. ¶ 56; “allow the project to generate more clean energy” because the gates “could be reinflated relatively soon after high flows” as opposed to waiting for the flashboards to be replaced through a process that took months, id. ¶¶ 48, 83;. and ,“provid[e] a more stable reservoir elevation,” id. ¶ 153.

FERC’s order also “acknowledge^] and appreciate^] the national significance of the historic properties at issue” yet ultimately disagreed with Interior’s position that replacing the flashboards would have an adverse effect on the Dam, and thus violate the Lowell Act. Id. ¶¶ 81, 134. According to FERC, while Boott’s initial proposal created an adverse effect, the mandated alterations to the crest gate to mimic the appearance of the wooden flash-boards—using a brown-colored bladder, painting the downstream side of the gate panels brown, and installing black retaining straps—along with two interpretive exhibits explaining both the original flash-board system and the modern pneumatic crest gate system would mitigate any negative effects of replacing the flashboards. Id. ¶ 24. ..With these, added measures, FERC: concluded there would be no adverse effect to the Dam, the Park, or the Preservation District. Id ¶ 134. In coming to its decision, FERC noted that this mitigation approach to finding no adverse effect was similar to the approach taken and agreed to by Interior when a 1921 fishway was replaced with a more modern fish ladder in the 1980s. Id. ¶ 82.

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