Due to recent litigation, the Alabama Municipal Electric Authority on Sept. 30 asked the Federal Energy Regulatory Commission for a two-year extension of a preliminary permit on a 25-MW hydroelectric project.
In April 2010, the Alabama Municipal Electric Authority (AMEA) applied for a three-year preliminary permit to study the feasibility of the George W. Andrews Lock and Dam Hydroelectric Project, located at the existing George W. Andrews Lock and Dam on the Chattahoochee River in Houston County, near the town of Columbia, Ala. The commission in December 2010 issued the preliminary permit.
Good cause exists for granting AMEA’s request because AMEA has carried out activities under its permit in good faith and with reasonable diligence, the authority said. During the extended term of the preliminary permit, if granted, AMEA intends to continue the due diligence necessary to prepare an application for license for the project.
The project would consist of:
- a new powerhouse containing four turbine-generators with a total combined plant capacity of 25 MW;
- an intake channel and a tailrace channel; and
- an approximately 10-mile-long, 115-kV transmission line connecting the powerhouse to an existing substation.
The proposed project would have an average annual generation of 82 gigawatt-hours.
The location of the project and litigation over the operation of U.S. Army Corps of Engineers dam projects has had a direct effect on the ability of AMEA and its consultants to perform the needed due diligence to prepare a license application, the authority noted. A legal view held by the Corps for fifty years has been deemed to be in error by the U.S. Eleventh Circuit Court of Appeals. This change has led to uncertainty regarding flows and hydrology.
AMEA is seeking an additional two years in its current preliminary permit because of the challenges posed by the changes that the Corps will implement in the operation of its projects in the Apalachicola-Chattahoochee-Flint (ACF) river basin in the future.
Court ruling to impact the river flow that this project will be driven by
Major litigation among the states of Alabama, Georgia, and Florida over the flows in the ACF has impacted the review process for the project since the filing of the initial application in 2010, the authority pointed out. In the intervening time since the preliminary permit was issued, the Eleventh Circuit issued an opinion that changed the legal authorities for the Corps’ operations of the Buford Project at Lake Lanier. In June 2011, the Eleventh Circuit ruled that contrary to previous assertions by the Corps, Lake Lanier was authorized by Congress to provide water supply for downstream Atlanta. Before this ruling, the Corps had stated that Lake Lanier was authorized only for hydropower production, navigation, and flood control.
The Eleventh Circuit’s findings also included several directives to the Corps. First, the Corps was required to perform a review of its legal authorities to provide water supply from the Buford Project by June 2012. Second, the Army Corps was directed to revise its Water Control Manuals (WCM) that govern operations in the ACF.
In an extensive legal opinion submitted to the Eleventh Circuit in June 2012, Corps General Counsel Earl Stockdale explained that based on the decision rendered by the Eleventh Circuit, the Army Corps has extensive authority to provide water supply from the conservation storage at Lake Lanier. In simple terms, the legal assumptions that had governed the operation of the Buford Project had changed. As a practical matter, the operations of the Buford Project are now due to change in the future when the Corps implements a new operational paradigm, said the authority.
“The importance of the litigation and resulting legal decision addressing the operation of the Buford Project cannot be underestimated,” AMEA added. “The Buford Project, located at mile marker 348 on the Chattahoochee River, controls two thirds of the water storage in ACF river basin. The Andrews Dam is located at mile Marker 46.5 on the Chattahoochee River on the ACF. Moreover, as the first or initial storage project in the ACF River Basin, the Buford Project affects hydrology and flows at each of the downstream projects, including Andrews Dam.”
AMEA said it is now in the untenable position of trying to predict flows that will not follow historic patterns, but will instead be dictated by a new WCM that adheres to the revised view of the Corps legal authority to support consumptive water use in the ACF river basin.
“The release of the WCM in final form presents a challenge for AMEA,” it added. “The Army Corps has indicated that a final WCM should be released in 2016. However, prior to the release of a final WCM, the Army Corps will release a draft WCM for public comment that will give some indication of the expected hydrology and flows in the ACF River Basin. AMEA anticipates using that document as part of the due diligence needed to prepare a license application.”
AMEA said that it may find that the uncertainty associated with the Corps’ revisions to a WCM will require modifying the scope of it hydroelectric project.