The Alabama Power subsidiary of Southern Co. (NYSE: SO) filed suit May 7 in federal court over a dispute with the U.S. Army Corps of Engineers related to impacts of upstream actions on downstream hydroelectric capacity.
The lawsuit filed at the U.S. District Court for the District of Columbia is under the Administrative Procedure Act (APA). It asks the court to set aside final agency action by the Corps of Engineers adopting Water Control Manuals and the Final Environmental Impact Statement for the Alabama-Coosa-Tallapoosa (ACT) River Basin. This final agency action, including the ACT Water Control Manuals and Final Environmental Impact Statement, is unlawful, arbitrary, capricious, an abuse of discretion, and contrary to binding statutory and procedural requirements, the lawsuit claims.
Specifically, the Corps, by the final agency actions at issue here, adopted operational rules for the Corps’ Allatoona Dam and Reservoir, which is located in Northwest Georgia, upstream of Alabama Power’s Weiss Dam and Reservoir. Allatoona was authorized by Congress for flood control, hydropower generation, and navigation support, including the support of hydropower generation at Alabama Power’s downstream projects on the Coosa River and commercial navigation on the Alabama River.
“This binding Congressional authorization notwithstanding, the Corps’ action at issue here unlawfully abandons downstream navigation support, reserves unbridled and standardless discretion to eliminate hydropower generation at Allatoona during critical periods, reallocates reservoir storage originally intended for hydropower production and downstream flow support to the incidental purposes of recreation and public water supply, and reduces downstream flows during the critical summer and fall periods, with resulting environmental degradation to downstream water quality, including water quality in Alabama Power’s Weiss Reservoir,” said the lawsuit. “The Corps lacks administrative discretion to make these fundamental changes and substantially reorder legislatively mandated project purposes without Congressional reauthorization. In addition, the Corps’ action violates its obligations under the Corps’ regulations to comply with state water quality standards and not to create conditions that impair downstream water quality by decreasing flow.”
Also, the Corps’ evaluation of the environmental impacts of the fundamental changes proposed for Allatoona was wholly inadequate under the National Environmental Policy Act (NEPA), the utility said. Among other alleged deficiencies, the “baseline” for the required alternatives analysis assumes many incremental and unlawful changes to project operations at Allatoona. The baseline also includes unrealistic operations at variance with historical operations, and the preferred action alternative assumes hydropower operations at Allatoona that the Corps disclaims any obligation to perform, with the combined effect of minimizing the adverse impacts from the proposed change in operations, the lawsuit said. Further, the Corps failed to use available and appropriate water quality modeling tools, so that the adverse water quality impacts from the proposed operations were not properly disclosed or evaluated, said the utility.
“The Corps’ actions are also arbitrary, capricious, and an abuse of discretion. Among its many errors, the Corps sharply and arbitrarily departed from its past practices that recognized that Allatoona should be operated to provide flow during critical summer and fall periods,” Alabama Power wrote. “The Corps offers no reasoned explanation for operating Allatoona now in a way that will reduce production of valuable and reliable electricity, that will impair downstream water quality, and that will preclude it from supporting navigation. The Corps’ own modeling recognized these public interest harms even though it substantially understated them by using flawed modeling and analyses that masked the full impact of it proposed changes. That is why its proposed change in operations was criticized by stakeholders across the spectrum, including the U.S. Environmental Protection Agency, the U.S. Department of the Interior, the Southeastern Power Administration, the Alabama Office of Water Resources, the Alabama Department of Environmental Management, the Southeastern Federal Power Customers, and the Southern Environmental Law Center.
“As a result of the Corps’ unlawful actions and the resulting reduced flow from Allatoona, hydropower generation at Alabama Power’s downstream projects will be reduced, especially during the critical summer period, water quality in Alabama Power’s Weiss Project will be damaged in the summer and fall seasons, and reservoir elevations in Alabama Power’s Coosa and Tallapoosa River storage projects will be diminished during the summer and fall seasons, as critical storage from Alabama Power’s projects is used to support downstream environmental flows and navigation.
“Accordingly, Alabama Power requests that this Court make all necessary findings and grant the relief requested herein to set aside the Corps’ Water Control Manuals and Final Environmental Impact Statement for the ACT Basin, including the proposed operating plans for Allatoona, to compel the Corps to recognize in the manuals and to comply with the Congressionally mandated purposes of the ACT Basin reservoirs, to protect and ensure water quality standards, and to conduct a lawful, complete, and appropriate NEPA evaluation of its proposed operations.”