What happens when the owner of a federally licensed hydroelectric project fails to build the fish passage facilities required by its license? In the recent case of the East Juliette Hydroelectric Project in Georgia, the Federal Energy Regulatory Commission revoked the project's license, ending the owner's right to operate its generating equipment.
The East Juliette Hydroelectric Project is (or was) based around the East Juliette Dam on the Ocmulgee River, a tributary to the Altamaha River. Built in 1921, the dam is hundreds of miles inland from tidewater -- but nevertheless represents the first passage barrier that anadromous fish, including American shad, encounter on their migrations upstream from the Atlantic Ocean to the Ocmulgee River. State and federal fisheries agencies have identified restoring access to historical spawning habitat for American shad as one of their highest priorities for the region.
Since 1995, the East Juliette Hydroelectric Project has been owned by Eastern Hydroelectric Corporation. The project facilities include a 20-foot-high, 1,230-foot-long concrete gravity dam that creates a 78-acre reservoir with a storage capacity of 418 acre-feet, and two powerhouses with a total installed capacity of 687 kW.
In 2002, the Federal Energy Regulatory Commission amended the project's license to authorize the construction of a new powerhouse and 1,200 kW generating unit. As part of that amendment, the FERC added language to the project's license requiring the licensee to install new fish passage facilities at the East Juliette Dam. Similar conditions were imposed by the Georgia Department of Natural Resources as part of its water quality certification for the amendment.
According to the recent FERC order, while the licensee proposed a plan to construct fish lift at the dam, it ultimately did not follow through with its plan. At several points over the past 5 years, FERC staff licensee directed the licensee to comply or else face civil penalties, an order to cease operation of the project, or revocation of the license pursuant to section 31 of the Federal Power Act.
Under section 31(b) of the Federal Power Act, after notice and an opportunity for an evidentiary hearing, the FERC may issue an order revoking a license, where the licensee is found have knowingly violated a final order after having been given reasonable time to comply fully with that order. In Eastern Hydro's case, FERC found that despite 12 years of intensive efforts by its own staff and other agencies, "these efforts have met with steady resistance from the licensee."
Ultimately, the FERC found that Eastern Hydro knowingly violated its compliance order and that it was given a reasonable time to comply with the order before FERC commenced the license revocation proceeding. As a result, FERC revoked Eastern Hydro’s license for the East Juliette Project.
While environmental conservation groups asked FERC to require the licensee to remove all project facilities that it owns, FERC declined to do so. Instead, the FERC order requires that Eastern Hydro disable all of the project’s generating equipment to prevent operation of the project in violation of section 23(b)(1) of the Federal Power Act. Following revocation of the license, the FERC's jurisdiction will end, and authority over the site will pass to the State of Georgia’s dam regulatory authorities.
The East Juliette case illustrates some of the most severe consequences of failure to comply with FERC hydropower licenses. Without a license, the project cannot generate electricity, thus depriving the project of much of its value.