for the day eastern hydro electric corporation versus federal energy regulatory commission my name is david moore and counsel for eastern hydro electric corporation like the minutes for a bottle please the court has three ways in which you can find petitioner eastern hydroelectric corp is correct and reinstate the license such that east chile at hydro power can continue to produce clean renewable electricity the first is through a reading of the plain language of an august sixteenth two thousand and one section for a one water quality certification which clearly ties requirement for fish passage to construction of a turban upgrade the second it means by which the court can uphold eastern hydrous position and reinstate the licenses by ruling that eastern hydropower validly with w its license application by virtue of eighteen c f r three eight five point two one six and we have president will discuss today regarding that thirdly the court can reinstate the license their interpretation of the plain language of the federal power act specifically section thirty one b of the federal power act which requires that first show that eastern hydroelectric knowingly violated a section thirty one a order and we can show your honour's that that did not occur  under the administrative procedures act we have both procedural and legal bases on which to reverse decision and reinstate the license if i can address first the fish passage condition we're talking about today was a condition to a turban upgrade fish passage was required by the state of georgia as part of a section for a one water quality sort of occasion that comes under a separate statutory provision under the clean water act and i hope your your honour's a court has this document which i georgia two thousand and one it states to protect and restore historical uses a fish passage structure will be constructed as part of the project upgrade and we contend that language is absolutely clear that the fish passage was to be done as part of the upgrade right you asked for permission to do that you wanted a new license you wanted a new generator and this was a condition for doing it and it's this has been going on for twelve years and your client hasn't done it now i understand they've now decided they want they don't want to build a generator but the problem with that is you know you're already succeeded in getting a new license that required  one in the same day but work will call it an amended license but you succeeded in getting it amended right we didn't succeed in two thousand and two it but interestingly prior to the amendment there's a large amount of documentation the record that talks about exactly what was referred to in terms of a fish passage so the structure this is east juliet dam in east chile a ga it's got to canals are called bypasses they exist on the side of the dam it's actually a beautiful old historic structure and so prior to getting this amendment in conversations with fish and wil service georgia department of natural resources they said hey use these bypass structures they exist there they're going to be fine and in fact that's the most effective means of this passage well fast forward really not not too long fast forward six months after the license amendment then all the sudden fish and wildlife service states no we want something else we would like a dental ladder than that moves to serpentina ladder then that moves to actually a fish elevator structure what's so are you saying that as it was one of the things that perplexed me about this case is i don't really know what's going to happen if you win and what's going to happen if you lose it seems like so right now as i understand it the dam is there it's been there since one nine hundred twenty one destroyer does it have fish bypasses in it now it has bypasses with with some modification we contend the bypasses could effectively pass fish both upstream as well as downstream and without without going into we were with the c years before actually bringing the case back before the court and i can't go into that those details i don't want to get outside the record but it was another attempt to try to utilise that process in order to provide that fish passage but to answer judge kerrigan's question we have a license that authorizes generation to two thousand and twenty six is clean renewable hydro power generation is very important for the nation it's a small dam certainly but it is every little bit counts and so if the court rules in our favor then we reinstate that license we continue to generate and  we can send is that we tried for twelve years under a process that even congress has recognized it's broken congress recognize this passage part of the statute is so broken that in two thousand and six they mended the statute this is after a license and then we could not go in and say wait a minute let's restart this process let's apply the two thousand southpark says that you what you should have done was to seek another amendment of the license to to either get rid of the fish requirement our to modify it in some way and what they say happened was they kept trying to chase you and you can read i mean it's painful to read you can read all the back and forth and so forth they had to  her license and what why isn't why isn't that a winning position specifically because if you look at section thirty one b and and i won't go into the that's it for tat that i mean to be happy to thing after they were about that but that was a little tough to do when this this client we didn't request to amend what we did is we filed a notification of withdraw your honor which is another procedure it's out of eight hundred c f r three eight five point two one six a clear procedure it's been used before it's been used twenty years after a license has actually been issued or an application filed in five years after licenses have been issued has ever been used after they've already revoked your license no in this case your honor we are filing was actually prior to the actual revocation we filed the notice of its role after the notification of intent to revoke but we filed it before the requests for rehearing so with within the federal power act their orders not final until the sixty days goes by and what you withdrawals filed under the same provision three five point two one six after a final license has been issued has been done several times and also point out that under the case law that burke cited in both situations one was the pacific gas and electric case and the other was the falls hydro associates those are the two cases they cite to state eastern hydro couldn't withdraw its application will but in both of those for within the fifteen day period prescribed they actually objected to the  so those two cases the only cases that they've cited actually support our position which is that what's wrong as effective if fifteen days goes by and for it does not object now for it could have been i'm sure i mean you know administrative law better than i do but it seems a law that after a final decision is made right maybe it's pending rehearing well after a final decision has been made then you get to take the football and go home that seems a little to do so i contend we had no idea what what was being required in two thousand and two because it changed from the bypass on but in fact we did cite a case the puget sound energy case where withdrawal was performed after the actual  order in that case and it was also after rehearing request hours before we hear a request i understand your point your honor but our point is that we did try to amend the license on several occasions we saw three hearings when we seek them and we missed them by a day or two and it actually happened then were not permitted to proceed further receives these orders on a website they tracked them they tracked our filing for the what for all fifteen days goes by that they did nothing at all they could very easily state it just as you said your honor they could have stated well you can't do this because it's untimely or you can't do this because it's final it notably the cases they cited don't go down the finality or the timely road either i expected that they would but but they didn't and that's that's other warders have actually applications have been withdrawn under the same provision what about the merits of your third argument i believe was that you had an unwilling violation like your best argument on that yes your honor so a very very high standard intersection thirty one a standard is that the first has got to show that my client knowingly violated the federal power act so how does one know if you knowingly violated the federal power act will the statute specific it says provide notice of the violation and opportunity of for hearing in a reasonable time to comply there was an order september fifth of two thousand and thirteen provided fifteen days to comply with four items my client submitted a response within twelve days to all four of those items if you fast forward the revocation order what does it says we're not going to revoke it based upon those four items in that september fifth thirty one a order instead we're going to look at the totality of the body of the circumstance and say you haven't implemented fish passage and so we're going to revoke your license for that purpose well submit to the court there's no where there's not a single piece of the record where it states build fish passage by a date certain and that's the kind of thing that section thirty one a required that would require build fish passage and were required eight that it was a reason we have a right to appeal but we were never given opportunity for that date so how c knowingly violate this body of twelve years which is recited it for brief and i have a difficult time making it out because there are so many so much different from ation so and here's here's the problem because i mean it's not at least i personally am not without some sympathy for your clients situation but even even as late as twenty fourteen the first staff issues order to cease generation on april seventeenth of two thousand and fourteen and they write you twice trying to resolve the that's were passed to provide licensees like ourselves an opportunity for a hearing and specific timelines in ninety days in which we could provide an alternative and if arthur alternative was as good as the resource agencies then by law it would have to be accepted we didn't have that opportunity here so instead we went for twelve years and and that's why that's why the record is as it is you are you've saved three minutes for rebuttal mr moore yes or thank you or mr sol it please the court robert solomon for the federal energy regulatory commission first allow me to apologize for the delay this morning turning to the merits of this case let me start with the last point  first with respect to the knowing the violation which is required by section thirty one of the federal power act the commission in its brief has focused on all twelve years of knowing noncompliance we sought to bring the licensee back into compliance with the terms of the license the commission did not act hastily but after twelve years and after twelve warnings that the commission might initially eight enforcement activities and afterward to show cause orders and what about your opponent makes that once a entered into this amendment that the fish people i'm sorry i don't know all the acronyms but that they kind of move the goalposts and other words that there was a a in amendment that was that was agreed to and they knew there was going to have to be provision made for the fish but then when they actually got into it and were were having to do it that there were more requirements put on for example i think monitoring and things like that that weren't necessarily i couldn't tell if they were contemplated at first i think these measures were contemplated the orders contemplate a fish way design a fish way construction schedule and effectiveness protocols to ensure that the fish are actually migrating past the juliet dam your honor is correct in the license itself the two thousand and two license amendment there is not specificity what the commission required in the license and what the georgia department required in its clean water act certificate is for the license consult with the appropriate resources agencies the georgia department the u s fish and wildlife service and the us national marine fisheries service this should not have come as a surprise to the licensee because the period before the license amendment issued one thousand nine hundred ninety nine to two thousand and two the record is replete with communications between the three resource agencies the licensee and the first yes petitioner is correct at one point in january two thousand a representative of the fish and wildlife service did communicate with the licensee and say that we recommend that you consider usage of the existing bypass channel for purposes of fish passage but what really matters is the license which is effectively a contract between the agency and the licensee and there is no suggestion whatsoever that the bypass canal would be appropriate to satisfy the fish weigh requirement the petitioner repeatedly cites to the twenty thirteen compliance order as being the entire focus of notice we believe that we have well satisfied all of the requirements of the two thousand and thirteen compliance order but the notice which is required under section thirty one of the federal power act is found not just simply in the two thousand and thirteen order but in the orders and letters that preceded that compliance order and license which was set to expire in two thousand and twenty six there was electricity being generated through this am and i guess there were some fish passed through as although they i guess the they were not deemed to be sufficient so now you've revoked his license so now they're not generating the electricity but the dam still there and the fish still aren't getting anywhere i guess if that's what the issue was so how's how does this end or what what what's the what or what is this just an exercise because we we we have laws and we have rules and you didn't follow him and so now we have to do something about it what's the end game here well the end game of course is satisfaction of the statutory and regulatory responsibilities that my agency must adhere to but i understand your honor and as the commission said in the final paragraph of the revocation order regulatory authority over the dam now passes from the federal government to the georgia dam regulatory authorities before the commission revoked there were various parties that came in and asked the commission to do more about the project facilities and about the dam and in particular american rivers and the ultimate riverkeeper said that my agency should go actually farther than it actually did recognize recognizing the financial constraints u the titian or all the commission ordered here was for the licensee to the river folks wanted you to tell them to tear the dam down do you did you even do you have that authority we have broad remedial authority under section three zero nine of the federal power in act two to undertake any and all the activities as necessary having said that it is extremely rare for my agency to order dam decommissioning or removal of the environmental groups came in and said we want more than simply the disabling of the generating equipment we want the generating equipment removed and we want you to consider either decommissioning or removal of the dam what my commission said is we will stop at the disabling it doesn't seem to make any sense for the financially strapped petitioner to be ordered to remove the project facilities and left it at that for the georgia authorities now now that you're out of the picture there is no power being generated they have the power to order the dam to be torn down yes and my agency tried over twelve years to all would have had no power to come in and stop them from the amount of power from generating power that they were doing before the first application that is exactly correct your honor section six of the federal power act sixteen u s c section seven ninety nine says that a license cannot be amended unilaterally rather it requires the mutual agreement so was it like a quid pro quo effectively that the deal was we're going to let you generate more electricity but we're go we need you to add this fish requirement into it is that is that more or less what happened that is more or less what happened and because you had as judge carnes that you otherwise wouldn't otherwise they could have generated the same amount of electricity until tw six and the fish would be that you couldn't require what what the amended license requires that is correct your honor and it is unusual in this federal scheme here my agency the f e r c is the lead licensing agency yet other federal and state resources agencies have a role as well under section four a one of the clean water act the georgia department of natural resources has to issue a clean water act certificate and under the clean water act the state of georgia effectively has the ability to veto the federal project if the state does not provide a  certificate if it does provide a certificate under the statute the conditions of that certificate become a term of the federal license which is what happened here the two thousand and two license amendment picked up verbatim the four conditions of the georgia department including condition for which the petitioner led with here and i want to indicate the obvious the state of georgia disagrees with petitioners interpretation of the georgia condition the state of georgia continuously throughout this proceeding has focused on fish passage at the dam that there is no tie between the license amendment and the fish passage other than the initial timing in two thousand and two judge carnes you're correct it was the license amendment that allowed the state of georgia and the two federal resources agencies to come in and require a particular type of fish way if the licensee had not sought the amendment the licensee and the fur would have been compelled to abide by the terms and conditions of the forty year  this point that george environmental agencies can come through and put the kybosh on that because of the passageway issue yes your honor i think so and that's why the consultation requirements are so important what the commission required in two thousand and two in the amended license and in the two thousand and seven and two thousand and thirteen compliance orders and in the show cause orders and in the two thousand and six fish lift order and the two thousand and twelve deniel fish way order is above all else for the license see to consult effectively and to provide my agency documentation of consultation with the georgia department and the two federal agencies that have the word fish in their titles not only do these agencies have particular expertise in the design of fish w an appropriate effect of mis protocols but the these agencies have prescriptive obligations that they can impose on the federal government the state of georgia has clean water act authority the fish and wildlife service and the national marine fisheries service they have authority under section eighteen of the federal power act sixteen u s c section eight eleven to actually prescribe to require particular fish weigh requirements here in the two thousand and two license amendment the commission construed the late submission of the fish and wildlife service and the national marine fisheries service as more of a recommendation as opposed to a mandatory prescription but really with respect to the design of the fish passage yes the ball really is primarily in the georgia department's court and i got to know and violations are well we believe the twelve year history of this case demonstrates the knowing two license amendment is there needs to be consultation with these resource agencies and there has to be documentation that is provided to my agency and we hope after twelve years of effort that the georgia department will in fact be able to work something out with the licensee can you talk briefly about the  new law that your opponent talks about no it doesn't necessarily apply here but if it if it applied retroactively let's say would it change the way this would have come out it might have because  sections eighteen section eighteen was amended in two thousand and five section thirty three sixteen u s c a twenty three d was added in two thousand and five and congress  sensitive to this particular issue and has provided now for provisions that allow a licensee if it disagrees with the recommendations or prescriptions of the other resource agencies to request a hearing before the resource agencies or to offer an alternative but as the two thousand and two order demonstrates the commission agreed with the three resource agencies that their recommendations as to fish passage at this particular dam to allow for face passage past this dam is entirely appropriate thank you your honor mr moore you've saved three minutes so so how does one provide notice of a requirement under section thirty one a week to heighten standard of unknowing violation and point to what was simply as a twelve year record and that's our contention your honor and to answer in further justice question about why did things happen between the may the september twenty thirty in order your requests to show cause in these other items if you look at the entirety of the record everything culminates in that september fifth twenty seventeen document actually the only thing that was specific enough here to meet the criteria thirty one day but we answered all four of those items within twelve days they gave us fifteen days the statute requires fifteen days now let me go into why why is for interpretation that it's this body of twelve years from two thousand and two to two thousand and fourteen why is that wrong well it's the plain language of the statute the statute refers to these orders as a single final order salute let me read thirty one b revocation order has got to show that it licensee has knowingly violated a final order a final order for example got to show that the licensee has been giving a reasonable time to comply fully with such order referring to a order and then further on in the past it states that there is just full review of the order now we could have gotten judicial review of the two thousand and two order and twenty thirteen or twenty fourteen you can't do that if you do that you file it says under two eight five seven one three the regulations you have thirty days you didn't file an appeal so that option wasn't available and justice kerrigan that explains to some extent why you saw the procedure that you saw following the two hundred twenty thirteen twenty fourteen i'm running out of time let me also add counsel's absolutely wrong about the bypass there's an environmental assessment that's required under the national environmental policy act to be issued with this license and then that it was indeed issued and that's on document record two five nine there's a picture of the bypass reaches the bypass canals that i spoke about that was what was contemplated by for it in two thousand and two so you must rule in favor of eastern hydroelectric because the order was not specific counsel also just stated that there of requirements a ladder a lift a bypass reach he actually agreed with us and so therefore there really was not the specificity required under section thirty one day to meet the hyde and knowing requirement with that i'll see my time