service the river quote has experienced one of the largest extinction rates in north america many of the species that remain are on the brink of extinction the project area alone is home to numerous threatened endangered species and that is why it is so critical that the agencies follow the correct procedures and make a fully informed decision here because the terms of this license will continue through at least twenty forty three i've laid to rest two arguments today three because intervention guides us that this court is permitted to look at contemporaneous or near contemporaneous filings to show petitioners and tat here we filed a motion to consolidate the first and second petitions for view almost immediately after filing our second petition purview and that we made clear exactly what we were seeking interview and why we structured our filing with the way we dead because we wanted to make sure that we have that first petition for review given this court's order and snowflake because this is an order the docketing statement that specify that we are seeking interview at the license order also this if it gets to parties rulings and related cases that specify that we were seeking review of the license order and the docket it in the first position which was still at that point on it was no docket right for us the first petition for reveal is still docket and that there had been a motion to dismiss and we have made clear why we filed that when we did and so again the key under introversion is it's a mistaken specification of the order on of you is it paid also long as petitioners intent was clear i think here our intent was very clear from the motion to consolidate that was filed after the second  view from that docketing statement from the first petition purview but the third point is even if this court finds that those filings didn't adequately show intent the petitioners properly incorporated all of our arguments order at j five seventy one to five seventy two they acknowledge that we had incorporated those arguments and they summarily deny those arguments that were made in our first petition for review and they cited to the section of their cursory hearing order on why they had denied this so i think for any of those three reasons here the  so moving out of the merits the first issue i want to address is the issue and as this court is well aware underneath but if any significant environmental impacts might result from the proposed agency action then yes must be prepared and if the commission doesn't prepare and yes it must make a convincing case for why it determined the project would have no significant impact the need for regulations lay out several factors to be considered in evaluating significance we walked through several of those in our brief but i want to focus on just a couple this morning first as a license have impacts that may be either beneficial or adverse and i want to talk about three points here because i think they are crucial to understanding the long term impacts of this license the first is the d species do to survive and grow and reproduce here the license sets a four point zero milligrams per liter standard during generation but it places absolutely no restrictions on dissolved oxygen during on generation and to put that in some context if you look at the license at the logan martin development for example the generation period that the license talks about is only one to six hours per day so that means not generation is the majority of this time was it is a range it varies by day but i will and i don't have it in front of me but i'll get your response under battle but i can say that joint and it's for ninety nine it talks about the fact that four of these dams go below four point zero on a daily basis at least for that study period now the commission states in the environmental or in the environmental assessment and in their brief that four point zero milligrams per liter is the accepted minimum for federal agencies but leave mandated to ensure the continued survival of the endangered species in this river and their two thousand and five comments on the draft environmental assessment they advocated for a five point zero minimum during generation  five and in the biological opinion they said that the failure to address non charter and cite the failure to address dissolved oxygen during non discharge periods is a quote major concern since it does not consider that the biological needs a fission mollusks must still be met when hydroelectric project is not generating so efficient while that has called this a major concern the e p a has said quote based on the potential biological effects of sub five point zero milligrams per liter dissolved oxygen concentration to fishes in a court of aquatic invertebrates it seems clear that low dissolved oxygen concentration in many of the facilities tail waters during that's not necessarily the case it is true that alabama has a four point zero standard but i think what's important to remember about that four point zero standard is that that is a carvel for existing hydro electric electric utilities  the state of alabama every other water user in the state has to meet if i put in milligrams for leadership and or so you're saying is that the only reason for payment was that we don't have to because we think that that's what state comes in yes and they also mentioned that for as a reason for not requiring it very non generation because some of these technologies only apply during generation but in response to that there are they did talk about the fact that they were going to consider termite nation here but what you are just pointed out is one of the major flaws with that they didn't provide any details of the system they didn't provide how it would be effective at these particular dams and so  he efficiency of those mitigation measures we really don't know what that would be and the other problem there is these medication measures that they talk about are only designed to bring are only required under the license to bring that dissolved oxygen standard  to the four point zero level and so they mention the possibility that it could bring it up higher but the point is the license doesn't require it to go higher what the license requires is a thorough standard and it doesn't require any standard going on generation don't know i have i specifically don't know the details of the technology certainly one of the points that they argue is that if you raise that dissolved oxygen level enough during generation that then during our generation the dissolved oxygen level will come up as well  and certainly there are places around the country where they have affectively used area turbines other mitigation measures to raise all oxygen and again the problem is it's not with the license requires here and there's no we have no assurance in the license that this will be done so one of the big points that we make is that this is what it requires to be done before the federal action is taken before the license is  extended because what we need to know here is that will work and that will bring that is all docs should level up to a level that is safe for these endangered species that will promote the ecological health of the river and when the studies are not done until after you have a license in place for twenty five until twenty forty three it really does no good to look at those issues after they have already set the dissolved oxygen standard at the very low level of four point zero gravity of your time here but would you the role of past harm and damage that might be for the cumulative impacts analysis it is absolutely crucial that they look at the past harm and here i think it is very  because this is a river where the fish and wildlife service as i mentioned has acknowledged that it is one of the largest extinction rates in twentieth century north america with the extinction extirpation of nearly forty species and so it's critical that they look at that as part of the impacts but i think where their baseline analysis breaks down is that they say because of the baseline we don't have to consider any of these impacts going forward because the stream already hasn't heard the river a because the purpose of relicensing isn't simply the continuation of the status quo it is a full reconsideration of the operation of these dams going forward and one of the reasons for that is that many of these dams were originally licensed someone the one hundred twenty somewhere  of the government correct and i'll take your question two parts first we're not asking for these acts to be applied retroactively what we're asking for there is them for them to be applied moving forward for this license that is going to be an impact for the next thirty years and i think this court has acknowledged this in the city of tacoma case the court said quote preferred not only has the authority but also the obligation to evaluate existing projects completely and new upon expiration of their license terms so if any are we talking about the cumulative impact part of the analysis underneath are we talking about the biological opinion  yes are we talking about both because it seems like this question about how you determine the baseline is germane to both yes and we're using i'm sorry impacts yes you have to look at the past but the baseline issue i think that the commission and power have tried to use this baseline issue to say we don't have to continue to consider the impacts of these dance going forward and that's just not the case it's not what this court said and city have to come up when they required the commission to consider impacts moving forward completely a new we say it's another case law in our brief as to that and so i think the distinction here is that the existence of the dams are baseline we recognize that but the operation of those dams moving forward what the dissolved oxygen level should be for the next thirty years whether there should be fish passage for the next thirty years whether there should be minimum flows for the next thirty years these are all part of effects of the action they were affirmative decisions that were made in the slices to select what should be going with select what should be done moving forward for the next three decades and that has to be considered as so even this instead i'll take statement down under what they contend the environment environmental baseline should be is arbitrary and capricious it just doesn't connect the impacts that they find to the conclusions that they reach can give can you give us your synopsis on the baseline under biological opinion part of it absolutely so the baseline issue there there's actually a specific section of the can baseline there and what it says within the facts of the action it says quote under the federal power act issues new licenses for existing hydropower projects as the original licenses expire  determined that these new licenses represent a new commitment of resources therefore a section seven analysis of the project's effect on listed species is done is the same way as new projects so i think the result you reach a somewhat the same it's just the law you use in getting there is different because you're looking at the consultation handbook as opposed to the case law underneath but i think the point is again the operation of these dance can be considered in that baseline baseline but how they are going to be operated for the next thirty years is very much part of the effects of this action because that's going to continue to have impacts on these species that are not part of the past impacts work and can you draw distinction between the effect on this feces and the condition that's creating the effect so to be a little more hungry if you look at the d o levels the oxygen levels so future we're not talking about the past we live in if you're attractive will talk of the future but in talking about the future resuming the video levels that are in place as a result of existing measures remain in place so you put that as part of the baseline but then the the effect on the species as the future effect on the species or the consequence of that wouldn't be part of the baseline that would be something that you have to consider as an effect because it sounds to me like your argument is that the going forward d levels are also part of the effects not part of the baseline and i guess what i'm suggesting is that maybe one could draw a distinction between the going forward the old levels under the existing state of affairs assume that that's part of the baseline but then still say that the consequence of that for species has to be considered as a fact is that is that making sense or is that i'm i am i can say well our position is that the deal levels going forward are part of the effects of the action and here is the reason we say that because both the letter you are looking at this under any power whether you're looking at this under the endangered species act and whether you're relying on city have to tacoma or whether you're relying on the consultation him back it's very clear that the purpose of can't be to continue the status quo of the discretionary impacts of relicensing have to be evaluated completely and you so that affirmative decision to say going forward we're going to set a four point zero it's all docs to a level that is not part of the base  decision that is going to impact these dams for the next or this river for the next thirty years and so that is part of the effects of the action of the endangered species act and it's a significant impact under need us so we don't think there's ongoing operations of the dams fall into the baseline the baseline but that said with the cumulative impact analysis underneath and with the required baseline analysis under the endangered species act not triggered by reopening or re initiating and i believe it deals with an additional population of one of the species that may have been found so i don't argue actions to the portion of the question about first reasons for not having a standard during periods where the project is not generating electricity what the commission said there is that the need for additional measures from the projects problem because you didn't know what they were going to do you just saying would you some kind of you don't even know you said come back in six months and tell me what your proposal is six months after you license this and take eighteen months seen you say give me a proposal right now before i licenses and you show me the facts of the successful somewhere else matters here because the conditions are at all comparable and that you're going to do the same thing you and evaluate the various environmental concerns i think the commission's record reflects that or tried to do that here with respect to dissolved oxygen this the commission has required in other licenses these kinds of provisions where the licensee comes back to the commission with more details about some particular aspect of the proposal in the past and that's something this course approved in the past with with as i assume it would depend on what else was also baked into it it's one thing if not being enhanced series simply by the use of the diffuser systems of the area systems it was also by other aspects of the license for example the what's known as the adaptive management plans with respect to several of the of the license together not just the initial system of these other aspects as well whether it's a believe and also the fact that other agencies were in agreement that this standard was the appropriate one le  i apologize for that was actually the second i can also direct you to the to the environmental so it's not as well but has more information there's a few different pages ninety seven is the first one is also ten forty six actually you know i think ten forty six is probably the best place to start that's the reference to the adoptive management plan actually it's the first four paragraphs on that page  that discusses that specific percentage of the dissolved oxygen falling below four point zero and how the commission would address that but what we have in the records is that well first of all i mean one point i'll make before all this is that certainly the commission has the ability to require additional protections i think what the commission is trying to balance here is those various en concerns against all the other concerns that it's required to consider on the on of the phone power the need for the power the cost of maintaining the systems and so forth how did you find that there would be it would be too expensive to require a fo more is that so if it costs a penny more then we can go the desire without alabama power company saying are finding that it would cost so much more that it would damage and they operate it would carrying will harm reduction that there that balancing that will cost x number and it's not worth it because i just didn't see that enough or i don't know i don't think that there is that discussion that as you put it requiring a standard during periods of non generation will harm power production i think what the commission did say is that there wasn't a demonstration a higher i'm talking about during one generation right but also i think we also have an indication of the record that the alabama water quality certification applied only during periods of generation not during periods when the project was not  all require something machine that's going to have these other adverse consequences more is just too expensive it's not worth it or golly gee that's too much oxygen is going to hurt some other species what i can see in this whole decision was it only during an operation i don't see why why the needs for generating power why it wasn't technologically feed any of these so the so that's a great question i think that leads me to a point that we can't even keep it informal even though that's what we hire we sent you that doesn't marry well with your statement that oh no what we did was say alabama's got a plan they're going to come back and tell us what the plan is and they're going to put in place everything's going to be but at the same time as i mentioned for me the commissions ability to require more of depends it needs to be tempered by the fact that the commission has to balance a number of other conditions considerations of the commission i mean the fact that mentioned this before but the part of the determination was the fact that it found that because it's an monitoring even though there's only a standard for dissolved oxygen during periods when the project is ultimate biological opinion by fish and wildlife is i think i mentioned the other agencies before the ultimate conclusion was that the realizing of a project as long as the commission took into account a number of mitigation measures would not jeopardiz suggestion that you're not as i think a lot of touch properly is erroneous sure and i think what the what they said in their brief was that the commission failed to consider the past action the past action being the construction effects analysis in the environmental assessment i can give you all sites and we can turn to the pages of that would be helpful j a ten ten is one place we can specifically deo concentrations invested in fish and molluscs populations in the basin so that's one place that we have that discussion happening we have similar language and other pages that i referenced including in the record it needs to be reasonably addressed and we have a number of places in the record where construction operation was reasonably address and this was not the only two model the facts and now argument that was raised before the commission now the construction operation of the da have to deal with it at all we don't have to address that problem at all or easier view look we're sorry you lost fifty percent of your golden fish before we can deal with that that was over and done by the time we came along but going forward for hypothetical that's something that certainly would have to be considered and what i consider we considered in what way it has to be considered because it has to be referees but i think the the the point of the question is what do you do with the fact that under the existing state of affairs there's going to be continued depletion of the species that's that seems like that's a strike against that has to be taken into account not just the well that's just the way things are right now and therefore although we consider in the sense  noting that that's can you continue to happen that's ok sure and i think that that gets to the second part of the cancer which is at the end of the day for a crust to to look the expert agency fish and wildlife on issues forward the existing state of affairs as it continues to deplete the species is not a significant impact because it's just part of what's already been going on and therefore there's no way i guess required that's one thing but if you would say that no carrying forward the existing state of affairs continues to deplete the species and that's part of the cumulative impact we need to take into account in determining whether me i guess is required that seems like something else and i thought the point of the judge was was question if you take carry forward the existing state of affairs that it continues to result in depletion of the species can the agency just say well that's that's not something this significant in terms of he will have impact because that's just out of school and so no e i a s is necessary i think it's the latter and that the commission if that species is being depleted at that rate it wouldn't necessarily have to be part of the consideration of whether there is a significant impact on species such that an environmental impact statement would be required because i understood you to be making the other argument that you are taking the former position here but maybe mr misunderstood other you were taking the former position in the brief and that part of the reason that you need is enough is because the analysis purposes that pronk of nepa we consider the going forward of facts of the of the existing state of affairs as a given but maybe i'm only look at no effect something to get new a fact right you only look at new significant impact what the commission did say is that there was not a showing that any species was in jeopardy as a result of the commission's relicensing decision than obviously that was supported by the decline i mean certain that the environmental says we contained a large section devoted to species i can't stand in here tell you where a specific species was discussed when we put in our brief the overall range of it was something like  least thirty to forty pages where this is discussed what i'll say is that i think i've mentioned this before but underneath that the commission has to its obligations to adequately identify and evaluate the  all the potential environmental impacts in a circumstance like this one where you have a fairly extensive environmental assessment the question i think turns less on the issue of whether it should have been an impact statement or not but was the and the action that burke put before it proposed continuing current operations for thirty years into the future with modifications that were designed to be beneficial to seize such as dissolved oxygen and hansen's a new flow in the biological opinion that continuing operations grown operations thirty years into the future with these modifications was not likely to jeopardize a species or adversely modify critical habitat and  mostly to non lethal harassment of individuals within the actual area and moreover these individuals have been living under these conditions for decades  no way that we can see that's true anderson but i think this court is going to the record as a whole and the biological opinion as a whole and there is more than sufficient information in the biological opinion for the first time that will be beneficial to the species now with respect to the take for that one particular action with the service predicted was that there would be ninety percent harassment ten percent harm to be sensitive  individuals but of course there was mitigation put in place because the harm was going to come through higher water temperatures on that one time use for a few days after the activities but there were mitigation measures put in place to monitor of my crime in thirty years more importantly with respect to this particular action that one time release of water occurred in twenty fourteen and therefore this particular provision is no longer operative it's no longer a fact it's no longer it's breath and again the other the only other place where we're talking about yes a list of species in the vicinity is below or in the vicinity of logan martin dam which is also an area known as lady lake dissolved oxygen level means logan dam are below for a mouth fifty seven percent of the non generation time when the consequences of that for the species for the endangered species in that area when of course species have been living under these conditions for decades and they're still found there but that being said the service did consider it to be a big issue that the issue of we mean a  before the license issue or is it ok to wait a couple years from plan a plan so that not jeopardize well again seize the service the service is obligation here is tell me that of a consulting agency you can only make recommendations i'm just on your judgement about jeopardy j one fifty five but with respect to jeopardy again not only does the fact that it's only non lethal harassment been predicted but it also has to be considered that these populations these individuals are only a very small percentage of the population as a whole and the fish and wildlife services in that area and them knowing that in the the the united states as a whole  because it's not populated would be it would not be jeff it would not necessarily be jeopardy of course it depends on the facts but the service is at analysis and pertains to the population as a whole not in this particular area that is the  the fact that the service has to take a species level look that is also in the biological of a you know what percent of the time it's these turbines are generating what percentage of the time they're not generating so how much time are we no statics they may not even be doing that every day it's monday through friday so the overwhelming majority of the time is nine aeration as to those places that you that's correct and the other the other developments are run of the river developments of the you got the same with yeah well i mean certainly though the environmental factors and the current of the current impacts are considered as part of the baseline but going forward the project operations are considered an effect of the action no not but i and i get that but that's just that that's just saying that i love the generality under saying that suppose you have an existing project that results in a ten percent making more money that hundred snails  die each year from an existing project and then then we're considering realizing to have a project with a new are we saying that the additional hundred would continue to die each year under these is the state of affairs is just part of the baseline it's going to happen in the future it would continue happen in the future it's the same way but it's something it's an additional depletion of one hundred it looks at the baseline and it adds to the baseline the effects of the action so no matter what and that situation that fact would be taken into consideration by the service and making at jeopardy germany and the existence  operations going forward into the future were considered by the service and this is a profit i guess conceptually it seems like it would be important and it's surprising to me that it wouldn't be important because but mr literals of the agency has as part of the crux of the action and those two things are considered in the aggregate when making a jeopardy to terminate and practicality doesn't matter and here the service did consider current operations going forward i w court to j fourteen ninety six which is the conclusion in the biological opinion wording notes that are considered both current and proposed future operations and their impact and  take statement where the service had population that it expressed take it and forms of a specific number so there's a specific numeric trigger but the service explained that for many of the species it lacked population density data and so what it did there for purposes of the jeopardy analysis is it conservatively assumed that one hundred percent of the species in the action of the individuals in the action area would be a by definition you cannot exceed the level of one hundred percent so would be no reason to reinitiate consultation based on the number of individuals affected he can't count them though how do you know if in fact you're going if you're wrong in fact fifty percent die and fifty percent so for the most part only non lethal harassment is harm is either not predicted at all or predicted only in a very specific situation like the wife's bypass example i gave earlier so if at the peaking dance the license says it will be one to six hours monday through friday so the vast majority of the time it's not generating and there's no standard whatsoever i want to us first one of the last points made by the and it is a critical part of the doctrine of institutionalized caution which is the purpose of the endangered species act i also want to address a couple of the question they do if they can't count them sooner to it does allow for the regulations do allow for surrogates but you have to use those circuits properly and they haven't done that here i also want to address the point that the majority of the take here is non lethal harassment and i believe this says the only place that you have harm is in the that's not accurate one example of that is the harm from the draw down of lady lake they discussed the fact on a fifteen hundred that there will be harm to the rough horn scale this is a species the yellow report in of lady lake has eighty percent of the species range in the rough or in sale is only found in a couple of locations anywhere eighty percent of its range is here they discuss the fact that there may be harm or harassment  and so that's critical but even where there is non lethal harassment the definition of harassment is you have to injure a species to such an extent that you disrupt their breeding and their feeding when we're talking about endanger issues like can they reproduce are critically important to their continued success going back momentarily to the baseline issue i just want to highlight the fact that existing because of the affirmative decisions made in this license and so it very much has to be can centered as an effect underneath and as an effect of the action under the endangered species act and finally just very briefly conclude going back to the standard underneath the real question here before the court for the need my question is may there be significant impacts and we're talking about seven am over two hundred seventy five  river operating these dams in the past has caused the extinction or extirpation nearly forty species it has brought many more species to the brink of extinction and the commission's position is but going forward there won't be any more significant impacts your honour's that