term adverse effect is right and it seems one of the starting places we have is that both agencies agree that the ninth the what happened pursuant to the one nine hundred eighty three order resulted in the ninet agree that it was not a then first effect that was prohibited by the lower right so my question is when we have the both agencies agreeing that the installation of a new power house a new tail race channel a new transmission line and then as i understand it essentially a limitation of covering over one hundred feet of dam is not under the statute an adverse effect what is it that  what standard is being used to say that those sorts of changes are not an adverse effect that would not that would mean that this proposed change isn't it first of all i think the difference here is this changes to the entire day that kind of seems to me to reject it the sort of anything that's adversely impacting the historical preservation or design or character position where we're now into position where you can do things that will in fact change in a modern way that could not have existed in the hundreds features of the dam such as a modern fish platter and once we're off into that  why don't we then start running into the substantial evidence or deference to the administrative decision making not on their meaning of the law but on their balancing the this type of change just to an add on fea dam was not so much greater than the earlier change that your client agrees is not an adverse event well i think because the act is in provide for that sort of balance and we're talking about whether to have verse effect or not it's not just an visible it raises the height of the dam and it collapses as designed when floodwaters home so this is what engineer francis put on the dam when he was in charge of the dam of the hundreds and so it's not just the top of a dam not to three hundred feet to the whole damn just affecting flashforwards at what point what criteria do we use to decide we've got to an adverse impact well that may be a harder case if we're talking forty percent of the day for example that would be a difficult a more difficult issue of how we reached out verse a fact or not we have to look at context history of the damage cetera here though we don't have that we have the whole thing and so the dam would no longer function would no longer appear and its structure would no longer be similar to what it was in the nineteenth century and the fus question so the point of the point in historical park the reason congress created this park is to with the modern fish was installed in one nine hundred eighty s how they differ from the old woman i don't have a picture in my head of what the old ones exactly look like the modern ones there are there are sites in the record and pictures of it federal power authority and means of safety as to safety that's when two critical points here if this was a safety issue the order would not say boo it's up to you to decide whether to install this or not once you've done your financial analysis on whether to go forward they would say this is a safety issue you must do it and the order simply doesn't do it it gives the option explaining that depending on how much this cost boot your choice of whether to install a certain on this wasn't triggered by the dam inspection program that first roads and it's just not the safety issue on the on the dam of that sort otherwise presumably for couldn't say it's up to you second as to flooding i'll be very brief here just as a factual matter if you look at the orders here we take it back to fish lad and it's in splits causing me the most difficulties with the argument i know i'm in there are lots of people who would argue that the history of our country's relationship with the wildlife and natural resources is a really important part of our history and the fish ladder and how industrializing america dealt with fish and getting up and down streams is a big part of the natural history of this country and i could make that argument seems to me as equally strong as you can make it who's how flash boys worked on top of the dam and yet we know that your agency agree that it's not an adverse effect to replace one hundred percent of the the entire fish ladder got replaced with a modern fish ladder so i'm having trouble understanding now why you you would say it's so fundamentally different to replace one hundred percent not of the dam but  the flashforwards with a new modern version that does that same function that it's so fundamentally different that we have to say the eighteen c here is a matter of law that's what's causing the difficulty i see your  ladder just as strongly as they fit the flashbulbs i don't think they're for destroying the fish water i think we should look at a few different places to find out why first if you look at the lower there's no mention of environmental protection it's about protecting industrial and the fish water is not the same as the flashforwards with the flash words of the clear wink to raising the height of the water increasing power increasing the gold of the looms and goals to generate so that's the first place we look is what the statute is trying to accomplish the second place we can look is the national register of history historic places documents national historical landmark places and there's no reference there with respect to environmental protection fish wafer tech shooting cetera it is focused on the role of the engineering of the dam the engineering of wall the canals the water the power the textile industry of the of my few centuries ago was in is called the park it's a historical park yes and they were interested in the waterway  interior the state historic preservation office here now the national trust for historic preservation the advisory council they all are perfectly clear that they think the flash words are historically important but congress kate this decision for congress gave the this this is the piece that i don't quite understand and i hope you'll help me out i don't really think the question necessarily stops at adverse effect it's adverse effect to what the way i read the act it's resources not just resource and whites can't for take into account the other resources in the park seems like paths well there's a couple responses to that the first reading of the statute just takes out the resources of entirely leaves that would leave the language adverse effect on the park or preservation district and that that we think the better reading is the resources of is inserted in certain order to make clear that there are multiple resources in the park and preservation district and what you need to look at is the baseline for impact is the resource that's being affected otherwise you're left with what first claims is is ok here which is well there's something left to tell the story of industrials and what but beyond that there's the  upstream impact the safety the recreation the that's what i'm getting at more than mitigation is important i think but but there are resources beyond the dam that they take into account and i thought that was the i guess i don't think they've made this argument in their in their brief or their especially their orders where they don't focus on the resources of language it's the resources of the park in preservation district and the statute is clearly creating those would order to protect historical resources it's not protecting recreational resources it's not recreational park it's not protecting environmental fish passage way it's not a national wildlife refuge it's a historical park and so what we're talking about is historical impact on a resource and i think when you look at the case through the lens of what the statute is trying to accomplish what you can't permit is is the replacement of the entire top of the da a fully modern steel concrete cross over a thousand feet across the dam and that's just to it a different impact than and is allowed we have a statute for thirty five years and never run into this before you know to date with respect to the fish weigh interior has weighed it and said we're not going to object we're not going to make the argument of the wall lack of that was close to the line but this one is way beyond wind in our position or in our belief and and would have a significant impact on the on the dam it's still there the caps are still there the flashcards are still there what we don't have is a damn that's failing we don't have mandating anything they're simply giving the option they're saying that the effect of this is actually to preserve for a longer period of morning good afternoon i'm carol oh it's ok sorry i'm carol the answer for the federal energy regulatory commission i'll just begin with the very last point  that was an earlier proposal that was removed in one of the later think so it's anchors would be drilled into the cap stones just as the polls for the last words have repeatedly and there are pictures in the record of the damage to the capstone but the capsules will that i did address that there would just be stealing drilled into the masonry through the capstone just as the pins have been i think the order did mention that the concrete had been removed i mean not remove the proposal and have been removed from the proposal that is i'm sure at least in the hearing order i know the commission mentioned it as that avoiding the initial prospect of there having  concrete on the caps and that and the commission said that the capstans would still be visible from from downstream when the when the crest gates are up just as they are now with the flash words they want to be visible from upstream but usually can't see anything from upstream because the water is covering up above the granite i want to make a point about the fish ladder the commission did it was was to try heavily on its previous mystery of the dam with this fish latter there was there was no question about that and that initial adverse effect was not removed but it was satisfactory mitigated by interpretive exhibits visitor facilities illustrating the difference between historic and modern generation and by documentation of the dam as it was before the modifications which is something that has for preservation statutes account for as as a measure documentation just as some pictures that the court can look at later there's a drawing of where the fish ladder is relative to the dam at fourteen ninety five of the appendix there's an aerial picture at fifteen thirty two and there's a close up picture at one ninety five that really shows that it is a modern stealing concrete fish ladder the it doesn't in any way resemble the rudimentary fish ladder that had really just an opening in the dam that had existed previously so the commission looked at what happened with the you have a war and after picture right the after is and is a is an artist's rendition yes and it is a rendition before some of the later changes i do you really can't see from that picture that there would have been concrete over the cap stones but it wouldn't look exactly like this because it was actually changed to make it less intrusive and you know there was a question mark at the end of my son it's but that's not really the question is the question is these things are and that they're pneumatic so they're inflatable ok that drawing is that while they're inflated or not inflated i believe that's why they're upright yes that's certainly my understanding of what that picture supposed to represent what it would look like from the downstream view because most of the time they're expected that's right there are spring floods in april or may i believe the record showed in your average year i think in two thousand and nine the  flashforwards are washed out five were washed out five times in two thousand and nine so there would be certain occasions in the year where the crest would be completely lower and all you see that is the picture of the waterfall that is somewhere in the record as well and that would look exactly the same and then much of the rest of the year from upstream all the recreational boating and such you don't see very much because you know it stays above the ground on the dam and the downstream i think the view tends to be from a distance except maybe right from that one observation direct so that the commission did find that there would be a change the appearance it didn't agree with this  evidence in the record about the significance of the dam and there is just there is no evidence in this record of the flashforwards in particular except one reference that they existed but but all of the evidence from the keeper of the national register and from the nomination forms was that the dam is is a significant part of the system or its significance is its association with the canals and the mills of wool and so the commission did look at it that way  i would go in particular to rehearing order paragraph twenty two and the original order paragraph ninety six where the commission talked about the how this would not happen at this change would not have an adverse effect on the dam in its role within the context or or and would not also have an adverse effect on the resources collectively of the park yes but to be fair when i was asking opposing counsel about that i was talking about recreation and other upstream affects flooding in that sort of thing and those really weren't taken into account i take it in terms of adverse effect on resources and you are limiting resources to historical resource that's right because the way the commission did it and you really see it in the first order as it must under the federal power act considered considered all of the various things in the federal power that it's required to consider and that has always included historical resources i would refer to the scenic hudson case from one thousand nine hundred sixty five that that historic preservation has always been considered by the courts in the agency to be w responsibilities as to recreational opportunities and such but this goes right to correct me if i'm wrong goes right to his point though that that is to say if any balancing used to be done it's in  among the historical resources and we really shouldn't be considering those other things that it that it suggested that it was going to balance and did balance so isn't that a tension point here that we have to do you know that's actually of the discussion in the amendment order about balance is in those sections but the wall act itself is considered separately beginning with paragraphs one twenty five through one forty eight that's where the commission looks separately just at the wall act and there's no balancing against other things in that section it looks a little act on its own terms it doesn't say well there's an adverse effect but we balance that against everything else and it's ok that's not how it treated the l it did of course allow its other concerns including the flooding to inform its analysis as far as the other sections of the n h and i had to go through that to understand that myself because there was a lot of discussion in the amendment order about balancing but not in the section that deals specifically with the law lacked the key holding it in the first order with regard to lol act i think well there it does in of eighty nine t vin though that is dealing with all of the any c p a considerations together it says the dance historic and engineering significance stems not from its particular means of press control but from its association with locks canals and mills and then when it gets to look at the law act in particular it talks about whether there's an adverse effect on its ability to convey that role or play its part in the the in the park i wan it's the federal transit administration being charged under the statute i think it was under one ten f with making the adverse effect of terminations and the courts defer to that because in that case there were parties saying you're  federal transit in this race and you don't get deference for this and this court specifically disagreed and said that the statute leaves it to whatever agency is doing the licensing to make that determination and that will be informed of course by the mean the next time the flash words are destroyed from the excess water they just put a plywood again for now yes i mean that has been that is what they're continuing to do now because  in this proceeding and i think the commission said it was staff said at one point the license in in one thousand nine hundred three didn't make any specifications for what it what it had to be i know that there were no flash boards and they were and and some of them in areas where i think that the flooding in the impoundment areas is more of a concern the modern you know the more preferred technology is the kresge as has been done downstream on the essex dam in lawrence and there's material on the record about how successful that's been there  flash boards from the one nine hundred twenty s in the in the joint appendix at fourteen sixty eight and that shows are still using wooden planks at that time slowly and also shows how inherently dangerous the work of installing the planes  were i'm sure osha would be really pleased to see those workers sitting in the little boats and hanging off the side of the dam trying to put these large pins into the granite concrete and installed up the planes to them i think church had to have the correct question when he asked how is an adverse effect determined and who determines it and it's an interesting process it's not just that it created all this has or has not an adverse effect the way it is done practically it or it it in through through the procedure is an initially new term and we're going to do take some action and that may have an adverse effect on our historic property and then he looked to just as is proposed here that mitigated it in making but it could mitigate the size of the of the fish ways because it's a massive concrete structure just tons of concrete poured over the granite dam in order to make the step truck sure so the fish can go up in another instance which is in the record but not and discussed briefly in our brief is the destruction of the university avenue bridge and shows the process exactly the university avenue bridge was built in one thousand nine hundred five and this is in a record at thirteen thirty one and thirteen thirty two about thirteen thirty three and it's a memorandum of understanding between the national park service to low and the national highway administration and they're going to take on a bridge put up a new bridge destroy several houses historic houses in the and in the meantime in order to put bridges they make the initial finding there was an average this will be an adverse effect and then they'd mitigate it by designing a contest rule sensitive bridge to the over the over the merrimack river and also some archival photographs so what you have is an adverse effect of terminations and then the mitigation measures that would be used to minimize the adverse effect in alleviated so that you could make the no adverse effect where in the language of the statute to the point  that would say it's ok to have an adverse effect as long as you mitigate it is neither in this statute nor in the national historic preservation act statute five details what an adverse effect may be in eight hundred six details how you avoid mitigate or minimize an adverse effect in order to have no adverse effect rule so congress is in adapting the term adverse agency in this case has to make a second determination in this case that there is no adverse effect through litigation or minimisation which it doesn't have to make under put on the stand well there is no dust or felician yeah we were at the outset so i don't think congress would have jumped in quite yet second the extent there was a question from josh howard about the use of plywood first order a dent in page forty six says that the current structure is structure of the current structure being a flashpoint systems with plywood steel and so there's no question here at interior thinks it could be better but there's no question here that and frank has an order that is not what equivalent of what's been there historically and we rule that you get the boards look more his or not we have not we've not claimed that what we're worried about is they still cross as to the amount of concrete on it we don't know the first design was concrete across stones but it's not no concrete somewhere in the middle and we don't know the answer get to that but we think it's too much as to the fish line or one point i do not make is the fish water from the far side from the critical historical resources of the is brown we're going to paint the thing brown and second we're going to put black straps on it and third we're going to put an exhibit showing you what used to be there for the point of historical park is not to ensure color coding that's consistent or to have exhibits fundamentally different then certainly when they approach it close right even not even particularly closely you can see them from from the from the gatekeeper side from the gatehouse the only time can see them is when the whole thing is over top with water which has both and they are part of the dam they function differently than the current state and the function of force is that the same now says the hundred thirty s regardless of whether they're one two or five feet and they were five feet by late in the nineteenth century so that the five feet height has been around for a long time as a different task with respect to this narrow geographic area which is no adverse effect on the resources of the park and to comply with the standards so for all those reasons we think here are that the change first is authorized would be substantial significant