ATLANTA (CN) — The operator of a dam in Macon County, Georgia, asked the 11th Circuit on Thursday to reverse a decision by federal regulators to revoke its license because it failed to provide fish passageways through its hydroelectric power plant.
The Federal Energy Regulatory Commission ordered the plant shut down in 2014, following a 12-year effort to force Eastern Hydroelectric to comply with the agency’s fishway requirements.
The power plant is located on the East Juliette dam on the Ocmulgee River 20 miles north of the city of Macon. The dam blocks American shad fish from reaching their spawning grounds, federal regulators say.
Although American shad are not considered endangered and are not regulated under the Endangered Species Act, their numbers are waning. The Ocmulgee river system holds the largest American shad spawning population in Georgia.
When Eastern Hydroelectric applied for an amendment to its original license in order to build a new powerhouse on the Ocmulgee River’s west bank in 2002, regulators granted the amendment on the condition that the power plant operator construct a passage for the migrating fish.
The commission’s decision was supported by state and federal agencies, including the Georgia Department of Natural Resources, the National Marine Fisheries Service and the U.S. Fish and Wildlife Service.
Although Eastern Hydroelectric agreed to complete the project and asked for numerous extensions to construct either a “fish lift” or a “fish ladder,” 12 years passed with no progress, the government says.
Now attorneys representing Eastern Hydroelectric argue that the company did not knowingly violate the commission’s orders.
Attorney David Moore argued on behalf of Eastern Hydroelectric on Thursday that the power plant’s pattern of non-compliance arose from an inability to meet FERC’s changing requests.
“After the amendment was granted, the government changed from wanting a fishway to wanting a fish lift to wanting a serpentine ladder,” Moore said.
According to a brief submitted to the 11th Circuit by the commission, the decision to build a fish lift instead of the original fishway passage was proposed by Eastern Hydroelectric in response to concerns over the costs of construction. Eastern Hydro never built the fish lift or any other form of fishway passage.
Circuit Judge Timothy Corrigan asked attorneys representing the commission to respond to Eastern Hydroelectric’s allegations that the agency engaged in “goal post moving.”
“Different measures were contemplated and effective protocols were considered. But the license was not specific other than telling the licensee to cooperate with fishery and marine agencies,” Robert Solomon, the attorney representing commission, explained.
According to Solomon, Eastern Hydroelectric’s real issue lies with the state and federal wildlife agencies.
“The ball is in the Georgia departments’ court in regards to addressing the building of the fish passage. We hope the Georgia departments will be able to work something out with Eastern Hydro,” Solomon said.
“Under the license, electricity can be produced through the dam until 2026. The license was revoked but fish still aren’t getting anywhere because of the dam. How does this end? Is this just an exercise because of the law? What is the end game here?” Judge Corrigan asked.
For now, it appears that the commission and Eastern Hydroelectric are at an impasse.
Solomon says it is extremely unlikely that the agency will ask Eastern Hydroelectric to remove the dam but there is also no indication that the commission will reinstate the power plant’s license.