ELR Citation: ELR 20238
No(s). s. 91-1466, -1534 (D.C. Cir. Dec 4, 1992)

The court upholds orders by the Federal Energy Regulatory Commission (FERC) directing a hydro-electric power company to increase the minimum regular water release rates from its dam on the Coosa River in Alabama. Although the orders were originally based on the need to protect fishing and recreational boating, the power company sought review of the orders after a snail, theretofore believed extinct, was detected below the dam. The court first holds that FERC satisfied its duty under the Endangered Species Act (ESA) §7(a)(4) to "confer" with the Secretary of the Interior about the likelihood that its increased flow orders would jeopardize the continued existence of the snail. Both the U.S. Fish and Wildlife Service (FWS) and FERC evaluated the situation and concluded that the increased flow orders, while intended originally to benefit the stream's fishery, would not jeopardize the snail. Rather, the increased flow orders would result in improved quality and quantity of the aquatic habitat of the snail. Moreover, FERC fulfilled its duty to consult with the FWS after the snail was listed as endangered under the ESA. Finally, the court holds that FERC did not violate ESA §7(a)(2) by failing to conduct a baseline study of the snail's habitat needs and life cycle before implementing the orders, because at the time the power company sought review of the orders, the FWS had only proposed the snail for ESA listing. Thus, FERC's obligation at that time was not to consult, but to confer about actions likely to jeopardize the snail's existence. By the time the snail was listed and ESA §7(a)(2) became applicable, the baseline or original stream conditions were changed by the new minimum flow rates, precluding a study of the species' prior habitat.

Counsel for Petitioner
Marshall Timberlake
Balch & Bingham
1901 6th Ave. N., Ste. 2600, Birmingham AL 35201
(205) 251-8100

Counsel for Respondent
Joel M. Cockrell
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0177

Before: WILLIAMS, SENTELLE, and RANDOLPH, Circuit Judges.