Second Circuit Requires Consideration of GIPA Plan for Cohoes Falls Hydro Power Station

Historic Cohoes Falls is said to be the state's second most significant waterfalls, after Niagara, but is dry much of the time due to an obsolete dam that diverted the water flow, first for water powered mills including the famous Harmony Mills, and later for a hydro power station. It may have played a role in our civic history: founding fathers Jefferson and Franklin reportedly visited there, met with the Iroquois, and studied their confederacy and system of government, which some believe was adapted to create our state and federal system.

Consideration of better options for the use of the water at Cohoes Falls, to replace the old dam with a more strategically located one, to increase the output of renewable energy while improving water flow over the falls, and for new recreational and other uses, was foreclosed by FERC when the agency denied the application of Green Island Power Authority (GIPA) to intervene in a long-pending hydro relicensing case. When the case went to court, a broad coalition of public interest and consumer groups supported better use of the site. See Amicus Brief Challenges FERC Refusal to Consider Better Use of Historic Cohoes Falls, PULP Network, Feb. 12, 2008.

In a great procedural victory, the Second Circuit Court of Appeals issued an opinion on August 10, 2009 requiring FERC to reconsider Green Island Power Authority's motion to intervene. The case was remanded to FERC with the following instructions:

if Green Island is permitted to intervene upon remand, FERC must consider GreenIsland's evidence regarding the Cohoes Falls Project so that it may determine whether the Cohoes Falls Project is a feasible alternative. If FERC determines that the Cohoes Falls Project is a feasible alternative, then it must give it full consideration when determining whether the School Street Project satisfies the "best adapted" standard of the Federal Power Act....

While not the end of the story this is a great victory for groups seeking a better use of the Cohoes Falls. Some improvements have been made to increase recreational use and public access. See Cohoes Falls An Ancient Wonder of the New World - Again!, Don Rittner, Times Union May 26, 2009. According to the U.S. Fish and Wildlife Service,

In deciding whether to issue a license, the Commission is required to give "equal consideration" to the following purposes: power and development; energy conservation; protection, mitigation of damage to, and enhancement of, fish and wildlife (including spawning grounds and habitat); protection of recreational opportunities, and preservation of other aspects of environmental quality (16 U.S.C. 797(f)).

The time frame for licenses can not exceed 50 years (16 U.S.C. 799). The Commission is authorized to grant preference to applications by States or municipalities when issuing preliminary permits or original licenses (16 U.S.C. 800). The project selected must be the project which is best adapted to a comprehensive plan for improving or developing a waterway for several public benefits, including benefits for the "adequate protection, mitigation and enhancement of fish and wildlife" (16 U.S.C. 803(a)). In making this determination, the Commission is required to consider the recommendations from various sources, including fish and wildlife recommendations of affected Indian tribes (16 U.S.C. 803(a)(2)(B)).

Because a hydro license may allow private use of public resources for decades, it remains to be seen whether FERC will grant intervention to GIPA and find, after further proceedings, that the owner of the Cohoes dam should be required to do more to effectuate the Federal Power Act requirements.

Update
8/10/2009 - Cohoes Falls Project Challenge Revived, Larry Rulison, Times Union.com

8/11/2009- GIPA Wins 'Falls' Debate - Court Gives Hope to Local Firm's Push for Cohoes Falls Hydro-power License, Larry Rulison, Times Union

8/25/09 - Senator Backs Hydro Plan - Schumer urges federal regulators to drop fight against Green Island project, Larry Rulison, Times Union.

10/1/09 - GIPA One Step Closer to Getting Brookfield's FERC License Revoked, Larry Rulison, Times Union.

10/2/09 - GIPA case takes step - Federal energy commission won't challenge court's decision on Brookfield license, Larry Rulison, Times Union.

12/22/09 - Schumer backs hydro plant plan, Larry Rulison, Times Union.