## Facts

- Alabama Power Company (APC) operated the Jordan Dam, a FERC-licensed hydroelectric project on the Coosa River in Alabama.
- FERC and the U.S. Fish and Wildlife Service (FWS) had been addressing minimum-flow requirements below the dam to protect downstream aquatic resources.
- In 1988, tulotoma snails were discovered downstream of the dam; the species was believed extinct.
- While listing activity proceeded, FERC began informal ESA § 7 consultation with FWS regarding dam operations and impacts on the tulotoma.
- In May 1990, FWS advised that a continuous minimum flow below the dam would improve habitat for the tulotoma.
- In November 1990, FERC ordered APC to maintain a specified continuous minimum discharge from Jordan Dam; APC complied but sought rehearing.
- In December 1990, APC submitted expert material (a malacologist’s affidavit) disputing the biological basis for the chosen flow and proposing a study assessing effects of reverting to pre-order flows.
- In February 1991, FWS listed the tulotoma as endangered; FERC commenced formal ESA § 7(a)(2) consultation.
- In July 1991, FWS issued a biological opinion concluding the ordered continuous minimum flows benefited the tulotoma by expanding and improving downstream habitat.
- After FERC denied relief, APC petitioned the D.C. Circuit for review of the final FERC order.

## Issues

1. Whether FERC violated ESA § 7(a)(2) by failing to use the “best scientific and commercial data available” when imposing the continuous minimum-flow requirement, including by not conducting a baseline study and by allegedly insufficiently addressing APC’s expert submission.
2. Whether FERC’s adoption of the flow regime, based largely on FWS consultation and biological conclusions, was arbitrary or capricious under administrative law review.

## Decision

- The court denied APC’s petition for review and upheld FERC’s minimum-flow order.
- The court held that ESA § 7(a)(2)’s “best available data” standard did not require FERC to conduct new baseline studies before acting.
- The court accepted FERC’s reliance on FWS’s biological opinion and expert judgment regarding species habitat needs.
- The court concluded that disagreement from APC’s expert did not make the order unlawful where FERC reasonably chose between competing scientific views and provided an adequate explanation.
- The court found no ESA violation based on timing because FERC engaged in consultation and, after listing, completed formal consultation supporting the operational condition.

## Legal Principles

- ESA § 7(a)(2) requires an action agency to consult with the expert wildlife agency and to use the “best scientific and commercial data available” in avoiding actions likely to jeopardize a listed species.
- “Best available data” means using the best information currently available; it does not obligate an agency to generate new, exhaustive studies to eliminate scientific uncertainty before acting.
- An action agency may reasonably rely on the expert wildlife agency’s biological opinion on technical matters of species biology and habitat.
- Under arbitrary-and-capricious review, an agency decision is sustained if it considers relevant factors, reasonably addresses the evidentiary record, and explains the connection between the facts found and the choice made, even amid scientific dispute.

## Conclusion

The D.C. Circuit affirmed FERC’s ESA-related operational condition requiring continuous minimum flows at Jordan Dam, holding that FERC could rely on FWS’s biological judgment and that ESA § 7(a)(2) demands use of the best existing data rather than the creation of new baseline studies as a prerequisite to agency action.


Alabama Power Co. v. FERC, 979 F.2d 1561 (D.C. Cir. 1992)