Into the breach: restoring rivers, relicensing dams

By CONNIE SUE MARTIN and R. BRENT WALTON
Short Cressman

The licensing of dams and hydroelectric projects is not typically a matter with which we concern ourselves. Licenses last 30 or 50 years, so relicensing has been a relatively infrequent procedure, receiving little, if any, public attention.

That has now changed. Due in part to a 1943 decision that increased the reach of federal licensing authority, relicensing is about to become familiar to all of us as licenses for 550 dams expire between 1993 and 2010.

As of Dec. 31, 1996, there were approximately 2,358 hydroelectric power plants operating in the United States. Forty-four percent of these power plants are federally owned and exempt from licensing by the Federal Energy Regulatory Commission. The largest of these is the Grand Coulee on the Columbia River.

Thirty-five percent are privately owned, and the remaining 21percent are classified as non-federal public, which include dams owned by irrigation districts, water districts, cities or public utility districts. There are non-federally-owned hydropower dams on nearly every river in the United States.

Washington, California and Oregon are the leading states in hydroelectric production. There are 62 licensed hydropower projects in Washington and 15 of these projects, encompassing 31 dams, will be up for relicensing between 2001 and 2010.

Regulatory scene has changed

The environmental regulatory scheme has changed dramatically since most of the existing projects were originally licensed. In 1986, the Federal Power Act was amended to require FERC to give the same consideration to the protection of fish and wildlife and the preservation of other aspects of environmental quality as it gives to the potential for power generation in determining whether to issue a license.

The White River diversion dam diverts water down a canal and feeds into Lake Tapps. Water from the lake is used to generate electricity at a plant located on the lake.

The application must contain a complete engineering analysis and address the economic and financial aspects of the project, as well as an environmental report describing the effect the project would have on fish, water quality, wildlife, habitat, recreation, land use and socioeconomic values.

Once an application is filed with FERC, there are additional opportunities for public comment and input. FERC may request additional studies and typically prepares additional environmental documents under the National Environmental Policy Act.

The process for relicensing is essentially identical to an original application. At least five years before a license expires, the licensee must file a notice of intent to seek renewal, and begin the consultation and scientific investigation phase. At least two years before the license expires, an application must be filed with FERC.

Interested parties may file a motion to intervene in the proceedings. While anyone may submit written comments to FERC, only the comments and recommendations of interveners become part of the record and must be considered by FERC in rendering its licensing decision. Interveners are considered parties and may appeal a FERC licensing decision.

In deciding whether to issue a license, FERC must determine if the project is "best adapted to a comprehensive plan for improving or developing a waterway or waterways" for beneficial public uses. To do this, FERC weighs competing interests to ensure a proper balance is struck between developmental and non-developmental interests.

Any license issued will include terms and conditions which may address engineering, safety, economic, and environmental matters. For instance, FERC might include requirements for water quality monitoring, habitat creation or restoration, or minimum flow requirements.

FERC is not alone in making licensing decisions. Legislation and court decisions have given other agencies shared responsibilities in the licensing process and the balancing of development with environmental values. The state of Washington has exerted substantial influence on the determination of the conditions under which a particular project or dam will be licensed.

Dams and salmon

One of the requirements for licensing is obtaining certification by the state that the project will be in compliance with state water quality standards. As construed by Washington's supreme court, this certification permits the state to impose any conditions necessary to comply with any minimum in-stream flow requirements, anti-degradation requirements, or other guidelines related to water quality, as a condition of its issuance.

Governor Locke's statewide strategy for salmon recovery indicates that the state intends to use FERC relicensing proceedings as an opportunity to remedy stream flow problems through new license conditions. The state's plan is to condition water quality certifications with new, generally higher, instream flow requirements, even on long-existing hydropower projects with existing water rights.

Although this issue continues to be litigated, it seems likely that unless state-imposed conditions directly conflict with a condition established by FERC, state conditions will become part of the FERC license.

Edwards Dam highlights issue

Successfully navigating the maze of relicensing regulations does not guarantee that a new license will be issued, however. If that point was not understood before, it was certainly clarified on July 1, when the Edwards Dam on the Kennebec River in Maine was breached and the river ran free for the first time in 162 years.

The Edwards Dam was built in 1837 on the Kennebec River to provide mechanical power for saw mills. The damming of the river decimated native populations of 10 species of migratory fish, including the now-endangered Atlantic salmon, by flooding critical habitat and preventing passage to prime upstream spawning areas.

In 1997, FERC denied the application for relicensing of the Edwards Dam on the grounds that environmental and economic benefits of a free-flowing Kennebec River were greater than the continued operation of the hydroelectric project.

On this coast, the Department of Agriculture has joined the departments of Interior and Commerce in recommending that diversions from the Eel River in Mendocino County, Calif., stop in order to save salmon runs.

The agencies are asking FERC to consider closing the Potter Valley Project, rather than relicensing the facility, which diverts up to 85 percent of the water from the upper main stem of the Eel into the East Fork of the Russian River.

In Washington, the Army Corps of Engineers is presently conducting a salmon recovery study considering several options for fish recovery in the Snake River Basin, including dam removal. The results of the five-year, $20 million study will be released this fall.

Lake Tapps may be high and dry

Even if FERC determines that a license should be issued, the issuance does not always guarantee that a hydroelectric project will continue to operate. The White River Hydroelectric Project in Pierce and south King counties is an example.

The White River Project, completed in 1912, diverts water from the White River to the project's 2,700 acre reservoir, Lake Tapps, passes it through the project's power plant, then returns the water to the river. In December of 1997 FERC issued a 50-year license to Puget Sound Energy for the continued operation and maintenance of the project.

If the FERC license requires more water in the White River, the level of Lake Tapps would drop, compromising the ability to produce power and water ski. Photo by Ben Minnick

Claiming that the costs of ensuring ESA compliance made it uneconomical for it to continue to operate the project, PSE threatened early this year to abandon the project if it could not sell the project or find a way to operate it profitably.

If PSE abandons the project and drains or discontinues the diversion of water to Lake Tapps, it will, quite literally, leave the lakeshore residents high and dry. These residents, along with PSE, local municipalities and state agencies, are presently attempting to ensure the continued operation of the project through a FERC collaborative process.

Lake Tapps residents are not alone in facing the prospect of mud flats where their lake used to be. Lake Cushman on the Olympic Peninsula may also be drained as a result of the increased costs of regulatory compliance. Lake levels are also receiving substantial attention in the relicensing of the Lake Chelan Hydroelectric Project.

It is clear that licensees are not the only parties affected by hydroelectric licensing, and therefore are not the only parties with a stake in relicensing proceedings. In addition to property owners, like the Lake Tapps and Lake Chelan residents, Indian tribes with treaty or reserved water rights also may be affected.

Projects that affect Indian tribal lands and other federal reservations such as national forests may only be licensed where FERC finds that the license would not interfere with or be inconsistent with the purpose for which the reservation was created.

Off-reservation, tribes may have reserved water rights, that is, the right to a certain quantity of water from a waterway, which may be detrimentally affected by a hydroelectric project. Tribal fishery rights also may be affected by decreased in-stream flows or barriers to fish passage posed by dams.

Because of the crucial interests at stake, tribes and other interested parties should participate in relicensing proceedings through public comment and intervention, to ensure that these interests are considered by FERC and protected to the greatest extent possible.

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