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Hydro Relicensing Redux: Will Dams Be Saved?

Fortnightly Magazine - April 1 2000
  • Commerce and the Department of the Interior to impose mandatory fishway prescriptions.
  • The Coastal Zone Management Act authorizes states to impose conditions on projects affecting their coastal resources.
  • The Endangered Species Act bars agency action that will jeopardize threatened or endangered species, and directs resource agencies to protect those species.
  • The National Historic Preservation Act requires the Federal Energy Regulatory Commission to consult with federal and state authorities to protect historic sites.
  • Section 10(j) of the Federal Power Act requires the FERC to include license conditions proposed by federal and state resource agencies, unless the commission finds that those conditions are inconsistent with Part I of that Act, or with other applicable law. The Government Accounting Office has found the commission in practice accepts about 95 percent of these recommendations.

Moreover, hydro licenses run for 30 to 50 years. That means that the licenses that will be up for renewal in calendar year 2000 would have been awarded initially on or before 1970 - that is, before passage of many of the legislative acts that today have come to play a major role in the process, such as:

  • Electric Consumers Act of 1986 (ECPA)
  • National Environmental Policy Act (NEPA)
  • Endangered Species Act
  • Federal Water Pollution Control Amendments of 1972 (The Clean Water Act)
  • National Historic Preservation Act
  • Coastal Zone Management Act

The advantage, says Moller, is "if you can achieve collaborative solutions, then you can avoid a lot of the adversarial relationships you get in the traditional approach."

It may also be faster than the traditional approach if you have agreement among all interested parties, he says, adding that the alternative license process must begin earlier than the traditional approach.

However, if the collaborative process doesn't work, the company seeking relicense must fall back to the traditional approach, he says.

"The cons [with the collaborative approach] are that if it turns out that you do have competitors for the license, they are going to know everything about the project and they will be able to use all of that in their own application," he says.

Moller has had competitors for PG&E's licenses five times, but none has succeeded in winning the license. "We have had competitors take PG&E's licensing application, photocopy it, and submit it as their own."

Another problem is that the alternative licensing approach is slow and labor-intensive. There is no guarantee of success, since resource agencies are not bound by any settlement, he says. Instead, resource agencies can issue a mandatory condition at any time before or after a relicensing.

Furthermore, it can cost the hydro company more if the environmental analysis done in the early onset is disputed at settlement, Moller explains.

Hybrid Approach. A third licensing approach is a hybrid of the other two. It is not officially recognized by the FERC as a process sanctioned by legislation or rule, but as a commission spokeswoman explained, it is allowed nevertheless because it is a combination of the two accepted approaches.

"For example, the way PG&E applies the hybrid approach is different than other companies," says Moller. "We