Chapter 2 THE LAW AND ECOLOGY OF DAM REMOVALS

• Jurisdiction: United States

Water Law Institute
Chapter 2

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THE LAW AND ECOLOGY OF DAM REMOVALS
Dave Owen ^* Kim Sager-Fradkin ^** INTRODUCTION

For many years, what would be the nation's largest-ever dam removal project has been moving slowly towards initiation. If the project ever happens, four dams on the Klamath River, which drains a large watershed in northern California and southern Oregon, would come out.¹ The environmental benefits could be dramatic: between the Klamath mainstem and its tributaries, salmon and steelhead trout would gain access to hundreds of additional miles of habitat, wildlife would regain access to habitats now covered by reservoir waters, transfer of marine-derived nutrients in the form of spawning salmon would be reinvigorated, and the dam removal also should improve water quality in the downstream reaches.² The removals also are a key part of a delicate truce between farmers, tribes, and environmentalists.³ Yet the path towards a freer-flowing river has been fraught with legal complexity, and even today, the future of the dam removals remains uncertain.⁴

The Klamath project exemplifies a broader theme. Dam removal projects involve no shortage of engineering and science questions, and they are often politically charged. But perhaps most importantly, they are legally complex.⁵ Even a relatively small dam removal project tends to exist at the center of an intricate legal web, with some strands pushing toward removal and others pulling against. For a large project like the Klamath, the legal issues may take years to resolve, if they are resolved at all.

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To help make sense of that web, this paper provides a primer on the law of dam removals. It begins, in Part I, with an overview of the legal regimes governing dam construction and management. Those regimes generally do not anticipate dam removals, but changing conditions and societal priorities do sometimes create pressure for taking dams out, and Part II explains how legal and ecological regimes sometimes create levers that push dams toward removal. Part III turns to a different question: what sort of legal issues arise during the process of dam removal, and how can those be managed? A dam removal project is legally analogous to a large and unpredictable construction project, with all the liability-management issues such projects entail. Part IV turns to a cutting-edge issue in dam removal law: how can lawyers and policymakers move beyond largely ad-hoc, dam-by-dam removal projects and begin harnessing the benefits of planning removals at basin or even broader scales?

While much of this article focuses on law, we close with a case study of the aftermath of a dam removal. Our focus is the Elwha River in Washington, where two dams were removed over the span of three years from 2011 to 2014. Since that time, the river has rebounded in a wide variety of ways. The Elwha's story exemplifies the benefits a dam removal can produce--and the reasons why navigating the legal challenges of dam removal will often be worthwhile.

I. DAMS AND THEIR LEGAL STATUS: THE BASICS

The United States, like most industrialized societies, is a land of dams. According to the U.S. Army Corps of Engineers, the United States contains over 90,000 dams, which averages to roughly one dam for every day the nation has existed.⁶ If one includes smaller dams in the count, the numbers would run well over two million.⁷ Consequently, most major rivers in the United States move through a series of reservoirs and dams, as do their tributaries; major waterways that flow unimpeded to the ocean are vanishingly rare.⁸

These dams have come into existence, and continue to exist, through a variety of different legal arrangements, which the discussion below summarizes in turn.

a. FERC-regulated dams

Perhaps the most complicated legal regime exists for dams that occupy navigable waterways, produce hydropower, and are not owned by the federal government. The Federal Energy Regulatory Commission has licensing authority over these dams.⁹ It can issue those licenses for up to fifty years (forty is more typical).¹⁰

License renewals are legally complicated processes. The Federal Power Act itself provides FERC with a variety of criteria to consider, and it also obligates FERC to seek recommendations

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from other federal agencies and from tribal representatives.¹¹ Because they are discretionary federal actions, licenses also trigger the National Environmental Policy Act, which requires FERC to prepare environmental impact statements considering the impacts of the license renewal and alternatives to that renewal,¹² and section 7 of the Endangered Species Act, which forbids FERC from authorizing actions likely to jeopardize the survival of threatened or endangered species or to adversely modify those species' critical habitat.¹³ FERC's licenses also trigger section 401 of the Clean Water Act, which requires state water quality certifications whenever the federal government authorizes a project involving a discharge.¹⁴ States routinely attach conditions to their section 401 certifications, and courts have held that FERC must incorporate these conditions into its licenses.¹⁵

b. Federally-owned dams

In addition to federally-regulated dams, the federal government also builds its own dams. These dams are less numerous than FERC- and state-regulated dams, but they tend to be relatively large, which means their influence outstrips their numbers.¹⁶ Two federal agencies--the Army Corps of Engineers and the Bureau of Reclamation--manage most of these federal dams.¹⁷

Federal dams generally are authorized by specific water resource development statutes.¹⁸ Those authorizing statutes specify the purposes for which the dams may be used and sometimes provide guidance for operating criteria.¹⁹ Dam-management agencies then flesh out those operating criteria through operating manuals and other documents.²⁰ Operations also are generally governed by other federal statutes, including environmental laws like the Endangered Species

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Act.²¹ But for federally-owned dams, there is no licensing process akin to FERC review, which means there is no legal trigger for a comprehensive review of dam operations.²²

c. State-regulated dams

If a dam (a) is not owned by the federal government, and (b) does not generate hydropower or generates hydropower only on a non-navigable waterways, then regulation of that dam, to the extent it happens at all, will come from state law.²³ This state-regulated category includes the vast majority of the United States' dams, though, again, the larger dams tend to be federally licensed or federally owned.²⁴ Legal regimes for these dams tend to be minimal. Most states have dam safety regulation programs, though, in the words of one recent study, those programs are often "pitiful."²⁵ Tort law also potentially applies; a manager of a dam that fails may incur liability.²⁶ But under most state laws, environmental regulation of dams is rare, at least for existing dams.²⁷ And relicensing programs directed at existing dams are generally non-existent.²⁸

II. LEGAL INCENTIVES FOR DAM REMOVALS

One theme of the law of dams is its lack of direct attention to dam removals. The Federal Power Act, for example, says nothing explicit about dam removals. A dam owner that fails to obtain a new license before the expiration of the old is generally allowed to keep the dam in place; the owner just operates under a temporary one-year license.²⁹ This suggests that Congress, at the time it enacted the Federal Power Act, was not thinking about the possibility that dams might not last forever. Similarly, the legislation that authorized the construction of federally-owned dams says nothing about their removal. And while a few states have recently developed small administrative programs for helping dam owners navigate removal processes,³⁰ no state, to our knowledge, has enacted dam-removal legislation, except in specific situations involving specific dams. The implicit assumption of much of the law of dams is that dams will all last forever.

That assumption is plainly wrong. Over time, sediment fills in the reservoirs behind dams, reducing their storage capacity. For some dams, that process could take millennia, but in rivers with heavier sediment loads the process can occur in just decades.³¹ For example, on

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Washington's Elwha River, thirty metric tons of sediment piled up behind the uppermost of two dams in under 100 years--enough sediment to keep filling seventy dump trucks running twenty-four hours a day for five years.³² Dams themselves generally are not engineered to last forever.³³ They can fail, particularly as they age, creating a risk of catastrophic flooding for communities downstream.³⁴

In addition to potential structural inadequacies, dams cause environmental impacts that, in some places, people find increasingly undesirable. Dams often diminish downstream water quality.³⁵ They also alter the quantity and timing of downstream flows, often in ways that are problematic for downstream (and sometimes upstream) ecosystems.³⁶ One of the greatest ecological costs of dams is that they block upstream movement of fish and other aquatic species, disrupting important migratory pathways.³⁷ In the United States, those blockages are particularly important for coastal rivers, most of which once contained substantial migrations of diadromous fish, including all species of Pacific and Atlantic salmon.³⁸ By blocking anadromous fish from their natal streams, dams also deprive rivers of marine-derived nutrients that are so important for everything from aquatic macroinvertebrates to bears, and to the vegetation surrounding streams.³⁹ Moreover, reservoirs that hold water behind dams cause significant losses of habitat for terrestrial wildlife. If the many benefits of dams explain why so many exist, their negative impacts explain why there is so much pressure, not just from environmental...