The challenges of dam removal: the history and lessons of the Condit Dam and potential threats from the 2005 Federal Power Act amendments.

• Author: Becker, David H.

1. INTRODUCTION II. BACKGROUND A. Condit Dam and the Resources of the White Salmon River B. The Federal Power Act and Dam Relicensing C. Condit Dam Relicensing and the 1999 Agreement to Remove the Dam III. OBSTACLES TO DAM REMOVAL A. Opposition to the Settlement Agreement and FERC Inaction B. Permitting Obligations Prior to Dam Removal 1. Federal Agency Approvals for Dam Removal a. Federal Fish Management Agencies i. Fish and Wildlife Service ii. NMFS/NOAA Fisheries b. Army Corps of Engineers c. Other Federal Agencies 2. State Permits 3. Local Permits C. Potential Litigation D. Prospects for Overcoming Obstacles to Dam Removal 1. Forthcoming Regulatory Approvals 2. Potential Litigation VI. THE 2005 AMENDMENTS TO THE FEDERAL POWER ACT A. History and Provisions of the 2005 FPA Amendments B. Potential Effects of the 2005 FPA Amendments on Section 18 Prescriptions 1. Procedural Effects of Hearing and Alternative Prescription Rules 2. Substance of the 2005 FPA Amendments--"No Less Protective" Prescriptions C. The 2005 FPA Amendments and Condit Dam V. CONCLUSION "It's harder to take out a dam than you might think." (1)

1. INTRODUCTION

   Beginning in the mid-1980s, federal legislators, agency officials, and river restoration advocates began to propose and promote dam removal to restore American rivers to their natural states. (2) Dam removal proponents recognized that the heavy environmental costs of blocking dwindling fish runs outweighed many dams' modest benefits for irrigation, flood control, recreation, or hydropower generation. (3) The latter half of 1999 was a heady time for the dam removal movement. (4) Maine's Kennebec River flowed freely for the first time in 162 years after a demolition crew breached the Edwards Dam in July 1999, marking the first time the Federal Energy Regulatory Commission (FERC) had ordered a utility to remove a major hydropower dam. (5) By the end of that year, agreements were in place that promised the removal of three hydropower dams in the state of Washington, including the Condit Dam on the White Salmon River. (6)

   In September 1999, PacifiCorp, the owner of Condit Dam, reached an agreement with fifteen environmental groups, two tribal entities, and five government agencies to remove that dam. (7) The Condit Dam settlement represented a particularly significant success: not only would it be the tallest hydropower dam ever removed, but the agreement specified that its reservoir would be drained by October 2006 and set a detailed a timeline for obtaining the necessary permitting approvals. (8) However, seven years after the demolition of the Edwards Dam seemed to herald an era of significant dam removals, the promise of the Condit Dam settlement remains unfulfilled. By June 2006, only two of the agency parties to the settlement had given their definitive permission for the decommissioning of the Condit Dam. (9) Moreover, all parties to the settlement agreed in February 2005 to defer the removal until the end of 2008, allowing additional time for project-removal permitting and giving PacifiCorp two more years to earn power generation revenue to cover $3.3 million in unanticipated permitting and mitigation costs. (10)

   The Federal Power Act (FPA) governs FERC's licensing and relicensing of non-federal hydropower dams. (11) The FPA's provisions that require FERC to give equal consideration to fish and wildlife protection in its licensing decisions, and to accept as mandatory other resource agencies' license conditions, led directly to the successful removal of the Edwards Dam and the agreement to remove the Condit Dam. (12) In both instances, a renewed license would have required the utilities to construct fishways to allow access to the upstream reaches of the rivers, at a cost two to three times that of removing the dam. (13) In the case of Condit Dam, PacifiCorp would have had to spend over $30 million to retrofit the dam with fish ladders, compared with an estimated $17 million to remove the dam. (14)

   But dam removal is no simple matter. A FERC order to decommission a dam involves a host of approvals from other agencies. (15) Three other federal agencies, the State of Washington, and, potentially, the local counties, Klickitat and Skamania, must pass judgment on some aspect of the proposed removal before FERC can issue its order decommissioning the Condit Dam. (16) The counties have been steadfast in their opposition to dam removal since before the 1999 settlement agreement, (17) and litigation related to FERC's decision--such as challenges by the counties to the state's water quality certification, or over federal preemption of the counties' permitting requirements--could add years to the removal process. (18) These permitting and litigation hurdles remain potentially significant obstacles to finally achieving the removal of the dam, despite the agreement of the principal parties seven years ago. The experience of Condit Dam shows that proponents of dam removal at FERC-licensed dams must be prepared for a potentially long and arduous regulatory process, illustrates the danger to the process of not bringing significant institutional objectors within the settlement, and suggests the need for closer coordination with FERC throughout the settlement process.

   In addition to the already daunting regulatory approvals necessary for dam removal, Congress has recently added new procedural requirements that threaten to slow and complicate further the FERC licensing process. In the Energy Policy Act of 2005, Congress amended sections 4(e) and 18 of the FPA, which require FERC to include in licenses any conditions and fishways prescriptions which federal land management agencies specify are necessary to protect a federal reservation or fish and wildlife affected by the dam. (19) The amendments enable any party to the licensing proceeding to propose alternatives to such mandatory conditions and seek trial-type hearings on disputed issues of material fact. (20) While the effect of these amendments and the agency regulations implementing them on an existing settlement like Condit Dam is unclear, (21) their implications for future efforts to remove dams are ominous, potentially allowing a utility, or anti-removal intervenors such as the counties in the case of Condit Dam, to weaken or evade the environmental obligations which the FPA has long imposed on FERC's relicensing decisions. (22)

   This Article examines the obstacles that remain before the Condit Dam may finally be removed, and analyzes the potential effects of the 2005 amendments to the FPA on efforts to provide fish passage and remove dams. Section I provides background on the 1999 Condit settlement agreement and the legal framework which led to the settlement. Section II assesses the prospects for overcoming existing regulatory obstacles and bringing the agreement's promise to fruition. Section III examines the 2005 FPA amendments, considering their potential effects on future efforts to prescribe fish passage at major non-federal hydroelectric dams. Section IV concludes that the Condit Dam removal will proceed because of the parties' strongly shared interests in overcoming the remaining obstacles, but that the 2005 FPA amendments are likely to make future dam decommissioning a more costly process for utilities and intervenors, although the amendments are unlikely to be fatal to future dam removal efforts because they do not offer a party opposed to dam removal a significant substantive ground for opposing resource agency fishway prescriptions during relicensing.

2. BACKGROUND

   The licensing of dams under the Federal Power Act (FPA) has evolved significantly since Congress first authorized a central hydropower agency to issue licenses in 1920. (23) Condit Dam, built in 1913, did not come within the Federal Energy Regulatory Commission (FERC) licensing scheme until 1968. (24) By the time the dam was due t8 be relicensed in the early 1990s, the law had evolved to allow federal fish agencies to require fish passage as a condition of a new license for Condit Dam, ultimately rendering the project uneconomical. (25) This Section describes the history of Condit Dam, the potential benefits and costs of removing it, the FERC licensing process and mandatory fishway prescriptions which led to the dam's demise, and the terms of the settlement which promises removal of Condit Dam by the end of this decade.

   1. Condit Dam and the Resources of the White Salmon River

      The Northwestern Power Company, a predecessor of PacifiCorp, built Condit Dam in 1913 to provide hydroelectric power for local paper processing operations and to anticipate the energy needs of a growing regional population. (26) The dam--125 feet high and 471 feet long--sits just 3.3 miles above the confluence of the White Salmon River and the Columbia River. (27) Condit Dam, and the stretch of the White Salmon River below it lie within the Columbia River Gorge National Scenic Area. (28) By damming the White Salmon River, Condit Dam created Northwestern Lake, which extends more than a mile-and-a-half upriver behind the dam. (29) Condit Dam, Northwestern Lake, and the White Salmon River below River Mile (RM) 5.3 straddle the border between Klickitat and Skamania Counties, in south-central Washington. (30) Above Northwestern Lake, the White Salmon River flows freely for about forty miles from its headwaters on the southern slope of Mount Adams. (31)

      The White Salmon River supported significant runs of wild fish before Condit Dam blocked their upstream passage. (32) Although there appears to be no extant quantification of the wild runs before 1913, anecdotal evidence, including the collection of over seven million fall chinook eggs at a hatchery at the mouth of the White Salmon River in 1906, as well as the historical existence of two native villages on the river supported through fishing, indicates the abundance of the natural runs. (33) Before the construction of Condit Dam, a variety...