Flowing Water, Flowing Costs: Assessing FERC's Authority to Decommission Dams

Date01 October 2019
Author
10-2019 NEWS & ANALYSIS 49 ELR 10925
Flowing Water, Flowing Costs:
Assessing FERC’s Authority
to Decommission Dams
by Mark Widerschein
Mark Widerschein is a Class of 2020 J.D. candidate at e Ohio State University Moritz College of Law.
This year, 2019, marks the 20th anniversar y of the
removal of the Edwards Dam, one of the rst fu nc-
tioning hydroelectric dam to be decommissioned
and removed in the United States. It was also the rst to be
removed under the Federal Energy Regulatory Commis-
sion’s (FERC’s) asserted power to compel such a removal
without compensation, an assertion raising lega l questions
that have yet to be fully resolved. As our hydroelectric
infrastruct ure continues to age, these questions may again
come to the forefront.
Part I of this Comment considers the history of dam
building in American culture and the development of
the current federal statutory scheme that governs utility-
operated, nonfederal hydroelectric infrastructure. Part
II considers FERC’s and its predecessors’ role in that
statutory scheme, their asserted power to decommission
dams unilatera lly, and two case studies. Part III analyzes
the legal defensibility of FERC’s 1994 Policy Statement
asserting its authority to decommission dams, and the
main arguments as to whether FERC can require utility
operators to pay for a decommissioning that was ordered
unilaterally or whether the government has to subsidize
that remova l.
I. Setting the Scene
A. Hydroelectricity’s Deep History in American
Culture and Infrastructure
Dams, both as physical structures and as idea s, are highly
impactful pieces of inf rastructure. Across the country, they
are often directly responsible for urban development, and
assisted in the rise of large cities a cross the country. Indeed,
America grew along and because of its waterways. Not
coincidentally, of the 150 largest American cities, 130 are
located along dammed rivers.1 In many cases, this popu-
lation concentration and development was only possible
because of dams on those rivers, which e stablished human
control over unpredictable waterways.
e raw statistics tell the story: that control has grown
to be almost all-encompassing. ere are a n estimated
91,000 dams in the United States large enough to be con-
sistently surve yed.2 If the count is expanded to include
dams less tha n six feet in height, the number grows expo-
nentially into the millions.3 To put that number of dams
in context, Bruce Babbitt, Secretary of the Interior under
President William Clinton, noted that “for most of this
century, politicians have eagerly rushed in, amidst cheer-
ing crowds, to claim credit for the construct ion of 75,000
dams all across A merica . . . that means we have been
building, on average, one large dam a d ay, every single
day, since the Declaration of Independence.”4 ese
dams put approximately 600,000 miles of what wa s once
free-owing water behind concrete in the United States,
drastical ly changing the hydrologic processes that shape
the continent, bringing almost every river under some
level of human control.5 As of 2019, of all the rivers in
the United States greater than 125 miles long, only the
1. T P, L: T C  R C 8 (1994).
2. See U.S. Army Corps of Engineers, National Inventory of Dams, https://
nid.sec.usace.army.mil/ords/f?p=105:113:10547604472299::NO::: (last
visited Aug. 24, 2019). e 91,000 number represents dams that “equal
or exceed 25 feet in height and exceed 15 acre-feet in storage, [or] equal or
exceed 50 acre-feet storage and exceed 6 feet in height,” as well as dams that
exceed certain hazard thresholds.
3. Dave Owen & Colin Apse, Trading Dams, 48 U. C. D L. R. 1043,
1052-53 (2015). “e actual number is signicantly higher, for the inven-
tory includes only dams that meet certain size or safety thresholds, and one
recent study estimated that an additional two million smaller dams populate
the American landscape.”
4. Bruce Babbitt, Secretary, U.S. Department of the Interior, Remarks at the
Ecological Society of America Annual Meeting: Dams Are Not Forever
(Aug. 4, 1998), available at http://www.sci.sdsu.edu/salton/DamsAreNot-
Forever.html.
5. Michael T. Pyle, Beyond Fish Ladders: Dam Removal as a Strateg y for Restor-
ing America’s Rivers, 14 S. E. L.J. 97, 102 (1995).
Author’s Note: e author thanks Prof. Dan Conway for his
guidance in the drafting process.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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