SEATTLE — Many utilities and power companies that operate
dams will be allowed to do less to protect salmon and other fish if the Bush
administration’s interpretation of the 2005 Energy Policy Act is allowed to
stand, a lawyer for several environmental groups told a federal judge Tuesday.
“The end result is that measures to protect wildlife ... are being weakened
as we speak,” Earthjustice’s Jan Hasselman told U.S. District Judge Marsha
Pechman.
The Federal Energy Regulatory Commission issues licenses to operate dams, and
often those licenses incorporate conditions set by other federal agencies to
protect wildlife — building fish ladders, maintaining river flows and
monitoring water quality, for example.
The Energy Policy Act, signed by President Bush a year ago, allows dam
operators to challenge such conditions in a hearing before an administrative
law judge. It also allows the dam operators to suggest alternative
environmental measures, and requires the judge to approve those measures if
they are “adequate” and will be less expensive or allow for greater
electricity production.
The environmental groups, led by Washington, D.C.-based American Rivers, are
not challenging the law itself. Instead, they’re challenging the Bush
administration’s decision to apply it to dam relicensing applications that
were under way when the law took effect. They also say the administration did
not conduct a proper public notice period before implementing the law.
Justice Department lawyer John Most argued in court Tuesday that there’s no
reason the law shouldn’t apply retroactively. He said the lawsuit should be
dismissed and that the Energy Policy Act simply made the dam licensing process
“a little more robust” by allowing dam operators to request hearings.
According to FERC data, more than 70 dam relicensing
applications were pending — on dams from the Merrimack River in New
Hampshire to the Stanislaus River in California — when the law took effect,
and in 17 of those cases, dam operators have requested hearings or alternative
measures.
The environmental groups fear that the Forest Service, the National Marine
Fisheries Service and other agencies might seek to avoid the expense of
conducting the hearings and reviewing the alternative proposals in cases that
have already been pending for years.
That would leave dam operators in a good position to negotiate for lesser
requirements.
That’s already happened at the West Fork dam on Boulder Creek in Utah, said
Rebecca Sherman, of the Hydropower Reform Coalition in Portland, Ore. The
Forest Service set a minimum water flow as a condition of relicensing the dam,
but when the Garkane Energy Cooperative requested a hearing, the parties
entered settlement talks, and the agency agreed to lesser flow requirements,
she said.
Hasselman argued that granting dam operators new rights in the middle of a
relicensing proceeding unfairly burdens the environmental groups and their
interests in protecting the rivers. There’s no indication Congress intended
the law to be applied retroactively, he said.
Pechman said she would rule in two weeks.
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