THE CHALLENGES OF DAM REMOVAL: THE HISTORY AND LESSONS OF THE CONDIT DAM AND POTENTIAL THREATS FROM THE 2005 FEDERAL POWER ACT AMENDMENTS

摘要

Washington's Condit Dam is an important symbol in the struggle over the past two decades to restore fish passage past federally-licensed hydropower dams. Condit's history shows how provisions of the Federal Power Act that allow federal fish management agencies to impose Gshway prescriptions on dam relicensing can lead to the outright removal of a project that is uneconomical to operate with the necessary fish passage. The Condit Dam experience also illustrates the complexity of the decommissioning process, which requires the approval of a host of federal, state, and, potentially, local regulatory agencies before a dam can be removed. For successful dam removal, it underscores the importance of leaving no governmental parties out of the settlement process, as the counties which Condit Dam straddles have vigorously opposed the dam's removal and have threatened litigation that may further delay its decommissioning. The 2005 amendments to the Federal Power Act will complicate future efforts to remove dams and to condition hydropower project relicensing on assured fish passage. This Article describes the new procedural rights which the 2005 Federal Power Act amendments grant to utilities which oppose fish passage at dams, and how early challenges to the federal agencies' fish way prescriptions may play out. The new regulations are procedurally burdensome for parties which advocate fish passage and will certainly lead to longer and more costiy relicensing processes for many dams. However, the substantive standard in the amendments and regulations—that any alternative fish way prescription a utility proposes be no less protective than that proposed by the federal fish manager—should allow the agencies to prevail if they defend their prescriptions in the new administrative process. As a result, the new amendments will not prove to be an insurmountable barrier to future efforts to restore fish passage at, or to remove, federally-licensed dams.