Future of Aging Dams in US Comes Under Federal Scrutiny

WHEN Sen. Bob Packwood visited southern Oregon recently it wasn't health care or crime or the Republican lawmaker's alleged sexual misconduct that his constituents wanted to talk about. It was a pair of dams along the Rogue River.

Should the 73-year-old Savage Rapids Dam be replaced with pumps and pipes? Should the Elk Creek Dam, only partially built and a major impediment to dwindling stocks of salmon and steelhead, be demolished?

Mr. Packwood promised to do what he could in Washington, but he wasn't very hopeful about Uncle Sam's coming up with extra funds for either project.

There's a growing debate over the relicensing or decommissioning of hundreds of dams. Environmentalists say hydropower is not entirely ``clean'' - i.e., dams harm wildlife habitat. The power industry is defending its economic interests. Some towns worry about losing sources of electricity, irrigation, flood control, and recreation that attract tourists.

Now the controversy centers around what to do about dams that may have outlived their usefulness, and who calls the shots.

The Federal Energy Regulatory Commission (FERC), overseer of some 1,800 dams, has issued a ``notice of inquiry'' that has all interested parties scrambling.

The five commissioners, appointed by President Clinton, haven't said they will clamp down on dams of dubious worth. But they have posed for public response questions that make it clear they may do that. Questions are technical and legalistic, but they amount to this: Does the FERC have authority to order decommissioning of dams and, if so, can it require dam owners to pay for it?

Commission chairwoman Elizabeth Moler, a former staff member of the Senate Energy Committee who is seen as more activist than her predecessors, also has indicated that this somewhat arcane policy issue is to be opened to greater public scrutiny. She has ordered administrative reforms, including the preparation of more environmental-impact statements involving a ``substantial increase'' in public participation. ``She's trying her darnedest to move the commission in the right direction,'' says Matthew Huntington of the conservation group American Rivers.

Federal Power Act

The ``notice of inquiry'' on dam decommissioning has brought considerable response.

The Hydropower Reform Coalition of conservation groups cites legislative history and court precedent to assert that FERC has authority and responsibility to formulate a decommissioning policy under the 1920 Federal Power Act (FPA).

And the cost of decommissioning - which can range from tearing down dams to ``replumbing'' them to restore more natural water flows - shouldn't be borne by taxpayers, coalition spokesmen say. Dam owners should be required to establish decommissioning funds, as is the case with nuclear-power plants, offshore-oil facilities, and solid-waste landfills, they say.

Critics say aging dams pose not only environmental problems but also threats to nearby communities. They point to the Federal Emergency Management Agency's 1992 report on dam safety, which states: ``As the tens of thousands of dams built in the last several decades become older, and as additional dams are constructed to meet future needs, it becomes apparent that an effective program to protect the public from unsafe dams is necessary.''

Dam owners and operators - mainly electric utilities - question the FERC's authority to order decommissioning. And they warn that unilateral decommissioning orders and forced ``retirement funds'' for dams would remove the incentive to build and operate something benefiting the public.

``It would convert a statute that encourages development by providing security as to unrecovered investment into one which discourages it by converting valuable assets into liabilities,'' the American Public Power Association warns in its response. ``Licenses would become burdens instead of privileges.''

``Congress carefully drafted the FPA to provide the degree of certainty necessary to encourage private investment,'' asserts the Edison Electric Institute, which represents investor-owned electric utilities operating 365 FERC-licensed projects. ``The prospect of decommissioning or project removal as a result of unilateral FERC action is the antithesis of certainty.''

Case-by-case basis

Questions posed in the commission's ``notice of inquiry'' should be addressed individually, industry representatives say.

``The industry recognizes that, in rare cases, decommissioning or removal of a hydroproject may be necessary - serving the best interests of all parties,'' says Linda Church Ciocci, executive director of the National Hydropower Association. ``However, our analysis of this notice leads us to the conclusion that generic action by the commission to facilitate decommissioning and removal is neither sanctioned by law now warranted by fact.''

In essence, the debate over FERC authority on dam regulation seems to be between ``strict constructionists'' and ``loose interpreters'' of the FPA. If the commission continues to proceed in the direction indicated by its questions to hydropower interests, conservationists, and the public, then the controversy undoubtedly will end up in court.