A new federal rule, produced behind the scenes, will hand electric utility lobbyists a big victory at the expense of states, tribes, communities, and the environment tomorrow, conservationists warned. The Bush administration will grant sweeping new authorities to electric utilities to scrap already completed negotiations over the future of dammed rivers — and then restart talks under new rules that stack the deck against measures to protect river wildlife, provide public river access, or otherwise accommodate the needs of up and downstream neighbors.
This sweeping change, which will rewrite rules for ongoing negotiations at 112 hydro licensing projects on 95 rivers in 24 states, goes far beyond what Congress required in the Energy Policy Act. Adding insult to injury, the agencies will jointly release “final” rules without ever providing the public an opportunity to comment on a draft.
“This measure is profoundly unfair to everybody who has negotiated with electric utilities in good faith, sometimes for years and years,” said Robbin Marks, who directs the hydropower reform campaign at American Rivers. “The energy bill was bad enough, but now the Bush administration is going the extra mile for hydropower lobbyists to pad industry profits at the expense of rivers and their neighboring communities.”
The energy bill, signed into law by President Bush in August, hands hydroelectric dam operators new leverage to weaken environmental standards. The procedures allow energy companies to challenge requirements that they build fish passage to allow fish to move around dams; protect lands on and around rivers; or help keep water clean and at natural flow levels. The law now permits industry to propose its own preferred protection measures, which federal agencies must accept.
“The new rules skew and dilute so many protections for rivers that our government is ashamed to let us comment on them,” said Steve Moyer, vice president of Government Affairs and Volunteer Operations of Trout Unlimited.
Despite years of negotiations between states, local governments, tribes, and federal agencies negotiating environmental standards for dam operations, the new rules allow utilities to retroactively challenge protection measures — even after they’ve been finalized as part of the licensing process. Utilities will be able to exploit this unfair advantage to evade the installation of fish ladders, avoid improving water flow and ignore fish and wildlife up and downstream of their dams on rivers across the country.
The hydropower dam licensing process brings dams into compliance with today’s laws, updating operations and modernizing the way old dams are run. Licensing has a legacy of on-the-ground success in restoration, and of progress by states, local governments, tribes and federal agencies working in concert to protect the public’s rivers from abuse by hydropower dams. The new rules provide significant advantages to utilities.
According to American Rivers, the rules are rigged to favor industry in the following ways:
— Industry Encouraged to Reopen Previous Licensing Decisions – The rules allow environmental protection measures to be reopened. This opportunity is available to all parties but industry has the greatest stake in ensuring that environmental protection measures for rivers be reconsidered.
— Final Rules Squelch Public Participation in Decisions that Affect a Public Resource: Rivers – The decision to forgo notice and comment is unfair, is a radical departure from past practice on rules concerning hydropower licensing, and is contrary to the message sent by Congress in the Energy Bill that public participation is critical.
— Incentives to Abolish Environmental Conditions Proposed By Agencies in Favor of Conditions Proposed by Others – The preamble in the rules instructs agencies to forgo the work involved in defending their environmental measures by accepting alternative environmental measures proposed by industry and others.
— Incentives to Agencies to Accept Requests for Trial-Type Hearings – The default process is the trial-type hearing that requires resource agency staff to defend the scientific basis of their decisions. If agencies do nothing the hearing occurs; they need to provide evidence to back up the claim that the trial-type hearing is not warranted.
— Only Industry Can Afford to Participate – The timelines for participation in the trial-type hearings are ridiculously short and the information requirements are huge. No additional funding is being provided to resource agencies to do the extra work, and the burden on other stakeholders is so onerous that they may be precluded from participating altogether.
While some dams benefit society, they cause considerable harm to rivers, as well as local communities. “Dams have depleted fisheries, degraded river ecosystems, and diminished recreational and economic opportunities on rivers across the nation,” added Marks. “Most existing dams could be operated in new and improved ways that reduce their current impacts on rivers. But this administration has opted to give the hydropower industry what it wants rather than protecting communities and the rivers that belong to all of us.”
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