Environmental Groups Challenge
by Gene Johnson
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 lawyer 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 minimum 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 already 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 proposed 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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