Administration plan could save money for hydropower firms
6:58 a.m. ET Oct. 28, 2004
proposal would prevent states, Indian tribes and environmental groups from
making their own appeals, while granting dam owners the opportunity to take
their complaints — and suggested solutions — directly to senior political
appointees in the Interior Department.
proposal, which is subject to public comment but can be approved by the
administration without congressional involvement, would use the president's
rule-making power to circumvent opposition to the idea among Senate Democrats.
They killed an administration-backed energy bill that included similar
language, for which the hydropower industry had lobbied.
proposed rule comes at a pivotal time in the history of the hydropower
industry. Most privately owned dams were built — and granted 30-to-50-year
federal licenses — in an era before federal environmental laws required
protection for fish and other riverine life. In the next 15 years, licenses
for more than half of the country's privately owned dams will come up for
to industry concern
The hydropower industry has complained that to comply with the law and renew their licenses with the Federal Energy Regulatory Commission, dam owners are being forced to pay large settlements to mitigate the environmental harm that dams cause fish and communities that depend on fish. The typical settlement cost is about $10 million, the industry has said, but some settlements have been as much as $200 million. By allowing the industry the exclusive right to present alternative settlement ideas, the proposed appeal rule could substantially reduce the cost of renewing a dam license.
owners "would be facing an extremely high cost and very uncertain
benefits," said Lynn Scarlett, the assistant secretary at Interior for
policy, management and budget who approved the proposed rule. "Giving
them some ability to voice their concern and present alternatives seemed
said other interest groups, during earlier stages in the licensing process,
would retain their right to be heard.
The proposal has generated widespread criticism from Democrats in Congress and attorneys general in several states, from Indian tribes and environmental groups and from some high-level officials and scientists in the Interior Department.
was true of the failed Republican energy bill, the administration's hydro
proposal would protect utility profits at the expense of fish, wildlife and
conservation values," said Rep. John D. Dingell (D-Mich.), ranking member
of the Energy and Commerce Committee. "The proposal disregards
fundamental rules of procedural fairness, granting business unprecedented
preferential status. States, Indian tribes, conservationists and the rest of
the public are relegated to a much lesser role."
leaders said the proposal would betray the federal government's legal
responsibility to tribes.
undermines the very trust responsibility that Interior is supposed to be the
lead department in protecting," said Tex G. Hall, president of the
National Congress of American Indians, the nation's largest tribal advocacy
group. "You would think they don't get it, or they are doing it on
Inside the Interior Department, some lawyers have argued that the appeals proposal — three years in the making before being published last month in the Federal Register — is unconstitutional because it violates due process and equal protection guarantees.
is not legal because one party is being treated very differently than another,
and that is very much the opposite of what we have been trying to do for
years," said one senior Interior Department official who is involved in
the dispute and who requested anonymity for fear of retaliation.
"Suddenly, a licensee can walk away from everybody else and have a
private meeting with the assistant secretary and bring in new conditions that
haven't been reviewed by anybody before."
department acknowledged on Wednesday that there have been
"discussions" among its lawyers on the legality of the proposal,
which will be open to public comment until Nov. 8. The department can then,
with the approval of the Office of Management and Budget, issue a final rule
that has the power of law.
in the U.S. Fish and Wildlife Service, which is part of the Interior
Department, have also said the proposal would limit the ability of states,
tribes and private groups to influence resource management decisions in their
own back yards while putting the decisions about dam operations into the hands
of political appointees who may not understand the harm dams cause.
allows industry to go in and speak their piece without having to deal with the
concerns of all the other stakeholders along a river," said an Interior
Department official who has worked for many years on the dam relicensing
process and who asked not to be identified by name, also for fear of
hydropower licensing law was written in 1920, and the industry had few
problems with it for nearly six decades — until tribes and environmental
groups figured out how to use the law in a way that cost the industry a lot of
most nearly every recent relicensing, the industry has been on the defensive.
"The process is broken," Julie Kiel, director of dam licensing for
Portland General Electric in
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