Monday, August 6, 2012

KHSA or FERC: Which offers the best path to dam removal?

The New York Times has embraced the Obama Administration’s interpretation of the conflict over PacifiCorp’s Klamath River Dams. In a July 19th feature, the Times accepted without question Interior Secretary Ken Salizar’s claim that the “Tea Party” is blocking plans to remove four Klamath River dams, restore the Klamath River and recover Klamath Salmon.

Salizar is promoting an us-v-them interpretation of conflict over the Klamath Dam and Water Deals. As was the case in 2001 when Dick Chaney got involved in Klamath River issues, the Obama Administration seeks to assure that its candidates carry Oregon this November.  

 The radical right was active in the Klamath River Basin long before the Tea Party.
This photo shows  a 2001 irrigation cut-off protest which attracted the Right's 
racist fringe. It is against federal law to fly the American Flag upside down. 

Klamath reality, however, is more complicated. While the Tea Party has embraced opposition to the Klamath Deals, they are also opposed by three of the Klamath River Basin’s six federal tribes as well as by those local and regional environmental groups which have worked on Klamath issues the longest. In addition to the Northcoast Environmental Center, Oregon Wild and Water Watch, the Sierra Club has advocated moving forward with state water quality certification for PacifiCorp’s Klamath River Dams – a move that would place the fate of the dams in the hands of the Federal Energy Regulatory Commission (FERC) rather than Congress.

A return to the normal FERC dam licensing process could scuttle not only the Klamath Hydroelectric Settlement Agreement (KHSA) but also the politically linked Klamath Basin Restoration Agreement (KHSA).

While the wider public’s attention is directed toward the Obama Administration-Tea Party conflict, a debate within the Basin’s environmental and tribal communities rages over the quickest, surest and best path to achieve removal of four Klamath River Dams owned by PacifiCorp. Partisans on both sides of the debate believe the dams will inevitably come down because – if they are relicensed with modern requirements – they will lose an estimated $24 million each year. No for-profit company will retain an asset which loses money each and every year.  For those who care the most about the Klamath River and Klamath Salmon, however, there is deep disagreement about the quickest, surest and best path to Klamath dam removal.

Two Paths

There are two paths which, along with variations, constitute options for removing PacifiCorp’s Klamath River Dams.  The dams can be removed as a result of the normal FERC dam relicensing process; or they can be removed under the KHSA Dam Deal.

California Trout’s Curtis Knight and Glen Spain of the Pacific Coast Federation of Fishermen’s Associations (PCFFA) have emerged as prominent defenders of the Klamath Dam and Water Deals – the KHSA and KBRA. Both gentlemen have published numerous pro-deal commentaries and opinions; most make the same points. Here are links to representative commentaries from Mr. Knight and Mr. Spain.

In the remainder of this post KlamBlog examines three key claims supporting promoter’s assertion that the KHSA Dam Deal is the quickest, surest and best path to removal of four of the five Klamath River dams owned by PacifiCorp.

As part of our mission to inform the public about complex issue, KlamBlog has previously examined and evaluated claims made by KHSA and KBRA promoters and opponents. The difference in this post is that here we do not rely primarily on our own analysis; this time we rely on a recent article on dam removal prospects published in the Seattle Journal of Environmental Law.  

What KHSA promoters claim

Curtis Knight, Glen Spain and other KHSA promoters make 3 chief claims to back up their assertion that the KHSA dam deal is the quickest, surest and best path to dam removal:

          Claim #1:     A return to the normal Federal Energy Regulatory Commission (FERC) process will not result in an order for removal of PacifiCorp’s Klamath River dams because FERC has never ordered a dam removal. FERC is in the business of developing hydropower…not taking hydropower off line.

          Claim #2:     Even if dam removal could be accomplished under FERC, removal would take much longer under FERC than it would under the KHSA because of all the lawsuits which would be filed and would need to be adjudicated or settled before dam removal could proceed.

          Claim #3:     Dam removal via the KHSA is preferable to dam removal under FERC because the KHSA is linked to the KBRA Water Deal. The KBRA will bring in the money necessary to restore the Klamath River and to restore Klamath Salmon to the Upper Klamath River Basin. 

Below we examine how each of these claims stacks up against facts presented and arguments made in “Let the River Run: Strategies to Remove Obsolete Dams and Defeat Resulting Fifth Amendment Taking Claims” by Christopher Scoones (Seattle Journal of Environmental Law, Vol. 2:1, 2012)

Here’s how the author describes information presented in the article:
        “This article explores ways to remove dams whose existence no longer benefits the public because of environmental, safety, or economic concerns. Three legal tools could accomplish this: (1) the Endangered Species Act, (2) federal and state dam safety proceedings, and (3) the FERC’s hydropower relicensing procedure. Each of these avenues will be explored, followed by a discussion of Fifth Amendment taking claims and other sources of liability that could result from dam removal.”

Examining the claims

Below are excerpts from the SJEL article which bear on and provide a basis for evaluating the three claims often repeated by Glen Spain, Curtis Knight and other KHSA Dam Deal promoters. KlamBlog has removed the article excerpts' references. For those references see the full article at this link:

          P.16:  “…a FERC safety inspection of Mussers Dam on Middle Creek in Pennsylvania caused the owner to remove the dam rather than make the required repairs. A 2001 report notes that at least four FERC-regulated dams have been removed due to the cost of safety repairs.”

          P. 17:    “Considering that more than two-thirds of the approximately 2,600 hydropower dams within FERC’s jurisdiction are greater than fifty years old, these safety inspections will likely result in more voluntary dam removals in the future.”

          P 5:     “While the ESA has never been used to force dam removal, it has spurred both the federal government and private entities to voluntarily remove dams in order to avoid ESA takings claims. The ongoing Elwha Ecosystem Restoration Project—the nation’s largest dam removal project—is a prime example.”

          P. 6:     “The ESA has also been responsible for changing the way dams operate by requiring the installation of fish passage devices and maintenance of certain flow levels for the protection of threatened species. Use of the ESA’s citizen suit provision to enforce a taking of a protected species could result in an injunction to modify a dam’s operation or force its removal. For these reasons, the ESA provides the impetus for the voluntary removal of many private dams.”

         P. 13:    “The Elwha Ecosystem Restoration Project, for example, was motivated by threat of ESA takings claims. Also in Washington State, conditions attached by FERC to the Condit Dam’s hydropower license—a process discussed in detail below—in accordance with the ESA forced the dam’s owners to either modernize and install expensive fish passage devices or remove the dam.”

          P. 19:    “Voluntary dam removal can also stem from FERC’s hydropower licensing process, which must comply with the ESA. To protect threatened and endangered fish, FERC attached conditions to the renewal of PacifiCorp’s hydropower license for the Condit Dam in Washington State. The dam, construction of which began in 1911, did not provide fish passage. After PacifiCorp applied to FERC for a new license, FERC issued an Environmental Impact Statement in accordance with the ESA that required PacifiCorp to update the dam to allow fish passage. Modernizing the dam would have cost more than three times the price of removal, leading PacifiCorp to choose voluntary removal.”

         P. 19:    “The Condit Dam illustrates FERC’s change of mind that began with its unprecedented action at the Edwards Dam in Maine. Recognizing for the first time that the ecological cost of dams and the safety hazards they pose now tip the public interest in favor of dam removal, FERC ordered the decommissioning of a hydropower project where the owner actively sought a hydropower license renewal. This historic action—discussed in more detail below—presents a third tool to accomplish dam removal.”

          P. 20-21:   “As part of this relicensing process, FERC must determine whether issuing a new license is in the public interest by giving equal consideration to power and non-power uses of the river:
In deciding whether to issue any license under this Part for any project, the Commission, in addition to the power and development purposes for which licenses are issued, shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.     

This section of the FPA, section 4(e), is referred to as the equal consideration requirement.

In 1994, FERC issued a policy statement asserting authority under the FPA “to deny new licenses to hydroelectric projects when existing licenses expire.” This authority comes from Section 10(a) of the FPA and represents the core of FERC’s licensing responsibilities. Known as the “comprehensive development standard,” Section 10(a) reads: That the project adopted . . . will be best adapted to a comprehensive scheme for improving and developing a waterway or water-ways for the use and benefit of interstate and foreign commerce, for the improvement and utilization of water power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses . . .”

         P.21:    “[FERC] does not read the Act as requiring it to issue a license. If a license cannot be crafted that comports with the standards set forth in Section 10(a), FERC has the power to deny the license.”

         P.22:    “Outright denial of a license is, of course, highly unusual. The more likely scenario is that the issuance of a license will be conditioned upon environmental mitigation measures, and the licensee may be unwilling to accept the conditions because they render the project unprofitable. In such a case, the hydropower project may have to shut down. The Commission rejects the notion that “a condition in a power license is per se unreasonable if, as a result of imposing the condition, the project is no longer economically viable.” The statute calls for a balancing of development and nondevelopment interests. To favor power and development interests over environmental concerns is contrary to the Federal Power Act. Furthermore, the Act makes no guarantee of profitability.”

          P.22:     “FERC is free to condition the issuance of a hydropower license on protecting or restoring environmental values, even if the cost of meeting these conditions makes the project economically unviable and forces it to shut down. And when a hydropower project shuts down, the 1994 policy statement stipulates that the project owner is responsible for the costs of decommissioning, which can include dam removal.”

          P.23:    “In 1997, FERC made history. For the first time ever, it denied an application for hydropower license renewal and instead ordered the Edwards Dam in Maine be decommissioned…..The Commission’s response was unheard-of: the license was denied and removal of the dam was ordered, even though the licensee actively sought a new license. Explaining its reasoning behind the order, the Commission states:

We believe that the public interest in this proceeding lies in our denying the license application and requiring the licensees to re-move Edwards Dam. The environmental benefits of so doing substantially outweigh the environmental benefits of relicensing, even with extensive mitigation measures.”

Evaluating KHSA promoters first chief claim

The author of the SELJ article excerpted above has no interest or involvement in Klamath River dam issues.  For that reason the article provides an independent and unbiased platform for evaluating claims made by deal promoters that the KHSA is the best, quickest and surest path to dam removal.

KHSA promoters’ first chief claim is that FERC has never ordered dam removal. In fact, dam removal has been ordered by FERC. The Edwards Dam in Maine and PacifiCorp’s own Condit Dam in Washington are two examples.

PacifiCorp's Condit Dam on Washington's White Salmon River
is one of the dams FERC ordered be removed by the owner 

There is evidence that KHSA promoters know that this often repeated claim is false. In fact, one of the KHSA Dam Deal’s chief promoters – American Rivers – reports on its web site that in 2010 alone 60 dams were removed to restore rivers.

The SJEL article also points out that, while FERC has indeed ordered dam removal, many more dams have been voluntarily removed after FERC ordered work to keep the dams safe.

Dam safety is an issue on the Klamath too. Iron Gate is one of over 800 California dams that have “high hazard” potential.

That does not mean Iron Gate is unsafe; but it does mean the consequences of dam failure would be catastrophic. During the New Year flood of 2005 the earthen Iron Gate dam was almost overtopped. If that had happened, Iron Gate Dam would now be only a memory.

It is not PacifiCorp but rather the US Bureau of Reclamation which controls how much water flows to and through Iron Gate Dam. With the US Bureau of Reclamation now filling Upper Klamath Lake as early each year as possible in order to satisfy irrigation interests, the overtopping of Iron Gate during a major flood event has become more likely. As a result – and contrary to what the Siskiyou County supervisors and some downstream landowners believe - the risk from flooding may, as a result of BOR’s risky management, be greater if the dams stay in than it would be if they are removed.

KHSA promoter claim #2

While the SEFJ article demolishes promoter’s first claim, it does not shed much light on the second claim. KHSA Deal promoters argue the KHSA is the quickest path to dam removal. Because of the large number of contingencies impacting the outcome, however, prediction is either foolhardy or self-serving. Whether the FERC or KHSA path will get the dams out sooner simply cannot be known. 

For example, if the Democrats retain the White House and capture both houses of Congress, legislation authorizing the KHSA Dam Deal and the KBRA Water Deal will most likely move forward.  If, however, government remains divided after the November election (as seems more likely), KHSA-KBRA legislation will continue to lie dormant, blocked by Republican lawmakers.

The recent move by the Obama Administration to turn the impasse over the Klamath Deals into an election issue makes passage of KHSA-KBRA legislation even more unlikely.

KHSA promoters say a return to FERC will result in long years of litigation. While litigation is possible whenever and wherever FERC orders dam removal or relicenses a dam, it is also true that litigation is likely if the KHSA-KBRA legislation passes Congress. Siskiyou County is among those entities which have indicated that they will challenge dam removal under the KHSA.

The FERC option does have an advantage over the KHSA when it comes to passing legal muster under the procedurally-oriented NEPA and CEQA. The KHSA dam removal EIS-EIR can be challenged in state court; a FERC order to remove the dams could only be challenged in federal court. Siskiyou County is among the entities which would prefer to challenge the KHSA in state court. 

The third claim

The third claim made by Spain, Knight and other KHSA promoters is that dam removal under FERC would not bring in the funds needed to restore the river and return salmon to the Upper Klamath River Basin.

The SELJ article does not shed light on this claim. However, KlamBlog has previously noted that most of the “new money” in the KBRA Water Deal would be directed toward satisfying the desires of the Basin's Irrigation Elite as well as toward active restoration of salmon to the Upper Basin. In other words, rather than taking out the dams and allowing salmon to recolonize the Upper Basin on their own and as water quality and other conditions allow, the KHSA calls for establishing a fish hatchery in the Upper Basin to raise and release young salmon artificially. This expensive procedure would be repeated year after year until a self-sustaining population sufficient to satisfy the treaty rights of the Klamath Tribes was achieved.

Because they damage genetic diversity salmon hatcheries
are not considered an appropriate tool to restore wild salmon stocks  

Salmon which are returned to the Upper Basin through active human intervention would be an “experimental population” exempted forever from protection offered by the federal Endangered Species Act. The entire “experimental populations” could be removed at any point by a future federal administration.

In contrast, salmon which naturally return to the Upper Basin would be eligible for full protection under the ESA whether or not an ESA listing occurs before or after the dams come down. If the objective is a durable population of Upper Klamath River Basin Chinook and Coho Salmon, volitional rather than active restoration of salmon to the Upper Basin is the best course.

There is another problem with “restoration” under the KBRA. Those who developed and signed the deal and now promote it have already decided which organizations will get KBRA restoration funds and where within the Basin those organizations will expend the funds. The funding allocation was not made pursuant to a scientific restoration plan or according to what we know advances effective restoration. Instead, those who wrote and signed the KBRA chose to feather their own nests, i.e. to pre-allocate restoration funding to the places and projects they favor. The KBRA’s allocation of funds has more to do with securing budgets to maintain restoration and fisheries departments than with assuring the best "bang" for the restoration "buck".

Passage of the Merkley-Thompson KHSA-KBRA legislation would lock in the politically driven allocation of restoration funds. Those who wrote the KBRA were urged to take a different approach to restoration – one in keeping with what we have learned from restoration science and experience with past restoration programs. Instead KBRA “parties” chose a path that is likely to result in restoration failure.    

Will “takings” claims frustrate dam removal?

At the end of this post KlamBlog excerpts from the SELJ article those portions which evaluate whether Fifth Amendment “takings” claims are likely to block dam removal. Takings claims are likely whether Klamath dam removal proceeds under the KHSA or FERC.

The SELJ excerpts suggest that removal under the KHSA could be more vulnerable to “takings” claims as compared to removal under FERC because certain provisions of the Federal Power Act work to frustrate "takings" claims. Legal precedents cited in the article confirm that “takings” claims face an uphill battle when dam removal proceeds under FERC.

There are no court precedents which apply if dam removal proceeds under the KHSA. As a result, resolving “takings” claims under the KHSA is likely to take considerably more time as compared to resolving those claims pursuant to a FERC dam removal order.

In conclusion

In evaluating the three chief claims made by KHSA promoters concerning dam removal under the KHSA as compared to dam removal under FERC, we have seen that one claim is clearly false, one claim cannot be known one way or the other, and the third claim is highly unlikely to prove true. 
What does appear clear is that – because they would lose money for PacifiCorp each year and raise the cost of electricity to its customers – the aging Klamath Dams will eventually come down whether through a FERC order, the KHSA or some other means.

What is also clear is that the current impasse serves the interest of PacifiCorp. So long as there is no decision on the fate of the dams, FERC will continue to issue one-year licenses for operation of PacifiCorp’s environmentally damaging and obsolete Klamath Hydroelectric Project year after year. The longer the delay, the longer PacifiCorp can profit from the Klamath Dams without addressing the environmental destruction they cause.

As we have seen above, the current impasse also serves the interest of politicians eager for an election-year fight. What the impasse does not serve is the interest of the Klamath River and Klamath Salmon.

Until the impasse is resolved, PacifiCorp’s Klamath River dams will continue to poison the River and frustrate efforts to restore Klamath Salmon. Real leadership is needed to resolve the impasse so that dam removal can move forward one way or the other. But leaders capable of that brand of statecraft are nowhere to be seen. 


Excerpts from the SELJ article pertaining to dam removal challenges based on the US Constitution’s prohibition on the “taking” of private property by government:

           P. 25:    “Dam removal may result in a number of Fifth Amendment taking claims from affected parties. A taking claim asserts that a government action has “taken” a protected property interest without the necessary eminent domain proceedings. The Constitution offers protection from takings: “[N]or shall private property be taken for public use, without just compensation.” This allows a property owner to sue the government and seek compensation for the private property taken. Generally, three forms of a taking are recognized: a physical taking, a regulatory taking, and a hybrid of both known as an exaction.”

         P.29:    “When a hydropower project owner is ordered to remove the dam, as was the case with the Edwards Dam, the owner may claim a total one hundred percent loss in the economic value of the dam and other associated structures removed from the water. These taking claims are easily defeated on two grounds.

First, the parcel as a whole rule should defeat most taking claims by project owners. Under both Penn Central and Lucas, a court must assess the economic loss to the property owner compared with what the owner still has. In performing this assessment, courts look to the parcel as a whole. Even after FERC orders removal of a hydropower dam on a non-navigable river, some portions of the property—those on land—remain unaffected, and even those that are affected retain some economic uses other than hydropower generation. The licensee is normally free to develop or resell the remaining surrounding land.

Second, while the parcel as a whole rule discussed above should defeat most taking claims, the federal navigation servitude can also render many takings claims inappropriate—so long as the dam is located on a navigable waterway. The servitude is a right held for the public in all navigable-for-title waters. In practical effect, it is an interest that permits the federal government to destroy private, state-recognized property rights for the benefit of public navigation without paying compensation for a taking of property.”

          P.30:    “Private title to submerged lands is subservient to the government’s interest in improving navigation. To require otherwise “would be to create private claims in the public domain.” The servitude applies to any government action that aids navigation. All dams in navigable waters therefore exist subordinate to the federal navigation servitude. As a result, Lucas’s background principles of property and nuisance prevent the dam owner from ever acquiring the right to obstruct a navigable water; there can be no taking of a right never possessed. Dam owners will not have a taking claim for loss of the physical dam structure so long as it is located on a navigable waterway.”

          P.32:   “Courts have agreed with FERC: there is no guarantee of profitability under the Federal Power Act. Hydropower project owners cannot reasonably expect that the land will forever remain profitable.”

          P.33:   “There is also a more fundamental reason to refuse to recognize an objectively reasonable investment-backed expectation. As a matter of policy, the idea that there is an obligation on the part of the government to renew a license runs contrary to Congress’s motive for limiting license terms. The renewal licensing process is designed to provide an opportunity to reevaluate whether renewal of the hydropower licenses serves the current public interest.”

          P. 34:   “Since a hydropower project is constructed under a license of limited duration, and with no guarantee of renewal, the project owner cannot claim a protected entitlement to make economic use of the facilities it constructed in order to take advantage of the original FERC license. Licenses are a privilege, not a right. As the Supreme Court opined, “[P]roperty interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source . . . .” Once the license expires, the contract between the licensee and the government ends and the property right is extinguished.”

          P.34-35:   “A project owner may claim a property interest in the potential value of the water power or land as a hydropower site. The U.S. Supreme Court has consistently rejected this claim. In United States v. Chandler-Dunbar Water Power Co., the government exercised the federal navigation servitude and revoked Chandler-Dunbar’s hydropower license. Although Chandler-Dunbar owned the riparian land, the Court noted it “had no such vested property right in the water power inherent in the falls and rapids of the river.” The federal government’s dominant right to take the navigable river flow for interstate commerce defeated compensation claims for the loss of water for power production. The hydropower project was “placed in the river under a permit which the company knew was likely to be revoked at any time” on account of the federal navigation servitude. Speaking eloquently, the Court held that the hydropower owner has no property interest in the water power value of a site: “[T]hat the running water in a great navigable stream is capable of private ownership is inconceivable.”

         P. 38:    “The preceding analysis shows that FERC faces little liability from project owners when denying renewal of a hydropower license and issuing a dam removal order to serve the public interest. An order from FERC to decommission a hydropower project and remove a dam will not result in a compensable Fifth Amendment taking. Hydropower project licensees generally lack the prerequisite vested property interests required for a taking, and any effects on truly vested property interests fail to qualify as a compensable taking.”

         P. 42:    “Following Houston, the case of Klamath Water Users Protective Ass’n v. Patterson was another victory for the ESA over a federal contract for water rights. In Klamath, petitioners sought enforcement of a water delivery contract negotiated in 1956, pre-dating the enactment of the ESA. Rejecting their argument, the court, based on the terms of the contract, held that the Bureau of Reclamation “retains overall authority over decision in use of Project waters,” which includes “the authority to direct Dam operations to comply with the ESA.” Within the Ninth Circuit, the federal government is free to modify water delivery contracts for the benefit of a listed species.”

          P. 43:    “After Tulare, the Court of Federal Claims revisited the issue in a case from the Klamath Project and reached the same conclusion on very different grounds. The court first held that the only available remedy to the irrigators would be a breach of contract claim, not a taking claim: “Like it or not, water rights, though undeniably precious, are subject to the same rules that govern all forms of property—they enjoy no elevated or more protected status. . . . [T]hose rights, such as they exist, take the form of contract claims and will be resolved as such.” The contract claims were later rejected because enactment of the ESA was a sovereign act that can give no rise to contractual liability for the government.”

         P. 45-46:   “In conclusion, there are defenses to counter any Fifth Amendment taking claim where the ESA alters dam operations or reduces a water delivery. The public trust doctrine, in those states in which it is subsumed in the water rights system, provides an additional argument against future taking claims that rely on Casitas. Where the claimant cannot point to a protected property interest that has been “taken” by the challenged regulation, the taking claim cannot succeed. The public trust doctrine prohibits a water right holder from claiming a property entitlement to exploit water in a way that is harmful to public trust resources—in this case wild and endangered species. Finally, the doctrine of public ownership of wildlife and Lucas background principles of state nuisance law enable the removal of private dams while shielding the government from Fifth Amendment taking claims.”

         P. 46:    “Owners of property riparian to waters affected by dam removal may demand compensation. Upstream of the dam, the reservoir can diminish substantially or disappear following dam removal, exposing previously submerged lands. When this happens, depending upon who owns title to the newly surfaced lands, riparian landowners may find themselves severed from contact with the water and assert a loss of associated riparian rights.”

          P.46:     “Downstream, the effects of removing the dam are reversed. Rivers may swell after a dam is removed, causing property damage above the high-water mark. Although the previously discussed federal navigation servitude generally exempts the government from paying compensation in situations where navigable waters are involved, a more precise analysis of the servitude’s powers and jurisdiction is necessary to determine the extent of any potential Fifth Amendment taking liability.”

           P. 47-48:   “Conventional wisdom holds that the normal rules of riparian rights do not attach to artificial watercourses because the expectations of those owners abutting artificial watercourses are not the same as those of riparians along a natural watercourse. The “artificial” riparian has no common law right to the maintenance of the artificial watercourse and cannot compel the maintenance of the water at any particular level. More specifically, riparian rights only attach to the “normal flow” of waters, as opposed to “floodwaters,” into which category a dam’s large reservoir could be placed. At least one court has adopted this view in holding that waters impounded by dams are floodwaters that confer no riparian rights.”

          P. 48-49:   “Prescription can be a basis for attaching riparian rights to artificial waters. “Prescriptive rights [are] frequently . . . claimed [in lakes] maintained at [artificially] high levels for [a] long period of time. [Some riparian] owners whose lands have been subject to prescriptive easements have asserted a reciprocal negative easement to prevent the lake from being lowered.”

Courts have found ways to protect the expectations of these riparian owners. Removal of a milldam was enjoined because the construction of cabins along the shore of the artificial lake and their maintenance for the prescriptive period gave the owners a reciprocal right to compel maintenance of the dam. The dam, a “permanent obstruction” having been maintained for a great length of time, transformed the “artificial conditions created thereby . . . [to] natural conditions.” The court observed, “even nature herself became adapted to the new surrounding.” A native growth of hardwood timber had sprung up, “giving a natural effect and appearance to the conditions created by the dam.”

          P. 50:    “Landowners thus face the challenge of proving riparian rights attach to their property—either because the watercourse is natural or should be considered natural. Even if riparian rights are recognized, the Supreme Court held in Walton County v. Stop the Beach Renourishment that riparian rights do not include an independent right of contact with the water under Florida law. Instead, the right to contact with the water is a component of the riparian right of access to the water, and exists only to preserve the core riparian right of access.Therefore, so long as access to the water is maintained, possibly through a public easement, a landowner’s loss of contact with the water following dam removal may not be a compensable claim.”

          P. 55:    “Courts should treat the downstream flooding that results from dam removal as a non-compensable injury rather than a per se physical taking. Dams provide flood control. Any riparian land that floods after a dam is removed was inherently vulnerable to flooding before the dam was constructed. Leeth and Laughlin counsel against the validity of any such taking claim.”
          P.56-57:   “One final source of liability exists for dam owners following dam removal. All dams “create reservoirs behind the impoundment that will eventually fill with sediment.” There is currently no best management practice for sediment. Some dam owners manage the accumulated sediment by dredging and removing it before dam removal. If dredging is not performed, the impoundment is either drained through the gates of the dam or, with a non-gated dam, notching is performed to breach segments of the dam.”

Erosion, flooding, and the release of potentially toxic sediment may occur as a result. “[S]ediment may contain contaminants ranging from agricultural pesticides to industrial waste and heavy metals.” The river itself will physically change as the sediment deposits in downstream channels, making them shallower and wider. “As a result, [downstream] riparian land becomes more susceptible to increased erosion and property damage,” including flooding. These effects are greatest when a dam is removed without first dredging the impounded sediment.

The tort law of trespass may hold dam owners liable for the release of this sediment. A trespass action is conceptually appropriate because it requires showing only that the dam’s accumulated sediment was a physical entry onto land.Unfortunately, this has the effect of creating a disincentive for the voluntary removal of dams for fear of liability to downstream landowners. Traditional tort and property law principles afford a dam owner relatively few defenses. To remedy this and create incentives for the removal of obsolete dams, courts can recognize the defenses of modern comparative negligence and public policy for the benefit of public safety and environmental restoration.

Additionally, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), empowers the EPA to order responsible parties to remove toxins from sediment before dam removal. In 1973, Niagara Mohawk Power Corporation petitioned FERC to remove the Fort Edward Dam on the Hudson River because repair of the dam structure would be economically infeasible. The Commission granted the petition but required Niagara Mohawk to remove the sediment behind the impoundment. Despite the efforts of the Commission to minimize the adverse effects, nearly 200 miles of the Hudson River were contaminated and the area was declared a Superfund site.General Electric had discharged approximately 1.1 million pounds of PCBs into the Hudson River from two upstream plants. As this example illustrates, liability for toxic sediments ultimately rests with their creator, which may or may not be the dam owner. This eliminates one major potential source of liability for voluntary dam removal where the dam owner played no role in the creation of the toxic sediment behind the impoundment.”

          P.58:    “As the preceding analysis shows, viable legal tools exist for removing obsolete dams whose existence no longer benefits the public. The ESA may be less effective than its drafters intended, but it remains a compelling reason for voluntary dam removal and has been successful in changing the way dams operate for the benefit of threatened species. Meanwhile, federal and state dam safety proceedings are also spurring voluntary dam removals, and likely offer the easiest route toward dam removal. Removal of unsafe dams benefits both people and the environment, and, as the majority of America’s dams are nearing the end of their structural lifespan, removal is often more practical than repair. Finally, the government itself has now recognized the value of a free-flowing river over electric power generation and private profit. The FERC’s Edwards Dam decommission order marked a historic shift in the way the federal government looks at dams.

These legal options can be exercised without fear of Fifth Amendment taking liability. When FERC denies renewal of a hydropower license, licensees are not entitled to compensation. A license is a privilege, not a right, and a project owner enjoys no guarantee of license renewal as a property interest. For ESA-mandated dam removal, the doctrine of public ownership of wildlife and Lucas background principles of state nuisance law defeat most taking claims. Reducing water rights for the benefit of a listed species remains a tumultuous topic, but current Fifth Amendment taking law favors no taking.

Compensation claims by parties other than dam owners affected by dam removal should similarly fail. Upstream of removal, courts should treat the water body as an artificial one to which no riparian rights attach. If a court instead treats the reservoir as a natural water body to which riparian rights would normally attach, the core riparian right of access to the water can be easily preserved through the use of an easement. Downstream of removal, taking claims from flooding should not be recognized as the landowner’s parcel was susceptible to flooding before the construction of the dam, and would be flooded in the water’s natural, unobstructed state. Finally, while sediment liability is a concern for many dam owners, CERCLA will rest liability for toxic sediment with its creator, and courts should consider comparative negligence and the benefit inured to the public by dam removal when hearing tort actions for trespass.”


Anonymous said...

It's Salazar, not Salizar... lol

Anonymous said...

FERC has never ordered a dam removed. Condit is coming down because the conditions FERC put on re-licensing it(fish ladder) were cost prohibitive. Pacific Corp then choose to remove the dam.

Felice Pace said...

FERC ordered removal of the Condit Dam in Washington State and the Edwards Dam in Maine. In both cases there was a prior negotiated agreement WITHIN THE FERC PROCESS between dam owners and others. But it was FERC which issued the legal order.

This is part of the normal FERC process which ALWAYS results in a FERC order whether the order implements relicensing or removal and whether the order was the result of a negotiated agreement or not.

This is VERY different than what we have with the KHSA Dam Deal which is an end run around the FERC process. The sort of special interest mischief we see in the KHSA and KBRA could not occur under FERC and that is just one among many reasons why the best outcome for the Klamath River and Klamath Salmon is a return to FERC.

There are good deals and there are bad deals. The KHSA and KBRA are bad deals because they reward the 1% at the expense of taxpayers and because they will not lead to recovery of Klamath Salmon.

Felice Pace said...

Anonymous said: "Condit is coming down because the conditions FERC put on re-licensing it(fish ladder) were cost prohibitive. Pacific Corp then choose to remove the dam."

Precisely. This is the same thing that happened on the Klamath: FERC was obligated under applicable law to put conditions on relicensing (fish ladders, etc.) that rendered the Klamath Hydroelectric Project an annual money loser. PacifiCorp then chose to remove the dams but was able to get a sweetheart deal outside the FERC process.