FERC Relicensing and its Continued Role in Improving Fish Passage at Pacific Northwest Dams
Skylar Sumner, Lewis & Clark Law School.
This post is part of the Environmental Law Review Syndicate.
The history of the American west is inextricably intertwined with damming rivers. Whether for navigation, irrigation, or hydroelectric power, nearly every American river has been dammed. In fact, stretching back to the day the Founding Fathers signed the Declaration of Independence, determined Americans have finished an average of one large-scale dam every day. Currently, there are at least 76,000 dams in this country.
While these dams have vastly contributed to America’s efforts to settle the west, they have come with significant costs. Although these dams’ harms are varied, one of the primary concerns among advocates in the Pacific Northwest is the dramatic impacts dams have on species of anadromous fish, particularly salmonids. In the Columbia River basin, dams block salmon and steelhead migration to more than 55% of historically available spawning grounds. Since many anadromous fish species in the Pacific Northwest are listed as either threatened or endangered, the Endangered Species Act (ESA) can be a valuable tool to induce voluntary dam removals by requiring the Federal Energy Regulatory Commission (FERC) to include costly fish passage upgrades in any relicensing proceeding.
Northwest salmon advocates rejoiced in 2014 when, following a lengthy campaign from a coalition of tribal and environmental activist groups, construction crews completed the largest dam-removal project in American history by removing both the Elwha and the Glines Canyon Dams. Removing these dams started the process of restoring seventy miles of the Elwha River to natural flows that had not existed since construction of the dams first began in 1911. Since the dams came down, the river’s ecological quality has improved at an astonishing rate. In fact, salmon and steelhead populations in the Elwha River have already reached thirty-year highs.
The tremendous success of freeing the Elwha cannot be overstated, but the dams required decades of activist toil to remove. In contrast, removing the Little Sandy and Marmot dams from the Sandy River in Oregon was accomplished in only eight years. There are certainly many core differences between these campaigns that help explain this discrepancy, but chief among these is the fact that Federal Power Act (FPA) amendments incentivized the owner of the Little Sandy and Marmot dams to privately fund the removal, while the Elwha removal languished waiting on federal funding for over a decade.
This Essay will discuss the statutory changes to the FERC relicensing process that have worked to improve fish passage at hydropower facilities in recent decades and will continue to fuel upgrades and dam removals in the future. Part II lays out an overview of the environmental requirements of FERC relicensing and analyzes the Bull Run Hydropower Project as an example of a successful dam removal that was prompted as a result of its owner pursuing relicensing. Part III then reviews the relicensing schedule for several dams in Oregon and Washington to discuss how these fish passage improvements will continue occurring for the foreseeable future.
The current regulatory process will—at least marginally—improve fish passage at many hydropower facilities in the near future as older dams apply for relicensing through FERC. Privately operated hydroelectric dams can only operate under a license from FERC. For older dams, the cost of installing fish passage during the FERC relicensing process can exceed the cost of removal, thereby incentivizing the dam owner to opt for removal. For dams that successfully obtain a license to continue operation, the current statutory relicensing framework requires FERC to include any recommended fish passage upgrades as mandatory conditions in the license. Due to new environmental statutes and regulations passed during the lifetime of the preceding license, many hydroelectric dams in the Columbia River basin are likely to require passage upgrades.
FERC is in the midst of a massive relicensing period. The FERC relicensing process has had a tremendous impact on fish passage in the Columbia River basin in recent history, as both Oregon and Washington were included in FERC’s list of states requiring the most dam relicenses between 2005 and 2015. As discussed below, absent a congressional amendment of the FPA, the FERC relicensing process will mandate fish passage upgrades at Northwest hydroelectric facilities for decades to come.
In 1920, Congress passed the FPA, authorizing the federal government to regulate private hydroelectric dams. While older dams may have been constructed without a FERC license, all dams must eventually obtain a license to continue operation.
Initially, FERC only considered a dam’s power-generation potential when reviewing a license application, while ignoring the environmental impacts. Then in 1986, Congress amended the FPA to require FERC to include permit conditions protecting fish and wildlife. Now, FERC licenses “require the construction, maintenance, and operation by a licensee at its own expense of such . . . fishways as may be prescribed by” the United States Fish & Wildlife Service or the National Oceanic and Atmospheric Administration (NOAA) Fisheries. FERC cannot “modify, reject, or reclassify any prescriptions submitted by” those agencies. If FERC disagrees with the fish passage conditions, FERC must either withhold the license or dispute the conditions before the relevant court of appeals.
New FERC permits may last for a duration of up to fifty years. Due to this timeframe, FERC will spend the foreseeable future considering relicensing applications for dams whose original permits were approved with minimal environmental consideration. For instance, FERC will review relicensing applications for dams that were approved without an Environmental Impact Statement (EIS) through 2020, dams that were approved without wildlife permit conditions through 2036, and dams that were approved prior to Endangered Species Act protections for anadromous fish through the 2040s.
When owners of these dams apply for relicensing, modern environmental and endangered species protections will likely require project owners to significantly upgrade the dams’ fish passage facilities. FERC has proven willing to attach extremely costly fish passage conditions to its relicensing decisions, which can make removal the most cost-effective next step for hydroelectric dam operators. For those dams that remain standing, new FERC licenses will still likely improve fish passage because relicensing will be conditioned upon upgrading fish passage to meet modern environmental and ESA requirements.
B. Bull Run Hyrdropower System: An Example of How FERC Relicensing Provides Strong Incentive for Voluntary Dam Removal Settlement
The FERC relicensing process has proven to be an effective tool in persuading operators of large hydroelectric dams to negotiate effective and efficient dam removals that are entirely funded by the dam operators. Few cases highlight how well this process can facilitate dam removals better than the Marmot and Little Sandy dams of the Bull Run Hydropower Project. The Bull Run project is the gold-standard in dam removal for many reasons, including 1) it was entirely funded by the operator without predetermined cost caps; and 2) the dams came out quickly, with minimal confrontation between the affected parties.
Twenty-six miles east of Portland, Oregon the Bull Run River flows through the Mt. Hood National Forest. The Bull Run River drains a 102 square-mile watershed and is almost entirely fed by rain and snowmelt from Mt. Hood. As the main source of water for Portland, the Bull Run watershed provides tap water for nearly one-fifth of all Oregonians. Development on the Bull Run began in the 19th century, and the river became an important source of both water and electricity for the surrounding area.
In 1912, Pacific Gas & Electric (PGE) completed the primary stage of one of the largest developments in the watershed: the Bull Run Hydropower Project. To increase the powerhouse’s capacity, PGE constructed the Little Sandy Dam to divert water from the Little Sandy River to Roslyn Lake, the reservoir behind the project’s powerhouse. The dam completely diverted the Little Sandy River 1.7 miles upriver from its confluence with the Bull Run River. The dam blocked salmon migration upstream and decreased flows to the remaining salmon habitat downstream.
The following year, PGE completed the Marmot Dam on the Sandy River. This dam diverted water from the mainstem Sandy River to the Little Sandy upstream from the Little Sandy Dam, thereby increasing the capacity at Roslyn Lake. The original Marmot Dam was a wood and sediment structure. Unlike the Little Sandy Dam, the Marmot Dam did not block all salmon migration because the original structure included a fish ladder. In 1989, PGE replaced the original Marmot Dam with a forty-seven foot concrete dam.
The Bull Run Hydropower Project’s dams and diversions decreased fish runs in the Sandy River and Bull Run watersheds to 10%–25% of their historic runs. PGE, the operator of the Marmot and Little Sandy Dams, operated four hydroelectric systems that would all require FERC relicensing in the early 2000s. Due to the increasing burden of maintaining century-old dams, relatively low summer flows, and modern environmental regulations, PGE determined that the Bull Run Hydropower System’s costs were simply insurmountable. PGE chose to voluntarily surrender its FERC license. After negotiating a settlement agreement with all affected parties, FERC granted PGE’s petition to surrender its license in 2004. Because of the inclusive settlement process, public support for the final project was high, and PGE obtained all necessary environmental permits to move forward with the dam removal in only eighteen months.
On July 24, 2007, engineers began the process of removing the Marmot Dam by setting off explosives to crack the concrete face. The process ended that October with the breach of a temporary diversion dam built just upstream. At the time, this was the largest dam removed in the Pacific Northwest, both in terms of height and trapped sediment. The Sandy River recovered much more rapidly than expected, with migrating coho salmon reported swimming past the old dam site just one day after engineers completed the removal process. The Little Sandy Dam was removed the following summer.
An important takeaway from the Bull Run Hydropower Project’s removal is that, under the right circumstances, environmental conditions placed on FERC relicensing approvals can act as a tremendous hammer to force dam removals. In fact, PGE decided to pursue settlement negotiations before it even received the final fish passage requirements. Preliminary estimates were enough for PGE to determine that the Bull Run system would not be economical. The Bull Run removal process shows just how effectively the FERC regulatory process can trigger rapid dam removals with minimal delays and no public funding.
III. The Glut of Pending and Upcoming License Expirations Will Require FERC to Revisit Fish Passage in the Pacific Northwest for Several Decades
Because of the fifty-year lifetime of its licenses, FERC is currently in the process of relicensing the final pre–National Environmental Policy Act (NEPA) hydroelectric dams. Several dams in both Washington and Oregon are still operating under such licenses. Although the relicensing process has proceeded slowly, one certainty is that fish passage upgrades will be a mandatory condition for almost any new FERC license. This Part discusses a few dams in both Northwest states that are scheduled for relicensing in the coming decades and provides contemporary examples of the fish passage upgrades that FERC has already required at Northwest dams in recent years.
FERC currently licenses fifty-five privately operated hydroelectric dams in Washington. Two of these dams—Sullivan Lake and Packwood Lake—were licensed prior to the mandatory environmental review process codified in NEPA. The Packwood Lake dam, for example, was last licensed in July 1960.
Packwood’s initial license was set to expire in 2010, but the dam has been operating under annual interim permits while working to determine what mandatory conditions will attach to the final new license. As part of this relicensing process, Energy Northwest—the operator of Packwood Dam—has had to cooperate with NOAA Fisheries to determine the impact that the dam’s continued operation will have on listed species. NOAA Fisheries found that three listed species were likely to be affected by the dam’s operation: Lower Columbia River Chinook, coho, and steelhead. To mitigate these harms, Energy Northwest has built an exclusionary screen to keep migrating salmonids out of the channel leading to the powerhouse, but more expansive requirements may be included before FERC can issue the final license.
Along with the pre-NEPA dams, FERC also oversees seventeen dams that are operating under licenses issued prior to the Electric Consumers Protection Act and, as such, did not require any wildlife considerations. These dams will be pursuing relicensing through the 2030s, which will inevitably mandate new fish passage conditions, thereby improving salmonid accessibility to spawning grounds.
Of the twenty-five actively licensed dams in Oregon, there are three dams operating under pre-NEPA licenses: the Klamath, Hell’s Canyon, and Carmen-Smith dams. The greatest fish-passage improvements will occur in the Klamath River, where PacifiCorp—the dams’ owner—has agreed to remove four huge dams by 2020, opening up 570 miles of riparian habitat for returning salmon. Under the agreement, PacifiCorp will provide $200 million for the removal, and the state of California will fund up to an additional $250 million by selling general obligation bonds.
On top of this monumental dam removal, the Carmen-Smith dam near Eugene, Oregon also agreed to significant improvements for salmon in order to relicense. The Carmen-Smith license was issued in 1959 and expired in 2008. As part of its relicensing effort, the Eugene Water and Electricity Board (EWEB) entered into a settlement agreement with sixteen other parties consisting mainly of government agencies, Native American Tribes, and environmental organizations. This agreement included extensive salmonid habitat enhancements and a fish passage–system upgrade. However, a precipitous decline in utility prices triggered a renegotiated agreement, and the fish passage upgrade was replaced with a trap-and-haul system to transport the fish around the dam’s powerhouses. The parties submitted this amended agreement to FERC in 2016. However, should NOAA Fisheries find this trap-and-haul system insufficient to protect the listed species, then EWEB could still be required to install the original fish passage upgrades.
Dam removals have become much more common in recent decades, and FERC relicensing has played a large role by requiring expensive fish-passage upgrades as a mandatory condition of an extended operating license. This uptick in FERC-triggered removals was caused by the fact that many of the last dams to be licensed without any environmental oversight have sought relicensing in the past decade. While almost all the pre-NEPA dams have been relicensed at this point, FERC relicensing will continue to trigger fish passage upgrades at facilities that were originally licensed before FERC started attaching mandatory wildlife considerations in 1986. Organizations operating dams in the Pacific Northwest that were licensed prior to these wildlife conditions will be pursuing relicensing through 2039.
In some cases—like the Little Sandy and Marmot Dams in Oregon—the economic cost of the Electronic Consumers Protection Act’s fish passage requirements will exceed the benefit of continued operation and make removal the more cost-effective option. In most other cases, the new FERC license will still mandate fish passage upgrades like installing a fish-ladder or implementing a trap-and-haul system. Through either dam-removal or upgrades, these FERC conditions will improve fish-passage at hydroelectric dams throughout the Pacific Northwest.
 U.S. Army Corps of Eng’rs, Water in the U.S. American West 6 (2012).
 Id. at 14.
 Address, Bruce Babbitt, Sec’y of the Interior, Remarks at the Ecological Society of America Annual Meeting (Aug. 4, 1998), http://www.sci.sdsu.edu/salton/DamsAreNotForever.html.
 Heinz Center, Dam Removal: Science and Decision Making 3 (2002) (the list referenced here has not been updated since 2001 due to post-9/11 security concerns).
 See Christopher Scoones, Let the River Run: Strategies to Remove Obsolete Dams and Defeat Resulting Fifth Amendment Taking Claims, 2 Seattle J. Envtl. L. 1, 2 (2012).
 See Laurie A. Weitkamp, A Review of the Effects of Dams on the Columbia River Estuarine Environment, With Special Reference to Salmonids 6 (1994).
 John Harrison, Dams: Impacts on Salmon and Steelhead, N.W. Power and Conservation Council (2008), https://www.nwcouncil.org/history/DamsImpacts.
 See, e.g., Wash. State Recreation and Conservation Office, Salmon Species Listed Under the Federal Endangered Species Act (2009), http://www.rco.wa.gov/salmon_recovery/listed_species.shtml.
 Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
 Margaret B. Bowman, Legal Perspectives on Dam Removal, 52 BioScience 739, 741 (2002).
 Julia Guarino, Tribal Advocacy and the Art of Dam Removal: The Lower Elwha Klallam and the Elwha Dams, 2 Am. Indian L. J. 114, 130–31 (2013).
 Elwha River Restoration: Freeing a River, Nat’l Park Serv., https://www.nps.gov/olym/learn/nature/elwha-ecosystem-restoration.htm (last visited Sept. 30, 2017).
 Lower Elwha Klallam Tribe, Timeline of the Elwha River Dams & Removal Efforts, http://www.elwha.org/damtimeline.html) (last visited Sept. 30, 2017).
 Lynda V. Mapes, Elwha: Roaring Back to Life, Seattle Times (Feb. 13, 2016), http://projects.seattletimes.com/2016/elwha/ (Scientists have been “amazed at the speed of change under way in the Elwha.”).
Lower Elwha Klallam Tribe, supra note 13.
 Michael C. Blumm & Andrew B. Erickson, Dam Removal in the Pacific Northwest: Lessons for the Nation, 42 Envtl. L. 1043, 1069–71.
 16 U.S.C. §§ 791–825.
 Philip M. Bender, Restoring the Elwha, White Salmon, and Rogue Rivers: A Comparison of Dam Removal Proposals in the Pacific Northwest, 17 J. Land Res. & Envtl. L. 189, 228 (1997).
 16 U.S.C. § 797(e) (2012).
 See, e.g., Blumm, supra note 17, at 1053–54 (discussing the relicensing process for the Elwha and Glines Canyon dams).
 16 U.S.C. § 811.
 See infra notes 36–38 and accompanying text.
 2007 was the peak year for hydroelectric relicensing. Applications for New Licenses (Relicenses), Fed. Energy Reg. Commission (Aug. 15, 2017), https://www.ferc.gov/industries/hydropower/gen-info/licensing/app-new.asp.
 16 U.S.C. § 797(e).
 Congress did not authorize the federal government to license private dams built before June 10, 1920. Id.
 Federal Power Act, Hydropower Reform Coalition (2017), http://www.hydroreform.org/policy/fpa.
 Electric Consumers Protection Act of 1986, Pub. L. No. 99-495, 100 Stat. 1243 (codified at 16 U.S.C. § 791a).
 16 U.S.C. § 803(j).
 Id. § 811.
 Am. Rivers v. Fed. Energy Regulatory Comm’n, 201 F.3d 1186, 1210 (9th Cir. 1999).
 16 U.S.C. § 799.
 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4347. NEPA was signed into law in 1970. What is the National Environmental Policy Act?, Envtl. Protection Agency, https://www.epa.gov/nepa/what-national-environmental-policy-act (last visited Sept. 30, 2017).
 Wildlife considerations were required in the Electricity Consumers Protection Act, enacted in 1986. 16 U.S.C. § 803(j).
 For example, Oregon coastal coho salmon were not listed until 1998. See, e.g., ESA Chronology for Oregon Coast Coho, Nat’l. Oceanic & Atmospheric Admin. Fisheries http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/salmon_and_steelhead_listings/coho/esa_chronology_for_oregon_coast_coho.html (last visited Sept. 30, 2017).
 For example, FERC would have required PacifiCorp to spend over $30 million on fish passage upgrades to relicense the Condit Dam, so PacifiCorp chose to remove the dam at a cost of approximately $17 million. David H. Becker, The Challenges of Dam Removal: The History and Lessons of the Condit Dam and Potential Threats from the 2005 Federal Power Act Amendments, 36 Envtl. L. 812, 826–27 (2006).
 16 U.S.C. § 811.
 Blumm, supra note 17, at 1070.
 Becker, supra note 39, at 832 n.135.
Bull Run Watershed, City Portland, https://www.portlandoregon.gov/water/29784 (last visited Sept. 30, 2017).
 Janie Har, Bull Run Watershed: Journey to the Source of Portland’s Copious, Constant Water, Oregonian (Aug. 13, 2010), http://www.oregonlive.com/portland/index.ssf/2010/08/bull_run_watershed_journey_to.html.
 The City of Portland first diverted water from the Bull Run in 1894. Andrew Theen, From Bull Run to Mount Tabor: The History of Portland’s Open Reservoirs (Timeline), Oregonian (Dec. 17, 2014), http://www.oregonlive.com/portland/index.ssf/2014/12/from_bull_run_to_mount_tabor_t.html.
 Bull Run: The Town That Time Forgot, PDX Hist. (Oct. 28, 2016), http://www.pdxhistory.com/html/bull_run.html.
 The main powerhouse was completed in 1912. The Century-Old Bull Run Powerhouse Finds New Life, Thanks to 3 Portland Preservationists, Oregonian (Dec. 6, 2012), http://www.oregonlive.com/gresham/index.ssf/2012/12/the_century-old_bull_run_power.html.
 Blumm, supra note 17, at 1067.
 Blumm, supra note 17, at 1067.
 Id. at 1067–68.
 Id. at 1068.
 Of PGE’s four hydroelectric systems, the Bull Run project was the smallest. Julie A. Keil, Bull Run Decommissioning: Paving the Way for Hydro’s Future, Hydro Rev. (Mar. 1, 2009), http://www.hydroworld.com/articles/hr/print/volume-28/issue-2/feature-articles/dam-removal/bull-run-decommissioning-paving-the-way-for-hydrorsquos-future.html.
 The Bull Run system affected fish passage, temperature pollution, and river flows; several threatened fish species also migrated to the rivers. Id.
 This is understandable when you consider the fact that PGE would have had to upgrade two century-old dams just to continue electricity production at a single powerhouse. Id.
 Fed. Energy Regulatory Comm’n, Draft Environmental Impact Statement: Bull Run Project (2003).
 There were a total of twenty-two parties in the settlement. Id. PGE also agreed to pay all costs for the removal in the settlement, thereby circumventing the arduous process of securing federal funding. Blumm, supra note 17, at 1070.
 Portland Gen. Elec., Turbidity Management Plan: Bull Run Hydropower Project 1 (2005).
 Most notably, the nearest city—Sandy, Oregon—was a party to the settlement. Becker, supra note 39, at 832 n.135 (2006).
 Marmot Dam, Oregon’s Largest Dam, Is Being Removed: Salmon and Wildlife Habitat and Public Recreation to Benefit, Horizon Int’l Sols. Site, http://www.solutions-site.org/node/271 (last visited Sept. 30, 2017).
 Jon Major et al., Initial Fluvial Response to the Removal of Oregon’s Marmot Dam, 89 Eos 241, 241 (2008).
 Id.; Charles Podolak & Jon Major, An Example of One River’s Response to a Large Dam Removal (2016), http://serc.carleton.edu/vignettes/collection/37741.html.
 Elizabeth Brink, Feeding a Hungry River, 23 World Rivers Rev. 6, 6 (2008).
 Blumm, supra note 17, at 1069.
 National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
 See supra notes 35–36 and accompanying text.
 Fed. Energy Regulatory Comm’n, Active Licenses (2017), https://www.ferc.gov/industries/hydropower/gen-info/licensing/active-licenses.asp (available for download) [hereinafter Active Licenses].
 Fed. Energy Regulatory Comm’n, Pending Licenses, Relicenses and Exemptions (2017), https://www.ferc.gov/industries/hydropower/gen-info/licensing.asp (available for download).
 See, e.g., Nat’l Oceanic & Atmospheric Admin., Endangered Species Act Section 7 Formal Consultation, and Manguson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation for the License for Construction, Post-Construction Monitoring and Evaluation of a Tailrace Barrier at Packwood Lake Hydroelectric Project (FERC Project No. 2244) (2007), https://elibrary.ferc.gov/idmws/file_list.asp?document_id=13541611. Since the last license was issued before Congress passed NEPA in 1970, these environmental reviews were never conducted before. Fed. Energy Regulatory Comm’n, Hydropower Primer: A Handbook of Hydropower Basics 20 (2017), https://www.ferc.gov/legal/staff-reports/2017/hydropower-primer.pdf.
 Nat’l Oceanic & Atmospheric Admin., Packwood Lake Hydroelectric Project, http://www.westcoast.fisheries.noaa.gov/fish_passage/ferc_licensing/columbia_river/packwood_lake.html (last visited Sept. 30, 2017).
 See 16 U.S.C. § 811 (2012); see also supra notes 32–34.
 See Active Licenses, supra note 74, see also supra notes 30–31 and accompanying text.
 Active Licenses, supra note 74.
 See David N. Allen, The Klamath Hydroelectric Settlement Agreement: Federal Law, Local Compromise, and the Largest Dam Removal Project in History, 16 Hastings W.-N.W. J. Envtl. L. & Pol’y 428, 431–33 (2010).
 Id. at 459.
 Carmen-Smith Hydroelectric Project, Eugene Water & Electricity Bd., http://www.eweb.org/about-us/power-supply/carmen-smith (last visited Sept. 30, 2017).
 Active Licenses, supra note 74.
 Christian Hill, EWEB Backs Deal to Save $80 Million on Dam Relicensing, Reg.-Guard, Nov. 2, 2016, at A1.
 Carmen-Smith Hydroelectric Project, supra note 89.
 Hill, supra note 91. For an illustration of the system, see Carmen-Smith Project: Upstream Fish Passage, Eugene Water & Electricity Bd., http://www.eweb.org/about-us/power-supply/carmen-smith (last visited Sept. 30, 2017).
 Carmen-Smith Hydroelectric Project, supra note 89.
 Hill, supra note 91.
 Active Licenses, supra note 74.