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Federal judge in Seattle upholds new rules for relicensing dams

by Gene Johnson 10/04/2006, KGW.com, Northwest News Channel,

A federal judge on Tuesday upheld the Bush administration's interpretation of dam-relicensing rules in the 2005 Energy Policy Act, although critics had argued it could lead to lesser protections for the environment.

U.S. District Judge Marsha Pechman said the administration did not exceed its authority when it established procedures for letting dam operators challenge environmental requirements, such as installing fish ladders and monitoring water quality.

The Federal Energy Regulatory Commission issues licenses to operate dams, and often those 30- or 50-year licenses incorporate conditions set by other federal agencies to protect wildlife.

The Energy Policy Act lets dam operators challenge such conditions in a hearing before an administrative law judge. It also allows them 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.

A coalition of environmental and recreational groups, led by Washington, D.C.-based American Rivers, did not challenge the law itself. Instead, the coalition challenged the Bush administration's decision to apply it to dam relicensing applications that were already under way when the law took effect. The opponents also said the administration did not conduct a proper public notice period before implementing the law.

Pechman rejected those arguments. She said Congress didn't indicate whether it wanted the law applied to pending applications, and that it was within the administration's authority to apply it to them. Furthermore, she said, no public notice period was required.

Dave Kvamme, a spokesman for Portland, Ore.-based PacifiCorp, welcomed the ruling. He said dam operators previously had no avenue for challenging environmental requirements that could cost ratepayers millions of dollars.

"All this does is allow a licensee to find lower-cost ways of complying with federal prescriptions that can benefit fisheries, and we believe that's a good thing," he said.

In August, pursuant to its new rights under the Energy Policy Act, PacifiCorp appealed a federal requirement that it build expensive fish ladders on its Klamath River dams. It lost: An administrative law judge ruled last week that the company's alternative proposal capturing the fish and trucking them around the dams wasn't good enough. The company plans to keep pursuing the alternative.

Jan Hasselman, the Earthjustice lawyer who handled the challenge, said a big concern is that the Forest Service, the National Marine Fisheries Service and other agencies that propose the conditions might not have the resources to conduct hearings and review alternative proposals for all dam operators that request them. That would leave dam operators in a good position to negotiate for weaker requirements, he said.

That happened at the West Fork dam on Boulder Creek in Utah, environmental groups say. 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.

Hasselman said he did not know if the groups would appeal the ruling.

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