April 11, 2021

Volume XI, Number 101

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Industry and Environmentalists Find Common Ground: Joint Statement Proposes Collaboration to Address Climate Change and Conservation

Representatives from both the hydropower industry and environmental conservation associations recently issued a Joint Statement of Collaboration on U.S. Hydropower (“Joint Statement”). The Joint Statement was the product of dialog that began in 2018, convened by Stanford University’s Woods Institute for the Environment, Steyer-Taylor Center for Energy Policy and Finance, and the Energy Futures Initiative. The Joint Statement suggests that, after the decades of strife between the two sides over the environmental impacts of hydropower development, hydropower’s ability to produce carbon-free energy provides the basis for détente that should ease the regulatory path for hydropower development, especially on existing dams that are not fitted with hydroelectric generators.

The Joint Statement memorializes each side’s recognition that the other side advocates legitimate issues—the role hydroelectric power will play in decarbonizing the United States’ electricity system on the one hand and the ecosystem services and benefits provided by free-flowing rivers on the other. It then provides action items that the parties agree should be pursued together.

The parties to the Joint Statement are seeking comments, including additional parties willing to sign the Joint Statement, by December 12.

Key Takeaways

  • The Joint Statement represents an unprecedented level of collaboration between the various parties and lays the groundwork for a major expansion of hydroelectric production where it can be achieved with minimal environmental costs.

  • Because hydroelectric power is subject to extensive regulation by both the state and federal agencies, achievement of the Joint Statement’s goals ultimately depends on the willingness of state and federal actors to adopt its recommendations. However, the mutual support from both sides of what has traditionally been a contentious political relationship should help smooth the way for these reforms.

  • Hydropower accounts for 7 percent of the United States’ electricity generation and over 50 percent of its renewable energy generation. Currently, there are approximately 90,000 dams across the country, but only 2,500 include hydropower facilities. Thus, there is substantial opportunity in the United States’ dam infrastructure system to optimize renewable energy production, and protect and enhance river-resource benefits. The Joint Statement points the way forward for rapid development of this resource.

Background

Almost from the inception of the industry, the effects of the construction of hydroelectric dams on fisheries has produced conflict and resulted in litigation. For example, in 1890, the State of Washington enacted a law requiring fish passage devices to be built on dams across rivers and streams “wherever food fish are wont to ascend.” Environmental challenges to dam construction and operation are a regular feature of environmental litigation and have produced a long list of notable decisions. Among the most notorious are Tennessee Valley Authority v. Hill, which blocked construction of the nearly completed Tellico Dam on the Little Tennessee River to protect the snail darter, a small endangered fish, thus demonstrating the potency of the Endangered Species Act as a legal weapon to challenge major development projects. Similarly, Udall v. Federal Power Commission reversed the FPC’s approval of the High Mountain Sheep Dam in the Hells Canyon section of the Snake River on the ground that the FPC failed to adequately consider the effect of the dam on fisheries, recreation, and other public resources.

When considered against this backdrop of decades of conflict, the Joint Statement is particularly remarkable. By setting forth an agreed path for future hydroelectric power development, the Joint Statement promises to reduce, and perhaps eliminate, environmental conflicts for projects following the agreed development path.

Joint Statement

Issuance of the Joint Statement was the product of two competing challenges: (1) decarbonizing the United States’ electricity-generation system to fight the effects of climate change and (2) improving the country’s rivers to maximize ecosystem services and biodiversity. To address both challenges—recognizing the conditions of the existing dam infrastructure system—the Joint Statement focuses on what it terms the “three Rs”: rehabilitate, retrofit, and remove.

  • Rehabilitate existing dams to improve safety, mitigate environmental impacts, and reduce economic losses.

  • Retrofit powered dams by installing more efficient turbines, adding electrical generation to non-powered dams, and implementing conservation measures such as enhanced fish passage.

  • Remove dams that have safety or environmental impacts that cannot be effectively addressed.

Seeking progress across all three Rs, the Joint Statement consists of action items in seven areas:

1. Accelerate Development of Hydropower Technologies and Practices that Improve Generation Efficiency, Environmental Performance, and Solar and Wind Integration. 

The parties agreed to pursue coordinated outreach to various stakeholders to leverage hydropower’s capability to integrate solar and wind generation through various technologies. Specifically, closed-loop pump storage presents important opportunities for integration of intermittent energy sources and also does not involve construction of new dams.

2. Advocate for Improved U.S. Dam Safety. 

The parties agreed to advocate for greater dam safety authority over non-federally regulated dams. Namely, the parties seek to encourage states to avoid broad-based exemptions from safety regulations and ensure state safety regulators have adequate authority to enforce key safety regulations.

3. Increase Basin-Scale Decision Making and Access to River-Related Data.

Basin-wide decision making can reveal greater efficiencies and opportunities (e.g., resilience and flexibility) than dam-by-dam decision making. Therefore, the parties agreed to advocate promoting basin-scale approaches in the Federal Energy Regulation Commission relicensing process.

4. Improve the Measurement, Valuation, and Compensation for Flexibility and Reliability Services Supplied by Hydropower and Support for Enhanced Environmental Performance.

Recognizing that hydropower’s flexibility and reliability are undervalued and given its importance in bringing intermittent renewable energy sources on line, the parties agreed to support the adequate valuation of the services hydropower can provide to ensure stability and reliability of the electric grid, and how different hydropower technologies and low-impact hydropower should be compensated.

5. Advance Effective River Restoration Through Improved Off-Site Mitigation Strategies.

Due to the high number of dams that will require relicensing in the near term, the parties seek to use that relicensing process to advocate for a greater emphasis on off-site mitigation. These off-site mitigation measures include dam removal, especially at non-powered facilities; effective flow restoration; and river-protection mechanisms such as designation under the National Wild and Scenic Rivers System.

6. Improve Federal Hydropower Licensing, Relicensing, and License Surrender Processes.

The Joint Statement emphasizes the delays associated with relicensing and license surrender, which can result in deferment of investments in advanced technologies and other improvements. Therefore, the parties agreed that efficiencies in this area will benefit federal and state decision making by allowing these technologies and improvements to move forward.

7. Advocate for Increased Funding for U.S. Dam Rehabilitation, Retrofits, and Removals. 

Lastly, the parties focused on increased funding for the three Rs generally, and agreed to explore opportunities to increase public- and private-sector investment.

Parties to the Joint Statement are American Rivers, World Wildlife Fund, Union of Concerned Scientists, Great River Hydro, American Whitewater, Natel Energy, National Hydropower Association, Eagle Creek Renewables, Low Impact Hydropower Institute, Rye Development, Hydropower Reform Coalition, and Hydropower Foundation.

What Happens Next?

A 60-day comment period runs until December 12. The parties are seeking other stakeholders, including tribal governments and state officials, to sign on to the Joint Statement and otherwise support their efforts. During this time, the parties also seek to further solidify their joint responsibilities by identifying party-specific responsibilities and addressing priority items, among others.

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© 2021 Beveridge & Diamond PC National Law Review, Volume X, Number 307
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About this Author

Eric Christensen Energy & Natural Resources Attorney
Of Counsel

Eric is a leading energy and natural resources attorney in the Pacific Northwest.

He assists renewable and traditional energy companies, as well as major energy consumers, to navigate the complex legal and regulatory systems governing the nation’s energy industry. With more than 30 years of experience, Eric has successfully represented clients in litigation and regulatory matters, ranging from the U.S. Supreme Court to proceedings before federal and state agencies. Before entering private practice, Eric served as Assistant General Counsel at Snohomish County (WA)...

206.620.3025
William J. Enoch Environmental Litigation Attorney Beveridge & Diamond Seattle, WA
Associate

William J. Enoch combines his life-long interest in environmental issues with his dedication to helping others.

His practice focuses on cases involving the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Model Toxics Control Act (MTCA), Washington’s state law-equivalent to CERCLA.

Will clerked in the Washington State Court of Appeals prior to joining Beveridge & Diamond. At the court, Will wrote prehearing memoranda across a variety of legal topics, including complex issues involving civil procedure and environmental law.

...

206-620-3032
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