WASHINGTON - A proposed change to the process of renewing dam licenses
would deliver multi-million-dollar savings to the hydropower industry by
delivering it from a public appeals process.
Under a new provision that could be enacted in the Code of Federal
Regulations, dam owners alone would be able to appeal Interior Department
decisions on the licensing process to politically appointed higher-ups
within the department, while preventing tribes and environmental groups
from appealing the same decision to a political office.
The difference is considered crucial, because problems identified in the
dam license renewal process are often solved on appeal. The hydropower
industry would be positioned to "solve" its own problems with the approval
of political appointees, directly answerable not to the public at large or
to any Interior constituency - but to the presidential administration.
The primary problem of dam licensees is financial in that under current
law, they must generally pay to mitigate the damage dams have done to the
environment and tribes over decades of operation. The original licenses,
for the most part approved before tribes were at the negotiating table or
the environment had become a widely recognized public trust, are set to
expire en masse in coming decades. The CFR insertion, which would have the
force of law under presidential rulemaking powers if approved by the Bush
administration, would open up an end-run around the current license renewal
process and its costs by restricting the right of appeal, according to foes
of the new rule.
The proposed change gives "too great a deference to industry [hydropower],
to the licensee," said Charles Hudson, public information manager for the
Columbia River Inter-Tribal Fish Commission. The commission, a coalition of
four Northwest treaty tribes, has longstanding concerns about the
detrimental impact of dams on Columbia River salmon and on the Columbia
River Basin at large. Hudson added that the commission sees little
alternative to legal action if the administration approves the rule.
A growing number of critics, Indian and non-Indian alike, have questioned
whether the proposed rule can survive legal challenges. The National
Congress of American Indians opposes it as a weakening of Interior's
obligation to protect the trust assets of tribes, in this case salmon and a
Public comments on the rule were due Nov. 8. Among CRITFC's nine points of
extended discussion were a protest over making industry costs the defining
issue and a criticism of Interior's failure to consult with tribes in
developing the proposed new rule.
Hudson said no CRITFC tribe has any desire to bankrupt the hydropower
industry. But on the other hand, tribes and the environment have sustained
up to 50 years of damages from dam operations, Hudson said. Tribes were not
at the table when the original licensing law was drafted in 1920 and the
current crop of dams won approval, he pointed out. Now that new laws have
brought tribes into the licensing process, he said they are being relegated
again to the status of second-class citizens. "It appears that a good idea
is not being allowed to prosper."
In any case, hydropower from dams simply can't keep up with so-called "load
growth," a measure of demand for electricity, Hudson said. "Dams are not
going to do it ... The future isn't in dams" - so why imperil salmon and a
major river system to save dams money?
Political observers in Washington and elsewhere have suggested that the
Bush administration is resorting to rulemaking on dams to compensate for
provisions in a national energy bill that hasn't made it through either of
the past two Congresses, despite being a presidential priority. "If you
want to talk about the lesser of two evils, it's not as egregious as what's
in the energy bill," Hudson said of the proposed rule.
Some five weeks before the Nov. 2 elections, Bush brought tribal leaders to
the White House for the ceremonial signing of an executive order committing
government agencies to full consultation with tribes, continuing the
practice of recent presidents. CRITFC said the Department of Interior
didn't appear to have followed the policy in developing the proposed rule.
"For this reason and for all of the reasons set forth [in its comments],
the Commission and its member tribes urge the Department to rescind its
proposed rule and develop a new appeals process that is open to all
applicants and ensures a fair and records-based review of the Department's
conditions and prescriptions ... Tribes expect to be fully consulted with
during the development of a new appeals process."