The public owns the nation's rivers. A hydroelectric dam owner's use of a river's waters as a free energy source is a privilege and not a right. This is the reason a hydropower dam owner must be licensed to operate on the public's rivers. The Federal Power Act establishes that the Federal Energy Regulatory Commission (FERC) may upon adequate review grant to nonfederal hydroelectric dam owners a 30 to 50 year term license to operate. Upon termination of the original license the license must be renegotiated with the possibility of denial. These licenses are intended to ensure that utilities who use the publicly owned rivers to generate power do so while protecting and allowing for other public uses of our rivers.
Federal licensing regulations for hydroelectric dams require that the licensing authority, the Federal Energy Regulatory Commission (FERC), give equal consideration to hydroelectric power as well as energy conservation, protection of fish and wildlife, recreational opportunities, and the preservation of environmental quality. This equal consideration mandate requires FERC to consult with federal, state and local resource agencies. Relicensing also provides an opportunity for non-governmental agencies and citizens to participate in the process to determine how the publicly owned rivers will be used and what protection, mitigation and enhancement measures are needed to compensate for a hydro project?s impacts.
Most hydro projects create impounded waters that vary from waters raised within the original riverbanks some distance upstream of the dam to extensive lake-like reservoirs. Though a river's waters are typically publicly owned 1, the dams and lands associated with a project are quite commonly not publicly owned property. The hydro project owner may own some or all of the reservoir shorelands. Today these lands are frequently desirable properties for secondhome or residential development. Because the Federal Power Act recognizes that the impacts of a hydro project extend beyond the actual dam, powerhouse or high water mark of a project reservoir, it can require a hydro dam owner to develop and implement a shoreline management plan as part of the licensing process. The shoreline management plan should be a comprehensive plan to manage the multiple resources and uses of the projects' shorelines in a manner that is consistent with license requirements and project purposes, and address the needs of the public.
FERC has the ability to require shoreline land protection around project reservoirs to protect non-electric generation project benefits; but its application has been inconsistent. During relicensing the burden of establishing the need for shoreland protection such that natural resource, recreation and aesthetic benefits will be preserved frequently falls to the resource agencies, local government, non-governmental organizations and citizens.
Riparian or shorelands provide important recreational opportunities and support critical ecological functions. These include essential functions like maintaining stream flows, cycling nutrients, filtering chemical and other pollutants, trapping sediment runoff, absorbing and detaining floodwaters and maintaining fish and wildlife habitat. Shorelands also provide highly desirable recreational opportunities like water-based camping, hiking, fishing and wildlife observation (National Research Council, 2002).
This manual is designed to guide those interested in achieving shoreline land protection through the FERC relicensing process. It outlines the legal framework and strategies to develop a forceful case. The case studies show how thousands of very valuable shoreline and watershed acres have been protected during relicensing as part of protection, mitigation or enhancement requirements. This document does not cover exempt or federally owned hydro projects that are not licensed by FERC.
This manual assumes the reader has a general understanding of the relicensing process. Those wishing to learn more are referred to the Hydropower Reform Coalition (HRC) Relicensing Toolkit. FERC can be very process oriented, rejecting valid requests when their procedures are not followed. The challenge and opportunity is to make FERC's licensing process work for the larger public good and ecosystem?s benefit. Success requires timely involvement at each step in the multi-year relicensing process. There is much work involved, but the gains can be very significant.
Rule, regulations and statutes can be quite transient. They can be modified through legislative actions or varying FERC, court, or other legal interpretations. The reader is encouraged to use this document as a primer, but to also obtain the most up-to-date versions of the rules and statutes.