In 1991 the Edwards Manufacturing Company, owner of the Edwards Dam on the Kennebec River in Augusta, ME, applied to the Federal Energy Regulatory Commission (FERC) for a renewal of their license to operate a privately owned hydroelectric dam. Their application was denied; Edwards Manufacturing Company was required to come up with a plan for the enacting and financing of decommissioning the dam, as well as the restoration of the river.
This was the first time in history that the federal government ordered a privately owned hydroelectric dam destroyed against the wishes of the owner. Numerous factors were involved which eventually led to this decision, namely the environmental and economical benefits the removal of the dam would bestow upon the immediate and surrounding regions. Because this case was the first of its kind there was substantial controversy regarding the legal steps taken which resulted in the decommissioning, as well as the question of how FERC obtained the authority to issue an order of this type.
In the not too distant past the Kennebec was the primary highway through Maine; providing the easiest method of transportation across the land and a constant supply of resources for the numerous people who settled near it. The first settlement on the river was established in 1607, thirteen years before the colonization of the Pilgrims. As far back as 1785 there was speculation on the subject of building a dam near the city of Augusta, as it was such an exemplary location.
No actions were taken until 1834, when a group of citizens of Augusta joined together, forming the Kennebec Dam Company, and decided to build the Augusta Dam. The structure was contrived of huge timbers covered and topped with concrete rising twenty-four ft. above the water level and spanning the nine-hundred seventeen ft. width of the river; it was completed in 1837 (Daily Record,1997). The Kennebec Dam Company had inadvertently chosen quite an opportune time to build their dam, as the year 1837 is best known for the Panic of 1837, when banks folded and real estate plummeted.
The dam supplied power for seven sawmills, a machine shop, and a gristmill, providing ample work for the residents of Augusta and surrounding areas thereby ensuring economical benefits and stability in the region. (McPhee,1999) Sometime in the 1880s the Edwards Manufacturing Company purchased the Augusta Dam from the Kennebec Dam Company, then renaming it the Edwards Dam. At that time the dam produced power for the Edwards cotton mill, one of the largest in the world employing one thousand people.
The Edwards Dam continued to provide power uneventfully for the subsequent years leading up to the present time; it was equipped with hydroelectric power generation capabilities in 1913. Since the early 1960s the majority of the power generated has been sold to the Central Maine Power Company (Duane,Morris&Hecksher,Dec. 1997). It seems as if it would be a lot of power, but in reality the dam produces 3. 5 megawatts, which is only one-tenth of one percent of Maines annual energy use(Howe,1998). In 1983 the mill was closed down but the dam continued to generate power.
The issue of removing the Edwards Dam originated when the owners license for operation expired, and an application was filed for a new one. Included in the application was a proposal to increase the dams generation capabilities, and to soften the blow of that expansion, a proposal was also made to provide fish passageways and recreational facilities. The Federal Energy Regulatory Commission (herein referred to as FERC or the Commission) assembled an Environmental Impact Statement(EIS) with the help of several state and federal agencies that consisted of an in-depth analysis of the options available.
The statement covered everything from granting a new license containing necessary environmental measures to the denial of a license and ordering of the dams destruction. The EIS concluded that only the removal of the Edwards Dam could restore the natural habitats and environs of the Kennebec River, and that even the most expensive state-of-the-art fish passages would not provide adequate circumstances for the preservation of the rivers aquatic populations(Duane,Morris&Hecksher,Dec. 1997).
There are a number of environmental advantages that would occur upon decommissioning the Edwards Dam, most notably the rejuvenation of fish populations and the resulting increase in numbers of the osprey and bald eagles which feed upon them. Historically, the Kennebec River provided extensive top-quality breeding grounds for all ten species of anadromous fish native to the northeastern U. S. , a distinction that the Kennebec River alone could boast of. Anadromous fish make their home in the ocean but embark upon the tough journey upstream once a year to lay their eggs.
Since the erection of the Edwards Dam in 1837, and the subsequent construction of more than a hundred dams upstream of the Edwards, these fish have been effectively blocked off from prime spawning grounds. The removal of the dam would open up fifteen miles of these grounds, seventeen miles total before encountering the next obstruction, making this the longest uninterrupted stretch of high quality breeding grounds north of the Hudson River (Howe,1998). The possibility of freeing such a considerable amount of breeding grounds had conservationists up in arms over the matter of renewing the operation license of the Edwards Manufacturing Company.
The species of fish that would utilize these grounds are alewives, American shad, Atlantic salmon, striped bass, rainbow smelt, Atlantic sturgeon, and shortnose sturgeon. In the fairly recent past the populations of all these species have been decimated to a critical point, and have been even more drastically reduced if compared to the numbers of fish before the dam was built; the shortnose sturgeon is on the endangered species list, and a number of the others are species of concern (one step away from endangerment).
The addition of fish ladders and passages to a dam helps the problem a little, but not much because the fish usually have trouble finding them (McCully,1996). Another major problem presents itself if the fish actually navigate the ladders and lay their eggs upstream: when it comes time for the young fish to make their way downstream to the ocean, an outrageous number of them are sucked into the dams huge turbines and chopped up.
When the Edwards Dam was first built in 1837 it had a fish ladder, but a year later it was washed away in a flood and the owners refused to replace it. In 1880 fish passageways were built but they proved completely ineffective. The present-day Edwards Dam had neither of these, but instead implemented a fairly ridiculous procedure of sucking up the fish with a vacuum that had a twelve-inch tube, dropping them into large bins in a truck, and driving them around to be deposited in other rivers (Allen,1999).
In theory it sounds plausible, but in reality the only fish this system helped were the smaller ones such as striped bass and alewives, because the eight feet long sturgeon and salmon just did not fit through the tube. Economically, the removal of the Edwards Dam would greatly benefit the entire region. Once the restoration of the river is underway, a significant increase in the anadromous fish populations can be expected in as little as one year after the breaching of the dam(Watson,1999).
This will probably attract commercial fishing once the numbers rise again, but more importantly it will draw the attention of sport fishermen. Additionally, allowing the river to return to its natural free-flowing state will cause the formation of stretches of rapids, which daredevil recreational boaters will no doubt take advantage of. A rise in the number of tackle and outdoor outfitting stores, guided fishing trips and charters, tours of the rapids, and just plain tourist dollars in general would boost the local economy by at least forty-eight million dollars a year (Kennebec Coalition Study,1996).
Whether or not the local population of the Kennebec River Valley welcomes the tourists and their money is another matter entirely. Returning to the primary issue of license renewal for the Edwards Manufacturing Company, the aforementioned environmental concerns weighed heavily on the decision of FERC to deny the application. Furthermore, the fact that the Edwards Dam produces only one-tenth of one percent of Maines total power needs and is five times more expensive than other sources did not work favorably towards the owners case either(American Rivers,1998).
American Rivers at one time stated that the power the dam was generating could be saved by replacing seventy-five thousand light bulbs with energy-efficient bulbs(McPhee,1999). As of 1986, the Commission has been required to balance the environmental issues against the benefits of hydro-power before licensing or renewing a license for any hydroelectric dam. During the energy crisis of the early 1970s, and for a substantial period of time before then, the hydroelectric generation of power had been hailed as an environmentally safe and clean source of energy, and a multitude of dams were constructed in numerous areas(Botkin,1999).
In the past fifteen to twenty years, however, it has become apparent that hydroelectric dams are not always in the best interests of the environment, and can cause more harm than good in the long run. To better understand the uniqueness of this case, an overview of the history of the Federal Power Act must be provided. At the turn of the century concerns were raised over the protection of public interest regarding water power development.
Congress wanted to ensure that the federal government had the option of taking over and operating hydropower projects if necessary, and also be able to protect the public from uncontrolled water power monopolies. After fifteen years of deliberations, the Federal Water Power Act was passed in 1920 (now the FPA), ensuring long term federal control over the nations water resources (Costenbader,1998). The act imposed federal regulatory control over the conditions of private hydropower development, at the same time allowing the licensees security in their investments with a fifty year license term.
The FPA granted the Commission broad authority to administer the FPA. The FPA also contained a provision which allowed FERC to transfer a project from one licensee to another at the end of the license term. What Congress neglected to address was the possibility of having to order a dam decommissioning, probably because at that point in time nobody thought that a river in its natural state would be more important than the energy produced by a hydropower dam.
In a Congressional hearing on the FPA, one Senator Walsh raised the possibility of a decommissioning, then promptly answered the question himself by saying But, of course, it is unthinkable that the federal government would do anything of that kind, and constantly we must dismiss that. (59 Cong. Rec. 1474(1920), Statement of Senator Walsh). The next evolution of the FPA that is relevant to the Edwards Manufacturing Companys case took place in 1967. The essential key to the FPA is whether the project of concern is in the public interest, a term which until 1967 had yet to be defined.
The Supreme Court case of Udall v. Federal Power Commission supplied a broad definition that incorporated the factors of future power supply and demand, alternate power sources, preservation of wild rivers and wilderness areas, preservation of anadromous fish runs, and protection of wildlife as the matters of public interest(Udall v. FPC, 387 U. S. 428,450(1967)). In 1986 Congress added an amendment to the FPA that was named the Electric Consumers Protection Act .
This obligated FERC to give equal consideration to power and non-power aspects when it was issuing or renewing a private hydroelectric dam operation license. The amendment also required the Commission to impose license conditions decided upon by federal and state agencies for the protection and enhancement of fish and wildlife (Sherk,1996). The agencies recommendations were written up in an Environmental Impact Statement. These conditions usually consisted of installing extensive and costly fish passages and other mitigating structures/actions.
We can now clearly see that in the history of the FPA, there have been no concrete terms written into law validating the definite authority of the Commission to order the destruction of a dam in a certain situation; all of the terms seem to use the word broad. The Edwards case is unique because it is the first of its kind, no precedents have been set concerning the specific parameters of FERCs jurisdiction. As stated earlier, the Edwards Manufacturing Companys license to operate was at the end of its term in 1993, and an application for relicensing was filed earlier by the owners in 1991(Allen,1999).
The application included a proposal to expand the dams power-generating capabilities, and to counteract the detrimental aspects of said expansion a proposal was also included to provide fish passages and recreational facilities. At the time that the application was filed there had already been considerable interest for the previous few years by a number of environmental conservation groups in the case of the Edwards Dam. The dam was obviously not an integral source of power for the state of Maine, and the environmental aspects heavily outweighed the power generating capabilities.
The owners of the dam were fully aware of this which is probably why the two proposals were added to the license application, almost as a last-ditch attempt to salvage the dams reputation in both power and non-power regards. Directly after the Edwards application was filed in 1991, the aforementioned concerned environmental groups joined together to form the Kennebec Coalition. The Coalition consisted of the Natural Resources Council of Maine, American Rivers, Trout Unlimited, and the Atlantic Salmon Federation.
It was formed to oppose the issue of a new license to the operators of the Edwards Dam, and they continuously petitioned the Commission to either order the dam destroyed in the public interest or force the owners of the dam to construct extremely expensive fish passageways that would also shelter the spawning fish. For three years after the application by the Edwards Company the deliberations on the question of relicensing continued without any definitive actions taken. Another controversial case popped up concerning the Edwards Manufacturing Company in October of 1994.
The company had proposed the construction of fishways on their dam; ironically, conservationists vehemently opposed the new additions. With the issue of the license pending, the conservationists believed it foolish to add fishways if the dam was possibly going to be decommissioned in the near future. Both parties must have had ulterior motives. If the Edwards Company wanted to install fish passages to help restore the anadromous fish populations, it was merely trying to build its case in the future so it could argue that the dam was environmentally conscious.
This is what the conservationists were worried about as well. In the end FERC allowed the fishways to be built; the decision was made without any prejudice regarding the pending relicensing case and possible removal of the dam (Duane,Morris&Hecksher,Oct. 1994). Two months later in December of 1994 the Commission declared its authority to deny a new license in a Policy Statement, thereby attempting to clarify the position of authority that was granted to FERC in the FPA.
The Policy Statement reasserted that the Commission was allowed to either deny a new license and/or require the removal of the dam, or impose expensive environmental conditions on a new license that might cause the project to become unprofitable (Sherk,1996). Furthermore, the Policy Statement decreed that FERC would place the responsibility of financing the decommissioning of the dam and restoration of the river upon the shoulders of the owner since the licensee created the project and benefited from its operations.
The Commission also made it very clear that it would like for the parties involved to attempt creative, voluntary settlement agreements that could resolve the issue of relicensing, but it retained the authority to force decommissioning nevertheless. (Project Decommissioning at Relicensing: Policy Statement, 60 Fed. Reg. 339(1995)]. One could almost read into this as being the physical evidence of FERCs reluctance to test the validity of their FPA-granted power in court.
The deliberations over the Edwards Manufacturing Company relicensing again continued uneventfully for about two years, until the late fall of 1996. For the past six years the Kennebec Coalition had been working to compile a report documenting the innumerable benefits of removing the Edwards Dam, covering everything from sportfishing to tourist trade to the aesthetically pleasing view. From the moment the Coalition dropped the massive seven thousand-page report on the desk of the Commission, the remaining proceedings of the case started to move noticeably faster.
That was the turning point. FERC had never seen anything like that (Brownie Carson, executive director, Natural Resources Council of Maine) (Allen,1999). In July of 1997 the Commission had completed its Final Environmental Impact Statement (EIS) and found that even the best available fish passageway facilities would not be conducive to restoring the fishery, and that only the complete removal of the dam could restore the river environment and aquatic species therein (Duane,Morris&Hecksher, Dec. 1997).
The economic analysis found, although it was already quite apparent, that the dam produced an insignificant amount of power at almost five times the average cost that could easily be procured elsewhere. Also, the removal of the Edwards Dam would cost only one-third of the price of the fish passages, and would be a hundred times more effective. If the dam was relicensed and environmental conditions were imposed upon it, the dam would be rendered uneconomic in addition to the failure of lessening its damaging environmental impact.
Therefore, on November 25, 1997, the Federal Energy Regulatory Commission voted 2-1 and for the first time ever denied a license of operation and ordered the complete destruction of a functioning hydroelectric dam. The Edwards Manufacturing Company reacted to this decision by stating that they would appeal for a rehearing, and at the same time go to court to ask for reimbursement of the cost of removal and restoration. They also intended to demand just compensation for the dismantling of their only dam (Daily Record,Nov. 1997).
Under the order of destruction imposed by FERC the owner/licensee is required to develop a plan for the removal of the dam, including the estimated cost and a schedule for the execution of the removal, within one year after the date the order was issued. Six months after the order for the decommissioning of the Edwards Dam, the Edwards Manufacturing Company had put together a settlement agreement in accordance with various interested parties. This action was thought to be very gracious of them, considering they had plenty of grounds to keep the case in court for a prolonged amount of time.
On May 26, 1998 the company announced its plans to turn over their project license to the State of Maine by January 1, 1999, who would then ask for FERCs authorization to remove the dam. The Kennebec Hydro Developers Group, representing the owners of seven dams upstream of Augusta, would volunteer $4. 75million towards removal of the dam and restoration of the river. In exchange, they would receive an extension for up to sixteen years to install their respective fish passages and ladders. Bath Iron Works, a well-established shipyard that builds destroyers for the Navy, will contribute $2. million towards the cost. The shipyard wants to fill in seventeen acres of the Kennebec to build new dry docks, and will receive permission to do so because of its contribution. The last player in the game is the National Fish and Wildlife Foundation, who will privately raise $1. 5million for the project and also manage the removal of the dam and the restoration of the river (Howe,1998). The Commission approved the settlement agreement on September 18, 1998 and the Edwards Dam was breached on July 1, 1999.
Some argue that the destruction of the Edwards Dam was a big mistake because of the rich industrial history that was carried away with it. Some say it could have been a mistake due to the negative impacts that releasing the river might have on the area in the future, as it has not been a full, free-flowing river for over one hundred sixty years. Even others say it was mistake because the Federal Energy Regulatory Commission didnt really have the authority to order the removal.
The opinion of most people towards the removal of the dam seems generally to be a favorable one, though. It was the first step towards truly realizing that not all hydroelectric dams are gentle on the environment, probably not even most of them are. The decimation of anadromous fish populations is a very serious problem in this generation that needs to be addressed. The case of the Edwards Dam will hopefully open the eyes of a number of people to the various pressing environmental concerns that are in abundance at this moment in time.
The ruling in this case was very high-profile, resounding in ears from coast to coast as but the first in a series of its kind. The outcome was even more compelling as a result of the discrepancies in the matter of FERCs authority to decommission a dam. In spite of the inability of the federal government to suitably ascertain their jurisdiction, the Edwards Dam was destroyed, sending a powerful message around the nation of the need for serious conservation measures to be taken, immediately.
