The removal of Edwards dam on the Kennebec river in Maine, US, may have far-reaching implications on how we view the permanence of dams, the concept of public interest and the notion of private property. Fred Ayer offers a personal view and explores these subjects with other protagonists in a post-mortem of the case
In 1837 the Kennebec River Dam Company built a dam below the head of tide in Augusta, Maine. What later became known as the Edwards dam remained in that location for more than 160 years until it was removed in 1999.
Although I had been vaguely aware that there was an old dam at the head of tide on the Kennebec river, it was not until the mid 1990s, when I was working for Maine’s second largest utility, that it took on any real significance. I received a late afternoon call from our attorney warning me that the governor was about to announce his intentions to remove the Edwards dam. This bold action pushed the old dam and its owners, the Edwards Manufacturing Company, to centre stage on what would become a national debate on involuntary dam removal.
Initially, my naive belief had been that the hydro industry would rear up and oppose the governor’s efforts. But, both state and national hydro leaders, quickly distanced themselves from any opposition to the Maine governor’s dam removal initiative or from any active support for the owner of the project. ‘It’s really not our fight’ my management told me in soothing tones as they rejected the notion of anyone from our company testifying at scheduled legislative hearings on the governor’s initiative. The hydro industry apparently believed that Edwards was an isolated case — a non-utility owner, who had actively opposed building fish passage facilities at the dam, was getting what it deserved. ‘Besides,’ I was assured by hydro industry leadership, ‘it’s not like dam removal is going to become an issue at all FERC relicensings, this is a special one-of-a-kind situation.’ My concerns about the possible precedent fell on deaf ears and the hydro industry looked the other way after convincing themselves ‘it couldn’t happen to my project.’
Within a year of the announcement, I left the utility to open my own consulting business, and from 1991 to 1994, I was retained by Edwards dam’s owners to assist them in their efforts to relicense and keep the dam. It has been more than a year since the Edwards dam was breached, demolished, and removed, and it has been over six years since I was actively involved in the project. I decided to ask some of the protagonists about their views on dam removal and the importance of the Edwards dam case.
Has the removal achieved what you thought it would on a political and ecological scale?
Mark Isaacson of Competitive Energy, former vice president of the Edwards Manufacturing Company, was not surprised at how things turned out. ‘It has come to the political result that I expected. I never had any faith in the assertions that the Edwards dam was absolutely unique and that no other dams were contemplated for removal. It has become a political stepping stone to other dam removals in other places for other reasons.’
American Rivers’ Margaret Bowman sees it differently. ‘What Edwards has done is raise the national attention to the option of dam removal. But that does not mean in my mind that dams are going to be pulled down left and right.’
Bowman says her sarcastic motto is dam removal is not just for radicals anymore. Responding to hydro industry fears, Bowman said that people recognise that it is quite a rational alternative in some situations. ‘I think there is a fear that it is going to be considered in many situations, and I spend a lot of time trying to convince the hydro power industry that their fears overall are ungrounded. I think the raw number of hydro power dams that are going to be torn out involuntarily in this country is going to be very low. Voluntary removals are going to be low as well, because hydro power adds value.’
Ron Kreisman, a former Natural Resource Council of Maine attorney, expands on Bowman’s thoughts. ‘A healthy byproduct of the success experienced at Edwards is that it has caused people to ask more fundamental questions about whether all hydro power, whatever its location on a river or its configuration, is automatically and without question the best use of a reach of river.’
Although not currently involved with the hydro business in the way he was ten tears ago, Isaacson still has strong opinions when it comes to the effect the Edwards case has had on relicensing.
‘I am sure that one of the results of the FERC order was to put dam removal on the map in a way that it did not exist prior to that time.’ He feels the fundamental issues of FERC’s authority under the Federal Power Act, and the ‘taking’ issue under article five of the constitution, have not been tested. ‘This represents a victory for those seeking the removal of dams in that they have made this an issue in relicensing without ever having to face the test,’ says Isaacson.
Donald Clarke, an attorney with Wilkinson, Barker, Knauer & Quinn and formerly Edwards Manufacturing’s legal counsel, sees dam removal very simply. ‘I think it’s a fact that in virtually all relicensing proceedings dam removal is now on the checklist. You might cross it out in just a few minutes, but it’s a standard part of the process. Dam removal is also more of a legitimate issue today, because of the marginal economics at some projects.’ Clarke’s remarks are echoed by Bowman: ‘Dam removal as an alternative will not go away because I think under NEPA, a federal environmental statute, looking at dam removal will have to continue to be considered as a reasonable alternative.’
The enthusiasm over the river’s comeback is obvious when you talk with proponents. ‘Ecologically, we could not be more pleased,’ says Ron Kriesman, ‘although it is important to stress that we knew from the start that the full fisheries benefits of removing Edwards would take years to materialise.’
Betsy Ham of the Natural Resources Council of Maine, sees the post-dam river as a work in progress. ‘After 160 years of “dam in”, you can’t really measure one year of “dam out”. But I think from a one-year perspective it has achieved more than we had hoped for. The water quality has improved tremendously. We had two million alewives [a type of anadromous fish] come up to Waterville, 27km upstream from the Edwards dam site. That is a lot of fish and would have been a bold estimate for us to make,’ said Ham. The other thing that impressed Ham about the open river is the number and variety of people now using it.
Kriesman summed up the feelings of many river advocates. ‘Removing Edwards and the almost instantaneous revival of the river, has successfully forced this question of dam removal to the forefront of the discussion.’
While most dam removal proponents felt the hydro industry was heavily involved at an early stage, the view from the licensee’s perspective was quite different. ‘Until very late in the Edwards proceeding, there were large segments of the hydro power industry that felt the case was simply about a particular developer in a particular dispute,’ says Washington insider Donald Clarke. ‘They assumed that their interests generally were not directly involved. Of course, the whole industry came in belatedly – they stayed away from it initially hoping that perhaps it would just be an isolated incident.’
Isaacson agrees with Clarke’s assessment, adding that the hydro industry had ample opportunity to become involved. He says that the very public process took place over a ten-year period of time and up until nine years and seven months had passed, the industry would have had an opportunity to intervene and fundamentally change the outcome.
Clarke is not sure whether it would have altered the outcome. ‘It is possible that through political influence, especially at the state level, they could have redirected the enthusiasm away from dam removal,’ he says. ‘However the state of Maine embraced dam removal as a crusade throughout the proceeding.’
Although Kreisman does not have an opinion on the industry’s involvement, he offers advice on how it should view dam removal. ‘The industry should be careful about fighting every dam removal, as opposed to taking the position that there are dams built in different eras and for different reasons, that might best be removed.’
Clarke perhaps best sums up the effect on the industry. ‘Whether the industry liked it or not, the Edwards proceeding did drag them into the whole issue of dam removal,’ he says. Edwards Manufacturing Company refused to carry out a number of expensive studies related to dam removal, claiming FERC had no authority to order removal. FERC instigated a Notice of Inquiry on whether the Commission had the authority to order decommissioning and removal. Clarke sees this inquiry as perhaps, ‘when the industry started to wake up to the fact that the Edwards case might affect them — but at that point I believe the genie was already out of the bottle.’
Will involuntary dam removal and FERC’s ability to order removal be heard by a court? Does it matter?
Isaacson’s view is straightforward. ‘I don’t believe that this issue of involuntary dam removal will ever be tested. I am also convinced that the better informed people on the other side also believe that.’ But Bowman disagrees: ‘I believe the issue will be before the court in the Cushman case [a controversial 131MW project in Washington which has been in FERC relicensing for 24 years]. I welcome a court’s review of FERC’s authority because I think they have it and that is the way law moves forward.’
Clarke’s view is a reflection on both ideas. ‘I think it’s unlikely that a court will ever get to hear this issue,’ he says. ‘If they were going to get this issue, it would have happened in the Edwards case but for the settlement.’ Clarke thinks the Edwards case is the one and only time FERC’s authority will be used. He sees FERC being more inclined to use what he calls ‘defacto decommissioning’ where it issues a licence order with terms and conditions so onerous that they render the project uneconomic, leaving the licensee little choice but to surrender and decommission. This is one of the arguments in the Cushman case. Clarke hopes the defacto decommissioning issue will get before the courts, because he thinks it is much worse than directly asserting the authority to require removal.
Responding to whether it matters, Clarke says: ‘I guess it depends on what your values are. As an attorney, I would find it most gratifying if it were heard. Does it matter for the US hydro industry? I would say if the issue is addressed in a legislative or policy context rather than in court, that could be just as helpful or even more helpful.’
Has involvement in the Edwards case made people feel that they could be more effective in a future relicensing where dam removal is an issue?
Steve Brooke from Maine State Planning Office and an active member of the Kennebec Coalition (a group formed to advocate dam removal through the FERC relicensing process) said he was pleasantly surprised that FERC made a decision based on the record. ‘When you build the record you can expect that agency to come to the right decision. That was a surprise and I was not as confident of that during the process as I am today. I understand this can shift and change with the political winds, but it was a genuine lesson in democracy for me,’ said Brooke.
‘There are many things that I have learned,’ said Kreisman, ‘but one thing is that there are a number of dam owners who would consider removal if creative financial approaches could be worked out.’
Raise the issue early
Bowman advocates the need to raise the issue early in the process and look at it within the full spectrum of alternatives. She does not think it should be a frightening alternative as it became in the Edwards case which developed into a battle of whether dam removal as a philosophy made sense. ‘I am hoping we have got beyond that, so that we can talk rationally about individual dams. We will see eye-to-eye on more dams than not,’ she says.
Isaacson’s view is both expansive and philosophical. ‘It is very hard to coerce people to do things. It is contrary to the nature of FERC. It is contrary to the nature of our society.’ He added: ‘Until there was collaboration, and there was someone who wanted to do the project, it could not move forward. Until the state agreed to take over control of the project it was impossible to move forward. The idea that you are going to order someone to do things that they do not want to do is a bit far-fetched.’
Clarke’s lesson focuses on collaboration. ‘There is a necessity to deal with and talk with all stakeholders,’ he says.
‘Not that the Edwards case stands as an example of where this was not done and then all of a sudden it had this incredibly happy ending. There were various junctures throughout that proceeding where we had settlement talks, but clearly dam removal is not just a scientific, political, or legal issue. At one point or another in the proceeding you are playing only one of those tunes at a time.’
Assuming the desired outcome is a reasonable and fair decision, Clarke recommends trying to involve as many people as possible and establish ground rules to provide reliable information for a consensus result.
What did I learn?
What I take out of my experience with this project and these discussions with old allies and opponents is, that while we may have had very different views on the Edwards case, we all learned some of the same things from the process. While dam removal as a real issue has become a permanent fixture on the relicensing landscape, successful outcomes will require the involvement of as many stakeholders as possible. I also believe these stakeholders will need to be creative and come to the table with an open mind; the dam owner recognising that some dams will be removed, and the river advocate accepting the notion of compensating owners for their lost resource or accepting removal as mitigation credit. After all, that is how the Edwards dam removal case was ultimately resolved.