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Flowing Water, Flowing Costs: Assessing FERC’s Authority to Decommission Dams

October 2019

Citation: ELR 10925

Author: Mark Widerschein

This year, 2019, marks the 20th anniversary of the removal of the Edwards Dam, one of the first functioning hydroelectric dam to be decommissioned and removed in the United States. It was also the first to be removed under the Federal Energy Regulatory Commission’s (FERC’s) asserted power to compel such a removal without compensation, an assertion raising legal questions that have yet to be fully resolved. As our hydroelectric infrastructure continues to age, these questions may again come to the forefront. Part I of this Comment considers the history of dam building in American culture and the development of the current federal statutory scheme that governs utilityoperated, nonfederal hydroelectric infrastructure. Part II considers FERC’s and its predecessors’ role in that statutory scheme, their asserted power to decommission dams unilaterally, and two case studies. Part III analyzes the legal defensibility of FERC’s 1994 Policy Statement asserting its authority to decommission dams, and the main arguments as to whether FERC can require utility operators to pay for a decommissioning that was ordered unilaterally or whether the government has to subsidize that removal.

Mark Widerschein is a Class of 2020 J.D. candidate at The Ohio State University Moritz College of Law.

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