Updating Priorities

During the 1970s energy panics, small dams seemed a good idea. But today, the Public Utilities Regulatory Policy Act of 1978 does very little good beyond allowing a group of entrepreneurs to cash in on a crisis that no longer exists. The law encourages construction of dams to generate electric power that the utilities do not need, but that utilities must buy at preferential rates under certain conditions, with the extra cost passed on to consumers. Worse yet, the law is a constant threat to the few free-flowing streams left in the West.

The nation needs an energy policy that will lead to development of alternative sources of power so the United States can better withstand the next energy shock. In the meantime, Congress should repeal the more onerous provisions of PURPA, as it is known.

The latest problem with PURPA came this month when a federal appeals court in San Francisco ruled that the Federal Energy Regulatory Commission has exclusive power to set standards for the operation of non-federal hydroelectric plants licensed by the commission. The commission, of course, has been concerned with energy development, and not with such amenities as fish propagation, riparian aesthetics or recreational activities such as river-running, although a 1986 law now requires commissioners to give equal consideration to such factors.

Back in 1983, the federal commission approved construction of a small hydroelectric dam on Rock Creek, a tributary of the south fork of the American River 40 miles east of Sacramento. The commission required the operators to maintain a flow out of the dam of 11 cubic feet per second from May through September and 15 cubic feet per second from October through April to protect trout spawning in Rock Creek. But in response to the state Fish and Game Department, the California Water Resources Control Board ordered the flows increased to 30 cubic feet per second and 60 feet for the two periods. The lower flows were not adequate to maintain the fishery, the board said.

The dam operators protested to the commission and the federal body ordered the lower flows reinstated. Under the ruling of the 9th U.S. Circuit Court of Appeals, there is nothing the state can do about it. The edict upsets Congress’ traditional deference to state water rights, which also has been vigorously supported by the Reagan and Bush administrations.

California was joined by 16 other states in pressing the suit. They should appeal to the U.S. Supreme Court. But the states also should pressure Congress and the Administration to get the Federal Energy Regulatory Commission to work with the states in setting dam outflow levels that will allow efficient power generation, but also protect the public interest in the downstream areas. Then the law should be changed to turn such authority over to the states. Then Congress should make certain that no more wild streams are dammed merely to generate electric power that is not needed.