(WASHINGTON, DC) -- Long before President Donald Trump
targeted Section 401 of the Clean
The hydropower angle is a key reason why the bipartisan
Western Governors Association has raised concerns about the proposal. The Trump
administration's proposal runs head-long into a long-running fight over who
gets to decide how much water a dam operator must let spill over the top of a
dam or divert around the electricity-generating turbines — an action usually
taken to benefit fish and wildlife.
States began looking to the Clean Water Act provision after
a 1990 Supreme Court decision rejected an argument by California that the
Federal Power Act gave it the right to set "minimum flow rates" for
dams. The Supreme Court has agreed that states have broad latitude to set
requirements like minimum flows under the water law in an opinion that poses a
major legal hurdle for the administration's legal defense of the new rule.
About 325 hydropower projects representing 16 gigawatts of
renewable power over the next 13 years are due for relicensing, according to
the National Hydropower Association — and states have used the process in the
past to leverage to impose strict new requirements on decades' old dams. But
legal experts say there are major questions about whether the be able to
continue to do so if the proposed rule is finalized.
