• Setting Fees for Use of Federal Dams
  • January 13, 2015 | Author: Todd J. Griset
  • Law Firm: Preti, Flaherty, Beliveau & Pachios, LLP - Portland Office
  • Federally owned dams and other structures can create opportunities for private development of hydropower facilities, in exchange for a fee. While fees charged to hydropower developers for using federally owned dams will likely remain stable in the near term, a look at the history of government dam use charges illustrates the process and dynamics involved in setting these fees.

    Under federal law, many aspects of hydropower projects are regulated by the Federal Energy Regulatory Commission. Section 10(e)(1) of the Federal Power Act (FPA) authorizes the Commission to collect annual charges from hydropower licensees whose projects make use of government dams or other structures owned by the United States.

    Before 1984, the Commission assessed charges for the use of government dams and other United States structures on a case- by-case basis. Typically, the Commission charged licensees half of the project's shared net benefit. That net benefit was defined as the difference between the value of the power (taken as the least expensive alternative power) and the cost of project power (computed from the costs of building and operating the project).

    In 1984, the Commission issued Order No. 379, replacing its government dam use charges with graduated flat rates. In that order, the Commission concluded that this method "best balances the statutory goals of providing a reasonable return to the Federal government, encouraging hydropower development, especially small projects, and minimizing costs to consumers."

    Congress enacted the Electric Consumers Protection Act (ECPA) in 1986, which amended those portions of Section 10(e) of the FPA that authorize the Commission to collect government dam use charges. ECPA adopted the method and rate levels of the Commission's new graduated flat rate structure as both the maximum allowable and the only federal dam use charges assessed by any U.S. agency. The Commission currently levies these maximum values, as it has since adopting them in 1984.

    Section 10(e)(4) of the FPA requires the Commission to report to Congress every five years on whether the government dam use charges are appropriate. The Commission's fifth and most recent report, dated October 17, 2013, concluded that the fees continue to provide reasonable compensation to the government. The report noted that in the last five years some licenses for both constructed and unconstructed projects at government dams have been surrendered or terminated, but that there had been no indication that the dam-use fees played a role in such outcomes. In addition, the Commission noted that it had issued 18 new licenses to projects located on government dams in the last five years that will be subject to these fees when they begin to generate power.

    With a no-action recommendation by the Commission, Congress may choose not to amend Section 10(e) of the Federal Power Act in the near term. However, the ECPA requires a periodic reassessment of the level of government dam use charges; the next mandatory report will come in 2018. Moreover, Congress is interested in promoting new hydropower development, as is evidenced by its enactment of the Hydropower Regulatory Efficiency Act of 2013; Congress could, on its own, modify government dam use charges. Nevertheless, for the near term, U.S. government dam use charges assessed under the Federal Power Act will likely remain stable.