San Francisco's O'Shaughnessy Dam (along with its Hetch Hetchy Reservoir) is considered a "local government" facility. Most such facilities are subject to regulation by the Federal Energy Regulatory Commission (FERC).
O'Shaughnessy Dam and Hetch Hetchy Reservoir are, however, exempt from FERC oversight - a major reason that we have sued San Francisco under State rather than federal law.
The Federal Power Act, originally passed in 1920 and amended over the ensuing decades, provides the opportunity to revisit the purpose and usefulness of dams across the United States. Because Hetch Hetchy Reservoir was already planned when the act was passed, it is exempt from any FERC oversight.
FERC issues licenses for dams, typically for a period of 40 or 50 years. At the end of that period, dams must be relicensed. Sometimes, licenses are not renewed.
The relicensing process for Oroville Dam resulted in an estimated $1,000,000,000 in improvements, although somehow it missed the need to upgrade its spillways.
Photo Hector Amezcua, Sacramento Bee
Some relicensing processes, such as the one completed at Oroville in 2015 or the ongoing activity at Don Pedro, involve how much water must be released from a dam to maintain downstream fisheries. Others, notably the relicensing of hydropower dams on the Klamath River in California and Oregon, can lead to removal of the dams. The Klamath Dams are still in place, but the plan to remove the dams in 2020 does still appear to be moving forward.
Storing water in dams on the Klamath River contributes to buildup of a toxic algae that is lethal for downstream fisheries. PacificCorp, the company that owns the dams, agreed that the cost of fixing the dams is prohibitive, and has agreed to remove them.
Photo Matt Stoecker
Since there is no opportunity to review O'Shaughnessy Dam/Hetch Hetchy Reservoir under FERC, we have sued under the California Constitution. Still, at some point the federal government may become involved. After all, the Raker Act (the statute that allowed O'Shaughnessy to be built) directs to the Secretary of the Interior to "proceed in conformity with the laws of said State".
It's disappointing that Hetch Hetchy Reservoir is "grandfathered in" and not subject to scrutiny under the Federal Power Act. So we can't appeal to FERC as Klamath advocates have done. We are pleased, however, that the California Constitution provides a powerful tool under its "reasonable use" doctrine.
As we have explained, San Francisco's claims it has no obligation to comply with the California Constitution. We disagree with San Francisco.
The California Attorney General and the California State Water Resources Control Board also disagree with the City.
Others disagree as well, including:
- Former California Attorneys General Dan Lungren and John Van de Kamp,
- Former Secretaries of Natural Resources Huey Johnson and Doug Wheeler,
- Former Yosemite Superintendents Barbara Griffin and Robert Binnewies,
- The Earth Island Institute, and
- Law Professors at Stanford University .
A three judge panel in the State appellate courts will soon read the materials that we and others have submitted and will then schedule a hearing - perhaps in late summer or fall.
We are ever eager to move forward and address the merits of restoration, in relation to its costs, in a courtroom.