The Federal Power Act gives the Federal Energy Regulatory Commission (FERC) the authority to “issue licenses…for the purpose of constructing, operating, and maintaining” hydroelectric projects. In the past, FERC's primary goal had been the promotion of hydropower dams as a means to harness a river's power generation potential, often in disregard of the proposed dam's environmental impacts. A 1986 amendment to the Federal Power Act, the Electric Consumers Protection Act (ECPA), required the Commission to take a more balanced approach to dam licensing. ECPA requires FERC, when deciding whether to issue a new license, to consider not only the power generation potential of a river, but to give equal consideration to energy conservation, protection of fish and wildlife, protection of recreational opportunities, and preservation of general environmental quality.

This “equal consideration” mandate requires FERC to consult with federal, state and local resource agencies, including fish and wildlife, recreation, and land management agencies, in order to more accurately assess the impact of a hydro project on the surrounding environment. Despite this important legislative reform, FERC has responded slowly; the original goal of facilitating hydropower development remains entrenched in the thinking at FERC. The Commission can be convinced, and forced through court action if necessary, to do well by the environment. But citizens may be disappointed if they rely on the goodwill of the Commission to protect the best local boating or fishing stream from inappropriate hydroelectric development.

New dams must be licensed by FERC before construction may occur, and existing dams must be relicensed every 30-50 years, depending on the license term. Many dams are due to be relicensed over the next decade. In issuing licenses for both new and existing hydroelectric dams, FERC must give “equal consideration” to power and non-power values. Non-power values include “the protection, mitigation of damage to, and enhancement of fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.” FERC must also include “adequate” and “equitable” measures to protect fish and wildlife and their habitat in any license it issues. Thus, the FERC can and does impose instream flow requirements in its hydropower dam licenses. Don't sit back waiting for the FERC to prescribe studies and flows of its own volition. The FERC serves more as an arbitrator in relicense proceedings. It's up to stakeholders in the proceedings to argue for scientific studies and alternatives to the existing flow regime.