2 Seattle J. Envtl. L. 1 (2011-2012)

handle is hein.journals/sjel4 and id is 1 raw text is: Let the River Run: Strategies to Remove Obsolete Dams
and Defeat Resulting Fifth Amendment Taking Claims
Christopher Scoones
This dam removal is far more than a symbol of the shifting tide in
American conservation.
-Bruce Babbitt'
TABLE OF CONTENTS
I. Introduction.............................................2
II. Legal Tools to Remove Dams..................................5
A. The Endangered Species Act.............................5
1. Section7.........................................7
a) ESA-Mandated Reductions in Water Usage Rights........... 9
b) The Discretionary Rule.......................... 10
2. Section9.........................................12
B. Dam Safety Proceedings..............................13
1. Federal Dam Safety Programs...................            15
2. State Dam Safety Programs     ...........................17
C. FERC and Hydropower Dam Relicensing........        .........19
1. The Statutory Scheme for Hydropower Licensing..............20
2. The Statutory Scheme in Action: FERC Orders the Historic
Removal of the Edwards Dam......................23
III. Testing for a Fifth Amendment Taking..........    .............24
A. Physical Taking      .......................   ...............25
B. Regulatory Taking      ....................................25
1. The Lucas Total Taking Rule.........        ..... ........26
t J.D. and Master of Environmental Law and Policy, 2011, Vermont Law School; B.S.B.A., 2006,
University of Florida. The author would like to thank the staff editors of the Seattle Journal of
Environmental Law for their industrious work to prepare this article for publication. Many thanks to
John Echeverria for both inspiring this article and lending support throughout its lengthy preparation.
Finally, thanks to all the friends and family who encouraged the author, especially Laura.
1. Bruce Babbitt, Sec'y of the Interior, Address at the Neuse River (Dec. 12, 1997), quoted in
WILLIAM ROBERT LOWRY, DAM POLITICS: RESTORING AMERICA'S RIVERS 224 (Georgetown Univ.
Press 2003).

1

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