Little Colorado River Dams: Who Gets to Decide?

 by Roger Clark, Grand Canyon Director

The proposed hydroelectric projects in and near the Little Colorado River are not the first time private developers have swooped onto sacred tribal lands to propose business ventures. Local Navajo families fought for over five years to stop a Phoenix developer from building a rim-to-river tram at the confluence of the Little Colorado and Colorado rivers. Though farther away, the Dakota Access Pipeline protests at Standing Rock still echo. 

Most recently, Pumped Hydro Storage LLC has applied for a preliminary permit to dam Big Canyon, a tributary of the Little Colorado River on Navajo Nation land.

The Navajo Nation, who the developers never consulted, along with the Hopi, Hualapai, and other tribes with cultural and religious ties to the Little Colorado River region, strongly oppose the Big Canyon project.

If the local tribes, which by U.S. law are sovereign nations with the inherent authority to govern themselves, don’t want the project — how can the Federal Energy Regulatory Commission (FERC) license the Big Canyon project on Navajo Nation land? 

Great question. 

How can FERC permit dams on Navajo Nation land?

The answer to this question lies in the Federal Power Act, which is a 100-year-old statute that gives FERC (an independent agency that regulates power activities) very broad authority to license hydropower projects on federal public lands and reservations, among other places. Whenever a project is proposed on reservation lands, like the Navajo Nation, the Act includes additional safeguards meant to protect the reservation at issue. Yet it is the Secretary of the Interior, not the Navajo Nation, that has the formal legal authority to determine which safeguards to impose, all while FERC retains the formal authority to decide whether to allow the project to go forward.

This system reflects a deeply antiquated and unjust legal process in which FERC is empowered to (but may decide not to) license a hydropower project like the Big Canyon dams over the objection of the Navajo Nation and other tribes.

What does this mean for the future of the Little Colorado River? 

There are some provisions of the Power Act that give tribal objections a voice, but the ultimate authority to issue or deny a hydropower license rests with FERC. While FERC has discretion in how it applies its procedures, we’ve already seen the agency issue preliminary permits for Pumped Hydro Storage LLC’s first two projects over objections raised by the Navajo, Hopi, Havasupai, and Hualapai tribes. These preliminary permits give the developers the exclusive right for three years to conduct feasibility studies and submit license applications. At that point, applicable laws like the National Environmental Policy Act and the National Historic Preservation Act would kick in, thus requiring tribal consultation. 

It's important to note, however, that FERC is not calling all the shots. The Navajo Nation may be able to halt the project under the Clean Water Act if the project will not comply with the Nation’s water quality standards. And the Secretary of the Interior may be able to impose onerous conditions on the project on behalf of Navajo and other tribes that could significantly hinder or preclude its operation. The new administration, with expressed priorities on climate change and racial equity, has the potential to make a difference here.

The bottom line

The Navajo and Hopi tribes have filed motions to intervene against the Big Canyon Pumped Storage Project. Local sheep and cattle ranchers have passed a resolution opposing the dams. Indigenous communities with ancestral ties to the area have also objected.

Yet FERC will ultimately get to decide whether to license this project on Navajo Nation land, illustrating the deep disrespect of sovereignty that is ingrained in federal law.

The Grand Canyon Trust is committed to supporting tribes as they lead the way in protecting their ancestral homelands. Please stand with Native voices to stop these dams.