BRINGING BACK ECOLOGICAL FLOWS: THE CASE OF MIGRATORY FISH AND THE REGULATION OF HYDROPOWER IN FINLAND

Abstract

Most of the large Finnish rivers were licensed and built for hydropower after the Second World War. The need for electricity at that period triumphed over all the other interests, leading to a significant decrease in migratory fish species, such as salmon and trout.

Throughout their life span, licenses for hydroelectric operations have enjoyed strict protection against administrative or legal review that would result in significant economic losses to the operator. In this way, the Finnish legal framework has been highly resistant and maladaptive in the face of bringing back ecological flows and restoring migratory fish species to the Finnish rivers.

Nevertheless, presently the Finnish Government’s clear goal is to introduce fish passages and the natural reproductive cycle of migratory fish species in built and regulated rivers in which the ecological continuum of migratory fish is currently blocked. Considering significant normative inputs stemming especially from the EU Water Framework Directive (WFD), the presentation discusses possible legal avenues for restoring ecological flows in the built Finnish rivers.

We argue that the current obligations stemming from the Finnish Water Law – and their interpretation in relation to migratory fish – are outdated and even legally problematic. Overall, neither the Finnish legislature, nor the Finnish water administration have reacted quickly enough to the changes in circumstances caused by the development of EU law, the declining importance of hydropower for the Finnish energy policy, and the current knowledge of the ecological importance of migratory fish species for the river ecosystems. Finnish Water Law already contains some tools for reviewing fisheries regulations in existing water permits, but also legislative changes are required to implement and to enforce the obligations stemming from the WFD in adaptive manner.

It must be noted, however, that the review of fisheries regulations in water permits is a multidimensional and river-specific task. Technically, a fish passage and restoration measures as well as monitoring of the success of measures may be required. Cooperation between authorities and hydropower companies is recommended but authorities must also be able to take necessary measures to bring back ecological flows in the case of unsuccessful cooperation. Furthermore, the water authorities need to have adaptive legal tools fit for this purpose.