LEGISLATION ADDRESSING PIPELINE AND 

HYDROPOWER INFRASTRUCTURE MODERNIZATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

MAY 3, 2017 

Serial No. 115–30 

( 

Printed for the use of the Committee on Energy and Commerce 

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LEGISLATION ADDRESSING PIPELINE AND HYDROPOWER INFRASTRUCTURE 

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LEGISLATION ADDRESSING PIPELINE AND 

HYDROPOWER INFRASTRUCTURE MODERNIZATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

MAY 3, 2017 

Serial No. 115–30 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

GREG WALDEN, Oregon 

Chairman 

JOE BARTON, Texas 

Vice Chairman 

FRED UPTON, Michigan 

JOHN SHIMKUS, Illinois 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

SUSAN W. BROOKS, Indiana 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

CHRIS COLLINS, New York 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

MIMI WALTERS, California 

RYAN A. COSTELLO, Pennsylvania 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

FRANK PALLONE, JR., New Jersey 

Ranking Member 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

G.K. BUTTERFIELD, North Carolina 

DORIS O. MATSUI, California 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

PETER WELCH, Vermont 

BEN RAY LUJA ́ N, New Mexico 

PAUL TONKO, New York 

YVETTE D. CLARKE, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

TONY CA ́ RDENAS, California 

RAUL RUIZ, California 

SCOTT H. PETERS, California 

DEBBIE DINGELL, Michigan7 

SUBCOMMITTEE ON ENERGY

FRED UPTON, Michigan 

Chairman 

PETE OLSON, Texas 

Vice Chairman 

JOE BARTON, Texas 

JOHN SHIMKUS, Illinois 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Mississippi 

DAVID B. MCKINLEY, West Virginia 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

LARRY BUCSHON, Indiana 

BILL FLORES, Texas 

MARKWAYNE MULLIN, Oklahoma 

RICHARD HUDSON, North Carolina 

KEVIN CRAMER, North Dakota 

TIM WALBERG, Michigan 

GREG WALDEN, Oregon (ex officio) 

BOBBY L. RUSH, Illinois 

Ranking Member 

JERRY MCNERNEY, California 

SCOTT H. PETERS, California 

GENE GREEN, Texas 

MICHAEL F. DOYLE, Pennsylvania 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

PETER WELCH, Vermont 

PAUL TONKO, New York 

DAVID LOEBSACK, Iowa 

KURT SCHRADER, Oregon 

JOSEPH P. KENNEDY, III, Massachusetts 

G.K. BUTTERFIELD, North Carolina 

FRANK PALLONE, JR., New Jersey (ex 

officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. Pete Olson, a Representative in Congress from the State of Texas, 

opening statement ................................................................................................ 1 

Hon. Bobby L. Rush, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 2 

Hon. Richard Hudson, a Representative in Congress from the State of North 

Carolina, opening statement ............................................................................... 4 

Hon. Frank Pallone, Jr., a Representative in Congress from the State of 

New Jersey, opening statement .......................................................................... 4 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 223 

WITNESSES

Terry L. Turpin, Director, Office of Energy Projects, Federal Energy Regulatory Commission ............................................................................................... 6 

Prepared statement .......................................................................................... 8 

Answers to submitted questions 1 ................................................................... 336 

John Katz, Deputy Associate General Counsel, Office of the General Counsel, 

Federal Energy Regulatory Commission ............................................................ 21 

Prepared statement .......................................................................................... 23 

Answers to submitted questions ...................................................................... 339 

Jeffrey Soth, Legislative and Political Director, International Union of Operating Engineers .................................................................................................... 82 

Prepared statement .......................................................................................... 85 

Jeffrey Leahey, Deputy Executive Director, National Hydropower Association 102 

Prepared statement .......................................................................................... 104 

Answers to submitted questions ...................................................................... 358 

William Robert Irvin, President and Chief Executive Officer, American Rivers, Inc. ................................................................................................................. 130 

Prepared statement .......................................................................................... 132 

Answers to submitted questions ...................................................................... 360 

Jennifer Danis, Senior Staff Attorney, Eastern Environmental Law Center ..... 168 

Prepared statement .......................................................................................... 170 

Donald F. Santa, President and Chief Executive Officer, Interstate Natural 

Gas Association of America ................................................................................. 193 

Prepared statement .......................................................................................... 195 

Andrew Black, President and Chief Executive Officer, Association of Oil Pipe 

Lines ...................................................................................................................... 205

Prepared statement .......................................................................................... 207 

SUBMITTED MATERIAL

Discussion Draft, H.R. lll, the Promoting Hydropower Development at 

Existing Non-Powered Dams Act ........................................................................ 224 

Discussion Draft, H.R. lll, the Promoting Closed-Loop Pumped Storage 

Hydropower Act .................................................................................................... 232 

Discussion Draft, H.R. lll, the Promoting Small Conduit Hydropower 

Facilities Act of 2017 ........................................................................................... 236 

Discussion Draft, H.R. lll, the Promoting Interagency Coordination for 

Review of Natural Gas Pipelines Act ................................................................. 239 

1The information has been retained in committee files and also is available 

at http://docs.house.gov/meetings/IF/IF03/20170503/105916/HHRG-115- 

IF03-Wstate-TurpinT-20170503-SD071.pdf. 

Page

IV 

Discussion Draft, H.R. lll, the Promoting Cross-Border Energy Infrastructure Act ................................................................................................................. 247 

H.R. 1538, the Supporting Home Owner Rights Enforcement Act ...................... 256 

H.R. 446, To extend the deadline for commencement of construction of a 

hydroelectric project ............................................................................................. 258 

H.R. 447, To extend the deadline for commencement of construction of a 

hydroelectric project ............................................................................................. 260 

H.R. 2122, To reinstate and extend the deadline for commencement of construction of a hydroelectric project ..................................................................... 262 

Discussion Draft, H.R. lll, the Hydropower Policy Modernization Act of 

2017 ....................................................................................................................... 265

Letter of May 2, 2017, from Thomas R. Kuhn, President, Edison Electric 

Institute, to Mr. Upton and Mr. Rush, submitted by Mr. Olson ...................... 293 

Letter of May 1, 2017, from Greg Salyer, General Manager, Modesto Irrigation District, and Casey Hashimoto, General Manager, Turlock Irrigation 

District, to Mr. Upton and Mr. Rush, submitted by Mr. Olson ....................... 294 

Letter of April 27, 2017, from Michael S. Webster, Executive Director, Southern California Public Power Authority, to Mr. Upton and Mr. Rush, submitted by Mr. Olson ............................................................................................. 295 

Letter of May 2, 2017, from Steve Wright, General Manager, Public Utility 

District No. 1 of Chelan County, Washington, to Mr. Upton and Mr. Rush, 

submitted by Mr. Olson ....................................................................................... 296 

Letter of April 28, 2017, from James Price, President, Jordan Hydroelectric 

Limited Partnership, to Mr. Griffith, submitted by Mr. Olson ........................ 302 

Letter of May 1, 2017, from Jonathan D. Sweet, County Administrator, County of Pulaski, Virginia, to Mr. Griffith, submitted by Mr. Olson ..................... 306 

Letter of May 2, 2017, from Marco A. Giamberardino, Executive Director, 

Government Affairs, National Electrical Contractors Association, to Mr. 

Upton and Mr. Rush, submitted by Mr. Olson .................................................. 307 

Letter of May 3, 2017, from John Grubich, General Manager, Public Utility 

District No. 1 of Okanogan County, Washington, to Mr. Upton and Mr. 

Rush, submitted by Mr. Olson ............................................................................ 308 

Letter of May 3, 2017, from Susan N. Kelly, President and Chief Executive 

Officer, American Public Power Association, to Mr. Upton and Mr. Rush, 

submitted by Mr. Olson ....................................................................................... 312 

Testimony of Kevin Colburn, National Stewardship Director, American Whitewater, March 15, 2017, submitted by Mr. Olson ............................................... 313 

Series of letters collected by the Hydropower Reform Coalition, dated March 

14 to 17, 2017, to Mr. Upton and Mr. Rush,2 submitted by Mr. Olson 

Letters of May 1, 2017, and July 18, 2016, from James D. Ogsbury, Executive 

Director, Western Governors’ Association, et al., to Mr. Walden and Mr. 

Pallone, submitted by Mr. Olson ........................................................................ 320 

Letter of March 15, 2017, from Linda L. Dahlmeier, Mayor, The City of 

Oroville, to Mr. Upton and Mr. Rush, submitted by Mr. Olson ....................... 331 

Letter of May 3, 2017, from Thomas O’Keefe, Chair, Hydropower Reform 

Coalition, to Mr. Upton and Mr. Rush, submitted by Mr. Olson ..................... 334 

Report by FAST-41, ‘‘FY 2016 Annual Report to Congress, Federal Permitting 

Improvement Steering Council (FPISC),’’ April 2017,3 submitted by Mr. 

Olson 

2The information has been retained in committee files and also is available 

at http://docs.house.gov/meetings/IF/IF03/20170503/105916/HHRG-115- 

IF03-20170503-SD112-U1.pdf. 3The information has been retained in committee files and also is available 

at http://docs.house.gov/meetings/IF/IF03/20170503/105916/HHRG-115- 

IF03-20170503-SD114.pdf. 

(1) 

LEGISLATION ADDRESSING PIPELINE AND 

HYDROPOWER INFRASTRUCTURE MODERNIZATION 

WEDNESDAY, MAY 3, 2017 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENERGY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:05 a.m., in Room 

2123, Rayburn House Office Building, Hon. Pete Olson (vice chairman of the subcommittee) presiding. 

Members present: Representatives Olson, Barton, Murphy, Latta, 

Harper, McKinley, Kinzinger, Griffith, Johnson, Long, Bucshon, 

Flores, Mullin, Hudson, Cramer, Walberg, Rush, McNerney, Peters, 

Green, Castor, Welch, Tonko, Loebsack, Schrader, Kennedy, and 

Pallone (ex officio). 

Staff present: Grace Appelbe, Legislative Clerk, Energy/Environment; Ray Baum, Staff Director; Mike Bloomquist, Deputy Staff Director; Zack Dareshori, Staff Assistant; Wyatt Ellertson, Research 

Associate, Energy/Environment; Adam Fromm, Director of Outreach and Coalitions; Tom Hassenboehler, Chief Counsel, Energy/ 

Environment; A.T. Johnston, Senior Policy Advisor, Energy; Ben 

Lieberman, Senior Counsel, Energy; Alex Miller, Video Production 

Aide and Press Assistant; Brandon Mooney, Deputy Chief Energy 

Advisor; Dan Schneider, Press Secretary; Sam Spector, Policy Coordinator, Oversight and Investigations; Madeline Vey, Policy Coordinator, Digital Commerce and Consumer Protection; Jeff Carroll, 

Minority Staff Director; David Cwiertny, Minority Energy/Environment Fellow; Jean Fruci, Minority Policy Advisor, Energy and Environment; Caitlin Haberman, Minority Professional Staff Member; 

Rick Kessler, Minority Senior Advisor and Staff Director, Energy 

and Environment; Alexander Ratner, Minority Policy Analyst; Andrew Souvall, Minority Director of Communications, Member Services, and Outreach; Tuley Wright, Minority Energy and Environment Policy Advisor; and C.J. Young, Minority Press Secretary. 

Mr. OLSON. The Subcommittee on Energy will now come to order. 

The Chair now recognizes himself for 5 minutes for an opening 

statement. 

OPENING STATEMENT OF HON. PETE OLSON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Welcome, everyone. Today the subcommittee will begin to review 

bills to modernize pipeline and hydropower infrastructure. We have 

2 

10 bills before us. Some have already been introduced while others 

are in discussion forum, but we already have an extensive record 

on these issues that these bills address. 

We begin this Congress by picking up where we left off last year, 

with hearings on the challenges we face to expand hydro and pipeline infrastructure. We have heard from job creators, contractors, 

labor, Tribal interests, consumers, and private citizens. Then we 

will hear from the Federal Energy Regulatory Commission, otherwise known as FERC, the lead agency for these reviews. 

As we move forward, we will continue to work with the States 

and other Federal agencies that have a role to ensure that we balance the need to modernize our infrastructure with the important 

safety, environmental, and consumer protections. We will also hear 

from stakeholders, both industry and citizen groups. I look forward 

to their input. 

I suspect many of these witnesses will tell us what we have 

heard for a while now: Getting these projects done has become an 

incredibly difficult process. These projects need to be reviewed and 

they need to be safe, but once we have done our due diligence, foot 

dragging is malpractice. We need to fix this and get it right. Together, these 10 bills represent the beginning of an effort to modernize our energy infrastructure, improve access to affordable and 

reliable energy, and lower prices for consumers. I want to thank 

the witnesses for appearing today before us and look forward to 

their testimony. 

[The proposed legislation appears at the conclusion of the hearing.] 

Mr. OLSON. I now yield to the ranking member, Mr. Rush from 

Illinois. 

Mr. RUSH. Good morning. Thank you, Mr. Chairman. 

Mr. Chairman, before I begin, I just want to make a point. I am 

really concerned about Chairman Upton and our friend Representative Long. I understand that he is over at the White House, and 

I just wonder, is he OK? Shall we have a moment of prayer for him 

or a moment of silence? 

Mr. OLSON. He is doing just fine. He is OK. 

OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. RUSH. Well, I want to thank you, Mr. Chairman, for holding 

today’s hearing on expediting the permitting process for natural 

gas pipelines and hydropower projects. Mr. Chairman, the legislation before us streamlining natural gas pipelines appears to suffer 

and to offer a solution in search of a problem. FERC data shows 

that between 2009 to 2015 over 100 million natural gas pipeline 

projects were approved spanning over 3,700 miles in 35 States for 

a total capacity of over 45 billion cubic feet per day, and an overwhelming 91 percent, Mr. Chairman, of applications were decided 

within 12 months. 

More importantly, Mr. Chairman, without a quorum at FERC no 

new projects will get approved, so rather than proposing changes 

to a process that already works we should be reaching out to the 

administration and urging them to submit candidates for the ComVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
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mission as well as for the other departments that are under our jurisdiction that are still waiting to fill important vacancies. 

Mr. Chairman, there may be some areas where we might be able 

to find bipartisan support and compromise such as streamlining 

the licensing process for hydropower infrastructure. However, Mr. 

Chairman, and as the April 27th letter submitted to you and 

Chairman Walden from myself, Ranking Member Pallone, and 

other colleagues indicated, it is critical for the subcommittee to 

hear from other important stakeholders who will be directly impacted by these changes including the States, resource agencies, 

and Native American Tribes. 

Mr. Chairman, I also have concerns with the cross-border bill 

which would shift the burden of proof to opponents of a project to 

show that the project is not in the public interest. This bill also 

limits the scope of review for large transnational pipelines to only 

a tiny section of a project that physically crosses the border no 

matter how many communities, States, and properties a pipeline 

might actually traverse. 

Mr. Chairman, as the recent Oroville Dam failure demonstrated, 

expediency must not trump safety. Public comment and engagement must continue to play a vital part of any permitting process. 

So Mr. Chairman, before moving forward on these bills, many 

which would make it easier for private companies to take control 

of the use of waters belonging to the people of the United States, 

it is vital that we hear from witnesses who can provide expert testimony on how taking authority away from other agencies and consolidating power and decision making authority solely within the 

FERC might impact the public interest. 

Mr. Chairman, I want to thank you and I yield back the balance 

of my time. Mr. McNerney, I want to—— 

Mr. MCNERNEY. I thank the gentleman for yielding. While there 

are a number of bills under discussion today, I am going to focus 

my remarks on hydropower. We know that worldwide hydropower 

generates about six percent of electricity and about half of the renewable energy generation. Hydropower generation does not 

produce carbon emissions. As a Nation we must move away from 

harmful fossil fuels and continue to bolster our renewable and 

clean energy generation sources if we are to combat and mitigate 

the effects of climate change. 

We also know that FERC will manage approximately 500 hydropower projects by 2030 that represent about 18,000 megawatts of 

generation. The current process clearly needs improvement, so 

what is it that needs to be done—the accountability of all stakeholders, timely decisions and the sharing of information, protection 

of our Nation’s waterways, habitat, and environment. 

Now the Federal Power Act has worked OK in many ways over 

the last 90 years, but I have heard from stakeholders over the entire spectrum that the process could be better. I have heard from 

FERC, from the resource agencies, from applicants, from Tribes, 

from States, from NGOs and others. I believe that we can find common ground, but we need to work on a bipartisan basis to enact 

real solutions. If one side or the other imposes its will on the other, 

the solutions won’t work. I yield back. 

4 

Mr. OLSON. The gentleman yields back. The Chair calls upon the 

gentleman from North Carolina, Mr. Hudson, for 3 minutes. 

OPENING STATEMENT OF HON. RICHARD HUDSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

CAROLINA 

Mr. HUDSON. Thank you, Mr. Olson. I would like to thank Chairman Upton and Ranking Member Rush for holding today’s hearing 

on improving America’s hydropower systems. This issue resonates 

strongly with me because North Carolina has a rich history of hydropower. Our Catawba River was among the first rivers to be developed for hydropower. In North Carolina alone it generates 

enough electricity to power 350,000 homes each year. 

This low-risk, high-reward technology could provide significant 

benefits, yet the potential remains uncaptured in part because of 

a prohibitive permitting process. I am pleased to continue working 

with my colleagues, Congresswoman DeGette, on promoting the 

Small Conduit Hydropower Facilities Act to build on this committee’s successful legislative efforts and reduce the total review process time for small scale hydropower by 75 percent, from 60 days 

down to 15 days. Reducing regulatory burdens is a common sense 

way to increase our supply of clean and affordable electricity. 

Thank you again, Mr. Chairman, for including our legislation on 

today’s agenda. I look forward to working with you to advance this 

initiative through the committee, and I yield back. 

Mr. OLSON. The gentleman yields back. The Chair now, in the 

spirit of bipartisanship, calls on anyone from the Democrat side for 

a 3-minute statement like Mr. Hudson. 

Oh, I didn’t see Mr. Pallone. I am sorry. Five minutes for the 

ranking member of the full committee, Mr. Pallone. 

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY 

Mr. PALLONE. Thank you. Thank you, Mr. Chairman, for holding 

the hearing on the ten bills addressing hydropower and pipeline infrastructure. Hydroelectric power is among the most mature generating technologies. It provides virtually carbon-free base load energy at low cost to our manufacturing sector and to residential and 

commercial consumers and hydroelectric power is an important 

asset we need to maintain. At the same time, it has major impacts 

on fish and wildlife populations, water quality, water supply management, and other important physical and cultural resources if 

poorly operated or cited. 

While hydroelectric power licenses depend on rivers for free fuel, 

those rivers belong to all Americans not just those who sell or buy 

the power generated from it. Hydroelectric licenses have fixed conditions that generally remain unchanged during the 30 to 50 years 

that they are in force. Licenses also benefit from unlimited automatic annual extensions after their license has expired if a new license has not been issued and as a result, the impacts of these hydropower dams often go unaddressed for more than half a century. 

For those facilities first licensed before enactment of the National 

Environmental Policy Act, the Clean Water Act, and the EndanVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
5 

gered Species Act in the 1970s, the licensing process certainly can 

be quite rigorous. Sometimes the necessity of addressing these complex issues also makes the process time consuming and expensive 

as new license conditions will require significant upgrades to old 

facilities to bring them in line with modern environmental laws 

and regulations. 

So, Mr. Chairman, we want to work with you on hydroelectric licensing reform with the goal of expediting the process while maintaining the fundamental principles of balance in the process and 

this would allow us to maximize the benefits of hydroelectric power 

and expand it where it is most appropriate to do so. 

Our hydro hearing in March was one of the most constructive we 

had and that was very encouraging. It was also incomplete because 

we did not hear from the other stakeholders who were central to 

relicensing. We didn’t hear from Federal resource agencies, States, 

and Tribes, and this is something Members on our side feel strongly about, which is why we wrote to you. 

And you, Mr. Chairman, and Chairman Walden, last week we 

wrote to you requesting a hearing because we understand more 

fully the challenges facing the hydropower industry and the rivers 

the industry relies upon before we update our policies, but we also 

gain a more thorough appreciation of the impacts of hydroelectric 

generation on others who use the rivers—Tribes, fishermen, farmers, boaters, and many more—to ensure their interests are treated 

fairly in the process 

So I just wanted to turn my attention to the two nonhydro bills 

before us today. First, we have a discussion draft that amends the 

Natural Gas Act and resembles similar legislation we saw last Congress as well as proposals in prior years. The purported goal of the 

draft is to enhance agency coordination and speed up FERC’s review of natural gas pipelines. 

While I think we could all support the idea of making permitting 

more efficient generally, this bill like its predecessors remains a solution in search of a problem. The fact is that in the last 3 years 

FERC has approved more pipelines each year than the one preceding it, with roughly 90 percent of pipeline projects being certificated within 1 year. 

And I will admit that, since President Trump took office, the 

number of approvals has taken a dive, but that has nothing to do 

with the permitting process. Instead, approvals are down because 

FERC has lacked a quorum for 3 months and the President has yet 

to nominate anyone to any of the three open slots. To make matters worse, FERC will soon have only one Commissioner when 

Commissioner Honorable’s term expires at the end of June. What 

that means in terms of natural gas projects is that FERC has not 

approved a gas pipeline project since February 3rd. 

So if the goal of my colleagues on the other side of the aisle is 

truly to speed up the FERC approval of gas pipelines, perhaps they 

should pick up the phone and ask President Trump to nominate at 

least a couple of new FERC Commissioners so they can begin to 

consider applications for these projects once again. Until then, I 

find any conversation about needing legislation to expedite pipeline 

approvals at FERC untimely. 

6 

The Cross-Border Energy discussion draft also looks very similar 

to legislation we debated at length last Congress. This proposal 

eliminates the current presidential permitting process for energy 

projects that cross the U.S. border, substituting it with a weaker 

environmental review process that in effect rubber-stamps applications. 

With President Trump already approving the Keystone XL pipeline and signaling support for new pipelines and other energy 

projects around the country, it is unclear to me why Republicans 

feel it is necessary to strip the President of his approval authority. 

Do my colleagues on the other side of the aisle honestly not have 

confidence in President Trump to make rational decisions on major 

energy projects? While I certainly have many concerns and would 

certainly not fault my Republican friends for any trepidation on 

their part, I still believe that this authority should continue to rest 

with the President of the United States, regardless of whether his 

name is Obama or Trump. 

So I want to thank our witnesses for coming today, particularly 

Ms. Danis, who is from New Jersey and is here representing, 

among others, the New Jersey Conservation Foundation. Thank 

you, Mr. Chairman. 

Mr. OLSON. The gentleman yields back. We now conclude with 

Member opening statements. The Chair would like to remind all 

Members that, pursuant to the committee rules, all Members’ opening statements will be made part of the record, and I want to 

thank our witnesses for being here today and taking your time to 

testify before the subcommittee. 

Today’s hearing will consist of two panels. Each panel of witnesses will have the opportunity to give an opening statement followed by a round of questions from the Members. Once we conclude 

the first panel, we will take a few minutes to set up the second 

panel. 

Our first witness panel for today’s hearing includes Mr. Terry 

Turpin. Mr. Turpin is Director of the Office of Energy Projects at 

FERC. And Mr. John Katz. Mr. Katz is a Deputy Associate General 

Counsel for the Office of General Counsel at FERC, as well. We appreciate you being here today. We will begin by recognizing you, 

Mr. Turpin, for 5 minutes to give an opening statement. 

STATEMENTS OF TERRY L. TURPIN, DIRECTOR, OFFICE OF ENERGY PROJECTS, FEDERAL ENERGY REGULATORY COMMISSION, AND JOHN KATZ, DEPUTY ASSOCIATE GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL, FEDERAL ENERGY 

REGULATORY COMMISSION 

STATEMENT OF TERRY L. TURPIN 

Mr. TURPIN. Thank you. Good morning, Vice Chairman Olson, 

Ranking Member Rush, and members of the subcommittee. My 

name is Terry Turpin and I am Director of the Office of Energy 

Projects at the Federal Energy Regulatory Commission. The Office 

is responsible for taking a lead role in carrying out the Commission’s duties in siting infrastructure projects including non-Federal 

hydropower projects, interstate natural gas facilities, and liquefied 

natural gas terminals. Thank you for the opportunity to appear beVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
7 

fore you to discuss drafts of the Promoting Interagency Coordination for Review of Natural Gas Pipelines Act and the Promoting 

Cross-Border Energy Infrastructure Act. 

As a member of the Commission’s staff, the views I express in 

my testimony are my own and not necessarily those of the Commission or any individual Commissioner. 

The Commission is responsible under Section 7 of the Natural 

Gas Act for authorizing the construction of interstate natural gas 

facilities, and under Section 3 of the Natural Gas Act for authorizing the construction of import/export facilities. The Commission 

acts as the lead agency for the purpose of coordinating all applicable Federal authorizations and as the lead agency for complying 

with the National Environmental Policy Act. 

The environmental review is carried out through a process that 

allows cooperation from numerous stakeholders including Federal, 

State and local agencies, Native Americans, and the public. In 

order to maximize the engagement between the applicant and 

these various stakeholders, the Commission has developed its prefiling review process. 

The Commission’s current approach allows for a systematic and 

collaborative process and has resulted in substantial additions to 

the Nation’s natural gas infrastructure. Since 2000, the Commission has authorized nearly 18,000 miles of interstate natural gas 

pipeline totaling more than 159 billion cubic feet per day of transportation capacity, over one trillion cubic feet of interstate natural 

gas storage, and 23 facility sites for the import or export of LNG. 

Over the past 10 years, the Commission has also issued 15 authorizations related to natural gas border crossing facilities. These 

results have been facilitated through the environmental analysis 

under the National Environmental Policy Act, which I believe has 

been improved through the Commission’s approach through the 

pre-filing review phase of the project. 

Regarding the discussion drafts, I note that many of the comments of previous office directors have been incorporated on similar 

past proposals and have been incorporated into these versions. As 

I explain in my testimony, the discussion draft on interagency coordination would alter the Natural Gas Act to include many of the 

existing practices the Commission currently uses successfully in its 

review process. 

The discussion draft addressing cross-border energy infrastructure would add oil pipeline border crossings to the Commission’s jurisdiction and would remove requirements for presidential permits 

for both oil and natural gas border crossings. Staff already has substantial expertise in analyzing natural gas pipeline border crossings and this could be extended to oil crossings under the final 

rules the Commission would be required to issue. 

This concludes my remarks on the discussion drafts addressing 

interagency coordination and cross-border infrastructure. Commission staff would be happy to provide technical assistance as you 

move forward with your consideration of this legislation. I would be 

pleased to answer any questions you may have. Thank you. 

[The prepared statement of Mr. Turpin follows:] 

8 


Testimony of 

Terry L. Turpin 

Director, Office of Energy Projects 

Federal Energy Regulatory Commission 

888 First Street, N.E. 

Washington, DC, 20426 

Committee on Energy and Commerce 

Subcommittee on Energy and Power 

United States House of Representatives 

"Hearing on Legislation Addressing Pipeline and Infrastructure Modernization" 

May 3, 2017 
9 


Chairman Upton, Ranking Member Rush, and Members of the Subcommittee: 

My name is Teny Turpin and I am the Director of the Office of Energy Projects at 

the Federal Energy Regulatory Commission. The Office is responsible for taking a lead 

role in carrying out the Commission's responsibilities in siting infrastructure projects 

including: ( 1) licensing, administration. and safety of non-federal hydropower projects; (2) 

authorization of interstate natural gas pipelines and storage facilities; and (3) authorization 

of liquefied natural gas (LNG) tem1inals. 

I appreciate the opportunity to appear before you to discuss drafts of the "Promoting 

Interagency Coordination for Review of Natural Gas Pipelines Act" and the ''Promoting 

Cross-Border Energy Inli·astructure Act.'' i\s a member of the Commission's stafC the 

views I express in this h:stimony arc my own, and not necessarily those of the Commission 

or of any individual Commissioner. 

I. Background 

The Commission is responsible under section 7 of the Natural Gas Act (NGA) for 

authorizing the construction and operation of interstate natural gas pipeline and storage 

facilities and under section 3 of the NGA for the construction and operation of facilities 

necessary to either the import or expmi of natural gas by pipeline, or by sea as LNG. 

Authorizations for the impmi or export, fi·om or to a foreign country, of the 

commodity of natural gas, including LNG, are issued by the Department of Energy. 
10 


As pmi of its responsibilities, the Commission conducts both a non-environmental 

and an environmental review of the proposed facilities. The non-environmental review 

focuses on the projecrs engineering design, market demand. costs, rates, and consistency 

with the Commission's regulations and policies. Under the NGA, the Commission acts as 

the lead agency for the purposes of coordinating all applicable federal authorizations and 

for the purposes of complying with the National Environmental Policy Act (NEPA). 

Congress has instructed each federal and state agency considering an aspect of an 

application for federal authorization to work with the Commission and to comply with the 

deadlines established by the Commission, unless a schedule is otherwise established by 

federal law. Commission staff establishes a publicly noticed schedule for all decisions or 

actions taken by other federal agencies and/or state agencies delegated with federal 

authority. This includes federal authorizations issued by both federal and state agencies 

under the Endangered Species Act, National Historic Preservation Act, Clean Water Act, 

Clean Air Act, Coastal Zone Management Act, and other statutes. 

The environmental review, pursuant to NEPA, is canicd out through a process that 

allows cooperation from: numerous federal, state, and local agencies; Indian tribes; and 

with the input of other interested parties. The Commission employs several distinct phases 

in the review process for interstate natural gas facilities under the jurisdiction of sections 3 

and 7 of the NGA: 

• Project Preparation: the project sponsor identifies customers and markets, defines 

a proposed project, and identities potentially relevant federal and state agencies 

2 
11 


in the project area with permitting requirements, prior to formally engaging 

Commission staff; 

• Pre-Filing Review: Commission staff begins working on the environmental 

review and engages with stakeholders, including agencies, with the goal of 

identifying and resolving issues before the filing of an application; 

• Application Review: the project sponsor files an application with the 

Commission under NGA section 7 for interstate pipeline and storage facilities, 

and under NGA section 3 for import or export facilities. Commission staff 

completes and issues the environmental document, analyzes the nonenvironmental aspects of projects related to the public interest determination, and 

prepares an order for Commission consideration; and 

• Post-Authorization Compliance: Commission staff works with the project 

sponsor and stakeholders, including agencies, to ensure compliance with 

conditions to the FERC approval during construction. 

The Commission's current review processes are thorough, efficient, and have 

resulted in the timely approval of the facilities necessary for interstate natural gas pipelines 

as well as border crossings for the import or export of natural gas. Since 2000, the 

Commission has authorized: nearly 18,000 miles of interstate natural gas transmission 

pipeline totaling more than 159 billion cubic feet per day of transportation capacity; over 

one trillion cubic feet of interstate storage capacity; and 23 facility sites for the import and 

3 
12 


export of LNG. Over the past ten years, the Commission has also issued 15 NGA section 3 

authorizations and Presidential Penn its for border crossing facilities. 

II. Promoting Intcra~11c'· Coordinat_ion for Review_ of Natural Gas Pipelines Act 

Commission stall' is committed to the timely review of proposed interstate natural 

gas facilities. The Commission's current approach process allows for a systematic, 

efficient, and collaborative process, and has resulted in substantial additions to the nation's 

natural gas infrastructure. These results have been facilitated by a thorough environmental 

analysis under NEPA, which I believe has been improved through the Commission's 

approach in Pre-11ling Review and Application Review. 

The discussion draft would alter the NGA to include many of the existing practices 

the Commission has successfully used during the Pre-Filing Review, Application Review, 

and Post-Authorization Compliance phases. The draft language requires early outreach to 

permitting agencies to ensure identification and potential resolution of issues. This 

outreach would ensure that agencies with responsibility for permits, opinions, or other 

approvals required under federal law are aware of the proposed project at the earliest 

possible time, while also requiring the project sponsor to account for the various application 

processes in developing the project schedule. This also would allow those agencies to have 

input into the development of the project and identification of potential of project issues, 

when their advice is most valuable. I believe this statutory revision would formalize 

existing Commission practice and would encourage agency participation. 

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13 


The discussion draft would also allow the usc of third-party contractors in assisting 

with environmental review. This practice is already a feature of Pre-Filing Review and 

Application Review for the Commission. Accordingly, I see value in formalizing existing 

Commission staff practice, and I fully support third-party contractor usc in permitting 

evaluations for other agencies that may be overburdened or understaffed. This may also aid 

with early input, engagement, and cooperation by agencies that do not have the resources to 

commit to participation while a project is still in a conceptual phase. 

However, some of the proposed NGA modifications would alter the Commission's 

role from one of collaboration with its fellow agencies to an oversight role, monitoring 

other agency execution of their Congressionally-mandated duties. I am concerned that this 

will require the usc of Commission resources that could be better spent analyzing the 

proposed projects and could lead to unproductive tension between the agencies involved in 

the review process. 

Lastly, the Commission has undertaken significant efforts to implement its 

responsibilities under Title 41 of the Fixing America's Surface Transportation Act (FAST41), enacted in December 2015. FAST-41 provides for enhanced coordination efforts with 

permitting agencies, and the development of publicly available permitting timetables for 

each federal permit. Because the discussion draft would cover all Commission 

jurisdictional natural gas projects, not just those the larger and complex projects that 

volunteer for coverage under F AST-41, I recommend that the Commission not be required 

to maintain duplicate efforts under both statutes. 

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I will now offer comments on the specific sections of the discussion draft. 

A. NGA Section 15(c)(2) 

The proposed changes toNGA section 15(c)(2) would not alter the current 

authorities and responsibilities of the Commission as the lead federal agency for 

coordinating all applicable federal authorizations and for the purpose ofNEPA compliance. 

However, the proposed changes do re11ect the Commission's efforts to implement the 

Energy Policy Act of 2005 through the establishment of a 90-day authorization deadline. 

Staffs experience has shown that agencies o ftcn have different timing requirements 

related to the information needed for their decisions, which results in differing review 

periods. Information that an agency considers vital to its determination may not be 

available until after the FERC environmental review is complete and the Commission has 

issued an order. 

Providing agencies with timely and complete information necessary to perfotm 

Congressionally-mandated project reviews is the single most crucial step in ensuring 

process accountability and eJTicicncy. This information encompasses not only 

environmental data for the project area, but also information about project design and 

construction. This is the responsibility of the project sponsor and is often outside of the 

control of permitting agencies. Commission statT and other agencies often struggle to 

receive complete information. During the Pre-Filing Process, project design has often not 

progressed enough to provide sufficient information for Commission staff or agencies to 

provide guidance on anticipated issues. 

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15 


After receipt of an application, Commission staff routinely needs to issue requests 

for additional information to assess stakeholder and environmental concerns that are 

inadequately addressed in the project sponsor's application. These infonnation requests 

most commonly seek information regarding altemative routes, mitigation measures to 

reduce impacts, and clarifications on inconsistently reported data. Once Commission staff 

has received complete information to address these issues, it can develop a schedule for 

completion of the NEP i\ document. I recommend that any statutory revision setting a 

deadline for the issuance of federal permits be based on the project sponsor providing 

complete information, related to both environmental data and project design and 

construction. 

B. NGA Section 15(c)(4) 

The proposed text ofNGA section !5(c)(4) would require permitting agencies to 

give deference to the Commission's opinion on what matters need to be addressed in the 

NEP i\ review. To the extent possible, Commission sta±T constructs the NEP i\ document so 

that it can be adopted by all cooperating agencies. During coordination activities, 

Commission staff considers these agencies' opinion of the scope of environmental review 

needed to satisfy their NEPA obligations, as they arc best equipped to determine what 

information satisfies their statutory mandates. However. each agency must decide 

independently if it has sufficient information to act, and lam not certain how efficient it 

would be for FERC to try to make that determination for other agencies. 

7 
16 


C. NGA Section 15(c)(5) 

Section 15( c )(5) r~?quires that agencies provide Congress and the Commission 

notification of the reasons why a schedule cannot be met, and an implementation plan to 

complete the proceeding. Having to report to Congress on an agency's failure to mel?t the 

schedule and provide an implementation plan would provide accountability; however it 

could also have the unintended consequence of agencies providing stricter permitting 

conditions than would have been the case if they had more time. Further, it is not clear 

what value would be gained by also requiring that this information be provided to the 

Commission, as the Commission will not be in a position to review or alter the agency 

plans regarding policies or resources. 

D. NGA Section 15(d) 

As discussed above, providing agencies with timely and complete information 

necessary to perform Congressionally-mandated project reviews is the single most crucial 

step in reducing unceiiainty in a review schedule. Proposed changes in new NGA section 

15(d) would allow agencies to accept aerial or remotely gathered data, to be later field 

verified, for conditional approval of a federal authorization. 

Aerial or remote surveys can be a useful tool for developing project routes and 

making initial determinations of resources that may be afTccted by a proposed project. 

Currently, Commission staff accepts remote survey data where ground access is not 

available during the Pre-Filing and Application Review processes. However, most project 

applications include ground surveys for a significant pmiion of the right-of-way. 

8 
17 


I do have some practical concerns with the use of remote data for pipeline projects. 

Some resources arc either difficult or impossible to assess remotely. For example, remote 

surveys would have little value for identifying below-surface cultural resources such as 

archaeological sites (which constitute the majority of cultural resources identified in FERC 

proceedings). National Wetland Inventory maps, which arc based on remote sensing, are 

useful for identifying some types of wetlands, but are less accurate for other types, such as 

forested wetlands. Confirming the presence of federally listed plant and animal species 

often requires field surveys. 

Waiting to verify large amounts of remote data until late in the project development 

process, or after issuance of an authorization, could pose difficulties in some cases. For 

example, if it was not discovered until the pre-construction stage that a project might affect 

sensitive resources, such as those I just described, a project sponsor could be required at a 

late stage to amend its approved route or to conduct additional mitigation, which could 

delay construction and add additional unanticipated expense. 

E. NGA Section lS(f) 

New NGA section 15( f) would require that the Commission track and make publicly 

available the schedule and status of any federal authorization. In particular, this would 

require the Commission to create a public tracking system on its website for every federal 

permit required for each project. As previously discussed, the Commission publicly issues 

a notice of schedule alerting all stakeholders, including federal and state agencies acting 

pursuant to delegated federal authority, of the date the final environmental document. 

Similarly, the project sponsor is already required to disclose the status of any required 

9 
18 


federal permits. Specifically, the Commission's regulations require all applications to 

include: each federal authorization the project will require; the agency responsible for that 

authorization; and the requested issuance date of that authorization. In addition, the 

Commission's regulations require the project sponsor to indicate the date it submitted the 

federal authorization request. In cases where the permit request has not been made, the 

project sponsor must provide an explanation for the delay and provide a date by which it 

intends to make the required submission. lf a project is approved, the applicant must again 

provide updates to the Commission on the status of both applications for and receipt of 

federal authorizations. 

Placing the Commission in a position of more direct oversight over other agencies 

through the tracking of their actions in permitting, reviews, and other actions will impose 

additional administrative requirements on the Commission that will divert resources away 

from our O\Vl1 duties in application processing. This is particularly true for the majority of 

section 7 projects, which are smaller and scope and can be completed in short timeframes. 

Through efforts in implementation ofFAST-41 for large and complex projects over 

the past year, Commission statThave been required to perform additional work to gather 

and post the permitting information from other agencies. While expanding these tracking 

and website posting requirements to all Commission jurisdictional natural gas project 

applications may improve transparency, I am concerned that it may also result in a 

significant burden on Commission staff resources and time. 

10 
19 


III. Promoting Cross-Border Energv Infrastructure Act 

The discussion draft addressing Cross-Border Energy Infrastructure requires the 

Commission to issue a certiticate of crossing for any border-crossing facility engaged in the 

import or export of oil or natural gas, unless the facility is determined as not being in the 

public interest of the United States. This ce1iificate is to be issued no later than 120 days 

after completion of the environmental assessment or impact statement required under 

NEPA. The draft also states that no Presidential Permit is needed for oil or natural gas 

pipeline facilities crossing any border. Further, the discussion draft states that no certificate 

of crossing or Presidential Permit would be needed for: reversals of flow direction; changes 

in ownership or f1ow volume; or the addition or removal of interconnections, pumps or 

compressor stations for oil or natural gas pipelines currently operating or already 

possessing a Presidential Permit or a certificate of crossing. Within one year of the passing 

of this act, the Commission must issue final rules revising its regulations regarding crossborder oil and natural gas pipelines. 

As I previously indicated, Commission staff is well versed in evaluating natural gas 

pipeline infrastructure, including border crossings. The Commission may need to develop 

additional stafC resources, and expertise on issues related to oil pipelines as it will be a new 

sector of infrastructure for which the Commission currently has no siting jurisdiction. As 

we have seen with natural gas pipeline border crossings, I would expect that it will not be 

the oil border-crossings themselves that would be the subject of significant public concern. 

Under NEPA, the Commission would need to coordinate with other agencies in the 

II 
20 


evaluation of both oil border-crossing pipelines and the associated indirect or cumulative 

impacts for any needed additional pipeline extending to receipt or delivery points. 

Regarding section 2(e) ofthe discussion draft, the definition of a modification 

includes: reversal of !low direction, change in ownership, change in !low volume, and 

addition or removal of an interconnection. In my experience, the majority of these 

modif1cations arc unlikely to result in adverse impacts to the environment. However, 

allowing a change in flow volume without any notification or authorization from any 

federal agency could limit the ability to track the volumes of gas and oil entering or leaving 

the country. The discussion draft's def1nition of a modilication also includes the addition 

of pumping or compressor stations. The Commission has found that these types of 

facilities often result in some adverse impacts on the environment and are routinely the 

subject of public concem. 

IV.Conclusion 

This concludes my remarks on the discussion drafts addressing Interagency 

Coordination for Review ofNatural Gas Pipelines and Cross-Border Energy Infrastructure. 

Commission staff would be happy to provide technical assistance as you move forward 

with your consideration of this legislation. I would be pleased to answer any questions you 

may have. 

12 
21 

Mr. OLSON. Mr. Turpin, thank you very much. 

The Chair now calls upon Mr. Katz. You are recognized now for 

5 minutes for an opening statement. 

STATEMENT OF JOHN KATZ 

Mr. KATZ. Thank you Mr. Chairman, Ranking Member Rush, 

members of the committee, it is a pleasure to be here before you 

today, and thank you for the invitation to testify. My name is John 

Katz. I am a member of the staff of the Federal Energy Regulatory 

Commission, and as such my comments represent my own opinions 

and not necessarily those of the Commission or of any individual 

Commissioner. I am going to focus on the bills that involve hydro 

aspects. 

The Commission regulates over 1,600 hydro projects which involve more than 2,500 dams. The projection of these hydro projects 

is some 56 gigawatts which is over half of the hydro capacity of the 

United States. The United States does a little bit better than the 

figure Mr. McNerney quoted for the world, hydro is eight percent 

of U.S. capacity. 

Hydro is a renewable resource. It affects many other resources 

including irrigation, flood control, water supply, fish and wildlife, 

and recreation, and these are matters that Congress has asked the 

Commission to balance when it issues licenses. The key thing in 

getting a hydro project licensed quickly is probably site selection. 

This is a matter within the control of the developers, so good development is what is going to carry the day not the Government, not 

the other interested parties. 

The community needs to be involved. Stakeholder involvement is 

very key. Issues need to be identified early and developers need to 

work with the community and the stakeholders to try and resolve 

matters so that things can be done in quick manner. A good example of this is the 400-megawatt Gordon Butte Project. It is a 

pumped storage project in Montana. That project was licensed in 

14 months and the developer of the project recently appeared at a 

workshop at the Commission. 

And while on the one hand he was very complimentary of the efforts of Commission staff, he said that the key to getting it done 

in time was that the Commission had essentially turned him loose 

to allow him to develop a process that worked for him and his 

stakeholders, and that is something that the Commission does on 

a regular basis. 

The Commission does its best to be efficient and effective. Since 

2003, the Commission has issued 82 original licenses, and of those 

about 25 percent have been licensed in 2 years or less with about 

a 1.4-year median processing time at the Commission. 

Congress has done a lot to help the Commission in carrying out 

its job. In the 2013 Hydropower Regulatory Efficiency Act, Congress provided that certain qualifying conduit projects could be 

completely exempt from Commission regulation. The Commission 

has approved or signed off on 83 of those projects since then. 

Congress also allowed the Commission to consider small projects 

at an increased level. They used to be limited to five megawatts 

and Congress increased that to ten megawatts. There have been 

seven such projects filed since the passage of that act. Finally, ConVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
22 

gress allowed the Commission to extend the time of preliminary 

permits which are what an applicant gets to study a project, and 

the Commission has approved 57 extensions or permits since that 

time. 

Commission staff supports the goals of the legislation before you 

to the extent that they improve efficiency, enable the development 

of new infrastructure, support balanced decision making, and reduce duplicative oversight. We are concerned only to the extent 

that additional bureaucracy would add to the process. Commission 

staff and other agencies are not in my experience looking to do additional processes or things that will slow down development, but 

rather want to pare back these processes to the extent we possibly 

can. 

Finally, I want to note that there are several bills that provide 

extensions of the commencement of construction deadlines for certain projects and those bills are all consistent with Commission policy. Thank you very much and I would be happy to answer any 

questions you may have. 

[The prepared statement of Mr. Katz follows:] 

23 


Testimony of 

John Katz 

Deputy Associate General Counsel 

Federal Energy Regulatory Commission 

888 First Street, N.E. Washington, DC, 20426 

202-502-8082 

Committee on Energy and Commerce 

Subcommittee on Energy and Power 

United States House of Representatives 

Hearing on Legislation Addressing Pipeline and Infrastructure Modernization 

May 3, 2017 
24 


Chairman Upton, Ranking Member Rush, and Members of the Subcommittee: 

My name is John Katz and I am Deputy Associate General Counsel for Energy 

Projects at the Federal Energy Regulatory Commission. The Office of the General Counsel 

provides legal and policy advice to the Commission's Office of Energy Projects, which 

takes a lead rule in carrying out the Commission's responsibility for siting infrastructure 

projects including: (1) licensing, administration, and safety of non-federal hydropower 

projects; (2) authorization of interstate natural gas pipelines and storage facilities; and (3) 

authorization and safety of liquefied natural gas terminals. 

I appreciate the opportunity to appear before you to discuss discussion drafts of the 

Hydropower Policy Modcmization Act of2017; the Promoting Hydropower Development 

at Existing Non-Powered Dams Act; the Promoting Closed-Loop Pumped Storage 

Hydropower Act; the Promoting Small Conduit Hydropower Facilities Act of 20 I7; the 

Supporting Home Owner Rights Enforcement Act; and a Bill to Reinstate and Extend 

Deadlines for Commencement of Construction for the Jennings Randolph Project No. 

12715. I will also address H.R. 446 a bill to extend the deadline for commencement of 

construction for the Gathright Project No 12737-- and II.R. 447- a bill to extend the 

deadline for commencement of construction of the Flanagan Project No. 12740. 

As a member of the Commission's stafl~ the views I express in this testimony are 

my own, and not necessarily those of the Commission or of any individual Commissioner. 

2 
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I. The Commission's Hydropower Program 

A. Background 

The Commission regulates over 1,600 non-federal hydropower projects at over 

2,500 dams, pursuant to Part I of the Federal Power Act (FPA). Together, these projects 

represent about 56 gigawatts of hydropower capacity, which is more than half of all the 

hydropower capacity in the United States. Hydropower is an essential pati of the Nation's 

energy mix and offers the benefits of an emission-free, renewable, domestic energy source. 

Public and private hydropower capacity together total about 8 percent of U.S. electric 

generation capacity. 

Under the FPA, non-federal hydropower projects must be licensed by the 

Commission if they: ( 1) are located on a navigable waterway; (2) occupy federal land; (3) 

Usc surplus water from a federal dam; or (4) are located on non-navigable waters over 

which Congress bas jurisdiction under the Commerce Clause, involve post-1935 

construction, and affect interstate or foreign commerce. 

The FPA authorizes the Commission to issue licenses for projects within its 

jurisdiction, and exemptions (a simpler Corm of license) for projects that would be located 

at existing dams or within conduits as long as these projects meet specific criteria. Licenses 

are generally issued for terms of between 30 and 50 years, and are renewable. Exemptions 

arc perpetual, and thus do not need to be renewed. 

Congress has established two types of exemptions. First, section 30 of the FPA 

allows the Commission to issue exemptions for projects that use, for generation, the 

3 
26 


hydroelectric potential of manmade conduits that are operated for the distribution of water 

for agricultural, municipal, or industrial consumption, and not primarily for the generation 

of electricity. Conduit projects can have a maximum capacity of 40 megawatts and are not 

subject to ;-..Jational Environmental Policy Act of 1969 (NEPA) review. Second, in section 

405(d) of the Public Utility Regulatory Policies Act, as amended by the Hydropower 

Regulatory Efficiency Act of 2013, Congress authorized the Commission to grant 

exemptions for small hydroelectric power projects having an installed capacity of up to J 0 

megawatts. To qualify for this type of exemption, a project must add hydroelectric capacity 

to and be located at an existing dam that does not require construction or the enlargement of 

an impoundment, or must add hydroelectric capacity that uses the hydropower potential of 

a natural water feature, such as a waterfall. Both types of exemptions are subject to 

mandatory fish and wildlife conditions provided by federal and state resource agencies. 

Under the provisions of the Hydropower Regulatory Erticiency Act of2013, a 

qualifying conduit facility does not need a license or exemption from the Commission if the 

facility meets the following requirements: (I) the non-federally owned conduit on which 

the facility is located operates for the distribution of water for agriculturaL municipal, or 

industrial consumption, and not primarily for the generation of electricity; (2) the facility 

generates electric power using only the hydroelectric potential of the conduit; (3) the 

facility has an installed capacity that does not exceed 5 megawatts; and (4) the facility was 

not licensed or exempted from the licensing requirements ofPmi I of the FPA on or before 

4 
27 


the date of enactment of the 2013 Act. To date, 83 projects have qualified under these 

provisions. 

The Commission has established three licensing processes, and allows applicants to 

request the process that it believe to be best suited to its individual proceedings. The 

integrated licensing process (ILP) frontloads issue identification, and decisions on 

information needs to the period before an application is filed, and is suited to complex or 

controversial cases. The alternative licensing process (ALP) allows participants significant 

ilcxibility in tailoring the licensing process in a manner that can work well in individual 

cases. The traditional licensing process (TLP) typically works best for less complex or 

controversial projects, and is the process used for exemptions. The Hydropower Regulatory 

Efficiency Act of 2013 required the Commission to investigate the feasibility of a two-year 

licensing process, from the beginning of pre-filing to Commission action on the license 

application. Two applications were filed under this provision for this program and one 

qualified-- an application for the 5-mcgawatt Kentucky River Lock and Dam No. 11 

Project. The two-year process for the project began in May 2014 and the Commission 

issued a license for the project on May 5, 2016. The Commission held a workshop to 

review the two-year process on March 30, 2017, and Commission staff is preparing a final 

report on the two-year process, due to Congress May 29, 2017. 

The Commission's hydropower processes give stakeholders the opportunity to 

participate in collaborative, transparent public proceedings, where all significant issues are 

identillcd and studied. Commission staff develops a detailed, thorough environmental 

5 
28 


analysis that addresses matters of concern to interested entities and gives stakeholders 

numerous oppmiunities to provide the Commission with information, comment, and 

rceommcndations. While the Commission's regulations establish detailed procedures. 

Commission staff retains the ability to waive the regulations or to revise the procedures 

where doing so will lead to the more efficient and cost-effective processing of an 

application 

It is important to note that in many instances, it is applicants, federal and state 

agencies, and other stakeholders that determine project success, and control whether the 

regulatory process is short or long, simple or complex. For example, where a developer 

picks a site that raises few environmental issues and works early to build a rapport with 

stakeholders, and where agencies and other stakeholders commit to fully and timely 

engaging in the regulatory process, project review can move very quickly. In these 

instances, licenses can be issued in two years or less. 

The location of a proposed project and its mode of operation may be at least as 

significant as project size: a small project that alters the natural t1ow of a river in a 

sensitive area may be harder to license than a larger, run-of-river project on a site where 

there are few environmental issues. 

Sections 4(e) and lO(a) of the FPA require the Commission, in making licensing 

decisions, to consider and balance many eompeting developmental and environmental 

interests. Each licensed project will have among its authorized purposes a variety of 

6 
29 


beneficial public uses. Among the project purposes specified in Section 10 (a) (1) and 

Section 4 (c) are: waterpower development, the adequate protection, mitigation, and 

enhancement of fish and wildlife, inigation, flood control, water supply, recreation, and 

energy conservation. 

When a license is issued, a project boundary is established to include the lands, 

waters, works, and facilities that the Commission identities in the license as composing the 

licensed project. Fee title to lands within the boundary can be owned by someone other 

than the licensee, such as federal, state, and private entities, as long as the licensee holds 

sufficient property interests (e.g., flowage easements) to carry out project purposes. The 

issuance of a license and the establishment a project boundary do not change existing 

property rights. 

Statutory requirements give other agencies a significant role in the licensing process. 

thus limiting the Commission's control of the cost, timing, and efticiency oflicensing. For 

example, if a project is located on U.S. lands, such as a national forest, section 4(e) of the 

FP A authorizes the federal land managing agency to impose mandatory conditions to 

protect those lands. Further, section 18 of the FPA gives authority to the Secretaries of the 

Departments of the Interior and Commerce to prescribe fish ways. For exemptions, section 

30( c) of the FPA allows federal and state agencies to impose conditions to protect fish and 

wildlife resources. In addition, section 40l(a)(l) of the Clean Water Act precludes the 

Commission from licensing a hydroelectric project unless the project has first obtained state 

7 
30 


water quality certification, or a waiver thereol~ and requires the Commission to adopt all 

conditions contained in a certification. 

The Commission also must ensure compliance with other statutes, each containing 

its own procedural and substantive requirements, including: the Coastal Zone Management 

Act, the Endangered Species Act, the Wild and Scenic Rivers Act, and the National 

Historic Preservation Act. 

Compliance with these requirements can involve a variety of processes ancillary to 

licensing, and may be outside of the Commission's control, thus lengthening the time 

required to obtain a license. Even after the Commission staff has completed analysis of a 

hydroelectric project and is ready to take final action on the application, the case may he 

delayed, sometimes for years, until the issuance of a water quality certification under the 

Clean Water Act, or a biological opinion pursuant to the Endangered Species Act. Over a 

third of all pending hydropower re-license applications before the Commission arc awaiting 

these approvals from other agencies. By contrast, only a few applications for original 

licenses arc delayed for this reason. Further, mandatory conditions, which the Commission 

may find to be inconsistent with the public interest, can result in increased costs or reduced 

power production and significantly affect the economic viability of a project. 

In addition to licensing and relicensing projects, and issuing exemptions, the 

Commission is also responsible for ensuring compliance with license and exemption 

8 
31 


conditions during the life of regulated projects, and maintains a strong, efTective program of 

inspecting jurisdictional dams to ensure that human life and property are kept safe. 

B. Project Relicensing and License Administration Workload Through FY 2030 

Commission staff currently has a full workload processing original license, 

relicense, and exemption applications, as well as its compliance and dam safety work. The 

relicensing workload, in particular, has staried to increase and will continue to remain high 

well into the 2030s. Between FY 2017 and FY 2030, about 480 older projects, which 

represent about 45 percent of our licensed projects and one third of licensed capacity under 

Commission jurisdiction, will begin the pre-filing consultation stages of the relicensing 

process. Once new licenses are issued, the license implementation phase begins. Currently, 

the Commission's license compliance and administration division is processing about 4,000 

license and exemption-related filings per year. This will substantially increase 

commensurate with the increased rclicensing workload. 

Many projects now beginning reliccnsing were first licensed in the early to 

mid-1980s, prior to enactment of modern environmental standards, including those of the 

Electric Consumers Protection Act of 1986, which directed the Commission, when issuing 

licenses, to give equal consideration to power and development, energy conservation, fish 

and wildlife, recreational opportunities. and other aspects of environmental quality. 

Commission staff is dedicated to making the regulatory process as timely and costefTective as possible, especially in consideration of the number of projects that will be 

undergoing the relicensing process for the first time. Staff is concerned that adding 

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additional complexity and required procedures to the Commission's review could hinder 

the timely processing of this large workload. 

II. !lydropowcr Policy Modernization Discussion Draft 

The discussion draft of the Hydropower Policy Modernization Act of2017 has the 

commendable goals of improving administrative efficiency, accountability, and 

transparency; promoting new hydropower inti·astructurc; requiring balanced, timely 

decision making; and reducing duplicative oversight. Shared decision-making in the 

regulation of hydropower projects has complicated the Commission's effmis to timely and 

efficiently process applications, in particular, large, complex relicense applications in 

certain regions. Therefore, I support efforts to streamline the hydropower review process. 

I will now comment on specific sections of the discussion draft. 

A Discussion Draft Section 2. llyclropower Regulatory Improvements 

Section 2 sets forth the sense of Congress that hydropower is an essential renewable 

resource and modifies section 203 of the Energy policy Act of 2005 to include hydropower 

in the definition of renewable energy. Hydropower development has been adversely 

effected by the fact that hydropower is not always defined as renewable. I therefore 

support this provision. 

1. Preliminary Permit Terms 

Section 2 would amend FPA section 5 to increase the maximum term of a 

preliminary permit from three to four years, to increase the allowable extension of a permit 

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term fi·om two additional years to four additional years, and to allow a second four-year 

extension if the Commission determines that extraordinary circumstances warrant doing so. 

The purpose of a preliminary permit is to preserve the right of the penn it holder to 

have the first priority in applying for a license for the project that is being studied. For new 

projects, the Commission's pre-filing license application processes generally take one to 

three years to complete. While a permittee holds a permit for a site, any other interested 

entity is barred from filing a license application for a project at the site. For this reason, the 

Commission expects pennittees, during the course of the permit, to diligently carry out 

pre filing consultation and study development leading to the development of a license 

application, and where the permittee is not ready to begin preparing the license application 

due to unfavorable economic or other conditions, to release the site for possible 

development by others or for other purposes. The public interest in competition generally 

precludes allowing developers to "site bank." However, there arc instances in which a 

developer cannot move forward with a project for reasons beyond its control. Accordingly, 

allowing the Commission to extend permit terms where doing so is warranted will give the 

Commission additional 11exibility. 

ii. Commencement of Construction Deadlines 

Section 2 would allow the Commission to extend the deadline for the 

commencement of project construction for eight years. Section l3 of the FPA currently 

allows the Commission to grant such an extension for no more than two years. If a licensee 

docs not timely commence construction, section 13 requires the Commission to terminate 

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34 


the license. As discussed with respect to preliminary permits, while the public interest 

generally favors prompt development of hydropower sites, there are times when a 

developer cannot meet the statutory deadline for reasons it cannot control. The proposed 

revision would give the Commission the l1exibility to deal with such cases, and would 

avoid licensees having to seek relief from Congress, as is currently their only option. 

iii. Consideration of Relicensing 

Next, Section 2 would amend FPA section IS( e) to require the Commission when 

determining the license term on relicensing, to consider project-related investments by the 

licensee over the term of the existing license, including any annual licenses, that resulted in 

new development, construction, capacity, efficiency improvements, or environmental 

measures, but which did not result in the extension of the term of the license by the 

Commission. 

The Commission is aware that this issue is a matter of concern for hydropower 

licensees, and has issued a notice of inquiry seeking public comment on the Commission's 

policy for setting license terms. The Commission received 42 comments in response to the 

notice, and is currently reviewing them. 

iv. Mandatory Conditions 

Finally, section 2 of the discussion draft would amend FPA section 33 of the Federal 

Power Act to tighten the standards under which the Secretaries of the Interior, Agriculture, 

and Commerce establish mandatory conditions and to delete administrative requirements 

regarding those conditions. As these proposed amendments to section 33 relate to other 

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portions of the discussion draft dealing with trial-type hearings regarding mandatory 

conditions, I will address these matters below. 

B. Discussion Draft Section 3. Hydropower Licensing and Process Improvements 

i. Section 34 Process Coordination 

Section 3 of the discussion draft would amend the FPA to add section 34 

establishing the Commission as the lead agency for purposes of: ( 1) coordinating all 

applicable federal authorizations; and (2) complying with NEPA for hydroelectric project 

licensing, license amendments, and exemptions under part I of the FPA. The new section 

would among other things, require the Commission, in consultation with federal, state, and 

local agencies and Indian tribes with applicable federal authorization responsibilities, to 

establish a process for setting a schedule follmving the filing of an application under part I 

of the FP A for the review and disposition of each federal authorization. Once established, 

the Commission would use the process to establish individually and in consultation with 

said agencies and Indian tribes, a schedule for each application submitted under this part. 

The schedule, among other things, would have to be consistent with any federal and state 

deadlines established under federal and state law for the federal authorizations. 

FPA section 34 would further: (I) require all other federal and state agencies and 

Indian tribes considering an aspect of an application for federal authorization to coordinate 

with the Commission and comply with deadlines established by the Commission; 

(2) require that the Commission identify any federal or state agency, local government, or 

Indian tribe that may consider an aspect of an application for federal authorization, and 

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provide them with the oppmiunity to pmiicipate in the process of reviewing an aspect of an 

application for a federal authorization; (3) require the notified agencies and Indian tribes to 

submit a response acknowledging receipt of the notice to the Commission within 30 days; 

and (4) require the notified agencies and Indian tribes to, as early as possible, share with 

the Commission and applicant, any issues of concern relating to the federal authorization 

that may delay or prevent the granting of such authorization, including any issues that may 

prevent the agency or Indian tribe from meeting the Commission-established schedule. For 

purposes of coordinating the federal authorizations for each project, the section would 

require the Commission to consult and make recommendations to the agencies and Indim1 

tribes on the scope of the environmental review. Finally, under certain conditions, the 

Commission could grant an agency or Indian tribe request for an extension of time of no 

more than 90 days after the deadline set forth in the schedule. 

I support the goal of this section to bring certainty and timeliness to the licensing 

process. As I discussed earlier, federal authorizations that most commonly delay the 

Commission's ability to make a licensing decision in a timely manner are Clean Water Act 

water quality certifications and Biological Opinions under the Endangered Species Act. 

Both statutes include deadlines for agency action, which the Commission would have to 

incorporate into its schedule. Unfortunately, these deadlines can be extended by the federal 

authorizing agency and the applicant, as when an applicant for the federal authorization 

withdraws and rcfilcs its request for the purpose of reselling the clock or where the federal 

agency delays the start of the clock by stating that existing information is inadequate for it 

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to make its decision. It is worth noting that the majority of the cases that are delayed for 

lack of required mandatory conditions are relicense applications for large, complex 

projects. 

I am concerned that proposed new FPA section 34 could increase the complexity and 

length of the licensing process, while giving the Commission the added responsibility of 

policing other entities' compliance with statutory deadlines, without giving the 

Commission the authority to enforce the schedule that it establishes. This could have the 

unintended consequence of limiting the statTs ability to expedite the processing of 

applications for new projects in order to comply with the proposed additional 

administrative procedures. I also note that the Commission already serves as the lead 

agency in virtually all hydropower proceedings and sets schedules for those proceedings. 

It also may be the case that the procedures contemplated by this section are not 

appropriate for license amendments and for exemptions, which tend to be simpler matters. 

The vast majority of amendments arc processed in less than six months, and often less, 

although more complex amendments, such as those that significantly increase project 

capacity, may take additional time, given the breadth of potentially-affected resources and 

agencies and other stakeholders. Thus, should any amendments be included in the final 

bill, we recommend that it be limited to capacity amendments to avoid adding complexity 

and time to most of the amendments. Like amendments, exemptions arc typically simpler 

and take much less time than licenses to process. In consequence, Congress could consider 

limiting the proposed new procedures to relicenses and capacity amendments. 

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C. Section 35- Trial-type Hearings 

Section 3 of the discussion draft would add to the FPA a new section 35, dealing 

with trial-type hearings regarding mandatory conditions and fishways imposed under 

sections 4( e) and 18. respectively. These hearing arc currently the responsibility of the 

agencies that impose the conditions: the draft would shift that responsibility to the 

Commission. 

As Commission stafftcstitled regarding the prior discussion draft, licensing 

stakeholders, including licensees, have informed us that trial-type hearings under the FPA 

in its current form require substantial time, money, and staff resources. For these reasons, 

parties have instead chosen to forego the hearings in favor of negotiating alternative terms, 

conditions, or prescriptions. Shifting oversight of these trial-type hearings to the 

Commission would not eliminate the substantial expense associated with such hearings, but 

could encourage the proliferation of them. This could not only result in additional expense 

and delay, but could also divert Commission resources from processing applications to 

dealing with hearings, with a negative impact on efficiency. 

As an alternative, Congress could consider eliminating trial-type hearings, thereby 

returning to the agencies the responsibility of supporting their conditions with substantial 

record evidence. 

D. Section 36- Licensing Study Improvements 

The discussion draft would amend the FPA to add a new section 36 requiring the 

Commission, in consultation with federal and state agencies and interested members of the 

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public, to compile and maintain a record of studies representing the full range of 

environmental effects of a hydropower project and reJ1ccting the most recent peer-reviewed 

science. The Commission, other federal, state, and local governments, and Indian tribes 

would be required, to the extent practicable, to use the study record to support their actions 

on their associated federal authorizations. If the agency or Indian tribe would require an 

applicant to perform an alternative study, the agency or Indian tribe would be required to 

demonstrate that the study would not be duplicative of an existing study on the record. 

The Commission is required to base its decisions on substantial evidence, which 

generally includes studies performed by applicants, as well as those put into the record by 

other parties, and peer-reviewed material gathered by Commission staff. Commission staff 

accepts studies performed in other proceeding or regarding other projects, where it is dear 

that those studies are applicable to the project under review. I am uncertain whether 

additional, more formal procedures will improve this process. 

Section 36 would also require that the Commission, in consultation with federal, 

state, and local agencies and Indian tribes, develop comprehensive plans, at the request of 

project applicants, on a regional or basin-wide scale in basins or regions in which there are 

multiple projects and applications for projects. The Commission would be required to 

conduct or arrange for the conduct of regional or basin-wide environmental studies, with 

the participation of at least two applicants. Any study conducted under this section would 

only apply to a project for which the applicant participates. 

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The Commission has a policy of, wherever possible, coordinating the review of 

projects located in a river basin and conducting appropriate cumulative effects analyses as 

part of its NEP A responsibility. However the Commission itself does not have the 

resources or funding to conduct basin-wide studies and, given that the Commission's 

budget is funded by charges to regulated entities, performance of studies by the 

Commission could add significant new costs to be borne by licensees and, ultimately, 

ratepayers. If the Commission is required to implement this provision, additional direction 

from Congress on the type of comprehensive plan and basin-wide studies it envisions 

would be helpful. 

E. Section 37 --License Amendment Improvements 

The discussion draft would amend the FPA to add a new section 37 requiring two 

rulcmakings related to license amendments. The first rulemaking, under section 37(a), 

would create a new class of amendments called "Qualifying Project Upgrades" and the 

second rulemaking, under section 37(b), appears to address all other license amendments. 

Qualifying Project Upgrades could include capacity increases, efficiency improvements, 

and other enhancements to hydropower generation, as well as environmental protection, 

mitigation, or enhancement measures to benefit fish and wildlife, cultural resources, and 

recreation. Qualifying Project Upgrades would be limited to those amendments that are 

unlikely to adversely affect threatened or endangered species or critical habitat; are 

consistent with comprehensive plans; have insignificant or minimal cumulative adverse 

effects; and are unlikely to adversely affect water quality and water supply. Section 37(a) 

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sets forth specific steps and timclines that the Commission and other federal agencies, state 

agencies, and Indian tribes would have to follow to determine if an amendment meets 

specified criteria and for issuing public notices, providing comments, and issuing any other 

needed federal authorizations. Section 37(b) docs not specify specific steps and timelines 

but instead. gives the Commission broad authority (after soliciting public comments) to 

develop the most efficient and expedient process for approving amendments for different 

categories of amendments. 

Regarding the provisions in 3 7(b ), Commission staff CUJTently adapts the processing 

of amendments according to the scope of the proposal, potential impacts, and other relevant 

factors. This l1exibility has facilitated the expeditious nature of the vast majority of 

amendments. Developing new procedures for specit1c categories of amendments could be 

difficult and could reduce the existing flexibility. 

The defined steps and schedules required by the proposed section 37(a) are in 

significant part currently commonly used in Commission proceedings. However, the 

defined schedules in the draft document could present some challenges. For example, 

while the draft requires the Commission to make a preliminary determination of 

qualit1cation within 15 days, that determination must be based upon consultation under the 

Endangered Species Act consultation, which can take up to 135 days (and, as discussed 

above, often much longer). Moreover, the proposed procedures could add to processing 

time for minor amendments, such as requests to add a new boat ramp. modify a 

transmission line to make the line raptor-safe, or rewind the project's generators. These 

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minor amendments can often be processed in two to four months, but might be "qualified" 

under section 37(a), and thus take longer to resolve. As discussed above, Congress may 

wish to limit this provision to capacity amendments, which generally take longer. It is also 

the case that these more complex amendments would have potential significant 

environmental consequences, and thus not be eligible for treatment as "qualified." Further, 

the requirements of Clean Water Act, National Historic Preservation Act, Coastal Zone 

Management Act, and Endangered Species Act, may not be consistent with the proposed 

process. Finally, I note that the standard for amendment conditions other than those 

necessary for public safety (a condition must be reasonable, economically feasible, and 

essential) sets a high bar, and the resources that may be protected do not include irrigation, 

i1ood control, historic properties, and recreation, matters that Congress has otherwise 

directed the Commission to consider. 

Ill. Promoting Hydropower Development at Existing Dams Act 

The discussion draft proposes adding a section to the FPA allowing the Commission 

to, after consultation with certain federal and state agencies and Indian tribes, issue 

exemptions for qualifying hydroelectric facilities to be located at existing, non-powered 

dams. The exemption would include any terms and conditions that the Commission 

determines arc (1) necessary to protect public safety and (2) reasonable, economically 

feasible, and essential to prevent loss of or damage to, or to mitigate adverse effects on, fish 

and wildlife resources directly caused by the construction and operation of the qualifying 

facility. [n order to qualify, the facility must among other things: (I) be constructed, 

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operated, and maintained for electric generation; (2) be located at a qualifying non-powered 

dam that is operated for the control, release, or distribution of water for various purposes 

other than electric generation and has been certified by an independent consultant approved 

by the Commission as complying \vith the Commission's dam safety requirements; and (3) 

not change the existing t1ow release regime at the qualifying non-powered dam. The 

jurisdiction of the Commission under the exemption for the qualifying facility would be 

limited to the qualifying facility exempted and any associated primary transmission line, 

and would not extend to any conduit, dam, impoundment, shoreline or other land, or any 

other project work associated with the exempted qualifying facility. Annual charges for 

such facilities would be established within ISO days of enactment of this section after 

notice and opportunity for public comment. 

The development of hydropower at existing, non-powered dams is a laudable 

objective, because such projects present the opportunity to development a renewable 

resource with relatively small environmental impacts, a goal shared by many stakeholders. 

I am concerned, however, that the fact that the bill contemplates that the Commission's 

jurisdiction would not extend to the dam and impoundment at qualifying facilities would 

leave the Commission without the ability to ensure that the public was not at risk for 

hazards arising from project dams or reservoirs. Further, limiting the environmental 

conditions to those that provide for the protection of fish and wildlife resources would leave 

unaddressed potential impacts on other resources, including inigation, J1ood control, water 

supply, recreation, and other matters. In addition, the discussion draft appears to 

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contemplate that the Commission treat such projects as it treats those projects at federal 

facilities where the Commission only licenses the facilities added to facilitate hydropower 

generation and the federal owner is responsible for the safety of the dam. If that Congress' 

intent, it might be appropriate to limit this provision to projects at dams owned by state 

agencies with an established dam safety programs. 

IV. Promoting Closed-Loop Pumped Storage Hvdropowcr Act 

Pumped storage projects offer the oppm1unity to store energy for use when it is 

needed. This makes these projects a valuable potential resource, one that can balance 

generation from other renewable projects, as well as traditional projects. Closed-loop 

projects, which do not regularly require the intake of or supply of water, can have fewer 

operational effects than other types of pumped storage. The goal of making the process of 

reviewing closed-loop projects as e11icient as possible is a positive one. 

The discussion draft would prohibit the inclusion of conditions in licenses for 

closed-loop pumped storage projects other than those necessary to protect public safety or 

are reasonable, economically feasible, and essential to protect fish and wildlife. As with 

the previous draft, I note that conditions relating to resources such as irrigation, water 

supply, recreation, and other considerations would be precluded. [ also note that the most 

recent pumped storage project that the Commission licensed, the 400-MW Gordon Butte 

project, was processed in 14 months. 

In addition, the new section would allow applicants, even those that claimed 

municipal preference, to add other entities to preliminary permits and to transfer licensees 

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to non-municipal entities. This would reverse, as to closed-loop pumped storage projects, 

the Commission's policy against ''hidden hybrids." This policy was established to prevent 

municipalities, which have a statutory preference over non-municipalities, from 

manipulating the licensing process by using municipal preference to obtain a license or 

permit in competition with a non-municipal entity, and then transferring the license or 

permit to a third party. Should Congress wish to allow the addition of new entities to 

permits or licenses without disadvantaging non-municipal competitors, Congress could 

eliminate municipal preference as to closed-loop pumped storage projects, thereby leveling 

the playing field. 

V. Promoting Small Conduit Hydropower Facilities Act of 2017 

As discussed above, pursuant to the Hydropower Regulatory Efficiency Act of 2013, 

a qualifying conduit facility can be exempt from Commission jurisdiction if it meets 

specified criteria. The qualifying conduit facility program has been effective. 

Under the 2013 Act, not later than 15 days from the date of a notice of intent for a 

qualifying conduit, the Commission must make an initial determination as to whether the 

facility meets the qualifying criteria, and if so, publish public notice of the notice of intent. 

If no entity contests whether the facility meets the qualif)'ing criteria within 45 days, the 

facility is deemed to meet the criteria. If the qualifications arc contested, the Commission 

makes a prompt determination. 

The discussion draft would add provisions to Section 30(a) of the Federal Power Act 

for projects that meet the same criteria, but do not exceed 2 megawatts. For such projects, 

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there would be no public notice provisions, and the facility would be deemed to qualify 

upon the affirmative determination by Commission staff, or the failure of the Commission 

to act, within 15 days of the notice of intent. The current provisions would remain 

applicable for facilities between 2 and 5 megawatts, 

Since the 2013 Act, 83 projects have qualified and not been required to be licensed 

or exempted by the Commission. The entire process has on average taken just over 2 

months, including the required 45-day public notice period. The Commission has rarely 

received comments that have bearing on whether the facility qualifies. The provisions in 

the discussion draft would expedite some projects, but might cause confusion because there 

would be two qualifying conduit provisions. To provide benetlts to a greater range of 

projects, Congress should consider shmiening the 45-day notice period for all qualifying 

projects, rather than creating two classes. Congress may also wish to consider whether 

larger conduit projects should be eligible for exemption from Commission jurisdiction. 

VI. The Supporting Home Owner Rights Enforcement Act 

The Supporting Henne Owner Rights Enforcement Act would amend section 4(e) of 

the FPA to add "minimizing infringement on the useful exercise and enjoyment of property 

rights held by non-licensees'' to the list of matters to which the Commission must give 

equal consideration, and would amend FPA section 1 O(a)(l) by adding a similar provision 

in the listing of matters that the Commission must consider in determining that a project is 

consistent with comprehensive development. The act would also add a new provision 

requiring licensees, in developing recreational resources, to consider private land ownership 

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as a means to encourage and facilitate private investment and increased tourism and 

recreational use. 

The Commission includes in licenses only those lands that are necessary for project 

purposes: those on which project structures are located, those on which project operation, 

such as flowage, occur, and those that are needed to carry out project purposes, such as 

public recreation. The issuance of a license or approval of a shoreline management plan 

does not change property ownership, and there arc many private landowners who own 

property that is within a project boundary, just as there are privately-owned "islands'· 

within some national forests. In the absence of a deeded property right of some kind, a 

licensee cannot enter into or interfere with private lands. 

In addition, standard license conditions authorize licensees to allow private 

landowners to usc licensee-owned lands, so long as the use is consistent with project 

purposes. Thus, for example, many licensees allow homeowners to maintain walkways 

across the licensee's land or to build private boat docks. A licensee cannot allow a private 

landowner to usc the licensee's lands in such a way as to preclude the fulfillment of project 

purposes, as by building a fence along a walkway on the licensee's land that would prevent 

the public from entering the project shoreline. The Commission encourages its licensees to 

be good neighbors to landowners. local communities, and other stakeholders. 

VII. Commencement of Construction Extension Bills 

As noted above, section 13 of the FPA allows the Commission to set a deadline for 

the commencement of the construction of a licensed hydropower project no later than two 

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years from licenses issuance, and allows the Commission to grant a single two-year 

extension, If a licensee docs not timely commence construction, the Commission must 

terminate the license. When this occurs, licensees must tum to Congress for relief. The 

Commission has a long-term policy that bills that allow the Commission to extend to 

deadline no more than 10 years from the date of license issuance arc consistent with the 

Commission's policy against site banking. As noted above. the Hydropower Policy 

Modernization Act of 2017 would allow the Commission to extend the deadlines for start of 

construction of hydroelectric projects for up to eight years, thus obviating in many cases the 

need to seek legislation like the bills I discuss below. 

A. H.R. 446 

On March 13, 2012, the Commission issued an original license for Jordan 

Hydroelectric Limited Partnership, Virginia's proposed 3.7-megawatt Gathright Dam 

Hydroelectric Project No. 12737. to be located at the U.S. Corps of Army Engineers' 

Gathright Dam, on the Jackson River, near Falling Springs, in Alleghany County, Virginia. 

The license required the company to commence project construction within two years of 

the date of the license, or by March 13, 2014. At the licensee's request, the Commission 

granted the maximum allmvablc two-year extension of the commencement of construction 

deadline, thus making the deadline March 13, 2016. The licensee did not commence 

construction by the extended deadline. Commission staff understands that the licensee has 

been working with the U.S. Army Corps of Engineers to obtain a 408 permit, which is 

needed before construction can begin. 

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H.R. 446 would authorize the Commission to extend, for six years from the date of 

expiration of the extension issued by the Commission, the commencement of construction 

deadline for the Gathright Dam Project, thus extending to 10 years from the date of 

licensing, and to reinstate the project license, if necessary. The bill is consistent with the 

Commission's policy. 

B. H.R. 447 

On January 27, 2012, the Commission issued an original license for Jordan 

Hydroelectric Limited Partnership, Virginia's proposed 3.0-mcgawatt Flannagan Dam 

Hydroelectric Project No. 12740, to be located at the U.S. Corps of Army Engineers' John 

W. Flannagan Dam and Reservoir, which is on the Pound River, near the Town of 

Clintwood, in Dickenson County, Virginia. The license required the company to 

commence project construction within two years of the date of the license, or by January 

27, 2014. At the licensee's request, the Commission granted the maximum allowable 

two-year extension of the commencement of construction deadline, thus making the 

deadline January 27, 2016. The licensee did not commence project construction by the 

extended deadline. Commission staff understands that the licensee has been working with 

the U.S. Army Corps of Engineers to obtain a 408 permit. 

II.R. 447 would authorize the Commission to extend, for six years from the date of 

expiration of the extension issued by the Commission, the commencement of construction 

deadline for the Flannagan Dam Project, thus extending to 10 years from licensing, and to 

reinstate the license, if necessary. This bill is also consistent with Commission policy. 

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C. H.R. 2122 

On April 30, 2012, the Commission issued an original license for Fairlawn 

Hydroelectric Company, LLC's proposed 14-megawatt Jennings Randolph Hydroelectric 

Project No. 12715, to be located on the Corp's Jennings Randolph Dam and Lake, on the 

North Branch Potomac River in Ganett County, Maryland, and Mineral County, West 

Virginia. The license required the company to commence project construction within two 

years of the issuance date of the license, or by April30, 2014. At the licensee's request, the 

Commission granted the maximum allowable two-year extension of the commencement of 

construction deadline, thus making the deadline April30, 2016. On September 22, 2016, 

the Commission granted a two-year stay of the commencement of construction deadline of 

the license, or until April28, 2018. Commission staff understands that the licensee is 

working with the Corps to obtain construction authorization under section 14 the Rivers 

and Harbors Act of 1899. 

II.R. 2122 would authorize the Commission to extend, for up to three consecutive 

two-year periods from the date of expiration of the extension issued by the Commission, 

the commencement of construction deadline for the Jennings Randolph Project, 10 years 

from license issuance, and to reinstate the license, if necessary. This bill is consistent with 

Commission policy. 

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VIII. Conclusion 

This concludes my remarks on the draft hydropower bills drafts. Commission staff 

would be happy to provide technical assistance as you move forward with your 

consideration of this legislation. I would be pleased to answer any questions you may have. 

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Mr. OLSON. Thank you, Mr. Katz, for your testimony, and we will 

now move to the question-and-answer session of the hearing. I will 

begin the questioning by recognizing myself for 5 minutes. Again, 

welcome, Mr. Turpin and Mr. Katz from Texas 22. 

I am very concerned about the lack of a quorum at FERC and 

the negative impact it could have on pending pipeline projects. The 

administration and the Senate have to make this a priority. My 

question is how is the Commission handling the workload? What 

types of actions have been delegated to staff which requires signoff from the Commissioners? Mr. Turpin? 

Mr. TURPIN. Thank you. The workload in a large part for the 

things that are delegated, such as the need for reviews and the 

processing of applications, continues unabated. Staff is working as 

hard as it ever has even when there was the quorum. Issues, there 

are issues related to gas projects where the offices don’t have a lot 

of delegated authority and staff is preparing those drafts for consideration when there is a quorum. 

And on the hydro side, there is a bit more delegated authority 

and there are more orders and decisions that can be made on 

uncontested cases. 

Mr. OLSON. Thank you, sir. Another question for you, sir, Mr. 

Turpin. A few years ago, GAO analyzed major pipeline projects. 

They found that you can take up to 2.5 years for a FERC certificate. It averaged 568 days. Actually that is about the study in the 

hearing last Congress. 

So if you haven’t read the study, the report, recently, I would like 

to know even if you haven’t, what are the biggest sources of friction 

there are for pipeline approval, and number two, what have you all 

changed in recent years to make this process faster? 

Mr. TURPIN. I haven’t read that study. In looking back at the 

data for all issuances for the Commission since 2009, on average 

it is 88 percent of the projects get issued within 1 year. Of course 

that encompasses a lot of the projects that are very small in scope 

and therefore move faster. The larger and more complex a project 

the more time it tends to take just as a function of the higher number of stakeholders that are engaged and the more complex issues 

that are raised. 

In terms of what are the points of friction, in general really it 

is the development of the information. As Mr. Katz alluded to with 

hydro, a site selection on that is a major determining factor and it 

is the same for pipelines. The route selection is a very large factor 

and which is why the Commission developed the pre-filing process. 

It allows the applicants to come in and engage the stakeholders 

well before they have sort of finalized the route to get input on 

where the best route may be that addresses all the issues. And that 

allows them then, once they do file the application, to move forward. 

But it is the development of that information along the route as 

well as the information related to the construction and design of 

the facilities that usually are the stumbling block for the regulating 

agencies. 

Mr. OLSON. Thank you. Mr. Katz, I am not going to leave you 

out of the questioning. What are the opportunities to expand the 

53 

Nation’s hydropower capacities, specifically what is the greatest 

impediment to installing power generators on nonpowered dams? 

Mr. KATZ. I think there are significant opportunities and I think 

as you alluded to the greatest opportunities or at least the simplest 

opportunities are adding capacity to nonpower dams including Government dams, those operated by the Bureau of Reclamation and 

the Army Corps of Engineers. I think that the greatest impediment 

to that are failures to obtain consensus among the various stakeholders where people are comfortable. 

And for example, we have recently licensed a project in Pennsylvania where everybody was very comfortable with the project, they 

felt it was good for the environment and good for the energy distribution in the area and that was able to go through very quickly. 

Where you have stakeholders who are not comfortable and raise 

issues, whether it is State agencies, Federal agencies, or other entities, that can slow down the process radically. 

Mr. OLSON. Further question: What types of technologies are 

being developed to improve safety, efficiency, and lessen the environmental impact of hydropower, and what can Congress do to help 

further innovation? 

Mr. KATZ. I am not an engineer, so I am not expert in the types, 

but I know there are—— 

Mr. OLSON. Me neither. 

Mr. KATZ. Mr. Turpin knows more about engineering generally 

than I do, but I think Mr. Leahey and perhaps some of the witnesses who come later may be able to give you more detail. But I 

know that there is development ongoing, some of which has been 

funded by the Department of Energy to help develop fish-friendly 

turbines and other types. 

There is one new project that is using what is called the Archimedes’ screw technology which is brand new. Folks have been looking into wave and tidal energy projects. These are all new, promising technologies that can continue to be explored. 

Mr. OLSON. Thank you. My time has expired and I now I call 

upon the ranking member of the subcommittee, Mr. Rush, for 5 

minutes. 

Mr. RUSH. I want to thank you, Mr. Chairman. To Mr. Turpin, 

a recurring theme in all of these bills is that the environmental 

protection concerns are given a backseat in order to expedite applications for both natural gas pipelines and hydropower licenses. In 

your opinion, does FERC staff have the necessary expertise to determine the scope of environmental review needed to satisfy NEPA 

obligations for natural gas permits? 

Mr. TURPIN. Thank you. Thank you, sir. I think for the purposes 

of determining the Commission’s NEPA obligations, yes. Commission staff is well versed in that. We have a large staff in the Office 

of Energy Projects that are archeologists, engineers, biologists, environmental protection specialists, and with that staff we can very 

well do that job for the FERC’s needs. 

However, the NEPA, you know, even though NEPA applies to all 

Federal agencies, being a process-based statute is the process we 

all have to comply with, but different agencies with other jurisdictions might have different obligations or jurisdictional coverage and 

FERC staff is not versed in those statutes for other agencies. 

54 

Mr. RUSH. In regards to hydropower licensing does FERC have 

any statutory mandate to protect water quality, wildlife, or access 

to public lands as in the case for some of the other agencies that 

are made subordinate to FERC with this bill? 

Mr. KATZ. The Commission has the obligation under the Part 1 

of the Federal Power Act to consider all aspects of the public interest. Did I answer your question, sir? 

Mr. RUSH. No, you didn’t. 

Mr. KATZ. I am sorry. 

Mr. RUSH. Do you have any statutory mandates? 

Mr. KATZ. Yes, we do. The Federal Power Act requires the Commission to consider all aspects of the public interest. 

Mr. RUSH. All right. 

Mr. Turpin, in your opinion, does FERC currently work effectively with the other agencies throughout the natural gas application process and would altering FERC’s role from one of collaboration with other agencies to, quote, policeman, end of quote, role of 

overseeing and monitoring other agencies’ congressionally mandated duties to improve coordination and would this result in faster 

application decisions? 

Mr. TURPIN. As noted in my testimony, the FERC pre-filing process is collaborative. We engage a lot of agencies. It is the whole 

point of the approach and I think we are very effective at doing 

that. Most agencies are very willing to participate and to engage 

with staff, but they have their own resource constraints, they have 

their own statutes they have to meet, and it is those that drive 

their needs more so than the Commission’s schedule that is put 

out. 

Mr. RUSH. Well, an extension of that question is are there ever 

instances of a natural gas permitting application being delayed because an applicant has not submitted all of the necessary information, and if so, how would this legislation help expedite the process 

in those cases where agencies are not provided with timely and 

complete information necessary to perform congressionally mandated project reviews? And if you have any recommendations I 

would like to hear them in order to address this issue. 

Mr. TURPIN. The best thing in terms of generating the information is the early engagement of all the stakeholders. The earlier 

agencies can get involved and define what information needs they 

might need for their mandates the better, because that gives the 

applicant enough time to go out and find that info, develop those 

studies. 

So, you know, the pre-filing process allows that. The legislation 

encourages that same early engagement and I think that is the 

best path forward for trying to address those issues. 

Mr. RUSH. Thank you, Mr. Chairman. I yield back. 

Mr. OLSON. The gentleman yields back. The Chair now calls 

upon the gentleman from Ohio, Mr. Latta, for 5 minutes. 

Mr. LATTA. Well, thanks, Mr. Chairman, and thank you very 

much to our witnesses for appearing before us today. 

Mr. Katz, if I could ask maybe a follow-up from your earlier 

statement. You had mentioned that there was a project out in Montana, a hydro project, and there is also because of the area of 

where it was and with the selection of the site that I believe that 

55 

you said that the individual said that they were turned loose to get 

this project done. 

How often does that happen that folks out there can actually do 

something like that? And when they say get turned loose, how fast 

can that happen in the permitting and everything else to get a 

project done? 

Mr. KATZ. Sure. It is hard to give an exact time because it really 

depends on what information is provided and what the issues are. 

What I meant by that was the Commission has three licensing 

processes. Two of them, the integrated licensing process and the 

traditional license process, have fairly specific timeframes and details of things you have to do. 

There is another process called the alternative licensing process 

which allows the stakeholders to essentially set up their own licensing process the way they want to do it, and the Commission 

is always open to allowing people to do that if that is something 

that they can agree upon it. In this instance, the developer was 

very forward-looking and positive and took the reins in his own 

hands and got a lot done very quickly. 

Mr. LATTA. So how often can somebody do that alternatively? Is 

that a very frequent, infrequent? 

Mr. KATZ. It is less frequent than the other two processes, but 

it is always available. I think it is a question of what the parties 

think will work best. For example, the traditional process tends to 

work best for smaller projects because it sets forth more exact 

deadlines but has less of the collaborative, sort of going out there 

and meeting and doing a lot of stakeholder involvement, so it can 

be less expensive and easier for smaller projects and those by developers with less funding. 

The alternative process, however, can be shaped in any way that 

the stakeholders think is appropriate provided that they give the 

Commission a complete record at the end of the day. And in the 

Gordon Butte case that is exactly what they did. 

Mr. LATTA. OK. Let me follow up with you again, Mr. Katz. How 

did the permitting timelines for hydropower compare to other types 

of renewable energy developments such as wind and solar projects? 

Mr. KATZ. I think they are significantly longer. 

Mr. LATTA. Do you believe that the permitting process could be 

improved to level that playing field, and how? 

Mr. KATZ. Absolutely. 

Mr. LATTA. OK. And how would that be permitted, how would we 

level that playing field? 

Mr. KATZ. I don’t have exact prescriptions. I think some of the 

things in the legislation before us would go a ways towards doing 

that. Whatever we can do to reduce duplication to get everyone on 

the same page at the same time will help. What tends to slow 

things down are if one agency is not finished at the same time another agency is or if it feels it needs to do additional environmental 

work or other things so that then things are not sequential, or 

things are sequential—I am sorry—rather than being done at the 

same time to the extent that it can be one process that is run in 

an orderly and efficient manner that will cut down the time. 

Mr. LATTA. Would you say there is a lot of duplication in the 

Federal process then between agencies who have that duplication? 

56 

Mr. KATZ. There is some, yes. 

Mr. LATTA. Let me ask also, not to pick on you, Mr. Katz, when 

there are disputes about a potential condition, the licensing stakeholders are entitled to a trial-type hearings on the facts and the 

evidence. It is clear that the current process under the Federal 

Power Act has not worked as it has been intended. It requires so 

much time, money, and staff resources it is rarely used if ever. 

How many types of these trial-type hearings have been conducted 

to your knowledge? 

Mr. KATZ. Again Mr. Leahey may know exactly, I suspect he 

does. To my knowledge it is in the area of five or six. It is not a 

lot. Those are not conducted before the Commission. To this point 

they have been conducted before administrative law judges designated by the agencies that impose the mandatory conditions that 

are the subject of the hearing, so the Commission doesn’t have detailed knowledge about them. 

Mr. LATTA. When you say five or six, is that five or six a year 

or five or six over time? 

Mr. KATZ. I think total. Again I hesitate to look over at Mr. 

Leahey. He will know the number, but it is not a large number. 

Mr. LATTA. OK. And then, the Commission is responsible for assessing whether it would be responsible include conditions in the 

project license. Shouldn’t the Commission take the lead with these 

trial-type hearings? 

Mr. KATZ. It is possible. The bottom line though is that those 

conditions are mandatory and the Commission has no authority to 

not include them in the license. So the question whether the trialtype hearings do anything that the Commission can act upon at the 

end of the day, because as long as they are mandatory whether the 

trial is at the Commission or not it doesn’t change the result. 

Mr. LATTA. Thank you very much. And Mr. Chairman, my time 

has expired and I yield back. 

Mr. OLSON. The gentleman yields back. The Chair now calls 

upon the gentleman from California, Mr. McNerney, for 5 minutes. 

Mr. MCNERNEY. I thank the chairman. Mr. Katz, California and 

FERC entered into an Memorandum of Understanding regarding 

hydropower. Can you point to any significant benefits that have resulted from this MOU as it relates to hydropower licensing and relicensing? 

Mr. KATZ. I think that the efforts there were made to sort of 

process things in a sequential time. I know California has had 

budgetary difficulties so that the State agencies have not had the 

resources that they would like to be able to devote to all of the hydropower projects. And the sense, I think, of the MOU was to get 

things done in an orderly and sequential fashion. I think it has 

done some good in that regard. 

Mr. MCNERNEY. So it is mostly to benefit the State processes? 

Mr. KATZ. Yes, I think so. I mean, it also, I believe the MOU 

called upon to the extent possible for the environmental reviews of 

the State and the Commission to be sequential. I am sorry, I keep 

saying sequential—to be done at the same time and California did 

not have to do extra work at the end of the day, but ultimately that 

is a call for the State to make. 

57 

Mr. MCNERNEY. OK. You did use the word sequential before, but 

you meant concurrent? 

Mr. KATZ. Exactly, in this instance, yes. Concurrent reviews are 

always more efficient than sequential reviews. 

Mr. MCNERNEY. So FERC currently attempts to complete studies 

on a concurrent basis. The Hydropower Modernization Act draft 

language more or less requires concurrent studies prior to, or concurrent with preparation of the FERC environmental requirements 

from the NEPA. Is this a good approach, or what is the best approach we can take to get concurrent studies? 

Mr. KATZ. I think it is a reasonable approach. The bottom line 

is, however, that both as to State agencies and other Federal agencies, they have their statutory mandates which they need to satisfy 

and there is nothing in the current Federal Power Act or in the 

draft legislation that would preclude those agencies from taking 

the time they need and from performing additional reviews if that 

is what they feel they need to satisfy their statutory mandates. 

Mr. MCNERNEY. So you feel that concurrent requirements aren’t 

going to throw environmental protections aside or blunt them to 

some degree? 

Mr. KATZ. I did not see anything in the idea of concurrent reviews that would undercut environmental protection. 

Mr. MCNERNEY. Well, what are the areas of improvement under 

the integrated licensing process? 

Mr. KATZ. I am sorry. Could you ask the question again? 

Mr. MCNERNEY. What are areas of improvement under the ILP? 

Mr. KATZ. There is probably a variety of improvements. I think 

mainly they involve on the ground aspects rather than necessarily 

regulatory or statutory changes. I think getting people on the same 

page and getting them to reach agreement on what sort of studies 

need to be done and what the work is that is necessary to develop 

a full understanding of a hydro project is key. And in some instances folks reach that agreement and proceed very quickly and 

other instances they greatly disagree and I am not sure that there 

is really much that can be done by statute or regulation to force 

people who have different statutory authorities to agree. 

Mr. MCNERNEY. OK. How often do the licensees have to utilize 

the FPA’s authority for automatic year-to-year license extensions? 

Mr. KATZ. It is not a question of something that a licensee can 

use. What the statute provides is that if a license expires and the 

Commission has not yet been able to issue a new license then what 

is called an annual license is automatically issued, and I can’t give 

you a percentage. I would be glad to get that information back if 

you want it, but it is not unusual. 

Mr. MCNERNEY. Moving on, I have heard from a lot of stakeholders who say that agencies can improve with information sharing. Could you describe the information sharing process as it relates to the study process? 

Mr. KATZ. Sure. I mean the Commission believes in a very transparent and an open process. There is no secret information on 

hydro projects. As studies are done they are filed with the Commission. They are available to all stakeholders. Often there are study 

review meetings under the ILP, for example, where everybody sits 

down and goes over the study, discusses its merits, its demerits, 

58 

whether there is further information done. So transparency is an 

absolute key to the hydro licensing process. 

Mr. MCNERNEY. Well, could there be any value to having stakeholders support a person to person type manager dedicated to particular bases throughout the country to facilitate the processes? 

Mr. KATZ. I am not certain about that. I would have to know 

more about the proposal. 

Mr. MCNERNEY. OK, all right. My time has expired, Mr. Chairman. I will yield back. 

Mr. OLSON. The gentleman yields back. The Chair now calls 

upon the gentleman from Pennsylvania, Dr. Murphy, for 5 minutes. 

Mr. MURPHY. Thank you, Mr. Chairman. 

Mr. Turpin, the Natural Gas Act requires a Commission review 

whether a proposed interstate pipeline is necessary or desirable in 

the public interest. It also requires the Commission to set rates 

charged for interstate pipeline service to be just and reasonable. So 

let me ask another area here, does the Commission take into account jobs and economic impact as it reviews the public interest? 

Mr. TURPIN. Well, the criteria that the Commission considers— 

and it is a decision by the five, or when there are five, sitting Commissioners—are laid out in the 1999 certificate policy statement. 

My office is really focused on generating the environmental impacts 

associated with construction of a project and in gathering the data 

from the application that the applicants put forward on—— 

Mr. MURPHY. Are jobs considered at all, impact upon employment? 

Mr. TURPIN. I can’t say what each individual Commissioner considers. 

Mr. MURPHY. What about you? 

Mr. TURPIN. I don’t have a say in that. I generate the information and I pass—the NEPA document is not a decisional document. 

Mr. MURPHY. But in terms of the information generated, you 

don’t put down impact upon jobs, employment, those things? 

Mr. TURPIN. In the NEPA document there are socioeconomic 

analyses that looks at construction jobs, looks at impacts to the 

area for lodging, traffic, for those localized impacts. 

Mr. MURPHY. OK, thank you. How often has the Commission 

used its authority under Section 5 of the Natural Gas Act to review 

the rates and require prospective changes when the rates are no 

longer just and reasonable? 

Mr. KATZ. The Commission does not often do that. The Commission has in recent years proposed to look at a couple of pipelines 

under Section 5, but it is not something that occurs very often. 

Mr. MURPHY. Why is that? 

Mr. KATZ. I think the Commission has not seen instances where 

pipelines appear to be charging excessive rates. Certainly if people 

complain about it and come before the Commission and say you 

need to look at this pipeline rate because it is excessive that is 

something Commission staff would look at. As I said that is not 

Terry and my area of expertise, but I am not aware that it occurs 

very often. 

Mr. MURPHY. Are you aware in your areas of expertise looking 

at any of the things of impact, economic impact and employment 

issues too? 

59 

Mr. KATZ. If you are asking me, yes. Terry said yes, the Commission looks at all the information that is provided to it. In a case 

of if information is concerning increased employment, yes, the 

Commission would have that information before it to consider. 

Mr. MURPHY. If it is there, you are saying? 

Mr. KATZ. Yes. I mean the Commission is not in the best position 

to determine how many people a pipeline company is going to hire. 

The company is in the best position to know that and if it provides 

that type of information to the Commission then it is in the record 

for Commission consideration. 

Mr. MURPHY. But that is not something you necessarily request. 

If they provide, it you have it; if they don’t, you don’t? 

Mr. KATZ. I am not aware of the Commission’s specifically requesting that. 

Mr. MURPHY. So what I am concerned about here is, of course, 

that these are jobs, they are good-paying jobs where people are 

building pipelines whether they are the engineers, the operating 

engineers, the welders, whatever that might be, those are pretty 

valuable jobs that have initial impact upon employment longer 

term, I would say, than its maintenance of the pipeline, but the 

same thing for hydroelectric power, too. 

I mean, we look at those things as important to make sure we 

are reviewing those. Well, it is something I believe we should be 

looking at as well and hope we can get to that future. Mr. Chairman, I will hold off on other questions for now and wait for the 

next panel. Thank you. I yield back. 

Mr. OLSON. The gentleman yields back. The Chair now calls 

upon the gentleman from California, Mr. Peters, for 5 minutes. 

Mr. PETERS. Thank you, Mr. Chairman. Thank you very much 

for being here. You know, as someone who—one of the reasons I 

ran for Congress was to deal with climate change, and I am excited 

to be on this committee. I am new to it. I don’t understand why 

more people on our side of the aisle aren’t flipping out about how 

long it is taking to do hydro. It is one base load that is carbon-free 

and I just, I am interested in understanding kind of what the obstacles are. 

Let me say that one thing that I thought was interesting about 

your response to the chairman about what the obstacles are, Mr. 

Katz, is that you talked about stakeholders not environmental 

issues and that the obstacle was getting stakeholders to agree. In 

my mind as a former environmental attorney that is an extremely 

subjective kind of standard to try to reach. It is something that can 

vary greatly depending on the group of people you get in the room 

and it is also something that has got to scare the heck out of investors who are looking for some sort of certainty at the end of the 

day. 

I am not going to be able to—I am just really interested in working the problem, and again I am not going to be able to do that 

in my 3 minutes and 49 seconds with you. But I just would say 

that it seems to me that maybe we could identify some more objective criteria so that we protect rivers, we protect fish and wildlife, 

but in a way that is more objective and I think that would help 

us. Just instinctively it seems to me that that would help us save 

some time. 

60 

One thing you did say about in reaction to some of the materials 

before us is that you are concerned that some of it would add bureaucracy. And I would like to know now what in here would actually add to the bureaucracy? What is your concern that might actually slow us down? 

Mr. KATZ. Sure. And let me say in addition in response to your 

initial comments that I think it is difficult to have objective environmental criteria since every hydro site is different, but I agree 

with you that being as objective as you can is a good goal. And one 

of the things in the hydro area is that there is what we tend to 

call shared decision making. So this is not a matter where the 

Commission gets a hydro proposal, it reviews it, it approves it or 

doesn’t approve it and it is done. 

There are instances where other Federal agencies have the right 

to impose mandatory conditions; the States have the right to impose mandatory conditions under the Clean Water Act, so those are 

the things when I talk about the stakeholders. The stakeholders include those agencies that have a right to participate in the proceeding and to affect the ultimate licensing, and it is really necessary to get them on the same page to be effective. 

Now in terms of the specifics of the act, I would be glad to work 

with you and your staff on those in the future. Some of the things, 

for example one of the things that struck Commission staff in looking at these was for the provisions regarding amendments. And the 

provisions there seemed to require for all amendments that there 

be a schedule established and perhaps a Memorandum of Understanding undergone, and it has been Commission staff’s experience 

that 87 percent of amendments are approved within 6 months because they are usually minor matters. 

So while the provisions regarding the process might very well be 

very useful for larger what we call capacity amendments where 

someone is greatly increasing the capacity of a project, they would 

not necessarily be helpful in terms of the smaller work. So it is 

those sorts of things where everything is not one-size-fits-all, and 

we would want to be sure that whatever processes are created will 

be applied to those proceedings in which it makes them quicker, 

but would not be applied to those proceedings in which it would 

slow them down. 

Mr. PETERS. Let me just ask one other specific question. Is there 

a way we could speed up the relicensing of existing facilities that 

may be wearing out? Is there some reason why that takes as long 

as it does? 

Mr. KATZ. I honestly don’t have a magic answer. I don’t know 

that anyone else does or it would have been done long since. I 

know Congress—all of the stakeholders have been concerned about 

this for years. I think part of the problem is just the statutory 

structure where you need to do a thorough environmental review 

and then there are a number of authorities that have the right to 

impose conditions. 

It is very hard to do a set process. For example, under the Clean 

Water Act the Commission can’t issue a license unless it has gotten 

either a waiver of certification or a certification from the States. 

And there are some instances where the Commission has been 

completely done its work on a project and has been sitting for more 

61 

than a decade waiting for a State to act under the Clean Water Act 

and there is just flatly nothing the Commission can do about that. 

Mr. PETERS. Great. I understand. 

Mr. KATZ. Congress could change that if it wanted. 

Mr. PETERS. I was going to say fortunately we are talking about 

statutory authority right here in this room, so you are probably 

talking to the right people. And I appreciate the constraints that 

the Commission has and your answers have been very helpful to 

me. 

Mr. Chairman, thanks for the hearing, and I yield back. 

Mr. OLSON. The gentleman yields back. The Chair now calls 

upon the gentleman from Mississippi, Mr. Harper, for 5 minutes. 

Mr. HARPER. Thank you, Mr. Chairman, and thanks to you both 

being here and look forward to additional info on this very important issue. Mr. Katz, if I can ask you a couple of questions. You 

know the ownership and regulatory environment for hydro is very 

complex. Where do you see the greatest opportunities for streamlining the process to improve that transparency and efficiency? 

Mr. KATZ. Again, I think that the greatest opportunities are 

making all decision making as concurrent as possible. Any time 

you get into sequential decision making it slows things down, often 

radically slow. 

Mr. HARPER. OK, can you identify a place or places where you 

see the greatest amount of duplicative or unnecessary work, something that comes to mind? 

Mr. KATZ. I can’t say as sort of an across the board matter, but 

some States and some agencies in some cases decide that they need 

to do their own environmental review in addition to what the Commission does and that can take time. Also some of those entities 

do not time their decision making so that it syncs up with when 

the Commission is ready to act and those matters can radically 

delay—— 

Mr. HARPER. So would it help, Mr. Katz, to have FERC act as 

a lead agency to maybe issue a schedule and enforce deadlines? 

Mr. KATZ. The devil is in the details. I mean, the Commission always is the lead agency and the Commission’s regulations and in 

giving cases specific orders do set schedules. It is the enforcing the 

schedules that is hard. And that is kind of a two-edged sword, because on the one hand the Commission might like to be able to say 

you will hand in your State authorization by date X; at the same 

time States have sovereignty and to the extent that they are told 

they need to do something by a certain time, if they feel not ready 

they could always deny certification or load up on very burdensome 

conditions because they felt they didn’t have the time necessary to 

do their job. So it is a real difficult chicken-and-egg problem. 

Mr. HARPER. And do you wind up with a lot of conflict in those 

situations where that happens on a regular occasion? 

Mr. KATZ. I don’t know if it is open conflict. It is more like the 

Cold War. I know again, I hate to keep referring to Mr. Leahey, 

but I think he will tell you that there are licensees that are very 

frustrated because they have done all that they can and in many 

instances are satisfied that the Commission has done all it can, but 

projects are not ready to go forward because other entities are not 

ready to act. 

62 

Mr. HARPER. And those other entities would be State entities? 

Mr. KATZ. Some State entities, sometimes it is other Federal 

agencies. 

Mr. HARPER. OK, which if we were trying to decide between the 

two would it be primarily more responsibility on State agencies or 

other Federal agencies that you see just in generalities? 

Mr. KATZ. That is hard to say. I would suspect that Clean Water 

Act certifications are the greatest incidents of delay, but Endangered Species Act consultation also delays a number of projects. 

Mr. HARPER. You know, almost everybody would agree that you 

know, hydropower, it is clean, renewable, abundant, and I believe 

affordable. What many people don’t realize is that it does also improve the reliability of the electric grid. How does hydro help integrate intermittent renewables like wind and solar? 

Mr. KATZ. Hydro can play a very significant role in doing that 

because hydro has what is called black start capacity, so you can 

have the hydro sitting there and it turns on instantly as soon as 

you let the water flow and turn the turbines. So when you are pairing it with something like wind, which is intermittent, it can play 

a major role in balancing the grid. 

Mr. HARPER. Well, how about when there is an outage? Does 

hydro do the same to bring the grid back on line? 

Mr. KATZ. Yes, it can serve in that capacity as well. 

Mr. HARPER. All right. And how does hydro compare to other energy sources in terms of its environmental impact? 

Mr. KATZ. That is a subjective matter. But as a general matter 

it is carbon neutral so it does not have air quality impacts. There 

are those who are concerned about the impacts on aquatic resources, but with proper management and proper conditioning 

hydro can be a very benign resource. 

Mr. HARPER. So what would you say, Mr. Katz, what the greatest 

impediment to attracting capital to invest in new hydropower 

projects what would that be? 

Mr. KATZ. Again that is not my area of expertise so much as it 

is the industry, but I would say uncertainty in the time the licensing process takes. 

Mr. HARPER. OK, great. With that I will yield back, Mr. Chairman. 

Mr. OLSON. The gentleman yields back. The Chair now calls 

upon the gentleman from Texas, Mr. Green, for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman and Ranking Member. I 

want to thank our witnesses for being here. 

Mr. Turpin, it is clear from today’s hearing that FERC has a 

whole lot on your plate and currently, pipelines, LNG permitting, 

hydropower, electric reliability all fall under FERC. In addition, 

there are many in the House who would like to expand FERC’s 

permitting authorities to include oil pipelines. In your position as 

the director of the Office of Energy Projects most of these fall within your office. 

Mr. Turpin, if FERC receives a request for a natural gas pipeline 

permit within the United States, could you please describe the review process to receive a certificate of public necessity? 

Mr. TURPIN. Sure. For a line of any length, if it is especially complex or a large scope, we would encourage the applicant to follow 

63 

the pre-filing process. It is voluntary for pipelines. During that 

process, the Commission staff would try to engage the other agencies and stakeholders. 

Mr. GREEN. What other agencies is it on the Federal level? 

Mr. TURPIN. Any agencies issuing a Federal permit whether that 

is a Federal agency or a State agency, I think, on federally delegated authority. We would also reach out to State and local agencies to bring them into the process as well. The idea is to get as 

many folks under the tent at the beginning of the process when the 

applicant is still trying to design the route rather than wait, and 

by that have the greatest influence on easy changes to accommodate all the issues rather than wait until the applicant spends a 

significant amount of time and money in coming up with a project 

that then is harder to change. 

So that process at a minimum can take 6 months, but it really 

is set by the applicant. As long as they want to stay in pre-filing 

they can, and during that pre-filing process staff would engage in 

its environmental scoping processes and would be seeking comment 

from the public and any interested stakeholder about what environmental issues need to be addressed in looking at the project. 

Those issues are to be addressed by the applicant in 13 resource 

reports that must be filed with the Commission. Each of the reports covers a different resource area such as water quality or—— 

Mr. GREEN. But FERC is responsible for doing the National Environmental Policy Act enforcement; is that correct, NEPA? 

Mr. TURPIN. We are the lead agency for constructing the NEPA 

document. Yes, sir. 

Mr. GREEN. OK. What about when it crosses a U.S. border—Mexico, Canada? 

Mr. TURPIN. It is the same. Pre-filing likely would not be used 

in those cases because they are usually smaller scope projects. 

Mr. GREEN. Does FERC coordinate with the Department of State 

or Department of Defense when issuing a cross-border natural gas 

pipeline? 

Mr. TURPIN. Currently, yes. The Commission reaches out to both 

of those agencies to get their concurrence that there is not a national security interest. 

Mr. GREEN. If FERC were granted the authority to permit oil 

pipelines would the Commission follow similar procedures? 

Mr. TURPIN. I think that would be determined by the Commission. They will have to set the policies that my office would follow. 

We do have the existing program that we do for natural gas, so, 

you know, a good guess is that it would parallel that but again that 

would be set by the Commission. 

Mr. GREEN. Does the Office of Energy Projects possess the resources to handle that additional responsibility and activity, and do 

you anticipate additional needs if you permitted oil pipelines? 

Mr. TURPIN. We do have the expertise. We do have the staff. 

There haven’t been a tremendous amount of those border crossings. 

As I said in my testimony, I think over the last 10 years, we have 

done 15. I had staff look at potentially how many oil crossings 

there might be. I think we found there is somewhere in the neighborhood of 20 to 30 existing ones. So I don’t think it is a tremendous workload. I think we would have to have some additional exVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
64 

pertise for the unique aspects that are different from natural gas 

lines. 

Mr. GREEN. Oftentimes that oil pipeline is in the same easement 

that a natural gas pipeline or some other product. 

Mr. Katz, connected action has been legally defined as an action 

that is interdependent parts of a larger action. Mr. Katz, under 

NEPA regulations FERC is required to review connected actions of 

a pipeline project; is that correct? 

Mr. KATZ. That is correct. 

Mr. GREEN. If a cross-border pipeline project cannot proceed 

without a certificate of crossing as described in the legislation 

would FERC consider this a connected action? 

Mr. KATZ. Connected to what, sir? 

Mr. GREEN. If a cross-border pipeline project cannot proceed 

without a certificate of crossing as described in this legislation we 

are considering, would FERC consider this a connected action? 

Mr. KATZ. It could be a connected action to the remainder of the 

oil pipeline, yes. 

Mr. GREEN. Is FERC required to consider the cumulative impacts 

of a pipeline project? 

Mr. KATZ. Yes, it is, of all projects it reviews. 

Mr. GREEN. OK. I am out of time, and thank you, Mr. Chairman. 

But obviously coming from Texas we are trying to sell as much natural gas as we can to northern Mexico and I know there are processes now that are in place, but again crossing the international 

borders presents other issues and that is what this legislation is 

about. Thank you, Mr. Chairman. 

Mr. OLSON. The gentleman’s time has expired. The Chair now 

calls upon the gentleman from West Virginia, Mr. McKinley, for 5 

minutes. 

Mr. MCKINLEY. Thank you very much, Mr. Chairman, for scheduling this meeting. 

Mr. Katz, if I could go quickly with you because I want to spend 

more time with Mr. Turpin, but do you think, in your opinion, with 

the H.R. 446, 447, and 2122 that we are going to be talking about 

today for the construction of hydroelectric projects in Virginia and 

West Virginia, do you think the Commission has any problem with 

getting additional flexibility so that it doesn’t take an act of Congress? 

Mr. KATZ. No. One of the bills before you indeed would give the 

Commission the authority to extend the commencement of construction deadline and I think I indicated in my testimony that 

Commission staff supports that concept. 

Mr. MCKINLEY. Thank you. 

Mr. Turpin, I want to take a larger view, maybe perhaps take 

it from 30,000 feet on this issue of permitting because I know from 

the testimony and what we have read that FERC has a responsibility to coordinate these projects in the timeline, but the agencies 

often break from the mold and so it drags out. 

I am trying to understand if we are moving in the right direction 

with this, because if we look back over it now, over time we have 

developed now there are 15 different permits have to be achieved 

to build a pipeline from ten different agencies and the timeline for 

65 

each of those agencies can be as long as 2 years or longer if they 

should so choose to do that. 

But we are talking just of those we have the FERC transporter, 

the FERC certificate of public convenience, the Pipeline and Hazardous Materials Safety Administration permit, NEPA, an EPA 

permit, the Army Corps dredge permit, the Section 10 permit, the 

right of way permit for the Army Corps, the Federal levy right of 

way permit, the Fish and Wildlife incidental take permit, the Fish 

and Wildlife right of way, the Bureau of Land Management right 

of way, the Bureau of Indian Affairs right of way, the U.S. Forest 

Service public use permit, the U.S. Department of Agriculture easement, the Bureau of Land Reclamation, all of these I guess what 

I am wondering, are we really better off for having these permits? 

Because we look back at the track record when they built Hoover 

Dam, the permitting was less than 2 years to accomplish and I 

wonder whether or not did we cause havoc to the people in Colorado and along the Colorado River by building the Hoover Dam? 

The Alaska Pipeline now have been 9 years trying to get a permit, because in addition to these 15 permits we have seen politics 

come into play with this. The Trans-Alaska Pipeline as controversial as that might be it took less than 1 year to get the permit and 

now we have the advantages that occurred. 

So I am saying with all this progress or process of additional paperwork, are we better off for it? Can you tell me from FERC that 

this is—we have improved the system by delaying projects for 10, 

15 years to do this? Think what I just said about the Hoover Dam. 

The permit was less than 2 years, but for 10 years we are trying 

to build a low-head dam in West Virginia and we can’t get the permit, after 10 years. Who is right? Were the people back in the ’40s 

and ’50s and ’60s and ’70s, were they smarter than we are? That 

is to you, Mr. Turpin. 

Mr. TURPIN. Thanks. I think a lot of that depends on the perspective. I mean all these agencies, all those permits, many of which 

you read are actually crossing of Federal lands and that is the 

easement that the pipeline company must get, all have come about 

through congressional action. I think it is whatever, you know, 

Congress directs these agencies on what they need to execute and 

we execute on what we are told to do. 

Mr. MCKINLEY. So in your opinion, Mr. Turpin, are we moving 

in the right—I am sorry to keep—are we moving in the right direction by adding delays, because you know from construction—I 

spent 50 years in the private sector—delays cost money. The time 

value of money when you start something that maybe takes $10 

million, even they are saying the licensing process for a new hydropower development project can last over a decade and would cost 

over tens of millions of dollars. 

Are we better off for doing it that way or should we rely on the 

courts to see that they are upheld and let the construction begin? 

Because if we are truly after construction and we are trying to get 

jobs for people, wouldn’t it be better to put them to work or to use 

paperwork? Who is benefiting from this, the unelected bureaucrats 

in Washington? 

Mr. TURPIN. It sort of doesn’t feel like a benefit to us. I think the 

answer is that it depends on what Congress determines is in the 

66 

public interest. I mean the bureaucrats have to execute the laws 

that are passed. 

Mr. MCKINLEY. Thank you very much. I yield back my time. 

Mr. OLSON. The gentleman yields back. The Chair now calls 

upon the star center fielder of the Congressional Women’s Softball 

Team, Ms. Castor, for 5 minutes. 

Ms. CASTOR. That is right, the third week in June, the Congressional Women’s Softball game against the evil women of the Press 

Corps. Mark it down on your calendars. 

Thank you, Mr. Chairman, for calling the hearing today. One of 

the bills before us today aims to expedite FERC review of natural 

gas pipelines. Roughly 90 percent of FERC natural gas pipeline 

projects receive their certificate within 1 year, but nevertheless I 

do understand that it is important to promote efficiency in all Government review processes. 

But this is why just a year and a half ago the Congress passed 

an important part of the FAST Act, and I had to go back and remind myself of all this and I encourage my colleagues to do the 

same. The FAST Act set up a new entity, the Federal Permitting 

Improvement Steering Council, FPISC, to bring Federal agencies 

together including many that have been mentioned today—the 

Army Corps of Engineers, the Bureau of Land Management, Fish 

and Wildlife—to improve timeliness, predictability, and transparency of Federal environmental review and authorization 

projects for major infrastructure projects which includes interstate 

natural gas pipelines. 

The Council spent 2016 getting off the ground and is now overseeing permitting for 32 major infrastructure projects including 

seven interstate natural gas pipeline projects. These projects will 

benefit from enhanced coordination including establishment of a 

lead agency for the project, the establishment of recommended performance schedules and project review timelines and greater transparency at all levels. In fact, the Business Roundtable just wrote 

a letter recently to the White House to say can we move forward 

with getting FPISC off and moving; I think it is still waiting for 

another appointment. 

So it is a bit confounding why we are here discussing an entirely 

new scheme for review of natural gas pipelines when we recently 

sent up an entirely new entity to do just that. And at a minimum 

we should have FPISC here to testify about their progress and I 

would respectfully request that we do that in a future hearing. 

So Mr. Turpin, in your testimony you state that FERC has undertaken significant efforts to implement its responsibilities under 

the FAST Act. Can you elaborate a bit on your efforts? 

Mr. TURPIN. Sure. When the FAST Act, I think within 6 months 

of its passage all the subject agencies had to post existing projects. 

For FERC I think we had the most significant number of projects 

that went up on the dashboard. And most of the efforts were at 

that point those projects had been through the FERC pre-filing 

process, had already had a lot of the coordination and FERC was 

the lead agency for those. 

So a lot of that effort was at going back to document the things 

we had already done and put up coordinated project plans not as 

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67 

edgment of the things that the agency has already been through. 

We found that it did take a lot of time to coordinate the various 

agencies’ data, some agencies would be unwilling to commit to 

schedules, and it does take quite a bit to kind of ride herd on the 

data that has to get posted. So that is the bulk of the work that 

we did in trying to set up. 

Ms. CASTOR. So do you think it will help now when you have this 

interagency coordination when everyone is sitting at the table and 

maybe some agencies can look at others and say why aren’t you adhering to the schedule and timeline? 

Mr. TURPIN. And that is essentially what I think we have tried 

to do through the pre-filing process as well. I mean, as the lead 

agency we try to bring those folks to the table and try to get them 

the information they need so that they can advise us of the schedule they need. 

Ms. CASTOR. And you also state that some of the provisions in 

the discussion draft would duplicate efforts. How so? 

Mr. TURPIN. That is predominantly the tracking of everyone’s 

project schedules. I mean that is what happens on the FPISC dashboard and then it would be a duplicate effort at the Commission. 

Ms. CASTOR. Well, it is clear we need to hear more from FPISC 

to understand what it has achieved in the year-plus that it has 

been in operation already and I fear that we are simply setting up 

a duplicative process with this proposal, so I have serious concerns 

with the discussion draft today. I think we need to have FPISC 

here. And remember, this is only a year and a half old and it was 

the Congress’ intention to promote greater efficiency by bringing 

that interagency group together. I yield back my time. 

Mr. OLSON. The gentlelady yields back. The Chair calls upon the 

gentleman from Virginia, Mr. Griffith, for 5 minutes. 

Mr. GRIFFITH. Thank you very much, Mr. Chairman. I do appreciate it and I appreciate the witnesses being here. 

Mr. Katz, I was pleased to read in your testimony and then to 

hear in one of the earlier questions that you all are fine with H.R. 

446 related to the Gathright Dam and H.R. 447 related to the 

Flannagan Dam and I appreciate that very much. Thank you. I am 

also interested in, you know, not only electric generation but making sure that we have jobs in my district. One of the great concerns 

in the coalfields has been is that production has been down and 

folks have said you all need to reinvent yourselves. We think coal 

has a long future, but at the same time we want to make sure that 

we are looking for new ways. 

A couple of my friends in the Virginia General Assembly got a 

bill passed this last year. I had mentioned in a previous hearing 

that there were some folks interested in doing some things related 

to pump storage projects and what they are trying to encourage 

with the Virginia language is to see if they can’t entice somebody 

into putting a pump storage facility inside an exhausted or abandoned coal mine making it a closed loop system. 

And I appreciate your written testimony on those issues as well. 

One of the questions that you raised and I would like for you just 

to do some explaining for me, is you felt like there was because of 

the add-ons or, and I am probably using the wrong language, but 

the additional energy items like solar or wind to help pump the 

68 

water up that there was a problem in the draft language that we 

have floating around, at least the way I interpreted it, with municipals, maybe adding on nonmunicipals. Could you explain that to 

me? 

Mr. KATZ. Sure. It is kind of a historical artifact, but years ago 

back in the ’80s there were instances before the Commission—well, 

I should—— 

Mr. GRIFFITH. Way back in the ’80s. 

Mr. KATZ. Yes, when I was a youngster. I guess I should drop 

back five yards. I mean, in the Federal Power Act, Congress provided that a municipality would get a preference over a private entity in obtaining a preliminary permit or a license. So if they—all 

things being equal, if a city applies and a private company applies, 

the city wins. 

And at some point in the ’80s, the Commission discovered that 

municipalities were applying and saying I am a muni, give me 

preference, but then as soon as they got the license or the permit 

or even during the process they would turn around and sell it to 

another private entity, not the one that was trying to compete with 

them but somebody else. And so the Commission decided that was 

not fair competition and it was not appropriate to put private entities at a disadvantage. 

So the concern that I expressed with regard to that portion of the 

bill was it would appear to allow a municipality to outcompete a 

private entity in the first instance, and then do what the Commission has hitherto precluded agencies from doing, turn around and 

sell it to a different private entity so that the private entity that 

was trying to develop the project, and indeed it might have been 

the entity that was out there in the field first, would be placed at 

a disadvantage. That is something for Congress to consider. 

Mr. GRIFFITH. OK, and I appreciate that. And so it is not really 

a concern over this closed loop pump storage, but a concern that 

that and then perhaps the solar, the wind might be transferred as 

you just described; is that correct? 

Mr. KATZ. Yes. It is not specific to closed loop, it is just that is, 

I believe, the only one of the bills in which that language appears 

so that is why I raised it in the context. But no, it is not something 

that is in the nature of closed loop pump storage projects. 

Mr. GRIFFITH. And otherwise in regard to the draft language on 

closed loop hydro pump storage you all feel fairly comfortable that 

we are headed in the right direction on that? 

Mr. KATZ. I think it has a lot to commend it. Again we would 

be happy to work with committee staff just to make sure that there 

are no duplicative areas or things put into the statute that make 

things take longer or are repetitive other agency actions. 

Mr. GRIFFITH. Because as some of the other witnesses on both 

sides of the aisle have pointed out, you know, when you are using 

hydro that is a very clean source of energy. In the case of using 

a captive water source inside of an abandoned mine, you really 

don’t have a whole lot of problems as long as initially it is structurally sound of course. But we believe that we have a number of 

those sites in southwest Virginia, maybe some in my friend Mr. 

McKinley’s district over in West Virginia as well. 

69 

But we believe that this is one way that we can continue our region’s longstanding history working in energy and at the same 

times create jobs in a field and an area where jobs have disappeared as a result of some downturns in the economy and some 

regulations that we are going to try to work on. 

Mr. KATZ. Yes, if I may, I will say—— 

Mr. GRIFFITH. Yes, please. 

Mr. KATZ [continuing]. The Commission approved a project of 

that type in California, the Eagle Crest Pump Storage Project, of 

which is using an abandoned mine and is currently under development, so those kinds of things can indeed make sense. 

Mr. GRIFFITH. All right, I appreciate it very much and I see my 

time is gone. I yield back. 

Mr. OLSON. The gentleman yields back. The Chair calls upon the 

gentleman from New York, Mr. Tonko, for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. Mr. Turpin, welcome. I have 

a few questions concerning the interagency coordination discussion 

draft. Do you believe that aerial or remote surveys have limitations? 

Mr. TURPIN. At this time, I do. I think, you know, the Commission and its staff has had a long history of accepting remote data 

in terms of looking at the initial environmental impacts, but then 

they need to be truthed up, you know, after an authorization before 

construction can start. There just simply are limitations. You can’t 

always count on that to get the species counts. There are certain 

kinds of wetlands that aren’t able to be delineated aerially. 

Mr. TONKO. Thank you. And can aerial survey data be unreliable 

regarding the presence of endangered species, historic properties 

such as archeological sites and characterization of wetlands? 

Mr. TURPIN. Yes. 

Mr. TONKO. OK. Does the draft before us include any standards 

or methodology requirements that must be met in order for an 

agency to be required to consider data from remote surveys? 

Mr. TURPIN. No. I did not see anything about minimum standards. 

Mr. TONKO. OK, thank you. And so there would be no quality 

control requirements that might consider the degree of accuracy, of 

scale, of elevation, of vegetation strata and density, soil profiles, or 

many other factors that could vary widely depending on the geographic region and methodology deployed in that survey? 

Mr. TURPIN. Again, I saw nothing of that in the bill and I took 

that to mean that that would be left up to the individual agencies. 

Mr. TONKO. Does this discussion draft require applicants to attempt to conduct ground surveying before using remote surveying? 

Mr. TURPIN. Not that I read, sir. 

Mr. TONKO. And in which case applicants would not be required 

to make a good faith attempt to gain access to perhaps private 

property owners’ land and in so doing help to make an important 

stakeholder aware that this project is being developed potentially 

through their property. There may be streamlining we can consider 

in the application process, but I really do believe that any attempts 

to skirt the rights of landowners especially when the outcome is 

less than perfect data would be a step in the wrong direction. Is 

that a concern that I should have? 

70 

Mr. TURPIN. I think the Commission’s stance in the past has 

been that the best course of action is to get the best available data 

for the NEPA analysis. And the Commission has encouraged the 

pipeline companies to go out and actually seek, you know, pipeline 

right of way access to develop that data. But if it can’t be achieved, 

then Commission staff has relied on remote and aerial data. 

Mr. TONKO. I would also recommend that the committee receive 

more feedback on this provision from other Federal and State agencies to understand how inadequate data might affect their review 

process and the associated regulatory requirements. 

Mr. Turpin, in your testimony you state the Commission’s current review processes are thorough, efficient, and have resulted in 

the timely approval of the facilities necessary for natural gas pipelines. Generally speaking, how long does it typically take for a 

pipeline permitting process or permitting application to go through 

FERC’s process? 

Mr. TURPIN. It can vary pretty widely, so there is not a really 

great typical time. As I mentioned earlier, for the full spectrum of 

projects filed at the Commission for pipelines 88 percent of them 

are issued within 1 year and that does go from very small projects. 

Usually, once you begin to increase the length of the line and the 

complexity of the project, the time does tend to stretch out because 

there are simply more stakeholders engaged, more issues to consider, and more agencies to have at the table. 

Mr. TONKO. But in general within a year? 

Mr. TURPIN. Eighty-eight percent within a year. Yes, sir. 

Mr. TONKO. Which seems to be, you know, given the importance 

of the review seems to be a fairly expedited process done thoroughly. So with that Mr. Chair, I will yield back. 

Mr. OLSON. The gentleman yields back. The Chair calls upon the 

gentleman from Ohio, Mr. Johnson, for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. And gentlemen, thank 

you for joining our panel this morning. 

Mr. Katz, this committee received testimony some time back 

from a developer that had difficulty with a project on an existing 

nonpowered dam under the Army Corps of Engineers’ jurisdiction. 

Apparently, they had to perform two separate NEPA analyses, one 

for the FERC license and a separate analysis triggered by the 

Clean Water Act for the Army Corps. I understand that you have 

an MOU with the Army Corps, but what could FERC do to prevent 

this type of duplicative application of NEPA in the future? 

Mr. KATZ. Well, sorry to give this answer, but ultimately there 

is not anything we can do, we don’t control the Corps. But as you 

noted we have—— 

Mr. JOHNSON. Your MOU doesn’t address that, that kind of collaboration? 

Mr. KATZ. Yes, the MOU does. The MOU seeks to have the Corps 

and the Commission act concurrently to the extent possible and 

that is as far as we have gone. But as a legal matter we have no 

authority over the Corps, so if the Corps decides it needs to do 

more environmental work we can’t prevent that. 

We also have a number of instances in which we have issued licenses for projects at Corps dams and the Corps decides it needs 

to take a certain amount of time whether it is to review the physVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
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ical characteristics of the dam or to issue permits such as the ones 

that you refer to and the Commission does not have any authority 

to do anything about that. 

Mr. JOHNSON. Do you have a personal opinion as to the waste 

and the duplication of having both the Army Corps and FERC requiring NEPA studies on the same project? 

Mr. KATZ. My opinion is that agencies do need the studies they 

need in order to carry out their statutory mandates, but I don’t 

think there should be duplicative studies and ideally they would be 

done concurrently so that there is as little use of time as possible. 

Mr. JOHNSON. Now you would think that if you did one you could 

use the same application for both agencies and do it one time. I 

mean, I am a plowboy so common sense kind of reigns—— 

Mr. KATZ. Yes. That would be hoped. And often the Corps is a 

cooperating agency with the FERC when FERC does its NEPA document and then the Commission can do its best to make sure that 

everything is in the NEPA document that the Corps might need. 

Mr. JOHNSON. All right. I understand that one important project 

parameter left unresolved until very late in the permitting process 

is the water quality standard, which as you know determines the 

amount of water that will ultimately be available to pass through 

the turbines in a dam, a power dam. Currently, the Corps may prescribe different water quality standards from the FERC and the 

State standards, beginning in some cases in the 6th or 7th year of 

the Federal permitting process. This can cause significant problems 

from both a commercial and a planning perspective. 

Would you care to comment on this issue? Is that part and parcel 

of the same kind of deal we are dealing with, with the NEPA analyses? 

Mr. KATZ. It may be to some extent. I think that those issues 

only arise where a project is located at a Corps dam. The Corps 

can’t prescribe water quality standards if it is at a non-Corps dam. 

But yes, if a project is at a Corps dam, the Corps essentially has 

the ability to require the licensee to do whatever it is that the 

Corps sees fit to do. 

Mr. JOHNSON. Having the ability is one thing, but this is another 

example of duplication and in my opinion it appears to be Government waste and wasting the time of the businesses and those that 

are trying to get these projects done; would you agree? 

Mr. KATZ. It can be. Our experience is that different Corps districts behave different ways. Some Corps districts are very welcoming to hydro and try and do everything they can to promote 

hydro being built at Corps dam. Other districts don’t seem to favor 

hydro at their dams. 

Mr. JOHNSON. That is kind of—I appreciate that comment. Different Corps districts behave in different ways. Wouldn’t it be great 

if they all were kind of talking to one another and doing things the 

same way? 

Mr. KATZ. Yes, I think it would. I mean, one of the things FERC 

is lucky about is that we are a small agency, so if the chairman 

wants to know what I am up to she can walk down the hall and 

look me in the eye as opposed to I am located out in, you know, 

some far region of the country. And I think it is harder for folks 

in Corps headquarters to control all their aspects. 

72 

Mr. JOHNSON. OK. Lastly, for how many licenses issued or pending before the Commission has the FERC and the Army Corps 

MOU been employed to unify the NEPA review process, and how 

many of those instances has the Corps used a FERC generated 

NEPA review when approving a project? So has there been any 

crossover that you can recall where one agency used a NEPA from 

the other? 

Mr. KATZ. There certainly have been in the past prior to the 

MOU. The MOU is fairly recent so I am not certain whether it has 

come into play in any cases where we have actually issued licenses. 

Mr. JOHNSON. Can you provide us with the language around the 

NEPA analyses that is in the MOU? I would like to see that. I 

would like to see how much discussion actually went into it. Mr. 

Chairman, I yield back. 

Mr. KATZ. Yes, I would be happy to do that and we also can let 

you know if there are any instances in which the MOU has been 

applied. 

Mr. JOHNSON. Thank you very much. 

Mr. WALBERG [presiding]. Thank you. The gentleman’s time has 

expired. I now recognize the gentleman from Oregon, Mr. Schrader. 

Mr. SCHRADER. Thank you very much, Mr. Chairman. I appreciate that. 

I guess, Mr. Turpin, Mr. Katz and others have talked about the 

concurrent review process. Do you have any, see any problems particularly with accelerating a more concurrent review process by all 

the different agencies? 

Mr. TURPIN. No. Concurrent reviews are what is desired. I think 

the rub becomes if the information needed by those other agencies 

can be developed at the same time as we are doing our review. 

Mr. SCHRADER. That would hopefully be established whatever 

process would be set up to begin with. The States would be an 

outlier though as I understand. They are not subject to any Federal 

regulatory authority in terms of when they get their act together 

and decide to approve something? 

Mr. TURPIN. The States that are acting under—it is their own 

authority would be preempted by the Federal permits, but the 

State agencies acting on federally delegated authority for Federal 

permits carry the same weight as the Feds. 

Mr. SCHRADER. So that is something we will have to figure out 

going forward it looks like. 

Mr. Katz, do you agree that the bill dealing with cross-border approvals, the new cross-border approval process that is being suggested combines the permit process to just the segment on the border and doesn’t allow any discussion of the entire project? 

Mr. KATZ. I am not certain that it does that. The Commission 

would have to do whatever NEPA review is appropriate, and I don’t 

think that the bill precludes the Commission from looking at other 

impacts. 

Mr. SCHRADER. OK, OK. That would be my read of the bill actually, also. While the bill says there is no cross-border review for 

modifications of an existing cross-border facility, with regard to 

cross-border authority are there other agencies or regulatory authorities and permitting processes that someone trying to modify a 

facility would need to abide by? 

73 

Mr. KATZ. I am not aware of any. I defer to Mr. Turpin. DOE, 

if there is a change in the commodity level DOE might have to approve it, but again I defer to Mr. Turpin for a further discussion. 

Mr. TURPIN. It is going to depend on what equipment is needed 

for that modification. If it is a compressor station for the case of 

a natural gas pipeline it will have to comply with the Clean Air 

Act. I don’t know enough about pump stations for liquid lines because we don’t currently deal with those. 

Mr. SCHRADER. What about an expansion of the footprint of the 

facility? 

Mr. TURPIN. That again it would depend on what exactly the 

equipment is being installed as to if there would be Federal oversight or not. 

Mr. SCHRADER. OK, but not any additional land being taken into 

the facility would not be an issue then. It is just the type of equipment that would be there? 

Mr. TURPIN. I mean current, it is usually the installation of additional features and increasing the footprint that drive most of the 

environmental issues. 

Mr. SCHRADER. OK. Then there is a 30-day approval, you know, 

deadline for export-import of natural gas cross-border. Do you see 

that hampering public input or the ability to get the permitting 

process done, the approval process? 

Mr. TURPIN. As I read the bill the 30 days was applicable to the 

DOE commodity determination and so I don’t think that would affect the FERC process. 

Mr. SCHRADER. All right, very good. 

Mr. Katz, in the legislation about promoting hydro development 

in existing nonpowered dams I am not that familiar with some of 

the current regulatory framework. It is being proposed to switch to 

that which is necessary to protect public safety or reasonable economic feasibility and prevent damage to fish and wildlife. How is 

that language different than what the current regulatory authority 

is? 

Mr. KATZ. The language is different to the extent that it could 

be read to preclude the Commission’s considering some other resources that it now considers like flood control, irrigation, recreation, historic preservation. The standard is also different. The 

standard as I read the bill was that measures had to be economic 

and essential for fish and wildlife and that is a higher bar than 

currently exists. 

Mr. SCHRADER. OK, very, very good. And with that I will yield 

back, Mr. Chairman. Thank you. 

Mr. WALBERG. I thank the gentleman and I recognize the gentleman from Texas, Mr. Barton. 

Mr. BARTON. Thank you. We have out in the audience, Mr. 

Chairman, Andy Black. Andy Black is a former personal staffer of 

mine and a former staffer of the committee and also former senior 

official over at FERC, and he just lost his dad and I think just got 

back from the funeral yesterday. So half of the committee and me 

personally we are with you in your time of sorrow. I never met 

your father, but I heard nothing but great things about him. So, 

and we look forward to your testimony on the next panel. 

74 

Mr. Chairman, I just have a couple of questions. Under current 

law we handle permitting for oil pipelines domestically and gas 

pipelines differently. Is there any real reason to do that other than 

that is the way we have always done it? 

Mr. KATZ. I am not sure if that was addressed to me, but no, not 

particularly. I mean, the same thing is true with electric power 

lines. Congress sets up whatever scheme of regulation it sees fit to 

do. 

Mr. BARTON. So it is just kind of the way it happened, but if we 

are going to do a pipeline reform bill is there any reason we 

couldn’t use the same regulatory authority and permitting process 

for oil and gas pipelines? 

Mr. KATZ. No, Congress has the authority to do that if it wishes. 

Mr. BARTON. Good. In the Energy Policy Act back in 2005, we 

tried to give your agency, the FERC, the authority to oversee the 

various other agencies it had to do all the various pipelines that 

Mr. McKinley was talking about earlier. That doesn’t seem to have 

worked too well, the delays have gone up not down. What went 

wrong and what do we do to fix it? Do we need more incentives or 

do we need more penalties or do we just need better people at the 

FERC? What is going on? You don’t think the latter is the case. 

Mr. KATZ. I would never want to say that our Commissioners— 

the staff is less than perfect, but the Commissioners are perfect. I 

don’t know that there is anything that Congress did wrong in the 

bill. I think that what has happened since then—and I will defer 

to Mr. Turpin if he wants to speak to it—is that there has been 

an increasing emphasis on public interest in the pipelines and opposition to pipelines, concerns about environmental effects, you 

know, the type of production methods that are used, so that back 

in the day pipeline regulation approval was a fairly sleepy part of 

the Commission’s business. 

Now it is something that a lot of people are interested in and 

very vocal about, and I think that is more what is taking more 

time than anything that Congress is responsible for having done. 

Mr. BARTON. Mr. Turpin? 

Mr. TURPIN. I would agree. I would also say staff is pretty good 

too. But I think that is a large part of it is the increased public 

interest, I mean from a very wide audience in the U.S. And as with 

the current approach, fundamentally the Commission can engage 

these agencies. The Commission staff can do the work, but all these 

agencies have to comply with their own congressionally directed 

mandates and it is that sort of not that I think ends up, we all end 

up tripping over. 

Mr. BARTON. Well, I am not the chairman of the committee, I am 

the vice chairman, but I think we are going to do a pipeline permitting reform bill and we would really like your agency’s input. I 

think it is good to have more public input. I don’t think that is a 

bad thing, I think that is a good thing. 

But having said that you still need, once you get that input you 

need to make a decision. You need to live within the guidelines. 

You need to live within the deadlines. If our deadlines are too strict 

maybe we need to expand them a little bit. 

But we are going to need a lot more energy infrastructure in the 

next 20 to 30 years and pipelines are going to be a big part of that. 

75 

And so if we didn’t quite get it right 10 or 15 years ago in the Energy Policy Act of 2005, let’s get it right this time in the Energy 

Infrastructure Review Act of 2017 or 2018. With that Mr. Chairman, I yield back. 

Mr. WALBERG. I thank the gentleman and I recognize the gentleman from Indiana, Mr. Bucshon. 

Mr. BUCSHON. Thank you, Mr. Chairman. 

Mr. Katz, in my district and nearby there are multiple dams that 

currently don’t produce hydropower but potentially could, as you 

are aware. In 2013, Congress directed FERC to investigate the feasibility of a 2-year licensing process and develop criteria for nonpowered dams and closed loop pump storage. 

I guess you had a pretty good experience at the Kentucky Lock 

and Dam project, and what elements of a 2-year pilot program 

should Congress make permanent based on FERC’s experience 

with the 2-year pilot? 

Mr. KATZ. I don’t want to get ahead of the Commission staff because we are right now compiling a report that Congress directed 

us to do in the 2013 statute. 

Mr. BUCSHON. OK, so we have to wait for the report. 

Mr. KATZ. Yes. As I said earlier though, even in the absence of 

any kind of regulatory or statutory changes, some 25 percent of the 

original licenses that the Commission worked on in the last 13 

years or so have been permitted in 2 years or less, so it can happen. 

Mr. BUCSHON. Understood. And for these two type of projects, 

would these type of projects raise the same environmental and 

wildlife issues as traditional hydro or—— 

Mr. KATZ. The same issues get considered, but they are generally 

considerably less in scope because the existing dam has already 

had a certain impact. 

Mr. BUCSHON. So it might have an impact on the timeline then 

if it was easier because of that? 

Mr. KATZ. Such projects tend to be easier, not as an absolute rule 

but they tend to be easier. 

Mr. BUCSHON. Would the draft legislation relating to nonpowered 

dams and pump storage in any way alter the FERC’s environmental analysis under NEPA? 

Mr. KATZ. I believe I answered an earlier question. 

Mr. BUCSHON. Probably did. 

Mr. KATZ. It looks as though it would in that it only calls out fish 

and wildlife resources and doesn’t call out flood control, irrigation—— 

Mr. BUCSHON. OK, that is what—— 

Mr. KATZ [continuing]. Water supply and other things, and also 

it seems to set a higher standard for the conditions that would be 

imposed, a higher bar. 

Mr. BUCSHON. How about the Clean Water Act or the Clean Air 

Act, any differences there on these type of projects? 

Mr. KATZ. Clean Air Act issues are almost never implicated in 

hydro projects. The Clean Water Act, the legislation does call—— 

Mr. BUCSHON. Does the draft legislation have any impact on 

that? 

76 

Mr. KATZ. I don’t think it would, but it is conceivable. We would 

have to study that. 

Mr. BUCSHON. OK. I yield back, Mr. Chairman. 

Mr. WALBERG. I thank the gentleman and I recognize the gentleman from Texas, Mr. Flores. 

Mr. FLORES. Thank you, Mr. Chairman. Mr. Chairman, thank 

you for holding today’s hearing. America’s shale energy revolution 

has dramatically improved our energy security here at home. The 

U.S. is now one of the top producers of oil and gas in the world, 

yet there are still existing infrastructure challenges to deliver those 

resources to consumers. Modernizing our infrastructure to efficiently and safely bring energy resources to consumers helps to create jobs and brings lower energy prices for hardworking American 

families. 

So with that I would like to get into my questions. Some of these 

were partially asked by Mr. Rush, Mr. Green, and Ms. Castor. Mr. 

Turpin, I understand that the Commission does what it can to encourage the participation of other permitting agencies today to 

identify issues and work to resolve them. Unfortunately, at times 

the other Federal agencies have chosen to not take the responsibility seriously. They may simply choose to just not act on a permit. In your experience, why do some agencies choose to go that 

route to not work with you? 

Mr. TURPIN. I think it is from a global perspective of agencies 

working with us it is fairly rare for somebody to refuse to participate in the FERC pre-filing process or in coordination with staff. 

Whether they choose to be, you know, a cooperating agency under 

NEPA is a different question. They have their own interests to protect in terms if they want to be an intervener in the FERC process 

later. 

I think in large part the rubs come down to them having different criteria for the data they need to do their permit as well as 

their own resource constraints. We are a sole purpose agency. We 

look at this infrastructure. Other agencies have multiple mandates 

and they have to balance their needs as best they can. 

Mr. FLORES. When you look at the legislation that places the 

mandate on the agencies to carry out their obligation concurrently 

in accordance with the schedule established by the Commission, do 

you think that legislation goes far enough or should we try to go 

farther to compel coordination and timely coordination? 

Mr. TURPIN. I think that is a difficult question. Trying to compel 

the timely coordination requires—well, the language always has in 

it the caveat of unless otherwise mandated in other laws or unless 

an agency can’t meet its other obligations, and it has been in all 

the versions I have seen. And so that is sort of the Gordian knot, 

and having the Commission in charge of all of those mandates for 

these other agencies seems a bit inefficient from our perspective. 

Mr. FLORES. Are you aware of strategies by pipeline opponents 

like the Sierra Club and others to block access through land for 

route surveys? 

Mr. TURPIN. I have heard of landowners blocking access, you 

know, not granting survey access to pipeline companies, but not 

NGOs or any kind of other organization. 

77 

Mr. FLORES. OK. To the extent they do though I mean it is pretty 

obvious, but can you tell the committee what impact that has on 

you doing your job? 

Mr. TURPIN. As I said earlier, the Commission staff prefers to 

have the best information, you know, from the ground data in the 

ground surveys in the application, but without it we can move to 

desktop data, we can move to remote data, and we can move forward with our analysis that does have to be truthed up later before 

construction. And so sometimes there are potential implications 

that certain protected features won’t be discovered until after the 

application and then the applicant has to do an expensive re-route 

or some lengthy adjustment. 

Mr. FLORES. OK. The permitting dashboard in the draft legislation would consolidate the information from your agency as well as 

the coordinating agencies into a simple, easy to use and easy to access Web site. You admit it would improve transparency, but you 

also say in your testimony that it would burden staff resources and 

time. How do we balance the need for transparency with scarce 

Government resources? 

Mr. TURPIN. Good question. I am still trying to figure that one 

out in my role here. I think that is always the rub. We don’t have 

a lot of excess staff sitting around with a lot of excess capacity. You 

know, we are all technical specialists and we try to use everybody 

to their full capacity. So adding on, sort of riding herd on these 

other agencies just does dilute that effort, so I mean we can do it. 

Mr. FLORES. And with respect to this permitting dashboard, 

again coming, stand out of the weeds, if the FERC didn’t collect 

this information who would or should or could? I mean, you are the 

lead agency for permitting pipelines; aren’t you the logical owner 

for this project? 

Mr. TURPIN. Yes, we are. And as the current process we have it 

is the applicant that is going out and filing for these permits and 

engaging those agencies that is responsible for collecting that data 

and reporting it into the record. 

Mr. FLORES. OK. Mr. Chairman, I yield back. 

Mr. WALBERG. I thank the gentleman. I now recognize the gentleman from North Dakota, Mr. Cramer. 

Mr. CRAMER. Thank you, Mr. Chairman. Thanks to the witnesses. I want to hone in a little bit on some statements that were 

made earlier and see if we can’t find some common ground, because 

I appreciate what Mr. McNerney said earlier about, you know, we 

will never solve this if one side imposes its will on the other. I 

agree. 

I think Ms. Castor makes a relevant point admonishing us to see 

how the FPISC process works. We do have some pretty successful 

pilots and I think they could be even more successful if the interagency collaboration was more, I guess cooperated by more agencies on Federal lands where we have seen some permitting activity 

actually create efficiencies by actually co-locating some agencies 

even in field offices. 

But what I am wondering about on the interagency issue here is 

can we find ways or even substantiate that interagency collaboration and cooperation can accomplish two goals. One, to streamline 

the permitting process so that those of us who want to see the procVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00083 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
78 

ess shortened can be satisfied as well as find synergies, not just efficiencies but synergies among the agencies where there is even 

greater environmental oversight and scrutiny in that short of timeframe so that there doesn’t have to be a loser but rather two winning sides? 

Is that too much to hope for or can that be substantiated? And 

I would ask either or both of you for your experiences. 

Mr. KATZ. No, I would say that what you say makes a lot of 

sense and indeed is a viable and very positive goal. 

Mr. CRAMER. Do we have any experiences where that can be 

demonstrated or—— 

Mr. KATZ. The Commission participated a kind of ex-officio because it wasn’t any of our projects in the interagency task force 

that you talked about, which I think primarily related to getting 

transmission lines on Federal lands permitted. And our impression 

watching it a little bit from afar was that the agencies did a very 

good job of working together and doing things concurrently and trying to solve everybody’s problems at once. 

And in some projects that come before the Commission that happens and things go very well. Other times it doesn’t. I guess the 

question of getting it to be consistent and to be the rule rather 

than exception is perhaps the difficult thing. 

Mr. CRAMER. And perhaps that is more a matter of the will than 

it is policy. However, Mr. Turpin, I don’t know if you have anything 

to add to that but is there a way to incent that within the agencies? In other words, I think the natural tendency is to slow-walk 

things if you are just the bureaucracy doing your things sequentially, right, and you have 90 days, generally it takes 90 days. If 

you hadn’t noticed, Congress usually extends their deadlines so 

that we can take longer. 

So what I am wondering is, is there a way to properly incent that 

behavior that we seek in an actual streamlining process without 

violating the integrity of oversight and scrutiny? 

Mr. TURPIN. I think it comes back to sort of setting the priorities 

for the agencies. I mean they are given multiple mandates. Again 

we are a single-focus agency so it is easy for us to stay on the 

track. Other folks who have very widely different missions to carry 

out have to do that balancing act and so having that priority set 

for them would go a long way. 

Mr. CRAMER. I do wonder sometimes if we couldn’t harmonize 

some of that again while maintaining the integrity, but that is beyond obviously your agency’s responsibility and scope. 

Since I have time, with regard to the presidential permits in 

cross-border on the oil side, which is the difference maker, right, 

from natural gas on international pipelines, this national interest 

determination which is what the President ultimately has to make 

on a, where a presidential permit is determined, if I understood I 

think your answer to a previous question, you, while consulting the 

national security in Homeland Security and other agencies, State 

Department, you are in essence not neglecting the national interest 

especially on the security side in your process with gas pipelines; 

would that be accurate? 

79 

And I don’t know whether the determination or the standard for 

the permit is the same, but it seems that the considerations are the 

same. Is that fair? 

Mr. TURPIN. Yes. I mean with a natural gas process, you know, 

under NGA Section 3 we do the environmental review, we look at 

the facility’s installation, and under the executive orders for the 

presidential process we reach out to State and Defense to get their 

concurrence on impacts that areas that they oversee. 

Mr. CRAMER. Thank you for your work and for your testimony. 

I yield back. 

Mr. WALBERG. I thank the gentleman. I recognize myself now for 

5 minutes of questioning. Mr. Katz and Mr. Turpin, thank you for 

being here. Mr. Katz, the discussion draft would designate hydropower as renewable energy under the Energy Policy Act of 2005. 

How has hydropower development been adversely affected by the 

fact that it is not always considered renewable? 

Mr. KATZ. That is one, again, that I would more have to defer 

to the second panel who deal with it on a day-to-day basis. But certainly there are Government programs, tax credits, other things 

that have not been available to the hydro industry when it is not 

considered to be a renewable resource. 

Mr. WALBERG. Seems to make sense, so I guess we will wait for 

that second panel. Let me ask you, as you know the small conduit 

hydropower plays an important role in our Nation’s energy mix. It 

is a great option to add renewable generation to existing infrastructure, it is installed almost anywhere even in remote places. The 

Hydropower Regulatory Efficiency Act of 2013 created a streamlined process for qualifying conduit facilities. What has been your 

experience since then? 

Mr. KATZ. Our experience has been that that process has gone 

very smoothly. We have almost never had any comments when 

someone proposed to have a qualifying project, so it has gone very 

quickly. In terms of the new legislation which would cut the comment period back to 15 days, Commission staff supports that. 

Indeed, we are not certain why it might be limited to projects of 

two megawatts as opposed to the five megawatt projects that are 

already covered by the act, and indeed I will go further to say the 

Commission staff has previously testified to Congress that it very 

well would be appropriate to exempt all conduit projects from Commission regulation given that the conduits themselves are subject 

to whatever appropriate environmental regulation goes on when a 

conduit is built and that they very rarely, if ever, have additional 

environmental impact. 

Mr. WALBERG. So you would be supportive of Congress shortening the time period at the very least? 

Mr. KATZ. We see no downside to that. 

Mr. WALBERG. OK, OK. Let me ask this question and both could 

respond. How does the current FERC process hinder hydropower 

projects upgrades such as those that would increase deficiency capacity and output of existing plans? 

Mr. KATZ. I think it can vary from project to project. Again if you 

have a fairly simple project that stakeholders are comfortable with 

and doesn’t have significant environmental impacts it can go forward very quickly. If it is a major project that brings into play the 

80 

Endangered Species Act, the Clean Water Act and other regulations that can significantly delay consideration of that amendment. 

Mr. WALBERG. OK, thank you. I yield back my time and now recognize the gentleman from Oklahoma, Mr. Mullin. 

Mr. MULLIN. Thank you, Mr. Chairman. And first of all, I want 

to thank my colleague across the aisle, Gene Green, for working 

with me on this issue and working together with us on so many 

different issues. We have worked together in the past and I look 

forward to doing it again. 

Mr. Turpin, as you know the process for reviewing cross-border 

infrastructure is established through a series of executive orders, 

and I think you know where I am going with my questioning here. 

In fact, Congress has never weighed in and there are no current 

laws on the books. The draft legislation before us today would be 

the first to establish a uniform and transparent process in authorizing cross-border energy infrastructure. Would the draft legislation 

change the Commission’s existing process for reviewing cross-border gas pipelines? 

Mr. TURPIN. I do not believe it would. 

Mr. MULLIN. Would you have any concerns with that? When I 

say you don’t believe it would I just want to clarify that. 

Mr. TURPIN. Well, let me add to that. I don’t believe it would 

change the review of the facilities, you know, the environmental review that we do, the current reviews that we do under the Natural 

Gas Act. Under the bill of course we would not be reaching out and 

coordinating with State and Defense. 

Mr. MULLIN. So it would basically be you would follow the same 

process kind of like what Mr. Cramer was saying? 

Mr. TURPIN. Right. 

Mr. MULLIN. Does the Commission have the technical capacity to 

take on the new responsibility? 

Mr. TURPIN. In terms of adding oil pipelines, I mean pipelines to 

a large extent are pipelines. 

Mr. MULLIN. Agreed. 

Mr. TURPIN. There will be some uniqueness to the product in it 

that we haven’t had to deal with before, but we can get that expertise. 

Mr. MULLIN. Uniqueness by? 

Mr. TURPIN. Natural gas, I mean as a siting matter transport of 

oil is something we have not had to look at. So there will be considerations for spills, considerations for that sort of thing. 

Mr. MULLIN. Would FERC treat oil pipelines like gas pipelines 

with respect to identification for the jurisdiction purposes? 

Mr. TURPIN. I don’t know. That would have to be set, the policy 

for that would have to be set by the Commission, which is I think 

what would be done in that yearlong rulemaking, and then Commission staff would act on whatever policy the Commission comes 

up with. 

Mr. MULLIN. Do you have a problem with the timeframe to which 

we put forth with approving the permit? 

Mr. TURPIN. As I read it, it is 120 days after the final NEPA document and that is not an issue. 

81 

Mr. MULLIN. Not an issue. Would the draft legislation have any 

effect on the NEPA or a shortcut to the Commission’s environmental review in any way? 

Mr. TURPIN. I do not believe so. 

Mr. MULLIN. OK, real quick that was all I had. I just wanted to 

clarify some concerns that we have heard about this. So Mr. 

Turpin, appreciate it and Mr. Chairman, I yield back. 

Mr. WALBERG. I thank the gentleman and I recognize the gentleman from Missouri. Welcome back, Mr. Long. 

Mr. LONG. Thank you, Mr. Chairman. And Mr. Turpin, the Promoting Interagency Coordination for Review of Natural Gas Pipelines discussion draft requires early outreach to permitting agencies. How does this help FERC and other agencies coordinate to 

make sure their input and concerns are addressed? 

Mr. TURPIN. I think it allows the applicant to get out to those 

agencies at the earliest possible time before they have developed 

the routes, before they develop the projects so that the agencies can 

identify what data needs they have, can influence what the applicant does in the design to mitigate any impacts, and give the applicant the most notice on what sort of studies might be needed for 

when the applications are filed. 

Mr. LONG. OK. Can you discuss the ways that we could reduce 

the uncertainty in the review schedule to make sure the reviews 

are completed in a timely manner? 

Mr. TURPIN. I think the largest, single most crucial factor in 

doing that is developing the data needed by all the different agencies for their mandates. 

Mr. LONG. OK. 

Mr. Katz, you mentioned in the next 15 years almost half of licensed projects will begin the relicensing process. How can we 

make sure that the relicensing projects are completed in a timely 

manner? 

Mr. KATZ. It is a difficult ask given that there are statutory mandates that allow other agencies to in effect set the timeframe. I 

think that some of the efficiencies that are being proposed in the 

current act will help. 

Mr. LONG. Say that again, you think that what? 

Mr. KATZ. I think that some of the measures provided in the acts 

before us will introduce efficiency and help the Commission move 

ahead to do things in as timely a manner as possible. And I think 

the Commission staff and the Commission itself will be committed 

to getting those licenses done as quickly as possible, but we don’t 

have complete control given the exercise of authority under Federal 

law by State and other Federal agencies. 

Mr. LONG. All right. Currently FERC can grant an extension of 

just 2 years from the commencement of the project construction. 

Could you expand on how the discussion draft gives FERC flexibility on cases that require additional time to begin construction? 

Mr. KATZ. Yes, the discussion draft would allow the Commission 

to extend the commencement of construction deadline for several 

additional years and that might help certain projects that are having trouble sort of dotting there is and crossing their Ts before they 

get started. So it would be a help to some projects. 

82 

Mr. LONG. Ok. And Mr. Chairman, that is all I have, and I yield 

back. 

Mr. OLSON [presiding]. The gentleman yields back. 

Seeing there are no further members wishing to ask questions 

for the first panel, I would like to thank both you, Mr. Turpin, and 

you, Mr. Katz, for being our witnesses today. This will conclude our 

first panel, and we will now take a few minutes to set up for the 

second panel. 

[Recess.] 

Mr. OLSON. Welcome back, and thank you for your patience and 

for taking your time to be here today. We now move into our second panel for today’s hearing. We will follow the same format as 

the first panel. Each witness will be given 5 minutes for an opening 

statement followed by a round of questions from our members. 

For the second panel we have the following witnesses: Mr. Jeffrey Soth, he is a legislative director and political director at the 

International Union of Operating Engineers; Mr. Jeffrey Leahey, 

the deputy executive director of the National Hydropower Association; Mr. William Robert Irvin, president and CEO of American 

Rivers; Ms. Jennifer Danis, the senior staff attorney at the Eastern 

Environmental Law Center; Mr. Donald Santa, president and CEO 

of the Interstate Natural Gas Association of America; and Mr. Andrew Black, president and CEO of Association of Oil Pipe Lines. 

We appreciate you all being here today. We will begin this panel 

with Mr. Soth, and you are now recognized for 5 minutes to give 

an opening statement. 

STATEMENTS OF JEFFREY SOTH, LEGISLATIVE AND POLITICAL DIRECTOR, INTERNATIONAL UNION OF OPERATING 

ENGINEERS; JEFFREY LEAHEY, DEPUTY EXECUTIVE DIRECTOR, NATIONAL HYDROPOWER ASSOCIATION; WILLIAM ROBERT IRVIN, PRESIDENT AND CHIEF EXECUTIVE OFFICER, 

AMERICAN RIVERS, INC.; JENNIFER DANIS, SENIOR STAFF 

ATTORNEY, EASTERN ENVIRONMENTAL LAW CENTER; DONALD F. SANTA, PRESIDENT AND CHIEF EXECUTIVE OFFICER, 

INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA; AND 

ANDREW BLACK, PRESIDENT AND CHIEF EXECUTIVE OFFICER, ASSOCIATION OF OIL PIPE LINES 

STATEMENT OF JEFFREY SOTH 

Mr. SOTH. Thank you, Vice Chairman Olson, Ranking Member 

Rush, members of the subcommittee, it is an honor to join you at 

your first legislative hearing to the 115th Congress. My name is 

Jeffrey Soth. I am legislative and political director of the International Union of Operating Engineers. The Union represents almost 400,000 men and women in the United States and Canada. 

In short, we build and maintain the cranes, bulldozers, and backhoes that build North America. 

Members of the Operating Engineers are some of the most highly 

skilled, highly trained construction craft workers in the world. We 

deliver training at over 86 facilities in the United States where we 

employ 550 instructors. The IUOE and its employers invest over 

$128 million annually in local apprenticeship and training proVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
83 

grams, and I want to point out here, at no cost to the public. That 

is exclusively, privately financed. 

In addition to the training of local unions, the IUOE conducts 

specialized national training in coordination with the Pipe Line 

Contractors Association in the pipeline sector. We invest over 5 

million annually in that work to ensure the safe installation and 

construction techniques in the pipeline industry making it the 

safest in the world. The pipeline training program has historically 

been delivered at locations around the country where there is a 

large project or regional demand for pipeline training. 

What I am pleased to share with the committee that the IUOE 

is building a new home for its pipeline training in Crosby, Texas. 

In spring 2018, the IUOE will open our international training and 

education center, $150 million training center in the heart of the 

Gulf Coast. I have attached a rendering of the facility and a site 

plan of the project where you can see just how much of that property is dedicated to pipeline training. And again this facility is 

being built at no cost to the public. There are no public resources, 

no taxpayer dollars whatsoever associated with the $150 million investment. 

Let me turn now to employment and wages in the construction 

sector and in the pipeline industry in particular. The construction 

industry has the highest unemployment rate of any industry sector 

at 8.4 percent. Employment in the oil and gas pipeline sector of the 

construction industry is near a 5-year low. Please see the chart attached to my testimony. 

As you can tell from it, we are down about 20 percent of total 

jobs in the sector since the summer of 2015. I should point out that 

these are good, family sustaining jobs. Production and nonsupervisory workers make over $30 an hour in the pipeline industry, and compare that to $21.90 in all private sector payrolls. 

After that description and background of the IUOE’s role in 

training and our look at labor market information, let me turn to 

the legislation before the committee and two pieces of legislation in 

particular related to pipelines. 

Regulatory uncertainty and procedural delays during environmental review are hindering the growth of these good jobs and the 

other benefits that go along with this domestic energy production. 

Congress needs to update and streamline the permitting and regulatory framework to ensure that the domestic oil and gas industry 

flourishes in a safe and predictable way. To put it simply, it is time 

to modernize the Federal code for energy infrastructure. 

That is why they IUOE supports the Cross-border Energy Infrastructure Act and the Promoting Interagency Coordination for Review of Natural Gas Pipelines Act. The cross-border legislation in 

particular takes the important step of codifying the process to permit a project that crosses the border. Now that there is not a controversial project under consideration it is the right time to make 

this move away from the ambiguity of an executive order. 

Frankly, it is time to legislate regarding cross-border permits. 

The State Department’s inspector general described the problem in 

a special report in February of 2012 when it reviewed the Keystone 

XL permit process. It determined that the limited expertise and experience of State Department officials with respect to NEPA and 

84 

environmental reviews frustrated and delayed the permitting process for KXL, perhaps even leading to a need for a whole supplemental EIS and adding 11 months to that process. 

It is time to place responsibility for cross-border permits in an 

experienced environmental agency like FERC. The interagency coordination bill makes important reforms to natural gas pipeline 

permitting. The bill will give FERC additional tools to identify potential issues that can hinder State and Federal agencies from conducting timely reviews. 

It is an important evolution from the simple 12-month limit legislation that has been considered in past Congresses and it is time 

to more closely address, that this legislation more closely addresses 

the real problems associated with permitting delays. The IUOE encourages you to pass these two pieces of legislation and we look forward to working with the committee to enact them in this 115th 

Congress. And thank you, Vice Chairman Olson, for the opportunity. It was a pleasure to join you today. 

[The prepared statement of Mr. Soth follows:] 

85 


Submitted by 

Jeffrey Soth 

International Union of Operating Engineers 

to the 

Energy and Commerce Committee 

Subcommittee on Energy 

Hearing on 

"Legislation Addressing Pipeline and Hydropower Infrastructure 

Modernization" 

lOam 

May 3, 2017 

2123 Rayburn House Office Building 

Washington, DC 

1 
86 


One Page Summary of Major Points 

Operating Engineers and the Pipeline Industry 

Members of the Operating Engineers arc some of the most highly trained and skilled 

construction workers in the world 

IUOE conducts specialized training on skills specific to the pipeline industry 

The IUOE trains tens of thousands of apprentices and journey-level workers at over 86 

facilities around the country that are focused on construction at no cost to the public 

The IUOE employs over 550 highly-rated instructors at our construction training facilities 

Employment and Wages in Construction and the Pipeline Industrv 

The construction industry has the highest unemployment rate of any industry sector at 8.4% 

Employment in the Oil and Gas sector has hit a five-year low 

lUOE members' skill set allow them to demand the highest wages and benefits of any 

workers in the occupation 

Energv Infrastructure Modernization in the Federal Law 

Regulatory uncertainty and procedural delays during environmental reviews have hindered 

the growth of jobs related to the pipeline industry 

There needs to be an updated. streamlined permitting and regulatory framework ensuring that 

the domestic oil and gas industry nourishes in a safe predictable way 

An anachronistic regulatory structure inhibits the development of the industry and familysustaining jobs that go along with it 

The lUOE supports the ''Cross-Border Energy Infrastructure Act" and the "'Promoting Interagency Coordination for Review ofNatural Gas Pipelines Act" 

2 
87 


Thank you for the invitation to join you this morning, Chairman Cpton and members of 

the subcommittee. It is an honor to join the committees for its first legislative hearings of the ll5'h 

Congress. particularly as you try to address the critical need to modernize the federal law in relation 

to the nation's energy infrastructure. 

My name is Jeffrey Soth. I am the Legislative and Political Director of the International 

Union of Operating Engineers (IUOE), AFL-CIO. The union represents almost 400,000 men and 

women in the United States and Canada. Every day across the United States, thousands of IUOE 

members are building the nation's pipelines, power plants, and other vital energy infrastructure. 

Tens of thousands of members of the !UOE are mechanics and heavy-equipment operators in the 

construction sector. In short, we operate and maintain the cranes. bulldozers, and backhoes that 

build North America. 

To perform this work safely and productively on some of most sophisticated, technical 

construction projects on the globe, members of the Operating Engineers union receive extensive 

craft training through an on-the-job apprenticeship model. 

There arc key benefits to the training model for the worker, the employer, and the general public. 

For workers, the apprenticeship training (typically a three- or four-year duration) delivers the 

following: 

nationally-recognized. portable credentials upon completion 

regularly scheduled, progressive wage increases connected to experience and skilldevelopment 

higher earning potential and greater financial security 

more opportunities for future training and advancement 

college credits offered through many programs 

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88 


For employers, the apprenticeship model delivers skilled workers trained to industry 

specifications and needs. Employers jointly manage the programs with members of the union, 

developing the curriculum to ensure that the skills that workers possess arc the same skills the 

employers demand on the job. The system of apprenticeship provides a pipeline of new skilled 

workers for employers, and perhaps most importantly, the system delivers reduced costs due to 

worker productivity and safety. The system serves as a model for delivering industry-driven training 

in the construction sector and beyond. 

The general public also receive extensive benefits from the apprenticeship and training model of 

the Operating Engineers. The risk to life, property, and the environment is minimized through 

extensive worker training by the JUOE. It is not just the workers "under the hook" who are exposed 

to risk from a tower crane accident, for example. Neighboring buildings and passersby can also be 

in danger. Similarly, pipeline infrastructure that is designed to last more than fifty years needs to be 

installed in the safest possible way, and that is the commitment of the JUOE. It is training that 

introduces the latest techniques, technology, and equipment to members of the IUOE in its effort to 

construct the world's safest pipeline network. The public does not bear any of the cost of the 

privately-funded training. And the family-sustaining wages and benefits that skilled workers earn 

supports the communities in which they live. 

Through this system that combines on-the-job experience and classroom training, the 

apprenticeship model delivers the skills necessary for Operating Engineers to excel in their careers. 

Generally, Operating Engineers' training programs within the construction industry are regulated by 

the Department of Labor's Office of Apprenticeship (or through State Apprenticeship Councils), 

and are governed by a Board of Trustees comprised of an equal number of contractors' 

representatives and labor representatives. 

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89 


The International Union of Operating Engineers. in partnership with employer-contractors, 

trains tens of thousands of apprentices and journey-level workers at over 86 facilities around the 

country that are focused on construction. In 2015 alone, these programs invested over $128 million 

annually to meet employers' needs for a skilled workforce (IUOE Census Survey, 20 16). Those 

numbers do not include national training programs like the Pipeline Training Fund, which will be 

discussed below. With over 550 construction instructors at the JUOE's training centers, the union 

possesses extensive workforce-development capacity and expertise. The work opportunities for 

Operating Engineers in the pipeline industry, however, require specialization within the craft. 

IUOE Local Union 

Construction Training Activity 

2008-2015 

Average Annual Number of Apprentices 

Enrolled 

Number of Apprentice Completions 

Total Number of Journey Workers in Upgrade 

Pro!! rams 

Total Number of Journey Level Training Hours 

Operating Engineers and the Pipeline Industry 

6,057 

10,328 

412,328 

9,789,651 

Members of the IUOE play an essential role in the pipeline industry. The JUOE is signatory 

to the National Pipeline Agreement, along with the Laborers International Union of North America 

(LiUNAl), International Brotherhood of Teamsters (JBT). and the United Association of 

Journeymen and Apprentices in the Plumbing and Pipcfitting Industry in the United States and 

Canada (UA). The pipeline industry is a key segment of the construction sector for Operating 

Engineers. In many ways. it is at the heart of IUOE members' work opportunities. 

The pipeline industry has a unique set of skill requirements and Operating Engineers arc 

perfectly suited to what the industry demands -- the safest, most productive workforce available. 

5 
90 


Roughly one-quarter of the worker hours on a pipeline project for Operating Engineers is derived 

from operating a sideboom, a piece of equipment unique to pipeline construction. Specialized 

training is necessary to operate other heavy equipment in the pipeline industry, too. That is why, 

in addition to the broad craft training that a member of the Operating Engineers receives from 

his/her local union's joint apprenticeship and training fund. the IUOE privately operates a training 

partnership with the Pipe Line Contractors Association to meet the specific needs of the pipeline 

sector. Under the collective bargaining agreement negotiated between the Pipe Line Contractors 

Association and the IUOE. 75-ccnts an hour is contributed to training. These hourly contributions 

combine to allow the labor-management Pipeline Training Fund to invest over $5 million in 2015 

alone, with no public resources w·hatsocver. 

Historically. the Pipeline Training Fund has delivered on-demand mobile training in 

specific areas around the country where there was extensive pipeline work, or a large, anticipated 

project. Within a year the Pipeline Training Fund will find a new home in Crosby, Texas. 

The IUOE is constructing the International Training and Education Center (ITEC) on 225 

acres in the Gulf Coast area, just outside of Houston. Not coincidentally, billions of dollars of 

private investment in the oil and gas industry is projected in the region. The private project will 

cost roughly $150 million and is slated for completion in Spring 2018. Not only will the ITEC 

house specially pipeline training. the facility will be the new home to specialty crane training and 

the regional Stationary Engineers Apprenticeship and Training Trust (SEA TT). a new training 

partnership in the Gulf Coast petrochemical industry. 

After that summary of who we arc and how we fit into the sector, let me turn to the broader 

industry dynamics of the construction sector and the pipeline industry group, with a look at the 

publicly-available labor market data from the Bureau of Labor Statistics (BLS). 

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91 


Emplovment and Wages in Construction and the Pipeline ludustrv 

The employment situation in construction is dramatically improved since the depressionera levels of unemployment experienced during the Great Recession -unemployment reached over 

27% in l'ebruary of 2010. Yet it is also true that the construction industry still has the highest 

unemployment rate of any industry sector in the American economy at 8.4% (not seasonally 

adjusted). approaching a rate that is twice the national average, according to the most recent data 

available (March 20 17). 

You can see the low point in construction employment in January 2011. (Discrepancies 

between the unemployment rate and number of persons employed in the industry can be attributed 

to the different surveys used by BLS.) As you can sec in the graph attached to my testimony, the 

sector is still down over 700,000 workers from when the Great Recession started in December 

2007. 

Now let us focus more closely on the pipeline sector. In the second chart attached to my 

testimony, you can sec employment in the oil and gas industry group within the construction 

industry. 

While employment in the pipeline industry group reached an all-time high less than two 

years ago in June 2015, a concerted attack on new pipeline infrastructure has taken its toll on the 

permitting of new projects and the industry's workers Operating Engineers, in particular- have 

paid the price. 

According to the most recent data available from the Bureau of Labor Statistics, 

employment in the oil and gas industry is close to a five-year low. There has been a 20% decline 

in employment in less than two years. 

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92 


There can be little doubt that persistently depressed oil and gas prices have had a bearing 

on the decrease in pipeline activity, but the antiquated regulatory framework has also delayed 

projects. Some other projects have been denied outright- the Pacific Connector in Oregon, the 

Constitution Pipeline in New York, and the list goes on. 

It is important to consider that jobs in the oil and gas pipeline construction industry group 

create high-quality jobs. Wage estimates for production and nonsupervisory workers in the oil and 

gas pipeline industry are over $30.50 an hour. according to the most recent data from the Bureau of 

Labor Statistics. That compares to $21.90 an hour for production and nonsupcrvisory workers in all 

of the private sector. 

Energy Infrastructure Modernization in Federal Law 

In order to capitalize on the opportunity presented by this abundant American natural 

resource, Congress must update its anachronistic regulatory structure, which inhibits the 

development of the industry and the jobs that go along with it. Fully realizing the opportunities 

associated with America's natural resources requires an update and overhaul of the federal law. 

Congress should modernize our pipeline infrastructure policy. Legislation before the 

subcommittee gives us an opportunity to turn around the gloomy outlook of the pipeline industry 

described above. just as the Administration has signaled a new approach to pipelines and the 

forecasters suggest that oil prices may be on the rise. 

The Energy Equipment and Infrastructure Alliance (EElA) has identified 33 major pipeline 

projects that have either been announced or arc under construction. These projects represent an 

estimated investment of $60 billion and are expected to require 9,300 miles of large diameter 

pipeline. An lHS Global study finds that $8 billion a year could be invested in just gathering 

pipelines, not including distribution and transmission. for both the oil and gas industry. 

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93 


It is essential that the American energy policy support the development of this domestic 

resource by keeping pace with the dramatic innovations that arc occurring in the sector. In a number 

of cases, the growth in the industry has simply outpaced the nation's regulatory framework, and that 

is why legislation before the subcommittee is so desperately needed by Operating Engineers and 

other workers in the industry. Unfortunately, regulatory uncetiainty and procedural delay during 

environmental reviews have hindered the growth of jobs related to the natural-gas industry, as you 

can see in the dramatic decline in jobs since the Summer of 2015 in the attached chart. Congress 

should establish sound, transparent policies to guide domestic natural-gas and oil development in 

order to maximize the economic opportunities associated with this abundant American resource. A 

new approach is needed, and two pieces of legislation before the subcommittee, in particular, help 

move the country in the right direction. 

The International Union of Operating Engineers previously endorsed the natural-gas 

permitting legislation introduced by then-Chairmen of the subcommittee Congressman Whitfield 

and now CIA Director Pompeo, H.R. 1900, a bill that would have limited the Federal Energy 

Regulatory Commission's (FERC or Commission) environmental review to twelve months. While 

FERC Commissioner Moeller testified at the time that the time line was achievable, if the clock 

began to tick only after the agency had received a completed application, it became clear that, 

frankly, FERC is not necessarily the problem (assuming at least there is a quorum of 

commissioners). Rather, FERC needs tools to herd the other federal cats involved in the permitting 

process. That is precisely what the "Promoting Interagency Coordination for Review of Natural 

Gas Pipelines Act'" seeks to accomplish. 

This legislation. while combating much the same problem identified in H.R. I 900, makes 

an important evolution in addressing it. Frankly, the bill more specifically attacks the problem. 

9 
94 


The new legislation requires agencies to establish a transparent plan by which they assist FERC in 

meeting its obligations. The legislation establishes concurrent review of the slate or federal 

agencies with a role in the permitting of a natural-gas pipeline under the National Environmental 

Policy Act (NEPA)- a move that also has been made in federal law with respect to the permitting 

of public water and transportation infrastructure. The legislation requires agencies to submit 

regular updates to PERC identifying its progress in reviewing an application. And. impotiantly, 

the legislation demands that state and federal agencies responsibly identify issues of concern that 

may delay a decision or prevent the Commission from issuing a timely authorization. 

The IUOE supports the Cross-Border Energy Infrastructure Act. The IUOE has a long 

history in relation to the Presidential Permit process and the approval of projects under its terms. 

In our view it is the right time to update the federal approach to cross-border permitting, while 

there is not a high-profile project under consideration. It is time to f(Jr Congress to codify the 

process. taking it out of the uncertainty of an executive order and embedding it in the federal law. 

Perhaps one of the most important assessments of the existing permit process can be f(Jund 

in the ''Special Review of the Keystone XL Permitting Process" conducted by State Department's 

Office of Inspector General in February 2012. While the Special Review basically dismissed 

concerns raised by Members of Congress regarding conflicts of interest between the third-party 

contractor obtained by the State Department and the applicant, TransCanada, the Office of 

Inspector General identified problems within the State Depa1iment in conducting environmental 

review under the National Environmental Policy Act that should be addressed by this Congress. 

In the report the Office of Inspector General says, 'The Department's limited technical 

resources, expertise, and experience impacted the implementation of the NEPA process." The State 

Department's lack of competency and capacity to manage NEPA processes can negatively affect 

10 
95 


their environmental review. In fact, the Olfice of Inspector General asserts that, "' ... had the 

Department had more expertise in NEPA and more knowledge of the information and analysis 

needed for an EIS, the Department may have been able to avoid the Environmental Protection 

Agency's poor rating of the draft EIS and the need for a supplemental E!S ... the Department issued 

a supplemental EIS in April 20 II and ended the public comment period in June 20 II, which 

prolonged the EIS process by II months." (Special Review, page 20-21 ). 

Given the long history of FERC in processing environmental reviews under NEPA, it is 

the logical federal agency to manage the cross-border permit process, despite its lack of familiarity 

with crude oil pipelines. The Commission possesses extensive expertise in energy markets and in 

managing environmental reviews for natural gas pipelines, LNG export facilities, bydro-electric 

projects, as the subcommittee is well aware. Updating the antiquated process for cross-border 

energy infrastructure is overdue, and the IUOE looks forward to working with you to enact into 

law during this 1!5'h Congress. 

Conclusion 

Members of the International Union of Operating Engineers, because of the significant 

contributions of employers and the union's leadership, are the highest-skilled, best-trained, and bestcompensated workers in the pipeline industry. These dramatic private investments in training help 

maximize the safety of the industry. 

An antiquated federal code inhibits growth and employment in the construction of America's 

infrastructure. Oil and gas pipeline employment is ncar a five-year low, in part due to the regulatory 

impediments that hinder jobs and growth. 

You have the opportunity through legislation before the committee to turn around the gloomy 

outlook in pipeline employment by codifying the cross-border permit process and by updating the 

11 
96 


natural-gas pipeline permitting process at FERC, giving the agency more tools to coordinate their 

environmental reviews with state and federal agencies and tribes. 

Thank you for the opportunity to testify, Chairman and members of the subcommittee. I am 

happy to take any questions. 

12 
97 


Attachments 

13 
98 


International Union of Operating Engineers 

International Training and Education Center 

14 
99 


International Union of Operating Engineers 

International Training and Education Center 

fXCAVA110M 

!.GRADiNG 

15 
100 


Construction Employment 

7,500 

7,490 December 2007 

'7,250 

!7,000 

6,750 

-707 : 6,500 ~~----~--~-----\---- ---~--------~--~--~~-------·-·--~-·-~---~--------~---;#-· 

6,250 

6,000 

5,750 

5,500 

5,427 Jannarv 20 II Source: Bureau of labor Statistics 

16 
101 


Oil and Gas Pipeline Construction Employment 

1~0.0 

HO.O 

1!0.0 

120.0 

December 2016 

IHUl 

+8.6 

90.0 

88.9 

May 20!0 Source:BureauofL;borStatistics 

80,0 

,s' ,'.(::) ,, 

""' 

\:::" '?v.( 

17 
102 

Mr. OLSON. Thank you, Mr. Soth. 

The Chair now calls upon Mr. Leahey for 5 minutes for an opening statement. 

STATEMENT OF JEFFREY LEAHEY 

Mr. LEAHEY. Vice Chairman Olson, Ranking Member Rush, and 

members of the subcommittee, thank you. I am pleased to be here 

to discuss the importance of hydro to the electric system, its untapped growth potential, the challenges that impede growth, and 

bills before the subcommittee today. 

Hydro provides six to seven percent of all electricity generation 

and nearly half of all renewable generation, making hydro the largest provider of renewable electricity. Another 42 pump storage 

plants make up almost all, 97 percent, of energy storage. This system contributes to cleaner air and provides other benefits, including river management for fish and habitat protection, flood control, 

drought management, water supply, irrigation and more. 

Hydro also provides many grid benefits: base load power, peaking 

generation, load following, reliability. With the growing need for 

these services, hydro has increased capacity by nearly two 

gigawatts since 2005. 

Hydro infrastructure also brings many economic benefits. The industry employs a work force of almost 150,000 and access to lowcost, clean, reliable power attracts many high tech firms and manufacturers. But hydro can do even more. The myth is that hydro is 

tapped out. But that is not the case and I direct the subcommittee 

to the 2016 Department of Energy Hydropower Vision Report. This 

report with input from industry, environmental groups, and State 

and Federal agencies outlines 50 gigawatts of growth potential by 

2050. 

Let me highlight two prime examples, pump storage and building 

on existing infrastructure nonpowered dams and conduits, the 

focus of three of the bills today. Pump storage can rapidly shift, 

store, and reuse energy until there is corresponding system demand while facilitating the integration of variable generation. As 

more intermittent and renewable generation is added to the grid 

and other base load generation is lost, the need for pump storage 

is increasing particularly in the West. 

Of the 80,000 U.S. dams, only 3 percent generate electricity highlighting the potential in the nonpowered dam sector. Many of these 

opportunities are located in regions some may considered unexpected, such as the Southeast and Rust Belt States. Conduit opportunities are also available across the country where power generating equipment can be added to tunnels, canals, and pipes. However, projects are not being deployed due to the uncertain, duplicative, and lengthy overall regulatory process. 

NHA member company, Missouri River Energy Services, reports 

that their new project at a Corps of Engineers dam in Iowa will 

come on line in 2018, having started the development process in 

2005, 13 years ago. I cannot overstate how crucial it is to enact 

process reforms immediately. The Nation could access huge 

amounts of reliable low-cost power without sacrificing other values. 

Existing project owners are also expressing concerns. With well 

over 400 projects up for relicensing by 2030, NHA is already hearVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00108 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
103 

ing from owners particularly in the Northeast that the time and 

cost for licensing may render projects uneconomic and result in license surrenders. Congress must address the challenges both asset 

owners and developers face. 

Over the last 5 years, this subcommittee has developed an extensive record on the problems experienced by industry. The message 

has been clear and consistent. Licensing takes years to complete, 

requires substantial up-front costs, and contains too much uncertainty and risk, all of which for a developer creates a significant 

barrier to securing financing or capital and for a utility makes it 

difficult to justify project economics. 

Turning to the bills before the subcommittee today, NHA strongly supports policies to address inefficiencies and improve the coordination in the project approval process which we believe will 

promote the hydropower resource while also protecting environmental values. I have included specific comments on all of the bills 

in my written statement and ask permission to include for the 

record additional letters of support that are submitted following 

this hearing. 

Focusing on the Hydropower Regulatory Modernization Act, it incorporates bipartisan proposals that NHA supports and which were 

included in legislation in last Congress. It is a crucial first step to 

address the barriers to developing hydropower’s untapped potential 

and the problems experienced in relicensing. 

Empowering FERC as the lead agency to coordinate the schedule, requiring FERC and agencies to coordinate, facilitating concurrent decision making, early identification of issues, and elevating 

disputes to leadership are improvements that should increase 

transparency and accountability and eliminate delays. However, 

NHA also believes improvements to the bill are needed as the language appears to rescind important provisions under current law. 

This includes the requirement for agencies to give equal consideration to developmental and nondevelopmental values when 

crafting mandatory conditions, and the opportunity for discovery 

and cross examination as part of the trial-type hearings process. 

These received bipartisan support when adopted and were backed 

by industry and stakeholders alike. 

Finally, NHA believes continued work through last year on some 

of these provisions resulted in new language that provides further 

clarity and direction and should be adopted. And we believe this 

hearing creates an opportunity for further dialogue on issues documented in the record but for which solutions were not advanced. 

And with that I will conclude my testimony and I look forward to 

answering your questions. 

[The prepared statement of Mr. Leahey follows:] 

104 


Written Testimony of 

Jeffrey Leahey 

Deputy Executive Director 

On behalf of 

The National Hydropower Association 

Before the 

House Energy and Commerce Committee 

Subcommittee on Energy 

Hearing on Legislation Addressing Pipeline and Hydropower 

Infrastructure Modernization 

May 3, 2017 
105 


Executive Summary 

I. In the last several years, hydropower has provided approximately 6 percent of all U.S. electricity 

generation and nearly half of renewable generation. By 2030, approximately 400 projects representing 

18,000 :vlW of capacity of the existing system will be up for rclicensing. 

2. Hydropower has significant untapped growth potential, particularly at existing infrastructure and with 

low impact projects. such as capacity additions at current hydropower facilities, adding generation to 

non-powered dams, and dosed-loop pumped storage, among others. The Department of Energy's 

recent Hydropower Vision Report estimates that close to 50 OW of new capacity is available by 2050, 

with the right conditions and policy support in place. 

3. New hydropower project development, as well as the rclicensing of existing projects, faces a variety 

of obstacles. with one of the most challenging being the complex, time consuming and costly 

regulatory process. NHA strongly suppm1s policies to address regulatory inefficiencies and to 

improve coordination in the overall hydropower project approval process, which we believe can be 

done in ways that promote the hydropower resource while protecting environmental values. 

4. Hydropower has a critical role to play in meeting our nation's energy, environment, and economic 

objectives. The benefits from this resource arc many -low-cost, reliable, base load renewable 

electricity. along with additional ancillary grid services (load following, frequency response, energy 

storage, etc.). 

5. As the Congress works to address our energy and infrastructure needs. whether through hydropowerspecific legislation. a national infrastructure program, or an energy bill, policies that improve the 

regulatory environment and provide greater ccttainty and predictability must be included. A greater 

recognition that our hydropower infrastructure is incredibly valuable is needed, and continued 

investment and re-investment in the system is critical to our energy future and national security. 

2 
106 


Introduction 

Good morning Chairman Upton, Ranking Member Rush, and members of the Committee. I am 

Jeffrey Leahey. Deputy Executive Director of the National Hydropower Association (NHA). I am pleased 

to be here to discuss the importance of hydropower to the U.S. electric system, its untapped growth 

potentiaL the challenges that impede growth. and the discussion drafts and bills before the Subcommittee 

that aim to address these impediments. 

As background, NHA is a nonprofit national association dedicated to promoting clean, affordable, 

renewable U.S. hydropower- from conventional hydropower to pumped storage to marine energy to 

conduit power projects. NHA represents more than 220 companies, from Fottune 500 corporations to 

family-owned small businesses. Our members include both public and investor-owned utilities, 

independent power producers, developers, equipment manufacturers and other service providers, and 

academic professionals. 

t:.S. Hydropower Statistics 

Currently, the U.S. conventional hydropower fleet is made up of almost 2200 individual plants 

with a total capacity around 80 GW. In the last two years. these plants provided approximately 6 percent 

of all U.S. electricity generation and almost half of all renewable electricity generation making 

hydropower the single largest provider of renewable electric power in our country. Looking over the long 

term, hydropower has supplied a cumulative I 0 percent of U.S. electricity generation over the past 65 

years ( 1950-2015). and 85 percent of cumulative renewable power generation over the same time period. 1 
107 


In addition to the conventional hydropower system there arc an additional 42 hydropower 

pumped storage plants with approximately 22 GW of capacity projects that make-up almost all, 2Z 

percent. of energy storage in the U.S. today. 2 

Hydropower generation is a clean air resource and avoids millions of metric tons of carbon 

emissions each year. In fact, regions that rely on hydropower as a primary energy source (like the 

Northwest) reap the benefits of significantly cleaner air with some of the lowest carbon intensity rates in 

the country. 

In addition to this clean and renewable energy, hydropower infrastructure provides other important 

benefits, including managing river flow for aquatic species and habitat protection, flood control and 

drought management, water supply. irrigation and more, as the chart below illustrates 3 

i' " 

~ ~ ,. 

i • 'l. 

u 

J li 

" 

~etreahon :::load/Storm Irrigation Navig21tlon Water Other' 

Manaoement Supply 

• O!paoty (MW) Number of Plant<; 

l':'igtJre ::Hl, l'otii, <ilP<1Cit1 ami N!r'!ltl<:!r af :JIJ'l!S 'm- s.~ ~para~e us!:'> (!IIUS!I'ilted b}' tN! bi\Jo' bOir:o)of .::csnng hy·cJro;:>owl!!' 

UilntSil:ldre<~r<t{l!r~ 

The next map below was developed by the Department of Energy (DOE) through Oak Ridge 

1\Jational Laboratory (ORNL) and provides a visual representation of the size and location of projects for 

both the federal and non-federal hydropower systems. Existing hydropower assets are located in all but 

; 2016 Hydropower Vision Report, Department of Energy. Office of Energy Efficiency and Renewable \V!nd and 

Water Power Technologies Office, Executive Summary P. 9. bl~"!i'.£!!£I!i:L£9:i.i:ill>~Wl!!ffil£l.I2Q_L§!.UJL!lli!:b@r<;m£~I: 

Vis ion:g~£_y_!_i_y_~S_ L!!!' QlnfJ:'_~ l_Q_~..l~"Q L9~4J 

'I Iydropower Vision Report, Chapter 2, Page 83. 

4 
108 


two states (Delaware and :vlississippi), though every state receives the benefit of the clean renewable 

generation that these projects provide. 

The contributions of the existing hydropower fleet to the electric grid are many (bascload power, 

peaking generation. load-following, energy storage, reliability and more). With the need for more of these 

benefits and services as the nation strives to become more energy independent, NHA has seen the 

hydropower industry grow and expand in recent years. 

In fact, the United States experienced a net capacity increase of 1.4 GW4 from 2005 to 2013, 

enough to power over half a million homes5• l'ERC has reported an additional 260 MW of capacity being 

placed in service since then, with even more projects in licensing or in the construction phase today. And 

'

1 2014 Hydropower Market Report. Executive Summary P. VL 

sAn Assessment of Energy Potential at Non-Powered Dams in the lJnitcd States, Dcpatimcnt of Energy, Office of Energy 

Efficiency and Renewable Energy, Wind and Water Power Technologies Office and Oak Ridge National Laboratory, April 

2012, Executive Summary P.VII, Footnote 1. http://nhaar.ornl.gov/sitesidefaultifiles/NHAAP "SPD FYll Final Report.pdf 

5 
109 


this number could signilicantly increase with a modernized regulatory approval process that currently 

takes years longer than that of other renewable resources in some cases licensing can take I 0 years or 

longer. 

In addition, hydropower projects bring multiple economic benelits to the communities in which 

they are located and those that they serve. To start. the industry itself currently employs a sizable 

workforce. 143,000 jobs are created just from the continued operation and maintenance, as well as 

upgrades. of the existing system, with additional employment opportunities gained in the pursuit of new 

project development and deployment 6 

One recent example that demonstrates the jobs benclit is AMP Public Power Partners of Ohio. 

AMP is building 4 new hydropower projects on existing Corps of Engineers' dams on the Ohio River (3 

are completed and I is still under construction). The company rep01ts that approximately 1800 

construction jobs were created over a 4 year construction window. with the operation of the projects 

providing an additional 50 permanent jobs. Another example is Missouri River Energy Service's Red 

Rock project on the Des Moines River near Pella, Iowa, currently under construction at a Corps of 

Engineers dam. The company estimates that 250 workers will be needed on site through 2017-2018. 

On top of this, the access to low-cost, reliable clean power is attracting many companies to regions 

with hydropower. For example. major high-tech companies like Googlc, Faccbook, and Yahoo require 

large, energy-intensive data centers to drive their businesses. Specifically. in September 2010. Yahoo 

opened a new facility in Lockport. ~cw York to utilize hydropower provided by the New York Power 

Authority. And again, in 2013. ~cw York officials cited the importance of low-cost hydropower in 

Yahoo's decision to expand the Lockpot1 facility.' 

6 Vision Chapter 2, Page 201¥204. ~~..!!£rgy.go~!~L~~~'Lm:od/fi!es/20! 6/1 O/G_J[Ijy_Q_rp_n._~ver-Vision-.r~r.:~..9_:u19~§Jillf 

) http;/:'www.nypa.gov/Presst20! 3/130322.pdf 

6 
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Another example of hydropower supporting economic development and new job creation 

partnerships is BMW. Access to low-cost and reliable hydropower along with other rcncwablcs lured the 

company to Moses Lake, Washington. Breaking ground on its $200 million manufacturing facility in July 

2010, the plant, a joint venture with SGL Automotive Carbon Fibers, was built to supply parts for BMW's 

line of high performance cars. In fact. the company in 2014 announced it would fund a $100 million 

expansion of the facility- again citing access to affordable hydropower along with other rencwablcs.H 

Growth Potential 

One of the largest misconceptions of the hydropower industry is that any growth potential is 

··tapped out". In its new report issued in 2016 titled. Hydropower Vision: A New Chapter for Americas 

I" Renewable Electricity Resource, the Department of Energy smashes that myth. The Vision analysis 

finds that U.S. hydropower could grow to nearly 150 GW bv 2050. This would represent close to a 2Q 

percent increase in capacity. 

The report identifies oppmtunities for l3 GW of new hydropower capacity by adding generating 

facilities to existing non-powered dams and canals, upgrades to existing hydropower facilities, and limited 

development of new stream reaches. It also finds the potential to add up to 36 GW of new pumped 

storage capacity. 

Looking to the benefits ofthis potential, the rcpon finds $148 billion in cumulative economic 

investment. $58 billion in savings in avoided mortality, morbidity and economic damages from air 

pollution. Cumulative 30 trillion gallons of water withdrawals avoided for the electric power sector. 

5,600,000,000 metric tons of CO, emissions reductions with $209 billion in avoided global damages. And 

over I 95,000 hydropower-related gross jobs spread across the nation in 20509 These arc quite substantial 

benefits for our country. A brief analysis of the growth opportunities follows below. 

8 http:!/wvvw.seattletimes.conJJlU~.Il£~.~LQnJ.lY.:!?Ji!!b~..:.Q.!f~.:expansion-of-moses-lake-carbon-fiber~p_@n!l 

·J I !ydropowcr Vision, Executive Summary P. 7 and 2."L 

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Adding Generation to Non-powered Dams 

One of the prime areas of growth in the hydropower industry is on existing inf!·astrueture, such as 

non-powered dams and conduits. Of the approximately 80.000 dams in the U.S. today only 3 percent 

have electric generating fircilitics. Put another way, 97 percent of our dams do not produce power and 

were built for other purposes such as water supply, flood control, irrigation. navigation and recreation. 

Nl li\ recognizes that not every existing dam may be a suitable candidate to add power generating 

equipment, as many factors come into play in development decisions: project development costs and 

revenue opportunities: energy generation potential~ natural resource considerations; transmission needs; 

dam safety; etc. llowcvcr, this statistic shows the large untapped universe of potential opportunities and 

that arc not being developed in significant part because of the concerns about the uncertain. duplicative 

and lengthy regulatory process. 

Those dams that are prime candidates for hydropower development arc inti·astructure that will 

continue to exist, operate and release flows for the other purposes for which they were originally 

constructed regardless of whether hydropower lircilities are installed. It is good public policy to take 

advantage of these existing releases to capture the energy currently untapped at these sites to add to our 

portfolio of renewable, carbon-free resources. 

The U.S. Department of Energy recognized this opportunity and in 2012, through the Oak Ridge 

National Laboratory, released an assessment of potential capacity at non-powered dams for projects 

greater than I MW. The map below on the following page depicts the size and location of the top projects 

of that survey with capacity greater than I MW. 10 

It is noteworthy that many of these opportunities are located in parts of the country that some may 

consider unexpected, such as the Southeast and Rust Belt states. These are parts of the country l(1r which 

w http:/ www .e nergv. gov/ eere/ watedwd ropower~resource-assess ment -and-ch<~racteri .t:ation 
112 


conventional \Visdom suys there arc not as great renewable energy and for which local economic 

development opportunities arc needed and being sought 

The results of the study show that over 12 GW of potential exist across the existing system with l!. 

GW of potential available at the top 100 sites." Also of interest, 81 of the top 100 sites were located on 

federal faci lilies, in particular. Army Corps of Engineers dams. 1

' 

These types of projects arc some of the lowest impact new developments in the energy sector. No 

new dams need to be built and the projects aim to utilize existing flows through the projects. This water is 

already moving through the system, what better way to maximize the benefits of this infrastructure by 

also generating clean, renewable power with them. 

11 2012 Non-Powered Dams Report, 1:xecutivc Summary P.V!I and VJIL 17 2012 Non-Powered Dams Rcpo1i, l~xecutivc Summary P.VIII. 

9 
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CapacitY Additions/Efficiency Improvements at Existing Hvclropower Infrastructure 

The potential for new hydropower generation is not only about adding new capacity at nonpowered dams. Existing facilities arc also expanding through upgrades and efficiency improvements. 

In fact, since EPAct of2005 and the inclusion of hydropower as an eligible technology in the production 

tax credit (PTC). over !50 pi"Ojects have received certification. These projects have seen, on average. 

about a 9 percent gain in generation. 13 These !50 projects represent a smalllraction of the hydropower 

fleet. so there arc even further gains to be had if more projects undertake these kinds of power 

infrastructure upgrades. 

And in many instances with these upgrades, the project realizes not only an increase in capacity or 

generation. but also an increase in environmental performance. The Wanapum Dam Turbine Replacement 

Project by (]rant County Public Utility District in the state of Washington illustrates this. The project 

includes replacing the original turbines and replacing or refurbishing generating equipment at the dam. 

The advanced equipment is designed to be 3 percent more efficient. It will also reduce wear on the 

equipment and improve passage ofjuvcnile salmon. 14 

N!IA also notes from an infrastructure perspective that there is tremendous opportunity for reinvestment in the federal hydropower system. Almost half of the U.S. hydropower generation comes from 

the federal system, with the bulk owned and operated by the U.S. Army Corps of Engineers, the Bureau 

of Reclamation and the Tennessee Valley Authority. The median age for federal hydropower projects is 

50 years." Turbine and other equipment refurbishments (including repairs, replacements and upgrades) 

arc available and can improve the project performance from both an energy and environmental 

perspective. 

~ Federal Energy Regulatory Commission data. 

14 hHp:·/ww\v.erantpud.orgiyour-pud!proie.m/wanaptllll-dam-turbine-and-ge_ncrator-rep!acement~p_~ 

15 Hydropower Vision. Charter 2. Page 147. 

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Hvdropowcr Pumped Storage 

Pumped storage is a modified use of conventional hydropower technology to store and manage 

electricity. As shown below. pumped storage projects store potential electricity by circulating water 

between an upper and lower reservoir. 16 Electric energy is converted to potential energy and stored in the 

form of water at an upper elevation. Pumping the water uphill for temporary storage "recharges the water 

battery" and. during periods of high electricity demand. the stored water is released back through the 

turbines and converted back to electricity like a conventional hydropower station. See illustration below. 

Pumped storage projects able to rapidly shiti. store, and reuse energy generated until there is the 

corresponding system demand and for variable energy integration. This energy shitiing can alleviate 

transmission congestion. which helps more efliciently manage the electric grid. and can reduce the need 

for costly new transmission projects, as well as to avoid potential interruptions to energy supply. 

As more intermittent generation is added to the grid, particularly in the West, the need for the 

services that pumped storage provides is increasing. As a result. we are seeing a significant renewed 

interest in these projects, including closed-loop project proposals, which are the subject of one of the draft 

I~> Illustration provided by GE Renewable Energy. 

11 
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bills for this hearing today. 17 i\s the map below shows, there arc currently close to 15,000 MW of 

proposed new pumped storage projects before FERC with preliminary permits right now. 

) .. 

, .. 

"' '" 

NY 

Issued Preliminary Permits for Pumped Storage Projects 

: .. 

Sourc.: flRCStJO~Janu.!l~ 12.2017 

Again, Nlli\ recognizes that not all of these projects may be developed, however, they clearly 

rebut the proposition that hydropower is a "tapped out" resource. 

Conduit projects utilize existing tunnels, canals, pipelines, aqueducts and other manmade 

structures that move water. These arc fitted with electric generating equipment and are often small 

projects able to extract power from the water without the need for additional infrastructure or a reservoir. 

One of the prime opportunities in this sector is at Bureau of Reclamation infrastructure. In a recent 

study, Reclamation identified 373 potential sites with a capacity of !03 MW, enough to power 33,000 

17 Closed loop pumped storage projects are physically separated from existing river systems. They present minimal to no 

impact to existing river systems because after the initial filling of the reservoirs. the only additional water requirement is 

minimal operational make-up water required to offset evaporation or seepage losses. 

12 
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homes'" In addition, as a result of the expedited review of non-federal conduit projects under the 

I Iydropowcr Regulatory Efficiency Act of 2013, the Federal Energy Regulatory Commission (FERC) has 

approved dozens of small conduit projects across the country. 1920 

Also, in 2013, legislation was passed 1(lcusing on similar small conduit development at Bureau of 

Reclamation infrastructure and changes to its lease of power privilege (LOPP) program. Reclamation 

continues to see increased interest in these project opportunities as wel\. 21 

New Stream-Reach Development 

Lastly, the DOE has also recently conducted a study of potential new greenfield projects. 

The assessment concluded that the technical resource potential is 85 GW of capacity. When federally 

protected lands--national parks, national wild and scenic rivers, and wilderness areas-arc excluded, the 

potential is about 65 GW of capacity. 22 ~ot all of these new hydropower oppot1unitics are likely to move 

forward once site-specific considerations are taken into account Site selection will be an important factor. 

I& Site Inventory and Hydropower Energy Assessment of Reclamation Owned Conduits (Final Report Murch 2012). 

https :1,\vww. usbr .eov/power/Canal Report/ 

: '' Imps:/ /www. ferc.gov /i nd ustri es/hydropc)\veriindus-act/efficiencv-act/q ua-condu it. asp 

'o Picture of \late! Energy, Monroe Hydro Project a 250 kw hydroelectric plant located in an irrigation canal, in pa1inership 

with 

13 
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Additionally, the industry and the DOE arc investigating innovative new technologies and operational 

regimes to see where some of this potential can be realized, while also minimizing potential impact. 

Challenges in the Hydropower Federal Licensing Regime and Impacts on Applicants 

I lydropower has the longest, most complex development timeline (for existing project rcliccnsing 

or new project approvals) of any of the renewable energy technologies, with some projects taking !Q 

years or longer from the start of the licensing process through construction to being placed-in-service, 

NHA is appreciative of the work this Committee has conducted over the past several years to 

examine the problems experienced by industry regarding the federal hydropower licensing process. An 

extensive record has been developed on these issues, Since 2012, the Committee has held multiple 

hearings and received testimony from project owners and developers across the sector from all across the 

country. These include: 

Andrew Munro, Grant County Public Utility District (W A), on May 9, 2012. 

The American Energy lniliative: Hearing on the Hydropower Regulatory Efficiency Act of 2012. 

Kurt Johnson, Colorado Small Hydropower Association (CO), also on the May 9, 2012 hearing. 

Marc Gerken, AMP Public Power Partners (OH), on March 6, 2013. Hearing on American 

Ener[;y Securitv and Innovation: 771e Role of a Diverse Electricity Generation Portfolio 

Randal Livingston, Pacific Gas and Electric Company (CA), on May I 3, 2015. Hearing on 

Discussion Drafis Addressing Hydropower Regulatory Modernization and FERC Process 

Coordination under the Natural Gas Act. 

John Suloway, NHA Past President, also on the May 13, 2015 hearing. 

Jeffrey Leahey, NIIA, on February 2, 2016. Hearing on Eight Energy Inji'astructure Bills 

Hydropo1·Ver Extension qfCommence Construction Deadlines 

Ramya Swaminathan, Rye Development (MA), on March 15, 2017. Hearing on A1odernizing 

Ener1-,>y Infrastructure: Challenges and Opportunities to Expanding flvdropower Generation. 

This record is supplemented by additional substantive hearings on the challenges and opportunities to 

modernize the hydropower licensing process held in the !-louse Committee on Natural Resources and by 

those in the Senate Committee on Energy and Natural Resources. 

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Throughout these hearings, the message has been consistcnL The federal hydropower licensing 

process contains many challenges- it takes years to complete, requires substantial up front costs. and 

contains too much uncertainty and risk all of which, as a developer, creates a significant barrier to 

securing capitaL or, as a utility, is dinicult to justify project economics and receive internal approvals. 

As Ramya Swami nathan testified in March of this year, 

"Private investors in the power generation space find the length and complexity of hydropower's 

timdine difficult to manage. As a result, hydropower development become.s expensive due to 

compounding of interest costs over long periods coupled with the unclear risk profile. When faced 

with these factors, many investors choose to invest in other forms of generation with far shmicr 

time lines and clearer risk assessments." 

This was echoed by Randal Livingston in his testimony in 2015, 

.the process to rdicense existing hydroelectric projects requires extensive consultation with 

multiple State and federal agencies. consistently takes at least seven years, and frequently lasts 

more than ten years. 

Meanwhile. the cost to PG&E customers to obtain a license renewal has routinely exceeded $20 

million per license, and some current proceedings will exceed $15 million. When, and if, a license 

is approved and received, implementing the conditions of the license also routinely costs tens-ofmillions of additional dollars . 

. . . the cost and duration associated with licensing is typically t>lr greater than any other established 

electric generation technology.'' 

The Department of Energy itself has recognized the problem noting in the Hydropower Vision Report that 

·'rnJavigating the complex system of federal and state regulations to secure project approvals 

creates hurdles for renewable energy developers. Uncertainty regarding the duration and outcome 

of the permitting process can be a deterrent for investment in clean energy and can delay 

construction of renewable energy and related transmission projccts.''23 

The chart below outlines the integrated licensing process or ILP, the default process, of several, for 

authorizing hydropower projects. 

:.-J DOE Hydropower VIsion Report p. 53. 

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Integrated Licensing Process 

(Sectwn241 oftheEnergyPo!!<:yActof2005) 

A multitude of federal and state agencies, as well as the public and other stakeholders, play a 

major and important role in the process. And in the chart above, additional authorizations such as those 

required by federal dam owners if building on their infrastructure, are not included. These decisions and 

authorizations have tended to come at the end of the time line after the FERC issuance of the license. 

The following is a list by FERC of the pertinent federal laws related to non-federal hydropower 

project development. They include: 

Federal Power Act (FPA) 

Rivers and Harbors Act of 1899 

U.S. Bureau of Reclamation Statutes 

National Environmental Policy Act (NEPA) 

Clean Water Act (CWA) 

Endangered Species Act (ESA) 

Fish and Wildlife Coordination Act 

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National Historic Preservation Act 

Coastal Zone Management Act 

Magnuson-Stevens Fisheries Conservation Act 

Marine Mammal Protection Act 

Wild and Scenic Rivers Act 

Pacific Northwest Power Planning and Conservation Act 

This docs not include other state or local statutes or permits that may also be required in the course of 

developing a project. Water is a public resource and NHA and the industry recognize the necessity for, 

and value of, thorough review of project applications. However, redundancies and sequential reviews 

contained in the overall process arc key reasons for delays. 

For example. for projects adding generating facilities to non-powered federal dams, FERC may issue a 

license, yet that project cannot commence construction until it has received additional approvals from the 

federal owner of the dam (Corps of Engineers or Bureau of Reclamation). If there arc unanticipated 

delays for those additional needed approvals, no work can commence. 

Marc Gerken's experience in this area proves illustrative. In his 2013 testimony he stated, 

"The regulatory process plays a critical role in a project schedule and ultimately can drive whether 

or not a project comes to fruition. 

A developer must have significant capital (millions of dollars in many eases) to cover the cost of 

the hydropower project through permitting, including: design, subsurface core drilling, hydraulic 

model studies, design and initial payments for equipment with long lead times. Long-term 

financing is unlikely until a developer has all the required permits in hand, which can drive when 

you can access the market and the cost of money:· 

This statement proved prophetic as AMP now reports that the delays on their Willow Island 

hydropower project (adding generation to a Corps of Engineers dam) due to the permitting process had a 

substantial dollar impact on the project. The delays affected when the company could go out to the market 

for its bonds for financing, costing it approximately 2 basis points. 

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It is a similar case for state issuances of CW A Section 40 I water quality certifications and 

biological opinions under the ESA. A license cannot be issued, nor work commenced, until these 

approvals are issued. llcrbic Johnson, the current President ofNliA, will testifY later today before the 

House Natural Resources Committee, Subcommittee on Water, Power and Oceans. In his testimony. he 

will highlight an example from a recent Duke Energy rclicensing, where the company experienced delays 

in both the CW A and ESA authorizations they sought as part of their reliccnsing. The following cites the 

company's experience with the ESA for one of their projects, 

"Delayed biological opinions under Section 7 of the Endangered Species Act also greatly extends 

rcliccnsing time. Biological opinions arc required by regulation to be completed in 165 days; 

however they routinely take years to prepare (e.g., the Sturgeon Biological Opinion for Duke 

Energy's Catawba-Watercc Hydro Project took four years to develop.)" 

At the same hearing later today, David Montagne. Executive Vice President and General Manager 

of the Sabine River Authority of Texas, will testifY to the costs associated with the recent rcliccnsing of 

the Toledo Bend project staling, 

·' ... costs will increase the Project's total operating costs by more than $7 million each year over a 

50-year license term. These reliccnsing costs substantially increase the Pro jeers total operating 

costs by nearly 44% annually. 

Reviewing FERC data on current rclicensings, NHA is aware of close to 3 dozen projects where 

the Commission has completed its NEPA analysis, but for which another agency approval is delayed (e.g. 

Clean Water Act Section 401 certification by the slate; Endangered Species Act biological opinion by 

Fish & Wildlife Service or National 'Vfarine Fisheries Service). In some of these cases, the delay on the 

needed approval is years overdue- a handful still waiting for a decision after 10 years. 

This result not only negatively impacts the license applicant through increased costs and 

uncctiainty, but it also postpones the implementation of environmental, natural resource and other 

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mitigation and improvement measures that arc included as part of the tina! license, which is a no-win 

scenario for the industry and the environment 

NJ lA believes the time, cost and risks associated with licensing hydropower projects are not 

commensurate with the impacts, particularly when compared with other forms of generation 

conventional or renewable, As former NHA President John Suloway testified in 2015, because of this, 

when faced with the choice of what type of generation to install, there is less risk in choosing a simple 

cycle turbine or a combined cycle plant that burns natural gas or low-sulfur oiL than building a 

hydropower plant 

And this is not just an issue for new project deployment, but also for existing projects that arc 

undergoing relicensing, In fact, by 2030, approximately 400 projects, representing 18,000 MW of 

capacity, will be in or have gone through rcliccnsing, NIIA has already begun to hear from owners of 

smaller projects, particularly in the >-Jortheast, but across the country, that the process costs for licensing 

may render projects uneconomic and result in the surrender of licenses, As states continue to press for 

more clean and renewable energy resources, it would be unfortunate to lose the many benefits these 

existing hydropower projects provide, 

NHA believes that Congress and the Administration should seek to reduce uncertainties in the 

hydropower licensing and rcliccnsing processes, eliminate unnecessary and/or duplicative studies or other 

requirements, create discipline in the schedule, and reduce the time for obtaining federal and state 

approvals, In doing so, policymakers would be recognizing the value of hydropower as a critical 

component in the nation's energy supply pot1folio, In addition, NHA believes process improvements can 

maintain the substantive ability of federal and state regulators to appropriately protect, mitigate and 

(!nhancc natura! resources. 

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Comments on the Hydropower Discussion Drafts 

NIIA strongly supports policies to address regulatory inefficiencies and to improve coordination 

in the overall hydropower project approval process. which we believe can be done in ways that promote 

the hydropower resource while protecting environmental values. Today's hearing on the 8 hydropower 

discussion drafts and introduced bills is important as it initiates a focused dialogue on both the problems 

with the federal hydropower licensing process and advances consensus. common-sense solutions. My 

testimony will touch on both the discussion drafts and the bills to extend the deadlines for the 

commencement of construction of the individual projects: 

Hydropower Policy Modernization Act of2017 

Promoting Hydropower Development at Existing '-ion-Powered Dams Act 

Promoting Closed-Loop Pumped Storage Hydropower Act 

Promoting Small Conduit Hydropower Facilities Act of2017 

Suppm1ing !lome Owner Rights Enforcement /\ct 

1-I.R. 446, H.R. 447. and li.R. 2122, To extend the deadline for commencement of construction of 

a hydroelectric project 

Hvdropower Policv Modernization Act of 2017 

To begin. the Hydropower Policy Modernization /\ct incorporates a series of bipartisan proposals 

that were included in either House or Senate legislation in the 1141

h Congress. It is a crucial first step to 

address the barriers to developing our nation's untapped hydropower potential, particularly with proposed 

improvements to the licensing and administration of the nation's non-federal hydropower resources. both 

existing projects and new development. 

Yly comments will focus on some of the key regulatory improvement provisions that NHA 

believes arc needed as part of any hydropower licensing bill. For example, the discussion draft empowers 

FERC as the lead agency to coordinate the schedule for all of the federal authorizations required as part of 

the hydropower licensing process. FERC is also required to consult with other agencies and the other 

agencies arc required to coordinate with the Commission. The draft also seeks to facilitate concurrent 

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decision-making amnngst all agencies and calls for early identification of issues that could impact the 

schedule, while also elevating disputes to the Secretary level in order to reach resolution. 

As discussed earlier. the main cause for uncertainty and delay in the federal licensing process is 

the lack of adherence to, and predictability with, the schedule. All of the aforementioned provisions 

should result in a process that increases coordination. transparency and accountability. and eliminates 

delays. 

NHA also commends the provisions on study improvements, requiring the compilation and 

increased accessibility of studies and data. as well as encouraging the greater usc of existing applicable 

infonnation. !laving to replicate information tor multiple agencies on the same issue can significantly 

increase costs due to the unnecessary duplication of work and eftort, and cause delays. particularly if 

certain studies arc dependent on the time of year for their execution. 

NllA also supports the license amendment improvements. This new expedited process would 

unlock the industry's ability to proceed with project upgrades. The qualified upgrades would include 

capacity additions and efficiency improvements, but also environmental enhancements, and 

improvements to public recreation. As discussed above, these arc a tremendous growth opportunity lor the 

industry and represent oppottunitics for a win-win result for both power production and the environment. 

At this time, NIIA would also like to point out areas of needed improvement in the discussion 

draft. For example. the language appears to rescind important existing provisions under the law that were 

adopted in EPAct of2005. The first of these is the current legal requirement under Section 33 of the 

Federal Power Act directing mandatory conditioning agencies to give "equal consideration'' to 

developmental and non-developmental values when crafting their mandatOty conditions. Prior to EPAct 

of2005. only FERC was required to provide such "equal consideration" in its review of license 

applications. The adoption of the provision for the resource agencies then ensured all of the government 

21 
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participants in the licensing process were subject to the same standard. By proposing to strike subsections 

(a)(4) and (b)(4) Of Section 33, the discussion draft bill would eliminate a necessary improvement to the 

hydropower licensing process. Nl!A requests that the "equal consideration" requirement be added to the 

bill when introduced. 

The second way in which the discussion draft appears to eliminate important advances gained in 

EI'Act 2005 concerns the trial-type hearings on critical factual disputes regarding agencies' mandatory 

conditioning authorities. While NHA supports the discussion draft bill"s provision that would move all of 

these hearings to administrative law judges at FER C. the legislative text that makes this change drops a 

critical aspect of these hearings: the opportunity for discovery and cross-examination of witnesses. These 

foundational components of any fact-finding hearing were included in EPJ\ct 2005 and arc required under 

existing law under FPA sections 4( e) and 18. These requirements were omitted in the discussion draft bill 

when creating the proposed new Section 35 of the FPA. Nil A requests that the bill, when introduced, add 

these pivotal provisions back to the legislative text to avoid losing a fundamental improvement, which 

would otherwise undercut the effectiveness and purpose of the trial-type hearings. 

These existing requirements received bipartisan support when adopted, and were also backed by 

the industry and stakeholders alike. As such, we believe they must be retained and the discussion draft 

amended to do so. NHA also notes that for some other provisions in the draft (e.g. license terms and credit 

f(Jr early action) that continued dialogue on the issue has resulted in new language that provides further 

clarity and direction that should be adopted into the draft bill. 

Finally, NHA believes the dissemination of the discussion drafts creates an opp01tunity for fU!ihcr 

engagement and renewed dialogue on issues that were not included in the draft (e.g. the usc of final 

conditions or other federal authorizations to circumvent the trial-type hearing and alternative conditions 

processes). We look forward to continued conversation with the Subcommittee and other stakeholders to 

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flllther examine issues that have been raised in the past and documented in the record, but for which 

provisions have not been advanced, 

Promoting Hvdropowcr Development at Existing Non-Powered Dams Act 

As discussed earlier, there arc significant opportunities to add generation to existing non-powered 

dams. Yet, project deployment has not progressed as far as expected considering that potential and the 

fact that these projects have lower costs and lower impacts as they utilize existing infrastructure. 

We support the Committee's work to create a new regulatory review process for these projects, 

which would maximize the public benefit of this infrastructure. One of the main issues is that dam owners 

fear that by allowing hydropower development at their facility, irreparable changes will be forced on them 

to the detriment of the original purposes for which the dam was built. 

The exemption process detailed in the draft is an innovative solution to this problem by 

prescribing FERC's jurisdiction to the hydropower facility itself, together with any associated 

transmission line. This approach is consistent with the treatment for conduit facilities. as well as FERC's 

licensing policies for non-federal hydropower facilities located at Federal dams. This exemption program 

just extends that program to non-powered dams as well-but only for proposals that would not seck to 

change the existing flow regime. 

NHA also notes that the draft includes a provisions designed to suppmt basin-wide environmental 

improvements by creating a new annual charge for environmental enhancement activities in the 

watersheds that these new projects would be located. And finally, there is a provision that recognizes the 

importance of dam safety by requiring, as a qualifying criterion, that a project be certified by an 

independent consultant approved by FERC as complying with the Commission's dam safety 

requirements. 

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Promoting Closed-Loop Pumped Storage Hvdropower Act 

NHA supports the Committee's work to promote the increased use of closed-loop pumped storage. 

In helping to balance grid operations, pumped storage facilities reduce overall system generation costs 

and provide ancillary services to the grid, including frequency regulation and voltage support. They also 

support the integration of variable generation, like wind and solar, helping to avoid or minimize stability 

issues due to over-generation. The DOE llydropowcr Vision Report finds no greater growth opportunity 

in the hydropower sector than pumped storage. But again, despite the bene tits, value, and potential, 

project deployment is proceeding at a slow pace, including closed-loop projects that do not have a 

permanent connection to a navigable waterway and do not influence such river flows. 

Similar to the Promoting Hydropower Development at Existing Non-Powered Dams 1\ct, this draft 

creates an innovative new licensing process for this lower-impact subset of pumped storage projects. It 

recognizes the specialized purpose of these pumped storage projects. Unlike conventional hydropower 

projects, these facilities arc not conducive to supporting public recreation. And, because they have no 

continuous connection to navigable waters, they do not present a fish passage barrier, affect water quality, 

or impact the riverine environment. 

Again, like the draft bill for non-powered dams, this draft bill contains a dam safety provision 

requiring FFRC to assess the safety of existing dams and other structures related to the project. 

Promoting Small Conduit Hvdropower Facilities Act of 2017 

As stated by Kurt Johnson of the Colorado Smallllydropower Association in 2012, the regulatory 

costs fi:>r small projects, such as the conduits at issue in the draft, are pat1icularly burdensome and can 

potentially exceed the costs of the hydropower generating equipment itself. 

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The discussion draft builds on the Hydropower Regulatory Efficiency Act of2013 (HREA)- at 

the time. the first energy bill enacted into law in 4 years- and for which Nil/\ was a strong supporter. 

The HREA has been a successful program with over 80 small conduit project approvals secured for 

projects throughout the country. The draft would restructure this process for very small projects of2 '\1\Vs 

or less on existing conduits. which would be a further positive inducement for these developments. 

l\lli\ understands that the vast majority of similar projects under the current II REA process have 

received approvals and that few. if any, concerns have been raised as part of those reviews. As such, and 

as these arc some of the lowest impact developments, NliA supports creating this more simplified review 

process for this subset of projects. 

Supporting Home Owner Rights Enforcement Act 

NHA recognizes that shoreline management is an important issue for both asset owners and for 

landowners adjacent to hydropower reservoirs or within project boundaries. Many issues come into play 

project operations, property rights. recreation opportunities and more. 

Nlli\ and the hydropower industry believe when it comes to the safe operation and management 

of project facilities, the protection of lives and property arc the top priority. As such. NHA would need 

more time to review and vet with our membership the discussion draft to better understand any potential 

effects on project operations before the association could express a view on the draft Therefore, Nl-l.t\ 

takes no position at this time. but looks forward to further discussions with the Subcommittee on the 

substance of the bill. 

H.R. 446, II.R, 447, and H.R. 2122 

;-.;ew small hydropower projects, such as these. have a critical role to play in meeting our nation's 

energy. environment, and local economic development objectives and will add to our portfolio of 

renewable, clean energy resources. As I testified to previously in 2016. hydropower projects can face a 

25 
129 


variety of obstacles that push back construction timclincs. These include delays in necessary postlicensing construction approvals, additional environmental permits, refinements in final project design. 

continuing negotiations on power purchase agreements, securing financing, and others. 

NHA notes that the draft of the Hydropower Policy Modernization Act of20 17, also before the 

Subcommittee today, specifically aims to address the problem at hand for these hydropower projects. !t 

contains a provision for an applicant to receive an extension from FERC of the commence construction 

deadline for up to an additional 8 years. This would alleviate the need for individual project developers to 

get these congressionally-approved extensions. NHA supports the cll'mis by Congress to address this 

issue, which requires projects to expend considerable additional time, money and effort on individual 

congressional legislation. 

Conclusion 

Both the existing system and new hydropower projects have a critical role to play in meeting our 

nation's energy, environment, and economic development objectives and much is at stake for hydropower 

and the families, businesses and communities that rely on its low-cost, reliable, renewable generation. 

N!IA and the hydropower industry stand ready to help meet our common clean energy goals and 

we look forward to working further with Congress and the Administration to lind pathways to address the 

important policy issues to fully maximize and unlock the potential of the hydropower resource. 

As the Congress works to address our energy and infrastructure needs, whether through 

hydropower-specific legislation. a national infrastructure program, or an energy bill, policies that improve 

the regulatory environment and provide greater certainty and predictability must be included. A greater 

recognition that our hydropower infrastructure is incredibly valuable is needed, and continued investment 

and re-investment in the system is critical to our energy future and national security. 

I thank the Committee for this opportunity to testify and I look forward to answering questions. 

26 
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Mr. OLSON. Thank you, Mr. Leahey. 

The Chair now calls upon Mr. Irvin for a 5-minute opening statement. 

STATEMENT OF WILLIAM ROBERT IRVIN 

Mr. IRVIN. Vice Chairman Olson, Ranking Member Rush, members of the subcommittee, thank you for the opportunity to testify 

today on the hydropower bills being considered by this committee. 

My name is William Robert Irvin. I am president and CEO of 

American Rivers, a national conservation organization that works 

to protect wild rivers, restore damaged rivers, and conserve clean 

water for people and nature. I also served as a member of the senior peer review group for the Department of Energy’s Hydro Vision 

Report which was issued last year. 

Let me begin by stating very clearly that while we are pro-rivers, 

American Rivers is not anti-hydropower. Hydropower is and will 

remain a key part of our Nation’s energy portfolio. Our staff has 

participated in hundreds of FERC proceedings resulting in the generation of thousands of megawatts of electricity and improved environmental performance at those generating facilities. In addition, 

we have supported legislation to incentivize sustainable hydropower projects. 

American Rivers also recognizes that when cited and operated responsibly, hydropower can be beneficial as a low-carbon, renewable 

energy source. It is certainly better for the climate than burning 

fossil fuels, but it is not carbon-free due to the methane emissions 

from reservoirs. Nevertheless, when sited and operated irresponsibly, hydropower can do great harm to rivers and the wildlife and 

communities that depend on them. 

By changing the flow of rivers, hydropower dams have harmed 

fish, mussels, and other aquatic species, and pushed some to the 

brink of extinction. Hydropower can have toxic effects on water 

quality. Hydropower dams can de-water stretches of river and have 

in the past been built with callous disregard of Native American 

sacred sites and ancestral lands. To prevent these harmful impacts, 

we have laws in place to protect endangered species and clean 

water and to give States, Tribes, and Federal resource agencies a 

meaningful seat at the hydropower licensing table. 

Accordingly, in evaluating any proposed changes to the hydropower licensing process, American Rivers, and indeed the larger 

environmental community, will vigorously oppose any effort to limit 

the application of the Endangered Species Act or the Clean Water 

Act to hydropower dams to infringe upon State water law and 

State authority to manage water rights, to limit the protections afforded to Native Americans and the Native American Tribes in hydropower licensing, to limit the ability of the United States to protect federally managed fisheries and taxpayer-owned public lands, 

or to limit the authority of State agencies to protect fish, wildlife, 

and other natural resources within their State. 

Regrettably, as I have described in my written testimony, the 

draft bills before the subcommittee fail these tests. At the heart of 

each of these bills is the flawed principle that FERC should be elevated above other Federal, State, and Tribal agencies in the licensVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00136 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
131 

ing process and be able to limit Federal, State, and Tribal authorities over rivers. 

Giving FERC the power to decide questions of fisheries biology 

makes as much sense as giving the National Marine Fisheries 

Service the authority to decide interstate electricity tariff cases. 

Giving FERC the authority to decide questions of Native American 

treaty rights makes as much sense as giving the Bureau of Indian 

Affairs the final say over reliability standards for interstate, high 

voltage transmission. And giving FERC the final say over matters 

of State water law upends the prior appropriation doctrine in the 

West and challenges riparian water law that goes back to colonial 

times in the East. 

The draft bills before you will not improve licensing or promote 

environmental protection. Instead, these bills will lead to legal 

gridlock and environmental degradation. I hope that rather than 

rushing these bills forward, the committee will instead work with 

stakeholders, including American Rivers, to develop legislation to 

facilitate responsible hydropower development while protecting 

healthy rivers, wildlife, and communities. 

In my written testimony I provided some common sense approaches to improving the licensing process without harming the 

environment. If the committee chooses to convene a stakeholder 

process to develop licensing reform that maintains protection of rivers, I can assure you that American Rivers will roll up our sleeves 

and get to work with all the interested parties. 

Thank you for the opportunity to testify today and I look forward 

to answering any questions you may have. 

[The prepared statement of Mr. Irvin follows:] 

132 


Testimony of Wm. Robert Irvin 

President and Chief Executive Officer 

American Rivers. Inc. 

Hearing: ·'Legislation Addressing Pipeline and Hydropower Infrastructure Modernization" 

Subcommittee on Energy 

Committee on Energy and Commerce 

United States House of Representatives 

May 2. 2017 

Thank you for the opportunity to testify today on hydropower legislation before the 

Subcommittee. My name is William Robert Irvin. and I am President and CEO of American 

Rivers. In addition, I recently served as a member of the Department of Energy's Senior Peer 

Review Group fnr the Department's Hydropower Vision Report. 

American Rivers is one oft he leading national conservation organizations involved in 

hydropower. Our staff have been involved in hundreds of new and original license proceedings 

since our founding. and we have seen the best and worst that the federal licensing process has to 

offer. Since 1973, American Rivers has protected and restored more than 150,000 miles of rivers 

through advocacy efforts, on-the-ground projects, and an annual i\merica's Most Endangered 

Rivers ®campaign. Headquartered in Washington, DC. American Rivers has offices across the 

country and more than 250.000 members, supporters, and volunteers. 

1101 1i1th Street, NW Suite 1400 Washington, DC 20UOVJb37 phone 202.31!7 .7550 fax 202,31•7.9240 Arne-IicanRivers..org 
133 


My testimony will he confined to those pieces of legislation related to hydropower, specifically: 

Discussion Draft: Hydropower Policy Modernization Act of2017; Discussion Draft: Promoting 

Hydropower Development at Existing Non-Powered Dams Act; Discussion Draft: Promoting 

Closed-Loop Pumped Storage Hydropower Act; Discussion Draft: Promoting Small Conduit 

llydropower Facilities Act of20 17; H.R. 1538, Supporting !lome Owner Rights Enforcement 

Act: H. R. 446, To extend the deadline for commencement of construction of a hydroelectric 

project; H.R. 447, To extend the deadline for commencement of construction of a hydroelectric 

project: and II.R. 2122. To reinstate and extend the deadline for commencement of construction 

of a hydroelectric project. 

Following the conclusion of my comments on the aforementioned legislation, I will offer some 

thoughts on how to constructively improve the hydropower licensing process. 

Before I begin discussing the specifics of each bill before the Committee today, let me lay out 

some core principles of American Rivers with respect to hydropower and legislation to improve 

the permitting and licensing process. First, American Rivers is not anti-hydropower. We have 

supported and promoted legislation that promotes the development of sustainable hydropower 

projects. We also participate in FERC rcliccnsing proceedings that result in the continued 

generation of hydroelectricity at existing facilities while improving the environmental 

performance of hydropower dams. I Iydropower is and will remain a key component of the 

United States' energy portfolio. And while hydropower is not carbon free energy due to 

emissions of methane gas from reservoirs, it is low carbon, particularly when compared to lossil 

fuel generation. 

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134 


When sited and operated responsibly, hydropower can have enormous benefit. When sited and 

operated irresponsibly, hydropower can have enormous adverse consequences. 

Hydropower dams have extirpated species, and many continue to push endangered lish to the 

brink of extinction. Hydropower dams can have toxic effects on water quality. Hydropower 

dams can de water stretches of river, and they have in the past been built with callous disregard of 

Native Americans who rely on a healthy river systems; Native American sacred and ancestral 

lands have been inundated by dams, and fisheries with great economic and spiritual value have 

been devastated. 

Hydropower dams disrupt flows, degrade water quality. block the movement of a river's vital 

nutrients and sediment, destroy fish and wildlife habitat, impede migration of fish and other 

aquatic species, and eliminate recreational opportunities. Reservoirs slow and broaden rivers, 

making them warmer. The environmental, ceo nomic, and societal footprint of a dam and 

reservoir may extend well beyond the immediate area, impacting drinking water, recreation, 

fisheries, wildlife, and wastewater disposal. 

Therefore, American Rivers, the Hydropower Reform Coalition. and indeed the entire 

environmental community will vigorously oppose: 

Any effort to limit the application of the Endangered Species Act or the Clean Water Act 

to hydropower dams; 

• Any effort to federalize or otherwise infringe upon state water law and state authority to 

manage water rights; 

Any effort to limit the protections afforded to Native American tribes' territory, religious 

liberty, and reserved rights in hydropower licensing; 

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Any effort to limit the ability of the United States to protect federally managed fisheries; 

Any effort to limit the ability of the United States to protect taxpayer owned public lands 

and waters, including the recreational usc of those lands; 

Any effort to deny the United States Army Corps of Engineers the ability to protect 

Congressionally authorized infrastructure during the construction of hydroelectric 

projects at a Corps facility; 

And any effort to limit the authority of stale agencies to protect fish, wildlife, or other 

natural resources within their state. 

Unfortunately, H.R. 8, passed by the Committee in the last Congress, failed all of these tests, 

which is why we strongly opposed that legislation. Many of the bills before the Committee 

today also fail these tests. We hope that rather than moving these bills forward, the Committee 

will instead work with stakeholders, including American Rivers, to develop legislation to address 

those concerns of the hydropower industry which are legitimate and which can be solved in an 

environmentally responsible manner. 

Please find, below, detailed thoughts on each of the hydropower bills before the Committee 

today. 

Discussion Drat!: llvdropower Policv Modernization Act o[20 17 

First, let me preface my remarks by saying that the Discussion Draft is improved when compared 

to H.R. 8 from the previous Congress. However it still fails two key tests: first, it undermines 

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key protections provided within the Federal Power Act, Clean Water Act, and Endangered 

Species Act for fish, wildlife, water quality. public lands, Native American trust and treaty 

obligations, and state water rights. Second, it creates an unrealistic and confusing rule-making 

and schedule process that would substantially complicate the licensing process while potentially 

preventing states, tribes. and federal resource agencies from making scientifically based and 

legally defensible oversight actions. 

The broad reworking of the current licensing process would lead to an endless cycle of litigation 

because it upends often in confusing fashion, more than fmiy years of court decisions and settled 

case law, not to mention the 97-year history of the Federal Power Act. This legislation would do 

fail its stated purpose to to improve the licensing process while increasing costs to utilities and 

taxpayers and putting hydropower licenses first in line to use waters Congress has recognized as 

belonging to all Americans. 

Since its passage in 1920, the Federal Power Act (FPA) has contained two critical resource 

management charges. Section 4(e) directs the Secretaries of Agriculture, Commerce, and the 

Interior to ensure that no federal reservations (anything from a national forest to an American 

Indian reservation) are negatively impacted by the construction or operation of a hydroelectric 

project. Section 18 ofthe Federal Power Act instructs the Secretaries of Commerce and the 

Interior to ensure that proper fish passage exists at a proposed or existing hydroelectric project. 

so that fish species inhabiting more than one stretch of a river, or migratory species such as 

salmon, herring, and some trout species arc able to migrate between rivers and the ocean to 

complete their life cycle. 

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The Clean Water Act, enacted by Congress in 1973. recognized the inherent right of states to 

manage their water quality. and provided a mechanism for them to protect their resources in 

hydroelectric licensing via section 401 of that Act. A section 401 Water Quality Cettification is 

employed by states to ensure enough water is in the river for fish, wildlife, recreation, human 

consumption, and project operation. The United States Supreme Court, in PUD No. I of 

Jefferson County v. Washington Dept. ol Ecology (511 U.S. 700 (/994)), affirmed that states 

issue both the standards and the mechanisms by which to enforce them. The Clean Water Act 

Amendments of 1987 recognized Native American tribes· right to manage water on their 

reservations, and enabled them to issue certifications as well. 

To our knowledge, at no time since the Federal Power Act was passed in 1920, has the Federal 

Energy Regulatory Commission (FERC), or its antecedent agencies, placed conditions on a 

license more protective than those proposed by a mandatory conditioning agency. lt is true that 

FERC can limit the construction or operation of a project in order to preserve or restore 

environmental quality, and it docs, simply not as often or as vigorously as federal, state, and 

tribal resource agencies. In fact, over decades, FERC has acted to limit the Secretaries of 

Agriculture, Commerce, and the Interior from exercising their statutory responsibilities and has 

sought to prevent states and tribes from executing their sovereign rights. More often than not. 

the courts have ruled that FERC has overstepped its bounds and upheld the authority of federal 

natural resource agencies, states, and tribes. This is largely because Congress has never imbued 

the Commission with an environmental stewardship or resource management mission nor docs 

the Commission have the same statutory obligations as the conditioning agencies. What the 

cout1s have repeatedly refused to do could now be accomplished by enacting legislation such as 

the Discussion Draft. 

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The Hydropower Reform Coalition, of which American Rivers is a co-founder and permanent 

Steering Committee member, testified before this subcommittee in March and identified five 

ways in which hydroelectric licensing could be improved. They are: 

Presumptive inclusion in FERC study plans of study requests submitted by federal, state. 

and tribal resource management agencies; 

Promotion of memoranda of understanding (MOU) between FERC tribes, and slates to 

improve coordination and prevent unnecessary delay; 

Increasing appropriations to federal resource management agencies to fund the staff 

positions allowing for efficient and thorough evaluation of hydroelectric licenses; 

• Delegation of §§4(e) and 18 authority to technically qualified and capable tribes; 

Improved coordination between FERC and the U.S. Army Corps of Engineers (ACE) to 

expedite the powering of non-powered dams owned and operated by that agency. 

Each of these policy suggestions are intended to increase communication and cooperation 

between applicants, FERC. and resource agencies. Each preserves existing authorities while 

decreasing confusion and ensuring the availability and sharing of information necessary to 

complete environmental reviews. By comparison, the Discussion Draft elevates FERC's power 

above that of every co-ordinate federal, state, and tribal oversight agency, potentially sacrificing 

substantive environmental protections and responsible resource management. 

I would like to address some of the most worrisome portions of this draft legislation: 

Expanding FERC's Jurisdiction 

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The proposed new §34 of Part l of the Federal Power Act would enlarge the jurisdiction of 

FERC by adding to the definition of"federal authorization" (now understood to be mandatory 

conditions and prescriptions under §§4(e) and 18 ofthe FPA, §401 ofthe Clean Water Act, and 

the Endangered Species Act) , "any permits, special use authorizations, certifications, opinions, 

or other approvals as may be required under federal law to approve or implement the license, 

license amendment, or exemption under this part." Whereas currently FERC manages-but does 

not control-the licensing process with respect to conditions placed onto a license under §§4(e), 

18, and 40 I and the ESA, it does not have the ability to manage the ancillary aspects of access 

and operation. In other words, FERC manages the Forest Service's review of a license and the 

Secretary of Agriculture's placement of a condition to preserve the function and purpose of a 

national forest, but FERC does not manage the local forest's road use rules, which it potentially 

could if this language were to become law. In another context, if the Solicitor of the Department 

of the Interior issued an opinion stating that, due to the wording and history of a particular treaty 

with a Native American tribe, sufiicient protection of its reservation requires specific language to 

be included in a condition or prescription inserted into the license under the Secretary's §§4(c) or 

18 authority, , this definitional expansion may mean that FERC would have authority over the 

DOl Solicitor's opinion. 

Resolving Disputes Between FERC and Agencies 

The proposed new FPA §34 creates a dispute resolution process that, while perhaps wellintentioned, is almost certainly guaranteed to unnecessarily complicate and prolong a licensing 

review while not providing for an actual resolution. As proposed, the proposed FPA §34(c) sets 

out that FERC shall set a schedule for evaluation of a license under every applicable statute 

(please see below), and instructs each state, tribal, and federal agency that would have a problem 

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adhering to that schedule for a given project inform FERC and the applicant of such. Currently, 

the most protective condition or prescription placed on a license supersedes the less protective 

conditions (if for instance, the Secretary of the Interior's condition requires a particular amount 

of in-stream flow/water be kept in the stretch river and the state requires more for a different 

purpose, the state's flow requirement overrules the Secretary's). FERC has no ability to overrule 

a state, tribe, or Secretary, and the individual Secretaries do not necessarily coordinate on which 

conditions or prescriptions they place on a license. Some applicants (and often FERC) seck to 

have the least restrictive condition adopted, arguing that what is good enough for the Secretary of 

Commerce, for instance, should be good enough for the State Department of the Environment, 

regardless of the fact that the oversight entities have differing responsibilities. 

Under proposed FPA new §34(b)(2)(D)(ii), "the Commission may forward any issue of 

conccrn ... to the relevant state and federal agencies for resolution." It is possible that this 

language is an attempt to ensure that conflicts between agencies are referred to the relevant 

individuals in those agencies, but it is not clear. !tis a mechanism where FERC, and not the 

Secretaries. states, or tribes, wish to resolve a 'conflict.' Following FERC's referral of issues of 

concern to relevant states and federal agencies, FERC and the agency would enter into a 

memorandum of understanding (MOU) "to facilitntc interagency coordination and resolution of 

such issues of concern as appropriate." Jt appears that the intention of this section is to resolve 

disputes in such a way as to prevent the most protective condition from automatically becoming 

the controlling language .. It is necessary to note that this is not a single MOU per agency, or per 

licensing, this is a single MOU per issue in a given licensing. 

For contrast, the Hydropower Reform Coalition has suggested that MOUs be executed as soon as 

practicable to ensure proper communication, cooperation, and transmission of expectations 

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between FERC and the coordinating oversight entities. What this draft legislation proposes to do 

is have the agencies with differing conditions on related issues negotiate and execute MOUs for 

every issue of concern, mid-licensing and under FERC's schedule. It is unlikely that a schedule 

promulgated by FERC via rule in order to improve ''discipline" and "cnsure[s] expeditious 

completion of all proceedings required under federal and state law. to the extent practicable" is 

going to leave a lot of time for attorneys from federal and state agencies to negotiate and execute 

a legally binding agreement for each issue of concern. The Hydropower Reform Coalition's 

suggestion, to execute the MOU up front, and to let the most protective condition or prescription 

control, seems more likely to allow the licensing to proceed at a steady pace. 

/\dditionally, this subsection does not allow Indian tribes with treatment as state (TAS) under the 

Clean Water Act engage in the same s01t of consultation or MOU adoption as the states and 

federal agencies. They are simply not consulted. Instead, FERC may forward issues identified by 

the Indian tribe to the Secretary of the Interior or "the federal agency overseeing the delegated 

authority:· presumably the Environmental Protection Agency. It is important to note that the 

EPA docs not currently have a role in water quality evaluations carried out by states and tribes. 

This draft legislation brings the EPA into a process in which it does not have experience. 

/\dditionally, issues that arc raised by state agencies operating through the CW A and state and 

local agencies operating under other federal law would be forwarded to the agency 'overseeing' 

that law, potentially involving agencies who have never participated in a licensing and have no 

current authority to inform a state CW /\certification. A relevant example here is culverts used in 

transportation planning. A project upstream of a culvert through which water, fish, and wildlife 

pass, may have, as a part of its Clean Water Act certification, requirements to keep instream 

flows at a level sufficient to enable passage. If the construction of the culvert requires a higher 

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instrcam flow in the river so a fish may pass through it than if the culvert were not present in the 

river. would the U.S. Department of Transportation, which provided funds to the state to build 

the road, become implicated in the hydroelectric license review? 

Setting a Schedule 

American Rivers opposes an enforceable schedule set by FERC for state, tribal, and federal 

resource agencies to exercise their statutory authority. American Rivers has taken this position 

because in the 97 years since the federal Power Act became law, FERC (and its antecedent 

agencies) has consistently sought insufficient environmental protections and declined to pursue 

recovery measures necessary to restore fisheries and limit unnecessary damage to resources. This 

is because fERC's mission is, and always has been. to ensure for the delivery of energy into the 

wholesale market. FERC is not qualified to carry out the responsibilities of state, tribal, and 

federal resource management agencies and has declined at almost every oppmiunity requests to 

assist them in collecting necessary information and offering sufficient protections. 

Subsection 3(c) of the draft bill instructs FERC to establish a rulcmaking to set a schedule for the 

evaluation of each statute that is relevant to processing an application. That is one schedule to 

evaluate an application under the Magnuson-Stevens Act, a separate schedule under the Marine 

Mammal Protection Act, a separate schedule under the Coastal Zone Management Act, etc. This 

would replace the single timclinc employed by the Department of Commerce, etc. for the total 

review each Department, state, and tribe currently employs. It is unclear how fERC would 

overlay these schedules, or how the final schedule would track which statutory evaluation was 

completed at which point by which agency. For a draft bill that is attempting to eliminate 

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bureaucratic review and uncertainty, requiring an agency to keep track of FERC's schedule for 

every statute under which it-hut not FERC-opcrates, seems like an incredible distraction. 

As previously stated, as FERC has never had the same responsibilities for natural resources as 

states, federal resource agencies and tribes, it is inappropriate to allow FERC the ability to set 

deadlines for those oversight entities' evaluations. The greatest impediment to an expeditious 

evaluation is not the absence of an enforceable schedule; rather it is the lack information 

necessary for agencies to provide scientifically based and legally defensible conditions on 

hydroelectric licenses. In order to ensure that the agency's findings cannot be overturned in court 

for being arbitrary or capricious, the agency needs to show that it based its findings in science 

and followed a legally defensible process. Due to miscommunication-and occasional 

intransigence-agencies arc sometimes denied the information they need to conduct such an 

evaluation in a timely manner. 

Because FERC requires only the minimal amount of information required to conduct its analysis 

under its authority, it does not request information states, federal, and tribal agencies will need to 

conduct their analyses. As a result, some licensees-especially those new to hydroelectric 

development or operating in a new jurisdiction-may be surprised when, following the 

completion of FERC's evaluation of a license, a state, federal. or tribal resource agency instructs 

them to collect new information. While the Hydropower Reform Coalition seeks to prevent this 

confusion and surprise by promoting MOUs and having FERC include agency study requests 

(which arc generally provided to FERC before FERC issues its study plan to an applicant) in 

FERC's study plan. this draft legislation seeks to provide a finite amount of time during which 

the information can be evaluated and, if it cannot be, for no prescription or condition to result. It 

trades concerns about water quality, fish, and wildlife for the certainty of a license. 

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The deadlines enacted under this subsection would be applicable to the federal, state, and tribal 

agencies, the applicant, the Commission, and other participants in a proceeding (although these 

·'other participants" are not permitted to participate in setting the deadlines). While requiring 

FERC and the applicant to conform to the deadlines is an improvement over the schedule 

language in H.R. 8 (which only applied to the resource agencies), it is an insufficient 

improvement to save the concept. It must also be noted that only those agencies that submitted 

acknowledgement of notification from FERC of their ability to pmticipatc in a licensing under 

proposed new FPA section 34(b)(2)(C) would be permitted to participate in the consultation 

preceding of the schedule. More process, more deadlines, more work. 

A single deadline-extension of 90 days could be granted by FERC, although if a natural event, 

such as a drought or a super storm, upends the evaluation of the environmental impact-{)!' if the 

applicant fails to provide the information from one season to an agency conducting the standard 

two-season study. 90 days is of little help. 

Finally, the ambiguity contained in this section will lead to substantially more litigation by 

eliminating the certainty decades of court decisions have provided in hydroelectric licensing. For 

example. by the language of this draft bill, it is unclear what will happen if a state, federal, or 

tribal resource agency is unable to place its condition or prescription on a license within the 

timeframe set out by FERC. If events beyond the control of the agency, such as a severe weather 

event, insuflicicnt information provided by the applicant, or insufficient appropriations to 

maintain necessary staffing at the agency, prevent the issuance of a license within the FERC 

schedule, the agency is entitled to a single 90-day extension (if it sufficiently demonstrates its 

need to PERC and requests and extension more than 30 days prior to the deadline). It is a 

certainty that following the missed deadline, a less environmentally conscious applicant would 

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sue should the agency subsequently attempt to place its condition on the license, that the agency 

would sue to ensure it has not forfeited its authority, or that an external stakeholder would sue to 

preserve oversight authority. If the condition that is implicated is one allowing for tribal fishery 

protection, or of a Native American reservation's protection, for example, a tribe, the tribal 

fishing commission, or the United States may also sue. They would sue for the clarity that 

enacting this draft bill would erase. More litigation means more costs for utilities, their 

ratepayers, federal, state, and tribal taxpayers, and interested parties, including American Rivers. 

The outcome of legislation to improve the licensing process should not be more time consuming 

process, longer and more expensive proceedings, and more litigation. As currently written, the 

only parties to a license proceeding that will bene lit from this section are energy and water rights 

attorneys. 

11-ia/-Type Hearings 

In order to dispute prescriptions and conditions placed onto a license by the Secretaries of 

Agriculture, Commerce, and the Interior, trial-type hearings were added to the hydroelectric 

licensing process via the Energy Policy Act of2005. To date, there has been one trial-type 

hearing that resulted in a formal determination (it upheld the Secretary's decision). All other 

trial-type hearings to date have ended in settlement. The resource agencies unfortunately do not 

have the same time and resources available as some litigious licensees, and have accepted 

settlement in order to evaluate other licenses needing review in a timely manner. The trial-type 

hearings for alternative conditions and prescriptions currently take place before an 

Administrative Law Judge (ALJ) in the Department that placed the condition on the license (with 

the exception of those imposed by the Secretary of Commerce; those trial-type hearings take 

place before a Coast Guard Judge Advocate General, due to historical, organizational reasons). 

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Trial-type hearings benefit from the expertise that ALJs and their staff have developed in 

evaluating the science required and the knowledge of how statutes beyond the Federal Power Act 

play into the Secretaries' determinations. Additionally, ALJs offer only conclusions as to law 

and fact, and cannot overrule a Secretarial decision (and neither can FERC). If a trial-type 

hearing is sought. the §§4(e) or 18 process is not concluded until, following the AU's 

determination. the Secretary's final condition or prescription is issued. 

The Discussion Draft changes the trial-type hearing process in several key ways. First, all 

disputed issues of material fact supporting a condition on a license will be decided by a single 

ALJ at FERC. FERC A Us typically hear disputes about interstate power, transmission lines, 

and rates set by utilities for payment of services. FERC ALJs do not-and have neverconsidered the implications of project construction or operation for threatened and endangered 

species, flows necessary to ensure safe boating or recreational swimming, or for preventing 

flooding of and damage to Native American reservations. This legislative change would put 

disputes relating to Indian treaty obligations, the ESA, and FLPMA in front of one FERC ALl, 

who may not have experience with any of the issues or statutes. These proceedings (which, per 

§35(b ), cannot last longer than 120 days, 30 days longer than currently allowed), would be 

required to fit into the schedule established by FERC pursuant to §34(c)-which is to say, the 

schedule would dictate whether any time were permitted for a trial-type hearing. It is possible 

that the schedule would not allow any trial-type hearing, which would in turn present a 

conundrum: the §§4(e) and 18 processes are not considered complete until the final Secretarial 

decision is offered following a trial-type hearing. If the trial-type hearing is not able to be 

completed before FERC's deadline, can the original condition or prescription legally be placed 

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on the license'' It is possible that the schedule would not allow for a final Secretarial 

determination. 

Not later than 60 days ar!er the ALJ decision. the Secretary who issued the disputed condition or 

prescription "in accordance with the schedule established by the Commission." shall file with the 

Commission a final determination on the condition or prescription. The final determination of the 

Secretary must explain why it was changed or not changed; the determination will be included in 

the consolidated record. Beyond changing the venue for these hearings. this legislation would 

allow FERC. if the Commission "finds that the final condition or prescription of the Secretary is 

inconsistent with the purposes of this part or other applicable law" [to] seck resolution of the 

matter under the above-described MOU process for dispute resolution. That section would 

enable FERC to seck an MOU between the Secretary and FERC on the issue in dispute, all 

during the administrative process, pushing up against FERC's Fl'A rule-determined deadline. 

It is simply not possible for FERC and the agencies in question to complete all of this new 

process in the time allot!cd by the Discussion Draft. The consequence will be legally 

indefensible conditions or increased delay. both of which will lead to more litigation. 

Ucensing Stu((v Improvements 

The licensing study improvements section, proposed new Fl'A section 36. is one clement of the 

Discussion Draft which makes some progress towards solving areas of concern with the 

licensing process. By instructing FERC to compile current and accepted best practices and 

compile a comprehensive collection of studies and data accessible to the public. and encouraging 

license applicants. agencies. and tribes to develop a limited number of methodologies and tools 

applicable across an array of projects, this bill comes closest to what American Rivers and the 

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llydropowcr Reform Coalition believes offers the greatest area for improvement: increased 

communication and cooperation. While this language falls short of promoting MOUs and 

presumptively granting study requests. pursuing similar language in future legislative drafts is 

more likely to truly solve the shared difficulties in hydroelectric licensing than any changes to 

the trial-type hearing process or the existing schedule under the integrated licensing process. 

Although identifying and sharing best practices and core studies (please sec Dave Steindorf, 

American Whitewater/Jiydropowcr Reform Coalition, Questions lor the Record regarding the 

March 15, 2017 Subcommittee on Energy hearing, "Modernizing Energy Infrastructure: 

Challenges and Opportunities to Expanding I !ydropower Generation") is a step in the right 

direction, language included in proposed new section 36(b) presents a troubling issue. Currently. 

some applicants dispute whether they should be required to provide information necessary for a 

resource agency to offer a scientifically based and legally defensible condition or prescription on 

a license; they offer as evidence that such information is already available to the agency and the 

applicant need not expend time and resources in order to provide it. While it is currently the 

responsibility of the applicant to produce the study it believes answers the questions the agency 

needs to in order to complete the review. the Discussion Draft places the onus on the agency. 

This is impractical. Rather than the agency expending time and energy (all while burning 

through time on FFRC's schedule) to locate a study the applicant believes exists. the burden 

should be on the applicant to produce the study. 

I would also like to take this opportunity to voice American Rivers' support for a basin-wide or 

regional review. American Rivers believes that as no river is defined by the segment between 

two dams and creating the proper system for watershed-scale management planning would be a 

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transfonnativc step fmward. Therefore, we support in concept proposed Section 36(c) in the 

Discussion Draft, however, we have concerns about its practicability as drafted. 

Qualified Project Upgrades 

Qualified Project Upgrades arc alterations to a project or its operation that arc not required by the 

license, but improve the project or provide additional mitigation to fish, wildlife, and water 

quality impacts. While it is clear that the impetus for the proposed new FPA section 37 is to 

reward licensees who improve their projects mid-license and to ensure a timely evaluation of 

these applications, this section sets out an odd and practically unworkable timcline for review. It 

also establishes some criteria that could degrade environmental protections and proper resource 

management. 

The process by which FFRC publicizes the application for a qualified project upgrade and 

notifies the public and agencies is extremely convoluted. First, the applicant must include in the 

application sufficient information to demonstrate that the alteration to the project qualifies. 

FERC shall then. within 15 days of receiving the application. ·•make an initial determination'' as 

to whether it qualities, and will publish such determination. It shall solicit public comment for 45 

days. This section does not direct FERC to notify any states, tribes, or federal resource agencies 

that have placed a condition on a license on which the applicant is seeking an upgrade. 

If. at the end of the 45 days provided for above, no entity comments on the proposed upgrade, 

FERC shall "immediately" publish a notice stating a lack of contest or, if there is a contest. 

FERC shall have 30 days from the date of the publication of its initial determination in proposed 

new FPA §37(a)(3) to ·'issue a written determination as to whether the proposed license 

amendment is for a qualifying project upgrade." This means that although there are two different 

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processes for disputed versus non-disputed applications, the time permitted to issue a statement 

of non-dispute or an explanation of why the dispute is not credible is the same. It's difficult to 

understand how the time! inc allows for 45 days of public comment, but within the 45 days. 

FERC must respond to an objection made as to the project's qualifications. If an objection comes 

on day 45 of the solicitation period. and the draft bill only allows FERC 30 days from the date of 

publication of the initial determination to rebut and analyze. given the incredibly tight turnaround and necessity to complete the entire process in 120 days, the only way that FERC can 

analyze and rebut an objection at the end of the public solicitation period is to burn the time the 

agencies have for review (sec below). To keep the process moving. it is unclear whether FERC 

would have sufficient time to analyze and rebut while simultaneously allowing the resource 

agencies to perform their O\\n oversight This bill requires consideration to overlap in such a way 

that there is no time lor thoroughness. let alone delay. 

The Discussion Draft allows FERC has 45 days from publicizing the initial determination to 

solicit public comments. It then has 30 days following a contested initial determination to 

analyze and rebut, but those thirty days count down from the ovcrarching 45 days allotted for the 

public comment process. Simultaneously, from the day on which FERC publishes the initial 

determination. it has 60 days to send a notice to the resource agencies that have placed a 

condition or prescription on the license, or could, given the upgrade. place a condition or 

prescription on the license. That means that FERC could have had the application for 75 days 

before it is required to tell the resource agencies it has received it. 

Starting from the date of initial publication, the resource agencies have 90 days to consider the 

application and determine whether the proposed upgrade is acceptable or whether a license 

amendment is required to preserve the scientifically based and legally defensible condition or 

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prescription. While this draft legislation gives the resource agencies 90 days at FERC's 

discretion. it only requires them to have 30 days. Thereafter, FERC has 30 additional days to 

consider the license. Outdoor recrcationalists and other common intervenors/participants (such as 

American Rivers) arc specifically excluded fh1m this consultation process. Total time guaranteed 

to FERC: 120 days. Total time guaranteed to the resource agencies: 30 days. 

No condition may be placed on an upgrade judged to be qualifying except those that arc: 

necessary to public satety, "reasonable. economical/y.feasih/e, and essential to prevent loss of or 

damage to. or to mitigate adverse ctiects on fish and wildlife resources, water supply. and water 

quality that are directly caused by the construction and operation of the qualifying project 

upgrade, as compared to the environmental baseline existing at the time the Commission 

approves the application for the license amendment.'' While I expect this language is an attempt 

to prevent agencies from placing conditions on the upgrade that the applicant believes to be too 

expensive or unnecessary, it vests in FERC authority to make that decision. FERC's area of 

expertise is regulation of the wholesale energy market. not ensuring that a Native American 

reservation is preserved or that threatened and endangered salmon populations are protected. 

Giving FERC the decision-making power will ensure that all decision making is in the pursuit of 

power generation. 

We want to be dear that American Rivers is not opposed in concept to incentivizing license 

holders to make project upgrades mid-license term. We remain concerned that, as written, this 

section of the bill will not have that effect. Rather. it will sow yet more confusion in the 

licensing process, resulting in neither environmental nor power generation benefits. 

Technical and Confimning Amendments 

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By changing ·'deems'' to "determines·· in these respective portions of the Discussion Draft, thus 

altering key components of the Federal Power Act that have been at the heart of so many 

important court cases, including the landmark Tacoma Power v. FFRC. a risk is created that the 

corpus of §~4(e) and 18 court decisions of the past 97 years could be open to rc-litigation. 

Altering the process by which the Secretaries engage in evaluating a proposed project is an 

unnecessary action that would potentially remove discretion from the Secretaries and would 

almost certainly guarantee a new point to litigate in licensing. 

Fxtension of'Constmction of' Project Works and Preliminary Permit Timelines 

American Rivers supports sections 2(c) and 2(d) of the Discussion Draft. As we discuss more in 

our comments on I I.R. 446. H.R. 447, and II.R. 2122, he low, we hclicve that the delays in 

construction of new projects has little to do with the licensing process and more to do with other 

!actors (please see discussion on II.R. 446,447, and 2121 below). particularly in the case of 

powering non-powered dams. We also tend to object to Congressional earmarks for specific 

projects that have exceeded their deadlines for preliminary permits or project construction. 

Therefore we support changes to the FPA that will increase the likelihood of successful project 

development without developers being required to petition Congress for relief. 

Conclusion 

American Rivers opposes the Discussion Drall as written. While we have described our detailed 

concerns ahovc, the summary is this: We object to the idea that we should federalize in the hands 

of FFRC decisions with respect to state water law that arc more appropriately left to states; we 

object to the idea that FERC should he allowed to impose its judgement onto federal agencies 

that have statutory mandates to protect natural resources, and we object to FERC being able to 

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override the concerns of Native i\merican tribes when it comes to protecting their sovereign 

lands. 

However, we acknowledge that there are improvements that could be made to a process that can 

be long and complex. We recognize that the Committee is seeking ways to improve the 

licensing process. If the Committee wishes to develop real solutions that will benefit all 

stakeholders, we would welcome the opportunity to engage with the Committee and any 

interested pat1ies to try to achieve a mutually beneficial outcome. 

Discussion Dra(t: Promoting Hydropower Development at Existing Non-Powered Dams Act 

It is disappointing that after the Subcommittee's March 15 hearing on ways to improve the 

licensing process, particularly for powering non-powered dams, the Committee has chosen to 

ignore the recommendations not just of the Hydropower Reform Coalition (of which we arc a 

part) but also Rye Development. Instead. the Subcommittee is recycling verbatim clements of 

the House Energy Bill fi·om the previous Congress (ll.R. 8) that received ncar universal 

condemnation from states, tribes, and the conservation and recreation community. President 

Obama threatened to veto the legislation because of its failure to respect environmental law and 

policy. 

Specifically. the Discussion Draft: 

Narrows I limits protections for natural resources and other public values: Exemption 

conditions intended to address natural resource impacts would be limited to impacts on 

fish and wildlife resources directly caused by the construction and operation of the 

hydropower plant, and must be- in FERC's judgment- reasonable, economically 

feasible. and essential. Measures necessary to protect public safety arc permissible. 

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I !owever. exemption conditions would be prohibited fi·om addressing the underlying 

natural resource impacts of the existing dam. diversion, or reservoir if one is involved. 

Exemption conditions to address the full range of impacts of the project on national 

parks. federal lands. recreational opportunities. cultural resources. water quality, and 

other values would be prohibited. Currently. FERC, states. tribes, and federal agencies 

have broad authority to protect these values at hydropower projects. All of these 

authorities would be significantly curtailed. 

• Overrides the Endangered Species Act by limiting conditions for the protection of 

threatened and endangered species to conditions that are. in FERC' s judgment. 

"economically feasible." 

• Offers no nexibility to modify the "storage, control, withdrawal, diversion, release, or 

•·now operations" ofthc underlying dam, even if those changes are necessary to address 

natural resource impacts of the t:1cility or of the underlying dam. This would limit any 

now requirements as a condition of any federal authorization, including a CW A §40 I 

water quality ce!iification, or a Biological Opinion issued under the ESA. 

• Prohibits FERC from preparing an Environmental Impact Statement; instead it would be 

limited to either an Environmental Assessment or a Categorical Exclusion. 

Limits FERC jurisdiction over essential project works. FERC's jurisdiction would be 

limited to the powerhouse and primary transmission line. Conduits, dams, impoundments, 

shoreline. lands, or project works associated with the underlying facility would be exempt 

from any environmental or safety oversight. 

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Taken together, these provisions arc an indirect yet effective attack on states, tribes, and federal 

agencies· conditioning authority under sections 4( c). I O(a), I O(j), and 18 of the Federal Power 

Act, section 401 of the Clean Water Act. section 7 of the Endangered Species Act, scction40S of 

the Rivers and Harbors Act, and other federal and state authorities for protecting public lands and 

other resources. The Committee should not limit the application of these statutes, and the 

protections they provide. in order to generate what will likely be a minimal amount of electricity. 

The Discussion Draft also threatens public safety by shifting dam safety burdens to the states: 

FERC may include conditions in the exemption to protect public safety. but FERC docs not have 

jurisdiction over the underlying dam. so cannot ensure that it is safe. Potential exemptees would 

be required to provide FERC with cetiification ''by an independent consultant approved by the 

Commission" that the dam complied with ''the Commission's dam safety requirements." 

llowcvcr, this certification would only address the state of the dam at the time that the exemption 

was issued. Since exemptions arc permanent and FERC would not have jurisdiction over the 

dam, ongoing responsibility for ensuring dam safety would fall to the states, or fall through the 

cracks, endangering lives and property. 

In conclusion, I reiterate that the Committee has before it an excellent opportunity to convene 

stakeholders interested in assisting the hydropower industry in facilitating powering of nonpowered dams. American Rivers recommends that the Committee seek to bring interested 

parties together to achieve consensus on how to advance legislation to power non-powered dams 

rather than to attempt to advance the Discussion Oral! as written. 

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Discussion Dru{t: Promoting Closed-Loop Pumped Storuge Hydropower Act 

Similar to the Committee's approach with the Discussion Draft related to Non-Powered Dams, 

this Discussion Draft also recycles provisions f!·om II.R. 8 in the previous Congress that were 

universally condemned by states. tribes. and recreational and conservation interests because of 

their detrimental effect on fish, wildlife, public lands, Native American trust and treaty 

obligations, and state water rights. By deregulating closed-loop pumped storage projects, the 

Discussion Draft would allow for the construction of projects that, in the words of the State of 

California, "could have dramatic impact on the cnvironmcnt.''1 In addition, the State of 

Calif(lrnia correctly points out that due to a failure to define within the Discussion Draft "impacts 

directly caused by the construction and operations of the project," enactment of the Discussion 

Draft could result in "increased predation or mortality of fish and wildlifc,''2 including threatened 

and endangered species. Finally. the State of California notes that the Discussion Draft's 

provisions exclude consideration of the impads of deregulated projects on water quality and 

public health, which in the State's opinion is "inappropriate and will result in environmental 

impacts that could and should be addressed as part of the Commission's hydropower licensing 

process. "' 

Specifically. the Discussion Draft: 

Removes the Commission's licensing and conditioning authority, comprehensive 

planning responsibility, equal consideration responsibility. and requirements for working 

with federal and state agencies to protect fish and wildlife under sections 4(e), IO(a), 

IO(g). and IOU) of the l'cderal Power Act. 

1 Letter from the Felicia Marcus, Chair of the California State Water Resources Control Board to Senators 

Murkowski and Cantwell, August 18, 2016; Attachment A, pg. 4. (Henceforth CA SWRCB Letter) Note: Section 1206 

of H.R. 8 as reported in the Senate cited in the letter is identical to the Discussion Draft in question. 

'CA SWRCB Letter, Attachment A, pg. 4 3 CASWRCB Letter, Attachment A, pg 4-5 

Page 25 of 36 
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l'iarrows I limits protections for natural resources and other public values: License 

conditions intended to address natural resource impacts would he limited to impacts on 

fish and wildlife resources directly caused by the construction and operation ofthe 

hydropower plant, and must be- in FI'RC's judgment- reasonable, economically 

feasible, and essential. \1easures necessary to protect public safety are permissible. 

License conditions would he prohibited from addressing the underlying natural resource 

impacts of the existing dam, diversion. or reservoir i r one is involved. License conditions 

to address the full range of impacts of the project on national parks, federal lands, 

recreational opportunities, cultural resources. water quality, and other values would be 

prohibited. Currently, FER C. states, tribes, and federal agencies have broad authority to 

protect these values at hydropower projects. ;\II of these authorities would be 

significantly curtailed. 

Allows the developers of closed-loop pumped storage facilities to avoid complying with 

the Clean \Vater ;\ct, the Federal Land Policy and Management ;\ct, and other federal 

authorizations by limiting natural resource protections as described above. 

Overrides the Endangered Species Act by limiting conditions for the protection of 

threatened and endangered species to conditions that arc, in FERC's judgment, 

"economically feasible." 

Taken together, these provisions are an indirect. yet effective, attack on states, tribes. and federal 

agencies' conditioning authority under sections 4(e). IO(a), IO(j). and 18 ofthe Federal Power 

Act, section 401 of the Clean Water Act, section 7 of the Endangered Species ;\ct, and other 

federal and state authorities for protecting public lands and other resources. The Committee 

should not limit the application of these statutes, and the protections they provide. 

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American Rivers recognizes the value of pumped storage projects for grid regulation and the 

integration of carbon free renewable energy. Unfortunately. this bill eliminates the balance that 

has been at the heart of the consideration of pumped storage projects since the Storm King 

Mountain project was rejected in Scenic 11udson vs. Consolidated Edison. thus leading to the 

enactment of the National Environmental Policy Act. We arc willing to work with the 

Committee to develop incentives for the proper siting and construction of pumped storage 

projects. but not at the expense of hal r a century of environmental protections. 

Discussion Dra(t: Promoting Small Conduit Hydropower Facilities Act o(2017 

American Rivers suppotis the concepts contained within the Discussion Draft. We have been 

engaged in negotiations with the Colorado Small Hydropower Association over proposals to 

expedite the deployment of small conduit projects, and we want to commend them for working 

with us in a fair. open, and collaborative manner. 

When successfully deployed, projects such as those intended by supporters of this legislation to 

be exempted from FERC jurisdiction can have a major beneficial impact on the health of a river 

system by increasing the cfl!cicncy and affordability of modern irrigation technologies. We 

want to ensure that legislation exempting projects from FERC jurisdiction docs not exempt 

projects that arc large enough, or environmentally sensitive enough, to warrant federal licensing. 

We believe that this can be achieved, and we look forward to working with the Committee to 

continue to refine this proposal to accomplish what we believe is a shared goal: the deployment 

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of more environmentally benign and in some cases environmentally beneficial conduit 

hydropower projects. 

ll.R. 1 S38, Supporting Home Owner Rights En(orcement Act 

American Rivers is not opposed to legislation that would direct FFRC to take into consideration 

the rights of private property holders along l'cdcrally licensed reservoirs and impoundments. 

However, we would note several concerns: 

All of the other non-project specific hydropower legislation under consideration in this 

hearing has been written to reduce the power of federal natural resource agencies to 

exercise their authority under Scction4(c) of the l'edcrall'ower Act to protect federal 

reservations. their multiple uses, and the taxpayers of the United States who usc them 

(including the Native Americans whose sovereign tribal lands arc held in trust by the 

Secretary of the Interior and protected by Section 4(c)). These Discussion Drafts 

uniformly transfer power from federal natural resource agencies to FERC for the express 

purpose of elevating power production, and the utilities that produce power, above all 

other interests. li.R. 1538 does the opposite; the bill is designed to weaken FERC's 

authority to manage reservoir levels and shorelines for the purposes of power production, 

among other beneficial uses, in order to advantage reservoir front landowners. 

Thus. we cannot support legislation that amends Section 4(c) to advance the interests of a 

small group of landowners while other bills are being considered which would amend the 

same section of the statute to strip away authorities that protect tribal trust and treaty 

lands as well as public lands belonging to all Americans. 

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• Further, as long as FERC retains the power to exercise eminent domain on behalf of 

licensees. it is unlikely that H.R. 1538 will have much practical effect. lfl-I.R. 1538 were 

amended to strip away FERC's eminent domain authority, it would be more likely to 

actually benefit the property owners it seeks to protect. 

In summary, American Rivers docs not oppose H.R. I 538 on its own, primarily because it will 

have little practical effect without FERC also being stripped of its eminent domain powers. 

llowcvcr American Rivers must oppose II.R. I 538 in the context in which it is being considered. 

We arc willing to work with the Committee to provide real relief to the aggrieved parties who 

seek this legislation provided that we can do so in such a way that is equitable to all parties 

whose interests arc at stake in the licensing and operation of federally licensed projects. 

Commence Construction Earmarks: H.R. 446, To extend the deadline {(Jr commencement of 

construction o(a hvdroelectric project; ll.R. 447, To extend the deadline (or commencement 

of construction o(a hydroelectric project; ami H.R. 2122, To reinstctte cuul extend the deadline 

for commencement of construction o(a hvdroelectric project 

We address these three bills en h/oc. American Rivers docs not support individual 

extension bills like II.R. 446.li.R. 447. and II.R. 2122. The vast majority of 

hydroelectric projects are able to commence construction within FERC's statutory 

deadline. and we generally look with disfavor on attempts to evade regular order in 

proceedings before FERC. We are concerned about the precedent set when Congress 

passes earmarks to waive regular order at specific dam sites or !TRC projects. We 

want to make clear that our objection is to the practice of earmarking FERC projects 

in general. and not to any of the specific projects before the Committee at this time. 

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These bills arc also a symptom of a larger issue with hydropower development !\II 

of these projects involve retrofitting existing non-powered dams with new 

hydroelectric facilities. American Rivct·s generally supports policies, like the 

llydmpowcr Regulatory Efficiency J\ct of 2013, that would encourage the 

responsible development of hydropower on existing nonpowcred water 

infh1structure. 

The National Hydropower Association has argued that the provisions of the 

Discussion Draft with respect to Non-Powered Dams.- which would weaken 

bedrock environmental laws like the Clean Water J\ct and the Endangered Species 

Act, along with key protections for public land, Native American treaty obligations, 

recreation, and fisheries--- arc necessary to "expedite" the FERC licensing process. 

Members of the industry. arguing before this Committee, have consistently identified 

the hydropower licensing process particularly sections of the law that protect these 

critical public values- as the greatest obstacle to new hydropower development. 

We believe that the facts demonstrated, in par!, by the existence of these three bills 

and the many others like them that the Committee considers every year- tell a very 

different story. FERC's regulations envision a five-year licensing process, with three 

years of pre-filing activities and two years of processing after an application is filed. 

While some projects take longer. there are many examples of hydroelectric projects 

that receive l'ERC licenses in a much shorter period of time. For example, between 

2006 and 2012, FERC issued 46 hydropower licenses in fewer than twelve months 

each. 

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All of the projects here arc consistent with FFRC's ordinary licensing timclines. The 

completed license applications for each of these projects were processed in fewer than 

two years. with an average processing time of fewer than 16 months. All of the 

developers of these projects received their licenses within 11-23 months of filing an 

application that was complete and ready to be processcd.4 The two projects with the 

longest licensing times (Gathright at 23 months and Flannagan at 18 months) 

involved a "delay" between the filing oflhc licensing application and FERC's 

determination that the license application was complete and ready for processing, 

meaning that the applicant had not provided sufficient information in its original 

application. 

At all three of these projects, post-licensing activities have been the primary obstacle 

to successful development. Each of the projects in question has held a FERC license 

for more than five years. much greater than the time it took for fTRC to process the 

license in the first place, which was an average of26 months, not counting the time 

that the applicant needed to provide sufficient information to FERC. The average time 

it took for licensees to obtain their licenses for these projects (16 months) is far less 

than the time that has elapsed since they received those licenses and failed to 

commence construction (an average of' 61 months and counting). On average, these 

developers have held these licenses without generating a single kilowatt or even 

breaking ground on the facility for nearly four times as long as it took FERC to 

process their licenses in the first place. The FFRC licensing process is not holding 

back any of these projects. 

4 Time from FERC "Notice of <lpplication ready for environmental analysis" to Issuance of license order. 

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The National Hydropower Association (NliA) continues to argue before Congress 

that the licensing process - particularly those portions of the process that arc 

intended to protect the environment - arc the greatest source of delay in bringing 

new hydropower online. Yet elsewhere, NIIA downplays this concern. In a recent 

letter regarding the Obama Administration's Clean Energy Incentive Program 

(CEll'). Nil A argues that many hydropower projects can be licensed and constructed 

without signi ric ant delay: 

Even under hydropower's current licensing process there arc many 

examples of projects being licensed and built witbin the 

timcframes outlined in the CEll'. For example, the Federal Energy 

Regulatory Commission (FERC) maintains a list of projects that 

were expedited in less than one year. and between 2006 and 2012, 

46 hydropower licenses were issued in under twelve months 

representing over 39,000 kWs. For small hydropower developers 

seeking a FERC exemption the median project timeline between 

exemption upplication and commercial operation is 2.5 years, and 

the median timeline between start construction to placed-in service 

is 17 months. Similarly, under the Hydropower Regulatory 

Efficiency Act of 2013 (HREi\), Congress removed certain small 

conduit hydropower projects from FERC jurisdiction and since 

llREA's passage, 57 projects have received "qualifying conduit" 

status, representing over 24.000 kW's. For these projects it takes 

FERC between two and three months to issue a determination. 

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Finally. the Bureau or Reclamation's Lease of Power Privilege 

(LOP!') process demonstrates hydropower projects can meet the 

CEIP's time frames. Under the LOPP. Reclamation has approved a 

number or projects representing over 49,000 k W's. On average, 

these projects. i!·om project initiation to operation. takes between 

2.5 and 3 years 5 

NHA argues elsewhere that the licensing process is not the most significant source of 

delay in developing new hydropower projects. In a comment Jetter to FERC in 2015, 

NHA referenced the Department of Energy's 2014 llydropower Market Rcport6 in 

support of its argument that FERC's annual charges for hydropower licensees (which 

fund FERC's licensing activities) should not apply to unconstructcd hydroelectric 

projects: 

"Examining the major licensing milestones of sixteen projects 

between 2005 and 2013,the I\1arket Report found that the phase of 

licensing and project development between license issuance 

and the sta1·t [sicj construction took the most time, more than 

fom· years, typically, longer than obtaining the license itself." 

[emphasis addcdJ 7 

'National Hydropower Association Comments on Docket No. EPA-HQ-OAR-2015-0199, Federal Plan 

Requirements for Greenhouse Gas Emissions from Electric Utility Generating Unfts Constructed on or Before 

January 8, 2014; Model Trading Rules; Amendments to Framework Regulations. 

http://www.hydro.org/wpcontent/uploads/2016/01 [NHA-Comments on-EPA' s-Ciean-Energy-lncentiveProgram.pdf 

6 http:/ j energy .gov ( e ere/water/down I oad s/20 14-hyd ropowe r -market-report 7 Comments of National Hydropower Association on Commencement of Assessment of Annual Charges under 

RM15-18. FERC Accession No. 20150721-5150. 

Page 33 of 36 
165 


Our own review of the data used to inform figure 7 (p. 20) in DOE's Market Report 

which involves projects that arc very similar to the ones addressed in these three bills 

-suggests that Nl !A is correct: Hydropower projects can indeed be licensed and 

constructed quickly. and licensing is far from the greatest source of delay when it 

comes to getting new hydropower projects online. Rather, the period of time between 

the receipt of a FFRC license and commencement of construction is a much more 

signillcant source of delay: 

The average time it took to license a project was just shy of2.5 years (an 

average of four years for licenses and six months for exemptions). 

FERC's licensing process contemplates a live-year licensing period. Only six 

new projects exceeded this period. The average delay was 16 months; the 

maximum delay was slightly less than eight years (again. much less than the 

industry's "I 0 year delays" talking point). 

By contrast, the period of time between the receipt of a FERC license and 

commencement of construction was a much larger source of delay: on average 

5.21 years (7.36 years for licenses and 2.5 years for exemptions). These delays 

arc unrelated to environmental concerns. as Clean Water Act certifications. 

ESA consultation, and other environmental issues were resolved before license 

issuance. 

The three bills currently under consideration by the Committee provide further 

evidence that licensing is not the greatest of the hydropower industry's problems. 

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Rather, the problem appears to be with developers' ability to actually get projects built 

once they have received a license. 

Solutions to Problems with the Ucem1ng Process 

American Rivers acknowledges that there arc improvements to the licensing process 

that could be made to expedite licensing, reduce costs to utilities and ratepayers, 

federal and state taxpayers, and other participants in licensing, while still maintaining 

protections for the environment. As noted in comments submitted for the record to 

the hearing the Committee held on March 15. we believe that there are several steps 

this Committee can take to substantially improve licensing: 

FERC should presumptively grant study requests submitted by federal, state, 

and tribal agencies, especially with those with statutory authorities under 

Federal Power Act, the Clean Water Act or the Endangered Species Act. 

• FERC should promote the adoption of memoranda of understanding (MOUs) 

between the Commission. tribes. and states to improve coordination and 

prevent unnecessary delays; 

FERC's ex parte rules should be changed to allow for greater cooperation 

between the Commission and mandatory conditioning agencies; 

Congress should increase appropriations to the federal resource management 

agencies to fund the sta!Tpositions that allow them to efficiently and 

thoroughly evaluate applications for hydroelectric licenses; 

Congress should extend its recognition of the right ofNative American tribes 

and Alaska Native Corporations and Villages to manage water quality 

Page 35 of 36 
167 


standards ontriballands to include their rights to manage land use and fish 

and wildlife populations as well; 

Congress should consider whether FI'RC should relinquish jurisdiction over 

permitting projects on non-powered dams owned by the U.S. Army Corps of 

Engineers (Corps): 

• Congress should consider some sort of additional exemption for small conduit 

projects: 

Congress should consider enacting comprehensive changes to the deadlines for 

preliminary permits and the construction of project works, as found in the 

sections 2(c) and 2(d) of the Discussion Draft: Hydropower Policy 

Modernization Act of 2017. 

Unfortunately, few if any of those steps are taken in any of the bills before us today. 

Instead the Committee is reviewing legislation that will be a bonanza for energy and 

water attorneys, and will lead to legal gridlock and environmental degradation. 

American Rivers stands ready to work with the Committee to improve the licensing 

process. We urge the Committee to consider convening a stakeholder process by 

which the interests of utilities large and small, conservation and recreation groups, 

states. tribes, and the Departments of the Interior, Commerce, Agriculture, Energy. and 

the Army, along with FERC and the Power \llarketing Administrations, can all be 

balanced to achieve the dual outcomes of more hydroelectric power generation, and 

improved river health. 

Thank you for the opportunity to testify today. 

Page 36 of 36 
168 

Mr. OLSON. Thank you, Mr. Irvin. 

And the Chair now recognizes for 5 minutes Ms. Danis for an 

opening statement. 

STATEMENT OF JENNIFER DANIS 

Ms. DANIS. I want to thank the committee for the opportunity to 

testify. My name is Jennifer Danis and I am a senior staff attorney 

with the Eastern Environmental Law Center representing New 

Jersey Conservation Foundation and Stony Brook-Millstone Watershed Association. 

The proposed changes contained in the Interagency Coordination 

Act are unnecessary and would upset the careful balance of cooperative federalism that exists under the Clean Water Act, the Clean 

Air Act, and the Coastal Zone Management Act. The changes would 

inappropriately expand FERC’s natural gas authority, attempt to 

undermine States’ rights, and undermine the important role that 

other Federal and State agencies play in protecting natural resources for the public. 

As we have already heard this morning, the proposed changes 

are a solution in search of a problem because FERC approves over 

90 percent of projects within 1 year. FERC administers applications for both Section 3 and Section 7 approvals on a case by case 

basis subject to the statutory standards of the Natural Gas Act, operating under no larger Federal energy program. These approvals 

are major Federal actions under NEPA and as such FERC is required to consider their environmental impacts. 

Yet FERC uses an extraordinarily narrow approach of its regulatory role under NEPA. For example, FERC has expressed its 

view that it is not FERC’s duty to assess project purpose and need 

beyond accepting the applicant’s stated project goal. This approach 

limits FERC’s need for review excluding real analysis of alternatives. FERC will only consider alternatives to natural gas transmission pipelines that are other natural gas transmission pipelines. 

Similarly, FERC takes an extremely narrow approach to environmental impact assessments. FERC’s assessment of environmental 

impacts routinely finds that a project’s environmental impacts will 

not be significant so long as other Federal agencies or State agencies acting pursuant to Federal law separately assess the project’s 

environmental harm under substantive statutes such as the Clean 

Water Act, the Clean Air Act, and the Coastal Zone Management 

Act. 

FERC considers authorizations on a case-by-case basis not subject to any Federal energy program or regional planning. As such, 

FERC’s ad hoc authorizations demand robust, ancillary Federal authorizations by agencies operating subject to comprehensive plans 

to protect our water and air for future generations. For FERC 

projects, the comprehensive environmental impacts analyses required by NEPA are consistently performed by those other Federal 

and State agencies in their independent review under substantive 

environmental laws. 

Although the proposed bill is entitled Promoting Agency Coordination for Review of Natural Gas Pipelines, the essence of the proposed changes would generate not resolve conflict between and 

among Federal and State agencies currently responsible for evaluVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00174 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
169 

ating the actual impacts of Section 3 and Section 7 projects. In fact, 

the proposed amendments threaten to abrogate State and Federal 

powers and duties under those laws. 

Congress carefully allocated cooperative and specific roles for the 

States and for the relevant Federal agencies when enacting those 

substantive laws. They all explicitly recognize the critical role that 

the States play in protecting water and air quality. In fact, a key 

legislative purpose of the Clean Water Act was to uphold the primary responsibility for controlling water pollution that rests with 

the States. 

From its inception, the 401 Certification requirement was a 

mechanism to explicitly protect States’ ability to regulate water 

quality standards and pollution control ensuring their ability to enforce more stringent standards than Federal ones. Under the Clean 

Air Act and Coastal Zone Management Act, the State may also designate standards more protective but not less than Federal ones. 

These NGA amendments would create overt clashes with existing 

Federal statutes designed to protect water and air and to preserve 

the States’ role in that process. For example, the proposed amendments attempting to allow FERC to define the scope of environmental review for the States or agencies acting pursuant to Clean 

Water Act authority would clearly run afoul of the Clean Water 

Act’s goals. 

The Clean Water Act is a model of cooperative federalism. There 

is no need for Congress to disturb this careful balance. Of the hundreds of energy infrastructure projects authorized by FERC, there 

have been only three. A tiny percentage that States have determined cannot be constructed in accordance with controlling water 

quality standards. Industry cries of abusing reserved and primary 

powers by the States to protect water quality must stem from a 

mistaken belief that any certification denials constitute an abuse of 

authority. 

I see my time is coming to a close. I am happy to answer any 

questions. Thank you for the opportunity to testify. 

[The prepared statement of Ms. Danis follows:] 

170 


'(~t;imQJly_of {!!nn_ifecDanis 

Senior Staff Attorney 

Eastern Environmental Law Center 

on behalf of the 

New jersey Conservation Foundation and 

the Stony Brook-Millstone Watershed Association 

Before the U.S. House of Representatives Subcommittee on Energy and Power 

of the Committee on Energy and Commerce 

A Legislative Hearing on the Proposed "Promoting Interagency Coordination for Review of 

Natural Gas Pipelines Act" 

May 3, 2017 

Eastern Environmental Law Center 

50 Park Place, Ste. 1025 

Newark, New jersey 07102 

(973) 424-1485 (phone) 

jdanis@easternenvironmental.org 
171 


CQnci~~_Statement 

The proposed changes to 15 U.S.C. 717n arc unnecessary and would upset the 

careful balance of cooperative federalism that exists under the Clean Water Act, the Clean 

Air Act, and the Coastal Zone Management Act. It would inappropriately expand FERC's 

Natural Gas Act authority and undermine states' rights and the important role that other 

federal and state agencies play in ensuring the protection of natural resources for the 

public. 

Summary 

Under the Natural Gas Act, FERC is responsible for administering applications for 

both Section 3 and Section 7 approvals. It does so on a case by case basis, subject to the 

statutory standards of the Natural Gas Act, operating under no larger federal energy 

program. When processing approval requests under Section 7 for certificates of public 

convenience and necessity, FERC may grant such approval only if it finds that the project is 

required by the public convenience and necessity. FERC has generated a series of Policy 

Orders, collectively known as FERC's Certificate Policy Statement,1 to which it nominally 

adheres when evaluating these projects to determine compliance with that Natural Gas Act 

standard. FERC grants Section 3 approvals if it finds that the project is in the public 

interest, and FERC generally reviews LNG projects employing the same standards as 

Section 7 projects.' FERC approvals under Section 3 and Section 7 constitute major federal 

action for the purposes of the National Environmental Policy Act (NEPA), and as such, FERC 

1 Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC 61,227 (1999), cla~ifl<!Q, 90 FERC 

61,12B, fu[ther_d"flficcl, 92 FERC 1f 61,094 (2000). 2 See JS U.S.C. 717b. 

2 
172 


is required to consider the environmental impacts of its potential project authorizations in 

strict accord with NEPA. 

FERC currently employs an extraordinarily narrow interpretation of its regulatory 

role under NEPA. For example, FERC has expressed its view that it is not FERC's duty to 

assess project purpose and need beyond accepting the applicant's stated project goal. 

This approach has limited FERC's NEPA review to a mere recitation of legal requirements, 

devoid of the real analysis of alternatives to the proposed projects that forms the heart of 

NEPA. FERC will only consider alternatives to natural gas transmission pipelines that are 

other natural gas transmission pipelines. Moreover, FERC's assessment of environmental 

impacts routinely finds that a project's environmental impacts will not be significant so 

long as other federal agencies, or state agencies acting pursuant to federal law, separately 

assess the project's environmental harms under comprehensive statutes such as the Clean 

Water Act, the Clean Air Act, and the Coastal Zone Management Act.3 

Thus, the detailed and comprehensive environmental impacts analyses required to 

protect natural resources arc consistently performed by other federal and state agencies 

under the more specific environmental standards contained in the above-listed substantive 

environmental laws-- not by FERC under NEPA. While FERC must additionally consult 

with other federal/state agencies, such as United States Fish and Wildlife Service, 

responsible for assessing Endangered Species Act effects, and state historic preservation 

authorities, in coordinating the Section 106 Process of the National Historic Preservation 

------------- ------ 3

FERC has rarely, if ever, denied authorizations based on project-specific impacts identified during the NEPA 

review process. ~~Linda Luther & Paul W. Parfomak, Con g. Research Scrv., R44140, Presidential Permit 

Review for Cross-Ilorder Pipelines and Electric Transmission (20 17). 

3 
173 


Act, those important environmental reviews do not involve the same core authority 

delegated to the states under the CW A, CAA and CZM/\.1 

Although the proposed bill is entitled, "Promoting Interagency Coordination for 

Heview of Natural Gas Pipelines Act," the essence of the Act's proposed changes to 15 U.S. C. 

§ 717n would generate-- not resolve-- conflict between and among the federal and state 

agencies currently responsible for reviewing the actual environmental impacts of project 

proponents' applications to FEHC for Section 3 or Section 7 Natural Gas Act approvals. In 

fact, the proposed statutory amendments threaten to abrogate state powers and duties 

under federal laws including the Clean Water Act, the Clean Air Act, and the Coastal Zone 

Management Act. 

CL~<In W_ater A!=t. 3J!\Lth~CoaJ>tal~ongM<I.Il11Keill~ll LAc.t: TheJmpprt<IIls.e.pfthe ~tate'!! 

Hqle irt.the.J::!!.m~es<!!iye f~d.eraJis_m, 

The Clean Water Act explicitly recognized the critical role that the states play in 

protecting water quality. Clean Water Act section 401 plainly mandates that "any applicant 

for a Federal license or permit to conduct any activity ... which may result in any discharge 

into the navigable waters ... shall provide the licensing or permitting agency a certification 

from the State."5 The statute further states, "[n]o license or permit shall be granted until 

the certification required by this section has been obtained or has been waived as provided 

in the preceding sentence. No license or permit shall be granted if certification has been 

4 For example, as part of accepting delegation of the 401 program, states retained the core authority to 

determine that a particular project proposal cannot proceed in accordance with state water quality 

standards, although FERC has determined that the project can satisfy Natural Gas i\ct standards under 

Section 3 and Section 7. 5 33 U.S. C.§ 1311[a](l). 

4 
174 


denied by the State ... "6 This authority is squarely reserved by the states when charged 

with considering FERC project applicants' requests for 401 Water Quality Certificates. Any 

amendments to the Natural Gas Act, such as the ones proposed for altering 717n, would 

create overt clashes with the existing federal statutes and comprehensive plans designed to 

protect the nation's water and air quality. The proposed bill's attempt to allow FERC to 

define the scope of environmental review for the states or agencies acting pursuant to 

Clean Water Act authority would clearly run afoul of the Clean Water Act's goals and 

language. 

A key legislative purpose of the Clean Water Act was to uphold "the primary 

responsibility for controlling water pollution [that] rests with the States.''7 From its 

inception, the 401 certification requirement was a mechanism to explicitly protect states' 

ability to regulate water quality standards and pollution control, ensuring states' abilities 

to enforce more stringent standards than federal ones. Senator Muskie, who introduced 

the 1970 bill that created water quality certification, stated "no license or permit will be 

issued by a Federal agency for an activity that through inadequate planning or otherwise 

could in fact become a source ofpollution."8 He later expounded further on the aim of 

section 401, contemplating how the certificate program would prevent projects proposed 

for federal authorization such as Section 7 or Section 3 projects from circumventing the 

state's certification: 

No polluter will be able to hide behind a Federal license or permit as an 

excuse for a violation of water quality standards. No polluter will be able to 

make major investments in facilities under a Federal license or permit 

------------

6 ld 

7ll 5 Con g. Rcc. 28.970 ( 1969) [statement of Sen. Cooper); ScE..illso 33 U.S. C. §1251 (b). 8 il.R. Rep. No. 91-127 (1969). 

5 
175 


without providing assurance that the facility will comply with water quality 

standards.9 

Congress enacted the certification requirement as a mechanism to ensure that proposed 

projects would not move forward without first complying with state water pollution 

control standards. Congress recognized that occasional project delays could result from 

state certification requirements and decided that certification nonetheless was required 

before a federal permit could be issued, because it represented a critical safeguard. 

Congress purposely enacted the certification program to prevent "investments"Jo in 

projects until the state assured that such projects would abide by water quality standards, 

regardless of the attendant delays.1 1 In fact, this has not borne out in practice. The 

complex interplay between these statutes has struck the appropriate balance between the 

respective federal and state agencies responsible for reviewing them under the various 

applicable statutes, and fulfilled Congressional intent to prevent the pursuit of any project 

activity unless the states certified that the project could proceed without harming water 

quality, as determined by the state 401 programs, which are confirmed by the USEPA. 12 ·13 

9 116 Cong. Rcc. 8981 [1970) [statement of Sen. Muskie). 10 With the Clean Water Act section 401 process, Congress intended to prevent precisely the types of 

premature project investments that PcnnEast seeks to make in pre-construction activities prior to collecting 

all the relevant data regarding project impacts. 11 Delays in FERC's certification processes typically do not stem from states' tardiness in issuing a section 101 

certificate. Rather, appllcants that postpone their section 101 applications and suhmit incomplete data to 

FERC in their CPCN applications create their own bottlenecks in the certification process. Furthermore, 

expediency is insufficient rationale for circumventing a carefully crafted statutory scheme. Applicants should 

anticipate and account for any delays that do result from the section 401 process. Despite the increase in 

applications, there is no indication that FERC's decision-making process has become overly burdened or 

delayed; recent congressional debates on this issue revealed that 92% of natura! gas pipeline applications arc 

decided within twelve months. Pete Kasperowicz, !louse Votes 252-165 to Speed up Natural Gas Pipeline 

Approvals, II ILL [Nov. 21, 20 13), 1 http:/ /thehill.com(policy (energy-environment/191 065-housc-votes-to-

~ r :_ed- up-n a tu raJ-gasp i peli n c:a pp rova Is. . . 

l IllS nght IS mdependent of whether the partrrular state also has a federally delegated permrlting program 

for Section 401 approvals, or for NI'DES permits. 

6 
176 


Congress explicitly provided that a federally licensed project could not proceed 

absent state certification under the Clean Water Act, 14 as evidenced by the plain language 

of the Clean Water Act statute and the foregoing legislative history. Congress enacted the 

Clean Water Act to establish a comprehensive statutory scheme in which states have final 

authority to set their own water quality standards and to impose conditions on federal 

licensing of projects or reject applications that do not meet water quality standards. Is The 

Clean Water Act section 401 confers on the state the threshold determination of a project's 

viability for complying with water quality standards. 16 Those standards may regulate 

water quality more stringently than the baselines set out by EPA under the Clean Water 

Act. Sci! 33 U.S.C. § 1370. A state's water quality standards are deemed to be the federal 

standards.i7 

The same is true for the state's role in the cooperative federalism established under the 

Coastal Zone Management Act. 1B States' exercise of this section 401 authority has been 

both expeditious and judicious, and overwhelmingly resulted in project approvals. Of the 

hundreds of energy infrastructure projects authorized by FERC, there have only been three 

13 (ity o(l<l_coma, 160 F.3d at 67 (explaining that the state's ability to block the project is the mechanism 

through which the state fulfills its primary responsibilities under the Clean Water !let]; !i_ee__<!U,:Q Kea!J~g, 927 

F.2d at 622 (seme]; {;ullJlQ,~der, 807 F. 3d at 279 (same). 14 The l)._gatuH~ court also stated that "an applicant for such a license must first obtain state approval ofthe 

proposed project" and "section 401 certification is a predicate to the issuance of any section 401- permit." 

Ke;lting y.XERC 927 F.2d 616, 622 (D.C. Cir. 1991) (making the point that 401 governs 404 perm1ts because 

the 401 permit is a federal license]. 15 Notably, the state's authority to establish such conditions is not restricted to those "specifically tied to a 

'discharge"' under section 401, but rather applies to any activities which the state deems are necessary to 

ensure compliance with the Clean Water !let. Pl!DNQ~lofjcffiTSOn C:<21J_nty_v. 'A'<llihin!ililO_l)~j;(t of_IO_~ology, 

511 U.S. 700, 701 (1991) (finding that Washington state's minimum stream flow requirements were with111 

the state's statutory authority and were entitled to deference). 16 33 U.S.C. § U4l(a][1) (2012). 17 Sec 33 U.S.C. § 13l3(c)(3). 18 ~e lsla_fldcrJ,_e?_l_Pi!)eJine_Gg,J,I,C v._IV!_cCarthy, 525 F. 3d 111 (2d Cir. 2008) ("Clean Water and Coastal 

Zone Management i\cl.s are notable in effecting a fedcral~state partnership La ensure water quality and coastal 

management around the country, so that state standards approved by the federal government become the 

federal standard for that stale."]. 

7 
177 


--a tiny percentage-- that states have determined cannot be constructed in accordance 

with applicable water quality standards. Industry cries of states "abusing" their reserved 

and primary powers to protect their water quality, therefore, must stem from their 

mistaken belief that any certification denial constitutes an abuse of authority. 

Attempting to impose restricted schedules on state's review of Section 7 and Section 

3 certificates in practice may prevent the state from fully protecting against any impacts 

from and undue investment in projects that may fail to comply with the CWA and other 

state water quality standards.19 Congress need not disturb its determination that that 

ability is rooted in the prevention of "major investments in facilities under a Federal license 

or permit without providing assurance that the facility will comply with water quality 

standards."20 The language of section 401 says any activity "which may result in discharge" 

--as opposed to "usually" or "foreseeably" --requires a state certificate.Zl 

The impact of the proposed amendments to 717n on state authority under Section 

401 of the Clean Water Act is particularly vague and ill-defined. As set out above, Section 

401 requires that states certify that federally permitted activity is consistent with state 

water quality standards. The Clean Water Act is a model of cooperative federalism. 

Historically, water quality regulation was left to the statcs. 22 As water quality regulation 

was gradually federalized, states retained authority to determine water quality standards 

19 FERC's consideration of authorizations on a case by case basis, subject to no federal energy program or 

regional planning, is a prime example of an authorization system that must be continue to be reviewed for 

ancillary Federal authorizations by agencies operating subject to comprehensive plans, charged with 

~rotecting our waters and air for future generations. 0 116 Cong. Rec. 8984 (1970] (statement of Sen. Muskie]. 21 33 U.S.C. § 1341(a] (emphasis added]. 22 ~e. Federal Water Pollution Control Act, ch. 758, 62 Stat. 1155 (1948) (declaring a policy to "recognize, 

preserve, and protect the primary responsibilities and rights of the States in controlling water pollution"); 

Federal Water Pollution Control Amendments of 1956, ch. 518, 70 Stat. 498 (declaring that "[n]othing ... shall 

be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the 

waters ... of such States."]. 

8 
178 


applicable to their own waterways,23 and in 1970, Congress created the water quality 

certification mechanism to assure that federally permitted activities would not violate 

state-set water quality standards.24 In 1972, the Clean Water Act incorporated both these 

mechanisms into the new cooperative federalism framework: giving states authority to set 

water quality standards subject to minimum standards, and giving states the role of 

determining whether federally permitted activity would comply with those standards.25 

The same principles apply to states' certifications under the Clean Air Act. 26 Courts 

have made clear that states retain the right to deny an air quality permit pursuant to its 

State Implementation Plan (SIP). 27 Under the Clean Air Act, states retain the right to adopt 

their own plans for the "implementation, maintenance, and enforcement" of air quality 

standards issued by EPA. 28 States have significant authority and responsibility to develop 

SIPs, and may impose air quality or emission standards more stringent than EPA 

promulgated standards.29 For projects proposed under Section 3 and Section 7 of the 

Natural Gas Act, emissions associated with LNG terminals and compressor stations often 

trigger state review for Clean Air Act compliance and permitting. The Clean Air Act 

provides its own complex system of cooperative federalism that precludes FERC from 

23 ~ee Water Quality Act of 1965, Pub.!.. No. 89-231, sec. 5, § 10. 24 Water Quality Improvement Act of 1970, l'ub. ! .. No. 91-224, sec.102, § 21[b](1]. 25 Federal Water Pollution Control Act Amendments of 1972, Pub. I .. No. 92-500, §§ 303, 101. 26 Sfi' Chevron, 467ll.S. 837,842-43 [1981). 27

l\1yecs_vill_e~ 783 F.3d at 1320. 28 Michigi!nv. EPA 213 f'.3d 663,669 [D.C. Cir. 2000); see_alsQ 42 U.S.C. §7110. 29 This is analogous to the states' rights and substantial freedom under the Clean Water Act to develop state 

water quality standards more slringcnt than federal ones, discussed above. 

9 
179 


sidestepping or controlling the requisite environmental review process arising thereunder. 

As is true with FERC's limited water quality impacts analysis during its NEPA review, 

wherein FERC inevitably concludes there will be no significant adverse water quality 

impacts by anticipatorily relying on the relevant state's more detailed and substantive 

water quality certificate review, FERC's air quality impacts analysis routinely assumes an 

applicant independently will satisfy the relevant state's Clean Ail" Act permitting processes, 

when concluding that the Section 3 or Section 7 project will not have significant adverse air 

quality impacts. 3D 

The proposed changes to 15 U.S.C. § 717n(b)(2)(B) and (C) sow seeds of confusion, 

as they lack definition and use similar nomenclature to refer to legally distinct concepts. It 

is entirely unclear from the language what the newly proposed "Identification" and 

"Invitation" processes encompass. Is it intended to allow FERC to identify and invite 

agencies to its own internal review process? 

Or is it, as it appears to be written, to be inviting agencies to participate in their own 

review processes? Without clarification, it is difficult to comment substantively. To the 

extent that it suggests that FERC has the power to identify who the agency administering 

the ancillary Federal authorizations must consult with when conducting those independent 

reviews, it ignores the fact that FERC has neither the substantive expertise nor the 

authority under those environmental statutes to do so. Nor should it direct a deadline for 

30 Importantly, states are charged with implementing comprehensive air quality programs tailored to their 

geographical regions, while, as set out above, FERC solely evaluates one project application at a time, subject 

to no integrated regional plan. 

10 
180 


responding to FERC once receiving this invitation to "cooperate or participate in the review 

process for the applicable Federal authorization." It would appear this newly proposed 

language contemplates a statutory scheme in which FERC is inviting federal and state 

permitting agencies to participate in the review process that they are responsible for 

conducting themselves. 

Moreover, wholly inconsistent with Congress' approach to delegating authority to 

other agencies, it also appears to put FERC in charge of identifying which agencies need to 

participate in those independent review processes, in violation of both its sister federal 

agencies' autonomous implementation of their authorizing statutory schemes, as well as 

those agencies' primary rights to determine with whom they need to consult once they 

have received an application for a permit or authorization. Additionally, nothing in this 

section indicates what happens if the "invited" body does not respond to FERC, nor does it 

even contemplate that such "invited" body has any administratively complete application in 

front of it, to trigger its native review authority. 

The existing statutory language of 717n(c)(1) currently presents problems in 

FERC's review process for Section 3 and Section 7 projects, because FERC routinely accepts 

applications that are missing basic information and analyses required under FERC's own 

environmental review regulations, at 18 C.F.R. pt. 380. FERC currently condones and 

31 15 U.S.C. § 717r(d)(2) states, "The failure of an agency to take action on a permit required under Federal 

law, other than the Coastal Zone Management Act of 1972, in accordance with the Commission schedule 

established pursuant to section 717n( c) of this title shall be considered inconsistent with Federal law for the 

purposes of paragraph (3)." Paragraph (3) instructs that upon finding this statutorily defined inconsistency, 

"the Court shall remand the proceeding to the agency to take appropriate action consistent with the order of 

the Court. If the Court remands the order or action to the Federal or State agency, the Court shall set a 

reasonable schedule and deadline for the agency to act on remand." 15 U.S.C. § 717r(d)(3). 

11 
181 


excuses applicants' submissions of seriously deficient applications for Section 3 and Section 

7 approvals. It repeatedly issues requests for data it identifies as critical, but then 

proceeds with its NEPA process for these empty applications, rather than rejecting them. 

The proposed (c)(1) compounds this problem, by providing the Commission authority to 

set a schedule for all Federal authorizations, without providing a required temporal trigger 

--such as a completed application that contains the data FERC's regulation state are 

required for a complete submission, but which now allows to be submitted on a rolling 

basis-- for that schedule-setting endeavor. FERC's regulations implementing this statutory 

authorization, found at 18 C.F.R. § 157.22, currently use FERC's publication of an FEIS for 

the Section 3 or Section 7 project as its temporal trigger. The current regulation requires 

that "a final decision on a request for a Federal authorization is due no later than 90 days 

after the Commission issues its final environmental document, unless a schedule is 

otherwise established by Federal law." 

This default time line cannot prevent state agencies acting pursuant to or under 

delegated federal law from refusing to consider deficient applications for requisite Federal 

authorizations, such as state 401 Water Quality Certifications. The Natural Gas Act ("NGA") 

can only give FERC authority to coordinate the processing of "Federal authorizations," 

because the substantive review and decision making for those Federal authorizations are 

controlled by other statutes, such as the Clean Water Act, the Clean Air Act, and the Coastal 

Zone Management Act. Accordingly, the existing 717n provisions and any regulations 

implementing them can only establish a schedule if it does not conflict with one "otherwise 

established by Federallaw."32 When promulgating this default 90-day schedule via 

3

' 18 C.F.R. § 157.22. 

12 
182 


regulations, FERC reconciled the potential conflict with other critical environmental 

statutes by making clear that the ninety-day timcline docs not apply where an 

authorization request (i.e., permit application) is incomplete: 

In the event of a disagreement regarding the adequacy of the contents of a 

request for a Federal authorization, the Commission may find reason to revise 

an agency's deadline for a final decision. However, although the Commission 

implores project sponsors and agencies to work cooperatively, it cannot 

compel them to do so. An agency retains the discretion to reject a request on 

the grounds that information necessary to reach a decision is lacking.33 

Thus FERC's regulations propose a schedule but acknowledge that they cannot override 

environmental agencies' determinations of when those applications are lawful or sufficient. 

The first proposed change sweeps the 90-day regulatory schedule into the statute, 

without explicitly incorporating a caveat providing that the schedule shall not come into 

effect if such timeline will interfere with the responsibilities of those federal agencies (or 

state agencies acting pursuant to federal law, or delegated federal authority) to comply 

with their own regulatory and statutory duties. This will impede other federal agencies 

from effectively carrying out their mandates under Federal environmental laws, and fails to 

explicitly recognize the primary importance of the states' review under the Clean Water 

Act, the Clean Air Act, and the Coastal Zone Management Act. Any amendments to the 

Natural Gas Act must not grant FERC authority that exceeds both its institutional expertise 

and its jurisdictional reach. Importantly, this newly proposed 717n(c)(2) fails to recognize 

that for many pipeline projects, the applicant may not submit its request for these ancillary 

Federal authorizations until after the FEIS is issued, and may well not be in a position to do 

so. A 90-day review deadline, as proposed, would interfere with the equal power of the 

Clean Water Act, the Clean Air Act, and the Coastal Zone Management Act to determine 

33 71 Fed. Reg. 62,912, 62,916n.26 (Oct. 27, 2006) (emphasiS added). 

13 
183 


whether a Section 3 or Section 7 project may proceed without jeopardizing valid state 

requiremen tsfstandards. 

The next proposed change to 717n( c) is the inclusion of a newly minted paragraph 

3, entitled "Concurrent Reviews." This section again fails to explicitly recognize that 

Federal and state agencies responsible for Federal authorizations cannot review 

applications that are administratively incomplete, and any such review schedule must (1) 

require the applicant to submit complete applications to those agencies concurrently with 

their application for Section 3 or Section 7 authorizations, and (2) explicitly provide that 

ancillary agencies' determinations of application completeness begin any statutorily 

recommended review period-- or risk infringing those agencies' obligations under other 

applicable laws. 

The proposed alterations do not appear to explicitly impose any burdens on the 

applicants to marshal the requisite environmental data essential for allowing Federal 

authorizations to commence. Moreover, FERC's review under NEPA arises under the 

backdrop of the Natural Gas Act, while the other Federal authorizations arise against the 

backdrop of environmental statutes with highly specific environmental data requirements, 

and entirely different statutory or regulatory schemes. As such, while it would be 

expeditious for all necessary authorization processes to run simultaneously, the current 

landscape for such proposals routinely involves applications for projects that lack sufficient 

data for what FERC requires under its own regulations, much less what environmental 

agencies require under their authorizing statutes. 

15 U.S. C.§ 717n(c) paragraph 4, subsections (B) and (C), generate conflict and 

confusion, and appear to be crafted for the purpose of intruding upon other agencies' rights 

14 
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under separate statutes. These are rights that FERC has understood and respected.34 

717n(c)( 4)(B) authorizes FERC to forward any issue of concern identified by a Federal or 

state agency "to the heads of the relevant agencies (including, in the case of a failure by the 

State agency, the Federal agency overseeing the delegated authority) for resolution. The 

term "failure hy the State agency" is left entirely undefined. What constitutes a "failure" by 

the State agency appears to be left to FERC's discretion. Rather than speculate about what 

a "failure by the State agency" connotes, a review of the other jeopardy posed by this 

provision follows. 

As set out herein, under the carefully crafted cooperative federalism set in place by 

the Clean Water Act, the Clean Air Act, and the Coastal Zone Management Act, the states 

retain substantial freedom and authority under those laws as the primary guardians of 

state water and air quality, under comprehensive and well planned programs. This 

provision attempts to grant FERC what can only be described as a quasi-parental 

controlling authority to police the states' exercise of their primary responsibility to 

safeguard their water and air, and to "punish" them for undefined "failures" by reallocating 

their statutory authority to the "Federal agency overseeing the delegated authority." The 

Clean Water Act, the Clean Air Act, and the Coastal Zone Management Act all have 

provisions specifying and delineating the state's (or U.S. Army Corps of Engineers) and 

EPJ\'s respective roles.35 The states have primary responsibility for determining whether 

34 "The Commission does not interfere with another agency's oversight of its own regulations." Order Issuing 

Certificate and Approving Abandonment, 149 FERC 61,258 at 28. (Dec. lR 2014). 35 ~e, e.g, 33 \!.S.C.§ 1313 (2012) (under the CWA, providing for state development and EPA review of 

water quality standards); 42 lf.S.C. § 7409-10 (under the CAA, providing for EPA development of air quality 

standards, and for state development, enforcement, and revision of plans to achi('VC those standards); 16 

li.S.C. s 1456 (under the CZMA, providing ror consistency of federal activities with state coastal management 

plans). 

15 
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applications for 401 Water Quality Certifications or Clean Air Act permits.36 Importantly, 

as set out above, the states are entitled to implement more stringent environmental 

standards for these reviews than the federal standards established by the U.S.EPA; the 

federal standards provide the minimum standards to which the states must adhere. 

Under the newly proposed 717n( c)( 4 )(B), this balance of power and carefully 

constructed cooperative federalism would become skewed towards the federal agency, 

according the federal agency ultimate authority to interpret and apply the states' own laws. 

Often states' Section 401 Water Quality Certification analyses involve coordination and 

application of myriad complex state laws. Requiring U.S.EPA to resolve issues of concern 

that may arise squarely under state Jaw would abrogate those states' powers and generate 

countless litigation regarding the interplay between the Federal Environmental statutes 

and the Natural Gas Act. 

Finally, the new 717n( c)( 4)(C), titled, "Deference to Commission," proposes that 

FERC define the "appropriate" scope of environmental review for Federal authorizations. 

This cannot stand under existing federal environmental laws. The Clean Water Act, the 

Clean Air Act, and the Coastal Zone Management Act do not accord FERC any role in their 

statutory or regulatory schemes. FERC has neither the statutory authority nor the 

substantive expertise to play any role in the implementation of these statutes. Thus, this 

provision, which attempts to accord deference to FERC's determination of what 

environmental agencies should consider in assessing applications for Federal 

36 New Jersey additionally has primary responsibility for determining whether specific projects qualify for 

wetlands permits under its own statutory and regulatory standards for most state wetlands, under delegated 

Section 404 Clean Water Act authority. Michigan has this delegated Section 104 authority as well. New 

J crsey's implementation of its freshwater wetlands permitting program employs more stringent standards 

than the federal Clean Water Act's. 

16 
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authorizations, stands in conflict with both those statutory authorizations and with wellestablished judicial precedent. This provision's only possible purpose-- and the only 

possible purpose of so many of the Act's proposed changes-- is to abrogate states' rights 

and powers, and bestow those stolen powers upon FERC. 

The language proposed for 15 U.S.C. 717n(c)(S) suffers from the same legal 

conflicts. It appears to mandate that any Federal or state agency that "does not complete a 

proceeding for an approval that is required for a Federal authorization in accordance" with 

FERC's established schedule shall become vulnerable to litigation brought by the applicant, 

as well as have its carefully reserved rights abrogated by the Federal agency responsible 

for administering the corresponding federal environmental statute. But it goes beyond this 

as well, and attempts to curtail states' provision of adjudicatory hearings on those federal 

authorizations. For example, in the case of a state agency exercising its rights to conduct a 

thorough Section 401 Water Quality Certification review, this proposed statutory 

amendment, through the use of totally undefined and new language referring to the state's 

failure to complete a "proceeding for an approval" (emphasis added), dictates that the U.S. 

EPA should then determine the timeline for that state's review proceedings. 

):'roposed 1 S_!!.~c;,_§..21Jn(!!) 

The proposed language contained in§ 717n(d) directs a federal or state agency 

considering an ancillary environmental Federal authorization to consider remote or aerial 

survey data submitted by the project proponent, and purports to create a new type of 

permit under those environmental Jaws-- a conditional approval issued without on-site 

data-- providing a "subsequent onsite inspection" to verify the remote data. There are 

two major problems with this new provision. First, aerial data are notoriously insufficient 

17 
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to provide baseline conditions or to assess project impacts to endangered species, on-site 

water quality, and critical wetlands habitat delineation. For example, aerial data provides 

no useful information for over 99% of the endangered species in New ]ersey.37 The bill, 

therefore, allows for conditional approval based upon a survey technique that is unable to 

catalog much of the data required by the complex environmental statutes and regulations 

those environmental agencies considering authorizations are charged with implementing. 

Second, echoing concerns set out above with respect to the other proposed 

amendments, this provision oversteps FERC's substantive expertise and interferes with the 

agencies possessing environmental expertise's determination of what kinds of data 

applications for Federal authorizations must contain-- determinations that are part of 

complex state and federal statutory and regulatory schemes, and their implementing 

protocols. Moreover, requiring state and Federal agencies to consider project proponents' 

submissions of aerial surveys is a useless exercise and a waste of agency resources.38 Since 

aerial surveys generate little, if any, legitimate scientific evidence upon which an agency 

may make an ultimate decision, there is no sound reason to create an alternative 

permitting regime in which an agency may simply guess as to the actual environmental 

impacts, and perform its analysis anew once onsite surveys and sampling occurs. Federal 

and state agencies should not be required to consider sub-par data and to make two 

37 S_Q~ Testimony of Edwar·d Lloyd on behalf of the New jersey Conservation Foundation and the Stony BrookMillstone Watershed Association, February 2, 2016 at Table 1, p. 12. The prior testimony also demonstrated 

that even extensive ground investigation is difficult to undertake and requires many person-hours.IQ at p. 11-

13. Moreover, aerial surveys are inadequate methods to identify wetlands along proposed pipelines. Lct at 1, 

15. 

38In addition to its scientific inadequacies, aerial surveying also raises significant privacy and property rights 

concerns for homeowners along proposed pipeline routes. lc! at 16·17. Aerial surveys-whether conducted 

with airplanes, helicopters, or drones-impose serious burdens on farming communities along proposed 

pipeline routes. l\!. 

18 
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separate determinations, one based on guesswork, and a subsequent one, based on actual 

verified on-site data. Doing so fails to promote interagency coordination-- it 

inappropriately places a non-environmental agency, FERC, that makes individual 

authorizations subject to no comprehensive energy policy or program, in the position of 

directing Federal authorizations under the Clean Water Act, the Clean Air Act, and the 

Coastal Zone Management Act. 

Propo~gJLlS l[.S.!:&Z1711 (e) 

The newly proposed 717n( e), denoted "Application Processing," attempts to provide 

a statutory underpinning for outsourcing Federal and state environmental review to hired 

consultants paid by private industry applicants. This provision attempts to (1) put private 

corporations in the position of regulators, authorizing them to review applications for 

compliance with Federal and state environmental laws; and (2) allow the project 

proponent to fully fund this service. This provision pushes beyond the existing conflicts of 

interest that arise when FERC employs the same consultant to perform its "independent" 

NEPA review as the applicant pays to prepare its application to FERC for Section 3 and 

Section 7 approvals. And it goes beyond allowing third parties to collect data for such 

ancillary authorizations. The laws under which the Federal authorizations arise must be 

implemented by the impartial agencies that Congress designated as the guardians of our 

nation's water and air quality, and they alone must review the applications to determine 

consistency with applicable laws. 

Propo§eJLLS U.S.~:17n(f) 

19 
189 


The new provision for "Accountability, Transparency, Efficiency," encapsulated in 

the new 717n(f), appears to make information available to the public in a coherent and 

consolidated fashion. As such, it would be an improvement over the current chronological 

and mixed submission style docketing that FERC currently employs. 

Pro}!!l~~d_'.'I'rumllting Cross-}lg_r!!er~n~r-gylnfrastruct!IE.A<:t'~ 

This proposed bill purports to "establish a more uniform, transparent, and modern 

process to authorize" international border crossing energy infrastructure projects. These 

projects often bear enormous environmental price tags, and, as such, the State Department 

has conducted increasingly robust NEPA reviews prior to issuing cross-border 

authorizations, with a national interest determination process informed by that NEPA 

review. For example, recent reviews have provided a much more thorough evaluation of 

climate impacts associated with new fossil fuel infrastructure projects, including the 

carbon emissions coming from the additional production they would enable. The existing 

NEPA review process provides the State Department an opportunity to evaluate the need 

for the proposed project in a global economy increasingly in transition. Accordingly, it 

allows for a broad policy and planning determination regarding which new fossil fuel 

infrastructure projects arc not feasible or economic against this global backdrop. Further, 

this proposal removes the ability of the Department of Defense, Homeland Security as well 

as the Department of State to provide valuable insights of national security which may 

influence the decision whether it issue a Presidential Permit or not. This paradigm has 

been in place since Executive Order 11423, which established a longstanding process that 

has been used by both Republican and Democratic administrations for decades to ensure 

20 
190 


that pipelines flowing into the U.S. are in the national interest, and was confirmed by 

Executive Order 13337. 

The bill attempts to shift responsibility for proving that such cross-border energy 

projects are in the public interest from the project proponent onto the authorizing agency, 

where it instead becomes that agency's responsibility to prove that the project would not 

be in the public interest The bill also removes the State Department's primary review 

responsibility, which it maintained under the Executive Branch's constitutional power to 

engage in foreign relations,39 and purports to put FERC in charge of the NEPA process for 

the cross-border facilities involving oil infrastructure.40 

Moreover, it appears to limit FERC's NEPA review of the impacts of such projects to 

just the cross-border facility itself, without requiring evaluation of the attendant suite of 

environmental impacts emanating from the oil pipelines to which these facilities attach. 

This essentially creates a statutory carve-out to NEPA, by codifying segmentation of FERC's 

review of the bulk of these projects' environmental impacts. The bill thus effectively 

exempts cross-border projects from meaningful environmental review under NEPA by 

dramatically narrowing the focus of that review, because both the permit requirement and 

the NEPA review apply only to the cross-border segment of the project. Trans-boundary 

pipelines and transmission lines are multi-billion dollar infrastructure investments that 

stretch hundreds of miles, last for decades, and pose environmental risks well beyond the 

narrow border crossing segment But the proposed bill precludes review of the full 

39 This power has been exercised since Executive Order 10485 of Sept 3,1953 was signed by President 

Dwight D. Eisenhower. As the United States Supreme Court noted, it is a power exercised through "inherent 

constitutional authority to manage foreign affairs." )i,;!;_~ton-V'{~)ljJetQ_I)_£}_y<!J:"-Y~U~J2~!!1_gf~ti!\:f, 659 F. 

Supp. Zd. 1071 [D.S.D. 2009) [citing U.S. v. Curtiss-Wright Export Corporation, 299 U.S. 304,319-320 [1936)) 4

° FERC has neither the authority nor the expertise to consider the breadth of global environmental issues 

and economics encompassed within the current State Department revlews, 

21 
191 


project's impacts, such as oil spills and the consequences for landowners, public safety, 

drinking water, climate change, and wildlife. 

The proposed language also seeks to exempt "modifications" from needing any 

additional approvals. Yet the term modification is broadly defined to include new 

compressor stations, new diameter pipelines, additional pipelines for both oil and gas 

facilities, as well as changes to the flow direction and volume. These modifications can 

have significant environmental and economic impacts beyond those from the original 

construction. For example, reversing an oil pipeline from exporting into Canada to 

exporting tar sands oil into the United States could have significant air emission impacts. 

In doing so, it attempts to shield serious environmental impacts from federal review, 

leaving scant few projects that could not be cast as "modifications." 

Thus it replaces the current requirement that proposed oil and natural gas pipelines 

and electric transmission lines that cross the U.S. border with Mexico or Canada obtain a 

presidential permit, after a robust environmental review and determination that the 

project is in the national interest, with a process that: (1) eliminates the national interest 

requirement, and shifts the burden of proof to the reviewing agency to prove that a narrow 

portion of the project would not be in the public interest, making it difficult to disapprove a 

project; (2) significantly narrows and limits environmental review to a small portion of the 

project; and (3) exempts many types of projects from any permit requirement. 

Finally, as these projects currently require a Presidential Permit, the bill's new 

allocation of powers would usurp the Constitutional authority granted to the Executive 

Branch, Office of the President, by removing the requirement for a Presidential Permit 

ignoring the separation of powers set out in the United States Constitution, Article II, which 

22 
192 


vests the authority to engage in foreign relations in the Executive Branch. 

Cqndusj()J1 

In conclusion, I thank the Committee for giving me the opportunity to submit this 

testimony and to appear before it. I also thank Susan Kraham, Esq. and Edward Lloyd, Esq. 

of the Columbia Environmental Law Clinic, Channing jones, a legal intern at the Columbia 

Environmental Law Clinic, Anthony Swift, of Natural Resources Defense Council, Michael 

Pisauro, Esq. of the Stony Brook-Millstone Watershed Association, and Tom Gilbert of the 

New jersey Conservation Foundation, for their contributions to the preparation of this 

testimony. !nonetheless take full responsibility for the contents of this testimony. 

23 
193 

Mr. OLSON. Thank you, Ms. Danis. 

The Chair now calls upon Mr. Santa for 5 minutes to give an 

opening statement. 

STATEMENT OF DONALD F. SANTA 

Mr. SANTA. Good afternoon, Vice Chairman Olson, Ranking 

Member Rush, and the members of the subcommittee. My name is 

Donald Santa and I am the president and CEO of the Interstate 

Natural Gas Association of America, or INGAA. Our members 

transport the vast majority of the natural gas consumed in the 

United States through a network of approximately 200,000 miles of 

interstate transmission pipelines. 

These transmission pipelines are analogous to the interstate 

highway system. In other words, they are large capacity transportation systems spanning multiple States or regions. Thank you for 

the opportunity to share INGAA’s perspective on the discussion 

draft of legislation to improve agency coordination during the review of federally regulated natural gas pipeline projects. 

While the Federal Energy Regulatory Commission has exclusive 

authority to grant the certificate required to construct an interstate 

natural gas pipeline, various Federal and State agencies are responsible for granting other environmental and land use permits 

and approvals that must be obtained before a pipeline company 

may commence construction. This is not the first time that INGAA 

has testified before this subcommittee on the need to improve the 

natural gas pipeline permitting process. 

The need for action is even greater today because the pipeline review and permitting process has only become more protracted and 

more challenging. Federal permitting agencies are taking longer 

and in some cases are electing not to initiate reviews until FERC 

has completed its review of a proposed pipeline project. These disjointed, sequential reviews cause delay and in some cases create 

the need for supplemental environmental analysis. This is unnecessary and avoidable. 

Regulations implementing the National Environmental Policy 

Act provide for designating a lead agency to coordinate the review 

of a proposed major Federal action. The lead agency in turn identifies and works with cooperating agencies to develop a single environmental document for the project. Congress, as part of the Energy Policy Act of 2005, designated FERC as the lead agency for 

natural gas pipeline projects subject to the Commission’s jurisdiction. 

EPAct 2005 also provided a framework for FERC to coordinate 

the various permitting reviews connected with a natural gas pipeline project and to set a deadline for other agencies to complete 

their work. Notwithstanding the congressional intent expressed in 

EPAct 2005, it has been a challenge to get Federal and State agencies to work cooperatively and constructively within this framework. The recent experience of an INGAA member company illustrates the point. 

The company has proposed a pipeline that would intersect the 

Blue Ridge Parkway and the Appalachian National Scenic Trail in 

Virginia. The company proposed a nearly one-mile, horizontal drill 

under a mountain so that the pipeline would cause no surface disVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00199 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
194 

turbances, no tree clearing, and no interference with public access 

to the Parkway or Trail. The Park Service responded with indifference to the pipeline operator’s efforts to minimize the impact of its 

project. The Park Service took 14 months to review a 22-page application to survey the area. Once permission was granted, the survey work was completed in a single afternoon. 

The survey, however, is only an initial step. The Park Service 

has yet to complete its extensive review of the pipeline operator’s 

application for a permit to drill beneath the Parkway and Trail. We 

clearly need better agency engagement and decision making than 

that demonstrated by the Park Service in this example. 

These kinds of permitting delays are becoming much more frequent and are not confined to the Park Service. Because there is 

no direct accountability for this lack of engagement, agencies with 

limited resources are free to either ignore or to delay their response 

to requests to participate in the review of a proposed pipeline 

project. 

Let me be clear that INGAA is not seeking diminution of the 

substantive requirements connected with permits that must be obtained to construct interstate natural gas pipeline. INGAA simply 

seeks greater certainty regarding the schedule for reviewing and 

acting upon applications for such permits and better coordination 

among the agencies responsible for issuing permits. 

We appreciate the committee’s leadership in drafting legislation 

to address this need. INGAA encourages the committee to provide 

even greater structure in detailed guidance so that there is no misunderstanding about congressional intent for the pipeline permitting process. Legislation to achieve this result is not unprecedented 

or outside the mainstream. The process created by Congress in 

highway authorization legislation offers a model. INGAA encourages you to be bold. 

INGAA’s written testimony includes specific recommendations for 

strengthening and refining the language of the draft bill to achieve 

its stated goals. We want to work with you in strengthening this 

bill and make it more effective in coordinating the necessary permitting reviews. Thank you for the opportunity to testify today. 

[The prepared statement of Mr. Santa follows:] 

195 


TESTIMONY OF 

DONALD F. SANTA 

PRESIDENT AND CEO 

INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA 

BEFORE THE 

SUBCOMMITTEE ON ENERGY 

COMMITTEE ON ENERGY AND COMMERCE 

U.S. HOUSE OF REPRESENTATIVES 

REGARDING 

LEGISLATION ADDRESSING PIPELINE AND HYDROPOWER 

INFRASTRUCTURE MODERNIZATION 

MAY 3, 2017 

Good morning Chairman Upton, Ranking Member Rush and the members of the 

subcommittee. My name is Donald Santa, and I am president and CEO of the Interstate 

Natural Gas Association of America, or INGAA. INGAA's members transport the vast 

majority of the natural gas consumed in the United States through a network of 

approximately 200,000 miles of interstate transmission pipelines. These transmission 

pipelines are analogous to the interstate highway system; in other words, they are largecapacity transportation systems spanning multiple states or regions. 

Thank you for the opportunity to share INGAA 's perspective on the discussion draft of 

legislation to improve agency coordination during the review of federally regulated 

natural gas pipeline projects. This testimony is limited to the pipeline permitting 

discussion draft because, as I understand it, the discussion draft on cross-border energy 

project approvals retains the current process for natural gas pipelines, with only a very 

minor amendment to existing law. 
196 


While the Federal Energy Regulatory Commission (FERC) has exclusive authority to 

grant the certificate of public convenience and necessity required to construct a new or 

expanded interstate natural gas pipelines, various federal and state agencies arc 

responsible for granting other environmental and land usc permits and approvals that 

must be obtained before a pipeline company may commence construction. Consequently, 

for purposes of this testimony, the term "'permitting process" refers to the full range of 

approvals that arc necessary to construct an interstate natural gas pipeline. 

This is not the first time that ING/\A has testified before this subcommittee on the need 

to improve the permitting process for interstate natural gas pipelines. In fact, I appeared 

before this subcommittee during the last Congress. The need for action is even greater 

today, because the pipeline review and permitting process has only become more 

protracted and more chalknging over the intervening two years. Federal permitting 

agencies arc taking longer, and, in some cases, arc electing not to initiate reviews until 

FI~RC has completed its review of a proposed pipeline project. These disjointed, 

sequential reviews cause delay and, in some cases, create the need for supplemental 

environment analysis. 

This is unnecessary and avoidable. The regulations implementing the National 

Environmental Policy Act (NEP/\) 1 provide for designating a lead agency to coordinate 

the review of a proposed "major Federal action." The lead agency, in turn, identifies and 

works with "cooperating" agencies to develop a single environmental document for the 

140 C.F.R. section 1501. 

2 
197 


project. This document, either an environment impact statement or an environmental 

assessment, should include information and data that the cooperating agencies need for 

their separate permitting reviews. Congress, as part of the Energy Policy Act of 2005 

(EPAct 2005), designated FERC as the "lead agency" under NEPA for natural gas 

projects subject to the commission's Natural Gas Act jurisdiction. EPAct 2005 also 

provided a framework for FERC to coordinate the various permitting reviews that occur 

in connection with a natural gas pipeline project and to set a deadline for other agencies 

to complete their work once the NEPA document was complete. Notwithstanding the 

intent expressed by Congress in EP Act 2005, it has been a challenge to get federal and 

state agencies to work cooperatively and constructively within this framework. 

The recent experience of an lNGAA member company illustrates this point. This 

company proposed a gas transmission pipeline that would intersect the Blue Ridge 

Parkway and Appalachian National Scenic Trail in Virginia. Instead of traditional boring 

methods, the pipeline company proposed a horizontal directional drill. If this proposed 

alternative is approved, the company would bore under a mountain for nearly one mile so 

that the pipeline would cross beneath the parkway and trail. This construction method, 

while very costly, was selected to ensure that there would be no surface disturbances, tree 

clearing or interference with public access to the parkway or trail. 

The Park Service has responded with indifference to the pipeline operator's effort to 

minimize the impact of its project. The Park Service took 14 months to review the 22-

page application to survey the area. Once permission was granted, the survey work was 

3 
198 


completed within a single anernoon. The survey, however, is only an initial step. The 

Park Service has yet to complete its extensive review of the pipeline operator's 

application for a permit to cross the parkway and trail using horizontal directional 

drilling. 

We clearly need better agency engagement and decision-making than that demonstrated 

by the Park Service in this example. These kinds of permitting delays are becoming 

much more frequent and arc not confined to the Park Service. Because there is no direct 

accountability for this lack of engagement, agencies with limited resources are free to 

ignore or delay their response to requests to participate in the review of a proposed 

pipeline. 

To address these conflicts, and to reinforce the intent of Congress in EPAct 2005, 

10/GAA in its prior testimony proposed that the subcommittee clarify and strengthen the 

lead agency role for FERC and further define the process for participating federal and 

state agencies. Legislation to achieve this result is not unprecedented or outside the 

mainstream. The process created by the Congress in highway authorization legislation 

offers a model. 2 Just like interstate highway infrastructure. interstate pipelines need a 

clear, coordinated permitting process that addresses conflicts. allows agencies to 

negotiate with one another, and reaches a conclusion in reasonable time. 

2 2J U.S.C'. section 139. 

4 
199 


Let me be clear that INGAA is not seeking a diminution of the substantive requirements 

connected with the permits that must be obtained to construct an interstate natural gas 

pipeline. INGAA simply seeks greater certainty regarding the schedule for reviewing 

and acting upon applications for such permits and better coordination among the agencies 

that are responsible for issuing such permits. We understand that each agency has an 

assigned duty under the law, and we support a thorough analysis of permit applications to 

ensure environmental and resource protection. We also recognize the need for robust 

stakeholder engagement and public dialogue. The certainty sought by !NOAA's 

members can be achieved without diminishing the rigor of environmental review and 

mitigation. 

Review of Discussion Draft 

The direction signaled by the committee's discussion draft is consistent with !NOAA's 

goal to strengthen FERC's role as the lead agency and to encourage a more coordinated 

NEPA and permit review process. We appreciate the committee's leadership in drafting 

legislation to address this n~:ed. lNGAA encourages the committee to provide even 

greater structure and detailed guidance so that there is no misunderstanding about 

Congress' intent for the pipeline permitting process. Given current permitting delays, 

and the intent of earlier legislation, there is a clear need for greater Congressional 

guidance in this area. Past highway authorizations provide a blueprint. INGAA 

encourages you to be bold. 

5 
200 


We suggest the following additions: 

1) "Agency actions" instead of"Federal authorizations." The draft refers to 

coordination and approval of "Federal authorizations." as defined in past statutes 

such as EPAct 2005. We suggest a new defined term- "agency actions" that 

would capture more broadly the universe of reviews and consultations connected 

with the pipeline permitting process, and not just those that require an affirmative 

approval. 

2) Clear designation of "participating agencies." The highway authorization 

statutes created the concept of''pat1icipating agencies," which are agencies 

invited by the lead agency to participate in the review of a project, and that accept 

such invitation. Permitting agencies that elect to be a participating agency agree 

to work with the lead agency, but are not bound to a certain outcome. We 

propose that those agencies electing not to become participating agencies not be 

authorized to submit comments for the record of the lead agency's NEP A review, 

and be restricted in developing a supplemental NEPA review for the proposed 

project. This provides critical accountability. An agency either participates in the 

lead agency review process, or it forfeits the ability to comment or adjust the 

record later (with certain exceptions). FERC, as lead agency, should have a 

corresponding obligation to consult with the participating agencies to ensure that 

6 
201 


the NEPA review produces information that those agencies may need for their 

permitting reviews. 

Making permitting agencies accountable for this choice should increase the 

likelihood that permitting agencies will participate in the FERC NEPA review. 

This, in turn, should result in a more fulsome and complete environmental 

analysis in a single document. The participating agency concept is entirely 

consistent with the intent ofNEPA. 

3) Clear demarcation between the NEPA review process and concurrent 

permitting reviews. The NEP A review and the review of permit applications arc 

complementary processes. While they can, and should, occur concurrently, they 

are nonetheless separate. We suggest that the draft provide greater clarity by 

defining the NEPA review process in one subsection and the concurrent review of 

applications for agency permits in another subsection. 

4) Transparency regarding permit applications that are "ready for processing." 

The draft includes a section on the concurrent review of permit applications a 

concept that we strongly support. To ensure that such permits are reviewed 

concurrently, however, agencies must be clear about when an application is 

"ready for processing." On numerous occasions, agencies have explained their 

choice not to act on a permit application on the basis that the application is 

"incomplete" or "unready." INGAA suggests that the draft require each 

7 
202 


permitting agency notify an applicant whether its application is ready for 

processing within 30 days or receipt of the application. If the application is 

unready for processing, the agency should be required to provide a description of 

the information needed for the application to proceed. 

5) Accountability for missed deadlines. As mentioned, EPAct 2005 empowered 

FERC to establish a deadline for final permitting determinations once the FERC 

NEPA document is complete. While FERC's current regulations provide for 

establishing this deadline, there is no accountability on the part ofpennitting 

agencies because the law provides no means to enforce the deadline. The 

discussion draft includes a provision on "failure to meet deadlines," pursuant to 

which an agency that misses the FERC-establishcd deadline must report to 

Congress and FERC on the failure and its plan to ensure completion. !NGAA 

supports this and suggests that the Office of Management of Budget also receive 

notice of the missed deadline. We also suggest that both the authorization and 

appropriations committees of the Congress overseeing an agency receive notice of 

a missed deadline. The point is to create some accountability for adhering to 

deadlines. 

INGAA supports the provision in the discussion draft on remote surveys. Many 

permitting agencies require submission of extensive ground survey data before an 

application can be reviewed. However, access to all potential rights of way often cannot 

be obtained to conduct such surveys. For example, landowners may refuse to grant such 

8 
203 


access. Project developers can find themselves in dilemma because they cannot collect 

the data needed to submit an application for a permit. With the change envisioned by the 

discussion draft, pipeline project developers could proceed in the least intrusive manner if 

they can usc data obtained from remote surveys to file a permit application, with the 

proviso that ground surveys might be required for final permit approvals. The provision 

in the draft is permissive. It requires agencies to ''consider" such remote survey data for 

purposes of a permit application. But it also states that agencies might condition permit 

approval on subsequent ground survey data collection. 

This concludes my comments on the discussion draft. 

I also wish to highlight for the subcommittee a pipeline permitting issue that lies outside 

its jurisdiction, but which !NOAA strongly urges you to consider as part of any broader 

energy or infrastructure legislation. The Clean Water Act vests in states a limited 

authority to issue a "certification" that a project meets federally approved water quality 

requirements. Some states are abusing this authority by delaying the issuance of a 

certification, by issuing a certification that is laden with requirements that do not have a 

nexus to federal water quality requirements, or by denying a certification without a wellfounded basis. These actions arc inconsistent with what Congress intended when it 

established the certification authority. !NOAA believes that amendments to the Clean 

Water Act are needed to clarify the scope of the certification authority to ensure that it is 

focused on the specific environmental matters at issue. !NOAA has seen similar 

problems in how states exercise authority delegated to them under the Clean Air Act. lt 

9 
204 


will be increasingly difficult to construct major interstate infrastructure projects of any 

kind without amendments clarifying the scope of authority that federal law vests in the 

states. 

The subcommittee's discussion draft is being considered against the backdrop of possible 

comprehensive infrastructure legislation in this Congress. We anticipate that the 

principal focus of that legislation will be the kinds of infrastructure that rely on public 

funding, such as roads, bridges, airports and sea ports. Projects funded with private 

capital, such as interstate natural gas pipelines, also are an important part of our nation's 

inf]·astructure. What our industry needs is a process for the timely review and permitting 

of proposed projects. We are not looking for a rubber stamp, but this robust revie\V 

should not be an unending and protracted process either. 

Finally, allow me to emphasize that a critical element to the timely approval of pipeline 

infrastructure will be restoring the quorum at the FERC. This is a place where your input 

with the president and your colleagues in the Senate can do great good. I appreciate the 

leadership of members of the Committee on Energy and Commerce in urging swift 

nomination of candidates as members of the FERC and encourage you to continue doing 

so. 

Thank you for the opportunity to testify today. 

10 
205 

Mr. OLSON. Thank you, Mr. Santa. 

The Chair now calls upon Mr. Black for a 5-minute opening 

statement. 

STATEMENT OF ANDREW BLACK 

Mr. BLACK. Thank you, Mr. Chairman. And if you will permit, 

I would like to thank Mr. Barton for his nice comments on the sudden passing of my dad Bill Black in Houston last week. Dad admired what he did on committee and the floor. Dad would laugh 

and have me thank the Congress for entertainment over the years, 

and then he would tell me to get back to work, so I will. 

I am Andy Black with the Association of Oil Pipe Lines. AOPL 

represents owners and operators of liquid pipelines transporting 

crude oil, refined products like gasoline and diesel, and natural gas 

liquids such as propane and ethane to American workers and consumers. The presidential permit process for cross-border energy 

pipelines needs reform. The poster child for presidential permit 

cross-border abuse is well known. The Keystone XL delay from 

2008 to 2015 under the previous administration was inexcusable. 

No permit review process of any kind should take that long. 

While delay of the Keystone XL pipeline project garnered widespread public attention, there were many other applications stuck 

at the State Department also facing multiyear delays. Many of 

those projects were simple changes of ownership filings with no impact on the pipelines’ operations or border crossing status. Ironically, the Keystone XL NEPA environmental impact statement 

conducted by the previous administration found that building the 

pipeline would do more to protect the environment and avoid 

greenhouse gas emissions than any alternative including rejecting 

the pipeline. 

According to U.S. Government statistics, more than 99.999 percent of petroleum products shipped by pipeline reach their destination safely. The State Department review found the alternatives to 

not building KXL and forcing that crude oil onto other modes of 

transportation would result in 2.6 times more crude oil released 

and 832 times more releases per year. The State Department study 

also found the project would provide tens of thousands of U.S. jobs 

in construction, manufacturing, trade, finance, insurance, professional services, health services, food accommodations, and more, 

with more than $2 billion in worker payroll. 

Good paying jobs are the benefit of every pipeline project. Whenever a major project is proposed across our international borders or 

just within the U.S., thousands of jobs with millions of dollars in 

worker payroll can follow and increase tax revenues to governments. And consumers across the country also benefit from the 

downward pressure on gasoline and diesel prices that new crude oil 

supplies bring. 

As pipeline operators, we know the ultimate reasons for delay 

and rejection of the Keystone XL pipeline had little to do with the 

superior safety, minimal environmental impact, new jobs or consumer benefits of pipelines. Larger forces were at work highjacking 

this project for their own political gain. Unfortunately, Keystone 

XL wasn’t the only victim of a dysfunctional process. 

206 

Under the last administration we saw review of the simplest 

pipeline permits with the least amount of environmental impact 

grind to a halt. A prime example are the several pipelines that run 

from Canada to Michigan delivering liquid petroleum gases such as 

propane and butane for industrial uses in manufacturing chemicals, plastics, and similar products, supporting good paying jobs in 

Michigan and beyond. 

For years, a liquid pipeline operator had presidential permit applications pending for pipelines crossing that border. Under current 

State Department guidelines, even a change in ownership of the 

pipeline triggered a need to apply for a new permit. For more than 

5 years, the State Department considered whether to issue a permit for something almost as simple as a name change. 

There were no operational changes of the pipeline, no change in 

materials or any physical or environmental impacts, just many 

years of review, document requests, and delays. We believe the career staff at the State Department faithfully executed their duties 

under executive authority. However, the current system with no 

statutory standards or limits still left the process vulnerable to manipulation by senior political officials. 

With no obligations under Federal law to reach a timely decision, 

limit the scope of review to the border crossing, or avoid wasteful 

reviews of projects with little or no environmental impact, the current process is ripe for abuse. The current administration has returned to the original intent of the presidential permit process, but 

without reform a future administration could return to the abuses 

of the past. 

Liquid pipeline operators support reforming the cross-border approval process and look forward to working with the committee. 

Keys to meaningful reforms are the discussion drafts provisions to, 

1) provide a statutory time limit for permit reviews after any applicable environmental reviews are complete; 2) presume approval unless the pipeline is found not in the public interest, reflecting the 

benefit of reducing dependence on overseas energy suppliers; 3) 

limit the border crossing permit scope of review to border crossing 

issues and impacts; and 4) exempt modifications to existing crossborder facilities because they have no impact on the environment 

at the border crossing. A reformed border crossing approval process 

will ensure that American workers and consumers who want access 

to lower costing energy supplies are not penalized by political manipulation. Thank you. 

[The prepared statement of Mr. Black follows:] 

207 


Testimony of Andrew Black 

Association of Oil Pipe Lines, President & CEO 

before the Committee on Energy & Commerce 

U.S. Ilousc of Representatives 

"Hearing on Legislation Addressing Pipeline and Hydropower Infrastructure 

Modemization" 

May 3, 2017 

Statement Summary 

• AOPL represents owners and operators of liquids pipelines transporting crude oil, 

refined products like gasoline and diesel fuel, and natural gas liquids, such as propane 

and ethane. Our members' pipeline facilities stretch over 200,000 miles across the 

United States delivering over 18 billion barrels of crude oil and petroleum products 

• While delay of the Keystone XL pipeline project garnered widespread public 

attention, there were many other Presidential Permit applications stuck at the State 

Department also facing multi-year delays. Many of these projects were simple 

changes of ownership filings with no impact on the pipeline's operations or bordercrossing status. And yet they faced lengthy delays obtaining their permit 

• For pipeline projects large or small, either intentionally or willingly, the cunent 

system of review with no statutory standards or limits allows for abuse of the 

permitting process 

• We believe the State Department career staff faithfully executed their duties under 

executive order authority. However, the current system still left the process 

vulnerable to political manipulation by senior political officials of the last 

administration 

• There is no authorizing statute from the Congress laying out the requirements for this 

program. There is no guidance in the law on what should be reviewed, and what can 

be exempted because it is too small to make a difference. There arc no laws on what 

criteria to usc, what to examine, how or by when. The unfortunate result of the lack of 

clear, statutory direction is uncertainty and delay 

• For these reasons, liquids pipeline operators support reforming the presidential permit 

process and look forward to working with the committee on this legislation. Key to 

meaningful reform arc the discussion drafts provisions to: I) provide a statutory time 

limit for permit review after any applicable environmental reviews are complete, 2) a 

presumption of approval reflecting the benefit of reducing dependence on unstable 

overseas energy suppliers, 3) limit the border crossing permit scope of review to 

border crossing issues and impacts, and 4) exempt modifications to existing crossborder facilities, because they have no impact on the: environment at the border 

crossing 
208 


Testimony of Andrew Black 

Association of Oil Pipe Lines, President & CEO 

before the Committee on Energy & Commerce 

U.S. House of Representatives 

"Hearing on Legislation Addressing Pipeline and Hydropower Infrastructure 

Modernization" 

May 3, 2017 

Mr. Chairman and distinguished members of the committee, thank you for 

inviting me here to testify today on the need for reform of the Presidential Permit 

program for cross-border energy infrastructure. 

I am Andy Black, President & CEO of the Association of Oil Pipe Lines. AOPL 

represents owners and operators of liquids pipelines transporting crude oil, rc±ined 

products like gasoline and diesel fuel, and natural gas liquids, such as propane and 

ethane. Our members' pipeline facilities stretch over 200,000 miles across the United 

States delivering over 18 billion barrels of crude oil and petroleum products. 

Today, I will testify on the need for reform of the current Presidential Permit 

process for liquid pipeline projects. While delay of the Keystone XL pipeline project 

garnered widespread public attention, there were many other Presidential Permit 

applications stuck at the State Department also facing multi-year delays. Many of these 

projects were simple changes of ownership filings with no impact on the pipeline's 

operations or border-crossing status. And yet they faced lengthy delays obtaining their 

permit. We support legislation to streamline the permit process and exempt those 

projects with minimal policy or practical impact on the environment. 

The poster child for presidential pem1it cross-border abuse is well known. The 

Keystone XL delay from 2008 to 2015 under the previous administration was 

inexcusable. No permit review process of any kind should take that long. 

Ironically, the Keystone XL NEPA environmental impact statement conducted by 

the Obama State Department found building KXL would do more to protect the 

1 
209 


environment and avoid greenhouse gas emissions than any alternative, including rejecting 

the pipeline. According to U.S. government statistics, 99.999% percent of petroleum 

products shipped by pipeline reach their destination safely. The Obama State Department 

review found the alternatives to not building KXL and forcing that crude oil onto other 

modes of transportation would result in 2.6 times more crude oil released and 832 times 

more releases per year. Transporting crude oil by KXL would also result in fewer 

greenhouse gas emissions. 

The State Department study of KXL found the project would provide over 42,000 

U.S. jobs and $2.1 billion in U.S. worker payroll. According to the U.S. State 

Department, while Keystone XL would support 6,800 construction jobs with $420 

million in payroll, it would also lead to 4,600 manufacturing jobs with $309 million in 

payroll, 4,400 jobs in trade with $172 million in payroll, 2,200 jobs in finance and 

insurance with $131 million in payroll, 5,100 jobs in other professional services with 

$343 million in payroll, 2, 700 jobs in health services with $I 41 million in payroll, and 

5,700 jobs in food and accommodations with $278 million in payroll. 

Good paying jobs, not just in construction, but also in manufacturing and service 

sectors, are the benefit of every pipeline project. Whenever a major pipeline project is 

proposed, across our northern border or anywhere within the United States, thousands of 

jobs with millions of dollars in worker payroll can follow. 

In addition, the benefits of a pipeline project will continue long after construction 

is completed. Communities along the route of a pipeline will gain property tax revenue 

that can fund school budgets, police and fire departments and local government needs. 

Rural communities near pipelines with small budgets will benefit the most from this new 

influx of revenues. Consumers across the countly will benefit from the downward 

pressure on gasoline and diesel prices new crude oil supplies bring. 

As pipeline operators, we know the ultimate reasons for delay and rejection of the 

KXL pipeline had little to do with its superior safety, minimal environmental impact, new 

2 
210 


jobs or consumer benefits. Larger forces were at work hijacking this project for their own 

political gain. 

Unfortunately, the KXL pipeline wasn't the only victim of a dysfunctional 

presidential permitting process. Under the last administration, we saw review of the 

simplest pipeline projects with the least amount of environmental impact grind to a halt. 

A prime example are the several pipelines that run from Canada to Michigan, 

crossing the US-Canadian border under the Detroit River ncar Detroit, Michigan, and 

under the St. Clair River at Port Huron, Michigan. These pipelines deliver liquefied 

petroleum gases such as propane and butane for industrial uses in manufacturing, 

chemicals, plastics, and similar products. 

Simply put, these pipelines deliver the raw materials that support good-paying 

manufacturing jobs in Michigan and beyond. These are blue-collar jobs, with pay and 

benefits to support a family, provide hcalthcarc, or send a child to college. These 

pipelines provide exactly the kind of jobs Michigan and the rest of the country need and 

want. So, it was doubly frustrating when something as important as this was caught up in 

years of bureaucratic delay under the current presidential permitting process. 

For years, a liquids pipeline operator had two presidential permit applications 

pending for seven pipelines crossing the US- Canadian border into Michigan. Their need 

to apply for a presidential permit was triggered when the company bought these pipelines 

in 2012. Under current State Department guidelines, a change in ownership of the 

pipeline triggered the need to apply for a new presidential permit. 

These pipelines already had a pending name change permit application from their 

previous change of ownership in 2007. So, for more than 5 years, the State Department 

considered whether to issue a presidential permit for something almost as simple as a 

name change at the top of the permit. There were no operational changes of the pipelines, 

no change in materials or any physical or environmental impacts. Just many years of 

review, document requests, pubic notices, and additional document requests. 

3 
211 


For pipeline projects large or small, either intentionally or willingly, the current 

system of review with no statutory standards or limits allowed for abuse of the permitting 

process. We believe the career staff faithfully executed their duties under executive order 

authority. However, the current system still left the process vulnerable to political 

manipulation by senior political officials of the last administration. 

With no obligations under federal law to reach a timely decision, limit the scope 

of the review to border crossing, or avoid wasteful reviews of projects with little to no 

environmental impact, the current process is ripe for abuse by future administrations. The 

current administration has returned to the original intent of the presidential permit 

program. Without reform, a future administration could return to the abuses of the past. 

As this committee knows, there is no authorizing statute from the Congress laying 

out the requirements for this program. There is no guidance in the law on what should be 

reviewed, and what can be exempted because it is too small to make a difference. There 

arc no laws on what criteria to use, what to examine, how or by when. The unfortunate 

result of the lack of clear, statutory direction is uncertainty and delay. 

For these reasons, liquids pipeline operators support reforming the presidential 

permit process and look forward to working with the committee on this legislation. Key 

to meaningful reform arc the discussion drafts provisions to: I) provide a statutory time 

limit for pennit review after any applicable environmental reviews arc complete, 

2) a presumption of approval reflecting the benefit of reducing dependence on unstable 

overseas energy suppliers, 3) limit the border crossing permit scope of review to border 

crossing issues and impacts, and 4) exempt modifications to existing cross-border 

facilities, because they have no impact on the environment at the border crossing. 

Thank you again for inviting me to testify and I look forward to any questions you 

may have. 

xxxx 

4 
212 

Mr. OLSON. Thank you, Mr. Black, and thank you to all of you 

for your testimony. We will begin the question and answer portion 

of this hearing, and I will begin my questioning with the 5-minute 

rounds of questions. 

The first question is for you, Mr. Black. And also before questions I want to echo the concerns and prayers from Vice Chairman 

Barton about losing your father, Bill, this past week. As the voice 

of over 850,000 fellow Texans, your family has our thoughts and 

prayers in their hearts. 

Mr. Black, those 850,000 Texans I work for, my bosses called 

constituents, get why oil pipelines are important. But if I am the 

average American, why should I care about whether cross-border 

pipelines are approved in a timely way? What would you say to 

those people? 

Mr. BLACK. Most Americans want lower energy prices and available supplies of gasoline, diesel fuel, propane. We have got great 

supplies in Canada to take advantage of and Keystone XL and all 

of the State approvals along the process, they just needed Washington to approve that small border crossing. If that border crossing had been approved on a timely basis, today Americans in your 

district and elsewhere would be reaping those benefits, but they 

are not. 

Mr. OLSON. Now is 850,000 barrels correct per day, somewhere 

in that ballpark, being refined there in South Texas, Port of Houston, Port of Beaumont, Port Arthur; is that correct? 

Mr. BLACK. Absolutely, supporting thousands of refinery worker 

jobs. 

Mr. OLSON. Thank you. 

The next questions are for you, Mr. Soth and Mr. Santa. First 

to Mr. Soth, Crosby, Texas is not my district, but as a Texan I say 

welcome, howdy. But as you know, pipelines are delayed, companies large and small face uncertainty. Not just the pipeline owners, 

but the suppliers, too. There are the shippers trying to move their 

products as well. These delays hurt those in the construction industry by looking for some predictable work. Can you talk about how 

red tape and uncertainty hurts your members and the ripple effect 

beyond the pipe? 

Mr. SOTH. Yes, as Mr. Black mentioned those are jobs related to 

Keystone XL that just simply did not occur. Operating Engineers 

probably have the most labor intensity of any union on a pipeline 

job, and my written testimony mentioned those other unions engaged in the process whether that is the Laborers’ International 

Union of North America, the Plumbers and Pipefitters Union, as 

well as the Teamsters, and those are good jobs that just won’t 

occur. On Keystone XL, the remaining segment of it on both sides 

of the border close to 3,000 operating engineer jobs alone associated 

with that. And again those are great jobs. 

For us in right-to-work communities like South Dakota that have comparatively low wages where our members would earn over $35 

an hour on the check, that is before the extensive investments in 

pensions, health care for workers’ families, as well as training investments that are made there. That is the way we finance the 

Pipeline Training Fund in association with the Pipe Line Contractors Association. That is 75 cents an hour out of every hour worked 

213 

on a pipeline job that an operating engineer would contribute into 

that fund for the future of the work force and to ensure that the 

workers have the skill necessary to make that industry and that 

specific pipeline as safe as can be. 

Mr. OLSON. Thank you. Mr. Santa, how does red tape and uncertainty hurt your members? 

Mr. SANTA. Mr. Olson, it leads to capital investment being 

parked on the sidelines. For example, we took a look at the projects 

that are being held up by the lack of a quorum at the FERC and 

our back-of-the-envelope calculation was that there were about $14 

billion worth of pipeline projects that had been sidelined because 

of that. 

The delays also have a multiplier effect because, for example, in 

some cases certain activities can occur only in certain months of 

the year due to environmental considerations, like tree clearing. So 

if one misses that window for tree clearing, maybe the certificate 

comes 2 months late, but tree clearing can’t occur for another 6 

months. It also affects, as Mr. Soth said, all of those pipeline contractors and workers who are on the sideline. 

And finally, there is an effect on consumers in terms of more gas 

pipeline projects bring competitively priced gas that brings down 

home heating bills, electricity bills because gas is being used so 

much for electric generation, and also all of the inputs that natural 

gas is used within manufacturing processes that provide jobs and 

make the United States competitive. 

Mr. OLSON. One quick question out of curiosity. You mentioned 

a pipeline in Virginia that is going to be put a thousand feet under 

the ground, is that correct, or a mile underground? 

Mr. SANTA. The horizontal length of the drilling that will go beneath the mountain is going to be approximately one mile. 

Mr. OLSON. One mile. Keystone is 50 feet, correct? How much 

does that cost going down one mile as opposed going 50 feet down 

which is very safe? 

Mr. SANTA. I do not have that figure, but I do know that it adds 

considerably to the cost of the project. But the intent there was to 

minimize the environmental impact of it and create a path that 

would enable the project to get built. 

Mr. OLSON. In Texas we say that is a whole lot of money. And 

my time has expired. I yield to the Ranking Member Mr. Rush for 

5 minutes. 

Mr. RUSH. I want to thank you, Mr. Chairman. 

Mr. Black, I want to also join and extend my condolences to you 

and your family on behalf of your father. I know that it is—I admire your courage to come here in the midst of your mourning and 

your grieving to appear before this committee. I have a recently departed wife and so I know what it means and I know how you feel. 

So thank you. 

I have a question, Mr. Chairman, for both Ms. Danis and Mr. 

Irvin. In your professional opinion, do you believe that requiring 

other agencies to defer to FERC on the scope of environmental review would help expedite the natural gas permitting and hydropower licensing process leading to fewer or more licenses; and the 

second part of the question is, are FERC staff equipped to deterVerDate Mar 15 2010 15:38 Jul 24, 2017 Jkt 037690 PO 00000 Frm 00219 Fmt 6633 Sfmt 6633 I:\115THCONGRESS\115X30HYDROPIPELEGJKTREQ071717\115X30HYDROPIPELEGWO
214 

mine the scope of environmental review over and above the experts 

in other agencies with jurisdiction over these same issues? 

Ms. DANIS. We heard testimony earlier this morning from FERC 

itself that FERC is not versed in other agencies’ review obligations 

under their substantive environmental statutes. So allowing a nonenvironmental agency or requiring a nonenvironmental agency to 

define the scope of review for other sister Federal agencies or 

States’ agencies acting under delegated Federal authority would inevitably generate more conflict, more litigation, and end up in really a morass of permitting difficulties as the agencies’ responsible 

for implementing comprehensive environmental review programs, 

such as the Clean Water Act or the Clean Air Act, are required to 

report to FERC or to explain to FERC why they must require indepth inquiries of their own that exceed those that FERC would require or look at under the Natural Gas Act. 

Mr. IRVIN. As I said in my statement, Mr. Rush, giving FERC 

primacy over other Federal resource agencies, over State agencies, 

and over Tribes in these issues would only lead to additional litigation and environmental degradation. The Federal resource agencies 

have the expertise on things like the Endangered Species Act, 

Tribes’ certainly very important concerns that they want to uphold 

whether it be with regard to fish and wildlife resources or things 

like sacred and ancestral sites, and the States have great expertise 

and authority in evaluating water quality certification under the 

Clean Water Act. 

There is also a well-established body of law under the Federal 

Power Act that deals with this interaction among the various agencies. And the courts have been very clear that the resource agencies, the Federal resource agencies and the States have the authority to enforce the Clean Water Act and the Endangered Species Act 

and that FERC needs to defer to those agencies in doing that. If 

as these bills would do, you upset that well established body of law 

you have got to figure out how is it going to work going forward 

which invariably will lead to additional litigation. 

Mr. RUSH. I want to ask Mr. Soth. I come from a district that 

has very high unemployment, and notwithstanding these matters 

that we are discussing now in terms of the pipeline, how do you 

foresee in your training programs, how do you deal with the question of diversity in your training programs, because my experience 

as a member of the city council in Chicago is that we have always 

had problems diversifying so many unions, trade unions, in Chicago. So how do you see this going forward, the issue of diversity 

in your training and your employees? 

Mr. SOTH. Apprenticeship, Congressman, is really one of the key 

methods by which we bring new entrants into the industry, and it 

is a key method to increase the diversity of the union. Within our 

apprenticeship programs at the IUOE, 23 percent of apprentices 

are people of color. We have eight percent of women in our construction. Eight percent of apprentices are women in our construction programs. 

And that is an objective for our leadership to pursue diversity 

and, really, apprenticeship is that primary method and tool by 

which we increase our numbers of people of color and women in the 

trade. 

215 

Mr. OLSON. The gentleman’s time has expired. The Chair calls 

upon the gentleman from Virginia, Mr. Griffith, for 5 minutes. 

Mr. GRIFFITH. Thank you very much, Mr. Chairman, I do appreciate it. 

And Mr. Santa, you may be aware of this, but I am going to use 

you for a minute as an example. I am always talking about my district which is the 9th congressional district of Virginia and that 

sometimes the policies of the previous administration related to 

coal didn’t take into account that every mountain is different. 

In relation to the pipeline that you are referencing, it is a perfect 

example of why you have to look at every mountain a little bit differently, because not only does it affect the Appalachian Trail and 

the Blue Ridge Parkway as you mentioned, and you mentioned it 

reduced the environmental risk, for those who don’t know and I am 

sure you do know, but that was all about a salamander that lives 

on one mountain in Virginia. And the mountains in Virginia, the 

Appalachians in Virginia have lots of those kinds of things that 

happen, a salamander that might only live in one or two mountain 

areas. 

The same is true for our mineral deposits, and sometimes one 

mountain will have lots of gas in the coal mine and the next mountain won’t have any gas at all and they can be very close together. 

So you gave me a perfect example to explain to folks what I have 

been talking about for years. You have got to look at every mountain a little bit differently, which is why we ought to leave the 

Clean Water Act and allow the States to make a lot of these determinations because every mountain is different, every river is different. 

And that brings me to rivers, Mr. Irvin. You indicated, and I am 

not going to ask you to give me a dissertation today. But if you 

could send me the information on how you think that the bill or 

one of the bills that we are talking about today impacts riparian 

rights in the East I would greatly appreciate it. Because it is of interest to me because we were talking earlier today and a couple of 

us got together down here and they were talking about how the rivers belong to everybody except there are exceptions. 

Because in my district there is a part of the river that the king 

gave the entire river not just a piece of it, not just the water, the 

whole river, and as a result of that there are people who can actually keep other folks from floating down the river because they own 

that surface right there, so it is very interesting. But if you could 

forward that to me I would greatly appreciate it. 

Mr. IRVIN. We will be happy to do that, Congressman. And each 

State has the responsibility for water rights and water law in their 

States, and it varies from State to State, with a big difference between the West and the East. 

Mr. GRIFFITH. Yes, sir. 

Mr. IRVIN. That is why changing the law to give FERC authority 

or primacy over States when they are seeking to protect their rivers and waters is so problematic. 

Mr. GRIFFITH. And not only do we have kings’ grants in Virginia, 

but obviously the eastern law is based on the English common law 

and the western law is based on the European continental methods 

or models. 

216 

Mr. Leahey, now with the subject I was really supposed to talk 

about in my questions, but I do find that your testimony—and 

sometimes when you get late in a hearing, you think maybe it is 

not making any difference; we are paying attention—but the closed 

loop hydropower: My region is very interested in this because we 

believe it is a way that we can bring life back to some—obviously 

you aren’t going to have hundreds or thousands—but a couple of 

abandoned coal mines in our area. So I would ask you to discuss 

what you believe might be some of the possibilities for using that 

kind of technology or that kind of a system in our abandoned 

mines. 

Mr. LEAHEY. Sure, absolutely. And as FERC testified earlier 

today, they have already approved one project that has a very similar configuration, a different type of mine than a coal mine. We 

have seen a growing list of proposed projects across the United 

States for both open loop and closed loop pump storage in the type 

of arrangement that you are talking about, so we see that there is 

great potential for these types of projects. 

One thing that I would like to say with regards to the modernization bill is that we do not read that bill to repeal any of the 

authorities of the States, the Tribes, or the agencies. They still 

have those responsibilities and NHA believes those are appropriate 

responsibilities under those laws. What we believe the bill tries to 

do is get FERC in charge of putting together the coordination of 

the schedule. 

And as others have talked about on this panel and as I said in 

my testimony, when you have projects that are going not just 2 

years, 4 years, 6 years, but 8, 10, 12, or 14 years from concept to 

construction and operation that is almost a death knell for those 

projects. 

Mr. GRIFFITH. And I appreciate that. And I will take a look at 

that language very carefully after having reviewed Mr. Irvin’s information, because I am very interested in property rights and the 

historical rights of the various States. Likewise on the SHORE Act, 

which you all have not taken a position on. 

One of the reasons that I really like that act it was introduced 

previously by my colleague Robert Hurt. He decided to retire, and 

since I am affected by it too I picked up the language that has previously been approved by the House. But one of the reasons I am 

so interested in it is I did some property right cases on the lake 

one time and they don’t have all the power that—they didn’t acquire as much as they thought they acquired when they did the 

deeds back in the 1950s and they are, I think, stepping on some 

property rights, so I will be looking at that too. 

Mr. LEAHEY. Well, and Congressman, we would be happy to work 

with you on that bill going forward. Like I said in my testimony, 

we just want to be sure that the safe operation of the project is, 

and our members are able to continue to do that. 

Mr. GRIFFITH. And I think we can have both interests secured in 

the end, but I appreciate it very much. And with that Mr. Chairman, I yield back. 

Mr. OLSON. The gentleman yields back. The Chair now calls 

upon the gentleman from California, Mr. Peters, for 5 minutes. 

217 

Mr. PETERS. Thank you, Mr. Chairman. First, I want to start by 

acknowledging my Duke classmate. It is traditional for you to talk 

about Duke Basketball with Mr. Santa. We skipped over that part, 

but I think we will leave it to another time. 

I have some questions about hydro. I want to ask Mr. Leahey, 

you know, there has been concern about whether there is a patchwork of State regulations that talk about whether hydropower 

counts as renewable. The draft legislation that we are considering 

today attempts to take that on. Are you satisfied that this draft 

clarifies that so that all hydro is considered renewable? 

Mr. LEAHEY. I believe there is a sense of Congress in the provision that would say that all hydro is renewable and then it would 

go back and amend the EPAct of 2005 definition to include all 

hydro as renewable. I think that is very important. And to the extent that other statutes and regulations parry off of that definition, 

then I think that will create, it will do what it is intended to do 

which is to make hydro renewable. If there are other statutes or 

regulations which have their own definitions then I am not sure, 

we may have to do some more. 

Mr. PETERS. And you just mentioned that there is in your written testimony there is discussion of the avoided greenhouse gas 

emissions from hydro. Mr. Irvin made a comment about methane. 

Have you tried to quantify exactly how much greenhouse gas we 

avoid by using hydro? 

Mr. LEAHEY. There is research that is being done by the Department of Energy and internationally. I would note that the International Panel on Climate Change has not regulated in this area 

or made recommendations in this area because of the fact that the 

science is not there yet. In addition, there is this issue with regards 

to net emissions of reservoirs. There is some of this degassing that 

happens naturally, and we would also point out that reservoirs are 

multi-use, right, so a project is not—any emissions, if there are 

any, should not be ascribed to the hydro generation when it is also 

potentially being used for water supply for cities or for irrigation 

for farms. 

Mr. PETERS. OK, and any research that you had on that if you 

could forward it to us would be great. It is my understanding that 

about 40 percent of the U.S. Army Corps’ hydropower fleet is 50 

years old or older and increasingly that the Army Corps is engaging in public-private partnerships to finance many of its projects. 

Do you see an opportunity for that in the hydropower realm? 

Mr. LEAHEY. It is probably the largest opportunity, near term opportunity that we have. Of the projects that have been identified 

by the Department of Energy, 80 of the top 100 projects are on 

Army Corps of Engineers’ dams. 

Mr. PETERS. Do you see that the law authorizes today those partnerships, public-private partnerships, to finance those improvements? 

Mr. LEAHEY. Most of the financing, in my understanding most of 

the financing that is being done is being done by the private entity 

and then coming on to the Corps facility. There might be some opportunities for additional public-private partnerships with the 

Corps directly. 

218 

Mr. PETERS. Yes, I just want to make sure. Does the law authorize this for the hydro facilities? Do you think it does? 

Mr. LEAHEY. I would have to get back to you on that one. I know 

that there are some differences between what the Corps can do 

with—— 

Mr. PETERS. Apparently there is some concern within the Army 

Corps that it doesn’t, and if you think it needs to be changed we 

would appreciate knowing that. 

Mr. LEAHEY. I think there are some changes that are needed. I 

would just need to get back to you on what those specifics are. 

Mr. PETERS. Thank you. 

And then I ask Mr. Irvin. I just think we argue a lot about process. And I don’t want to give an misimpression about my interest 

in hydro, I want resources to be protected, but I see a concern in 

the amount of time it takes. So with my minute left, do you have 

ideas about how we could reduce the time it takes to get these permits and these hydro facilities operating and still protect resources? Is there a way we can reduce the amount of time? 

Mr. IRVIN. Certainly. We have laid out several of these in my 

written testimony, Mr. Peters. They include things like presumptive inclusion in the FERC study of plans of studies requested by 

Federal, State, and Tribal agencies, do that up front. Promoting 

memoranda of understanding between FERC, the Tribes, and the 

States to improve the coordination, again do that up front. 

There is a need to increase appropriations to the agencies. I 

know that that isn’t always a popular topic, but the fact is that 

they need more money and staff in order to do a better job. And 

we also can have improved coordination between FERC and the 

Army Corps of Engineers on these various projects. 

Mr. PETERS. Yes. And I would just say I would hope we can have 

more conversation about this. A lot of this is not really changing 

the process. I think it is adding more to the process and it provides—I think it is still difficult for me to understand in an objective way what improving coordination means and how we force 

that from this room. 

So I will look forward to more conversation about it and hope 

that we can come up with a way that advances this interest that 

I have in reducing greenhouse gases, but also protecting rivers 

which is what we all want. And Mr. Chairman, thank you for the 

time. 

Mr. OLSON. The gentleman’s time has expired. The Chair would 

like to inform the gentleman and Mr. Santa that my wife is a 1985 

Duke graduate, so the NCAA basketball tournament was a very, 

dark, dark time in the Olson house. 

The Chair now calls upon the gentleman from Missouri, Mr. 

Long, for 5 minutes. 

Mr. LONG. Thank you, Mr. Chairman. I am glad I came to this 

hearing today because I didn’t even know they played basketball at 

Duke. 

[Laughter.] 

Mr. LONG. Mr. Santa, you mentioned in your testimony that the 

pipeline review process is disjointed. I didn’t know if that was 

meant as a pun or not, but that being said could you discuss why 

the process is disjointed and do you believe that the discussion 

219 

draft adequately addresses this issue to encourage a more coordinated review process? 

Mr. SANTA. Thank you for the question, Mr. Long. As Vice Chairman Barton observed earlier, I mean the discussion draft is trying 

to get at what the Congress and this committee was very influential and it did in the Energy Policy Act of 2005, in finding a way 

to affect that congressional intent. 

I think that the process is somewhat disjointed because as was 

noted by Mr. Turpin earlier there are other Federal and State 

agencies that have got multiple mandates, and for them at times 

issuing these permits that are essential to construct pipeline infrastructure may not be a high priority. They may not have the resources to do it. And as I noted in my testimony, there are times 

when there is quite a bit of unreasonable delay that affects the 

ability to construct these projects on a timely basis. 

I do think that the discussion draft would improve the process. 

In our testimony we offer some examples for ways that it can be 

strengthened, so we think the committee is headed in the right direction with the discussion draft and look forward to working with 

the committee on perfecting it. 

Mr. LONG. And the current regulations provide for establishing 

deadlines for final permitting determinations. Could you discuss 

how effective this current process is? 

Mr. SANTA. It unfortunately has not been very effective. One of 

the problems is that notwithstanding that being part of the 2005 

law, there wasn’t really anything put in there for effective enforcement in it. The only recourse was for the pipeline applicant to take 

that permitting agency to court. That is awfully difficult because 

effectively you are suing the agency from whom you are trying to 

get the permit, and also the standard of review applied by Federal 

courts of appeal tends to be pretty permissive and highly deferential to the agencies. And so, in the limited instances where pipelines have chosen to litigate under that provision, it has not been 

very satisfying. 

Mr. LONG. Do you believe the discussion draft that it provides accountability for failure to meet the deadlines? 

Mr. SANTA. I believe that it does to the extent that it requires 

those agencies that have not met the deadlines to report to the 

Congress. It provides a process for attempting to resolve it within 

the administration and also requires them to specify a plan for 

what they can do to complete their work. 

It is a challenge, because as has been noted by the witnesses on 

the committee those other agencies are acting pursuant to their 

particular legal mandates. We respect that but we are also looking 

for a process that will give us more predictability and more timeliness in terms of obtaining permits that are needed. 

Mr. LONG. OK, thank you. And with that Mr. Chairman, I yield 

back. 

Mr. OLSON. The gentleman yields back and the Chair reminds 

the gentleman the last time Duke played Missouri in the Tournament was March 17th of 2001 in the East Regional Final: Duke 

94, Missouri 81. 

Mr. LONG. I didn’t know they played basketball in Missouri. 

[Laughter.] 

220 

Mr. OLSON. Seeing that there are no further Members wishing 

to ask questions for the second panel—oh, I am sorry. I am sorry, 

Paul. I apologize. The Chair now calls upon the gentleman from 

New York, Mr. Paul Tonko, for as much time as he wants. 

Mr. TONKO. Rescued by the buzzer. Thank you, Mr. Chairman. 

Ms. Danis, as you know, the Interagency Coordination discussion 

draft would allow remote surveying data to be considered by agencies. Can you explain how aerial data may be insufficient? 

Ms. DANIS. Aerial data, as we heard testimony earlier this morning, provides an extremely limited view of what is on the ground. 

It cannot be accurate with respect to wetlands delineation. It cannot be accurate with respect to endangered species, vernal ponds, 

seeps, vegetation, other things that require detailed onsite surveys. 

In the provision in the amendments for aerial survey data, requiring ancillary Federal authorizations to consider those data simply decreases efficiency because it in essence asks, for example, 

States under 401 Certification to consider an application based on 

guesswork the first time, and then to go back and to reconsider 

that same application once they can make a true determination of 

what the onsite environmental impacts would be. It is a very inefficient way of approaching it. 

And one way to increase efficiency and reduce delay in the permitting processes would be to require the applicants to come to the 

table with completed applications. First, when they approach 

FERC and to not put FERC in the position of routinely asking for 

deficiency, submitting deficiency notices, asking for additional environmental data, but to come to the table from the outset with a 

well-conceived plan supported by data. 

Mr. TONKO. Thank you. And in addition to perhaps not providing 

the sort of accuracy we need, do you also see that requiring agencies would be ultimately caused to spend more time perhaps and 

more resources in reviewing applications because of the concerns 

you just mentioned? 

Ms. DANIS. It would, because each agency under their enabling 

statutes retains the authority to determine when they have sufficient and verified data to make that assessment. This would inevitably increase those agencies’ resource expenditure to consider applications that are substantially incomplete from an environmental 

groundtruthing perspective. 

Mr. TONKO. Thank you. 

And Mr. Irvin, in the licensing study improvement section, I believe it is page 19 of the Hydropower Policy Modernization discussion draft, we would place the onus on agencies rather than applicants to prove that a study is not duplicative. How might that undermine an agency’s ability to get the information that agency 

needs especially when dealing with a potentially short timetable? 

Mr. IRVIN. Well, agencies are of course stretched thin for all of 

the work that they have to do and anytime you put the burden of 

proof on the agency to basically to disprove something you are adding to that burden and you are making it much more difficult for 

them to carry out their responsibilities. And what we are talking 

about here is a licensing process where a private entity wants to 

do something to make money at it and it seems fair to require that 

221 

going through that licensing process they bear the burden of making the case for why they are entitled to a license. 

Mr. TONKO. Would there be any reason that the burden of proof 

should not fall on the applicant when asked to meet study requests 

by agencies? 

Mr. IRVIN. Not that I can think of. 

Mr. TONKO. OK, thank you. And Mr. Irvin, again, at least in 

some cases delays in hydropower application and evaluation seem 

to be primarily caused by failure to provide all of information necessary for Federal and State agencies to do their jobs. How important is it to get this information and include all interested stakeholders early on in the process? 

Mr. IRVIN. It is absolutely crucial. If you pick the right site and 

you get the information lined up, the statistics show that the process through FERC is actually fairly expeditious, a couple of years 

to get a license. What often happens is that an applicant will 

choose to go through the traditional licensing process which takes 

longer. And also it sometimes is actually in the interest, particularly in a license renewal situation, for the applicant to have the 

process take longer, because what happens then is that each year 

they get a 1-year extension of their existing license they don’t have 

to undertake any of the environmental mitigation that would be required once they get a new license, and so continuing the process 

for a long time actually may be in the interest of the applicant. 

That is obviously not a preferred outcome. We want to get 

through these processes. We want to get the new requirements in 

place. We want the applicant to get their license expeditiously. We 

can do that through the existing processes. We don’t have to weaken existing environmental law in order to achieve that. 

Mr. TONKO. Thank you. 

Mr. Chair, is there an opportunity for one more quick question? 

Mr. OLSON. Yes, sir, absolutely. 

Mr. TONKO. Thank you. 

Mr. Irvin and Ms. Danis, though you provided testimony on completely different subjects, your statements were remarkably similar 

in that they both focused much of their time on the relationship between the legislation before us and the Clean Water Act and how 

that legislation would undermine it. Specifically, you both focused 

on how the bills would harm States’ rights under Section 401 of the 

Clean Water Act as well as water rights generally. 

So my question to each of you is, it seems to me that these bills 

are in a large measure attempts to make significant changes to 

Section 401 of the Clean Water Act and to a somewhat lesser degree in Section 7 of the Endangered Species Act. Would you agree 

with that assessment? 

Mr. IRVIN. Absolutely. That is one of the primary problems of 

these bills, is that it undermines both the Endangered Species Act 

and the Clean Water Act, and in particular for the Clean Water 

Act the State authority to decide what qualifies for a water quality 

certification. 

Mr. TONKO. Thank you, and Ms. Danis? 

Ms. DANIS. I agree with what Mr. Irvin just said, and additionally it is really important that those comprehensive and wellthought-out national policies that are embodied in the Clean Water 

222 

1Some of the information does not appear at the conclusion of the hearing but has been retained in committee files and is available at http://docs.house.gov/Committee/Calendar/ 

ByEvent.aspx?EventID=105916. 

Act and the Clean Air Act are not scuttled for the purposes of consideration of private applicants’ projects on a case-by-case basis, 

but really affect the Natural Gas Act goals of balancing those interests. 

Mr. TONKO. Thank you very much. 

With that Mr. Chair, I yield back. 

Mr. OLSON. Thank you, Mr. Tonko. We saved the best for last. 

Now seeing there are no further members wishing to ask questions 

for the second panel, I would like to thank our witnesses, Mr. Soth, 

Mr. Leahey, Mr. Irvin, Ms. Danis, Mr. Santa, and Mr. Black for 

being here today. 

As we conclude, I would like to remind everybody here—— 

Mr. RUSH. Mr. Chairman? 

Mr. OLSON. Yes, sir. 

Mr. RUSH. Mr. Chairman, I began this hearing with some very 

serious concerns about the status of our chairman, Fred Upton. 

Have you heard, is he all right? 

Mr. OLSON. Chairman Fred Upton is fine. He is doing well. He 

has been working on the healthcare bill. God bless Fred Upton. 

As we conclude, I would like to remind everybody here that my 

Houston Rockets are looking to go two games to zero up against 

the San Antonio Spurs. Tipoff is at 9:30 p.m., so take a nap. 

I would also like to ask unanimous consent to submit the following documents for the record: a letter from the Edison Electric 

Institute; a letter from the Modesto Irrigation District and Turlock 

Irrigation District of California; a letter from the Southern California Public Power Authority; a letter from the Public Utility District No. 1 of Chelan County, Washington—I hope I pronounced 

that right; a letter from the Jordan Hydroelectric Limited Partnership; a letter from the County of Pulaski, Virginia; a letter from 

the NECA, the National Electrical Contractors Association; a letter 

from Public Utility District No. 1 of Okanogan County, Washington; a letter from the American Public Power Association; a letter from the National Electrical Contractors Association; testimony 

of Kevin Colburn on behalf of the American Whitewater; a series 

of letters collected by the Hydropower Reform Coalition; a letter 

from the Western Governors’ Association; a letter from Mayor 

Linda Dahlmeier of Oroville, California; a letter from the Hydropower Reform Coalition; and finally, the FAST–41 Federal Permitting Improvement Steering Council Fiscal Year 2016 Annual Report to Congress. 

That is it. I would ask unanimous consent they be submitted for 

the record. Without objection, so ordered. 

[The information appears at the conclusion of the hearing.]1

All Members, that they have 10 business days to submit additional questions for the record. I ask witnesses to submit their response in 10 business days of receipt of those questions. Without 

objection, this subcommittee is adjourned. 

[Whereupon, at 1:14 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

223 

PREPARED STATEMENT OF HON. FRED UPTON

Today the subcommittee begins what I expect will be a thoughtful and deliberative process to examine legislation addressing pipeline and hydropower infrastructure modernization. We will review 10 bills, some of which have already been introduced, while others remain in the form of a discussion draft as we continue to work 

out the details. This committee has developed an extensive record on the issues 

these bills address. As some will recall, hydropower and gas pipeline infrastructure 

modernization were included in the energy bill conference last Congress. We began 

this Congress by picking up where we left off, with hearings examining the challenges and opportunities to expanding hydropower generation and promoting pipeline infrastructure improvement and expansion. We’ve heard from a variety of 

stakeholders, including job creators, contractors, labor, Tribal interests, consumers, 

and private citizens affected by development. Permitting pipeline and hydropower 

infrastructure often requires extensive consultation with more than a dozen Federal 

and State agencies. Today, we will hear from the Federal Energy Regulatory Commission, which is the coordinating agency for these reviews. As we move forward, 

we will continue to engage with States and other Federal permitting agencies that 

have a participating role to ensure that we are balancing the need to update and 

modernize our infrastructure with important safety, environmental, and consumer 

protections. 

The legislation before us today takes important strides toward modernizing our 

Nation’s energy infrastructure. The hydropower policy modernization discussion 

draft encompasses many of the bipartisan reforms that received support in both the 

House and the Senate last Congress. The draft would designate FERC as the lead 

agency for hydropower licensing and encourage greater coordination and cooperation 

among the dozens of agencies involved in the permitting process. We are also examining discussion drafts that would promote new hydropower development at existing 

nonpowered dams and the development of closed-loop pumped storage projects, like 

the one in Ludington, Michigan, my home State. As we’ve heard in testimony before 

the committee, these projects are a win-win; minimal environmental impact, new investments, jobs, and added benefits to the grid. Another bill would streamline the 

permitting process for small conduit hydro, which is an emerging source of renewable energy that can be bolted on to existing infrastructure to provide flexible and 

reliable power. 

We are also taking a close look at legislation to improve the process to permit 

interstate natural gas pipelines and cross-border energy infrastructure. The discussion draft promoting interagency coordination for review of natural gas pipelines 

will streamline the process and increase public transparency. Together, these reforms will bring more certainty to the permitting process, which will encourage investments, create jobs, and lower prices for consumers—especially those that are already paying too much for energy due to pipeline bottlenecks and capacity shortages. 

The discussion draft promoting cross-border energy infrastructure would, for the 

first time, enshrine in law a uniform and transparent process to authorize 

crossborder oil and natural gas pipelines and electric transmission facilities. As 

we’ve all seen with the Keystone XL pipeline, the current presidential permit process is broken beyond repair. The draft legislation would bring predictability and 

transparency to the process. It will allow the technical experts at FERC and DOE 

to review proposed projects without politics getting in the way. Importantly, the 

draft legislation will not touch bedrock environmental laws like NEPA, the Clean 

Air Act, or the Clean Water Act. It will also preserve and even strengthen opportunities for stakeholders and property owners to have their voice heard. 

Together, these 10 bills represent the beginning of an ambitious effort to modernize our energy infrastructure, increase access to affordable and reliable energy, 

and lower prices for consumers. I want to thank the witnesses for appearing before 

us today, and I look forward to their testimony. 

224 


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[DISCUSSION DRAFT] 

JL)TII ('0:\'(iHESS 

1 ::JT SESSTO\' H.R. 

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exis1ing HOll-}lO\\'t>l'<'d dmn::-;, nud for other lHll'JIONl'N. 

IX TIIE HOUSE OF REPHESEXTATIYI<JS 

jj 

C'mmnith'e on 

A BILL rro nnwwl the F(>deral l'cnwr Aet to ]WOmote hydropower 

dewlopuwut at existing nou-powercd <lmm:, and for other 

]l\ll'jlOSl'S. 

Re it ena!'!ed by the 8enule und House (!I' Heprcsenla3 SECTION 1. SHORT TITLE. 

4 This "\l't may he eited ns the• "Promoting Ilydro5 power Den~lopuwnt at Existing .\'on-Pom~red Dnms Aet''. 

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SEC. 2. PROMOTING HYDROPOWER DEVELOPMENT AT EX2 ISTING NONPOWERED DAMS. 

4 "Pq.) is Hllll'lHll'd hy <tdding at tlw pnd tlH• f'ollo\\·ing: 

5 "SEC. . PROMOTING HYDROPOWER DEVELOPMENT AT 

6 EXISTING NONPOWERED DAMS. 

8 "( 1) ExE~II'TIO:\ (~L\LIFW\TIO:\:-;,~Snh.k<'t to 

9 tlw r\•qnil'l'llWnt;; of' this snhi·Wdion, OH• Commission 

10 may g'l'<llll 1111 \'XPmption in who!\· or in pnrt fron1 

II tlw l'l'qnii'Pnll'lllS or this pal'l, iu(•]nding <lll)' lil'PJIS(' 

12 n•qnirPilH'llts (·outnined in this p<lrl, to <m~· fm·iliiy 

13 tlw Con11nission dC't\Tminl's is a qmtlif~·ing fac·iliiy. 

14 

15 S'L\TE .\t:EX('II<:S.----1n gr<~ntiug· any \'Xemption under 

16 this snhs<•(•tion, 1lH· Commission sli<ill l'Onsnlt with~ 

17 "(.\) ilw 1'niiPd St<il<'il Fish Hnd \YilrllifP 

20 <'O!Jtrol on•r thP fish and wildlifv n•solll'l'<'S of 

21 thl' StatP in "·hi<'h Ow fm·ilit_,. will lw lor·ated, 

22 in tll(' lll<lll!H'l' proYided h,Y tlw Fish and \\'ild23 lifl' Coordination 1\d; 

24 "(B) an,\' l<'edl'nd dl'partment SllJWI'i'ISlllg 

25 <m~· pnhlil· land" or resenntious O('<·npied hy the 

26 projer·i: nnd 

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2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

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March 22, 2017 (2:40p.m.) 

"(C) an~' llHbm tribe affceted by the 

projeet. 

"(,\) 1:'\ <lE:'\E:HM,.-Tiw Commission shall 

invlnde ill itn~' exemption gTnntec1 nnclcr this 

the Commission cktennines <HT-

"(i) IH'eessary to ]Jl'Oh'et public safet?; 

()]' 

"(ii) n'asonahk c'vmwmivnlly feasible, 

and essential to pn'Yent loss of or damag-e 

to, or to mitignte ndwrse effec-ts on, fish 

the eonstmdion nw1 O]l\'t·ntion of the 

qnnlif:\'ing· faeility, ns c·ompmTd to the em1.-

l'OllllWntnl baseline existing nt tlw tinw the 

Commission grnnts the exemption. 

"(B) ;\O CIL\:'\UES TO HELEASE HEc;nrE.-Xo Federal nutlwri~ation required with 

pnntgraph (1 ), inc·lmling an exemption gnmtccl 

b~' the Commission nlHier this snbscetion, ma.'' 

indnde <lll~' eouclition or otlwr reqnirenwut that 

results in auy m<1terial change to the stot·nge, 

eontl'Ol, withdrmntl, cliwrsion, rdeasc>, or f1ow 

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G:\CMTE\EC\15\EN\EP\FPA\HYDRO 17~04.XU)iscussion Draft! 

open1tions of tlH' assoeinted qualit~ving' nonpow2 ered dnm. 

4 sion 's l'm·irollllll'lli ;ll n·view nndt'l' the :\ atiomll En6 emption undt•r til is snh·wdion shall eonsist onl,1· of 

7 HI! l'11Yimn!lH'I!tal <ISSPssnwnt, nnkss the Conunis8 c;ion dl•(t•rmiiH's, hy rnk or order, lh1t the Commis9 sion 's ohligat ion:.; nmll'l' sn('h "\t·t f'or gT<Illi ing· l'X10 l'nlpt ions nndt'l' this snhsl'd ion t·an he llll'l tl!rougll 

12 "(:)) \'!OlXI'!O:\ OF TEH~IS ill<' EXE:IIl'TIO:\.~ 

13 .\n,1· Yiolation of a h•rm m· l'ondition of Hll,l' l'Xemp14 tion gmntcd lll!(lt•r this snbsel'tion sludl lw tn•Ht<'d 

15 Hs a ,·iolntioii of <1 rule or order of tlw Commission 

16 nnderthis . .:\d. 

17 "((i) . .:\:\:\L\1. ('!L\IWE:S l•'OH E:\IL\\TE~IE:\T 

18 .\( "l'l\TI'IES.-Exemptees nndt'l' this snbseetion for 

21 <111 nmoH!Il to be fixl·d b,,. tiH· Collllllission for tlH' 

22 ]JllrpOS(' of f'nnding· ('IIYil'OIIIIH'n(;d en])(Ul('('ll\('11( 

24 nwh·1· !his subSl'l'tiou m-e ]()(•all'd. Sul'h mnm<1l 

25 (']mrgt•s slinll lll' l'qninde11t to tlH• <ll11111al l'lmrg'\'S for 

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use of a Gon'rllllWllt dam mHkr sel'l.ion 10(e), nu2 less the Commission cletcnnines, h,v rnk, that a 

3 lower eharge is appropriah• to protel't exemptees' in4 n:stment in the Jn·ojc:et or nYoid inen~asing the priee 

5 to c·onsnmers of powe1· dne to sneh eharg·c:s. The pro6 ec•eds of c·hnrges tmHle b,v tlH' Commission nwler this 

7 paragraph slwll he paid into the Trem:m·~- of tlw 

8 P nited Stntes and c'!'edited to misec'llaneons reeeipts. 

9 SnhjeC't to Hllll\Htl appropriation ~'tets, sneh proec:eds 

10 shalllw rrnrilable to Federal and State fish nwl wild11 life agcnl'ics for pm]Joses of r·mT~-ing cmt speeifie en12 vironuwutal euhmwc·nwnt pmjeets iu watersheds in 

13 'rhieh one or more facilities exempted nnder this 

14 snbsedion an• loeat eel. Xot. later than 1 SO da~'s aft<·r· 

15 the date of <'nndmeut of this seet.ion. the Commis16 simr shall establish rnl<•s, aftpr notier: awl oppor17 tunit,\· for pnhl i~ ~ommcnt, for 1 he eolleetion all(] ad18 ministration of mmna 1 elwrges nuder this para19 graph. 

21 tion of the Commission owr· nny qnali{\'ing· l'acility 

22 exempted nuder this :mhseetion shall extend only to 

23 the qnali~·ing fm·ility c•x<•mpted ;md an~· wssoeiatccl 

24 prinHn'.'' transmission line, and shall uot ('Xtewl to 

25 mr~· ('<mduit., dam, imponnclnwut, slwrcliue or other 

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G:ICMTE\EC\ 15\EN\EP\PPA \HYDRO 17 _04.Xl\.Discussion Draft] 

(j 

!awl, or all)' otlwr projel·t work assol·intcd "ith the 

3 "(b) DEJ•'l:\ITI0:\8.-For pnrposcs of this seetiou4 "(1) l•'EDEIL\L A.('TIJOI{J~ATTO:\.-TJw term 

5 'Federal nnthorization'-

6 "(.\) nwa11s <lll)' authorization required 

7 mHkr F'e<krnl law with rcspeet to an applil·a8 tion for a li<·ensc, li<·cusl' amendnwnt, or ex<·mp9 tion 1mdcr this part; and 

10 "(B) inelll(ks any pennits, spceial usc an11 tlwrizCltiom;, eertifientions, opi11ions, m· other 

12 approYals as ma)' br reqni1·c<lnnder Fcdcnd hm· 

13 to approw or implement t lw lieem;e, lil·ensc 

14 nnWJHlment, or exemption Ull<kr this part. 

15 "(:2) (~L\LIF\T\U CHITEHL\.--The term 'qnali16 fyi11g eritcria' means, with n~sped to a faeilit)'-

17 "(A) as of the date of ennetlll<'nt of this 

18 sedion, the fneilit)' is not liecnscd under, or ex20 in, this pmt; 

21 ''(B) tlw f<H·ilit)· will h<• assoeiatccl with H 

22 qnalif)·ing nonpmwrccl dam; 

23 "(C) the faeility will be l'OJlstrueted, opcr24 at<'d, nml maintained fhr the generntion of ell'<'-

25 tl'il~ ]HW\Pl'; 

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G:\C'V!TE\EC\l5\EN\EP\FPA\HYDR017 _04.X~lliscussion Draft] 

7 

"(D) the fal'ilit)' will nsc for snell g'l'JH'ra2 tion <lllY withdrawals, diwn;ions, relc~ases, or 

3 t1mYs from tlH~ assovinted qnalifying nm1pow4 erccl <lmn, indnding its nssociatcd impomHlme11t 

5 m· otlwr infrastmetnre; awl 

6 "(E) the OJlC'l'ntion of tlw facilit~' will not 

7 l'esnlt in any material ehangc to the ston1ge, 

8 eontrol, "'ithclrmnll, diYen:ion, release, m· t1ow 

10 crcd dam. 

11 "(:i) QL\LIV\T:'\U FM'ILrl'Y.-Tlw term 'qnali12 f)'illg' faeility' means a faeilit)' that is determined 

13 1mder this :wetion to meet the qnali ~-ing eritt>ria. 

14 

15 term 'qnaliG'ing llonpoln're(l dam' llH'<llls Hll,Y dam, 

16 dike, ('mlmnkmcnt, or other harril'r17 ''(A) the eonstnwtion of IYhieh was eom18 ]lll>tcd on or llet'ore the date of enadme11t of 

19 this S<'dion; 

20 "(B) thllt 1s opcl·atctl for the· eo11troL n'-

21 h'l]S(', 01' distri.\mtioll of' 1\"Hll'l' for Hg-rieu\tmaJ, 

22 1111111 il'ipal, llilYigational, iudm;trial, eomnwreial, 

23 em-irmlmental, n•(·reational, aestl1etie, or flood 

24 <·ontrol pnrposes; 

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G:\C!VlTE\EC\15\EN\EP\FPA \HYDRO 17 _04.Xif.Discussion Draft) 

2 

3 

4 

5 

6 

7 

8 

9 

10 

G:\VHLC\032217\032217. 145.xml 

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8 

"(C) that, as of the date of enadm<•nt of 

this scetion, is not eqnippe(1 with h~'<lr·opowcr 

g-em•rating works that an• licensed mHlc'l', or exPmpted from tlw lieensc• requiremeuts eoHtai1wd 

111, this part; awl 

"(D) that, in the ease of a 11011-Federal 

dnm, has !wen eertificd hy an independent eonsnltnnt apprm'cd h~' the Commission as eompl,\'ing with the Commission's <lam safety requiremcnts.". 

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G:\CMTE\EC\ 15\EN\EP\FPA\HYDRO 17 _03.XI!Jliscussion Draft] 

[DISCUSSION DRAFT] 

11 ;iT!! ('0-'\U Hl~SH 

1ST Sm-iNJO:\ H.R. rro 1lllH'lHl tlw Pedt~l'nl Pmrt>r _._\{'t to JH'OlllOtv do~Pd-!oop ]HlHlJH'd :.stOl'i:l).!\' 

ltydmpom•r, n!HI !'or otlter ]nn·post·s. 

~I 

I:\ TIUJ IlOD1E OF REPHESE:\'1\\TIVES 

_____ inti·oduted tltt• f(Jilo\\·ing bill; wltit·lt wns referred io ll1e 

CnmmittP(' on 

A BILL 

To amend the Fedcrnl Pmn'I' i\et to ]Jrmnotc c-losed-loop 

Jl1l!Yl]Wd stontge h~·dropm\'l'I', mH] for other Jl11l']JOscs. 

He it enadul by the Senate aJI(l Ilousc r~{ Represent a2 I i1•cs of the Cnilcd 8/ales <~j'Llmcrica in Conqress ussemb/('(l, 

3 SECTION 1. SHORT TITLE. 

4 This ,\et ma~- lw (•itcd as tlw "Promoting Closed5 Loop Pmnped Stomge 1-I.nll'Opower Aet". 

6 SEC. 2, CLOSED-LOOP PUMPED STORAGE PROJECTS. 

7 Part I of the Federal Power Ad (lG U.S.C. 792 c•t 

8 seq.) ifl <lllH'JHh•cl by ad1ling at tlw end the f(JlJowing: 

G:\VHLC\032217\032217.144.xml 

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G:ICMTE\EC\15\ENIEPIFPAIHYDROI7Jl3.X!I-Dlscussion Draft] 

"SEC. . CLOSED-LOOP PUMPED STORAGE PROJECTS. 

2 "(a) DEFI:\ITTO:\N.-ln this section: 

3 ,, ( 1) CLONED-LOOP 8TORAUE 

4 PHO.JECT.-Tiw term '<'losed-loop JH!l1lJWr1 storag-e 

5 projeet' meaus a projed6 ''(1\) in whic·h the 11ppc>r alH1 lower res7 l'JToirs rlo not impunml or rliredly withdraw 

9 "(B) that is not eontinnonsly eom1edecl to 

10 a nntnrall~· J:1owing m1tl~r feature. 

11 

13 " ( ~\) 11wans au~· nutlwrizn tion I'eqnircrl 

14 nnder Ferlcral law with n•sped. to ;m nppliea15 tion for H lier'Jisr', lir•cnse lll1H'IH1men1, or exemp16 tion under this part; and 

17 "(B) inelnrlcs an~· pc•rmits, SJll'eial nse au18 thorizntions, r·cJtifie11tions, opiuion~-;, or other 

I 9 approya]s as ma~· be required nnrkr l<'edernl law 

20 to nppnrw or implc•nw11t the license, lieem;e 

21 HllH'IHlmr·nt, or exemption mvlr•r this part. 

22 "(b) l:\ GE:\EHAL.--As proYirkrl in this seetion, tlw 

23 Connnissiou mny isome and ameiHl licenses and prelimi24 nm:Y permits, as HJlJn·oprinte, for closr•d-loop pum]Jed stor25 uge projl'ds. 

G :\VHLC\032217\032217 .144.xml 

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G:\C:\1TE\EC\15\EN\EP\FPA\HYDROI7 ~03.X!f,Discussion Draft] 

2 ('lmwd-loop Jllllll]ll'd stOJ'<Ig'l' projl'l'1, the Commission sh;lll 

4 reb1ted to tlw proje<'l (ilwlndillg- possihlP l'OllSPqnell('l'S as7 ('losed-loop Jllllll]ll'd c;tonlg"t' wojed, tlw nuthority of' tlw 

8 C'ommissim1 to impose l'OlHlitions on a li('\'llSt' nndl'l' set·-

9 tions -1-k), lO(n), 1 O(g), awl 1 O(j) shall not npply, and 

I 0 <11l,Y l'ondition inL·lnded in m· <~ppli('nbh• to <1 (•losl·d-loop 

12 ing m1~· ('O!lditiou or o1IH•r l'eqnil't'IlWllt of' n 1<'etlenil <Ill13 thoriz<ilion, slwlll)(' limiU·d to tlwse that <~re14 ''(I) m'L't'ssnr.Y to pmtl·c·l pnbli(· snfl'lr: or 

15 "(:2) rensonnbk, l'l'Ollmnit·nlly f'l·asihle, awl es16 sPilt i;ll to prewnt loss of' or dnnl<lg"l' to, m· 1o mit i19 tlw projt•(·t, ns t'Olll}Hil'l'd to tlw em·inHlll!l'll!cd bast·-

20 line existing ill thP tinw tlw Commission ('Onlpletl's 

21 its l'Il\'i l'Ollllll'lll ;tl n•Yil~\\'. 

22 "(<>) TH.\:'\NVEH:->.-:\ot\\'itltst;I!Hlittg- scdioll :), awl 

23 n·g·nrdh·ss of wltd her tlll' holdt•r or n pn·liminary ]ll'l'lllit 

25 ip;d pref'l•n•tH't' lllHll't' sed ion 7(<1) \rlll'n ohUJining tlw pel'-

G :IVHLC\0322171032217. 144.xml 

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0 :\CMTE\EC\ 15\EN\EP\FPA \HYDRO l7 __ 03.XWiscussion Draft] 

4 

mit, the Commission ma~", to f;wilitatl' tlewlopnwnt of a 

2 eloset1-loop pumped storage prqjed3 "(1) ndd entities as joint permittees following 

4 issuam·e of n preliminnr? permit; ;md 

5 "(:2) transfer a liec•nse in part to ow' m· more 

6 nonm1mieipal entities as c~o-liet~nsees \\·it h a 1mmiei7 pnlit,v.". 

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G \CMTE\EC\15\EN\EPIFPA\HYDRO 17 _05XML 

115'1'n l'O.'\GHESS 

h"J' 8ENNIO:'\ H.R. 

To mncud tlw F<>d<'l'ni Powel' ,\et to Jll'O\'id<• 1 hat qunli(1·iug smnll eondni\ 

h.\'(ll'<lJ>O\Ic>l' l'<H'iliti<•s m·c not requil'('d \o be lil'l'liSl'd uml<•r pnr\ I ol' 

Slll'h ,\('1, 

iut l'Odlll"'d till' following· hill; 11hi"h wns l'l'f'l'l'l'l'd 

to lhl' l'ommitt<•<· on 

A BILL 

To ame1Hl tlw PP<ll'ral Power 1\et to jlt'OYicle that q1mlif~ring 

small eonduit hyclropowl't' faeilities nn• not reqnirerl to 

lw lieensed nnclcr pnt·t 1 of sueh ;\et. 

Be it enuclerl /Jy the Senate and Jlouse 1l{' Rcpresenta2 lit·es 111' the Cnited Stales li/'Ameri('((. in Cott!Jress asscm/Jif:il, 

3 SECTION I. SHORT TITLE. 

4 This ;\d. mny lw l'itl'll as the ''Pt·omoting Small Con5 dnit II~'dropmnor Fcwilitie:-; 1\et of 20 J 7". 

G:\VHLC\042117\042117.108.xml 

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G:ICMTEIEC\l51ENIEPIFPAIHYDROl7_ OS.XML 

SEC. 2. QUALIFYING SMALL CONDUIT HYDROPOWER FA2 CILITIES. 

6 gntph (-t); 

9 "(:l)(.\) "\ qmtli~·ing s!llall conduit h,nlropom't' t'aeil10 it_,. shall not he l'l'<Jllired to lw lil'l'Ilsed nlHkr this par1. 

II ·'(ll) An_,. pl'I'son, ~t;1te, or lllll!lieipalit~- pt·oposing· to 

12 (•onstnwt a qmdi(,·ing snmll ('OJHlnit h,nlropmnT f<l('ilit.'· 

13 sh;dl file \\·ith the C'onunission a notir·(• of intl'nt to t•on14 stnwt snl'h f';wilit_v. The notil'l' shall im·lwle snl'fir·iPnt in15 formation to dvmonstntte thnt tiH• f;l('i]it,,- llll'l'ts the qnali16 f>·ing· small l'ondnit faeilit_v eriteria. 

17 "((')(i) :\ot lnll'l' th<llt Li days aftvr l'l'('Pipt of <1 110-

18 ti<·l' of intent filed under suhparngntph (B), the Commis19 sion slwll tmd;:v a ddvnnination liS to \\'IH'tlHT the f'aeilit,\' 

21 "(ii) If tlw (\nnmissiou fnils to makl' a ddvnninatiott 

22 \\'ith rl'sped to a f;wilit~- in Hl'<·onln!ll'(' \\·ith (;Jmml' (i), tlw 

23 f;H•ilit.'· slwll hl' dPemed to nH'<'t tlH' qm1lit>ing small l'Oll24 dnit fm·ilit~·t·riteria.": <111<1 

26 g-n1ph ( 1) oft his s<·dion---

G:\VHLC\042117\042117.1 08.xml 

April 21, 2017 (2:07pm) 

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Ci:\C\1TE\ECI! )\EN\EP\FPA\HYDRO 17 __ 05.XML 

2 

3 tlw1''; mHl 

4 (B) h,\' inserting at t lie end the following: 

5 "( ])) Tlw term 'qmilii~'ing suwll eomlnit h,nlro6 ]JOWl'!' f';H'ilit/ llll'Hils :t fnc•ility (not in('lnding Hll,Y 

7 dnn1 Ol' other imponndnH·Ht) that is cktcTmiHPd or 

9 f~·iug· smnll c·mHlnit f'ntilitr critl'rin. 

10 ''(E) Thl' terlll 'qnnlif~·ing· smnll eondnit f'<l<'ilitr 

II eritcria' nwnns, 1\ith rc•spc·c·t to a f;wility13 nw i nt a i m·d for the g·elll'l'a t ion of elec·tric· poWC'I' 

14 ctllll nsl's for sm·h gc·neration onl,\· the ll~·dro16 dnit; 

17 "(ii) thl' Lwilitr has nn installed enpm·it,Y 

18 thnt does not c·xc·eed 2 nwgmratts; nlll1 

19 "(iii) on or bc•fon• the date' of c'Jlal'tnwHt of 

20 tlH' Prm1wting· Mtll<lll Condnit I Irdropm,·c·r F'<l21 c•i]itil'S "\('( Of' 2017, t]H' f'nl'i]it,Y is HOt Jic·c'llSl'd 

22 mHkr, or c•xc•tnptc•d from tlw liel'mw n•qmn·-

23 ments c·oiitniHC'd in, this pmt.''. 

G\VHLC\042117\042117.1 08.xml 

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G:\CMTE\EC\ 15\EN\EP\NGA \PERC PC 17 _0 I .XML 

[DISCUSSION DRAFf] 

11 i1TII ('0:\Gl\ESS 

1ST SI~SNIO:\ H.R. 

;\I 

To providP f'or FPdernl nwl Sial<• ng'()lH~~· 1·om·di1wtion i11 1he appt·m·al of 

l'i!1'1ain ;m1l10rizntlmJs u1Hit'l' the• X(lt\tnd Ons ... \<'t. 

1.:\ THE IHWSE OF TmPRESE.:\'1'A'l'l\'ES 

intl'Odm·<·d tlw following· bill: \l'hieh \\'llS l'd(•JTPd to tlw 

ConunittPe on 

A BILL 

To proYide for Pe(lernl and State ngt•ney eoorclinatiou in 

the approYnl of l'l'l'blill antlwrizntious undl~r the .:\atnral 

Gas Att. 

Be it r1we/ed by the Senate awl TTouse ill' Reprrsenta.-

2 lives i?flbe l'nite!l8tatcs qf'America in Conyress ussen1.hled, 

3 SECTION 1. SHORT TITLE. 

5 Coonliuntiou for l\cYiPw of .:\atural Gas Pipelines .Act". 

6 SEC. 2. FERC PROCESS COORDINATION. 

7 SPdion L) of the Xatmal Gas Act (1;) U.S.C. 717n) 

8 is <llllCIHh~<lG:\VHLC\042517\042517. 1 03.xml 

April25, 2017 (12:16 p.m.) 

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G:\CMTE\l'C\15\EN\FP\NGA IFERCPC 17 _0 l.XML 

(1) b,\' HIIH'IHliug :mltset·tiou (h)(2) to n•;HI HS 

2 follm\'S: 

3 "(:2) 0TIIEH .I<:E:'\l'IES.-

4 

5 

6 

7 

R 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

GWHLC\0425171042517.1 03.xml 

April25, 2017 (12.16 p.m.) 

t·<ltiou for a Fl'dl'J'<tl Hnthorizat i011 slt<tll t·oopvrnll' with the ( 'omntission nnd t•otnpl,v IYitll tiH· 

de;tdlin<'s pslahlislwd h.'' !II(' ( \mnnissiou. 

''(H) lllE\'TIFH 'ATIO\'.-The ( 'omlllissiou 

not if'ied hy a prospl'diw applil'Hll1 f'm· au ;mthorizatiou nndl'l' Sl'dion :l or n t't'l'tifit·att• ol' 

pnhlit· eolln'llit•twt• <ttHl IWl'l'ssit,,- nuder sediou 

7. <lit,\' FPdernl ot· Stall' ng·l'I]('~·. ](J(·nl g"O\'l'l'llnwnt, m· Iwli;ttt Trilw th;ll lll<l,\' t'O!tsidt•r nn <IS-

]ll'<'l of Hit application for a Federal antlwrizatiou for 'nwlt antl10rizatio11 m· t'l'ttifit·atc. 

''(( ') 1:'\YIT.\TlO\'.-

''(i) l\' liE\'ElLIL-The ('omntissiou 

sh;tll inYit e lilt,\' agt•ney identified nudt•r 

snhp:trHgTH ph (B) to t•oopt'I'Ht e or pnrtit•ipatt• in tltl' rt'l'it•w prot•ess for the applieHbk l•'pdernl antltorization. 

"(ii) iitYitiltiou 

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G:\CMTE\EC\15\EN\EP\NGA\FERCPCI7 _OI.XML 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

dewlliH<' b.1· whi\'h n n·spo!!~l' to Ow im·itat ion shall he ~nhmitted to the Commission, 

for good <·;msc .. , ; 

(:2) in snhsl'ction ((')-

( i) b.Y striking ";md" nt the end of' 

(ii) !J_,. redesignating subparagraph 

(B) as snbpan1gntph (C); ;tnd 

(iii) by inserting after snhpnrngntph 

tlwrizations; and"; 

(B) hr striking· pantgntph (:2); and 

(C') b.'· adding at tlw l'ud the following lll'\\' 

pnnwnq>lis: 

''C2) DE.\IlLI:\E FOI\ FIWEIL\L .\T:TJ!Ol\1/':,\-

19 TI< >:\s.-,\ dt•;Jdline I'm· a Federal ;mthorizaiion :-;l't 

20 b.Y thl' ( :ommission nnd<'l' p;Irngt·aph ( 1) shall lH' not 

21 htter th;t!l 90 da~·s afll'r th<' ( 'umitii:-;sion isstws its 

22 final enYit·onnwnt;d dot·nnwut, nnh·ss an applil'nhh· 

24 

25 and Statt• H"'<'tll'\'- h • 

GWHLC\042517\042517.1 03.xml 

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G:\CMTF\EC\ 15\EN\EP\NGA\FERCPC 17 _Ol.XML 

2 

3 

4 

5 

6 

7 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

G :\VHLC\0425171042517 .1 03.xml 

April25, 2017 (12 16 p.m.) 

''("\) that may t·onsider 1111 applit'ation for 

a I•'edt•ntl authorization JHli'S1l<lltl to this St't'tion 

sh;tll fonnnlatt• and implenwut a phm for admi11islrat iw, polie~', a !HI proi•t•dural nweltanisms 

to enahlt' tlw ng·elW,\' to ensnn• I'Olilpld ion o[' 

Fvdentl ;mtl1orizatious 111 t•omplia nee "itlt 

grn ph (~), IJ,1· the Comn1 ission nndt•J' pm·<lgTtt pit 

(1 ); mH1 

"(B) m t'Ollsidt'!'in;r <Ill aspt•et of an npplieat ion for a Fedt•ntl nnthorizat ion, shall-

"(i) l'ol'l1111httl; nw1 illlplenwnt a plan 

seiwdniv t•st<thlished h,1· the ( 'ommission 

nuder pantgTaplt (1 ); 

"(ii) t·mT,\' out the ohlig·ations of' tlwt 

a;rt'lH',I' under appiit·<thlt• l;m· t'OIH'lll'l't'lltly, 

and in t'OJijll!\('tion with, tlH• n'YII'\\' n•-

qnirPd b,1· lilt' .'\ation;d Etl\'il'OIIIIH'lltai Polaud in t'OIIIjlli<lltl'l' wit It t IH' S('ill'dnlt' l'stahlished by t lie Conuuission Hlldt•l' paragraph 

( 1), unless tlw agt'IH',I' notifies the Commissio11 iu writing that doing· so would impair 

thl' <tbi]it,Y of the Hg'('lll',l' to tOildUC't lll't'dl'd 

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G:\CMTE\EC\ 15\E:-1\EP\:--!G/\ \FFRCPC 17 _0 I.XML 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

mudysiiS or otlH•1wise c·mT)' out snell oblig-nt ions; 

"(iii\ tnwsmit to the CotllllliiSsion n 

stntc•nw11i--

sion nnder JWI'<tgTH]lh ( 1 ); <tlHI 

"(II) sl'tting· fol'til the plnn fornml<1ted lliHlPI· elnuse (i) of this snh-

"(iY) not h·ss of'tc•n than OIH'l' ewt·y 90 

dH)'S, transmit to the Commission a report 

desc·rihing the pt·ogress !WHit• in c·onsid-

\'riug· s1wil npplient ion for n 1•\•deml ant horizntion. 

17 TIO:\'.-

19 <lgc•twies t hnt I WI,\' eom:idc·r <Ill a sped of ;m ap20 plic·atiou for n Fecknd ant horizntion shall ideu21 tit>·, as enrly <IS possibk, Hll,\' 1ssm•s of c·mwc'J'IJ 

22 

23 

24 

G:\VHLC\042517\042517.1 D3.xml 

April 25, 2017 (12.16 p.m.) 

working· \\·ith t lw ('om mission to l'<'solw snc·l1 

issuc•s a ncl gn111t i ug slH·h ;\\I thorizat ion. 

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G:\CMTF\EC\ 15\FN\EP\NGA\FERC:PC 17 _0 I.XML 

(j 

"(B) Issn; HE."O!XTIO\'.-TIH· Colllmis2 SJOll ma~· fonnml <111~· issnl' of' t'OJH't'l'll itkuii3 fied nudt•r snhpnrng-raph (.;\) to the lH'<His of' 

4 

5 

6 

7 lni ion. 

8 "((') DEFEHE\'CE TO ('o:\L\1!:->:-iiO\'.-lll 

10 tlwrizat iotl, <'<wh ng·l'twy sluill g·iw deft•n•n<·e, to 

II tlw nmxiumm extl'llt authorized by law, to the 

12 St'OJW of t>ll\irollllll'lllcd n·,·il'\\' that t IH' Conlluis13 StOll dt>it'l'lllill('S to \)(' H)l)li'O]ll'iCitt'. 

14 "(,'i) F.\ILnm To :\TEET m:.\llLI\'E.-If" Fed15 end m· :->tate ag<'IH',\' dol's not <·ompktP <I prot·<•eding17 tliorizni ion in <H'<'onlmll'l' \\'it h tlw st·lwdnle <'stabIS lislwd h~· tlw ('om mission nnd<'r ]l<ll'ngrapli (1 )-

19 "("\) t]w <l]l]lli<•H!ll lllH.\' Jllll'SIH' l'l'llWdit•s 

20 nnd\'r sl'\'1 ion 1 ~J(d); nnd 

21 "(B) not IHi<'l' than Li dn~·s aftl'r the dall' 

22 011 \rhieli tlw :-whednll' pro\'ided for s1wh eompl<•-

23 tion. tlH· lwnd of the n·lt•Y<Illi Fedl'ral ag<'lH'Y 

24 (iw·lnding, in thl' l'HS<' of a fnilnr<' hy a ~tail' 

G:\VHLC\042517\042517.1 03.xml 

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G \CMTE\EC\ !5\EN\EP\:"OA II'ERCPC !7 _0 l.XML 

7 

2 Connnission of' Sl!(·h fnihn·<· nnd set forth a !'<'<·-

3 omllll'IHll'd imph•nwiiL1tion phn1 to l'!lsnn· <·om4 pldion of thl' pnH·<·<·ding for 1111 approYnl."; 

5 (:3) by rt'dl'sigiiilting· :-mhs<'<·tiom: (d) tlmmgh (f) 

7 Hl hy inserting aCtvr snbsl'dion (<·) tlw fol9 "(d) HIDIOTE Nt:!\\'EYN.-lf n Fl'dl'nil or Stat<' ili.('l'llII ;mtlwrization I'<'qnin•s liH' <Ipplieilnl to snhmit l'llYiron12 llH'lltnl d;Itn, thl' agl'tH·~· slmll <·<msid<'I' an.\' snl'li dnta pith13 erl'd h~· Hl'l'inl m· other n•nwt<• llH'<IIlS tl1at llH· appliL·ant 

14 submits. Till' ngeiH',Y nw~· gTi\111 n l'owlitioual npprm·al for 

16 o1· l'<'llloll' nw;ms, l'OIHlit ionl'd on Ill<' wrifil'at ion of snell 

17 d;iln h~· snbs<•qnent onsik im:p<·dion. 

I R "k) ~\Pl'LW.\TIO:\ l'HO< 'ESNI:\< ;,-'l'liL' Commission, 

20 S<'<·kiug <1 Fvd<'I'nl H\Itlwrizntiotl to fund a third-party <'Oil21 t rndm· to nssist iu l'l'\'il'\l'ing· tlw appli<•at ion. 

23 <'IE:\< 'Y.-For HI! appli<·ntion for m1 antlwriz<Jtion mHIPr 

24 sl'dion :l, or 11 <'<'I't ifiente of pnblil' <·onwni<'lH'l' nnd lll'l:<'S25 sit_,. nndvr s<•l'!ion 7, tl1nt n•qnires mnltipl\' ]<'<'lknd m1-

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G:\CMTE\EC\ I 5\EN\EP\NGA \FERCPC 17 _0 I .XML 

tllorizHt ions, t hl' ( 'mnmission, with input from <lll,\' Fl'lkntl 

2 or N!H!l' <tgPIH',\' ('OIJsirkring <Ill nspevt of' the nppli<·ntion, 

3 sllnll tnwk <tll(l InnkP HYailahle to th(' public· on thl' Com4 mission's 1\'('hsitP inforlll<ttion rl'lall'<l to thl' nl'tiom: n·-

5 qnirl'd to <·mnplt'tl' the Fl'dl'ral nutlwrizn1 ions. Nueh itd'or6 nwt ion shHll inelndl' tlw following: 

7 "( 1) Tlw s<·lwduk ('slahlishcd h~- tlw C'ommis8 sion nndl'l' snbsl'e!ion (l·)( I). 

10 appJil'<tlJk agl'IH'~' lo l'Olll]lldl' ]ll'l'lllitl i11g, 1'('\'l('WS, 

11 and otlH•J· al'lim1s JH'l'l'SS<Il'~- to ohtnin n final dl•<·isioJJ 

12 on the iipplil~<t! ion. 

13 "(:l) Tlw l'XJH'l'tcd <·ompldion dnt<' f'ot· ca<·h 

14 stwli ndion. 

15 "(+) "\ point of eontm~t nl tlte agL'lH'~- <H'l'Ollllt16 ahil' for <'<H'll stwh <ldion. 

17 "(:i) In tlH~ l'Wllt thHt Hll <tdion is still ]Wilding 

18 as of tlw l'X]H'l'h•d d<ttl' of' l'Ollipld ion, <1 \wid' l'XplnJ9 ll(Jtion OJ' (]Jp J'('11SOIIS for t!Jl' <kJa~·.''. 

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[DISCUSSION DRAFf] 

11 :,Til ('():\()HE ::iS 

1 S'l' SESSI< 1-:\ H.R. 

To t•stnhlii-dt n !IJOJV unif'o1·m, tnlHSJHII'('llt. nud HJodt:rll pl'O('(';-;s iu n!dlwriz\' 

tl1P ('OlJ1-;1rnl'1ion, {'Oilll{'e1ion, OJH'l"Htioll, and lllllill1\'ll111l<'t' of' intt>ntniimwl 

hordl'l'-(·rossiHg· f;H·ilitil';--; !'or tltl' impor1 nnd I'Xport of' oil ;-md uatund 

gw..; ill!d 1\H• 1l'HllSllli;-.;siO!l of' t>lt•(•fJ'it·it,\·. 

I.'\ TilE IIOPSE OF HEI'HI,;SE.'\'1\\TI\TES 

~I in1rodlll'l'd 11J<• f'ollowiog hill; whi1·h 1\'<lS rd'<'IT<'<i 1o tlw 

( 10lllllllt11'(' 01! 

A BILL 

To est ahlish a mm·e nnif'onn, tnn1sp;m•nt, nnd modern pro<·-

l'SS to ;mtllorize tIll' r•mJstnH't ion, <'OJ!IH'dion, operation, 

<llid lllaintcmtJH'l' of inil'nwtional hord<•r-r•rossing· l'al'ilities for the illlport and export or oil <IJHI natural gas 

and tlll' t ransu1ission of' <>ledri<·it~-. 

Be il c;wl'iet/ In; ll1c /'·,'eilule Uiltl House 1!/' Hepresenta2 lil·cs rif'/lu· I 'ililetl 8/u/cs r!('.JJ!/el'icu in r'oii.IJI'!'ss IIS.\'I'IIililctl. 

3 SECTION 1. SHORT TITLE. 

4 This.\('( uw~·lle <·ill'<l m; the "Promotillg Cross-BorG\VHLC\042517\042517.230.xml 

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CJ:\CMTE\EC\15\EN\EP\CRBORD 17 _OJ .XML !Discussion Draft] 

SEC. 2. APPROVAL FOR BORDER-CROSSING FACILITIES. 

2 (<l) .\l'Tl!OHJ%.\TIO:'\ ()]<' ( 'EH'LIJC\ EC\EIWY l:'\VIL\-

4 ,\JiY OF TilE 1':---:ITE!l ST.ITES.-

6 pamgTaph (:l) nnd snhsl·etion (e). no ]wrson tllil,Y 

7 l'OJJstnwt. l'Olllll'ei, op(Tate, ot· maintain <I bonll•t·-

8 l'l'ossing· f'<i(•ilit~' for tlw import or l'xport of oil or 

9 nat und gas, m· the t ranstnission of t'leei ri<·ity, <H·t·oss 

10 <lll inil't'IIHtiowd bordPJ' of' thl' (Tnitl'd Stall's \\'ithont 

II obtaining a l'Prtif'i<·<lle of' erossing· for the bonier12 erossillf!,' f'aeilit~· nuder this snhsedion. 

15 d<i.YS af1l'l' final al'iion is takl'll, hy the rek•vant 

16 otTieial or ageJH·~· idPntifiPd nndl'l' snhpm'<lgraph 

17 (H), mtdl'l' tlte X<ll ional EnYirollllll'lltal l'oliey 

20 ])('!'sou l'l'qm•sts a <'l't'tif'i<·<~te of' lTossing· under 

23 l'i<·s. shall issnp a l'l'rtif'i<·<lil' of' l'I'Ossing f'or tlw 

24 horder-<·rossing f<wilit~· nnl(•ss the n·h·Y<llli offi25 ('i<il m· <lf!.'l'tH'~' finds that llw (•onstt·ul'iion, l'Oil26 1wdion. opPr<ltion. or tll<lintl'll<llll'l' of the horG:IVHLC\042517\042517.230.xml 

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G :\C MTE\EC\ 15\EN\EP\CRB ORD 17 ~ 0 I .XML [Discussion Draft I 

2 

3 

4 

5 

6 

7 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

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:l 

<lL'I'-('l'Ossing f'<H·ilit~· is not in t lw pnbliL· interest 

'l'lH' rl'h'\'illlt of'fieinl or ilg'CIH',Y ref'et'l't'd to 111 

(i) tlw F('dL'l'<il 

Counnission wit li I'L'Sjll'd to honkr-(•rossing· l'il<'ilit it•s L·ousist ing or oil or nnt nnil 

gns pitwlinl's; and 

(ii) till' s('(•J'cl<ll',\' of 1~ll('l'g,Y \\'ith ]'('-

spl'd to honiL'l'-L'l'Ossing fm·ilitiL·s L'Ollsisting 

L'l1S(' of a n•quest for il ('L'l't if'i(•;ttP of L'I'ossing for 

L'rg·.y slwll reqnirl', ns <1 eonditio11 of issning· tlw 

that the bordl'l'-<•rw-:sing l';wility h\' L·onstnwted, 

L'Olllll'dL•d, OJHT<lt('d, o1· mnint;~ined eonsistent 

\Yitli ;~]] nppliL·<illk poliei<·s and st<1ndanls oft ion nml t liP <~pplil·nhll' n·g·ion;~l L'ntit~·; and 

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G:\CMTE\EC\15\EN\EP\CRBORD 17_01 .XML I Discussion Draft] 

(ii) <IllY Hl'gional TniiiSlllission Orga2 11 izH lion o1· Indqwndl'nt ~~·st en1 Operator 

3 "·ith operHt iowd OJ' fund iomd t·ontrol O\'l'l' 

4 t IH' bortkr-erossing f'Hl'ilit,\'. 

5 ( :i) Ex< 'Ll':-:Ioxs.-'l'ltis snbs\'d ion slwll not 

6 nppi)' to an~· <·onst 1'1H'tio11, l'OIInt'l't ion, OfH'nlt ion, or 

7 lll<lintcn<llll'l' of' a bonkr-<·l·ossillg l';l('ility l'or thl' im8 port or <'Xport of oil or llHtnrnl gns, or the tnms9 mission of eh•d rit·it~·-

I 0 (.\) if' tlH• hordl'r-t·mssiug fnvilit,Y is OJ WI'-

II ating· fm· stwh import, l'Xport, or trHnsmission 

12 Hs of t hl' date of' ('llildnwnt of' this • \d.; 

13 (B) if a fll'l'lllit dl'i-WI'ilwd in suhseetim1 (d) 

14 for the l'OJlst rndion, eoniH'l'l ion, OfH'I'ation, or 

15 lll<lint<'llillll'<' hm.; bel'n issued; or 

16 (C) if' m1 appli<·<ltion l'or 11 twrmit <ll'i-wrihed 

17 Ill snhs<•diou (d) for thP <'OJJstnwtion, l'OillH'<~-

18 t ion. OJlPr<ltion. or lllilill1<'ttall<'(' is Jll'!Hliug 011 

19 t]l(' dntP of' l'll<l('lllH'II1 of thi:-; Ad. lliJtil tlH· Par20 lie1· of--

21 ( i) the d<il (' on \l'ltit·.h sll(·h 11 ppli<·<ltiun 

22 is d<·nied; m· 

23 

24 

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( ii) [ 

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1. 
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G:\C:\1TF\EC\ 15\EN\EP\CRBORD 17 _OI.XML I Discussion Draft] 

(,\) .\PI'LH'AT!O:\ TO l'JW.JE<"I'S.-.\'otiling 

2 Ill this suhsec·tion or suhsc·l'tion (e) shall <d'fn·t 

3 tlw <tppli<·<ttion of <111~· otiH'l' Federal st<tlute to 

6 this snhse<'lion. 

7 (B) .\'.\Tl'lL\L <LIS .\<'T.-.\'otliing· 111 this 

9 qnirl'llH'llt to obtain appronil or authorization 

10 nnd<•r se<'liom; :l m1d 7 of the .\'atural Uas .\d 

11 f'ur I lie siting, <·onstrndion, or open II ion of any 

12 fn('i]it,\· to import o1· <·xport llHtnntl g<ls. 

13 (h) h!l'OHT.\TJ():\ ()!{ EX!'OHT.\TI< ):\ ( w .\'.\'ITIL\L 

14 (}.\s TO C.\:\.\ll.\ .\:\ll :\IEXH'o.-Sel'iioll :l(c·) of the .\'at15 nnd Gns .\C't (13 ('.S.C. 717b(l-)) is HllH'!Hled h~· <Hiding 

16 at till' Pud the following: "In the <·<tse of' nn <tpplil'<ttion 

17 for tIll' import iltion of nat nra 1 g·as from, m the· export.n lion 

I R of natunil g<ls to, ('an ada or ~kxil'o, the ('om mission slwll 

19 g'l'<lllt t ]!(• <tppJ il'H t.io!l not hit ('I' t hclll ;l() d<i,\'S H f't l'r the da \c• 

20 011 whi<·h the Connnission l'<'<'l'iws tlw <·ompldP appli('<l21 tion.''. 

22 ( l') TH.\:\S~l!SSIO:\ OF ELECTHW ]~:\EIW \' TO C.\:\-

23 ,\IL\ A:\ll ~[EXH'O.-

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G:\CMTE\EC\1 5\EN\EP\CRBORD !7_0l.XMI .1 Discussion Draft! 

(i 

5 (;\) STATE rm<;{'!SI'IO:'\S.-Sedion ~()~(f) 

6 of the i''nlnal Pmwr Ad (l(i P.S.('. W~tn(f)) 

7 is 1\lllClHkd !J~- striking- "insofnr <IS snell Slate 

8 l'<'g"lllatioll do!'s not l'lmf'lil·i \Yit h tlw l'Xl'!'('isP of 

9 till' ( 'onnuission 's pmn'l's mHkr m· rdat ing- to 

I 0 S\lhSl'diol! ~()~ ((' )''. 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

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EX('!L\:\m:.-S!'dion ()()~(h) of' tlw Pnbli<· Ptilit_,. H<'gnl;tiory Poli<'il's ,\d of 1 ~l7H ( 1 G C.S.C. 

finding·s n•q11irPd nuder sPetion ~0'2(e) of tlw 

t]n·ong·!J 11H• JH'l'iod Ht lhP ('!HI Hlld iiiS('I'fing· 

finds that th<' propmwd tn1!1SIIlission f;wilitil's 

pl,\· within Ow Cnitl'd St.;lles or 1Y<J11ld not imp('d(' or tl'JH1 to impl'dl' tit(' <·oordination iu tltt• 

publil' int l'rest. of t'm·ilitil's snb.it•d to the jurisdil'l ion of the Sn·r!'l nry.". 

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G:ICMTE\EC\1 5\EN\EP\CRBORD 17 _0 I.X\<1L !Discussion Draft] 

7 

(d) Xo l'HESI!lE:-\TL\L PElniiT HE<~r·rmw.-Xo 

2 Pn•silkntinljHTlllit (or similar JH'I"lllil) n·qnircd und!'r Ex3 l'l'llliw Ordl·r Xo. 1:3:\:l/ (:l l'.S.('. :301 note), Exl'<'ntiw 

4 OnllT .:\o. 11-1-:2:1 (:l t'.S.C. :lOl note), sl'dion :l()1 of titll' 

6 nt in• OrdcJ' .:\o. 1 O-tt\3, m· Hll,\' other Exl'l'lltiYl' onllT shall 

7 lw lll'l'l'Ssm·,\· for t lil' l'Ollstrul'l ion. l'Olllh'l'tion, OJH'r<ltion, 

8 or mainteml!Wl' of' <Ill oil or untunil g·as pipelinl' m· t'kl'tri<· 

9 transmission f<H·ilit,\·, m· any hordl'r-l'rossing l'nl'ilit.'· thereI 0 of'. 

12 l't'rtifil·ntt• of l'I'Ossing H!Hkr snhsl'l'lion (H), or permit dl'-

13 s<·rihed in snh:wdio11 (d), sh;tll hl' l'l'lJUirvd for <l nwdifil·n14 tion to15 ( 1) nn oil or natnnd gas pipelinl' m· elvdril' 

16 t1·ansmission f'<t<•ility tlwt is upl'nlling for tht• inqJOrt 

17 m· export of oil m· natural gas m· tiH• transmission 

19 (~) all oil or nntuntl g<ls pipvlinv or vll'dril· 

20 tnmsmission fneilit,Y l'or whil'h a pl'l"lllit lkseribed in 

21 :-mhsp('{ ion (d) has IH'l'll isstH'll; m· 

22 (:3) <t honkr-l·rossing f<wility for whil·h a l'l'ltifi23 l'Hll' of l'I'Ossing IHts pn·Yiousl,\· hn•n issued nndl•r 

24 suhsPetioll (<t). 

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G:\CMTE\EC\ I 5\EN\EP\CRBORD 17 _0 I <XML I Discussion Draft] 

(1) EFFI~( 'Tl\'E (a) 

2 tlmmgh (e), ii!Hl tlw <lllll'IHlnwnts nmde h.\' Slll'h snh3 sedions, shall taki• eff'ed 011 tlw dale that is 1 .wm· 

4 aftc1· tlw <httl' of' l'llill'tnwnt< of this .\d. 

7 shall9 of l'lladnwnt of' this ,\et, publish in tlH' Federal 

II l'HI'I',\' on! tlw applieabk n·qnin·nwiJb-; of snh12 sedion (a): and 

13 (B) not later thnn 1 ~-<'<II' a{'tel' the dntl' of' 

14 l'llitdnwnt of this .. \et, pnhlish in the FPlkntl 

16 l'l'l]llii'L'llH'IIts of' snhsel,tion (a). 

17 (g) DEI•'l\Tl'IO:\s.-ln this sed iouJ8 ( 1) t Jw 1l'l'lll "IJol'd<'l'-l'I'OSSillg· f;wiJity'' llll'HllS 

19 th<' port ion of' an oil or uatnr;d gns pipeline or l'le<·-

20 trit· tnlllsmission f';H·ility that is l<H'<ttl·d <It au intt•r21 untiowd hmuHlm·~- of' tlw {luitnl 81;t1vs; 

22 (:!) the t<'rm "modif'it·a1 ion" itwlndps n l't'wn:al 

24 tlo"· Yolnme, Hlhlition m· rl'mm·nl of' an intl'J'<'Oill1l'('-

25 tion, or <Ill ad.ins1ml'llt to mHintain f1m1· (sneh ns 11 

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G:\CV!TE\EC\ 15\EN\EP\CRBORDJ7 _OI.XML !Discussion Draft) 

n•duetiOil 01' illel'('<ISl' Ill thl' lllllllht•J' of IJU111p 01' 

2 ('OillJll'l'SSOl' st <li iOilS); 

3 (:i) thl' ll·rm "11<11nr<tl g<ts" has the nw<tmug 

5 (Li U.~.C. 717<~); 

6 (4) the> tl'rm "oil" IIH'mls petrolemn or H pt'tro7 lt•nm prodnd; 

8 (;)) 1lw 1Pl'llls "Eh·dri(' Ht•liHhility Organizal 0 those tt'l'lllS in seetiou ~ 1 :i of tlw Fnll'nd Pom'J' .\t·t 

II (Hi P.KC. H:2to); H!Hl 

12 ( (i) 1 hl' tt•rms "ludep<·ndt'llt ~.\·stt'lll Opt'l'<t1or'' 

13 ell HI "nt•giomtl Tn1!lsmissioll Oq.>,·a niz<ltion" lww thl' 

14 liH'Hiling·s giw'll those t<'l'lllS in set'lio11 :J of tlw Fl'd15 end Pm\'t'l' .\t·t (](i l'.S.('. 7!Hi). 

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1 LiT !I ( '() :\ U ]{ E ~~ 

1ST i-1ESSJ( I.\ H. R. 1538 

To mlH'JHI tlw F'Pdt•nd Power ..._\d 1o l'tJquirt• th(' Ft•dt•r;d E1wrgy Hq.!.·lllr!tory 

Colll!llissinn to lllillilllize iuf'rillg't'llll'llt oll tlH· PXPr('i~P <llld Plljoyn~t•nt 

or pl'OJH•r1y rlg!Jt.-.; in i,...;:-;uing lJydropo\\'('1' {j('\'llS('S1 il!HI for o1JH'I' !Jl!l'JlOSt'S. 

I:\ TilE IHWSE OF Imi'RESE:\'!Wl'IVI~S 

~LIIW!I 1.), ~() 17 

~lr. \:HWVITII Ifill' ilill~S<'!L :\lr. (LII(I(ETT, :\lr. Bi'TTEHJ.'ll,LD, ~!J·. :\It'LL!:\, 

nnd :\Irs. lLIHTZLI.;J{) ildl'Od!)('<'d tlw i'ollml·itlg· hill; wltieh mi' l'i'i'Pl'ri'd to 

tlH• ( 'mmnit leP on EtH'I'I2:,\' illld ( 'olllllli'J'('P 

A BILL 

To Hllll'!Hl the Fl'dentl Power "\et to n•qmre 1 he !<'(•dent! 

Eiwrg:· 1\q.>,lll<ttm·,,· Commission to minintizc inf'riJlg'('llll'1l1 

Oil j]](' ('XPI'<'iSt' Hlld PlljO~'Illl'llt of' j)I'Oj)L'l'l,\' rights Ill 

issuiug hy<lropoWPI' liet'J!Sl'S, nnd for othl'r plll'JlOSes. 

!Je if CJI!t!'/('d In; tile 8cnule unr! Ilouse I!F Ncpresenlu2 !ti'('S l!f'/flc { '11//('d 8/u{c.l' l!j'"IIIIC!'ll'll ill C'oii.IJ!'I'.\'.1' 11..\'S('II//;/cd, 

3 SECTION 1. SHORT TITLE. 

4 This .\d may lw t·itt>d as tlw ":-;npporting Ilomc 

5 Omtl'l' Hight s Eufm·('l'lltCJl1 .:\l't ". 

6 SEC. 2. HYDROPOWER LICENSES. 
257 


:2 

(1) by striking- "and" afkr "n'<'ITH1ional oppor2 tnnities,"; alHI 

3 (:2) by inserting", <111d minimizing inl'l·illgvmcnt 

4 on the nsPfnl l'Xl'n·ise and <'lljo~·ment of property 

5 rights h<>ld h.v nmili<'<'llSl'Ps" Hf'll'r ''nspeds of Pnvi6 rolll!Wlllal <J1Hilit~·". 

7 (b) l'Hl\',\TE !J.\:-\DO\\';\EW-)Ill!'.-!:·kdion 10 of thl' 

8 FPdPr<ll l'm\'l'r /v·t ( 1 () 1 '.t-l.C. ~O:l) is Hlll<'IHkd9 (1) in snhs<'<·tion (<1)(1), h~· inserting·", ill(•lml1 0 !llg minimizing inl'ringenwut on thl' nsl'f'nl PX<'l'l'isr• 

11 Hlld enjoyment o!' prOpl•rt~· rights held ll,\' 11011-

12 li<·enseps'' aftpr "ser·tim1 -He)''; ;md 

13 (:2) by <Hiding at the <•nd the following: 

14 "(k) Pmr.\TE L.\:-\IHl\Y:-\EI\:-illll'.-In dewloping any 

15 rnTeatiomd n·soun·<· within tlw projeet boundar,\', the li16 l'l'IISPl' shnlJ l'OilSidr•r ]ll'iYa((• ]HIH]O\\'lll'I'Ship iiS a llH'<lnS to 

17 Z'JH·om·ag·v and f'w·ilit<1tr•-~ 

18 

19 

"( 1) pri\'<tte inwstml'nt; and 

"(:2) inl'reased tonrism and n'l'l't'atiollal use.". 

() 

•HR 1538 IH 
258 


] 1.-JT!l ('();\(lJ{E~~ 

J c-iT ~ENS!< 1.\ H.R.446 

To ('Xl('!!d t lH· dt•nd!iJ){' for ('()Jl!lll\'lH't'lllPll1 or ('01JS11'll<'f ion of (l l!ydroel('('1l'i(• 

1'1'<\jCi'i. 

I:\ TilE IIOll~E OF HEI'HE~E:\'I'ATI\'I<JS 

.J.\:\1'.\J:Y 11, ~()17 

:\]1'. <iJOFI•'ITII introdlH't'd til<' foJJo\\·illg bill; wilii'il \\'<IS ref't'l'l't'd to tli<• 

( ~OJlllllit1t'l' 011 EllPl'f.!Y nnd ( jmumPJT1' 

A BILL 

To l'Xtl'lHl thP dl'<Hllirw for l'OJ!l!IH'IH'<'IIH'llt of' l'Oilstru\'tion 

of a lr,nlrol'll'l'l ri<· projt•d. 

Be if enuded I!.IJ 1111' 8enulc and Ilr11rse r(f Rcprcsento2 /ins()( /he ['niter! 8/a/cs o(',·llllcri('(( in CollrJI'!'ss asscnllilcrl, 

3 SECTION 1. EXTENSION. 

4 (n) I:\ UE:\EH.\1..-:\ot\\·ithstmrding- tlw time pl'riod 

6 1'.~.C. N()(i) lltnl would otlwrwi:w npply to tlw Fl'deral En8 Cormnission lllH,\', nt tlw request of' tlw lic:PIISl'l' f(Jr tlw 

9 pmjeet, ;md ;dh•r !'l'asouahle notit·l'. in <lt'I'OI'dmwl' with 

10 the good fnitlr. dtw dilig-enl'l'. and pnhli1· intl'rl'st n•qnin•-
259 


uwnt:-: of th<t1 se<·tion nnd Ow Commission's pt·o<·Pdnrps 

2 nuder tltnt sedion, extend tlw time pl'riod during whi<~h 

3 the li<·l'llS<'C' is r<'qnired to <·onmwtwe thl' eonslnwtiotl of 

4 t lw projc•<·t for np to :l <'OilS('t<nl iw :2-ye;n· periods from 

5 th(' dat(' of the <'Xpir<ttiott of thl' exil'nsion origimlll~· issned 

6 b~·the ( 'ommission. 

7 (b) 1\El\';-i'J\\TE~!E\'T OP EXPIHED LWE\';-iE.--If' the 

8 period r<·qnirl'd for <'OillllH'LH'l'llll'llt of' <·otJstntdiou of the 

9 projeet d<'Sl'l'ilH'd in snhscdion (a) lms <'xpired prior to tltl' 

10 dale of the <'ttiletnwnt of' this "\et, the Commission ma,\' 

II reinsta{(· the li<'l'llSP for llH' prqjPl't l'ffel'l iw as of' tlH• dat<· 

12 of' its l'Xpinlt ion <tnd th<· first extl'nsion <tnthorized nnd<'r 

13 snhseetion (n) c;lwll take effed on tlw lbttc· of sueh <'Xpira14 tion. 

0 

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I J:iTTI ( '() :\ (i J( E ::-;:-; 

] c;T :-lENS !OX H.R.447 To l'X11'lld 1lH· l!ew!liHP for {'Olllllll'lll't'llh'llt of' ('OIJS\J'ttdion of 11 ll,\·dro!'!(•\'tl'i(' 

projP<'I. 

,J.\:--:1'.\HY 11, ~017 

:\I l'. ( iHIFFITII iut mdut'i'd I ill' l"ollull'illg !Jill; ll'ilic·il \1'<1' l'l'i"PlT!'d lu I ill' 

( \ommittP(' 011 Ent•q..!,,y illld ( \HllllH'r('(' 

A BILL 

To l'Xte!ld thl' dl'<llllint• for <'OlllllH'IH'l'lll<'lll of' t•onsti'UC'lion 

of' <1 h,l·drol'kdri<· pmj<'l't. 

Be if elllt!'!ed In; 1ft!' 8cuu/e (II/({ llo11se !!f' He]Jnscn/a3 SECTION 1. EXTENSION. 

4 (n) 1:\ OE:\EIL\L.-:\otwithstn!Hiillg tlw tinw pl'riod 

6 JTS.C. SOG) that wonld otherwise <tppl,\· to the FP<lentl En7 l'J'i~~· H<•gnlator.'· Commission project lllllllhl'l'l'd 127 -W, thl' 

8 Commission ma,,·, at th<' l'<'lJlll'St of thP lil'l'l!Sl'<' f'or tlw 

9 ]l!'Ojl•l't, <llld <tf'tl'l' l'l'<lSOll<thJe l!Olil'l', ill <H'l'OI'lhlll'l' with 

10 tlw good f<litli, rhw dilig<'JW<', and pnhli<· intl'rl'st rl'qnin·-
261 


nwnts of' tlwt spc·tion <111(1 tlw Commission's pnwnlnn•s 

2 1mdc•r t lnll sPl'l ion, PXtl'nd the time period during whir· II 

3 tlw lir·ensPC' is required to c·o!ltllH'tH'e tlw l'Ollstnwtion of' 

4 tlH• projel'l f'or up to :l <'OJIS\'l'lltiw :2-.wm· 1wriods front 

5 tlw datl' ol' tlH• l'xpiration of tltl' l'Xll'llsiou origiwdly issm•d 

6 h,,. the Commission. 

7 (h) REI:\STATIDIW\'1' OF I~XJ>IIiED Lll'E:\SE.--11' tlw 

8 }H'l'iod reqnir('(] for l'OI1lllH'lll'l'lllCllt of' l'OIJstnH't i011 of thr· 

9 projed des<·rilw<1 in snbs<·<·tion (a) has expired prior to tlw 

10 d<ll<• of til(' l'II<H'lnwnt of' this }cl'l. the ('ommissioll 111<1,\' 

II reinstall' til\' liel'US(' f'or tlw p1·ojel'l l'f'fediw as of tlw datr· 

12 of' its expirat io11 <\]](] the first extension ;mtlwri;.:c•d undl'r 

13 snbsedioll (n) shall tnkr• d'fed on tlw tlnte of :-:ueh expirn14 tioll. 

0 

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G IM\15\MCKINL\MCKINL_037.XML 

115nr CONGRESS 

1ST SESSION 

(Original Signature ot' .JriemlK~t·) 

H. R. 2IZ 't 

To rcinstntc and extend tho deadline for eommelH~cmcmt of eonstnwtion of 

a hyclroclcctric project involving' ,Jenning;; Hanclolph Dam. 

IN THE HOUSE OF REPRF1SENTATIVES 

Mr. J\[cKINLEY iutrorhwced tho following bill; whieh was refcnwl to the 

Committee on ___ _ 

A BILL 

'l'o rC'instate and extend the dcadlirw for eommenecment of 

construction of a hydroelectrie project involving Jenning·s 

Randolph Dam. 

Be ·ir cnactrxi by the Se·nate and Jlrmse rd' Repn;senta2 t·ives r~j' the Un·ited States ofAmeTica ·in Congress assembled, 

3 SECTION 1. REINSTATEMENT AND EXTENSION OF TIME 

4 FOR A FEDERAL ENERGY REGULATORY COM5 MISSION PROJECT INVOLVING JENNINGS 

6 RANDOLPH DAM. 

7 (a) EXTE:\'SION OF TIIvrE.-Notwithstanding the time 

8 pt)riod speeified in sedion 13 of the Federal Power Aet 

g:\VHLC\042517\042517.009.xml 

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G:IM\l5\MCKINL\MCKINL_037.XML 

2 

(lG U.S.C. R06) that would otherwise apply to the l~ederal 

2 Energy Regulatory Commission projeet numbered 12715 

3 (referred to in this section as the "project"), the Federal 

4 EnergyJ{\\?;Ulatory Commission (referred to in this seetim1 t ' \· ! ....... 

5 as the )'CQJ11~:ni<~ion") may, at the reqncst of the lieem;ee 

6 for the prnjc:ct, and after reasonable notice, in accordance 

7 with the g'tJod f'a.ith, dne dilig<mee, and pnlJlil~ interest n'-

8 quiremcmts of, and the procedures of the Commission 

9 under, that section, extend the time period cluring which 

10 the licensee is required to cmmmcncc the construction of 

11 the project for uot morn than 3 eonsecutiYe 2-year periods 

12 that begin on the date of the expiration of the extension 

13 originally immed by the Commi.s.sion. 

15 the licensee for the project fol' the payment of annual 

16 charges under scc~tion IO(c) of the Federal Power Aet (16 

17 U.S.C. 803(e)) shall eorrnnence on thu expiration of thu 

18 time period to eomrnence constmction of the project, as 

19 c~xtendecl by the Commission unclc;r subsec~tion (a). 

20 (e) H,EINSTATEtlmNT OF EXPmED l;ICRNSR.-

21 (1) IN GE:\EH .. Ii.L.-lf the period required for 

22 the eornrnrmeement of eonstruetion of the projeet has 

23 expired before the dCI.te of enactment of this Act, tlw 

24 Comrnission may reinstate the lic;ense cffeetivc as of 

25 the elate of the expiration of the lieense. 

g:\VHLC\042517\042517.009.xml 

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G :\M\ l5\MCKINL\MCKINL_037 .XML 

3 

1 (2) EXTENSION.-If the Commission rt~insi.atcs 

2 i.h~ lieenst~ under paragntph ( 1), the first extension 

3 authorized under subsection (a) shall take effect on 

4 the date of the expiration of the li~ense. 

g:\VHLC\042517\042517,009,xml (65835811) 

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G:\CMTE\EC\15\EN\EP\FPA\HYDR017 .OIXW:iscussion Draftj 

[DISCUSSION DRAFT] 

115TII CO:\Ul{ES~ 

1sT SE,"'IO.'\ H.R. 

I:'\ TilE IIOn·\E OF HEPRESE:'\TNl'I\'ER 

:\I . ________ illtrodur•,•d the followillg· hill: whieh \\'ilS ref(•rred to the 

Committee 011 

A BILL 

'l'o modernizt> hydropmn•r polie~-, and for otlwr Jmrposes. 

Be it e1wded hy the Senate and Jlouse qj' Hrpresenla2 tiN'S rd' the {.'n iled Stales r![Amerim in Conyress ussemblerl, 

3 SECTION 1. SHORT TITLE. 

6 SEC. 2. HYDROPOWER REGULATORY IMPROVEMENTS. 

7 (a) SE'\SE m· CO'\(JHJ~ss O'\ TilE C:-m OF IlYDHO8 1'0\YER RE'\EI\'ABLE HEs<rCHCEN.-It is the• sense of Con9 gn•ss thatG:iVHLC\032317\032317.117.xml 

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G:\CMTE\EC\15\EN\EP\FPA \HYDRO 17 _0 l.Xl-lliscussion Draft! 

( 1) h~·dropmnT is a l'l'1W\\'Hbk n•som·c·e for pnr2 posl'S of all Federal p1·ognnm; all(] is nn essential 

4 (:2) tlw United Stnks should iuen·ase snhstan5 tially the l'apacit~· and generation of dean, t'l'lW\Yahle 

6 h~·dropOII'Cl' l'('SOUJ'('('S that mm!d itn}ll'OYC CllYli'Oll7 mental quality in tlw 1'nited Stntes. 

9 E.'\EIWY TO l.'\CLrilE ll YDWlT'O\YEH.-Section 203 of the 

10 I<J1wrg7>' Polie~· Aet or 2003 (-1:2 U.S.C. 15832) is amend12 (1) in snbst>etion (a), by striking "the following 

13 ctlll0111lts'' and nil that follows tht·<mgh parngrnph (:l) 

14 and inserting "not less than 13 JWrCl'llt in fiscal ~·ear 

16 <1 ble e1wrgy." ; HlH 1 

17 (2) in subsedion (h), b~· strikiug paragraph (2) 

18 awl inserting the following: 

19 "(:2) HE.'\E\Y.\BLB E.'\EIWY.-Tlw term 'rene\ I'-

20 able l'tll'rgy' uwans l'lH'l'g7>' prodneed from solar, 

21 \YilHl, hiomnss, hnHlfill gm;, Ol'l'Htt (iul'lnding tidal, 

22 wave, ('\ll'l'l~llt, nud thermal), gl:otltermnl, tmmieipal 

23 solid waste, OJ' !tydropm\Tl'. ". 

25 era! Pmn·1· ~'let (l(j lT.S.C'. 79(')) is <1tnl'tHledG:\VHLC\0323i7\0323i7.117.xml 

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G:\CMTE\EC\l5\EN\EP\FPA\HYDROI7 ~ OI.X!I}iscussion Draft] 

:l 

(1) in sub:-;eetion (a), b~, striking "three" <1!1(1 

2 inserting "4c"; and 

3 (:Z) by amen cling :·mhsPdion (b) to read a:-; f'ol5 "(b) TlH• Commis:-;ion mn~--

6 "(1) extend the JWriod of a wdiminnry JH'nnit 

7 OJW<' for not lllOI't' tli<Hl 4 additional ~-cm·s beyond 

8 tlw ..J. ~-ear:-; ]Wrmitted h~- snbseetiou (a) if the Com9 mission finds that tlw JWI'lllittc>c lws <·aJTied ont ae10 iiYitit•s nncler sueh permit in good faith HJH 1 with 

11 n'asmmhlt' diligen<·<'; and 

12 "(2) if the period of a prdiminnry permit is ex13 telllkd under pnrngraph (1), extt•ud the period of 

14 sm·h prelimimn·~- permit mwe for not more than 4 

15 <Hltlitional ye<Jrs hcyoucl the extension perio<l granted 

16 n!llkr parHgTaph (1 ), if the Commission <letermines 

17 1 hat tlH're are <'xtraonlimu·~- ('irenmstanePs that war18 nlllt sn<·h n<l<litioual extension.". 

19 (ll) Tnm LDJJT FOH Co:\'~THlTTIO:\' OF Pno.TE<'T 

20 \YOIU\~.-Seetion] :] of the Federal l'mn•r ~\et (l(i U.S.C. 

21 1'\()()) is <lllll'lllll•d in tlw seemHl sentl'lll'l' by striking "onee 

22 but not Ionge!' iltan hm additional years" and inserting 

23 "for not mm·e than 8 additional yt>m·s,". 

24 (l~) LICE:\'SE TEH:\I.-Sec•tion Li(e) of tlw Federal 

25 I'mn•r >\et (1 (j P.S.C. ROR(c')) is ame1HledG:IVHLC\032317\032317.117.xml 

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G:\CMTE\EC\ 15\EN\EP\FPA \HYDRO 17 _0 I.X~Discussion Draft] 

(1) b~· striking· "(c) Execpt" i\ll(] inset'liJig the 

2 following: 

5 (:2) b,,. adding <It the end the following: 

6 "(:2) Co:.::-nnEnxrro:-: .-In clct enni11ing the 

7 tl:rm of a liecnSl' nndcr paragraph (1), the Commis8 sion shall eom:iclcr pmjec:t-i·elated i11wstuu:J1ts hy lhr 

9 lic·c•ns<>c• owr the term of the existing lie<>nse (hwlml10 ing an~· tenns nndl'I' mmnal liernses) that I'csnltel1 

II in lll'W dcTelopmeni, c·cmstnwtion, c·apaeit,\·, l'ffi12 tienc·~- impl'OVl'llWlltS, 0!' ('ll\'irOllllH'Jlta) l!H'HK1J]'('S, 

13 lmt whic·h did not result in tlw Pxtension of the tl'l'lll 

14 of the lic·c~use b,Y the Commission.". 

15 (f) .ALTE!l:\ATIYE CO:\IliTIO:\S X'\D PHERCH!l'-

16 TIO:\R.-::-ledion :n of the Federal Power Aet (Hi r.R.C. 

l7 R:2:~d) is amc'JHkd18 

19 

20 

21 

22 

23 

24 

25 

G:\VHLC\032317\032317.117.xml 

March 23, 2017 (2:26p.m.) 

( 1) i11 snhscl'l im1 ( <l )-

(.;\) iu panlg'l·aph (1), b~- striking "del'lns" 

and inserting "determines''; 

(B) in parngraph (:2)(B), m the mattet· 

pn'l:c•ding dm1se (i), by inserting· "determined 

(C) by striking paragraph (4); am1 

(D) by striking paragraph(;)); 

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G:\CMTE\EC\ I 5\EN\EP\FPA \HYDRO 17_0 I X~Dlscussion Draft] 

5 

(:2) in snbseetion 

2 (1\) b~' striking paragraph (4); and 

3 (B) h~' strikillg paragraph (5); and 

4 (>l) by adding at ilw l'IHl the followin[.;: 

5 "(e) Fnnmm Co'\DITI0'\:-1.--TlJis scetion applir;s to 

6 any fnrther l'<mditions m· pn'seriptions proposed or 1m7 posed JH1l'snnnt to :wetion 4(<'), 6, or 11\.". 

8 SEC. 3. HYDROPOWER LICENSING AND PROCESS IMPROVE9 MENTS. 

11 PIW\'E:.m;'\T:-1.-Part I of the Fl'den!l Pom'I' Act (Hi 

12 U.S.C'. 79:2 l't sPq.) is ametHled b)' <Hiding nt the end tlw 

13 folhl\Ying·: 

14 "SEC. 34. HYDROPOWER LICENSING AND PROCESS IM15 PROVEMENTS. 

16 "(a) DEF'I'\ITIO'\.-In t!Jis section, the ternt 'Federal 

17 antlwrizntion'-

18 "(l) nwaus nny authorization required nnder 

I 9 Felkral !mY with n'spel't to HIJ npplieation for a li20 censl', lirl'nSl' <lllW!Hlnwnt, or exemption niHkr this 

21 part; al!ll 

22 "(2) inC'l\Hles an.'' permits, spel'ial nse author23 izations, eertifieations, opinions, or other approvals 

24 as mH)' br required niHler F'edcrnl law to approw m· 

G:\VHLC\032317\032317.117.xml 

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G:\CMTE\EC\15\EN\EP\PPA\1-IYDRO 17 __ 01.XW1scussion Draft] 

implement the lic-ense, lieense <lmendment, or exemp2 tion under this pm't. 

3 "(h) DENHL'\,\Tio~ .\N LK\D Am:~cY.-

4 "(1) r:--.: (}E~EIL\L.-Thc Commission shc1ll net 

5 ns the k<Hl nge1w~· for the pmposes of eoonlinating 

6 nil applieahh· l<'edernl anthorizatiow; and for the 

7 Jmrposes of eompl~·ing with the Xntional J<Jm·iron8 nwntnl Polie~- ~\('!of 1 ~)()() (42 U.S.C. 4:321 et seq.). 

9 "(2) 0TIIEH ,\()]{~('lEN A~D 1\:llL\\: TIUBES.-

11 nwl hwnl goYernnWJlt ag<•m·~- and Indi<m tribe 

12 <·onsidtTing- an H~->Jl<'<'t of an <lppliention for· PPd13 l'ral <1uthorizntion shall <~oonlinate with the 

14 Commission nnd <'ompl~- with tlH' dendline <~s15 tnblished in t lw sdwdnle <ll'wloped for the 

16 projl'l't in 1H'<'Ordane<' with the rnle issned b~-

17 tlw Commissionnnd<•r snhseetion (e). 

19 shall identif~-. as earl,\· ns pradienble <lf'ter it is 

20 notified lJ~' tlw applil'nnt of n wojeet m· faeilit~-

21 rcqniriug Commission aetion mHll'r this part, 

22 Hll~' F'edl'ral or Stnt e age11ey, lol'al gownmH•nt, 

23 m· llJ(lim1 tribe that ma~- eonsider au aspeet of 

24 an applieHtion fm· a 1<\,deral anthori:o<1tion. 

25 "(C) XoTIFH'ATHJ~.-

G:\VHLC\032317\032317.117.xml 

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G:\CMTE\EC\1 5\EN\EP\FPA \HYDRO 17 _0 I.X~lliscussion Draft] 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

G:\VHLC\032317\032317.117.xml 

March 23, 2017 (2:26 p.m.) 

7 

"(i) I:-;- u E:\E1UL.-'l'he Commission 

identified under subparagraph (B) of t]H• 

Oj)]lot'lnnity to part ieipatc in the proeess of 

n•Yiewiug au aspeet of <Ill applieation for n 

Feckral <mthorizntion. 

"(ii) DE.\llLI:\E.-Eael! agc•1wy nud 

lndinn tribe n•n•iyiug a uotiec nuder elanse 

(i) slwll snbmit a n•spom:e nekmnYh•clging 

n•c·eipt of the notic·p to the Commissiou 

within :)() da,n; of reeeipt of snell notiel' 

nml req1wst. 

"(D) Is;.n:E IDE:\Tfi<'ICATIO:\ A:\D HESOTXTIO:\,-

"(i) lDE:\TfFH'ATIO:\ OF ISS!'I~S.-

eies nud Indian tribes that IH<l,\' l'Om:i<ler 

an aspeet of mt applil•ntion for l<'clleral auihorizat.ion shall ilkntit>·, as <'al'l)· a;; possibk, and shan• with th<• Commissiou awl 

the applic·ant, an;;· issnc~o; of emwer11 identifiPd during the JH'!Hlcuey of the Commissim1's aetion nuder tltif: part relating to 

or preYellt the• granting of sn~h anthoriza-

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G:\CMTE\EC\15\EN\EP\FPA\HYDROJ7 _0 I .XM)jscussion Draft] 

2 

3 

4 

5 

6 

7 

8 

9 

IO 

11 

12 

13 

14 

15 

16 

17 

18 

tio11, inelmling· auy issues that may prcwut 

the Hg'l'HC~' or lwlinn tribe from meeting 

the selwdnll' estnblislwd for the projeet in 

a(;eonlnm·t~ with the mk issned h? the 

Commissim1 nuder snbseetion (e). 

"(ii) Is;-;n~ 1\F:SOIXTIOX.-Thc Commission !11<1,\' fmwanl any i~:>SlH' of concern 

ilkntified nmkr elnm;e (i) to the heads of 

(inelndiug, in tlw ease of seheduling t•onl'('l'llS identified b~, a State or loeal goYemmellt ageney or Indian tribl~, the Ji'pderal 

m· the Seen·tary of' tlw Interior with l'l'-

ganl to sehellnl ing eolwems irlentifind b.'· 

nn Indian tribe) for resolution. The Comenter into n memornnrlum of uudcr19 standing to fneilitate intcragem',\' eoonlinn20 tion and resolution of S\Wh issnes of eou21 et~rn, ns appropriate. 

22 "(e) SCIIEDru:.-

23 "( 1) CO:\l:\IISSIOX m:u::\IAKI::-\0 TO BSTMsLISII 

24 I'HOCE:-4:-4 TO :-4BT ;-;CIIE!WLB.-\Yithin 180 dn~'S of 

25 the• date of C'lWetml'nt of this sectim1 thl' CommisG:\VHLC\032317\032317.117.xml 

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C:\CMTE\EC\15\EN\EP\FPA\HYDRO 17 ~Ol.XWiscussion Draft! 

SHill sh;d I, in c·onsnlt at im 1 with the 11 ppmpri<lt c• Ft'd2 era] agPtH'IC'S, 1:-:snc• a rnk. n!'tl'r proYidinp; for notic·c· 

3 1111d pnlJii<· c·mnmc'JJ(, c•si<lhlishing· a proc·c•ss for sd4 ting 11 :whl'dnlc· follo\\'ing the filing of HI! <!pplic·Htion 

5 \liHkr this part for the• reYie\\' ii!Jd disposition of 

6 l'<ll'h Federal ;mtlwrizntion. 

8 issning a mk IIIHkr this snhsl'c·tion. the ( 'ommission 

I 0 tlwrizat ion12 "(i) <Ill,\' Federal or :-:tntc· Hg·c·nc·,,·, loc·nl 

13 g"O\'l'l'lllll<'Jii, or Indi<lll tribe thnt mny eon14 sidc•r <Ill <ISJWC'l of 1111 applic·11tion for the 

15 Fedl'ral 11nthorizntion; 

16 ''(ii) the <1pplie11nt; 

17 "(iii) the Commission; aud 

18 

19 

20 

21 

22 

23 

24 

25 

G\VHLC\032317\032317.1 17.xml 

March 23, 2017 (2:26p.m.) 

"(i,·) otlwr pHrtieip;l!lts 111 n pm-

<'<'<'ding; 

"(B) is ckwloped in c•onsHltntion with tlw 

npplic·ant nnd ;my ng'l'llC',\' 11nd Inclinn tribe thnt 

submits a l'C'SJlO!lS(' lllldl't' sn hsl'c·tion 

(h)(:2)(C)(iil; 

"(C) proYides an opportm1it,1' for an.'· Fedend or NtHtl' ngc•Jwy, loc·al gm·eni!IH'llt., m· In-

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G:\CMTE\EC\ 15\EN\EP\FPA \llYDRO 17 _0 1 XtDiscussion Draft I 

2 

3 

4 

5 

6 

7 

9 

10 

II 

12 

10 

dian trilH· tlmt Ill<!~' <·onsi<lcr <lll <!speet of <Ill 

tion to i<kntif:y nnd resohT issues of' <'OJH'l'l"ll, as 

prm·idr·d in snb:-;el·iioll (h)(:!)(D); 

''(D) (•Oinplies "·ith applil·ahlP :-wlte(lnles r•s-

" (E) l'llSlll\'s expeditions l'Olll pll'tion of <ill 

lmr, to tlw l~xtent pradil·nble; awl 

"(F) f<wilitatl's <·ompll'tion of l•'ederal and 

pnwedm·ps reqnirl'd prior io, 01' eOJH'lliT<'Il( 

13 with, tlH• prepnn1tion of tiH• ('ommission's l'llYi14 J'Ollllll'lli<d dol'nnwnt n·qnired uude1· thl' Xn16 F~.C. -t:~:!l l'1 Sl'(j.). 

19 lilTWi(', lir·ensr· Hllll'tl<lt!H'Ilt, or l'Xl'lllptiou nnd<•r this 

20 p;u·t, tl1e Conl!llis.~ion sltnll r·.~tahlish <I sl'lwdn](• in 

21 <ll'<·onlatt('(' with the 1'1lh· issnl'd h:· the Comtnissiotl 

22 nndl'l' suhset·t ion (<·). Tlw Commission shnll pnblil~l.'· 

23 notivl' awl ti'ili!Sillit thl' f'imd svltPdnll' to the Hppli24 l'HIIi Hllll <'<Wit ageney H!Hl Ill(lian trilH• idl•ntifil'd 

25 nnder snhsl'<·tion (h)(:!)(B). 

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4 thl' Coilllllission within :w d<t,\'S. 

5 "(t') ~\lll!EHE:\TE TO S<'lfEIH'LE.--·.\11 <lppli<·<mts, 

6 other 1 it·t·usi ng· pal'l il'i]l<illt s, and ag·l'IH'ies mH 1 t rilles c·ou7 sidvring· <Ill asJWd of <Ill applil·<ltion for <1 Ferknd nnthor9 estnblishPd pms1Ulltt to snhsediou (d)(1 ). 

10 " (I') "\l'PLH ',\TIO:'\ Pw H 'E:-lf;J:'\<; .-The ( 'mnmission, 

11 Ft•dcnd, Stnk, and lo<'<il gownmwtt1 ngeneies. HlHl lwlinn 

12 tribes Ill H.\' <1llmr an applil'nnt. s('eking a Fed end ant horizn14 <11-'.'l'IIl',\' or tribe to ;Jssist in reviewing· tlw applil'ation. ~\II 

16 funding· h,Y t lie npplit·nllt, iiwlmling nll eosts ass<winted 

17 \\'ith tlt<' third pnrt~· t·mttraetor, slwll not lw l'OJisidl•red 

18 eosts of the 1'nited Stnt<·s for thl' ndministrHtion of this 

19 pm·t lltHl('l' sl'dion 10(l'). 

20 "(g) CmDnssiO:\' l{ECO.\L\IE:\'D.\'l'!o:\' O:\' Neon: OF 

21 E:\'\'IHO:\':IfE:\'TAL HE\'IEW.-For till' JHli'JHlS<'S of <·oordi23 mission shall l'Ollsnlt wilh nnd lll<lk<' <1 n'<'OlllllH'!Hlatiou 

25 suhsedion (d) 011 the 1-WOJH' of thl' l'llYirmmH'Iltal n•,·iew 

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for all F\•det'i\1 nuthm'izatiom; l'm· sueh pl·ojcc:t. Ecwh Fed3 sideration and ma.'' giw deference• to the Commissiou's 

4 rec·ommemlatious, to the extl'Jlt nppropriiltc under 11\•clenll 

5 hm. 

7 " ( 1) ~\.Pl'LWATIOC\.-A Fecll•ntl, Statl', or loeal 

8 gownmwnt ageney m· Indian tribe that is unable to 

9 eompkte its disposition of a Fedc•ral authm·ization 

10 b~- tlw deadline set forth in the sc·lwdule establislwd 

11 under snhseetiou (d)(l) shall, not later thau :w <l<I~•s 

12 prior to sneh deadline, file for an extensiou with tlw 

13 Commis;;ion. 

14 "(~) Exn:;-;:..;IOC\.-Tlw Commission shall oul.Y 

15 grm1t an extension under paragraph (1) if tlw agcu16 e~- or trilw demom;tratc;;, lmsed on the n•c•onlmaiu17 taitH•d under snbscdion (i), that l'Ompl~·ing with the 

18 selwclulc• estnblished mHkr snhsedion (d)(1) 1nmld 

19 prewnt the Hgl'Jle~' or tribe from eomp]_,,ing- with ap20 plil:ablc F'ecleral or State law. If the Commission 

21 grants the cxll'nsiou, the Commission sludl sl't. n rcn22 sonahle sc:hcclnk and <k<Hllinc, that is not later than 

23 !)() <hl~-s nftl'r the tkmlline set forth iu the· selw<lnle 

24 established mHkr snbscdion (d)(l ), for the ag-cney 

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m· tt·ilw to <'Omplete its disposition of the Federal 

2 antlwrization. 

3 "(i) Co:;~ounxrrm JlEr'ORD.-Tlw Commission 

4 slwll, with the <'oop<Tation of Fedprnl, State, aurl lcwnl 

5 g-m·ermm•nt ngc•ueies nnd lndinn t1·ihes, mniutain a c•om6 plete <'onsolidatecl l'ec·ord of all dc•eisiom; ma<le or nl't.iom; 

7 taken by ilw Commission OJ' b~- n l•'edernl administratiw 

8 ngeney m· offieet· (or State or ]o('al gowrm1wnt ag'C'lW~- m· 

9 offiecr m· Indian tribl' a~::ting nnder deleg·ated FPckral au10 thorit~·) with J'c•speet to any FPdcral authorization. Sndt 

II t·ceonl shnll eonstitnte th<' rec:ord for judieial n•Yi<•w mHler 

12 scetiou ;n:J(b). 

13 "SEC. 35. TRIAL-TYPE HEARINGS. 

14 "(n) DEPI:\'ITIO:\' OF CoYmmn :\IEAsnm.-In this 

15 seet.ion, the tl'l'lll 'l:o\'\'l'l'Clnw<JS111'<'' means16 " ( 1) a eolHlition determined to be neeec;s<1t'~' 

17 mHler s<•vtion -±(e), iududing- <111 nltemntiw eonclition 

18 jll'Opmwd undc•r sc•etion :1:1(a); 

19 ''(~) fislnnt~'N pt·eserilwcl nuder scetion 18, in20 dn<ling· an aliPl'mttiw pn•s<'I'iptiou Jn·oposed uncler 

21 section :n(b); or 

22 '· ( ~n an~' f\n·tlwr eondition pun:mmt to s<~l·iion 

23 4(<-), 6. or lH. 

24 "(h) "\t'TIIOHIZNfTO:\' (W TIUAL-TYPE IlEAH!:\'().-

25 'l'he li<·eus\' applieant (indn<ling an applieant for a lieense 

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1-+ 

nnde1· SC'l'tion 15) and illl,\' pm't~' to the proeceding shall 

2 be entith'd to a lktcnnination 011 the n•eord, aftt'l' oppor3 tnnit~· for a trial-t)'Jll~ hearing of not mon· than 120 tin)·,.,, 

4 oll HI!~' dispnted issm·s of' material faet 1\·ith respect to an 

5 npplieabk eowred nwmmn•. 

7 trial-type' hearing nuder this sel'tion slwll be' submitted not 

8 Inter than 60 da~·s aftl'l' the date on whieh, a'l app\i(•able9 " ( 1) tlw 8l'eretm·~, determiHes the l'onditioJJ 

10 m•eessm·~· nndl'l' Sl~l'l ion -+(e) or pn•seription nndt•r 

11 seetioH 18; or 

12 "(2)("\) the Con11nission publishes notite of the 

13 intc•ntion to use the' resetTcd authority of the Com14 mission to order a further t01H1itioH mH1er seetion G; 

15 ()]' 

17 nndt•J' the litemw to presl'ribe, submit, or J'l'Yis(~ em~· 

18 t·ondition to a lil'ense under the first proYiso of see19 tiou -+(e) or fislnnt:v preserilwd untlt•r seetion 18, as 

20 H]l]ll'OJn·iate. 

21 "(tl) Xo HE<~nHE)!E:\'T TO ExrL\n-:T.-13~, c•keting 

22 not to request n trial-t.'lll' hearing nnder snbseetion ( (~.), 

23 a lieeHse applieant awl mt~' other party to a lieense pro24 eeelling· sh<dl not be eonsidered to haw waiwd the right 

25 of tlw appliermt or otlH'J' part,v to raise Hll)' issue of fad 

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13 

or law in a JJOn-trinl-t,lllP ]H'o<·e<·ding, lmt no issue may 

2 lw mised for the first tinw on rehearing or jmlieial re\iPw 

3 oft lw li<·ens(' deeision of tlw Commission. 

4 ''(c) ~\mii:\IST!lATTI'E LX\Y .JCD(:E.--All disputed 

5 issnes of mnterial fa<'t rais<·d h,1· a party in a request for 

6 a trial-t,llll' !waring submitted umh•r :mbst•dion (e) shall 

7 be det<•rminecl in a single trial-t,11W hParing to be eon8 dnded by an "\dministrat.iw Lmv .Jndgc -within tlH~ Offiee 

9 of Administratiw Law .Jndges nml Dispnte !{<'solution of 

10 the Commission, iu <W<,onlmJe<' with the Commission rules 

11 of pnwtiec and pnl<'l'(lun• nuder JlHl't :lH;) of title 18, Code 

12 of P(•deral l{pgnlntions (or s\w<·essor rcg11h1tion::;), all(] 

13 \\'it hin the timefnmw est<lblislwd b:· the Commission for 

14 <'<H•h liccns<' Jn·oceeding (induding a pro<·<'<'<ling- for a li15 eemw n ndet· sed ion 13) nudPr S<'<~iiou :H(e). 

16 "(f) STxr.-Tlw .\dmiuistrntiw I1aw Judge mny im18 a period of not mon· than 1~0 dn.n; to faeilitate sPltlemcnt 

19 ncgotiatiom; relating to l'l'Soh·ing tht• disputed isslH~S Of 

20 mHt<'l'ial fnet with respeet to tlw <·owt·e<lmeasnre. 

21 "(g) DECISIO:\' OF TilE Amii:\'ISTIL\TTI'E LAW 

22 ,Jl'DGE.-

23 "(1) Co:\'TE:\1':-i.-Tlw dc<~ision of tlH' .i\(1minis24 trntin• Law ,Tndgc shall eontainG:\VHLCI032317\032317.117.xml 

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16 

"(A) findings of fad ou all disputl•d issnes 

2 of mc\tcrial fad; 

3 "(B) cmwlnsions of law IH'cessarr to mnke 

4 the findings of fm·t, indndiug mling·s on mate•-

5 rialit~· and tlH• ndmissibilit~· of PYidenee; ancl 

6 "(C) n·asons for the findings allCl eonelu7 sious. 

8 ''(2) !JI:IITTNriO:\.-'flw clpeisiuu of tlw ~\dmin9 istratiYP Lm1· ,Jndge shall not eontuin ecmelusious as 

l 0 to whl't l1cr11 ''(.A) all.\' eondition or prcfwription shonlcl 

12 be ;vloptecl, mcHlified, or rc>jeetr•d; or 

13 "(B) an~· alternatin~ eoJHlition or presc:rip14 tiou should lw adopted, moclifiecl, ot· rc:jc•vtecl. 

15 '· (:l) FL'\AL!TY .-~ \ deeision of nu Aclministra16 tiYc' IJH\1' ,Judge nnclc•t· this se<'tion with rc•sped to a 

17 disputed issue of matc•rin 1 fnr~t shall not be subjel't 

18 to fnrt her administratin: reyiew. 

19 "(4) SEH\'TC'E.-The AdministTntiYc Law ,Jnclg·c 

20 shall serw the clec·ision 011 c•nc:h pnrtr to the lleariug 

21 nucl fonnml tlw eomplete n•eonl of the ]waring to 

22 the Commission and tlw Scl·retm·~· that proposed tlw 

23 original eomlition or pn•seription. 

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17 

2 after the date on \Yhith the "\dministratiw Law 

3 ,Jndg·e is:;aws the deeision nnder :mbseetion (g) and 

4 in <W<'onlmH·e IYith the sehednlc cstablishe<l by the 

5 C'ommissiou under s<•etion >l-1-(e), the Sr•eretar~· pro6 posing a eondition under seetion 4( e) or a preserip7 t ion nuder seetion 1 ~ shall fill' with tlw Commission 

8 a finn! <ll'tcrmiuation to adopt, modif~·, or witlulnm 

9 an~- \'oudition or Jll'l'>-;\'l'iption that was the subjec·t of 

10 a !waring nudr•r this sedion, lmse<l on the deeision 

11 of the ~\dministrntin· Lmr .Jndgl'. 

12 "(:2) RECOHD OF !JETE!r.\II:\.\TIO:\.-The final 

13 <letermination of tlw Ser•retary filerl with tlw Com14 mi>-;>-;ion shall ilknti(v the n•asm1s for the deeision 

15 alHI au~- eonsideratium: taken into a<•emmt that were 

16 not part of. m· ineonsistent \Yith, the fiJHlings of the 

17 Administrative Lllw ,Jndge au<l shall be inelndc•d in 

18 tlw (·onsolidnted reeorll in seetion :i4(i). 

19 "(i) Lwr<::\!':I:\'0 DE( 'I:-::ro:-; (W nm Cmniis:-::ro:\.-

20 X oh\·ithstanding scttious 't( l') and 1 H, if th<' Commission 

21 finds that the final tom1itiou or pn·sl'ription of' tlw See22 rl'tnr_v is inl'onsisteut \Yith the Jll.1I'JlOS\'s of this part or 

23 other llpplieahll' law, the Commission nw~- :wek resolntion 

24 of the mntte1· 11mkr seetion :H(b)(:2)(D). 

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1H 

"(j) ,Jnm'L-IL l{EYTE\Y.-'I'hv <keision of the ;\dmin2 istrntin• L<rw ,Judg-e nnd the reeon1 of determination of 

3 the Seeretmy shell! b<· inclnded in tlw rceord of tlw appli4 eahle liecnsing JH'Oe.e<•ding alHl snhjed to jndieial n•Yie\\· 

5 of the final lieem;ing- d<•eision of the Commission nru1er 

7 "SEC. 36. LICENSING STUDY IMPROVEMENTS. 

8 "(n) l:\ GE:\EJL\L.-'l'o fneilitate the timely l\!1(1 cffi9 eicnt <·ompldion of the li<:cuse pnwecdings under this part, 

IO the Commission shall, in eonsnl1ation with appli<:nblc Fed11 <'l'al nnd State agcneies mtd interested members of the 

13 "(1) <•ompih• <•un·c>nt a!Hl <Wl'l'jlt<~<1 best pnl(:-

14 tiel'S in performing stndies required in such license 

15 JH"O<'cedings, inel1Hling metlwdolo(.des <nH1 the d<•sign 

16 of stndiPs to asfl<'ss the full rang<~ of emiromnental 

17 impaets of a pt·ojP('\ that rdleet thl' most rceent 

I 8 P<'<'l'-l'<'YiewPd seicnce; 

19 "(2) <'ompik H (:OlllJll'<'hew.;ive eollevtion of shHl20 ies and data <Wl·<'ssilliP to the pnbli<~ that eonld be 

21 mwd to iufonn li<·PllS<' ]ll'Oecedings UlH1cr thifl part; 

22 anc1 

23 ''(:l) e1wom·age license applieants, ageneies, aml 

24 Ill(1ian tribes to devdop and ns<', for tlw pm·po»P of 

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19 

appli<'iltious, a limited munbr•r of OJW!l-SO\ll'<.!l' meth2 odologies nud tools applienhle n(·ross a wide array of 

3 projel'ts, inelwling wnter h<11nnee molkls and 

4 stremntlm1· <mal~·sc•s. 

5 ''(b) ll~E OF S'ITDIE~.-To the cxteHi pnwticabk, 

6 the Commission and other Fcdeml, Statl', allll loenl goY7 ('l'llllll'nt ngeHeies <tllll Indian tribes l'Ollsi<lering an aspc<·t 

8 of an applil·Htion fm· Fcllernl authorization (as defilH~d in 

9 sed ion :l4) shall use ('ll!Tent, aeeeptl•d seieuee toward 

10 stndies and data in snppmt of tlwi1· netions. Any partil'i11 pant in a proeceding with n•speet to a Felkral antlwriza13 not dnplil'atiw of ('UJTent, existing studil'S that an~ appli15 "(e) lt\:-;r:--;-wmE on REUIO:\'AL HEYIEW.-'rlw Com16 mission sh<lil establish a program to dew lop <'Omprehm17 siw plans, at the request of projPet appli<'ants, on a l'l'-

18 giomd or basin-wide S(~alc, in eommltation IYith the appli19 (~ants, <l]lpropriate FcllC'nd ageneil'.s, all(] affpded State's, 

20 lol'nl ).'.'llWI'llllll'llis, and Indian tribes, in basins or regions 

21 with l'l'SjJ('l't to \Yhieh then• aJ'<' ll10l'(' ihan one proje<•t or 

22 npplil•ntion for a projl'l't. Fpon snl'h a reqncst, the Com23 mi;;;siou, in l'Ommltntion with the applil•auts, sneh Felleral 

24 ng"l'lH~iPs, nml affeeted ~iaks, loc·al gun•nmwnts, and In25 di<m irilws, ma~· <'OJHhwt or l'Ollllnission regional or basinG:\VHLC\032317\032317.117.xml 

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:20 

wide <'nYiroumental stndics. with the partil'ipatiou of at 

2 ]past :2 applieants. An~' stnll~· eonduetcd under this snb3 s<·etion shall appl~· on!)• to a pmjcl't with respc<'L to which 

4 the npplieallt participates. 

5 "SEC. 37. LICENSE AMENDMENT IMPROVEMENTS. 

6 "(a) QL\LIFYI:--:<; l'HO.JECT liP<iH"\TlE;..i.-

7 ''(1) Ix m;:--:EJL\L.-"\s pnwided in this seetion, 

8 the Commission nm~· npprow an nppli<'ation for nu 

9 mncndnwnt to a liePnse issued under this part for a 

I 0 qnnlifring· projeet upgrade. 

11 "(2) .ArPLTCATio:--:.-A lieense<' filing an appli12 ention for an amewlnwnt to n pmjn·t lieeu:w ulHll'r 

13 this seetion shall iuelwk m sul'h applieation infor14 matio!l snffil'ient to <kmonstrate that the proposed 

15 elumge t 0 th<• TJl'Ojcd deserihPd in the applieatiou is 

16 a qualifying projcl't upgrade. 

17 ''(~l) l:--:ITL\1, DETEiniJ:--:.WTOX.-::\ot lntPr thall 

18 Fi duys after rPecipt of au appliC'ation nn<ler pant19 g-raph (2). tlw Commission shnll make au initial de20 termination as to \Yhether tlw propo::w<l ehauge to 

21 the projel't dl•set·ihe<l in the appli<·ation for a li<•<•use 

22 auwudment ts a qmtlif~1ing Jn·ojeet upgnHle. Thl' 

23 Commission shall publish its iuitinl determination 

24 nnd iss1H' notice of tlw npplieation t1lecl mHlc•t· paraG:\VHLC\032317\032317.117.xml 

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~1 

g'l·aph (2). Snell notil'l' shall solicit public l'mnmcnt 

2 on the initial det(•J·mimltion within :l:J days. 

4 TEHL\.-The Con1mission shall iH'eept public eom5 nwnt regarding wlwthl'r n propose<l lieense amend6 ment is for a qmllifying projel'l npgrnde for a period 

7 of '-15 dnys hq.>:inning ou tlw date of pnblieat.ion of 

8 a publie uotil;<' descrilwd in paragraph (:i), all([ 

9 shall10 "(A) if no cntit:> eontests "·lwthcr the pro11 posed lieellSl' mnenllnwnt is for a qnali(Ying 

12 proj(•(;t npgn1de during >nwh eommt•nt peri()([, 

13 immediate!~· publish a notil'l' stating thnt the 

14 initinl ddennim1tion lms not lwen eontested; or 

15 "(B) if an entity eoutests IYhcther the pro16 posed lieeuse amt'!Hlment is for a qnalif~-illg 

17 projce.t upg1·adl' during the eommcnt JWri()(l, 

18 i::;sue a 1nitten dctcrminat ion in Hl·eonhmeL~ 

19 with JHH'Hgraph ( 5). 

20 ''(;)) \YHI'l"l'E,\' DETETL\ll,\'AT!O,\'.-If an l'lltit:· 

21 l'lmt(•sts "·lll'Lhl'l' the proposed lil'C'IlSl' <lllH'ndnwut is 

22 for a qnalif~-iug ]ll'l~j('d npgmde dll!'ing the emmJwnt 

23 period unde1· paragTnph ( '-1), tlw Commission "lutll, 

24 !lOt later than ;i() l1H,I'" aftl'l' the date of pnblieation 

25 of' thl' public JJOtil;C' of the iuitial lletermination 

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2 us to whd her the propos<'d lit•Pnse Hllll'll< hnent is for 

4 ''((i) PrnLw <'mnm:--:T o:--: .DIE:\Il~IE:\T .\I'PLI5 L\TIO:\.~lf 110 <•ntii,\' t'olltcsts 1Ylwthcr tlte pt·opmwd 

6 lit•t'IISe ;mwudnwtlt is for a qnali l~·ing projed np7 gn1de during the <'OlllllH'IIl pt'!'iod undt>r pnt·ag·nlph 

8 (-J.) or ilH· Commission issnes a wriltt'll det<•rmiwtII Co11unission shill-· 

12 "(,\) during' tlw GO-da~· pl'riod lwginniug· 

13 Oll the d<tte of' puhliealion of' C\ noli!'<' lllldt'!' 

15 Cmlllllission issn<'S the \\Titt<'ll dderminntion 

16 under pamg'l'aph (:)), as <tppli<·<thk, solit'it <·om17 nwnts from <'<Wh Federal, Sl<ii<', all(] lot·al gm·-

18 <'l'llllH'lli ag·etwy and lndim1 tribe c·mJsidc•ring an 

20 lion (as dt'f'ined in seetion ;).t) with respt'et to 

21 tlw proposed lieem;<' <lllWIHlnwnt, ns well m; 

22 

23 

24 

25 

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March 23, 2017 (2:26p.m.) 

other i nleresi ed ngeneit•s, lndim1 trilws, and 

nwmhct·s of the ]l1lhlit·; and 

''(B) cln rit1g· tlw 90-dn.'' period beginnillg 

on the date ol' pnbliention or n notiee under 

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G:\CMTE\EC\ !5\EN\EP\FP/\\HYDRO !7 ~Ol .X~iscussion Draft! 

pm·agnlplt (-t)(.\) o1· tlw dak on \Yhic·h the 

2 Commission issnes the \\Titll'll ddenllination 

3 nnd(•t· p;n·agT<~ph ( :J), as <I pplil'a hle, c·onsnli 

4 with--

5 "(i) <ippt·opriate Federal agenl'ies and 

6 the ::-;tatc• ngPttc·y c•xc•reising administratiYc' 

7 <'0111 rol oyer tlw fish <l!ld wildlife n•smm•c•s, 

9 in whic·.h tlw qnnli(1·ing projed npgt·ade is 

10 lo(';lied; 

II "(ii) ;my ]<'c•dc•r;d departnwnt sHpc•r12 Yising any pnblic· htncls m· l'l'Sl'IYHtions oc·-

13 <'npied h." the qualifying projec·t upgrade; 

14 and 

15 "(iii) any Indian trihe affeded h)· tlw 

17 "(7) I<'EDEIUL AFTJJOIW-;,\TIO:\:->.-Thc' sc•hed18 nk estnblished by the Commission nncle1· scdion :l-1-

19 for nny projed npgnHie nnd('l' this snbsedion shall 

20 n•quin· final disposit icm cm all IH'eessat'.'' FPdend <111-

21 t ltm·izat ions (as dd'im•d in 1-wdion :l-t-), otlwr than 

22 final ad ion b~· thc• Commission, by not Inter tlwn 

23 1~0 dnys after the datl' 011 whic·h the ( 'ommissiou 

24 iss1ws n uotil'c nndc·1· pm·ngT<Ipll (l)(.\) m· n writtc•11 

25 d<'tenninntion nndc•I' parng-n1pll (0). as Hpplienblc_ 

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G:\CMTE\EC\ 15\EN\EP\FPA \HYDRO 17Jl !.X])J)iscussion Draft] 

"(H) Cmnrrs:-noN ACTHlN.-:\ot later than H50 

2 dnys after the dnk on wllit•h the Commission issues 

3 a notit·c nwlcr paragTaph (-t)(/1) m· a written dl'ter4 mimll.ion nuder paragraph (;)), as applicallle, tlw 

5 Cmmnission shall tnkt• fiwd action 011 tlw lin•nsc 

6 amendnwnt applic<lliou. 

8 eoll(lit ion inelndt•tl in or appli<·nhle to a license 

9 amendment apprm·erl nndcr this subsection, im·lml10 ing <lll." <•011dit ion or other rcqnircnwnt of a Ft~dt•ral 

II authorization, shall be limitt•d to those that an•-

12 "(A) m•ecssmy to prott•l't pnblie safet~-; or 

13 "(B) n•asouablr•, l't'OllOJuienll~- feasible, and 

14 essential to pn~wnt loss of m· danwg\' to, or to 

15 mitig<ltt• ath·ersL' pffeds ou, fish and wildlife n•-

16 som·t·es, mttl'r snppl~-, awl water qnalit~- that 

17 are direC'il~- ea1tscd b~- the <·onstrndion alHl op18 t•mtion of tlH' qnnlit:\ing· project upgrade, as 

19 emnpnrcd to the CIIYironmt'lJtal lmscliue existing 

20 at the time the Commission approws tlw nppli21 t•ntion for tlw lieem.;e ameu<luwut. 

22 ''(1 0) l'IWPOSED LT<'ENi-lE A~mNTl:IIENTS TIIAT 

23 Aim :'\OT (~L\LIFYC\(; l'HO.mCT l'I'U!L\DEI-l.-Tf the 

24 Commissiou determines under paragraph (:i) or (;'i) 

25 that a Jn·opost'd license <Hlll'll<luwut is not for a 

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March 23, 2017 (2:26 p.m.) 

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G:\CMTE\RC\ I 5\EN\EP\FPA \HYDRO I 7. 0 l.Xl.Discussion Draft] 

qnnlif~ing pt·ojn·t npgnHk, the JH'Ol'<'<lnn•s nmler 

2 pm·agrnphs (6) tlmmgh (9) shall not appl? to tlw 

3 applieatimt. 

4 ''(11) Rl'LIDL\K1:\U.-Xut lnt<•t· than 180 tlays 

5 after tlw date of t•nadnwnt of this sed.ion, tlw Com6 mission shall, after uotiee awl opportunity for pnblie 

7 eomnH'JJt, issue a !'1llt' to imph•ment this :mhseetiou. 

8 ''( 1~) DEF1:\ITIO:\s.-For pmvoscs of this snh9 sedion: 

10 "(~\) (~L\L1FY1:\U l'HO.JECT l'PGHADE.-

II '!'he term 'qnalif~ing pnlj(•et upgn~tk' means a 

12 <·lmngL' to a projL•d lir·ensed mHl<•r this part 

14 minetl h.'· the Commission. 

15 "(B) (~L\LfFYI:\U CBTTEHL\.-The term 

16 'qnali(ving· erittTia' nwaus, with rcspcet to a 

17 projcet license umler this part, a ehange to the 

18 pro.ic•<'t that19 "(i) il' emricLl out, wonhl lw nnlikcly 

20 to adwrscl.'· affeet nnr speeies listed as 

21 threatem·<l m· etHlangerPd under the En22 dangurcd 8JW<'i<'s Aet of 1 !lTl or result m 

23 tlw d<·stmetion or adwrs<' modifil'ation of 

24 eritical lmlJitat, ns LlPtermined in consnlta25 tion with tiH' S<•crl'tar~· of the lntl~rior or 

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G:\CMTE\EC\15\EN\EP\FPA \HYDRO 17 __ 0 l.X~Discussion Draft] 

2 

3 

4 

5 

6 

7 

8 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

2G 

aeeonhnH'<' with seetion 7 of the Endanp;ered Spcc·ie::; .\et of 1 ~J7:3; 

'· (ii) is consistent with auy npplieahle 

eompr<'lwusiw plan nuder scetion IO(a)(2); 

"(iii) inl'lmles only dumges to pro,jl'et 

lands. wniet·s, or operntions tlutt, in the 

j1Hignwnt of the Commission, wonlcl result 

in only insip;uifiennt or minimal ennmlatiw• 

mln'l'sl' puvirmmwntal dJeets; 

aff'Pd wah•r qnalit~- <md water snpply; and 

"(y) lH'oposc•;; to implement-

'ti) l'il] HWit,\' llll'l'C'ilSCS, eff'il;ieney 

improvenwnts, or other enlwneements 

to hyrh·opom•r g"l'lHTatiou at tlw lil'l'nsPd projcet; 

" (I I) etrvironnwutal protediou, 

mitigntimt, or enh;nwc•mcHt tm•asun~s 

to benefit fish <tlHl ~~-ildlife n•somCl'S 

m· otlwr natnral alH1 cultural n~-

sonn•es; or 

"(III) imprownwnts to pnhlie 

24 recreation at the liecu~cll projer·t. 

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March 23, 2017 (2:26 p.m.) 

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G:\CMTE\EC\15\EN\EP\FPA \HYDRO 17 _0 I.X~lliscussion Draft] 

"(1) 1\\'LE.-:'\ot later than 1 y<>m· after the 

2 date of emH•tnwut of this seetion, the Commission 

3 shnll, nftr•r notier' nnd opportunit~- for pnblie eom4 mcnt, issnc a rule establishing IH.'''- standards and 

5 pi·oecdnn's for lier•nsr' Hmr·mlnwnt applir·ations mHlcr 

6 this part. In issuing· stwh rnle, tlw Commission :,;hall 

7 sr•pk to dr'wlop the most d'fieient and CX]wdient 

8 p1·ner•ss, eonsnltation, and n•\iC\Y requirements, r~om9 mensm·ntr~ with tlw seopc of different eategorics of 

10 Jll'oposcd lieensc amuiHlmcnts. Snch rule slwll HeII eonut for diffcn'JH'l'S in Pmiromncntal d'fel'ts ar~1·oss 

12 a wide nmgP or entr•gorics of lie.Pnsr' anwnrlnwnt ap13 plir~ntions. 

14 "(:!) C\1'.·\('!TY.--In Issnmg il mlc under this 

15 snhsl'etion, the CommissioH shall take into eonsidcr16 ation tlwt a e!mnge in generating' or h~·dranlie ea17 pm·ity nm~· iJHiir·atP tlw potential em·irOJllllL'ntnl ef18 feets of a Jll'O]Joscd anwndnwnt lmt is uot determina19 tiw o[ sueh pfl'pets. 

20 "(il) PHOCESS OPTI0:'\8.-ln issHillg' a rule 

21 unrl<•r this snh:sr•r•tion, t!H' Commission shall take 

22 into eousideration tlw rangP of pt·occss options avail23 nhll' nncll'r tlw Commissiou's J'l'g11latioHs for JH'W 

24 and original li(•euse npplientions and adapt such opG:\VHLC\032317\032317.117.xml 

March 23, 2017 (2:26p.m.) 

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G:\CMTE\EC\15\ENIEP\FPA\HYDRO 17 _OI.X~Discussion Draft] 

tions to anwtHI!llent applit·ations, wlH'J'l' appro2 priHk.". 

3 SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS. 

5 .\d (Hi 1'.~.C. 797(e)) is mtH'JHl\'d6 (1) b~· striking· "ndeqnHtt• protl·l'lion amlntili7 zHtion of ~ml·h l'l'Sl'ITation" awl ;ill that follows 

8 tltmng·l1 "Tlwt 110 lit•t•Hst• nl'feding the wtvig·nhk t·a9 pat·ity" and inserting· "alkqnHtc protet·t ion and nt iii10 zntion of' snl'h n•,wJTation: l'rr!l'ir!ed jirrl11cr, That no 

12 (:2) h,Y striki11g "deem" nnd insl'J'ting· ''dl'lt•J·-

14 (h) O!'EH.\'1']()'\ ( w X.\Yil ;,\TIO'\ F.\( 'ILITTE~.-~el'-

15 t ion 1M ol' t Itt• Fed end Po\\Tr "\d (Hi C XC. H 11) is 

16 anwJHit•d h,\' striking· the st'<'OJHI, third. ;md fourth sen17 1t'lll'l'S. 

G:IVHLC\032317\032317.117.xml 

March 23, 2017 (2:26 p.m.) 

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Edison Electric 

INSTITUTE 

May 2, 2017 

The Honorable Fred Upton 

Chairman, Subcommittee on Energy 

Committee on Energy and Commerce 

U.S. House of Representatives 

Washington, DC 20515 

Dear Chairman Upton and Ranking Member Rush: 

The Honorable Bobby Rush 

Ranking Member, Subcommittee on Energy 

Committee on Energy and Commerce 

U.S. House of Representatives 

Washington, DC 20515 

President 

On behalf of the Edison Electric Institute (EEl), the association that represents all U.S. investor-Dwned 

electric companies, I commend you for holding a hearing tomorrow on a Discussion Draft of the 

Hydropower Po11cy Modernization Act of 2017. 

Hydropower is America's largest source of renewable energy, providing millions of Americans with 

reliable, dean base!oad electricity. In addition, hydropower provides important features and services to 

the electric grid such as peaking generation, load-following, energy storage, and other reliability 

benefits. 

In order to preserve and protect the existing hydropower system an'd promote new expansion 

opportunities, the current hydro rellcensing process must be modernized to streamline and coordinate 

agency reviews, add accountability and transparency, eliminate inefficiencies and redundancies, ensure 

that license conditions are well founded and reasonable, and facilitate the deployment of !ow-impact 

new hydro and upgrades to existing projects. 

The Discussion Draft, similar to language developed and passed by the House and Senate in the 114th 

Congress, represents a positive and significant first step towards achieving these goals. We appreciate 

your prompt scheduling of this hearing to examine the many issueS related to hydropower policy 

reforms. The Discussion Draft can be further improved in several areas, including provisions related to 

mandatory conditions, deadline extensions, license terms, credit for early action, and trial-type hearings. 

Once again, we thank you for your leadership and continuing focus on this critical issue. As the 

Subcommittee addresses hydropower reform again this Congress, we look forward to working with you 

and other Members to further improve the bill and achieve effective, bipartisan legislation. 

Thomas R. Kuhn 

President 
294 


Mayl.2017 

The llonorabk Fred l Jpton 

Chairman, Subcommittee on Energy and Power 

Committee on Energy and Commerce 

2125 Rayburn House Office' Building 

Washington, D.C. 20515 

The llonorablc Bobby Rush 

Ranking Member, Subcommittee on Energy and Power 

Committee on Energy and Commerce 

2125 Rayburn I louse Oftlce Building 

Washington. D.C. 20515 

Dear Chairman Upton and Ranking Member Rush: 

WATER & POWER 

l'he Modesto Irrigation District (MID) and the Turlock Irrigation District (TID) of California write to 

express their appreciation for holding the May 3, legislative hearing on the "!fvdropml'er Policy 

Modemi2ation Act of20/7" discussion dralt. MID and TID strongly support ert(Jrts by the Subcommittee 

to modernize and improve the hydropower licensing and reliccnsing process, as \\'Care eight years and 

over $25 million into rcliccnsing the 203 megawatt Don Pedro Hydropower Project on the Tuolumne River 

in the Central Valley ofCalil'ornia. 

MID and TID are currently working with project pm1ncrs, resource agencies. Tribes, and conservation 

groups to move forward with an agreement to renew the Don Pedro hydropower license, which expired on 

April 30,2016. The Districts started the process ofreliccnsing in 2009, and to date we have conducted 

over 38 studies and a suite of models to inf(mn the Federal Energy Regulatory Commission and reliccnsing 

participants on the conditions of the reservoir and the Tuolumne River. Because MID and TID are public 

agencies, the costs J.ssociatcd with the reliccnsing process and meeting any additional conditions imposed 

by a new license, will be borne by the communities we serve. 

MID and TID commend the Subcommittee for holding this hearing. \Vc support your efforts to promote 

hydropower as a renewable and economic resource, as well as efforts to streamline the process to allow 

applicants to move through the \iccnsing/reliccnsing process in a more timely, efflcicnt, and aff(ndable 

manner. 

We arc hopeful the members of this Subcommittee will find a way to move forward with a balanced, 

bipartisan bill that will remove regulatory incflieicncies and impediments to licensing and relicensing of 

clean and reliable hydropower generation. 

Greg Salyer 

General M~mager 

lv1odcsto Irrigation District 

Casey llashimoto 

General Manager 

Turlock Irrigation District 
295 


SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY 

1160 NICOLE COURT 

ANAHEIM • AzUSA • BANNING • 

BURBANK • CERRITOS 

SCPPA 

April27, 2017 

GLENDORA, CA91740 

(626) 793-9364- FAX: (626) 793-9461 

WWW .SCpQfLQ[g 

The Honorable Fred Upton 

Chairman 

Subcommittee on Energy and Power 

Committee on Energy and Commerce, 

2125 Rayburn House 011ice Building 

Washington, D.C. 20515 

Dear Chaim1an Upton and Ranking Member Rush: 

COL TON • GLENDALE • LOS ANGELES 

PASADENA • RIVERSIDE • VERNON 

IMPERIAL IRRIGATION DISTRICT 

The Honorable Bobby Rush 

Ranking Member 

Subcommittee on Energy and Power 

Committee on Energy and Commerce 

2125 Rayburn House Onice Building 

Washington, D.C. 20515 

On behalf of Southern California Public Power Authority (SCPPA), a joint powers' agency, 

whose electric utility members collectively serve nearly five million people throughout 

Southern California, I write to commend you for holding the May 3 legislative hearing on 

Discussion Drc!fi H.R. _,the Hydropower Policy Modernization Act of2017." 

SCPP A has long supported modernization of the hydropower licensing process to allow 

applicants to move through the licensing/relicensing process in a more timely, efficient and 

affordable manner. Specifically, SCPPA supports provisions that would establish FERC as the 

coordinating agency for setting hydropower licensing schedules and accompanying study 

processes, and that would eliminate conflicting requirements, ensuring more timely decisions by 

regulators. These reforms also would speed the upgrading of power facilities, including the 

improvement of environmental protections and upgrade facilities more quickly than can be done 

today. 

SCPPA believes improvement to hydropower licensing can be accomplished in a manner that 

preserves the existing system, promotes new development and also protect our fisheries, natural 

resources and environmental values. 

We are hopeful the members of this Committee will lind a way to move forward with a 

balanced bipartisan bill that will remove regulatory inefficiencies and impediments to licensing 

and relicensing of clean and reliable hydropower generation. 

Executive Director 

c: Representative Raul Ruiz 

Representative Mimi Waters 

Representative Tony Cardenas 
296 


l { 

May 2. 2017 

Rep. Fred Upton, Chair 

Energy Subcommittee 

Committee on Energy and Commerce 

2125 Rayburn I louse Office Building 

Washington, D.C. 20515 

Dear Chairman Upton and Ranking Member Rush: 

Rep. Bobby Rush, Ranking Tvlcmbcr 

Energy Subcommittee 

Commiltec on Energy and Commerce 

2125 Rayburn I louse Office Building 

Washington, D.C. 20515 

Public Utility District No. I of Chelan County (Chelan PUD) is pleased that the Energy Subcommittee 

of the 1 louse Committee on l'ncrgy and Commerce is holding a hearing this week on legislation to 

address hydropower infrastructure modernization. According to the Commiltee website. eight 

hydropower bills will be considered. Chelan PUD appreciates this opportunity to comment 

specifically on the discussion draft of the llydropower Policy Modernization Act of 2017. 

Chelan PUD is a municipal corporation organized under the laws of the Stale of Washington and is 

authorized under Washington state law (RCW Title 54) to engage in the business of generating. 

transmitting, and distributing electric energy. The utility was formed in 1936 by local voters who 

wanted affordable power for rural as well as urban residents. Today, Chelan PUD operates three 

hydroelectric projects licensed by the Federal Energy Regulatory Commission (FFRC). They generate 

approximately 10 million MWhs annually of clean. renewable. low-cost energy to 48,000 local 

customers and to other utilities that serve businesses and residents throughout the Pacific Northwest. 

Two of these projects. the Rocky Reach (1'-2145) and Rock Island (P-943) hydroelectric projects. arc 

located on the Columhia River. The third. the Lake Chelan flydroclcctric Project (1'-637) is located on 

the Chelan River. Chelan PlJ[)'s generation mix is over 99 percent hydropower. with less than l 

percent" ind associated with a long-term power purchase contract. Therefore. Chelan PUD has been 

keenly f(Jcuscd on the regulatory environment for hydropower. 

Background 

Chelan l'UD received new licenses for the Lake Chelan and Rocky Reach hydroelectric projects in 

2006 and 2009. respectively. 

For the 59-MW Lake Chelan Project. the relicensing process itself took about 9 years and cost 

$7 million. The package of protection. enhancement and mitigation measures proposed lor the 

new 50-year license was approximately $51 million. 
297 


For the 865 MW Rocky Reach Project, the reliccnsing process took about II years and cost 

approximately $16 million. l'he package of protection. mitigation and enhancement measures 

proposed for the new license totaled about $410 million. While Chelan PUD submitted its 

comprehensive settlement agreement with FERC: before the original license expired in mid2006. the project was put on annual licenses in 2007 and 2008 while awaiting a biological 

opinion tor bull trout fi·om the U.S Fish and Wildlife Service. 

The Rock Island Project license expires in 2028, and was previously licensed in 1989 and 1930. 

In addition to the licensing process itself, Chelan P\JD has signitlcant experience in navigating other 

laws and regulations that affect the licensing process. In 2004. Chelan PUD entered into the first 

I !abitat Conservation Plans(! !CPs) for hydropower !(Jr the Rocky Reach and Rock Island projects' 

under section I 0 of the Endangered Species Act (FS/\). Under the II CPs. Chelan PLIO committed to 

go above and beyond FSA requirements to reach I 00% "no net impact'' on salmon and steel head 

migrating through the project area. By committing to the HCPs. Chelan PLID avoided a potentially 

prescriptive requirement from the f'cderal National Marine Fisheries Service. which indicated in its 

!ina! environmental assessment that without the II CPs. the prcf'errcd option would have been to require 

spill up to 40% of the daily average !low at the projects 2 Instead. Chelan PUD was allowed the 

flexibility to pursue the methods it determined were the most ef'f'ective for meeting the standard. For 

the Rocky Reach Project. this entailed installing a $110 millionjuvenilc fish bypass system and 

reducing spill (as a passage method. the bypass system is much more cf'fective than spill. due to the 

dam's unique Z-shape configuration). 

i\s Chelan PUD worked with various federal and stale agencies and tribes. at the local and national 

level. the Council on Environmental Quality was pat1icular!y helpful in facilitating a final agreement. 

When all of the administrative processes were complete, the !!CPs became part of the FERC operating 

license l(Jr the Rocky Reach and Rock Island hydroelectric projects in 2004. 

The HCI's anti Licensing Policy 

Chelan PLJD's experience with the II CPs influenced how the utility viewed our upcoming reliccnsing 

processes. first for Rocky Reach and Lake Chelan. We supported Section 241 of the Energy Policy 

;\ct of2005 (16 U.S. Code§ 823d). which is intended to allow license applicants and others to propose 

altl:rnativcs to mandatory conditions and lishway prescriptions if the Secretary determined the 

alternative condition provided for the adequate protection and utilization of the reservation. or the 

alternative prescription was equally protective as the Secretary's condition or prescription. The 

alternative would also need to cost less and result in improved electricity production. For Chelan 

PlJD. the potential to suggest alternatives. based on our intimate knowledge of our projects, 

represented the opportunity to replicate the successes of the I !CP in the reliccnsing process. Our 

Anadromous Fish Agreement -and f Iabitat Conservation Plan, Rocky Reach Hydroelectric Project, FERC' License No. 

21-'15 and Rock Island tlydroelectric Project. FERC License No. 9cl3. A third HCP covers the upstream Wells 

llydroelcctric Projcd, fLRC ~o. 2149. 

~ ,\nadromous Fish Agreements and I Iabitat Conservation Plan, Final Environmental Impact Statement ror the Wells, 

Rocky Reach, and Rock Island ! lydroe!cctric Projects, National ~1arine Fisheries Service, Decem her 2002 
298 


comments on the dralllegislation (below) address problems with the implementation of Section 241, 

and how the drall hill could affirm these provisions. 

Chelan PUD also viewed the I ICP as a proactive step that prepared the utility for entering the 

relicensing process for the Rocky Reach Project. It was amemkd into the existing project license in 

2004. only five years before the new license was issued. Unl(lrtunately. in its order on rehearing 3

• 

FI·:RC declined to include the cost of the new juvenile llsh bypass system when determining the length 

of the new license term. Without those costs. FERC fcnmd the license to constitute a ··,nodcratc'' 

investment"'. This finding affected the agency's decision to issue a 43-year license instead of a 50-year 

license. FERC ordered Chelan Pl'D to continue implementation of the HCP for purposes ofESA 

compliance, but remarked that when setting the length of the license term it "evaluates new measures 

to be included in the license. and docs not consider requirements carried over from the prior license." 

While the Rock Island Project license docs not expire for more than a decade. Chelan PUD is already 

beginning to assess its path forward. Based on our experience with the Rocky Reach Project, one issue 

we arc considering is how potential investments we may make in "early actions" could affect the 

length of a new license for the Rock Island Project. We believe that licensing policy should encourage 

early investments in hydropower projects. and that the timing of the investment should not put a 

licensee at risk for a shorter license term. 

Our comments on the drall legislation (below) outline how Congress can address this problem. and 

inccntivizc ·•early action" for operational and environmental improvements. 

Comments on the Hvdropowcr Policy Modernization Act of2017 

The drall bill before the Subcommittee is poised to address some significant issues that could affect 

licensees like Chelan PUD. Chelan PUDwill address several spccilie provisions. 

License Term. Drafi Pm;e ./, lines 6- 1./ 

This provision would require FER C. in determining the term of a license. to "consider project-related 

investment hy the license over the term of the existing license (including any terms under annual 

licenses) that resulted in new development. construction. capacity. efficiency improvements, or 

environmental measures. but which did not result in the extension of the term of the license by the 

Commission.'' 

Chelan PUD strongly supports this concept of the bilL Currently. Fl'RC bases its license term decision 

on a number of factors, but largely on the measures that arc imposed in the new license. 

\!nti.11iunatcly. FERC has declined. as a matter of policy. to credit a licensee for making investments 

1 Fuh Di/ /)isl So I of Chr.!lan County. ! 26 FFRC ~ 61, !38 at P 150, order on reh 'g, 127 FERC ~ 61,152 {2009). 1 Section IS( e) oflhe FPA, 16 U.S.C. ~ SO&( e), authorizes FERC to issue nc\v hydropower licenses upon relicensing for 

ti.:rms between 30 and 50 y~ars. [n exercising its discretion, FERC's policy is ·'to e-stablish 10-ycar terms for projects with 

!itt h.: or no redevelopment. new construction. new capacity, or cnvironmcnwl mitigation and enhancement measures; 40-

ycar terms for projects with a moderate amount of such activities; and 50-year terms for projects \Vith extensive ml':asures." 

Conswm:rs Power ('o_, 68 FERC ": 61,077, at pp. 61,381~84 (1994). 
299 


and conducting improvements prior to entering the licensing process. This policy discourages early 

resolution of issues and encourages licensees to defer improvements until they can be submitted as part 

of a new license package. FERC's policy should be modernized by removing disincentives for early 

action. recognizing that hydropower projects are becoming better adapted to their respective 

waterways. and setting license terms that account for cumulative investment and ongoing stewardship. 

In November 2016. FERC issued a notice of inquiry (NO!) on whether to revisit how they establish 

license terms. but has taken no permanent action. A legislative change in this area would be valuable 

for creating long-term clarity. 

While Chelan PUD suppmts this concept in the discussion draft bill, it recommends that the current 

language he strengthened. It is our understanding that further discussions at the end of last Congress 

resulted in a new version of this language. which would. among other things. ensure that FERC 

appropriately credits early investments by giving them the same or equivalent weight as similar 

measures proposed in a new license package- rather than merely considering them. In addition, the 

language could be improved by providing more description around the types of investments that may 

be considered eligible early action. We would be pleased to provide the Committee with specific 

suggestions, if requested. 

Alternative Conditions and Prescriptions Paze ./ heginninz line 15 

Section 241 ofEPAct 2005 added section 33 to the Federal Power Act (16 U.S. Code§ 823d). It 

allows license applicants or other stakeholders to propose an alternative condition when the 

Department imposes a requirement. The Secretary is required to accept the alternative condition if the 

Secretary determines that it provides for the adequate protection and utilization of the reservation and 

will either, as compared to the initial condition, cost significantly Jess to implement or result in 

improved operation of the project works for electricity production. The new section 33 ofthe FPA 

includes a similar provision allowing alternatives to any mandatory fishway prescribed under FPA 

section 18. 

According to a Government Accountability Office report issued in 2010, no applicant alternatives have 

been accepted under this approach since enactment. Instead of accepting an alternative as required by 

EPAct section 24 I, agencies modify their original conditions. Moreover, in some instances agencies 

have avoided the opportunity for other pm1ies to submit alternatives by using other authorities, such as 

a biological opinion under the Endangered Species Act, to impose license requirements. 

Chelan PUD recommends that this section be modified to ensure that it applies to any instance in 

which a Secretary seeks to propose, modify, or exercise reserved authority to impose or modify a 

condition under section 4(c) or a prescription under section 18. This section should also apply to any 

requirement applicable to the project pursuant to any Federal authorization that is within the scope of a 

Secretary's 4( e) or 18 authorities. 

Equal Considerarion. Page 13, lines 3- 12 

Section 241 of EPAct 2005 required agencies such as Interior to submit into the public record a written 

statement explaining the basis for their mandatory conditions and prescriptions, and any reasons for 

not accepting the alternatives. Moreover, the Secretary is to submit a written statement demonstrating 
300 


that the Secretary gave equal consideration to the effects of the condition or prescription adopted and 

alternatives not accepted on energy supply, distribution, cost, and usc; flood control; navigation; water 

supply; and air quality (in addition to the preservation of other aspects of environmental quality). 

Agencies have taken the position that the requirement for the Secretary to submit a written statement is 

restricted only to situations where an alternative condition or prescription is offered. This approach is 

contrary to the plain language of the statute, which requires the "equal consideration" statement 

whenever a condition or prescription is submitted by the agency. Therefore, this provision of EPAct 

2005 has not helped identify the various trade-offs associated with the imposition of agency 

requirements. 

Under Sec. 2 (f) of the draft bill, it appears that this balancing provision is inadvettently eliminated 

from existing law (this elimination occurs to the amendments to FPA section 33 on page 4, line 24-25, 

and on page 5, lines l-3.) Chelan PUD recommends that the problem be remedied by moving the 

requirement to submit a written statement (whenever a Secretary imposes a mandatory condition or 

prescription) to the section on Consolidated Record. 

1hal-Tvpe !Jearings Page 13, beginning line 13 

Section 241 of EPAct 2005 established a trial-type hearing process for resolving disputed issues of 

material facts relied upon by agencies in support of their mandatory conditions and prescriptions 

(amends 16 U.S.C. 797(e) and !6 U.S.C. 811). 

For several reasons, the trial-type hearings have not offered a meaningful opportunity for licensing 

participants to resolve key factual disputes in hydropower licensing. Chelan PUD recommends that 

this section of the drat! bill be modified to indicate that trial-type hearings apply when an agency 

exercises reserved authority. or uses other federal authorizations to impose a condition or prescription 

within the scope of 4(e) or !8. Finally, it appears that the bill does not include an opportunity for 

discovery and cross-examination of witnesses which exists under the current law. This provision 

should be repaired and standard trial practice followed. 

Schedule Coordination and Process Improvements, Page 5, beginning line 8 

This section of the draft bill would establish FERC as the lead agency for purposes of coordinating all 

permits and other authorizations for hydropower project required under federal law and require other 

resource a gencics to co operate with F FRC. It intends to i mprovc s chcdule discipline by di reeling 

FERC to de vclop a s chcdule for completing its I icensing process, as well as other authorizations 

required under federal law, and to consult with other resource agencies in developing the schedule. 

Chelan P UD is s uppottive of the bill's attempt to better coordinate the I iccnsing process. 0 ne issue 

remains unresolved- specifically, how decisions are made if agencies are late with their federal and 

state authorizations, beyond the extended deadline. The legislation should contemplate an avenue for 

dispute resolution. We believe there should be a single decision-maker, preferably within the White 

House (we would s uggcstion the Chair of the Council on E nvironmcntal Quality) to convene the 

relevant agencies and make a final decision. 
301 


Conclusion 

Hydropower is the nation's premier renewable resource due to its economic and air quality value. 

Generally speaking, hydropower is the least-cost source of electricity generation and produces virtually 

no air emissions. As the nation relies increasingly on variable energy resources, there is a growing 

need for services that hydropower provides which maintain system reliability, such as capacity, 

storage, tl·cqucncy reserves, operating reserves. contingency reserves, inertia and black start capability. 

The public, therefore, has a vested interest in ensuring projects can be effectively licensed and 

reliccnscd. Federal licensing policy should be designed to preserve existing hydropower generation 

and flexibility, and to encourage upgrades and new facilities. Chelan PUD believes the draft 

Hydropower Policy Modernization Act of20 17. with suggested changes, will help improve the 

regulatory environment for hydropower. 

Again, we appreciate the opportunity to provide input, and would be happy to answer any questions 

from the Subcommittee. 

Sincerely. 

Steve Wright 

General Manager 
302 


Jordan Hydroelecbic Limited 

Partnership 

Representative Morgan Griffith 

United States House of Representatives 

2202 Rayburn HOB 

Washington, DC 20515 

Dear Congressman Griffith: 

P 0. Box 903 Phone. (865) 436-0402 

Gatlinburg, TN 

Cell phone (803) 215-4165 E-mail· jimpricehydro@bellsouth.net 

April 28. 2017 

ln 2012, the Federal Energy Regulatory Commission (''FERC") granted Jordan Hydroelectric 

Limited Partnership ("Jordan") fifty-year licenses for two hydroelectric projects located in Virginia: 

Gathright Hydroelectric Project (FERC Project No. 12737) and Flannagan 1-Iydroclcctric Project 

(FERC Project No. 12740) (collectively "Projects''). Section 13 of the Federal Power Act requires 

licensees to commence construction of hydroelectric projects under license within four years of 

license issuance. Thus, the deadlines to commence construction for the Gathright and Flannagan 

Projects expired on March 2016 and January 2016. respectively. Congress, however, frequently 

authorizes FERC to grant retroactive extensions of this deadline and, if necessary, reinstate licenses 

when circumstances so warrant. Jordan seeks rclieftrom Congress in order to extend the 

commencement of construction deadline and to ensure that the benefits of the Projects may be 

realized. 

Summarv of the Projects 

Both Projects will be located on existing Army Corps of Engineers (''Corps") dams. Prior to 

issuing a license to the Projects. FERC examined potential environmental impacts of the Projects 

under the ~ational Environmental Policy Act ("NEPA") and concluded that there were no significant 

impacts. This conclusion was described in the Environmental Assessment prepared by FERC for 

each project when the license was issued. 

The Gathright Hydro Project will be built at the Corps' Gathright Dam in Alleghany County, 

Virginia near the Town of Falling Spring, about 5 miles from the West Virginia border. The 

Gathright Project has a capacity of3.7 MW. The single generating unit will be placed in a pipe 

immediately upstream of the existing intake tower that controls the discharge from the lake. The new 

pipe placed against the tower will convey water from the lake through the turbine and into the river 

downstream. The annual generation should be about 18,000.000 kilowatt-hours. which is enough to 

supply about 1,800 homes annually. 

The Flannagan Project will be built at the Corps' Flannagan Dam in Dickenson County, 

Virginia near the Tov,n of Haysi, about 5 miles tram the Kentucky border. The Flannagan 

Project will have a capacity of l .8 MW. The two generating units will be placed inside the existing 

intake tower that controls the discharge ti·om the lake. There are two existing pipes inside the lower 

that are not used, and they can be cut to insert the hydroelectric turbines. This will convey water 

ti·om the lake through the turbines and into the river downstream. The annual generation should be 

about 8,000,000 kilowatt-hours, which is enough to supply about 800 homes annually. 
303 


Request for Congressional Action 

Since license issuance for the two Projects, Jordan has diligently worked on project 

development by seeking power purchasers, arranging for interconnection with the local utility, 

designing the projects and providing that design to the Corps for review, and receiving equipment 

and construction bids to build the Projects. There is no opposition to the Projects, and with the 

exception of Corps approval, all regulatory licenses and permits have been obtained at this time. 

Further, the FERC licensing and NEP J\ processes concluded that the installation of the two Projects 

on the Corps facilities would pose no unacceptable environmental impacts. Despite Jordan's diligent 

efforts to develop these Projects, however, it has not been able to commence construction within the 

statutory deadline. 

Jordan submits this request largely for two reasons. First, extensive post-licensing approvals 

and inquiries from the Corps require considerable time to address. Although the installation 

processes for the Projects will not alter Corps equipment or structures significantly, in order to ensure 

that any hydroelectric project proposed for development on Corps facilities does not conflict with the 

existing authorized purposes of the site, the Corps must review and approve the proposed 

development as a part of its Section 408 authorization process. The Corps' Section 408 authorization 

process is designed to protect the federal investment in the Corps facility as well as to ensure that the 

hydroelectric project poses minimal to no impact on the existing operations of the facility. Further 

and most imp01tantly, the Corps is responsible for ensuring dam and life safety. With these 

impotiant objectives, the Corps must work to obtain conclusive evidence of the safety of any 

proposed hydroelectric project to be constructed on its facilities, including the Gathright and 

Flannagan Projects. This type of review and coordination is, by its nature, time-intensive. 

Unfclliunately, the Corps' Section 408 authorization process does not commence until after a FERC 

license is issucdi 

Jordan has expended a considerable amount of time (1) negotiating with the Corps over 

access agreements in order to prepare detailed design specifications and (2) discussing technical 

issues concerning design and operation of the proposed Projects. The consultation and review 

necessary for the Corps to approve parts of the Project has consumed much of the time allotted to 

commence construction. Though much of the project development is at a standstill at the present 

time due to the expiration of the Projects' commencement of construction deadlines, this review is 

still ongoing. With the additional time and certainty of an extension of the commencement of 

construction deadline, Jordan will be able to design projects that will meet with Corps approvaL 

Second, Jordan has been unable to proceed with construction because currently the price for 

which the power can be sold is not sufficient to support construction. With an abundance of natural 

gas presently pushing the cost of power downward, Jordan has experienced difficulty in obtaining a 

power purchase agreement in the present financial environment. The Gathright and Flannagan 

Projects are no exception. With the growing realization of the importance on obtaining power from 

renewable resources (both from load-serving utilities and from retail electric consumers), however, 

In fact, on July 21, 2016, FERC and the Corps executed a Memorandum ofljnderstanding to 

facilitate the development of hydropower at Corps facilities by synchronizing each agency's 

licensing and permitting process. See Press Release, FERC, US. Army Corps ~f Engineers Sign 

MOU on nvdropower Development (July 21, 2016). 

2 
304 


Jordan is convinced that, with additional time, we will be able to find a power buyer that will make 

the project economical. 

Jordan seeks a statutory solution that would authorize FERC to extend the commencement of 

construction deadline retroactively for the Gathright Project beyond March 2016 and for the 

Flannagan Project beyond January 2016. The solution that Jordan seeks is not unique. Congress has 

passed numerous other laws that accomplish the same objective. In fact, there are currently several 

other bills before the House, for other FERC-licensed hydroelectric projects, that seck precisely the 

same statutory relief Jordan and its related companies have received three similar extensions to 

begin construction in the past; of those three projects one is generating and the other two will be 

generating within 2 years. These three projects total 159 MW in capacity. These projects probably 

would not have been built without the extensions received. 

Importantly, the statutory language commonly used for this relief does not automatically 

extend the commencement of construction deadline but authorizes FERC to do so as long as 

additional extensions are within the public interest and the project developer continues to 

demonstrate that it is diligently working toward construction. Therefore, FERC will continue to 

exert oversight authority over development of the two Projects. In addition, FFRC itself does not 

oppose this statutmy relief. FERC Chairs have adopted a long-standing policy of not opposing 

legislation that authorizes FERC to extend the commencement of construction deadli~e so long as 

that legislation does not extend the deadline beyond ten years from the issuance date.- This 

commonly used statutmy language is consistent with that policy because it would authorize FERC to 

grant three two-year extensions for a total often years, two under Section 13 of the Federal Power 

Act and an additional six under these three two-year extensions. 

Flll1her, Jordan's request is consistent with recent congressional action intended to spur 

hydropower development at Corps facilities. In the Water Resources Ref(Jrm and Development Act 

of2014, Congress declared it a national policy that "the development of non-Federal hydroelectric 

power at Corps of Engineers civil works projects, including locks and dams, shall be given priority."' 

Moreover, in unanimously passing the Hydropower Regulatory Efficiency Act the prior year, 

Congress found that "only 3 percent of the 80,000 dams in the United States generate electricity, so 

there is substantial potential for adding hydropower generation to nonpowered dams."4 In that 

legislation, Congress also cited a study in finding that, ''by utilizing currently untapped resources, the 

United States could add approximately 60,000 megawatts of new hydropower capacity by 2025, 

which could create 700,000 new jobs over the next 13 years." 

SeeS. Amdt. 579 and HR. 316, the Collinsville Renewable Enerf,._'V Promotion Act Before the 

Subcomm. on Water and Power of' the S. Comm. on Energy and Natural Res., !13th Cong. (20 13) 

(testimony of John Katz, Deputy Assoc. Gen. Counsel, FERC); flmring on HR. 2080, HR, 

2081, HR. 34P. Bill Regarding Jennings Randolph Project No. 12715, Bill Regarding 

Cannonsviile l'nyect No. 13287. and HR. 3021 BejiJre the Suhcomm. On Energy and Power of 

the fl. Conun. On Energy and Commerce, !14th Cong. (2016) (testimony of Ann Miles, Dir. of 

Energy Projects, FFRC). 

Water Resources Reform and Development Act, Pub. L. No. 113-121, 128 Stat. 1193, 1215 

(2014). 

Hydropower Regulatory Efficiency Act, Pub. L. No. 113-23, 127 Stat. 493,493 (2013). 

3 
305 


Nos. ~md 17470) 

Conclusion 

In the !15th Congress, you introduced I!R4411 and l!R44l2-lcgislation that precisely 

mirrors HR446 and HR447 that vou have introduced in this Congress-that would have granted 

FERC the authority to extend th~ commencement of constructi01~ deadlines for the Projects. Those 

two bills passed the House Energy and Commerce Committee and the House itself and were included 

in the comprehensive energy bills (S.20 12 and the House Amendment to S.20 12) that went to 

conference in the !15th Congress. Though Jordan understands that these bills (or the larger 

comprehensive energy bills to which they were attached) were not able to dear the procedural 

hurdles to be passed into law in 2016, Jordan appreciates your prior support of its efforts to develop 

these Projects and sincerely hopes that project-specific legislation can be advanced through this 

Congress. 

The construction of these Projects will provide jobs to an area that is in need of additional 

opportunities. Construction at the site of the Gathright Project should take about 2 years and employ 

20 to 35 workers. The total cost of the Gathright Project will be $8 to $11 million. At a total cost of 

approximately $2 million, construction at the Flannagan Project site take about 18 months and 

employ IS to 25 workers. 

In addition to realizing economic and reliability benefits, completion of the Project would 

provide Virginians a renewable energy resource. This clean energy will directly displace electricity 

that is now provided by fossil fuels. Moreover, because the Projects will operate in "run-of-river" 

mode, the Projects will not a!Tect existing flows that the Corps will release tram its own facilities. In 

shoti, the Projects will conveti the Corps' current flow releases, which currently constitute wasted 

energy, into clean electricity that is capable of supplying clean, renewable energy to approximately 

2,600 homes annually. Further, the environmental impact of these Projects has been closely 

examined by FERC in its NEPA process. 

Jordan appreciates the leadership you have demonstrated in championing an "all of the 

above" energy policy that includes renewable energy development, including by private interests 

such as Jordan, as we!! as your introduction of l!R446 and IIR447 in suppoti of these Projects. 

Jordan looks forward to working with you and your statfto secure the time and certainty that would 

be afforded by a statutory solution to the project development hurdle that Jordan now encounters. 

With your assistance, we can clear this hurdle to ensure that the benefits of the Gathright and 

Flannagan Projects arc realized for the people of the 9th District of Virginia. 

4 

Sincerely, 

James Price 

President 

Jordan Hydroelectric Limited Partnership 
306 


Administration 

143 Third Street NW, Suite ' 

Pulaski, VA 24301 

540-980-7705 

540-980-7717 (fax) 

www.pulaskicounty .org 

jsweet@pulaskicounty.org 

May 1, 2017 

The Honorable Morgan Griffith 

Member of Congress 

2202 Ray bum HOB 

Washington, D.C. 20515 

RE: SHORE Act Letter of Support 

Dear Congressman Griffith, 

Pulaski County 

Where There Is Room to Grow 

In Virginia's New River Valley! 

On behalf of the citizens of Pulaski County, Virginia, please allow this letter to 

demonstrate support for the SHORE Act (H.R. 1538) that you introduced during the usu, 

Congress. As you may know, Pulaski County citizens have expressed concerns regarding 

the preservation of private property rights at Claytor Lake, which is managed by 

Appalachian Power under a license from FERC. The SHORE Act's intent to ensure 

private property rights and land use are considered by FERC when making regulatory 

decisions is precisely the type of legislation needed to address concerns being voiced by 

Pulaski County residents. While Pulaski County and Appalachian Power have a long 

cooperative partnership at Claytor Lake, having legislation in place that helps protect 

private property values is critical to long-term economic growth of the County. 

The Pulaski County Board of Supervisors appreciates your continued support of 

initiatives that improve the quality of life for citizens of Pulaski County! Please feel free to 

contact me at 540-980-7705 if you have any questions or would like any additional 

information. 

l\1 

County Admmtstrator 

CC Pulaski County Board of Supervisors 
307 


NAT!ONAl HECTRI(A~ CON1RACTOR5 AS.SO(IAT!ON 

May 2, 2017 

The Honorable Fred Upton 

Chairman 

Subcommittee on Energy 

Washington, DC 20510 

Dear Chairman Upton and Ranking Member Rush: 

The Honorable Bobby Rush 

Ranking Member 

Subcommittee on Energy 

Washington, DC 20510 

On behalf of the National Electrical Contractors Association (NECA), I am writing in 

strong support of pending energy legislation being considering by the Energy and 

Commerce Committee. NECA urges Members of the committee to pass these critical 

pieces of legislation, especially H.R.----' Hydropower Policy Modernization Act of 

2017 and H.R.----' Promoting Cross-Border Energy Infrastructure Act. 

These long-term energy policy measures focus on the transmission, distribution, 

storage of energy, and federal permitting process to ensure we have the necessary 

infrastructure to meet today's modern energy challenges and will bring our nation's 

energy policies into the 21st century. 

NECA is the nationally recognized voice of the $130 billion electrical construction 

industry that brings power, light, and communication technology to buildings and 

communities across the U.S. NECA's national office and its 119local chapters are 

dedicated to enhancing the industry through continuing education, labor relations, 

safety codes, standards development, and government relations. NECA is committed 

to advocating for a comprehensive energy policy that addresses all available 

opportunities for energy exploration and independence. 

The benefits of energy legislation are clear: job creation, energy security, energy 

independence, and economic growth. We urge the committee to move this critical 

legislation forward to a full committee vote as soon as possible. 

Marco A. CJiambcrardino, MP A 

Executive Director 

Government Affairs 

NAl'lONAL ELECTRICAL CoNTRACTORS AssocJATlON 

3 Bethesda ~1crro Center ~ Suite nou j, Bethesda, MD :zo8q "' 301 657 3no ., 3or 215 4500 FAX 

www.~ EC/\ ~ ET.oRG 
308 


GENERAL OFFICE 

OKANOGAN, WA 98840 

P.O. BOX 912 

(509) 422-33\0 

FAX 4.22-4020 

OMAK, WA 9684 I 

PO. BOX 2086 

(509) 422-6380 

FAX 422-8382 

BREWSTER, WA 98812 

P.O BOX \87 

(509) 689-2.502 

FAX 689-3090 

(509) 997-2526 

FAX 997-1719 

PUBLIC UTILITY DISTRICT NO. 1 OF OKANOGAN COUNTY 

May 3, 2017 

Chairman Fred Upton 

Ranking Member Bobby Rush 

Subcommittee on Energy 

House Energy and Commerce Committee 

2125 Rayburn House Office Building 

Washington, D.C. 20515 

Chairman Upton and Representative Rush: 

In 2013, the Federal Energy Regulatory Commission ("FERC') granted the Public Utility 

District No. I of Okanogan County ("the District") an original license for the Enloe Dam 

Hydroelectric Project (FERC Project No. 12569) ("'Enloe Project") to be located at the existing 

Enloe Dam, situated in a narrow constriction of the Similkameen River Valley, about 3.5 miles 

northwest of the City of Oroville. Section 13 of the Federal Power Act requires licensees to 

commence construction of hydroelectric projects within four years of license issuance. and 

therefore the District faces a July 9, 2017 deadline to commence construction on the Enloe 

Project. Development of the Enloe Project has experienced setbacks. disCL!ssed below, that have 

complicated the District's ability to meet this deadline. For this reason, consistent with prior 

Congressional actions in similar circumstances, the District is requesting support from Congress 

to extend the commencement of construction deadline and to ensure that the benefits of the 

Enloe Project may be realized. 

Summarv of the Enloe Project 

The Enloe Dam was constructed in 1920 on Bureau of Land Management ("BLM") lands for 

power generation and was initially licensed by the Federal Power Commission, predecessor of 

FERC. The District acquired the Enloe Project in 1945, but the Enloe Project ceased operation 

in 1958 when the extension of Bonneville Power Administration's high voltage transmission line 

into the Okanogan Valley provided a Jess expensive source of power. Under the current FERC 

license, the District will relocate the site for hydropower development to the opposite bank, 

which offers both environmental and construction advantages. The proposed 9 MW facility has 

a footprint that is about half the size of the existing facilities, while providing nearly three times 

the generating capacity of the existing decommissioned plant. The Enloe Project will utilize the 

existing dam and construct the remaining project features. 

Okanogan County PUD l I age 
309 


Project Development Efforts 

Since issuance of the license. the District has worked diligently toward developing. and taken the 

necessary steps toward commencing construction of, the Enloe Project. To date, the District has 

submitted twelve project-specific drawings and management plans required by the FERC license. 

These management plans encompass a variety of subject matters, including, among others, 

(I) dam and public safety. (2) historic preservation, (3) recreation, (4) wildlife protection, and 

(5) protection of a threatened form of vegetation. All have been approved by FER C. In addition. 

pursuant to a license requirement, the District removed a deteriorated building located within the 

project boundary, and the Commission issued a letter confirming the District's compliance with 

this requirement. Therefore. the District has been diligently ful1illing pre-construction 

requirements imposed by the FERC license. 

Despite the District's diligent c!Torts to develop the Enloe Project, it has not been able to 

commence construction within the statutory deadline. Concurrent with the District's diligent 

preparation of the requisite plans, it faced legal challenges to its water rights. Resolving the 

issue of the District's water rights proved particularly time- and resource-intensive. This 

challenge worked its way through the administrative process before both the Washington State 

Department of Ecology and the Washington Pollution Control Hearing Board, as well as the state 

Superior Court and the Court of Appeals. The District is pleased to report that the litigation has 

terminated with a favorable ruling in the court of appeals in October 2016. Despite this legal 

victory. the litigation demands and a variety of conflicting internal and budgetary constraints 

required the District to defer proceeding with construction-related license requirements. 

With the water rights litigation concluded in October 2016, the District immediately proceeded 

with the identification of a design and construction firm to take on the work of constructing the 

Enloe Project. Okanogan commenced this work by applying to the state agency charged with 

reviewing alternative public works contracting procedures to obtain approval to employ a designbuild contracting modeL 'T'he District determined that the design-build contracting model would 

be the most efficient and cost-effective contracting method because, among other benefits, it 

offers greater innovation and efficiencies through value engineering executed by the design 

engineer, generating equipment supplier and construction contractor working as a team. Having 

obtained approval for usc of the design-build model, the District issued a request for proposals 

("RFP") and is currently evaluating responses. 

As demonstrated above, the District has proceeded with diligence in pursuing the Enloe Project 

and looks forward to selecting a firm through the RFP process to advance the District's project 

development efforts to date. 

Request for Congressional Action 

Following the protracted litigation over the District's water rights, the District now seeks a 

statutory solution that would authorize FERC to extend the commencement of construction 

deadline for the Enloe Project in order to accommodate the District's development constraints. 

The relief the District is seeking is fairly common among FERC licensees. Our research 

indicates that. since the 1 04th Congress, 33 similar bills extending the commencement of 

construction deadline for specific projects have been signed into law. The language has become 

nearly proforma over the many years that such project-specific commencement of construction 

Okanogan County PUD 
310 


deadline extensions have been introduced into and passed by Congress. This pro jimna 

legislation has two clauses. The first clause authorizes FERC to extend a commencement of 

construction deadline for an additional six years, in three two-year increments. The second 

clause directs that, if the period for commencing construction has expired prior to the bill's 

enactment, FERC is to reinstate the license. 

In reviewing the current legislation before the Subcommittee at its May 3rd, 2017 hearing, the 

District notes that the discussion draft entitled "Hydropower Policy Modernization Act" would 

amend Section 13 of the Federal Power Act to provide FERC the authority to grant a licensee up 

to a total of ten, rather than a mere four, years to commence construction. As the District 

understands, this discussion draft would still require that FERC grant such extensions only when 

in the public interest, consistent with the existing provisions of Section 13. In short, the 

discussion draft would closely follow the intent of the first clause in the proforma projectspecific legislation. 

The District supports this discussion draft because it will reduce the burden on a FERC licensee 

that is incapable of commencing construction within four years, such as the District, of seeking 

project-specific legislation that will allow it to continue its pursuit of its FERC-Iicensed 

hydropower project. The District, however, understands that many bills introduced in the prior 

!15th Congress were unable to clear the procedural hurdles required for enactment despite being 

appended to the comprehensive energy package that emerged from both Houses of Congressspecifically S.20 12 and the House Amendment to S.20 12. For that reason, the District believes 

that, in recognition of those licensees as well as other licensees whose commencement of 

construction deadlines arc set to expire within the coming months, the discussion draft of the 

"Hydropower Policy Modernization Act" should be amended to include a reinstatement 

provision similar to the following: 

If the period required for commencement of construction of any 

Commission-licensed project has expired within the past tlve years 

of the date of the enactment of this Act, the Commission may 

reinstate the license effective as of the date of its expiration and 

extend the time limit for commencement of construction in twoyear increments, as described above, so long as the time period for 

commencement of construction does not exceed I 0 years. 

The discussion draft would, therefore, more closely mirror the proforma project-specific 

legislation by including a second reinstatement provision. 

The District enjoys the strong support of Congressman Newhouse, ;vith whom the District is 

working to develop a project-specific bill applicable to the Enloe Project. Nevertheless, 

providing FERC with the authority to reinstate the license of any licensee that was unable to 

satisfy the existing four-year commencement of construction deadline within some definite 

period of time-five years in the proposed language above-will afford a level of certainty to 

those existing licensees whose project-specific bills were not enacted in the prior Congress due 

to the failure to pass a consensus energy policy bill. 

Okanogan County PUD 3 I age 
311 


Conclusion 

The District's request for Congressional action. which would afford it additional time to pursw: 

the Enloe Project. is consistent with recent Congressional action evidencing an intent to spur 

hydropower development at existing non-powered darns. In unanimously passing the 

! lydropowcr Regulatory E11icicncy Act of 2013 ("HREA"). Congress found that "only 3 percent 

of the 80.000 dams in the United States generate electricity, so there is substantial potential for 

adding hydrop,)wcr generation ro nonpowercd dams" (Pub. L. No. 113-23, 117 Stat. 493, 493). 

Congress also found that. "by utilizing currently untapped resources, the United States could add 

approximately 60.000 megawatts of new hydropower capacity by 2025, which could create 

700.000 new jobs over the next 13 years.'' The Enloe Project would electrify an existing 13LM 

dam and thus is precisely the type of low-hanging fruit that Congress intended to incentivize 

with passage of the liRE>\. 

Pursuit of the Enloe Project makes economic and environmental sense. In addition to the !act 

that construction of the Project will provide much-needed employment opportunities to an area 

''ith an unemployment rate that tar exceeds the national average, completion of the Enloe 

Proj<:ct will provick Washingtonians and their neighbors in the region a dean, renewable energy 

resource. generating about 45,000 :V1Wh per year of renewable, carbon-free power, an eqL1ivalent 

to I 4 wind turbines. Further. because the Enloe Project will be located at the site of an existing 

dam. it vv ill conwrt the currently untapped energy in existing !low releases into clean renewable 

electricity. 

The District appreciates the Subcommillce's efforts to reduce regulatory burdens that FERC 

applicants tilce in obtaining a Federal Power Act license to construct. operate, and maintain a 

hydroelectric ti1cility. The District looks lorwurd to any opportunity it has to disCLlss the benetits 

ufthc Lnloc Dam Hydroelectric Project. Please do not hesitate to contact me if you have any 

questions about the Enloe Project. 

Okanogan County PUD 
312 


AMERICAN 

PUBLIC 

pa·~~ - •• ... Kw ASSOCIATION 

1\r!in;::Jton. VA 222Cl2-4f:\04 

~lay 3, 2017 

The I Ionorablc Fred l'pton 

Chairman, House Fncrgy Subcommittee 

2183 Rayburn House Office Building 

Washington, D.C'. 20515 

Dear Chairman Upton and Ranking ~lcmbcr Rush: 

The Honorable Bobby Rush 

Ranking Member, House Energy 

Subcommittee 

2188 Rayburn House Office Builcling 

\Vashington, D.C. 20515 

On bchalfofthc American Public Power Association (APPA or Association), I am writing to 

express our support for the Subcommittee on holding a legislative hearing on various 

hydropower and pipeline coordination APPA is the national service organization 

representing the interests conununity~o\vncd, not-for-profit electric utilities. These 

utilities include state public agencies, municipal electric utilities. and special utility districts 

that provide lO\v~cost, electricity and other services to over 49 million Americans. 

Public power utilities have kd in hydropower development in recent years. Today. one hundred 

public power utilities have Federal Energy Regulatory Commission (FERC or Commission)~ 

licensed hydropower facilities. :\·taking full use of the nation's hydropower resources is key to 

ensuring that the nation's grid remains reliable and resilient, and that utilities can meet emission 

reduction goals. Hydropovver is a source ofemissions~rree, base~!oad power. ;vtoreover, 

hydropovier· s "black start" capability m<~kcs it highly valuable through the lens or concerns about 

cybcr and physical securit); in instam:es of outages or di~ruptions to the grid, hydropower units 

can cycle back on quickly and become a backhone of full power restorotion. 

There is a significant potential for new hydropower to be generated at non~powcrcd dams 

throughout the country, as we!! as for hydropO\vcr output to be dramatically increased in existing 

hydropower facilities and at \'\later distribution conduits/canals. But there arc excessive barriers to 

tapping this potential. 

The Association appreciates the subcommittee 

important somcc of renewable power and 

infl·astructure moderni?ation. The I fydropowcr 

incmporatcs much or the language developed in the 

Congress that APPA supportl'd. 

the importance of hydropower as an 

examine hydropower 

Mccdec·niz.aticm Act of20 17 discussion draft 

In addition, APPA appreciates the subcommittee's examination or the Promoting Interagency 

Coordination for Revic\\ of-:\'atural Gas Pipelines Act. This discussion draft is similar to 

language in Section! 101 oCHX. 8, the ~onh American Energy ScL:urity and Inffastructure Act, 

thot was passed the House of Representatives in the l !41

'' Congress, Given many public power 

utilities have plan to build new natural gas plants for either bascload power or to back up 

Intermittent renewable it is important they have access to interstate natural gas 

pipeline~. Tht' \Yould help expedite the permitting of int~rswte natural 

gas pipelines by role as the lead agency for siting and requiring 

We look fixward 

your leadership on 

Sincerely, 

environmental reviews concurrently. 
313 


WRITTEN TESTIMONY OF KEVIN COLBURN ON BEHALF OF AMERICAN WHITEWATER 

UNITED STATES HOUSE OF REPRESENTATIVES 

THE ENERGY AND COMMERCE COMMITTEE 

ENERGY SUBCOMMITTEE 

HEARING ON "MODERNIZING ENERGY INFRASTRUCTURE: CHALLENGES AND OPPORTUNITIES TO 

EXPANDING HYDROPOWER GENERATION" 

CONGRESSMAN FRED UPTON, CHAIRMAN 

HEARING ON MARCH 15,2017 

TESTIMONY SUBMITTED BY KEVIN COLBURN 

NATIONAL STEWARDSHIP DIRECTOR, AMERICAN WHITEWATER 

629 WEST MAIN ST, SYLVA, NC 28779 

Chairman Upton, Ranking Member Rush, and Members of the Subcommittee: 

American Whitewater appreciates having the opportunity to provide written testimony in relation 

to the March 15th Committee hearing on challenges and opportunities in expanding hydropower 

generation. 

American Whitewater is a national 501(c)(3) non-profit organization with a mission "to conserve 

and restore America's whitewater resources and to enhance opportunities to enjoy them safely." 

With approximately 6,000 members and 100 affiliate clubs, we represent the conservation 

interests of tens of thousands of whitewater enthusiasts across the country. Since the early 

1990's, we have actively participated in the FERC hydropower licensing and relicensing process 

on well over 100 dams. Through the Federal Power Act, our efforts have brought life back to 

rivers that had been severely impacted by hydropower for decades. In our work, we strive to 

balance society's need for power with what flowing rivers also do for fish, wildlife and our 

communities. As these rivers have been restored, so have local economies that depend on 

outdoor recreation, including paddlesports, fishing, and other river-dependent recreation. 

The Hydropower Relicensing Process Offers Opportunities For Rural Communities to 

Reclaim Rivers. 

Hydropower dams have dried up river beds that provide fishing and boating opportunities for 

local residents and visitors. inundated towns and farmlands under reservoirs, and blocked the 

migration of fish-including many species that provide economic and cultural value for local and 

regional communities. Many rural communities still suffer from these enduring losses today. 

Through the federal hydropower relicensing process of the Federal Energy Regulatory 

Commission (FERC), American Whitewater has worked as a public interest advocate to restore 

water and economic opportunities to communities across the country. We highlight several of 

our success stories below. 
314 


The Cheoah River was dewatered by Santeetlah Dam for 77 years before it roared back to life 

in 2005. We successfully advocated for 20 annual high flows and year-round base flows which 

together mimic key components of natural river while continuing to allow for ample power 

generation. These releases have become a recreational treasure in Graham County, which is 

one of the poorest counties in North Carolina. Anglers are reporting high quality smallmouth 

bass fishing, and last month an estimated 600 paddlers descended the river during a single 

scheduled release. Graham County recently passed a resolution in favor of additional 

recreational dam releases on the Cheoah, an outcome that is possible and envisioned in the 

FERC license. These transformative benefits for the communities around the river were 

apparently not overly burdensome on the Licensee, who sold the newly licensed project (the 

Tapoco Project, which includes four dams) in 2012, reportedly for $600 million dollars. 1 

Nearby, power generation releases on North Carolina's Nantahala and Tuckasegee rivers are 

scheduled in advance to allow for profitable power generation as well as predictable rafting, 

canoeing, and kayaking. These releases support a large number of tourism related jobs in this 

rural Appalachian region, and are the result of collaboratively developed licenses that American 

Whitewater helped craft. A 2009 study found that the largest and one of many rafting outfitters in 

the area, the Nantahala Outdoor Center, created and maintains 579 jobs and contributed a total 

of $48,073,691 to the local economy in 2008. 2 

In the early part of the 20th century, the Feather River in California was known as a world-class 

trout fishery until a series of dams either inundated or dewatered the river for much of its length. 

American Whitewater engaged in the relicensing process and was successful at securing new 

flows in several reaches that restore vital ecological functions to the river. The result has been a 

30% increase in flows, better fishing, and popular kayaking and rafting opportunities, with only a 

modest 6% reduction in power production. 

These examples illustrate that the modern relicensing process is capable of producing 

outcomes that allow for power generation while restoring ecological, recreational, and economic 

values with direct benefit to local communities. It would be an overstatement, however, to say 

that these rivers are flourishing. They remain severely impacted by the enormous footprint of the 

projects and their ongoing operations. They are working rivers with chronic problems, but the 

relicensing process has required the power companies to share the rivers with their neighboring 

communities, with many species that call these rivers home, and with the public who owns the 

river. That well-reasoned reallocation of a fraction of the river's water, which the relicensing 

process has facilitated, has indeed had profound benefits on rural and natural communities alike 

with corresponding positive economic benefits. 

1 htlJ.l•/11}1_\\'_wthE>.d ai lylim<Js,£QmLn!lwsl<3_1goa51Qs_€J'>:'<i <!mc:s?LEJ:ctsl ~c)<:_a:nQw:!JrggJ<fl€Jid_:.§llJ.OI<Y:JTl_a_Ll_n_taln_: 

hydrQPower/article 90c65b1 b-17f2-53cc-846f-03a2a541 a6a1.html T. -- ------- ---- ·- -~. - . ----- -- -- ~-- ----- -- ---- -~--- -----------

hlliJ/IQiJla_library.nem<Jc_,l)rg/swnc/e;[W..§/g_ef_il_Lllt/JiiE!_S{£0_Q~%£Qfi<Jfllah:oJLa')'_o_2_QG_(J[98_"{Q~Q_i;cQf1Qrn.i£'\lo2QirnJl 

?cl"/o£0Study.pdf 

2 
315 


Hydropower is a Mature, Built-Out Energy Source, and is Appropriately Challenged By 

Free Market Competition From Young Energy Sources That Have Ample Room To Grow. 

Generating electricity from hydropower is a more than century-old technology that has already 

been employed and operational at an enormous scale; the vast majority of potential sites have 

already been developed. We contrast this development with wind, solar, and advances in 

batteries and energy efficiency. that are each in their relative infancy and growing rapidly. In 

2016 alone, more than 14 GW of new solar power and 8 GW of wind power was brought online 

in the United States-" In contrast, the Department of Energy estimates new hydropower potential 

over the next 34 years totals between 5.2 GW under a "business as usual scenario," and 12.8 

GW with advances in technology and low cost financing 4 (Note that these figures do not include 

pumped storage that can be used for energy storage and is sometimes included in estimates of 

future hydropower potential.) Simply put, it will take creative action and 34 years for additional 

hydropower generation to compete with what wind or solar added to the grid last year alone. 

Hydropower already plays a significant role in our energy system and we anticipate that it will 

continue to do so for many years to come. As the Hydropower Vision Report outlines, it is 

unlikely that hydropower will grow significantly, especially relative to wind, solar, and associated 

battery storage systems. Instead of providing baseload generation, hydropower's value in the 

future will be one of helping to regulate the grid as these renewables continue to grow. In fact, it 

is reasonable to assume that these changes will leave some hydropower projects unprofitable 

and lead to removal. The future may well involve fewer hydropower projects, with those that 

remain being more efficient and effective at meeting the needs of the grid. 

The Only Appropriate Opportunity For Expanding Hydropower Generation is at Existing 

Dams. 

The Department of Energy's Hydropower Vision Report specifies that there is no potential for 

additional generation from new stream development under current circumstances, and potential 

for just 1.7 GW between now and 2050 if technological advances are realized and low-cost 

financing is in place. Instead of developing new projects, the future of expanding hydropower 

generation lies within upgrading existing projects and retrofitting non-powered dams. We 

support this effort if it is done in a responsible manner that protects public trust resources. 

As mentioned above, the Department of Energy estimates that 5.2 GW of new hydropower 

capacity can be added through such upgrades and installations over the next 34 years. 5 While 

3 Solar Energy Industries Association. (n.d.) Solar Market Insight Report 2016 Year in Review. 

lltJp•IJ\'\Iw'{ll~l?~a.Qrgl~-~9r~ll~r~"-o'Jic;E)§I'3~l'!f·ITl_atj<§t-iD§igilt,rEillQri~£Q16-=Y§_"l:"JeviE)_'!{ (last visited March 

12, 2017); and American Wind Energy Association. (n.d.) U.S. Wind Industry Fourth Quarter 2016 Market 

Update. Available at htillllal'@_<')ii~.s .• gfD§:RIUs.cQm/Ei!!'l[)o'!{nLoE!dsiQdfsj4Q2Q113_%ZO£as;t ;\,2Q_~~t.RdJ 

\last visited March 12. 2017). 

U.S. Department of Energy, Wind and Water Power Technologies Office. Hydropower Vision Report. 

July 2016. P. 18. Available at httJUienergy,goy/eerelwater/ar\igl('ls/hydrQQQ\>\'er_::_visiQD-=DE3'{11~t;_h?fltEJI: 

~meriga-~s:Jst,renewatJie,e_le_ctn<:ity-~Q_urce (last visited March 12, 2017). 

Hydropower Vision Report at 18. See also "business as usual" alternative, Table ES-2. 

3 
316 


by no means a game-changing figure, this capacity is low hanging fruit. We have supported 

projects that fit this category, including the major capacity increase at Holtwood Dam on the 

Susquehanna River in Pennsylvania and numerous smaller projects. 

During the hearing, there was discussion that it was potentially possible to add hydropower 

capabilities to at least half of the 80,000 existing dams without hydropower. While the 

Department of Energy's 2016 Hydropower Vision Report estimates that potential exists to add 

hydropower to over 50,000 non-powered dams in the U.S., it is not practical to do so at the 

majority of these projects. The Report wisely places a filter on this number for projects that have 

a minimum capacity of 500 kW, reducing the number of non-powered dams where it is practical 

to add hydropower capabilities to just 671 damsB 

Constructing new dams does not make sense in this era of rapid market changes. We support 

improving efficiencies at existing hydropower projects and adding hydropower capabilities to 

non-powered dams in large part because of the profound cumulative impacts that over a century 

of rampant private hydropower development have had on our public rivers. Our dammed, 

working rivers are already severely impaired, and our remaining free-flowing rivers are rare and 

more important than ever as biological strongholds and recreational destinations. 

The Importance of Collaboration Among Stakeholders and State and Federal Resource 

Agencies. 

FERC's Integrated Licensing Process appropriately contains involvement from tribal, state and 

federal agencies with expertise in energy, fish and wildlife, water quality, recreation and cultural 

values. In our experience, good outcomes like those described above happen when the 

licensee works collaboratively with all stakeholders throughout the entire process. This includes 

ensuring that there is robust, scientifically sound data early in the process about the project and 

the river, and a willingness to mitigate the Project's impacts. When collaboration does not 

happen disagreements and intransigence lead to delays, administrative challenges, and 

occasionally litigation, which is expensive and time consuming. We reference David Steindorf's 

testimony on behalf of the Hydropower Reform Coalition for suggestions to ensure that the 

process is a collaborative one? 

Legislators proposed hydropower legislation in the last session of Congress (H.R. 8) that would 

have shifted responsibility for all of these areas to FERC. During the hearing questions arose 

about whether this should be pursued again. Our answer is no. Aside from licensing hydropower 

projects, FERC is an independent agency responsible for regulating the interstate transmission 

of electricity, natural gas and oil. By design, it does not have sufficient expertise relevant to 

rivers. This is the mandate given to other agencies, including the U.S. Forest Service, U.S. 

Bureau of Land Management, U.S. Fish and Wildlife Service, and state and tribal water quality 

agencies. 

6 !d. at 252. 7 ht!!J://docs.houseJJOV/meetin,ill;/IF/IF03/20170315/1 05702/HHRG-115-IF03-Wstate-Steindorf0- ?Q~1ZQ315.Q:d-(ia;t acG;,sscCi-ivlarch 23, 2oiT _____ ---- - - -- - - ---- -- --- --- ------ -

4 
317 


When stakeholders cooperate, the Integrated Licensing Process takes approximately six years. 

While some compare this timeframe to the process for permitting a natural gas plant, we believe 

this is an unfair comparison. The impact of the two technologies is completely different 

Hydropower dams automatically change the function and use and enjoyment of a publicly 

owned river by blocking it and significantly altering its flow, preventing species from accessing 

critical parts of their habitat Additionally, hydropower license terms last for 30-50 years. 

Further, hydropower licenses cover projects that can involve multiple dams, reservoirs and 

powerhouses, and more than one river. Some of the projects we've worked on in California 

involve dozens of dams and the footprint of one is the size of the state of Rhode Island. 

Additionally, the hydropower facilities that are up for relicensing now were first constructed 

before virtually all modern environmental laws were in place. It is during relicensing proceedings 

that the public gets the opportunity to ensure that dam owners make the necessary changes to 

comply with modern laws. The opportunity to mitigate for the damage to the environment, while 

still providing reliable electricity, only arises once in a generation or two. For all of these 

reasons, it makes sense to take the time to get it right 

Hydropower Emits Greenhouse Gasses. 

The idea that hydropower is a "clean, green, and renewable" source of power is a myth. In 

addition to the impacts to water quality, riparian habitat, and natural life cycles of aquatic fish 

and wildlife, the technology contributes to greenhouse gas emissions. Reservoirs behind dams 

are not carbon-neutral, but instead are responsible for approximately 1 .3% of anthropogenic 

C02 equivalent emissions world-wide over a 1 DO-year timespan. 8 In addition to carbon, 

reservoirs emit methane which has 34 times the warming potential as carbon 9 We recognize 

that these reservoirs emit less carbon than a coal-fired power plant, but to say that they are 

carbon-free is incorrect 

Response to Sacramento Municipal Utility District's Testimony. 

One of the projects that we consider as an example of a relicensing success is that of the 

Sacramento Municipal Utility District's (SMUD) Upper American River Project (UARP) (FERC 

Project No. P-21 01 ). American Whitewater participated in relicensing negotiations and was a 

signatory to the relicensing Settlement Agreement in 2007, as was SMUD. Given the spirit of 

collaboration and the final agreement, we were surprised to see SMUD's written testimony for 

this hearing in which it states: 

''The UARP was once an effective resource for meeting fluctuations in peak energy 

demand. But in the years since relicensing, the majority of water releases are for 

8 Deemer B, Harrison J, LiS, Beaulieu J, DeiSontro T, Barros N, Bezerra-Neto J, Powers S, DosSantos 

M, Vonk J. 2016. Greenhouse Gas Emissions from Reservoir Water Surfaces: A New Global Synthesis. 

BioScience 66: 949-964. 

9/d. 

5 
318 


recreational purposes, leaving little water available to release into turbines during the 

late afternoon and early evening when summer air-conditioning needs are highest. "

10 

SMUD would have the Committee believe that recreational releases are solely responsible for 

taking down what once was a great hydropower project. Nothing could be further from the truth. 

As SMUD points out in its testimony, the UARP is a 688-megawatt hydroelectric project that 

consists of 11 reservoirs and 8 powerhouses. The project is complex, with a footprint that spans 

an area from the crest of the Sierra Nevada mountains to the foothill communities of the 

Sacramento Valley. SMUD fails to specify which releases at which dams are causing this 

alleged issue. If it is referring to the few recreational releases that occur at Ice House Dam or 

Slab Creek, it is important that the Committee understand that the total amount of water that is 

returned to the river for these releases is a fraction of 1% of the water that SMUD diverts to 

produce power. 

We believe that SMUD is likely referring to its obligations to coordinate with Pacific Gas and 

Electric (PG&E), which owns and operates the Chili Bar Hydroelectric Project (P-2155) 

immediately downstream of the UARP. The flow provided at PG&E's Chili Bar Project are critical 

for the Lower South Fork American River because it is home to the largest commercial rafting 

industry on the West Coast, bringing in more than $30 million to the local economy. The Chili 

Bar Dam and Reservoir are specifically designed to regulate flows into the Lower South Fork 

American River, which allows SMUD to operate the upstream UARP facilities in a peaking 

mode. In its testimony, SMUD failed to provide any evidence that its ability to provide grid 

regulating capabilities is compromised by its agreement with PG&E. American Whitewater 

participates in monthly license implementation meetings with SMUD and other stakeholders for 

the UARP, and SMUD has failed to provide any evidence of this in that setting as well. 

SMUD's statements are particularly perplexing in light of the fact that it was a willing participant 

in settlement negotiations and agreed to these flow conditions when it signed the 2007 

Settlement Agreement. This settlement was based upon the understanding that, while we all did 

not get everything that we wanted in negotiations, we found this agreement to be enough of an 

acceptable compromise for FERC to issue SMUDa 50-year license term. Is unclear to us why 

SMUD is now indicating that this settlement was an agreement that they were forced into and is 

inherently unfair to their interests, their ratepayers and their community. Where SMUD could 

have challenged agency conditions in a trial-type hearing, or before FERC or the California 

State Water Resources Control Board during the process, they did not. Instead, SMUD helped 

to craft the Agreement that states, "the Parties agree that this Settlement is fair and reasonable 

and in the public interest, consistent with the standards under the FPA." 11 SMUD also stated 

that it "agreed that the Settlement appropriately balances all interests and resources related to 

'

0 Sacramento Municipal Utility District. Testimony for the House Energy and Commerce Subcommittee 

on Energy Hearing on Modernizing Energy Infrastructure: Challenges and Opportunities to Expand 

Hydropower Generation. March 15,2017. Available at: 

httpj{qo<:;s)JousEUJoYimeeti.nft§Lif /lF02@1 ]OJ.l ~J.05]Q.2/tiH.RG-1_1 _!8F~o3:_2Q.!!Q315-SDO 11 .pdf (last 

visited March 24, 2017). 

'' Relicensing Settlement Agreement for the Upper American River Project and Chili Bar Hydroelectric 

Project. January 2007. §2.1, p. 9. (FERC Project No. P-2101, elibrary Accession No. 20070201-4014) 

6 
319 


relicencing of the UARP. SMUD applauds the efforts of the Settling parties in studying impacts 

of the UARP, assessing and analyzing study requests, understanding and working through 

differences, and ultimately negotiating the Settlement.'" 2 

Even more perplexing is that SMUD voluntarily provided these very same fiows that it complains 

about for seven years before its license was finalized, which is contrary to its statement that 

there has been little water available for power generation because of recreational releases "in 

the years since relicensing." It is unclear to us why SMUD would offer to do this before the 

license was implemented if providing these flows had such an extreme impact to their ability to 

produce power. 

SMUD also takes aim at the relicensing process indicating that the conditions placed on a 

license by resource agencies can only be challenged through the costly and time consuming 

trial-type hearing process. We agree that that this adversarial process is costly and time 

consuming, which is why we have opposed it since it was proposed by the industry back in 

2005. SMUD also suggests that allowing agencies to have a reasonable basis defense for their 

conditions sets the bar too high for utilities to prevail in a hearing. We disagree. Going back to 

the days where sound science and resource protection are thrown out the window in favor of 

eking every last ounce of power from rivers would be a huge step backwards. 

Conclusion 

We thank the Subcommittee for this opportunity to provide testimony on hydropower's future, 

which will affect rivers and recreation-based rural economies nationwide. We have significant 

experience with relicensing hydropower dams and feel that implementation of the Integrated 

Licensing Process has encouraged enhanced collaboration among all stakeholders. Placing 

more authority with FERC, an agency with DC-based decision makers, and less with local 

stakeholders and resource agencies that have on-the-ground expertise. will only serve to 

discourage this collaborative approach and local decision-making. 

Much of the testimony before the Committee focused on the opportunity to increase capacity at 

existing dams through efficiency improvements and retrofitting existing non-powered dams to 

add generation capacity. We support this approach, and to the extent modest regulatory reforms 

will encourage this type of development, we welcome any opportunity to work with the members 

of the Committee, tribes, resource agencies, and utilities on comprehensive solutions that 

create these new opportunities, provided they are fully protective of our aquatic resources. We 

do not support or see potential for the construction of new hydropower dams. 

12 Sacramento Municipal Utility District. Explanatory Statement and Request for Technical Conference. 

2/1/2007. P. 2. (FERC Project No. P-2101, elibrary Accession No. 20070201-4014) 

7 
320 


WESTERN 

GOVERNORS' 

ASSOCIATION 

Src•vc• Bullnck 

Cill\'l'!"!l\lr ,)f Mtmtana 

Chair 

Dennis l\-mganrd 

(J,)\'ermlr tlfs,,urh Dab)ta 

ViL.t'(:hair 

James D. Clgshury 

Executive Dinxt()f 

](1\.\\ Hn>d(hV,I) 

~Ultt' l700 

Denver. CO ~02l~2 

h'1-62 VJ17H 

t,1~ 30)-':JH-71l"0 

4~._-\1 ;\1. ( :<lpitul ~trCL't, N.\V 

Sullt' )76 

\X/,~,hin~(tnn, 1\C. .:OC\)1 

2,'~-62-J.-5-f\.)2 

E1x 202·()2+7707 

\\'\YW.\\'l'~!)..;d\'.tWg 

May 1, 2017 

Honorable Greg \rValden, Chairman 

Committee on Energy and Commerce 

G.S. House of Representatives 

2125 Hay burn HousP Offke Building 

vVashington, D.C. 20515 

HonorablE: Frank]. Pallone, Ranking Member 

Committf'e on Energy and Commerce 

U.S. House of Representatives 

2322A Rayburn House Office Building 

Washington, D.C. 20515 

Dear Chairman Walden and Ranking Member Pallone: 

YVestern Govt~rnors recognize the importance of renewable energy sources, 

including hydropovver, as critical components of an all-of-the-above nationnl 

energy portfolio. The West accounts for nearly 70 percent of the nation's 

hydroelectric power gener<:1tion, and the Pacific Northwest is the nation's largest 

hydropower-producing region. Western Governors support improving the 

efficiency of existing hydropmver systems and increasing the amount of 

electricity gt'nemted from new, retrofitted, or relicensed hydroelectric facilities. 

States are vested with primary authority to manage water within their borders, 

and they have the nuthority to develop, use, control and distribute water 

rpsources \Vi thin their boundariPs. As expressed in section 13(l)(a) of WGA 

Policy I~esolution 2015-08, \-Vater l\esource tVfanngement in the \Vest (attached): 

VVhih~ the Western Governors acknowledge the important role of 

federal laws such as the Clean Water Act, the Endangered Species 

Act and the Safe Drinking Water Act, nothing in any act of 

Congress or Executive Branch regulatory action should be 

construed as affecting or intPnding to affect states' primacy over 

the allocation and administration of their water resources. 

\Nestern Governors arc concerned about provisions in Section 34, "Hydropower 

Licensing and Process Improvement" of the proposed Hydropower Policy 

Modernization Ad of2017. Portions of the language included in the published 

discussion draft of this proposal are identical to language of Subtitle 13, 

"Hydropmver Regulatory Modernization" of the proposed North American 

Energy Security and Infrastructure Act of 2015 (H.R. S). 
321 


Honorable Greg Walden 

Honorable Frank J. Pallone 

May 1, 2017 

Page2 

On July 18, 2016, Governor Steve Bullock and Governor Dennis Daugaard provided 

correspondence (attached) to the Committee, expressing the \Vestern Governors' concerns over 

the language included in Subtitle B of H.R 8, which would have designated the Federal Energy 

Regulatory Commission (FER C) as lead agency for all hydropower authorizations, approvals, 

and requirements mandated by federal law, including hydropower facility licenses and 

amendments, as well as all permits, special use authorizations, certifications, and opinions. The 

Governors requested that this language be removed or amended so that existing stale 

hydropower licensing authorities are not replaced, or in any way impeded, by FERC 

jmisdiclion. 

Western Governors request that the language in Section 34 of the proposed Hydropower Policy 

Modernization Act of2017 be removed or amended so that states' existing hydropower licensing 

authorities are in no way usurped by FERC jurisdiction. Thank you for your attention to this 

important matter. 

Enclosures 
322 


WESTERN 

GOVERNORS' 

ASSOCIATION 

Steve Bullock 

Covernor nf tv1onran;.l 

Chair 

Dennis Daugaard 

CJcwernm of South Dablta 

Vice Chair 

James D. Ogshmy 

Executive Director 

1600 Bnnhiway 

~uire 1700 

Denver, C(l 80202 

lD l-62l-9liR 

Fax 3C3-SH~7309 

4GO N. C1p1tol Street, N.\'iZ 

:::luite 176 

W,1::hin~ton, D.C. 20001 

ZclZ-624-1402 

Fax 202-624-7707 

WW\\'.\\'CSI.gov.org 

July 18, 2016 

Honorable Fred Upton, Chairman 

Energy and Commerce Committee 

U.S. House of Representatives 

2125 Rayburn House Office Building 

Washington, D.C. 20515 

Honorable Frank). Pallone, Jr., Ranking Member 

Energy and Com1nerce Committee 

U.S. House of Representatives 

2322A Rayburn !louse Office Building 

Washington, D.C. 20515 

Dear Chairman l'pton and Ranking Member Pallone: 

Western Governors recognize the importance of renewable energy 

sources, including hydropower. The West accounts for nearly 70 percent 

of the nation's hydroelectric power generation, and the Pacific Northwest 

is the nation's largest hydropovver-producing region. Western Governors 

support improving the efficiency of existing hydropower systems and 

increasing the amount of electricity generated from new, retrofitted, or 

relicensed hydroelectric facilities. 

Western Governors are concerned about provisions in Subtitle B: 

Hydropowt'r Regulatory Modernization of the North American Energy 

Security and lnfmstructurc Act of2015 (H.R. 8). This subtitle would 

dt'signate the Federal Energy Regulatory Commission (FER C) as lead 

agency for all hydropower authorizations, approvals and requirements 

mandated by federal law, including hydropower facility licenses and 

amendments, as \Veil as all permits, special use authorizations, 

certifications, and opinions. 1 

States are vested \vith authority to manage water within their borders, and 

they have the right to develop, usc, control and distribute surface water 

and ground water within state boundaries. As expressed in section B(l)(a) 

of WGA Policy Resolution 2015-08: Water Resource Management in the West 

(attached for your reference): 

1 North American l-:,nergy Security ami h~frastructure Act of2015, Section 1203(a)(l) 

and (2). 
323 


While the Western Governors acknowledge the important role of federal laws 

such as the Clean Water Act, the Endangered Species Act and the Safe Drinking 

Water Act, nothing in any act of Congress or Executive Branch regulatory action 

should be construed as affecting or intending to affect states' primacy over the 

allocation and administration of their water resources. 

We understand that members of the hydropower industry have expressed concern that state 

licensing processes generally, and state water quality certifications under section 401 of the 

Clean Water Act specifically, can be overly time-consuming. 

It is crucial, however, that state water quality certifications and other necessary state procedures 

be undertaken in a careful, deliberate manner. I Iydropower licenses may have a term in excess 

of 50 years, and those rights granted in a hydropower license directly affect the quality and 

quantity of state water, state wildlife and other resources. 

We note also that western states have taken proactive steps to reduce hydropower licensing and 

relicensing timelines and initiated programs that increase intra-state agency coordination and 

coordination between states, project proponents and federal partners. These efforts have 

proven effective at reducing licensing and relicensing timelines, while also ensuring protection 

of water and other state resources. 

Western Governors request that language in Subtitle B of H.R. 8 be removed or amended so that 

existing state hydropower licensing authorities are not replaced or in any way impeded by 

FERC jurisdiction. Western Governors request that the Energy and Commerce Committee and 

the U.S. House of Representatives take these concerns into account as resolution of the 

differences between H.R. 8 and the Senate's North Americmz Energy Security a11d Infrastructure Act 

of 2016 (S. 2012) is pursued. 

Sincerely, 

Steve Bullock 

Governor of Montana 

Chair, WGA Vice Chair, WGA 

cc: Honorable Mitch McConnell, Senate Majority Leader 

Honorable Harry M. 1\eid, Senate Minority Leader 

Chairwoman Lisa Murkowski, Senate Committee on Energy and Natural Resources 

Ranking Member Maria Cantwell, Senate Committee on Energy and Natural Resources 
324 


WESTERN 

GOVERNORS' 

ASSOCIATION 

A. BACKGROUND 

Western Governors' Association 

Policy Resolution 2015 - 08 

Water Resource Management in the West 

1. \Vater is a crucial resource for communHics, industries, habitats, fanns, and Western 

states. Clean, reliable water supplies are essential to maintain and improve quality of 

life. The scarce nature of water in much of the West makes it particularly important to 

our states. 

2. States are the primary authority for allocating, administering, protecting, and 

developing water resources, and they are primarily responsible for water supply 

planning within their boundaries. States have the ultimate say in the management of 

their water resources and are best suited to speak to the unique nature of Western 'Water 

law and hydrology. 

3. Many communities in the West anticipate challenges in meeting future water demands. 

Supplies are nearly fully allocwted in many basins across the West, and increased 

demand from population growth, economic development, and extreme weather and fire 

events places added stress on those limited water resources. Sustainability of our 

natural resources, specifically water, is imperative to the foundations upon which the 

West was developed. Growth and development can only continue upon our recognition 

of continued state stewardship of our unique resources and corresponding 

responsibilities. 

4. Strong state, regional and national economies require reliable deliveries of good-quality 

water, which in turn depend on adequate infrastructure for water and wastewater. 

Investn1ents in water infrastructure also provide jobs and a foundation for long-term 

economic gro·wth in con1munities throughout the West. Repairs to aging infrastructure 

are costly and often subject to postponement. 

5. Western Governors recognize the essential role of partnership with federal agencies in 

w·estern water management and hope to continue the tradition of collaboration between 

the states and federal agencies. 

6. Tribal governments and VVestern states also share com1non water resource management 

challenges. The Western Governors Association and Western States Water Council have 

had a long and productive partnership with tribes, working to resolve water rights 

claims. 

Western Govemors' Associntion 1 of? Policy Resolution 2015 OS 
325 


B. GOVERNORS' POLICY STATEMENT 

1. State Primacy in Water Management: As the preeminent authority on water 

management within their boundaries, states have the right to develop, use, control and 

distribute the surface water and groundwater located within their bOlmdaries, subject to 

international treaties and interstate agreements and judicial decrees. 

a. Federal Recognition of State Authority: Tl1e federal government has long 

recognized the right to use water as determined under the laws of the various states; 

Western Governors value their partnerships with federal agencies as they operate 

under this established legal framework. 

While the Western Governors acknowledge the important role of federal laws such 

as the Clean Water Act, the Endangered Species Act and the Safe Drinking Water 

Act, nothing in any act of Congress or Executive Branch regulatory action should be 

construed as affecting or intending to affect states' primacy over the allocation and 

administration of their \Vater resources. 

Reauthorization of the Water Resources Reform & Development Act, proposed 

federal surplus water rulemakings, and/or storage reallocation studies should 

recognize and defer to the states' legal right to allocate, develop, use, control, and 

distribute their waters, including but not limited to state storage and use 

requirements. 

b. Managing State Waters for Environmental Purposes: States and federal agencies 

should coordinate efforts to avoid, to the extent possible, the listing of waterdependent species under the Endangered Species Act (ESA). When ESA listings 

cannot be avoided, parties should promote the use of existing state tools, such as 

state conscrva tion plans and in-stream flo\v protections, to conserve and recover 

species. 

2. Infrastructure Needs: Aging infrastructure for existing water and wastewater facilities 

and the need for additional water projects cannot be ignored. Infrastructure investments 

are essential to our nation's continued economic prosperity and environmental 

protection, and they assist states in meeting federally-mandated standards. 

a. Federal Support for Infrastructure Investment: Congress should provide adequate 

support for the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA) State 

Revolving Funds. Further, Congress should fully utilize the receipts accruing to the 

Reclamation Fund for their intended purpose in the continuing conservation, 

development and wise use of western resources to meet 'Western water-related 

Western GmNnwrs' Association 2 of7 Policy Resolution 2015- 08 
326 


needs, including the construction of Congressionally-authorized Bureau of 

Reclamation rural water projects and facilities that are part of a Congressionallyauthorized Indian water rights settlement. 

Congress should reauthorize Water Resources Reform & Development Act 

(WRRDA) legislation on a regular schedule and appropriate funding so all projects 

and studies authorized in WRRDA can be completed in a timely manner. 

Congress also should consider facilitating greater investment in water infrastructure, 

utilizing such tools as loan guarantees, revolving funds, infrastructure banks and 

water trust funds. 

Capital budgeting and asset management principles should be used to determine 

funding priorities based on long-term sustainability and not annual incremental 

spending choices. It should be accompanied by dedicated sources of funding with 

appropriate financing, cost-sharing, pricing and cost recovery policies. 

b. Alternatives to Direct Federal Investment: Federal and state policymakers should 

also consider other tools to promote investment in water infrastructure and reduce 

financing costs, including: public-private partnerships; bond insurance; risk pooling; 

and credit enhancements. 

Congress should remove the state volume caps for private activity bonds used for 

water and wastewater projects, provide guaranteed tax-exempt status for bonds 

issued by state or local agencies to finance water infrastructure, provide loan 

guarantees, and otherwise support and encourage alternatives to direct federal 

investment of limited general funds. 

c. Hydropower: Congress and the Administration should authorize and implement 

appropriate hydropower projects and programs through efficient permitting 

processes that enhance renewable electric generation capacity and promote 

economic development, while ensuring protection of important environmental 

resources and indigenous people's rights. 

d. Infrastructure Planning and Permitting: Infrastructure planning and permitting 

gc1idelines, rules and regulations should be coordinated, streamlined and sufficiently 

flexible to: 1) allow for timely decision-making in the design, financing and 

construction of needed infrastructure; 2) account for regional differences; 3) balance 

economic and environmental considerations; and 4) minimize the cost of 

compliance. 

3. Western States Require Innovative and Integrated Water Management. Western 

Governors believe effective solutions to water resource challenges require an integrated 

~Vesten1 Govenwrs' Association 3 of7 Policy Resolution 2015-08 
327 


approach among states and with federal, tribal and local partners. Federal investments 

should assist states in implementing state water plans designed to provide water for 

municipal, rural, agricultural, industrial and habitat needs, and should provide financial 

and technical support for development of watershed and river basin water management 

plans when reqtJested by states. 

Integrated water management planning should also accotJnt for flood control, water 

quality protection, and regional water supply systems. Water resomce planning mtJSt 

occur within a framework that preserves states' authority to manage water throtJgh 

policies which recognize state law and the financial, environmental and social valtJes of 

the water resource to citizens of the western states today and in the furure. 

a. Water Transfers: Western Governors recognize the potential benefits of marketbased water transfers, meaning voluntary sales or leases of water rights. The 

Governors support water transfers that avoid or mitigate damages to agricultural 

economies and communities while preventing injury to other water rights, water 

quality and the environment. 

b. Energy Development: Western Governors recognize that energy development and 

electricity generation may create new water demands. Western Governors 

recommend increased coordination across the energy and water management 

communities, and support ongoing work to assess the interconnection of energy and 

water through the Regional Transmission Expansion Planning Project for the 

Western interconnection and similar efforts. 

c. Conservation and Efficiency: Because of diminished water resources and declining 

and inconsistent snowpack, Western Governors encourage adoption of strategies to 

sustain water resources and extend existing water supplies further through water 

conservation, water reuse and recycling, desalination and reclamation of brackish 

Willers, and reductions in per capita water use. The Governors encourage the use of 

and research into promising water-saving strategies. 

d. Local Watershed Planning: Western Gcwernors encourage federal agencies and 

Congress to provide rescmrces such as technical support to states and local 

watershed groups. States may empower these watershed groups to address local 

water issm's associated with water quality, growth and land management to 

complement state water needs. 

e. Intergovernmental Collaboration and Conflict Resolution: Western Governors 

support the negotiated settlement of interstate water disputes, Indian and Hawaiian 

water rights claims, and other federal water needs and claims, the settlement of 

which are in the best interest of Western states. 

~VesterJl Governors' Association 4of7 Policy Resolution 2015 - 08 
328 


f. State-Federal Coordination: Western Governors recognize the important role of 

federal agencies in advancing sound water resource management in the Western 

states. Governors appreciate the efforts of federal agencies to coordinate waterrelated activities, particularly through the Western States Water Council, and 

support the continuation of these key state-federal partnerships. 

4. Western States Need Reliable Water Resource Information: Basic information on the 

status, trends and projections of water resource availability is essE'ntial to sound water 

management. 

a. Basic Water Data: Western Governors support the U.S. Geological Survey's 

Cooperative Water Program and National Streamflow Information Program (NS!P), 

the Natural Resources Conservation Service's Snow Survey and Water Supply 

Forecasting Program, the National Oceanic and Atmospheric Administration's 

(NOAA) weather and hydrology-related data collection, monitoring, and drought 

information programs, and the National Aeronautics and Space Administration's 

National Land Imaging (Landsat) Program with its thermal infrared sensor. Western 

Governors support federal efforts to coordinate water data gathering and 

information programs across multiple agencies. 

b. Extreme Weather Events Planning: Western Governors recognize the significant 

potential impacts of extreme weather events and variability in water supplies. 

\'\'estern Governors urge Congress and the Administration to work closely with 

states and other resource managers to improve predictive and adaptive capabilities 

for extreme weather variability and related impacts. We specifically urge the federal 

government to place a priority on improving the sub-seasonal and seasonal 

precipitation forecasting capabilities that could support water management decisionmaking. 

c. Water Data Exchange: The Western Governors' Association and the Western States 

Water Council have worked together to create the Water Data Exchange, an online 

portal that will enable states to share their water data with each other, federal 

agencies, and the public via a common platform. The Governors encourage the use 

of state water data in planning for both the public and private sectors. 

5. Drought Preparedness and Response: As exceptional levels of drought persist 

across the West, Governors are leading on drought preparedness and response 

through the Western Governors' Drought Forum. The Drought Forum provides 

a framework for leaders from states, businesses, non-profits, communities, 

research organizations and federal agencies to share best practices and identify 

policy options for drought management. The Governors have identified several 

areas in need of additional attention from Drought Forum partners, including: 

VVcstern Governors' A.-;'sociation 5 of7 Policy Resolution 2015 08 
329 


a. Data and Analysis: Basic data on snow pack, streamflow and soil moisture is 

essential to understanding drought. Though a great deal of information 

already exists, enhanced drought data collection and real-time analysis at a 

higher resolution is essentiaL Governors support state and federal efforts to 

maintain adequate collection of drought and water data, enhance data 

networks where appropriate, and facilitate better use of existing 

information. 

The Governors appreciate the collaborative efforts on drought provided 

through NOAA's National Weather Service River Forecast Centers and 

Weather Forecast Offices, and the Office of Atmospheric Research's labs and 

programs, such as the National Integrated Drought Information System 

(NfDfS). 

b. Produced, Reused and Brackish Water: Technology exists to use produced, 

reused, recycled and brackish water-sources traditionally considered to be 

marginal or wastewater. Adoption of this technology has been limited by 

inadequate data, regulatory obstacles, financial barriers, public attitudes and 

logistical uncertainties. Governors support regulatory streamlining and 

policy options to encourage use of produced, brackish, and re-used water 

where appropriate. 

c. Forest Health and Soil Stewardship: Better land management practices for 

forests and farmland may help improve availability and soil moisture 

retention. Wildfires can cause sediment runoff in water systems, leading to 

problems for reservoir management and water quality. Governors support 

policies and practices that encourage healthy and resilient forests and soils 

in order to make the most of existing water supplies. 

d. Water Use Efficiency and Conservation: Public awareness of drought has directed 

increasing attention to water conservation strategies, both in-home and on-farm. 

Governors encourage municipal, industrial and agricultural \Vater conservation 

strategies as drought management strategy. 

e. Infrastructure and Investment: Water infrastructure to store and convey water is 

crucial to drought management, but maintenance and expansion of that 

infrastructure is often difficult to fund. Governors support efforts to make the most 

of existing infrastructure, while seeking creative solutions to add more 

infrastructure with limited resources. 

f. Working within Institutional Frameworks to Manage Drought: Legal frameworks 

and regulatory regimes can sometimes limit the ability of state, local and federal 

agencies to respond quickly to drought conditions. Governors believe that 

Western Governors' Association 6 of7 Policy Resolution 2015 08 
330 


innovative, flexible policy solutions, such as streamlined processing of temporary 

water transfers, should be considered when managing drought. 

g. Communication and Collaboration: Communication among state officials, 

federal agency representotives, water providers, agricultural users and 

citizens is a crucial component of effective drought response. The Western 

Governors' Drought Forum will continue to provide a framework for 

sharing best practices thought its online resource library, informational 

webinars, and strategy-sharing meetings for the duration of this resolution. 

C. GOVERNORS' MANAGEMENT DIRECTIVE 

1. The Governors direct the WGA staff, where appropriate', to work with Congressional 

committees of jurisdiction and the Executive Branch to achieve the objectives of this 

resolution including funding, subject to the appropriation process, based on a 

prioritization of needs. 

2. Furthermore, the Governors direct WGA staff to develop, as appropriate and timely, 

detailed annual work plans to advance the policy positions and goals contained in this 

resolution. Those work plans shall be presented to, and approved by, Western 

Governors prior to implementation. WCA staff shall keep the Governors informed, on a 

regular basis, of their progress in implementing approved annual work plans. 

Western Governors enact new policy resolutions and amend existing resolutions on a bi-annual basis. Please 

consult westgov.org/policies for the most current copy of a resolution and a list of all current WGA policy 

resolutions. 

Western Governors' Association 7 of7 Policy Resolution 2015- 08 
331 


LINDA L. DAHLMEIER 

MAYOR, THE CITY OF OROVILLE 

CONGRESSMAN FRED UPTON, CHAIRMAN 

THE ENERGY AND COMMERCE COMMITIEE ENERGY SUBCOMMITIEE 

UNITED STATES HOUSE OF REPRESENTATIVES 

WASHINGTON, DC 

RE: HEARING ON "MODERNIZING ENERGY INFRASTRUCTURE: CHALLENGES AND 

OPPORTUNITIES TO EXPANDING HYDROPOWER GENERATION, MARCH 15,2017 

Dear Chairman Upton, Ranking Member Rush, and Members of the 

Su beam mittee: 

I am writing to share my perspective as Mayor for the City of Oroville on the topic 

of Challenges and Opportunities to Expanding Hydropower Generation. 

My small rural town of 19,000 people sits at the base of the Sierra foothills along 

the banks of the Feather River. While I have always felt blessed to live in Oroville, 

we are not a wealthy community. The median income for my community is 

$36,000 and almost 24% of our residents are below the poverty line. Our town is 

also home to the tallest dam in America. Until this past month, having the tallest 

dam bear the name of our town has always been a point of pride. That all 

changed on February 9th of this year. 

The collapse of the main spillway at the Oroville Dam and the near failure of the 

emergency spillway led to the evacuation of 180,000 people, including virtually all 

of the residents of my city. People spent hours trying to flee just a few miles, not 

knowing if the spillway would fail, taking them and their loved ones away. Had the 

spillway failed, 180,000 people would have died; 28,000,000 would be without a 

source of water and life as we know it in the state of California would forever be 

changed. This disaster is one of the worst nightmares any elected official could 

imagine for their community. 

While the dam did not fail, the cost of this event continues, and it goes far beyond 

the repairs to the dam. The thousands of truck trips to bring materials have 

degraded many of our roads. Real Estate transactions have declined and escrows 
332 


have been cancelled. And recreation, which we depend on in our small 

community, has come to a standstill with very little options in place for 

alternatives or recovery. 

The Feather River fishery is one of the important elements of our recreation 

economy. We do not know the long-term impacts the damage has caused to the 

hatchery. We do know that the mud and silt from the collapsed spillway has killed 

many of the fish that live in the river and certainly destroyed much of the habitat. 

We also know that many fish were stranded as the flows ramped down from 

50,000 cfs (cubic feet per second) to zero in just a few hours. 

River Bend Park, which was built as part of the Settlement Agreement with DWR 

for the FERC hydropower license for Oroville Dam, was inundated and sustained 

serious damage. 800 families will be displaced for soccer while the park remains 

closed and tournaments will be held in other cities. For the past several years we 

have been working on a river plan that would reconnect the City with the river, 

and many now wonder if the river is something to embrace or if it should be 

feared. 

Biking and running trails gone. Fishing tournaments gone. Boat ramps closed. 

Roads closed. Docks closed until further notice. The cost for just the road repair is 

in the millions. The cost to our community is overwhelming. How can we move 

forward from here? We need your help. 

First, the residents of Oroville and the surrounding areas deserve to know how 

this happened. Several public interest organizations brought up the inadequacy of 

the emergency spillway during the FERC relicensing process in 2005. FERC and the 

California Department of Water Resources assured us that the dam was safe and 

could handle any foreseeable flood event. We in Oroville believed this to be true. 

The fact the emergency spillway was supposedly rated to 350,000 cfs and yet it 

nearly failed with a flow of just 12,000 cfs tells us that the dam safety regulators 

at FERC did not take the safety of the citizens of my town seriously. 

While some testifying before your committee recommended a 50% expansion in 

our nation's hydropower, we believe the safety and integrity of the nation's 
333 


existing hydropower infrastructure needs to be addressed before you consider 

legislation to promote new hydropower. 

With this concern in mind, we request an oversight hearing on FERC's Division of 

Dam Safety to determine how this regulatory failure occurred. Second, we need 

to have a full analysis of the impacts of this event to Oroville and the surrounding 

areas. This should include the direct and indirect impacts to services, 

infrastructure, and local economies. We also need to have a full analysis of the 

impacts to the Feather River and how that will impact current and future 

recreation. 

Lastly, we need to have a process to discuss with FERC, DWR, and the water 

beneficiaries of this project about how these impacts will be mitigated. 

The fact is that the benefits from the Oroville project are immense. California 

does not exist in its current form without the water from this project. But it is the 

people from my community that were in harms way when parts of this project 

failed. We need to be made whole before any discussion moves forward 

regarding expanding the role of dams and hydropower. 

I sincerely hope that this committee would want to know more about the 

regulatory failure that occurred at the Oroville Dam before any consideration is 

given to expanding FERC's regulatory authority on promoting development of 

new hydropower infrastructure in this country. 

Respectfully, 

Mayor Linda L. Dahlmeier 
334 


""' ""' ,c..,<Nw. • ,""' ""' 4 T wo.w.m 

-~_.:_:'-~-'-~~;-~o-~-~-~-~~-r-~__~-~~~-----------------~------------co_o_,_·d_i_n_a_to_r_@_.h~y-~_r_~_~-ef_~_~-~__~_~~~ 

May3,2017 

The Honorable Fred Upton 

Chairman 

Subcommittee on Energy 

HYDROPOWER 

REFORM 

COALITION 

The Honorable Bobby Rush 

Ranking Member 

Subcommittee on Energy 

House Committee on Energy and Commerce 

2125 Rayburn House Building 

House Committee on Energy and Commerce 

2125 Rayburn House Building 

Washington, DC 20515 Washington, DC 20515 

Dear Chairman Upton and Ranking Member Rush: 

The Hydropower Reform Coalition would like to register our strong opposition to the current 

versions of Discussion Draft Hydropower Policy Modernization Act; Discussion Draft Promoting 

I lydropowcr Development at Existing :Non-Powered Dams Act; and Discussion Draft Promoting 

Closed-Loop Pumped Storage Hydropower Act. These drafts elevate FERC above all other federal, 

state, and local agencies and tribes and in the process undo many of the checks and balances that 

have equitably balanced hydropower development with other uses of our public resources for 40 

years. 

The Federal Energy Regulatory Commission (FER C) has long shared the responsibility for 

developing hydropower license conditions with those stale and federal agencies that have the 

statut01y mandates, experience, and expertise FERC lacks. This team approach serves to ensure that 

impacts from hydropower operations to public resources such as fish, wildlife, water quality, 

recreation, and federal propetiy are fully mitigated. Congress has placed checks and balances on 

FERC's authority through Sections 4(c) and 18 ofthe Federal Power Act, Section 401 ofthc Clean 

Water Act, and the consultation requirements in the Endangered Species Act. Collectively, these 

mandatory conditioning authorities ensure that natural resources and public property are protected 

from the impacts of hydropower projects. 

While the goal of the Discussion Draft Hydropower Policy Modernization Act is to address the 

perceived delay in the hydropower licensing process, it has the to !lowing practical impacts: 

It severely constrains the ability of federal and state agencies as well as tribes to protect the 

lands and the waters they manage, 

lt gives power to a bureaucratic agency in Washington DC to protect our natural resources 

over scientific experts in federal and state agencies working in local communities who 

understand the resources better fi·om direct on-the-ground experience, and 

It imposes undue burden on sister agencies that arc participants in the licensing process by 

allowing FERC to set a schedule that even it may be not be able to meet. 

While we oppose the current Discussion Draft for these reasons, we appreciate that this has been 

introduced as a draft and we would welcome the opportunity to engage with the Committee and 

interested parties to achieve mutually beneticial outcomes that improve the licensing process, provide 

Steering Committee: 

Alabama Rivers Alliance • American Rivers • American Whitewater • Appalachidn Mountain Club 

California Hydropower Reform Coalition • California Sportfishing Protection Alliance • Friends of the River 

Idaho Rivers Lnited • ~v1ichigan Hydro Relicensinr; Coalition • NE'w England FLO\V 

Coastal Cons0rvation League • Trout Unlimited • WatPr and Power La\v Group 
335 


greater certainty to licensees, and address resource impacts of hydropower projects in a meaningful 

way. 

The Discussion Draft Promoting Hydropower Development at Existing Non-Powered Dams Act and 

Discussion Draft Promoting Closed-Loop Pumped Storage Hydropower Act also take away the 

authorities of scientists and expens at natural resource management agencies and place them in the 

hands of federal regulators in Washington DC whose expe11ise lies in energy regulation. The 

provisions in these drafts will have detrimental effect on fish, wildlife, public lands, Native American 

trust and treaty obligations, and state water rights during development of hydropower at non-powered 

dams and closed-loop pumped storage projects. 

The Hydropower Reform Coalition believes that there are ways to improve the licensing process and 

to get hydropower projects licensed faster. We think adequate communication and cooperation 

between federal agencies, including FERC, is the single most effective way to ensure smooth and 

faster licensing process. For that, we offer the following preliminary recommendations for FERC to 

do the following: 

Approve licensing studies requested by federal, state. and tribal resource management 

agencies in the licensing process; 

Promote memoranda of understanding (MOU) with tribes and states to improve coordination 

and prevent unnecessary delay; and 

Explore ways to improve coordination with the U.S. Army Corps of Engineers (USACE) to 

expedite the powering of non-powered dams owned and operated by the ACE. 

We also have three recommendations for consideration by Congress: 

Consider increasing appropriations to federal resource management agencies to fund the staff 

positions allowing for efficient and thorough evaluation of hydroelectric licenses: 

Delegate Section 4(e) and 1 & authorities under the Federal Power Act to technically qualified 

and capable tribes; 

Consider amending the Federal Power Act to remove FERC jurisdiction over dams owned by 

the USACE. 

The balance the Federal Power Act strikes between power and non-power values has existed for 

almost a century. Current law protects the public's right to enjoy its rivers, a right which can and 

should be compatible with responsible electricity production. However, these Discussion Drafts 

upend that balance. Simply put, these Drafts come at the expense of healthy rivers and the fish, 

wildlife, and people that depend upon them while doing little to bring more hydropower projects 

online. 

The Hydropower Reform Coalition is ready and willing to work with the Committee and other 

stakeholders to work on common sense reforms to hydropower licensing while also protecting 

natural resources. Please do not hesitate to contact me at okeefe@americanwhitewater.org or (425) 

417-9012 if you have any questions or require additional assistance. 

Sincerely, 

Thomas O'Keefe 

Chair 

Hydropower Reform Coalition 
336 


GRE'.G WALOH.I, OREGON 

CH1\IRMAN 

Mr. Terry Turpin 

Director 

ONE HUNiJfiED FIFTH.: NTH CONGRESS 

H~/\NK PALLONE, JR., Nl W JU\St:Y 

RANKING MtMB[H 

<!Congress of tbe miniteb $tates 

jl)ousr of ltcpw:>rntatib£5 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBUHN HousE 0Fncr: Bu!LD!NG 

WASHINGTON, DC 20515-6115 1202)220>2!!27 

May 19, 2017 

Office of Energy Projects 

Federal Energy Regulatory Commission 

888 First Street, N.E. 

Washington, DC 20426 

Dear Mr. Turpin, 

Thank you for appearing before the Subcommittee on Energy on Wednesday, May 3, 2017, to 

testify at the hearing entitled "Legislation Addressing Pipeline and Hydropower Infrastructure 

Modernization." 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The fonnat of your responses to these questions should be as follows: (I) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a transmittal 

letter by the close of business on Monday, June 5, 2017. Your responses should be mailed to Grace 

Appelbe, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office Building, 

Washington, DC 20515 and e-mailed in Word format to Wyatt.EIIertson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

Sincerely, 

cc: The Honorable Bobby L. Rush, Ranking Member, Subcommittee on Energy 

Attachment 
337 


Attachment- Additional Questions for the Record 

The Honorable Fred Upton 

l. Please provide a summaty of all Commission activities in suppmt of the Federal Permitting 

Steering Council. 

2. When asked about timeframes associated with the interstate pipeline permitting process, you 

responded, "in looking back at the data for all issuances for the Commission since 2009, on 

average it is 88 percent of the projects get issued within one year." Please provide data to support 

this statement. 

3. Under the Natural Gas Act, the Commission acts as the lead agency for the purposes of 

coordinating all applicable Federal authorization for interstate natural gas pipelines and for the 

purposes of complying with the National Environmental Policy Act. Congress has instmcted 

each Federal and State agency charged with evaluating an aspect of an application for Federal 

authorization to work with the Commission and to comply with the deadlines established by the 

Commission, unless a schedule is otherwise established by Federal law. Please list and provide 

the status of all pending pipeline proceedings where the Commission is waiting for another 

Federal or State agency to act on a Federal authorization. 

The Honorable David B. McKinlev 

1. You stated that one fourth of all hydropower licenses issued by the Federal Energy Regulatory 

Commission ("the Commission") could be begun and completed within two years. This assertion 

is not in your written testimony and is contrary to the experiences of hydropower developers 

endeavoring to add hydro to existing dams in Indiana and throughout the United States. It is 

important that this committee clearly understand why some licenses can be completed in less 

than two years and why others take longer than that in some cases, three times longer or more. 

Please provide the Committee and me the data set that FERC uses to determine the one fourth 

statistics. If possible, please include as much information about the projects that were able to be 

licensed within two years and those that were not. I would be interested in data dating to before 

the enactment of the Energy Policy Act of2005, if it is available. It is my hope that this data will 

help to guide the committee in its oversight of how best to suppott the development of low-cost, 

environmentally-friendly energy sources on existing infrastructure. 

The Honorable Bill ,Johnson 

I. The United States has a window to enter the gjpbal LNG expott market. In order to take 

advantage of this window, it is critical that proposed projects are approved within a reasonable 

timeline. Multiple applications for LNG export facilities are before your agency. The permitting 

for an LNG export facility, and associated pipelines, is a complex, expensive and lengthy process. 

Regarding LNG expott applications, bow does your agency coordinate with other federal 

agencies in their NEPA review? 

How is your working relationship with PHMSA? 
338 

[Mr. Turpin’s answers to submitted questions have been retained 

in committee files and also are available at http://docs.house.gov/ 

meetings/IF/IF03/20170503/105916/HHRG-115-IF03-WstateTurpinT-20170503-SD071.pdf.] 


Do coordinating agencies, including US Army Corps of Engineers (USACE) or PHMSA, ever 

delay FERC's issuance of important permitting milestones for an applicant? 

How would you recommend improving the coordinating agency role so as to ensure that 

important American energy assets, like LNG export facilities, move from proposals, to 

construction? 

2 
339 


GREG WALDEN, OREGON 

CHAIRMAN 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JERSEY 

RANKING MEMBER 

QtongrcS'S' of tbe mtnttcb ~tateS' 

j!;lousc of i\epmlentatibeti 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OFFICE BuiLDING 

WASHINGTON, DC 20515-6115 

Mr. John Katz 

Deputy Associate General Counsel 

Office of General Counsel 

Federal Energy Regulatory Commission 

888 First Street, N.E. 

Washington, DC 20426 

Dear Mr. Katz, 

\202 ~ 22!:> 2927 

{7()2)225-3641 

May 19,2017 

Thank you for appearing before the Subcommittee on Energy on Wednesday, May 3, 2017, to 

testifY at the hearing entitled "Legislation Addressing Pipeline and Hydropower Infrastructure 

Modemization,'' 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (1) the name of the 

Member whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a transmittal 

letter by the close of business on Monday, June 5, 2017. Your responses should be mailed to Grace 

Appelbe, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office Building, 

Washington, DC 20515 and e-mailed in Word format to Wyatt.Eilertson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

cc: The Honorable Bobby L. Rush, Ranking Member, Subcommittee on Energy 

Attachment 
340 


The Honorable Fred Upton 

1. Please provide a summary of all Commission activities in support of the Federal 

Permitting Steering Council. 

The Commission and its stafT have been actively involved in carrying out 

Title 41 of the Fixing America's Surface Transportation Act (FAST-41) since the 

statute was enacted in December 2015. In February 20I6, the Chairman of the 

Commission designated a Councilmcmber and a Chief Environmental Review and 

Permitting Officer (CERPO) to support the Federal Permitting Improvement 

Steering Council (Council). 

In addition to attending the four Council meetings held since December 

2015, Commission staff have attended weekly Infrastructure Working Group 

meetings and training sessions related to FAST-41 implementation, as well as 

meetings of the Fees Sub-Working Group. The Council member and CERPO 

worked with the Executive Director of the Council on project-specific issues during 

the 20 !6 calendar year, and continue to engage the Acting Executive Director on 

issues related to covered project schedules. Also, in conjunction with the Nuclear 

Regulatory Commission, Commission staff has attended meetings with the 

Executive Director, the Otiicc of Management and Budget, and the Council on 

Environmental Quality on the manner in which the statute can best be applied to 

independent regulatory agencies. 

On September 22,2016, the Executive Director established a covered project 

inventory that included 13 FERC projects, the most of any Federal agency. In 

compliance with the statute, Commission staff created Coordinated Project Plans 

based on the consultation and coordination that occurred between the project 

sponsors and govcmmcnt agencies during the Commission's pre-filing review 

process. On a weekly basis, Commission staff maintains and updates the FAST-41 

Permitting Dashboard website to ensure up-to-date information is presented to the 

public. On a quarterly basis, Commission staff updates the Coordinated Project 

Plans with any information received from participating/cooperating agencies. 

FERC statT also provides support to the Council by actively contributing to 

FAST -41 work products, including the January I 3, 2017 FAST -41 guidance 

document, the January 18, 2017 reports on best practices and performance 

schedules, and the April 14, 2017 FAST-41 report to Congress, each of which is 

available on the Permitting Dashboard website. 

2. The Commission serves as the lead agency in hydropower proceedings and sets 

schedules for those proceedings. When asked if there is a way to speed up the 

relicensing of existing facilities, you stated, "there are some instances where the 

Commission has completely done its work on a project and has been sitting for 

more than a decade waiting for a State to act under the Clean Water Act, and 

there is just flatly nothing the Commission can do about that." Please list and 
341 


provide the status of all pending hydropower proceedings where the 

Commission is waiting for another Federal or State agency to act on a Federal 

authorization. 

Table I shows the cases where the Commission staff has completed its 

environmental review and is currently waiting for an action to be completed by 

another agency before the Commission can issue a decision on the project. Of these 

26 cases, 23 arc rclicenses. 

These situations fall into two categories: ( 1) waiting for either theN ational 

Marine Fisheries Service or U.S. fish and Wildlife Service to complete consultation 

under section 7(a) of the Endangered Species Act and/or; (2) waiting for a state 

water quality agency to issue water quality certification under section 401 of the 

Clean Water Act. 

The Honorable David B. McKinley 

1. You stated that one fourth of all hydropower licenses issued by the Federal 

Energy Regulatory Commission ("the Commission") could be begun and 

completed within two years. This assertion is not in your written testimony and 

is contrary to the experiences of hydropower developers endeavoring to add 

hydro to existing dams in Indiana and throughout the United States. It is 

important that this committee clearly understand why some licenses can be 

completed in less than two years and why others take longer than that- in some 

cases, three times longer or more. 

Please provide the Committee and me the data set that :FERC uses to determine 

the one fourth statistics. If possible, please include as much information about 

the projects that were able to be licensed within two years and those that were 

not. I would be interested in data dating to before the enactment of the Energy 

Policy Act of 2005, if it is available. It is my hope that this data will help to guide 

the committee in its oversight of how best to support the development of lowcost, environmentally-friendly energy sources on existing infrastructure. 

Table 2 provides the requested data set. The available information is from 

the period between 2003 and 2016 and comprises 83 projects that completed prefiling activities and were issued original licenses or small hydropower exemptions. 

Of these 83 projects, approximately 28%, (23 projects) were issued a license in two 

years or less. This data set is the basis for an analysis that is included in a report 

that the Commission recently provided to Congress pursuant to section 6 of the 

Hydropower Regulatory Efficiency Act (ITREA) of 2013. 

2. FERC has before it the rcliccnsing ofthe Hawk's Nest hydroelectric facility on 

the New River in West Virginia. I understand that this project was constructed 

in the 1930's in tandem with a nearby silicon alloy manufacturing plant, solely 

for the purpose of supplying affordable electricity to that plant. The 

Commission, in deciding whether to reauthorize the project, must give equal 
342 


consideration to a number of factors, including recreational opportunities that 

may jeopardize continued operations at the plant and cause a loss of 

manufacturing jobs. Please explain how the Commission will consider the 

power and developmental purposes of the project and give equal consideration 

to recreational opportunities under the Federal Power Act. 

Commission staff are currently preparing a final environmental assessment 

(FEA) on the existing licensee's (Brookfield Renewable Energy Group) application 

to rcliccnse the Hawks Nest Project (FERC No. 2512). One of the primary issues in 

the project's relicensing is the effects various now releases to the project's bypassed 

reach would have on developmental and environmental resources. The FEA will, to 

the extent feasible, quantify the benefits and costs of these effects. To that end, the 

Commission has recently issued an information request to the licensee to clarify 

staff's understanding of how the project operates to provide power to WVA 

Manufacturing LLC's nearby alloy plant. For environmental resources such as 

recreation and fisheries, the FEA will assess the amount of aquatic habitat and 

extent of whitewater boating opportunities that would be available under the same 

bypassed reach l1ow scenarios. 

The Honorable Richard Hudson 

I. Mr. Katz, as you know, small conduit hydropower plays an important role in 

our nation's energy mix. It's a great option to add renewable generation to 

existing infrastructure. It can be installed almost anywhere- even in remote or 

isolated places -to provide affordable and reliable electricity. 

a. The Hydropower Regulatory Efficiency Act of 2013 created a streamlined 

process for qualifying conduit facilities. What has been your experience 

since then? 

Since the creation of the qualifying conduit facility program nearly four 

years ago by the Hydropower Regulatory Efficiency Act of2013 (HREA), the 

program has been effective. Eighty-six projects have qualified and accordingly 

have not been required to be licensed or exempted by the Commission. The 

Commission has rejected I I applications for qualifying conduits, because they 

were not located on conduits, as required by the statute, or did not meet other 

statutory requirements. The entire process has taken on average just over 2 

months, including the 15-day initial determination issued by the Commission 

and the 45-day public notice period, both required by the 2013 Act. 

b. The draft legislation promoting small conduit facilities would shorten the 45 

day notice period for projects under 2 megawatts. What's the Commission's 

position on this provision? 

It is my understanding that the discussion draft of the Promoting Small 

Conduit Hydropower Facilities Act of 2017 would add provisions to Section 

30(a) of the Federal Power Act for projects that meet the same criteria as current 
343 


qualifying conduit facilities but do not exceed 2 megawatts. For such projects, 

there would be no public notice provisions, and the facility would be deemed to 

qualify upon the affirmative determination by Commission staff or the failure of 

the Commission to act within 15 days of the initial determination of the notice of 

intent to construct a qualifying conduit facility. 

Commission staffs view is there is no significant regulatory or practical 

different between qualifying conduit facilities of 2 megawatts or less and those 

of five megawatts or less. Accordingly, it might cause confusion to create two 

qualifying conduit provisions for small projects with different capacities. Staff 

also has some concern that completely eliminating the notice period would not 

give the public a chance to comment and to possibly provide information to the 

Commission that may not appear in the applicant's notice of intent. As an 

alternative, Congress could consider establishing a shorter public notice period 

for all qualifying conduits. 

c. Should Congress consider shortening the process for larger small conduit 

facilities? 

As discussed above, this would be appropriate for Congress to consider. 

The Honorable Frank Pallone, Jr. 

1. Mr. Katz, the Integrated Licensing Process (ILP) was implemented just over ten 

years ago to improve coordination among all parties involved in the licensing 

process. In your testimony you identified two other processes -the Alternative 

License Process (ALP) and the Traditional License Process (TLP) that are 

available to licensees that request one of these alternatives and receive approval 

of their request by FERC. How many of the pending rc-licensing proceedings 

are being conducted through an ALP? A TLP? 

There are currently 64 relicense applications pending. Of these applications, 

five were prepared using the ALP, 31 were prepared using the TLP, and 28 were 

prepared using the ILP. 

2. Does FERC consult with federal agencies, states, tribes, or advocacy groups in 

cases where a licensee requests the use of either the ALP or the TLP prior to 

making a decision to grant a request for an ALP or TLP? 

Yes. Under section 5.3 of the Commission's current regulations, a potential 

applicant must provide a copy of its request to use the TLP or ALP to all affected 

resource agencies, Native American tribes, and members of the public likely to be 

interested in the proceeding. The request must state that comments on the request 

must be filed with the Commission within 30 days of the filing date of the request. 

The potential applicant must also publish notice of its request to use the TLP or ALP 

in a daily or weekly newspaper of general circulation in each county in which the 
344 


project is located. The Commission considers any filed comments prior to acting on 

a potential applicant· s request to usc the TLP or ALP. 

3. The ILP was established as the default under FERC Order No. 2002, issued on 

July 23, 2003. rr a licensee had initiated the relicense process prior to the 

establishment of the ILP as a default, was the applicant required to file the 

application and proceed under the JLP or make a formal request to FERC for 

approval to proceed under an ALP or TLP? 

Pursuant to section 5.3 of the Commission's current regulations, a potential 

applicant for a new, subsequent, or originallieensc could, until July 23, 2005, have 

elected to usc the TLP or ALP. Any potential license applicant that initiated the 

licensing process after July 23, 2005, had to request authorization to use the TLP or 

ALP. 

4. Please provide a list of the projects with a pending relicense application that are 

being considered under the TLP or the ALP. 

The list is provided in Table 3. 
345 


·.· Table 1: Cases Requiring Other Agency Action 

Time Since Federal I State 

Project Project State FERCNEPA NEPA Authorization Agency No. Name Completed Completion Type Needed 

(Years) Resp<msible 

2086 Vermilion CA 5/3/2004 13 ESA/ WQC FWS/CA 

Vallcv ! 

2105 Upper~- CA 1 1/10/2005 11.5 i WQC: C:A 

Fork Feather 

2174 Pot1al ! CA 4/27/2006 11.1 ESA/WQC FWS/C:A 

I 

I Augusta 11810 I Canal sc 9/22/2006 ESA ~:v!FS 

----------- ·-·- --

2107 ! f-------· Poe CA 3/29/2007 10.2 woe CA 

I ID/0 I N:v!FS and FWS 

1971 Hells Canyon I 8/31/2007 9.8 ESA/ WQC R I 0 R ~'2.'UQ_ 

199 Santee sc 10/26/2007 9.6 ESA NMFS 

Cooper ---·---- !-------··--· 

67 Big Creek CA 3113/2009 8.2 ESA/ WQC FWS/CA --·· 

120 Big Creek 3 CA 3113/2009 8.2 ESA/WQC FWS/CA 

2085 Mammoth CA 3113/2009 8.2 /WQC FWS/C:A Pool 

2175 Big Creek 1 CA 311312009 8.2 ESA/WQC FWSICA and 7 

2088 South Feather I CA 61412009 7.9 WQC CA 

I Packwood 2244 i Lake WA 71112009 7.8 ESA N:v!FS 

80 , I DcSabla CA I 0 7/24/2009 7.8 ESA NMFS 

----~entervillc 

516 Saluda sc 7120/2010 6.8 ESA NMFS 

···········'- 2106 t-~t,:_l<!_ll_Ci:PJ!_ CA 2/2512011 6.3 WQC CA 

2615 Bras sua ME 9/14120 I 1 5.7 I WQC ME 

rr-1 2965 Wickiup Dam : OR 1112120 I 2 I 4.5 i ESA IWQC FWS I OR 

I 

.. 

2079 Mid-Fork CA 2122120 I 3 4.3 ESA I WQC FWS/CA American 

2266 I Yuba Bear I CA 12/19/2014 2.4 ESA/WQC FWS/CA 
346 


Tabl!)l: Cases l~cquiring Other Agency Action 

Time.Since Federal/ State Projecct Project State FERCNEPA NEPA Authorization Agency .No. Name .· Completed Completion Type Needed Responsible (Years) 

2310 Drum Ci\ 1211912014 I 2.4 ESA I WQC FWS I Ci\ Spaulding 

12796 ! R.C. Byrd 011 1/2312015 ~ ' --0 ESA FWS 

405 Conowingo '\10 3/11/2015 2.2 ESA IWQC NMFS and FWS 

i /MD 

2179 Merced CA 121412015 1.4 ! ESA I WQC NMFS and FWS 

IC/1. 

24~ Merced Falls CA 12/412015 1.4 ESAIWQC NMFS and FWS 

---- ---·--- I ICi\ 

2335 , Williams ME 111912016 0.5 WQC ME 

ESA =Endangered Species Act Consultation 

WQC Section 401 of the Clean Water Act Water Quality Certification 

FWS U.S. Fish and Wildlife Service 

NMFS National \1arinc Fisheries Service 

Record Project Project Waterway State Capacity NOIIPAD/ Application Order Filin

# No. Name lCD Filed Issua

(KW) Issued (Ye

T ;,.P>H'P< ~·~-·~" 3/ 18/2:-r:l/28~2005 -~ 1- ·-

Lower Spring 1 12597 Turnbull Valley MT 7,700 7/28/2006 1.

Drop Canal - Upper Spring 2 12598 Turnbull Valley MT 5,300 3/18/2005 11128/2005 7/28/2006 1.

Drop Canal ----" 3 12599 Mill Coulee I Mill Coulee Drop Canal MT 1,050 31!8/2005 II /28/2005 7/28/2006 1.

-·-·· 4 12667 Mcldahl 1 Ohio River OH 105,000 6112/2006 I 0/6/2006 6/25/2008 2.0

Culinary Culinary Water 5 13301 Water Supply WY 225 8/27/2008 4/28/2009 10/9/2009 1.

System System 

I Arrow I I Canyon Coyote 6 13569 Conduit Spring NY 500 8/14/2009 3/24/2010 8/19/2010 1.

Energy Valley Well f-- Recovery ---~- ·-----~-- ----

7 13526 Expanded Kansas KS 6,500 10/6/2009 2/8/2010 8/19/2010 0.

Kansas River River --- ·- --- f---·- I ___ 8 12628 Cedar Lake Cedar River lA 800 1118/2007 11!3/2009 10/27/2010 3.

Filin

Issu

(Ye

3

1

I 'I ~~ I 11 I 12632 . ~ake Livings:on I TX I 24,000 I 12/21/2007 I 3/31!2009 I 8/26/2011 I 3

l I LJvmgs.ton & fnmty 1~-----l ~~ -+---R~iv~e~r--~-----r---------+---------r 12 ---~351 Marsei;~~ Illinois !L 10,260 12/30/2008 12/30/2008 2

I Lock & Dam R1ver 13 13829 Creasey Lincoln ID 20 II 14 I 12740 1 Flannagan 1 Pound River 1 VA [ L_SCJQ I 15 12737 I Gathright I Jackson I R1ver 16 13368 17 13226 Townshend Dam Ball Mountain Dam West River West River J cnnings Potomac VA 3,700 VT 924 VT 2,196 5/!3/201 0 2/4/20 I 1/5/2012 9/24/2008 7/13/2009 I 1/27/2012 12/26/2007 I 4116/2009 3/13/2012 7/24/2009 I 11/112010 3/29/2012 7110/2009 11/112010 4112/2012 1

3

4

2

2

18 12715 6/2/2008 3

Randol h River 

wv 14,000 12/23/2010 4/30/2012 

Record Project Project Waterway State Capacity NOI/J>AD/ Application Order Filin

# No. Name ICD Filed Issua

·• (KW) Issued (Ye

19 12642 I W Kcc:+ y,dki" 0/C 4,000 I 0/1/2008 9/29/2009 711712012 3.7

i Scott River T~~-~~-~ -~--"--- --· ··-------- .. 20 13237 J C k Whitman MA 145 11130/2009 8/29/20 II 9/5/2012 2.7

I roc er River .. 21 13417 Angelo Dam La Crosse WI 205 12/22/2009 10/21/2011 12/28/2012 3.0

River 

I I Gartin a 22 14066 ! Gartina Falls Creek AK 450 I 0/28/20 II 512512012 1/29/2013 1.2

L.....-. I +--- Little Wood Little Wood 23 14154 River Ranch ID 1.230 4/28/20 II 11115/2011 4116/2013 1.9

II River --·-~ ~---~- ---- r----- 24 14308 Vermont Walloomsac VT 360 12/5/2009 2117/2012 4/25/2013 3.3

Tissue Mill River 

25 12569 Enloe Project Similkamee WA 9,000 712112005 8/22/2008 7/9/2013 7.9

n River . 26 13124 Allison Allison AK 6,500 417/2010 8/29/2011 8/1/2013 3.3

Creek Lake 27 14327 Humboldt Humboldt NV 750 11/22/2011 6/26/2013 1/31/2014 2.

River River 28 13160 Overton Red River LA 78,000 4/3/2009 5/24/2012 4/2/2014 5 Lock & Dam 

Record Project Project Waterway State Capacity NOI/PAD/ AppliCation Order Filin

# No. Name lCD Filed Issu

.· (KW) Issued .. (Ye

I Red River 29 12756 Lock & Dam Red River LA 36,200 2127/2009 7/26/20 I 0 4114/2014 5.

I No.3 .•. .. 30 I 13011 Lake Kaskaskia IL 6,800 9/8/2009 I 0/28/20 II 4118/2014 4.

I Sh_e.!E_yville River 31 14367 Gilbert Bear River lD 90 6115/20 II 5/30/2012 5/12/2014 2.

-·- Project ' I Cannonsville West 32 13287 Branch NY 14,080 8113/2009 2/29/2012 5/13/2014 4.

Delaware I River Eagle 33 13123 Mountain Closed- CA 1,300,000 1110/2008 6/22/2009 6/19/2014 6.

Pumped Loop Storage -····~ ---- ····--··---

34 14537 Antrim Susquehann PA 40 4/]2/2013 12/12/2013 9/3/2014 1.

1- Micro a River 35 13346 Williams 1 White River IN 4,000 2/18/2011 12113/2012 9/8/2014 3.

Dam 36 13953 Lake Milton Mahoning OH 650 5119/2011 11/22/2011 9/26/2014 3.

River 37 I 12790 Pomperaug Pomperaug CT 76 1/29/2008 1/17/2013 10/16/2014 6.

River 

Record Project Project Waterway State Capacity NOI/PAD/ Application Order Filin

# No. Name ICD Filed Issua

{KW) ' ·- __ Issued (Yea

38 14345 Rock River Rock River Ml 8 1/1/2007 11/23/2012 11/4/2014 7.8

Beach -~---- ,---------- I Braddock Monongahc1 39 I 13739 Locks And PA 5,250 12/27/2011 9/17/2012 6/4/2015 3.4

I Dam a River -- 40 13994 I Hancock Hancock WA 6,000 9/9/20 II 8/1/2013 6/19/2015 3.7

-- Creek Creek 

41 13948 I Calligan Calligan WA 6,000 9/9/20 II 8/1/2013 6/23/2015 3.7

I Creek Creek 42 14657 Zealand Falls Whitewall NH 2,500 2/28/2013 12/29/2014 8/12/2015 2.4

Brook ~~~ill Artist I Miss~~:i~pi -~- ------- 43 14628 MN 600 7/29/2014 3/23/2015 9/4/2015 1.

Lofts I River I 44 I 12721 Pepperell Nashua MA 22,065 10/11/2012 10/9/2013 9/8/2015 2.9

I River 45 13213 I Heidelberg Kentucky KY 2,064 I 0/12/20 I 0 5/16/2012 12/21/2015 5.

River -- I 46 13214 Ravenna I Kentucky KY 2,064 10/12/20 I 0 5/16/2012 12/21/2015 5.

River - 47 13701 Sardis Lake Sardis Lake MS 14,600 1/31/2012 11/13/2013 12/28/2015 3.9

Dam --

Filin

Issu

{Ye

3.9

3.9

5.

55 12/l/2010 10/3 5.

56 12/l/2010 10/3 5.

57 30.000 12/23/2008 7.

58 262 

Record Project Project Waterway State Capacity NOI/PAD/ Application Order Filin

# No. Name (KW) lCD FUed Issued Issu

. • (Ye

I I Kentucky I 59 14276 River Lock l Kentucky KY 5,000 5/5/2014 4/16/2015 5/5/2016 2 & DamNo. [ River II ... -·- ---· 60 12717 Brandon Des Plaines IL 6,800 7/16/2008 5/27/2009 7/22/2016 8.

Road River 61 12686 Mason Dam Power River OR 3,400 4/27/2006 4/30/2013 9/6/2016 10

62 13563 I Sweetheart Sweetheart AK 19,800 7/28/2010 5/29/2014 9/8/2016 6.

Lake Creek 63 12626 I Dresden Illinois IL 10,960 7116/2008 4/1/2009 9/23/2016 8.

I Island River .. 64 12958 Uniontown Ohio River KY 66,600 11/3/2008 4/29/2011 9/27/2016 7

Exemptions Indian River Westfield 65 12462 Power River MA 1,600 5/27/2003 7/28/2003 2/23/2006 2.7

r-· Su)J£1y 66 2204 Williams Williams co 3,650 4/21/2003 12/30/2004 9/29/2006 3.4

Fork Fork River 67 12629 Corriveau Swift River ME 350 5/25/2005 12/7/2005 10/24/2006 1.

68 12608 Alternative Mumford MA 47 I 0/8/2004 8/15/2005 12/8/2006 2.

River . 

Filin

Issu

69 280 II/23/2005 I l/22/2007 3/31/2008 I 2.3

+---- South 70 Royal Mills Branch River 71 12551 Mansfield :.latchaug Hollow . __ R_Iv.::e,_r -+··---+------1-------1---··--- -·----·-+-- I ll 101200611211212007 i 312612009 I 3.0

7/2112005 I J/25/2008 61!7/2009 I 3.9

Potter Creek Potter Creek 6/l/2009* l/ll/20!0 'l-··-'-=--4--=--==---t-=-=::.:...:::..:.::_::.:..+='..:::.::.:: .. ____ , ---· ------r-------+------

' Alder Brook Alder Brook 1 0/!5/2008 8/6/2009 Upper 74 !3356 Slatersville Slatersville RI 360 5/3 J/2008 l/15/2009 12/20/2010 75 13871 CO 310 0 IV JJJU! I I ...... squoi VT eso ;er !tonic ,

1A I River JV . I • 

1308 II· Quinebaug I CT I -:.,--:- on(lt.., ar0 t a s River v• n-v·-

Record Project Project Waterway State Capacity NOI/PAD/ Application Order Filin

# No. Name lCD Filed Issua

(KW) Issued (Yea

79 14447 Crescent i Millers MA 448 I Oil /20 II 8/15/2012 3/1/2013 1.4

Street I River .. 80 14421 Freedom Sandy ME 50 l/6/20 12 611/2012 3/25/2013 Falls Stream 81 14332 Cheshire Nubanusit NH 90 12/9/2010 12/5/20 II 6/4/2013 Mills Brook ... i Brooklyn Upper 82 13806 Dam Ammonoos NH 600 l/!5/2014 7/28/2014 8/14/2015 1.5

I I uc 83 14550 l Hanover I Quinnipiac CT 220 I 0/15/2014 6/26/2015 5/19/2016 1.5

I Pond Dam 1 River * Date estimated from pre-tiling consultation record. NOI Notice of Intent- notice from licensee of intent to file a license application PAD= Pre-Application Document- provides existing information relevant to the project that is in the applicant's possession or that the applicant can obtain with the exercise of due diligence. It is distributed to the Commission and interested stakeholders to enable these entities to identify issues and related information needs, develop study requests and study plans, and prepare documents analyzing any license application that may be filed with the Commission. !CD= Initial Consultation Document summary ofagencies consulted prior to filing of license/exemption application 
356 


Project 

No. 

Table 3: List of Pending Projects under the TLP or the ALP 

Project Name Capacity 

(MW) State Appficatio~ 

Filed 

P-2086 Vermilion Valley 0.0 CA 8/30/2001 

Process 

Type.· 

TLP 

P-21 05 I ~PP. cr No;th Fork. 362.3 ~~=; CA 10/23/2002 TLP i

eather R1ver ---r----------

P-2 J.Z.'l _J'_(Jl~_al _______ r-__l_QJl _______ (:,_\__ 3/=2_7:.:/.=2_0:.,0=-=3---!e------=-n-=.P _ 

P-1971 Jells Canyon 1,166.9 ID, OR 7/21/2003 TLP ~----- _, _____ -------- ---1-----------+-

P-2107 ~Poe 120.0 CA 12116/2003tli'LP 

P-2082 T I Klamath --r--------- 169.0 __ CP._,_()!Z __ I 2/25/_2_()04_ TL~ 

P-199 t~_antee-Co()per _ 134.5 ___ ~C __ ,_J!_l5j2004 TLP 

P-2100 IQ'"w;ll_e__ _ 762.9 CA l/26/2005 ALP 

P-2085 Mammoth Pool __ 190.0 _ CA 11/29/2005 }\Q_ 

1 I'::_?2~_'l:r!ne11_§_1_11i!h__ __ 92.0 _ __ OR •_11/24/2006 TLJ~ 

P-67 1

1 

Big Creek~A-=, S=f, ' 373.3 I CA 2/23/2007 ALP Eastwood 

~;-- ~3-~~rcck 3 - - _1 ;.~-=~~~-- 2/23/2007 ALI~---

P-2175 Big Creek I & 2 150.0 CA 2/23/2007 ALP ·--·-·-

P-2088 South Feather 

Power Project 

P-516 I Saluda I 

P-2744 Menominee-Park 

Mill -"-~---

P-4093 Bynum 

~-~~-~53 =L~ow_~er~P~c~lz=-=.e~r ____ r-~~--~--~~--r-~:.:c=:.~--r----=-~--~1 I P-10254 ! Upper Pelzer i 

~4439 Glen Ferris 

P-2428 Piedmont 

P-2593 Upper Beaver 

Falls 

P-2727 1 Ellsworth I 
357 


Table 3: List of Pending Projects under the TLP or the ALP 

Project Project Name Capacity State Application Process 

No. (MW) Filed Tvpe 

P-2823 i Lower Beaver 

Falls I 1.0 NY 12/30/2015 TLP 

-

P-848 Trout Creek 0.1 NV 5/18/2016 TLP 

P-2307 Salmon and Annex 10.6 AK 8/3\/2016 TLP I Creek 

P-2386 Holyoke No. 1 1.1 MA 8/31/2016 TLP 

P-2387 Holyoke No. 2 0.8 MA 8/3\/2016 TLP 

P-2388 : Holyoke No.3 0.5 MA 8/31/2016 TLP 

P-2808 Lower Barker 1.5 ME 1/30/2017 TLP 

P-190 Uintah 1.2 UT \/31/2017 TLP 

P-22~8 Colliersville I 1.5 NY 1 2/28/2017 TLP 

1'-15!0 Kaukauna 4.8 WI 3/24/2017 TLP 

P-2684 Arpin 1.5 WI 4/26/2017 TLP r----

I I 

P-9100 Riverdale Mills 0.2 MA 4/27/2017 i TLP 

P-2809 . American Tissue 1.2 ME 4/29/2017 TLP 
358 


GREG WALDEN, OFlEGON 

CHAIRMAN 

Mr. Jeffrey A. Leahey 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JEF!SlY 

RANKING MEMBEH 

QI:ongrel3'l3' of tbe mntteb ~tatel3' 

jl)otuir of l'\rpresentatibeli 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBURN HousE OrTICE BuiLDING 

WASHINGTON, DC 20515-6115 Mi1JOP1Y (2Q2)7?b ~\127 

Mmn<l'y U02)225-'lG41 

May 19,2017 

Deputy Executive Director 

:-.Jational Hydropower Association 

601 NcwJerseyAvenue,N.W.; Suite660 

Washington, DC 2000 I 

Dear Mr. Leahy, 

Thank you for appearing before the Subcommittee on Energy on Wednesday, May J, 2017, to 

testify at the hearing entitled "Legislation Addressing Pipeline and Hydropower Jnfrastructure 

Modernization.'' 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which arc 

attached. The fonnat of your responses to these questions should be as follows: (l) the name of the 

Memher whose question you are addressing, (2) the complete text of the question you are addressing in 

bold, and (J) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a transmittal 

letter by the close of business on Monday, June 5, 2017. Your responses should be mailed to Grace 

Appel be, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office Building, 

Washington, DC 20515 and c-mailed in Word fonnat to Wyatt.EIIcrtson@mail.house.gov. 

Thank you again for your time and effort preparing and delivering testimony before the 

Subcommittee. 

cc: The Honorable Bobby L. Rush, Ranking Member, Subcommittee on Energy 

Attachment 
359 


U.S. House of Representatives Committee on Energy and Commerce 

Subcommittee on Energy 

May 3, 2017 Hearing: Legislation Addressing Pipeline and Hydropower 

Infrastructure Modernization 

Questions for the Record Submitted to Mr . .Jeffrey Leahey 

The Honorable Frank Pallone, Jr. 

I. Mr. Leahey, in your written testimony, you stated that improvements could be made to 

the discussion draft of the SHORE Act. Would removing FERC's power of eminent 

domain protect private property rights? Do you recommend doing so'! 

A: As stated in my written testimony, NHA has not taken a position on the bill, but recognizes 

that shoreline management is an important issue for both project owners and landowners 

adjacent to hydropower reservoirs or within project boundaries. 

It appears to NHA that the bill is attempting to strike a balance between the lands needed or 

associated with a project for FERC-regulated recreational purposes. and those adjacent lands that 

may be held by private property owners. Nil;\ docs not believe the eminent domain authority 

under Section 21 of the Federal Power Act is a problem that the bill aims to address, nor is 

Section 21 implicated by the bill in any way. NHA would not recommend any change to the 

eminent domain provisions of the Federal Power Act. 
360 


GREG WAI Ot:N, OHEGON 

CHAIHM!\N 

ONE HUNDRED FIFTEENTH CONGRESS 

FRANK PALLONE, JR., NEW JF.RSEY 

RANKING MEMBER 

<!Congrr%5 of tbr mnttrb ~tatrs 

:l!)ousc of l\cprcscntatibcs 

COMMITTEE ON ENERGY AND COMMERCE 

2125 RAYBUfiN HousE OFF-teE BuiLDING 

WASHINCiTON, DC 20515-6115 

Mr. William Robert Irvin 

President and CEO 

American Rivers 

1101 14th Street, N.W.; Suite 1400 

Washington, DC 20005 

Dear Mr. Irvin, 

,\1~j0'11y (287)?;.'(, ?911 

Mtnw.ly ,JO?)n~ 361\1 

May 19,2017 

Thank you for appearing before the Subcommittee on Energy on Wednesday, May 3, 2017, to 

testify at the hearing entitled "Legislation Addressing Pipeline and Hydropower Infrastructure 

:vtodernization," 

Pursuant to the Rules of the Committee on Energy and Commerce, the hearing record remains 

open for ten business days to permit Members to submit additional questions for the record, which are 

attached. The format of your responses to these questions should be as follows: (I) the name of the 

Member whose question you arc addressing, (2) the complete text of the question you are addressing in 

bold, and (3) your answer to that question in plain text. 

To facilitate the printing of the hearing record, please respond to these questions with a transmittal 

letter by the close of business on Monday, June 5, 2017. Your responses should be mailed to Grace 

Appelbc, Legislative Clerk, Committee on Energy and Commerce, 2125 Rayburn House Office Btlilding, 

Washington, DC 20515 and e-mailed in Word format to Wyatt.Ellertson@maif.house.gov. 

Thank you again for your time and effort preparing ond delivering testimony before the 

Subcommittee. 

cc: The Honorable Bobby L. Rush, Ranking Member, Subcommittee on Energy 

Attachment 
361 


Ms. Grace Appel be 

Legislative Clerk 

Committee on Energy and Commerce 

U.S. House of Representatives 

2125 Rayburn House Office Building 

Washington, DC 20515 

Dear Ms. Appelbe: 

June 5, 2017 

Please find, attached, Mr. William Robert Irvin's responses to questions from the Hon. Frank 

Pallone, Jr., following Mr. Irvin's testimony before the Subcommittee on Energy on Wednesday, 

May 3, 2017. in the hearing entitled "Legislation Addressing Pipeline and Hydropower 

Infrastructure Modernization." A copy of the responses was also emailed to Mr. Wyatt 

Ellertson, pursuant to the instructions contained in Chairman Upton's letter to Mr. Irvin dated 

May 19. 2017. 

lfyou have any questions, please feel free to contact me at 202-243-7029, or at 

j bradley:alamericanrivers .org. 

Sincerely, 

Jim Bradley 

Vice President, Policy and Government 

American Rivers 
362 


Questions {i·om llon. ~Frank Pallone, Jr. to Mr. William Robert Irvin 

QJ.., .. }vfr~ Irvin, in your ora/testimony, you referenced methane emissions/rom hydroelectric 

reservoirs as contributors to global warming Recent meta-analyses have indicated that the 

greenhouse gas emissions associated with these reservoirs are higher than previously believed 

Are you aware of academic, private, or governmental surveys olmethane emissionsfi'om 

reservoirs all ached to hydroelectric projects or potential hydroelectric projects? 

A recent meta-analysis by Deemer eta!. (20 16; attached) synthesizes all of the published data on 

greenhouse gas emissions (i.e., methane. Cl-14; carbon dioxide, COz; nitrous oxide. N20) from 

hydroelectric reservoirs as well as those used for flood control, irrigation, navigation. and 

recreation~ This global dataset includes methane emissions data from 21 hydroelectric reservoirs 

in II states and Puerto Rico (AL, CA. CO, GA. !D. NC, OR, SC, TN, WA, WI, PR)~ American 

Rivers believes that based on this meta-analysis, a comprehensive survey of American 

hydropower projects to determine methane emission levels is overdue. As the Committee 

continues to grapple with the issue of regulating and limiting the emission of greenhouse gas 

pollutants fi·om the electricity sector. it is important that methane emissions from hydropower 

projects be fully accounted for so that other electricity producers arc not compensating for the 

hydropower industry. 

A plain language overview of the findings of the Deemer et al. study was published in a 

September 2016 article in the Washington Post titled "Reservoirs are a major source of global 

greenhouse gases, scientists say~" The full dataset from this meta-analysis is available online: 

Deemer BR, Harrison JA, LiS. Beaulieu JJ. DclSontro T. Barros N, Bczerra-Neto JF, Powers 

SM. dos Santos :'v!A, Vonk JA (2016) Data from: Greenhouse gas emissions from reservoir water 

surfaces: a new global synthesis. Dryad Digital Repository~ 

http://dx~doi.org/l 0.5061 /drvad~d2kv0 

Could you provide more information on what the current research has shown and what the 

committee should consider as it conducts oversight of hydroelectricity in the United States? 

Hydropower is often thought of as "green" energy: however a growing number of scientific 

studies document hydroelectric reservoirs as a source of greenhouse gas. All hydroelectric 

reservoirs are a source of methane to the atmosphere (Barros ct a!. 2011) and methane emissions 

arc responsible for the majority of the climate change impacts of hydropower (Deemer et al. 

20 16). Methane is a powerful and fast-acting greenhouse gas that can trap 34 times as much heat 

as carbon dioxide over a I 00-ycar period (Shindell eta!. 2009). Deemer eta!. (20 1 6) estimate 

that global hydroelectric and non-hydroelectric reservoirs emit approximately 13.4 million 

metric tons of methane per year, with nearly half of that coming from hydroelectric reservoirs. 

Calculated reservoir methane emissions are 25 percent larger than previous estimates and greater 

than those for natural lakes, ponds, rivers, or wetlands~ 
363 


Methane is produced through the decomposition of organic matter (e.g., leaves, trees. algae) 

under anoxic (i.e., no oxygen) conditions that are common in reservoir sediments. Methane is 

emitted fi·om manmade reservoirs through a number of pathways including: ( 1) continuous 

diffusion across the surface of the reservoir, (2) bubbling ("ebullition'') ti·om sediments, and (3) 

transport through plants growing within the rcservoit· (Beaulieu cl a!. 2014, Deemer eta!. 2016. 

!Iarrison eta!. 20 17). Because decomposition of nooded vegetation and soil organic matter fuels 

greenhouse gas production, the lirsl I 0 to 20 years after dam construction is often associated 

with particularly high greenhouse gas emissions (Barros eta!. 2011) though emissions persist for 

the life of the reservoir. The operation of hydropower dams creates two additional pathways for 

greenhouse gas emissions. which lead to hydroelectric reservoirs producing double the amount 

of methane produced by non-hydroelectric reservoirs; these include: ( 4) degassing at turbines 

and spillways as a result of rapid depressurization of water leaving the reservoir, and (5) 

emissions resulting from drawdowns of greater than 0.5 meters that cause increased bubbling of 

methane and periodic exposure of nooded, methane-producing sediments to the atmosphere 

(Deemer ct a!. 2016, Harrison eta!. 20 17). Rivers segments downstream of hydropower dams arc 

also associated with increased methane emissions, especially if anoxic, methane-rich water li·om 

the bottom of the reservoir nows through the turbines (Deemer et al. 2016). 

While the amount of methane emitted by individual reservoirs is variable, scientists have shown 

that on average nutrient-rich ("eutrophic") reservoirs emit ten times more methane than nutrientpoor ("oligotrophic") reservoirs (Deemer et al. 2016). This is because decomposing algae 

generates more methane than decomposing leaves or wood and algal blooms arc common in 

nutrient-rich systems. Eutrophication also magnifies the cfTccls of reservoir drawdown on 

methane emissions (Harrison eta!. 20 17). It was previously believed that low-latitude reservoirs 

(and Amazonian reservoirs in particular) produced the most methane per unit area, but it is now 

believed that reservoirs with warm waters and high algal growth emit more methane per unit 

area. regardless of latitude (Beaulieu ct a!. 20 14). 

Future plans for hydroelectric development should not only aim at minimizing the overall 

environmental impacts of the dams themselves, but also to minimize greenhouse gas emissions 

per unit of energy generated through careful siting and operation (Barros et al. 20 II). For 

example, by locating new reservoirs upstream of nutrient inputs that fuel higher methane 

emissions (Deemer eta!. 20 16) or reducing the frequency and magnitude of drawdowns 

(!Iarrison ct a!. 20 17), methane t::missions may be reduced. 

American Rivers urges the Committee to conduct oversight on the issue of methane emissions 

from hydroelectric plants, both in the United Stales and overseas. As noted above, we believe 

that methane emissions need to be accounted for when creating a regulatory regime to reduce 

overall greenhouse gas emissions. We urge the Committee to direct federal agencies, 

pmiicularly the Department of'Energy. to facilitate. encourage, and conduct research into the 

greenhouse gas emissions from hydropower projects. Such research could build upon the work 

of scientists who have developed models for predicting methane emissions in the Amazon basin 
364 


(de Faria ct a12015). Further. we urge the Committee to examine the role that U.S. government 

financing of hydropower development overseas may be contributing to overall global greenhouse 

gas e1nissions. 

Unfortunately. when FERC examines hydropower license applications, the Commission docs not 

require methane gas emissions data. More concerning, the Commission does not require 

applicants to examine the impacts of climate change on the supply of fuel, in this case, river 

flows, over the proposed license term. It is evident to all that climate change is having dramatic 

impacts on hydrology; climate change is responsible f(Jr decreased snowpack, extreme rainfall, 

prolonged droughts, and changes to historic weather patterns. The failure of FERC to consider 

climate change in considering its license conditions and terms does a disservice not only to the 

applicant but also all other stakeholders who rely on healthy river flows at or about the project. 

However, the failure to consider methane emissions may have even more broad impacts by 

exacerbating the very conditions causing climate change. Evidence for such a feedback loop is 

convincingly argued by Deemer ct al: 

(A] warming climate supports larger algal populations, larger algal populations provide more 

organic mailer to support more methane production, and a portion of the methane produced 

escapes to the a/m().lphere, where itfimctions tofitrthcr warm climate. 

I urge the Committee and the Commission to take seriously the scientific evidence that 

hydroelectric dams are contributing to climate change. In doing so, I recognize the greenhouse 

gas avoidance that some, but not all, current or proposed hydroelectric projects provide. 

llowevcr, that avoidance is not I 00 percent at most projects, in comparison to wind and solar 

which are truly carbon free and for which the fuel source is truly renewable, as opposed to 

hydroelectric dams which by their nature rely upon finite, and competed for. hydrologic 

resources. 

Barros, N., J.J. Cole, L.l. Tranvik, Y.T. Prairie, D. Bastviken, P./\. del Giorgio, F. Roland, and 

V.L.M. Huszar. 20 II Carbon emission from hydroelectric reservoirs linked to reservoir age and 

latitude. Nature Geoscience 4: 593-596. 

Beaulieu, J.L R.L. Smolenski, C.T. Nictch, !\.Townsend-Small, and M.S. Elovitz. 2014. High 

methane emissions from a mid latitude reservoir draining an agricultural watershed. 

Environmental Science and Technology 48: Ill 00--111 08. 

Deemer, B.R., J.A. !Iarrison. S. Li, JJ. Beaulieu. T. Delsontro, N. Barros, J.F. Bezcrra-Neto, 

S.M. Powers. M./\. DosSantos, and 1.!\. Vonk. 2016. Greenhouse Gas Emissions from 

Reservoir Water Surfaces:!\ New Global Synthesis. BioScience 66(11 ):949-964. 
365 


de Faria Fi\M, Jaramillo P, Sawakuchi 110, Richey J E and Barros N. 2015. Eslimating 

greenhouse gas emissions from future Amazonian hydroelectric reservoirs. Environmental 

Research Letters l 0 1240 19 

!Iarrison. J.i\., B.R. Deemer, M.K. Birchfield. and M.T. O'Malley. 2017. Reservoir Watet·-Lcvel 

Drawdowns Accelerate and Amplify Methane Fmission. Environmental Science and Technology 

51:1267-1277. 

Shindcll, D.T., G. 1-'aluvegi. D.M. Koch, G.i\. Schmidt. N. Unger. and S.E. Bauer. 2009. 

Improved attribution of climate !orcing to emissions. Science 326:716-718. 
366 


Qb ,\k Irvin, Democratic 1Vfembers oft he F:nergy Subcommillee reantly wrote to Chairman 

Upton and Chairman Waldenlo requcs/ afbllow-up oversJ;"hl hearing on hydroelectric !ice !ISing 

10 receive les!inwnrfi'om Federal resources agencies, sf ales and i'iative Americanlribes. These 

entities, as you know, have manda!orv condilioning authoril)' on hydroelectric licenses that is 

central!o any discussion of legis/alive changes 10 the licensing process. As a member oft he 

C 'ongressirmal Nat ire American ( 'aucus, I'm particularly inleres!ed in ensuring the views of' 

trihes are heard in/his ma!ler. Mr. liT in, are you aware o(any Sl>ecific concerns by a Tribe wilh 

regard ro !he dra!i legis/a/ion? 

Many Native American tribes have long had serious concerns with the construction and 

operation of hydropower clams on or impacting their reservations. That is why the National 

Congress of American Indians passed a resolution in 2015 that stated in pertinent part: 

(NCA!lopposes changes lo !he hydropmrer section of'!he Fa/era/ Pmrer Acl!hat: (a) 

weaken/he current protections !ndianlribes have !hrough the ;\landO!ory Conditions 

requiremenls under Sec! ion -l(e) of' thai Act; (h) O\'er/urn !he wa/ershed case olCity of' 

Tacoma, Washing/on v. FE.RC, -160 F. 3d 53 (D.C. Cir. 2006}, which affirmed the 

au!hority of/ederal agencies lo address !he impacts a/water diversion laking place off 

reserralionlands afier decades olhard~fimghl /iligation; (c) roil hack ejjiJrls to restore 

fish popula!ions !hrough !he requirement o/fishwavs; and (d) unnecessarily limit the 

awiilab/e lime and scientific infimnalion available !ofederal agencies in deciding a'/10t 

Mandatory Condi!ions should be inclwledwith a license .. 1 

The experience of the Skokomish Tribe in Washington State illustrates the problems that tribes 

have faced in hydropower licensing, and has informed their position on the discussion drafts the 

Committee considered in the :V1ay 3'' hearing. Their concerns, while specific to their tribe, are 

shared by numerous tribes from across the country. l will attempt to summarize the Skokomish's 

concerns, as I understand them, but would urge the Committee to consider holding another 

hearing on the Discussion Draft specifically on how it impacts tribes, in order to more fully and 

directly hear the tribal perspective. 

The Skokomish Tribe in Washington Stale is concerned about the current draft of the 

l lydropowcr Modernization Act and the impact that the draft bill could have on the kdcral 

government's ability to meet its trust responsibility to protect Indian reservations, and treaty 

protected resources. While the Tribe, like all stakeholders, wants the licensing process not to be 

unnecessarily delayed or to be fi·aught with extraneous costs, they believe that truncated 

schedules and sloppy science will result in filly-year dam licenses that will destroy watersheds 

and ecosystems, as was the case for the Skokomish Tribe with the licensing of the Cushman 

Dam. 

1 The National Congress of American Indians Resolution #SD-15-009 
367 


The City of Tacoma operated Cushman Dam without any license conditions for 80 years. The 

Interior Department's failure to exercise its statutory duty to impose grry let alone "appropriatelicense conditions'· in 1924 resulted in the destruction of the once plentiful Skokomish North 

Fork fisheries, the flooding of almost thirty percent of the Skokomish Reservation, the 

degradation of the entire Skokomish Watershed, and the devastation of treaty protected cultural 

and wildlife resources. FERC did not even require Tacoma to pay for the use of Reservation 

lands where some of the Project was located. The Skokomish Tribe had to fight at every step in 

the rclicensing process to secure conditions to protect its Reservation and the reason it was 

established to be a homeland and provide access to the natural resources that the Skokomish 

relied on for generations. 

When the Interior Department finally imposed conditions on the Cushman Dam license, FERC 

decided that Interior's conditions were untimely. And it was the Tribe that had to fight in court 

to ensure that the conditions were enforced in the license. Even Interior was not willing to 

defend its conditions- but instead deferred to FERC regarding FERC's decision that the 

conditions that the Interior imposed were not timely and extended beyond the project works that 

were on the Reservation, and therefore were not mandatory. 

The Skokomish Tribe prevailed, and the ruling is set out in a 2006 decision from the U.S. Court 

of Appeals for the District of Columbia Circuit, City of'Tacoma v. FERC2 In that ruling, the 

Court agreed with the Tribe regarding Interior's authority to impose conditions on a project. The 

Court's decision established that FERC's deadline did not constrain Interior's mandatory 

authority under the Federal Power Act. The Court also upheld Interior's decision to impose 

conditions on the license beyond those project works that were actually on the Reservation. but 

including those necessary to protect the Reservation. 

This decision was critical to the Tribe and Tacoma reaching an historic settlement, which made 

Tacoma and the Tribe partners in the management of the Skokomish River and the Skokomish 

Watershed. As a result of this settlement. there have been major improvements in the 

Skokomish River Estuary, improved habitat on the North Fork of the Skokomish River, and the 

construction of a Sockeye hatchery to restore this run up the North Fork of the Skokomish River. 

The Skokomish Tribe's experience with the Federal Power Act demonstrates the critical 

importance that that the conditions set out in Sections 4(c) and 18 of the Act play in balancing 

the usc of the Nation's waters for hydropower with krms and conditions essential to ensuring 

that hydropower is not developed at the expense of other vitally important resources. 

This is why the Skokomish Tribe is concerned with the draft bill's impact on the ability of the 

l'cderal government to uphold its trust responsibility to protect tribal lands and treaty resources. 

2 Note: American Rivers intervened in this case in support of the Skokomish Tribe. 
368 


Sp~cifically, th~ draft bill would give FERC the ability to set deadlines on Interior and other 

agencies to set their conditions under the Federal Power Act, including Sections 4(c) and 18. 

While all stakeholders want the process to move in a prudent and timely manner, (afler all, the 

licensee gets to operate the facility under annual licenses without any new conditions until a new 

license is issued). without the resources or personnel to do the job. it is very unlikely that Interior 

or other federal and state agencies will meet the deadline that FERC sets. ln the Tribe's 

experience, Fl'RC readily extended deadlines lor the applicant and for itself, but only sought to 

impose unrealistically short deadlines on the other federal and state agencies which had equally 

important and distinct responsibilities under the Act. The Court in the Ciry of Tacoma v FERC 

decision recognized this. But under the Discussion Draft. the consequence of failing to meet the 

d~adlinc will be FERC"s rejection of the conditions. essentially overturning a critical clement of 

the ('ity of Tacoma v. FERC' decision. 

The Tribe is also concerned about the provisions of the draft bill that delegate to FERC, an 

agency that has neither the manpower nor expertise, the ability to make critical environmental 

decisions regarding projects. The Federal Power Act was forward-thinking in recognizing the 

experience and expcrtis~ of" other agcnci~s and the need for them to play a role in the issuance of 

these licenses. In the Tribe's view, this proposal would make an agency that is not qualified to 

make environmental decisions. ultimately responsible for these decisions. 

The Tribe has expressed the view that, as Congress considers changes in the Federal Power Act 

it should make changes that specifically strengthen Sections 4(e) and 18. Specifically, the Tribe 

asks that the Federal Power Act be amended to enable Tribes to assume the authority to impose 

4(c) and 18 conditions to protect its Reservations and Treaty rights and resources. This would 

make the Federal Power Act consistent with other statutes like tbc Clean Water Act and Safe 

Drinking Water Act, where Tribes arc tr~atcd as governments instead of wards of the 

government. ln the alternative. if Congress insists on authorizing FERC to set deadlines for 

Agencies to impose 4(e) and 18 conditions, the Tribe asks that the Federal Power Act also be 

amended to mandate that federal agencies must impose conditions on licenses to protect Indian 

Reservations, Tribal Treaty rights, and Tribal Trust resources, and provide Tribes with a cause ol' 

action against the United States, if the Agencies fail to do their job. 
369 


Q:l._i'v1r. Irvin. in your testimony. you stare that FERC routinely denies study reque.\"lsFom state. 

federal. and tribal resource agencies because FERC itself does not believe the information is 

necessary for FERC to complete its own review. Further, because the slate, federal, and tribal 

resource agencies, acling under separate statutory authority or pursuant to their directives 

under the Federal Power Act, are unable to complete their oversight of a license application 

until the re<luested infin·nwtion is provided by the applicant, FERC 's refusal to transmit the 

studv requests on/he resource agencies' be hal{ causes unneces.1·ar)i delays and confitsion. 

Can you expand on the issue of"stUi~V denial delavs? 

Do you know of" ins lances in which applicanls were aware thai stale, tribal, andfederal 

resources agencies required inlormation pursuanl to their statutory authorities. that FERC had 

declined to include a request in its study plan. and the applicant chose to not collect the data 

neccssmy to establish a scientif"icallv based and legally def"ensihle condition on a license? 

Denial of resource agency study requests by the Federal Energy Regulatory Commission (FERC) 

has long been a significant contributing factor in licensing delays. Federal. state, and tribal 

resource agencies have independent legal authorities granted to them by federal statutes such as 

the Clean Water Act, the Endangered Species Act, and the Federal Power Act that require them 

to complete their own reviews and place necessary conditions on a license for that license to be 

compliant with state and federal law. In order to complete a thorough, timely, and defensible 

review, it is critically important that resource agencies have scientific data from studies to inform 

their decision making. 

Where the applicant-proposed study plan will not provide adequate information for resource 

agencies to carry out their reviews, resource agencies ask FERC to require the applicant to 

provide the necessary information. Frequently, these requests arc rebuffed and resource agencies 

arc forced into a situation where they must make resource protection decisions without sufficient 

information (leaving them vulnerable to legal challenge), deny the permit or certification, or use 

taxpayer funds from their budgets to conduct the studies themselves. The additional wrangling to 

get information deemed necessary, the study dispute process embedded within the licensing 

process, and the conducting of studies to get tlw necessary information that the applicant and 

FERC have refused to provide. all add time to the licensing process and divert agency attention 

and resources away from exercising their authority in a timely manner. 

The following arc several examples that highlight the challenge that resource agencies face in 

getting FERC to assist them in obtaining the information they need to thoroughly and timely 

exercise their independent reviews and authorities: 
370 


Conowingo Hvdroelcctric Project (P-405), Marvland 

In 2009, the Maryland Department of Natural Resources (MDNR), on behalf of and in 

conjunction with the Maryland Department of the Environment (MOE) requested the applicant 

perform a Sediment and Nutrient Loading and Distribution Study in order to assess the project's 

impact on natural patterns of sediment and nutrient transportation and deposition in the 

impoundment. downstream riverine hahitat and upper Chesapeake Bay. To support its request 

MDNR wrote: 

[The/ [l]ong-term consequences ~(sediment accumulation and its [effect] on 

drnrnstream riverine and upper Chesapeake Bay habitat have not been 

adequately studied. 171is study will address missing information and data 3 

The applicant agreed to do a sediment study, but failed to include information on benchmarks for 

potential future mitigation that MDl\R requested. FERC agreed and in its Study Plan 

Determination wrote: 

Exelon 's revised studv plan includes projections ofsediment accumulation a11d 

options to manage, mitigate, and remove accumulated sediment. However, it did 

not address benchmarks (triggers).fiJr potential impacts and actions. Given the 

temporal variability of when the reservoir will reach its sediment storage 

capacity, the study report should include a sediment management plan that 

includes projections o(sediment accumulation,· henchmarks.fiJr potential impacts 

and actions,· and options to manage, mitigate, and remove accumulated 

sediment. 4 

Subsequently, the applicant again, failed to include the required information in its study report 

and despite objections from MDNR, FERC determined that the information was not required and 

declined to require the applicant to provide the requested information5 MDNR and MDE 

requested FERC reconsider its decision because it was not consistent with FERC's own prior 

study plan determination or FERC's regulations 6 FERC declined to do so. 

MDNR continued to raise the deficiency issues with the applicant and FERC and ultimately 

informed the applicant that it did not have sufficient information to process the 401 certification 

l(x the project. The applicant finally relented and in 2014 entered into an agreement with MDE 

to conduct a multi-year study to address the data dcficicncies 7 8 As of March 2017, the project 

3 FERC Accession No. 20090710-5127 

'FERC Accession No. 20100204-3055 

5 FERC Accession No. 20120521-3002 

6 FERC Accession No. 20120620-5101 

7 FERC Accession No. 20141218-3065 

8 http:// news. maryland. gov I m d e/20 14/12/08/wate r -qua I ity-ce rti ficati on -a p p li cation-for -proposed-conowingod am· rei ice n sing -w lth drawn-jan u a ry-7 -water-qua! ity-c ertificati on-pub !i c-h e a r1 ng-ca nee I ed -exel on -agrees-to-fund-
371 


still has not received a 401 and MOE has only recently determined it may have sufficient 

information to begin assessing the water quality impacts of the project9 

lt is clear from the record that much of the delay on this project could have been avoided I) if the 

applicant had simply provided the information it was required to provide in the study plan and 2) 

if FERC had required the applicant to provide the necessary information. Instead, this project is 

still awaiting its license because the State of Maryland did not have enough information to issue 

a legally defensible water quality certification. 

ElDorado Project (P-184), California 

In 200 I, the California State Water Resources Control Board (SWRCB), California's agency 

with responsibility for implementing section 401 of the Clean Water Act, wrote to Congress in 

response to FERC's report pursuant to section 603 of the Energy Policy Act of2000 to address 

the issue of study requests and delay. In that letter the SWRCB wrote: 

In addition, FERC often delays requiring, or refitses to require, the applicant to 

complete the agency requested studies that were required as part of the first and 

second stage consultation requirements prior to submitting the license application 

to FERC. 

FERC 's handling of ElDorado Project #184 is an example of'this problem. The 

license application was submitted without completion of the water quality, 

fisheries, hydrology, recreation, or aquatic surveysfiJr listed or sensitive species. 

The state andfederal agencies commenting on the drafi application concluded 

that the application was deficient. FERC nevertheless accepted the application 

for filing, thus triggering the requirement for water quality certification. Because 

the data will not be availahle fbr more than a year, the SWRCB isji>rced to either 

deny certification or H'aive its authorityfor ccrtif)calion. The other option isfbr 

the applicant to withdraw its request. 

additional-study/ 

This recurring problem is a product rJf FERC's own regulations. The failure to 

complete required studies, the absence affirm deadlines governing responses to 

[Additional!nfbrmation Requests/, and the premature requirement to request 401 

certification, leaves the agencies uncertain about when or if they ·will receive 

necessm:v if?fbrmation. This uncertainty compromises the agency's ability to 

evaluate and ana/y:;e project impacts to natural resources. 10 

9 FERC Accession No. 20170517-5130 

10 California's Response to the Federal Energy Regulatory Commission Staff Report on Hydroelectric Policies, Procedures, and 

Regulations-Comprehensive Review and Recommendations Pursuant to Section 603 of the Energy Act of 2000, October 200L 
372 


In this letter, the SWRCB very clearly lays out how uncertainty around whether they will receive 

the necessary information to complete the 401 compromises their ability to complete their water 

quality certification. The obvious solution would be for FERC to require studies that mandatory 

conditioning agencies need to complete their reviews. 

Dorena Lake Dam Hvdroelectric Project (P-119-15), Oregon 

The Oregon Department of Fish and Wildlife (ODFW) became concerned about entrainment of 

fish in the project area and they requested an entrainment study. The applicant declined to 

provide the study and FERC agreed, also declining to require the applicant to conduct the study. 

ODFW submitted I OUJ recommendations to FERC asking that a fish screen be required to 

prevent entrainment and FERC, in its October 2008 license order, rejected the I O(j) 

recommendation, citing a lack of information on entrainment of fish in the project area : 

As discussed in the final EA, stafffound no evidence to suggest that downstream 

migration offishji-om Dorena Lake currently is occurring in large numbers, or 

that loss offish through the dam is currently having a negative effect on 

populations offish in the fake .. For these reasons, staff concluded that there 

would be little biological benefit associated with installing an exclusion screen on 

the intake and subsequently performing a performance evaluation, and therefore, 

the measures would not just if); an annualized cost of$56,240. 11 

In its December 2008 response to the license order, ODFW sent a letter pointing out the 

unfairness of refusing to require a study ODFW requested, then refusing to incorporate their 

I O(j) recommendation on the basis of lack of information: 

Svmbiotics and ODFW developed a settlement agreement, outside of the FERC: 

process which, in this case, adequately addresses ODFW 's concern with project 

entrainment oj'the state 'sjish and wildlife resources. While ODFW is satisfied 

with the outcome it has reached with S)'mbiotics, we note rhar there are several 

conclusions for which the Commission should provide more explanation. For 

example, the Order at 42 suggests there was no evidence tharlarge numbers of 

.fish were migrating downslream. However, the order omits thejc1ct !hat PERC did 

not require a study to obtain infimnation on fish migrations, andfurther, rERC 

rejecled ODFW's Additional Srudy Request to conduct an entrainment study 

necessmy to co!lect the information. Essenlially, FERC: reji1sed to require the 

co!lection of data, then concluded !hat !here was no evidence that large numbers 

otjish were migrating 12 

11 FERC Accession No. 20081017-3023 

12 FERC Acccss10n No 20081226_

5004 
373 


Merced (P-2179) and Merced Falls (P-2467), California 

In 2009. the State Water Resources Control Board (SWRCB) requested a mercury 

bioaccumulation study for the Merced and Merced Falls Hydroelectric Projects because they had 

information that indicated there may be a mcrcmy problem in the project area: 

At the meeting on the Water Quality Study Plan, staffrequested that the Licensee 

include an examination of'>vhether and to what extent bioaccumulation ol 

mercury may be occurring in fish that reside in the Project impoundments. This 

request is due, in part. to information contained in an October 2004 Technical 

Memorandum prepared by Stillwater Sciences jbr the CA!J'ED Ecosystem 

Restoration Program entitled.· "Mercury Assessment of the l'vferced River 

Ranch]" that shows that the mE'rcurv content of' biota collected below the Merced 

Falls Project is considerably higher than biola collected above Lake McClure. 

Stale Water Board staff has consulted with the Office ol Environmental Health 

Hazard Assessment (OEFJHA) to determine the appropriate level of' effort 

required to collect rhe data needed by !hat agency /o make a determination 

regarding potential human health hazards associated with mercury 

bioaccumulation. 13 

The bioaccumulation study went to dispute resolution and FERC declined to require the study 

despite evidence that there may be a mercury problem in the project reach and the implications 

thereof to human health: 

Finally, we disagree with the Panel and the Resource Agency's Panelist's 

assessment that the proposed stut~Y identifies an appropriate nexus to potenlial 

project eff'ects. As stated in the Determination, the baseline for our NEPA review 

is existing conditions, not the original construction of' the projecl reservoirs. MID 

is not proposing to alter project operations, to increase waler.fluctualions, or 

mobilize substrates. There{ore, as proposed, the project is not per{orming any 

actions associaledwith the release of' methylation of' mercury. For the reasons 

cited above, we maintain thai a study of' mercury hioaccumulation is not 

warranted. 14 

This determination would be reasonable if the SWRCB had not told FERC it had information in 

its possession indicating that a problem may exist under curre171 operations of the project. 

In 20 ll, the SWRCB used its own authority to issue an investigation order to get the required 

bioaccumulation information. The investigation order notes: 

13 FERC Accession No. 20090302-5139 

"FERC Accession No. 20091222-3035 
374 


Division staff have participated in the Commission re/icensing proceeding and 

have provided input regarding the information that will be needed to develop the 

water qua lily certification The study plans proposed by MID did no/ address the 

fidE range of information needed by the State Water Board to develop the 

certification. The Study Determination issued by the Commission's Director of 

Energy Projects on September 1./, 2009, was likewise deficient by no! requiring 

that MID implement additional studies or study modifications requested by the 

State Water Board and other participating agencies and non-governmental 

organizations, in particular those that deal1vith resource issues downstream (If 

Crocker-Hu(fman Diversion Dam. :s 

In this particular situation, the SWRCH was able to obtain the needed data. However, the order 

required additional staff time and resources that would not have been necessary had the applicant 

or FERC agreed to implement the study when first requested. The applicant was not successful in 

avoiding providing the information, but did manage to delay doing necessary studies for two 

years. 

Chasm Hydroelectric Project (P-7320), New York 

In 2013, the United States Fish and Wildlife Service (USFWS) and New York Department of 

Environmental Conservation (NYDEC) requested additional studies related to base flow and 

bypass flow. The agencies had previously agreed with the license applicant on a study to 

determine flows. This agreement on the study methodology was based on the understanding that 

the project would continue to spill approximately 80% of the time, contributing an extra 50 cfs in 

tlows to the river. After the study was complete, the license applicant later revealed that it 

intended to change operations to spill only 25-30% of the time. The anticipated change in 

operations made the information provided by the study irrelevant to the potential new operations. 

Writing to FERC to explain why it needed additional information, the USFWS explained: 

The manaz;emen/ objectives were designed to reflect the current operational 

mode ... During settlement negoliations, Erie indicated that they have been 

inefficiently utilizing the power generating capabilities at this site. In thefilture, 

Erie plans to reduce spillage to the maximum extend practical. Erie estimated 

thai/he proiec·t would spill about ]5-30% of' the time in thefillure. Based on this 

determination, the Delphi Team members other than Erie de/ermined that the 

study was conducted under false pretenses and rescinded their recognition of' the 

scoring system that occurred. 16 

In its denial, FERC did not address the change in operations proposed by the license applicant or 

the assertion of·'false pretenses'' by the U.S. Fish and Wildlife Service. Instead, they denied the 

15 California State Water Resources Control Board Investigation Order WR 2011-0003-EXEC, pg. 4 

"FERC Accession No. 20130827·5195 
375 


study requests on the basis that its staff looked at the information and determined that it was 

sufficient for another agency's review process: 

Based on staff's review oft he stuc~v and other infimnation provided in the 

application, including information related to habitat suitability, existing 

information is adequate to serve as the basisjiJr an independent analysis of 

bypassed reach flows. TherejiJre, the agencies requested additional studies 

related to bypassed reachflows are denied. 17 

The USFWS and NYDEC are exercising authorities separate from FERC's licensing authority. 

FERC does not have the expertise or authority to determine what is sufficient to satisfy the needs 

of another agency's authority. Denying their study requests on the grounds that FERC thinks it is 

sufficient is substituting FERC's judgement for that of independent agencies. The 'NYDEC noted 

afterwards in a letter to FERC, that it did not receive adequate information and would usc the 

40 I process to obtain the desired bypass reach flow number necessary to protect aquatic 

resources and maintain water quality standards. 18 

Lower Barker Hydroelectric Project (P-2808), Maine 

On March 21, 2017, the Maine Department of Environmental Protection (Maine DEP), which 

has statutory authority to issue a Water Quality Certification under Section 401 of the Clean 

Water Act, requested additional water quality sampling in the deepest area of the impoundment 

to determine whether waters in the project area meet existing surface water quality criteria or 

adversely affects Dissolved Oxygen (DO) levels. Maine DEP had specifically requested that 

water quality sampling occur in the deepest part of the reservoir, but the applicant instead 

collected samples from half the depth of the deepest part of the reservoir: 

The study objective is to demonstrate attainment oj'Maine Water Quality 

Standards for Class C waters a/ the Project and is required by the Department 

before issuance of a water quality ccrli(ication. This additional data is needed 

because the applicant did not sample in the deepest area afthe impazmdment, as 

required by the Department. 19 

On April I 3, 2017, FERC denied Maine DEP's request stating that: 

... [S]ampling in 2015 demonstrated that the project impoundment meets the state 

standardfiJr DO ... All measurements of water quality demonstrated that the 

beneficial uses of the waterway are met. and that existing surji1ce water criteria 

17 FERC Accession No. 20i~Ocl-22-3002 

18 FERC Accession No. 20140716-5144 

19 FERC Accession No. 20170321-5153 
376 


are a/rained. Further, there is no indication 1hat operation of the project 

adversely affects dissolved oxygen 20 

In this case, FERC denied the request of a state agency because FERC itself felt that the 

information was sufficient to meet state water quality standards. FERC has neither the authority 

nor the expertise to make this determination, 

Additionally, because this study request denial just happened, it is impossible to know if this will 

result in delay. However. it is not hard to see a pattern of behavior here and how this could easily 

add to the processing time if Maine DEP is forced to require the additional sampling during its 

40 l certification process. 

Upper Pelzer {P-10254), Lower Pelzer (P-10253), and Piedmont (P-2428), South Carolina 

In 2016, the U.S. Fish and Wildlife Service (USFWS) and the South Carolina Department of 

Natural Resources (SCDNR) requested studies of water quality conditions in the bypass reach 

and the tailrace area. In its comments on the license application and study requests, SCDNR 

writes: 

SCDNR has previously requested information to assess water quality conditions 

in the bypass reach of the Project. This request was made once in our comments 

to FERC regarding the PAD and Study Requests (DNR letter ofJuZv 26, 20I3) 

and again in our comments on the DLA. This inj(Jrmation is needed to help us 

assess the needfor additional minimum flows in the bypass reach to be proJective 

a/aquatic habitat in the bypass area, which we have estimated to be 

approximatelv two acres in size. SCDNR concern that the current flow may not be 

sufficient to protect habitat appears to be justified by !he results oft he mussel 

study, ·which found only one species of mussel in the bypa.1·s. 21 

In its comments, the USFWS noted its previous request and the lack of suitability of the data 

collected: 

Contrary to the Study Plan, the Applicant positioned this downstream station in a 

location immediately belmv the powerhousefiJr Units 2 and 3 and upstream of' the 

tailrace for Unit I without notifj·ing the Service. TherefiJre, the study provides 

insufficient water quality datafbr the Project's bypassed reach and the area 

he/ow Unit I, and we cannot evaluate the Project's influence on water quality22 

FERC did not require any of the studies writing: 

2

° FERC Accession No. 2017041 J-30 12. 

21 FERC Accession No. 20160!29M5019 

nlTRC Accession }.;o. 20160 12H-5306 
377 


Wejind that the data collected downstream oft he powerhouse provides sufficient 

water quality information to characterize the conditions downstream of the dam, 

including in the tailrace area. Therefbre, we do not require FWS's and South 

Carolina DNR 's requestsfbr additional temperature and DO sampling, or 

surveys ofmacroinvertebrates within the tailrace area,. 23 

For both of these study requests FERC determined that they had the information they needed for 

their purposes ignoring the information needs of other agencies- federal and state. 

Braddock Locks and Dam Hydroelectric Project {P-13739), Pennsylvania 

In 2012, during the licensing of this project proposed on their dam, the US Army Corps of 

Engineers (Corps) requested water quality monitoring upstream and downstream of the dam 

before and during construction. They cited their need to" ... protect basin-wide water quality 

benefits provided by the District's Monongahela River Basin reservoirs and the Braddock Dam 

water quality gate. Additionally, to assure compliance with Federal laws and regulations as they 

pertain to the Corps' water management/wafer quality and resource management missions. "24 

FERC did not require the water quality monitoring study claiming that there was sufficient 

information already available: 

We .find thai Hydro F'riends Fund's wafer quality sampling, in conjunciion with 

the abundant existing water quality dar a contained in its Pre-Application 

Document (PAD) is adequale lo support the Commission's environmental review 

of the proposed project. As a resull, we are nor requesting the applicanl to 

pe1jbrm the requesred additional monitoring25 

This is an example where FERC determined the information needs for another agency, in this 

case the owner of the dam, to be sufficient when the agency said it was not. Many stakeholders 

have testified about the challenges that occur when developers propose adding hydropower to 

federally-owned and operated non-powered dams. I !ere is an instance where the owner of the 

dam, the United States Army Corps of Engineers, sought information about how development of 

hydropower at its dam would impact the dam's authorized purposes (for which the taxpayers 

paid capital construction costs and continue to pay operations and maintenance costs), but that 

request was denied by FERC. The Corps will undoubtedly refuse permission for any alterations 

to its structure without that information. which FERC and presumably the applicant, surely 

knew. In this case, the applicant has no one to blame but themselves. and FERC, for the failure 

to expeditiously get approval for development at a facility owned by the United States. 

23 FERC Accession No. 10 !70322-3050 

"ld. 

2S ld. 
378 


LaGrange (P-14581) and Don Pedro !P-2299), California 

A particularly egregious example occurred in 2015 in the LaGrange (P-14581) and Don Pedro 

(P-2299) proceedings. NMFS requested study of habitat upstream of Don Pedro reservoir, in 

order to evaluate the appropriateness of fish passage past two FERC-jurisdictional dams: La 

Grange Dam and Don Pedro Dam. ln making its request for these studies, NMFS explained how 

this information would help both it and FERC evaluate the impacts of the project: 

]1/MFS' Requests are intended to provide information that directly applies to: 

• Inform NMFS, other ILP participants, and OEP staff' about the Project's 

eflec/s on anadromousfish passage, and to assist NlvfFS in exercising its 

Federal Power Act (FPA) § 18 authority, to either: 1) prescribe jishways 

at the Project, (2) not prescribe, or (3) reserve the prescriptive authority 

over the license term; 

• Inform NMFS. other ILP participants, and OliP staff' with respect to fi;ture 

FPA § 10 (j) and§ 10 (a) recommendationsjbr protection, mitigation, and 

enhancement measures related to anadromousfishes or habitats affected 

by the Project; 

• ln{orm NMFS and OEP staff' about potential Project effects to be 

discussed during 1Hagnuson-Stevens Fishery Conservation and 

Management Acr (MSA) consultation between/he Commission and NMFS 

regarding the effects i!{ the Project on Chinook salmon essential/ish 

habitat (liFH); 

• !nfbrm ESA § 7 consultation between the Commission and NAif:~' 

regarding Project eflects on threatened species and designated critical 

hahitats in !he Tuolumne River, and in areas downstream. 26 

FERC ordered an engineering study of passing fish past the dams, but declined to order an 

evaluation of the habitat upstream of Don Pedro because there were no "project effects" on that 

habitat. In the Director's study determination, the Director of OEP stated that FERC was not 

obligated to order studies to satisfy information needs of other agencies: 

We recognize NA1FS 's sratutor_v authority, and have provided a licensing process 

where applicants, agencies, and other interested parties can work together to 

ensure that necessary studies are per{ormed. However, it is up to the Commission 

to determine whether a particular studv is necessarvfbr the Commission tofitlly 

understand the ef{ects oj'/icensing or re/icensing a project, and we are not 

obligated to require a study to support another agency's decision making 27 

26 FERC Accession No. 20150223-5175 

27 15! FERC 61,240 p.9 
379 

Æ 


This is the clearest example of FERC's view that it requires studies for itself and is little 

interested in the needs of other agencies. When FERC takes this approach to licensing, it is 

disingenuous to then go before Congress and claim that the exercise of other agencies authorities 

is slowing down the licensing process when FERC itself has done little to make the exercise of 

that authority easier or more timely. The paragraph cited above is the best example of why 

mandatory conditioning agency study requests should be required in PERC's study plan. 

These are just a few of the myriad of examples whereby FERC and license applicants have 

wasted time and created difficulties for resource agencies trying to fulfill their authorities under 

federal, tribal, and state law. 

Thank you for the opportunity to answer your questions and for the opportunity to testify. Please 

feel free to contact me. or Jim Bradley of my staff, if American Rivers can be of any further 

assistance.