U.S. GOVERNMENT PRINTING OFFICE

64–033CC WASHINGTON : 2000

HYDROELECTRIC LEGISLATION

HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY AND POWER

OF THE

COMMITTEE ON COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

ON

H.R. 2335, H.R. 1262, H.R. 3852,

S. 334, S. 422, S. 1236, and S. 1937

MARCH 30, 2000

Serial No. 106–106

Printed for the use of the Committee on Commerce

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COMMITTEE ON COMMERCE

TOM BLILEY, Virginia, Chairman

W.J. ‘‘BILLY’’ TAUZIN, Louisiana

MICHAEL G. OXLEY, Ohio

MICHAEL BILIRAKIS, Florida

JOE BARTON, Texas

FRED UPTON, Michigan

CLIFF STEARNS, Florida

PAUL E. GILLMOR, Ohio

Vice Chairman

JAMES C. GREENWOOD, Pennsylvania

CHRISTOPHER COX, California

NATHAN DEAL, Georgia

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

BRIAN P. BILBRAY, California

ED WHITFIELD, Kentucky

GREG GANSKE, Iowa

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

RICK LAZIO, New York

BARBARA CUBIN, Wyoming

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

JOHN D. DINGELL, Michigan

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

PETER DEUTSCH, Florida

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

RON KLINK, Pennsylvania

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

TOM SAWYER, Ohio

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

KAREN MCCARTHY, Missouri

TED STRICKLAND, Ohio

DIANA DEGETTE, Colorado

THOMAS M. BARRETT, Wisconsin

BILL LUTHER, Minnesota

LOIS CAPPS, California

JAMES E. DERDERIAN, Chief of Staff

JAMES D. BARNETTE, General Counsel

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON ENERGY AND POWER

JOE BARTON, Texas, Chairman

MICHAEL BILIRAKIS, Florida

CLIFF STEARNS, Florida

Vice Chairman

STEVE LARGENT, Oklahoma

RICHARD BURR, North Carolina

ED WHITFIELD, Kentucky

CHARLIE NORWOOD, Georgia

TOM A. COBURN, Oklahoma

JAMES E. ROGAN, California

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

ED BRYANT, Tennessee

ROBERT L. EHRLICH, Jr., Maryland

TOM BLILEY, Virginia,

(Ex Officio)

RICK BOUCHER, Virginia

KAREN MCCARTHY, Missouri

TOM SAWYER, Ohio

EDWARD J. MARKEY, Massachusetts

RALPH M. HALL, Texas

FRANK PALLONE, Jr., New Jersey

SHERROD BROWN, Ohio

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ALBERT R. WYNN, Maryland

TED STRICKLAND, Ohio

PETER DEUTSCH, Florida

RON KLINK, Pennsylvania

JOHN D. DINGELL, Michigan,

(Ex Officio)

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C O N T E N T S

Page

Testimony of:

Brouha, Paul, Associate Deputy Chief, Forest Service, U.S. Department

of Agriculture ................................................................................................ 100

Burns, Allen, Vice President of Requirements Marketing, Bonneville

Power Administration, U.S. Department of Energy .................................. 34

DeFazio, Hon. Peter A., a Representative in Congress from the State

of Oregon ....................................................................................................... 12

Fahlund, Andrew, Policy Director for Hydropower Programs, American

Rivers ............................................................................................................. 76

Grimm, Robert S., President, Alaska Power & Telephone Company ........... 86

Hoecker, Hon. James J., Chairman, accompanied by Curt He ́bert, Jr.

and William L. Massey, Commissioners, Federal Energy Regulatory

Commission ................................................................................................... 17

Kennedy, Lynne, Oregon Department of Environmental Quality ................ 96

Leshy, John D., Solicitor, U.S. Department of the Interior .......................... 29

Lynch, Kevin A., Director of Government Affairs, Pacificorp ....................... 74

Murkowski, Hon. Frank, a United States Senator from the State of

Alaska ............................................................................................................ 5

Murphy, Michael A., President, National Hydropower Association ............. 60

Piper, Dave E., Chief Executive Officer, Pacific Northwest Generating

Cooperative .................................................................................................... 89

Radanovich, Hon. George P., a Representative in Congress from the State

of California ................................................................................................... 9

Rosenberg, Andrew A., Deputy Assistant Administrator for Fisheries,

National Oceanic and Atmospheric Administration, U.S. Department

of Commerce .................................................................................................. 36

Waddington, Steve, Northwest Power Manager, Reynolds Metals Company ................................................................................................................ 93

Material submitted for the record by:

American Public Power Association, prepared statement of ........................ 114

Brouha, Paul, Associate Deputy Chief, Forest Service, U.S. Department

of Agriculture, responses for the record ...................................................... 251

Center for Energy Efficiency, Environmental Defense, Natural Resources

Defense Council, and Sierra Club, letter dated March 30, 2000, to

Hon. Joe Barton ............................................................................................ 121

Dingell, Hon. John D., a Representative in Congress from the State

of Michigan:

Letter dated January 19, 2000, to Hon. Bill Richardson, enclosing

questions for the record, and responses to same ................................. 129

Letter dated March 27, 2000, to Hon. Bill Richardson .......................... 133

Letter dated February 8, 2000, to Greg Booth, enclosing questions

for the record, and responses to same .................................................. 146

Letter dated January 20, 2000, to Frank L. Cassidy, enclosing questions for the record, and responses to same ........................................ 155

Letter dated February 8, 2000, to Mark Gendron, enclosing questions

for the record, and responses to same .................................................. 161

Letter dated February 23, 2000, to Robert G. Hayes, enclosing questions for the record, and responses to same ........................................ 169

Letter dated February 8, 2000, to Tom Kuhn, enclosing questions

for the record, and responses to same .................................................. 174

Letter dated February 8, 2000, to David Piper, enclosing questions

for the record, and responses to same .................................................. 178

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Page

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(IV)

Fahlund, Andrew, Policy Director for Hydropower Programs, American

Rivers, letter dated May 8, 2000, to Hon. Joe Barton, enclosing response for the record ..................................................................................... 254

Hart, City of, prepared statement of .............................................................. 113

He ́bert, Curt, Jr. Commissioner, Federal Energy Regulatory Commission,

letter dated May 8, 2000, to Hon. Joe Barton, enclosing response for

the record ....................................................................................................... 200

Hoecker, Hon. James J., Chairman, Federal Energy Regulatory Commission, letter dated May 8, 2000, to Hon. Joe Barton, enclosing response

for the record ................................................................................................. 192

Hoekstra, Hon. Peter, a Representative in Congress from the State of

Michigan, letter dated March 29, 2000, to Hon. Joe Barton ..................... 113

Idaho Energy Authority, prepared statement of ............................................ 119

Kennedy, Lynne, Oregon Department of Environmental Quality, letter

dated May 8, 2000, to Hon. Joe Barton, enclosing response for the

record ............................................................................................................. 261

Knowles, Hon. Tony, Governor, State of Alaska, letter dated March 29,

2000, to Hon. Joe Barton .............................................................................. 112

Leshy, John D., Solicitor, U.S. Department of the Interior, letter dated

May 16, 2000, to Hon. Thomas J. Bliley, Jr ............................................... 236

Lyder, Jane M., Legislative Counsel, Office of Congressional and Legislative Affairs, Department of the Interior, letter dated May 30, 2000,

to Hon. Joe Barton ........................................................................................ 220

Markey, Hon. Edward J., a Representative in Congress from the State

of Massachusetts, letter dated April 10, 2000, to Hon. Joe Barton,

enclosing material for the record ................................................................. 189

Massey, William L., Commissioner, Federal Energy Regulatory Commission, letter dated May 8, 2000, to Hon. Joe Barton ................................... 219

Michigan United Conservation Clubs, prepared statement of ...................... 115

Oregon Utility Resource Coordination Association, prepared statement

of ..................................................................................................................... 117

Rosenberg, Andrew A., Deputy Assistant Administrator for Fisheries,

National Oceanic and Atmospheric Administration, U.S. Department

of Commerce, responses for the record ........................................................ 246

Souby, James M., Executive Director, Western Governors’ Association,

letter dated May 15, 2000, to Hon. Joe Barton and Hon. Rick Boucher .. 269

Taylor, Gary J., Legislative Director, International Association of Fish

and Wildlife Agencies, letter dated March 28, 2000, to Hon. Joe Barton 122

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HYDROELECTRIC LEGISLATION

THURSDAY, MARCH 30, 2000

U.S. HOUSE OF REPRESENTATIVES,

COMMITTEE ON COMMERCE,

SUBCOMMITTEE ON ENERGY AND POWER,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:07 a.m., in room

2322, Rayburn Building, Hon. Joe Barton (chairman) presiding.

Members present: Representatives Barton, Shimkus, Wilson,

Shadegg, Bryant, Sawyer, Markey, and Dingell (ex officio).

Also present: Representative Towns.

Staff present: Joe Kelliher, majority counsel; Kevin Cook, science

advisor; Elizabeth Brennan, legislative clerk; and Rick Kessler, minority professional staff.

Mr. BARTON. The purpose of the hearing today is to consider various hydroelectric bills pending before the subcommittee.

Four of the 7 bills that are the subject of this hearing have

passed the Senate, and I am pleased we are able to hold a hearing

with sufficient time left in the year to act on these bills if it turns

out they enjoy support among subcommittee members.

The most important bill before the subcommittee today is H.R.

2335, the Hydroelectric Licensing Process Improvement Act of

1999, which was introduced by our colleague, Representative

Towns, and is co-sponored by four subcommittee members—Mr.

Burr, Mr. Hall, Mr. Wynn, and Mr. Shadegg.

This hearing comes at an important time. Much of the country’s

hydroelectric capacity will be relicensed in the next 15 years. We

need to understand how well or badly the licensing process is working. If the process is working badly, we need to know whether administrative reforms can improve the process or whether Congress

must act in this area. If Congress must act, we need to know what

a bill should look like.

As I mentioned earlier, 4 of the 7 bills that are the subject of our

hearing today have passed the Senate. Some of these bills have repeatedly passed the Senate only to die as the House took no action.

I believe as a general rule, the subcommittee should hold hearings

on bills that have passed the Senate. That does not mean we’ll necessarily pass a bill just because it passed the Senate. The subcommittee will show the Senate the courtesy of considering their

bills. If the Senate bills referred to the subcommittee die, they will

die as a result of conscious decisions, not out of neglect.

I understand that there is some controversy associated with the

Senate bills we consider today. Federal resource agencies and environmental groups oppose the Alaska and Hawaii exemption bills

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and the Michigan exemption bill. Some Bonneville customer groups

oppose S. 1937, which apparently is also known as the JOE bill.

I’m suspicious that Senator Craig gave the bill that name in order

to maximize its chance of House action——

I’m wondering whether it was called the Dan bill in the last Congress.

Finally, I understand that the license extension bills are not controversial.

We look forward to hearing the testimony of the witnesses before

us.

The Chair would now recognize the distinguished ranking member from the State of Michigan, Congressman Dingell, for an opening statement.

Mr. DINGELL. Mr. Chairman, thank you. I’d like to welcome our

friend, the Senator from Alaska. Glad to see you here. And also Mr.

DeFazio and the other witnesses. Thank you also for being here,

Mr. Radanovich. Senator, I think with your legislation, there will

be some small problems to work out. We will try and work with

you.

Mr. BARTON. Mr. Chairman, you need to speak up a little bit so

we can——

Mr. DINGELL. Mr. Chairman, I also have an opening statement

which I ask be inserted into the record at this time.

[The prepared statement of Hon. John D. Dingell follows:]

PREPARED STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF MICHIGAN

Mr. Chairman, I want to welcome our guests, Mr. DeFazio, Mr. Radanovich, and,

of course my good friend the Senator from Alaska.

Today’s hearing covers a good deal of ground, most of it relating to the relicensing

of hydroelectric facilities. Some of the bills are simple extensions of construction licenses. Because of the limitations set in the Federal Power Act, the Committee has

had a long, bipartisan tradition of moving non-controversial license extensions, so

long as the Commission raises no objections. I will say that it is very unusual—

though not unheard of—for Congress to extend the license for more than six years

beyond the four year period granted by FERC. One of the bills we are considering

today, authored by my friend Senator Craig, would require us to deviate from those

standards and I think we need to carefully consider the legislation to decide if it

is appropriate to move forward.

Two of the bills before us would have us exempt small hydroelectric projects in

the states of Hawaii and Alaska, respectively, from the possibility of FERC regulation under Section 4(e) and Section 23(b) of the Federal Power Act. This would leave

these projects solely under the jurisdiction of these states. I am curious as to why

these two states should be treated differently from the other 48 states. I am, however, certainly open to the arguments of my friend from Alaska and want to extend

him every courtesy and consideration.

Another bill, H.R. 1262, authored by my colleague from the Michigan delegation,

Mr. Hoekstra, would exempt from FERC relicensing and regulation for all time the

Hart Lake project on the Pentwater River in Michigan. I would truly like to be helpful to my colleague, but the legislation has drawn strong objections from FERC, the

resource agencies, and environmental groups. In particular, the Michigan United

Conservation Clubs—which counts 100,000 members in my state—has submitted

testimony in opposition to H.R. 1262 and other legislation before us today, and I

ask that the testimony be made part of the record. Finally, the State of Michigan

has informed the Majority staff, Mr. Hoekstra, and my staff that it opposes the bill.

I regret that this leaves me with very little room to be of assistance.

The other hydroelectric bill on which we will hear testimony today is legislation

offered by the Ranking Member of the Finance Subcommittee, Mr. Towns. As many

of you know, I have long taken a strong interest in hydropower issues and the hydroelectric relicensing process. In the mid-1980s, I worked closely with several other

committee members on enactment of the Electric Consumers Protection Act (ECPA),

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which attempted to balance environmental values and the economic benefits of hydropower. This statute amended the Federal Power Act to direct FERC to give equal

consideration to fish and wildlife, recreation, and other environmental benefits.

There are a number of factors that led to this change in 1986. For the 65 years

prior to enactment of ECPA, the law more or less promoted the development of hydroelectric power, with little weight given to other uses of a waterway and its ecosystem. Now, the waters of the United States are public resources owned by all the

people. The production of electric power is but one of many potential uses of a waterway, and FERC only the regulator of that particular use. The resource agencies

and the states are mainly responsible for the management of these bodies of water

and often the surrounding land, so they have been given an appropriate level of

input into any FERC decision that would affect the disposition of that water and

land. Another important factor to keep in mind is that these licenses can be issued

for up to 50 years. That’s a pretty long time. To put it in perspective, the last time

some of these dams went through re-licensing, I wasn’t in Congress and Strom

Thurmond was a Democrat. So, I think a rigorous licensing process is not an undue

burden.

Having said all this, if there is truly a problem that can’t be handled by the regulatory process or readily resolved by the courts and that is causing real uncertainty

or harm, then we should consider whether legislative action might be helpful on balance. That was the case in 1986 when we passed ECPA. But there should be a large

body of evidence and a large, diverse group of stakeholders supporting legislative

action. As of now, I do not think either of those conditions have been met, but I

remain open to being convinced.

Finally, we have a bill before us that would amend the Pacific Northwest Electric

Power Planning and Conservation Act to allow the Bonneville Power Administration

(BPA) to sell electricity to joint operating entities (JOEs).

Our former colleague Ron Wyden first contacted me about this when the Senate

was considering this legislation late last year. I know he, Mr. DeFazio, Rep.

Hastings, and Rep. Walden are very interested in seeing this legislation move quickly through the legislative process. In an effort to assist them and expedite Congress’

consideration of this matter, in mid-January I sent questions to seven stakeholders

about the legislation and its impact.

I am happy to say that six of those stakeholders took this matter seriously and

responded fully and quite promptly to my request. They had responses to me over

a month ago. I believe their responses will help us as we continue to consider the

legislation and I ask that my letters and their responses be made a part of the

record.

Unfortunately, the one ‘‘stakeholder’’ that has yet to respond is the one that is

responsible for administering the law: the Department of Energy. My friends from

the Northwest should know that it is due to the Department’s inability or unwillingness to respond in a timely fashion, that we lack the information necessary to fully

consider their proposal. I am also disturbed by the lack of a response from DOE,

because the information I requested from the Department is of a basic nature, on

a proposal that had been considered previously by the Senate, and therefore I find

it difficult to believe that my request was extraordinary. Yet, judging by the written

testimony of Mr. Allen Burns, DOE still cannot answer these questions.

Mr. Chairman, I would like to submit for the record the two letters and questions

I sent to the Department. I would also ask that you keep the record of this hearing

open for a substantial amount of time because that may be our only hope for ever

getting the Department to contribute something useful to this hearing.

With that Mr. Chairman, I thank you for your indulgence and will look forward

to hearing from our witnesses.

Mr. BARTON. Without objection, so ordered. Does the gentleman

from Arizona, Mr. Shadegg, wish to make an opening statement?

Mr. SHADEGG. I’ll make a brief one, Mr. Chairman. I simply want

to thank you for holding this hearing. I think it is extremely important. I am particularly interested in the issue of relicensing the

pilot hydropower plants. With the current energy crisis we are suffering, the spike in the price of gasoline and crude oil, and with the

recognition that many of our strategies to control air pollution and

to avoid further damage to our air quality, I think it is incumbent

upon this Congress to ensure that the process of relicensing dams

is accomplished in an appropriate fashion and that that——

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Mr. BARTON. You say relicensing dams or relicensing Dems?

Mr. SHADEGG. Dams.

Mr. BARTON. Just want to get it on the record.

Mr. SHADEGG. Relicensing hydroelectrical projects if you prefer,

Mr. Chairman.

Mr. BARTON. That’s more appropriate.

Mr. SHADEGG. And they affectionately labeled me ‘‘Mr. Hydro’’

last year.

Mr. BARTON. No. They actually labeled you ‘‘Hydro Man.’’

Mr. SHADEGG. I commend my colleague, Mr. Towns, for his legislation, and I’m anxious to hear the testimony here this morning.

Mr. BARTON. Thank you. The distinguished gentleman from New

York, a member of the full committee, not of the subcommittee, but

who is a distinguished guest today. Would you like to make an

opening statement?

Mr. TOWNS. Thank you very much, Mr. Chairman, and I also

thank you for holding this hearing. First I’d like to thank you again

for holding this hearing on my bill, H.R. 2335, the Hydroelectric Licensing Process Improvement Act of 1999. This is an important

issue, and it deserves the attention that we are giving it today.

I would also like to thank the witnesses. I have reviewed your

testimony. I look forward to the opportunity to discuss these issues

with you during the question and answer period.

Over half of all nonFederal hydroelectric capacity is scheduled to

be relicensed in the next 15 years. If current trends continue, our

country could lose a number of hydropower projects and with them

enormous clean energy and other benefits. Congress must act, and

it must act now, to improve the relicensing process.

I think that all of the witnesses today, regardless of whether

they support my legislation, will acknowledge that there are serious problems with the current hydroelectric licensing process. The

present process broken and should be fixed. While I commend

FERC and the other agencies involved in the several well-known

efforts to rationalize the licensing process, I do not believe that

they are sufficient to bring the necessary level of accountability and

responsibility to the process. Statutory changes are needed to require agencies to consider all important factors when setting mandatory conditions and to give applicants some procedural protections to ensure that the agencies abide by those requirements.

Without going into the description of H.R. 2335, I do want to emphasize, this legislation does not—and I emphasize that—does not

propose to repeal mandatory conditioning. Neither does it modify

or repeal the environmental laws of the resource agencies involved

in the licensing process. Rather, the bill calls for the reasonable implementation of these laws to achieve a balance that will protect

the environment while ensuring a viable hydroelectric industry.

Finally, Mr. Chairman, I would like to note also that since this

bill was introduced, other problems facing companies trying to relicense hydro projects have come to my attention. For example, I recently learned about a problem of a utility company with respect

to their efforts to relicense a project. Unfortunately, the State has

used the authority delegated to them under section 401 of the

Clean Water Act to impose license conditions without regard to the

costs and benefits of the license conditions they would impose.

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I believe this is an important issue that warrants additional consideration by this subcommittee. Once again, I would like to thank

you for extending to me the courtesy to come and to make an opening statement and to indicate that I look forward to working with

you to be able to bring about some changes.

Any time you have a situation where you try to relicense, you

don’t know how many lawyers you need, you don’t know how much

money you need or do you have any idea what year it will ever

happen. So thank you very much, Mr. Chairman.

Mr. BARTON. Thank you, Congressman. All of the members not

present have the requisite number of days to put their opening

statement in the record at the appropriate point.

[Additional statement submitted for the record follows:]

PREPARED STATEMENT OF HON. TOM BLILEY, CHAIRMAN, COMMITTEE ON COMMERCE

Mr. Chairman, this hearing is indeed timely. It has been many years since the

Subcommittee on Energy and Power reviewed legislative proposals to reform the

Federal hydroelectric relicensing process.

This is not an issue that has gotten much attention. My first priority is to enact

comprehensive electric restructuring legislation. I intend to push very hard for that

to happen. Of course, 10 percent of U.S. electric generation comes from hydroelectric

projects. Hydroelectric relicensing is an important issue in many States, and I applaud my good friend Mr. Towns’ work.

Many believe the current relicensing process is hopelessly broken and there is a

need to amend the Federal laws that govern this process. Others are concerned that

legislation might undermine the level of protection for the environment and fish in

the relicensing process.

In my view, a relicensing process that takes a decade or two has room for improvement. The process is a very complicated one, and involves Federal, State, and

local officials. The history of the licensing process has been marked by State-Federal

conflicts, and frictions between FERC and the Federal resource agencies.

I want to offer a special welcome to one of the witnesses today, Mr. Waddington

of Reynolds Metals Company. I will give his comments on S. 1937 my close attention.

I look forward to hearing the testimony today.

Mr. BARTON. We’re going to start with our first panel of legislators. We’re going to start with Senator Murkowski. And we understand, Senator, that you are chairing a hearing in absentia at this

moment. So after you give your statement you can leave, and we’ll

submit questions to you in writing. Or if you wish to stay and take

oral questions, that’ll be your prerogative.

We’re going to recognize you for 7 minutes. Your written statement is in the record. Then we’ll just go to Mr. Radanovich and

then Congressman DeFazio.

STATEMENTS OF HON. FRANK MURKOWSKI, A UNITED STATES

SENATOR FROM THE STATE OF ALASKA; HON. GEORGE P.

RADANOVICH, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF CALIFORNIA; AND HON. PETER A. DeFAZIO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON

Senator MURKOWSKI. Thank you very much, Mr. Chairman. Let

me thank you for calling this hearing, and I think the topics that

are before your committee are most appropriate, and as you indicated, they passed the Senate. Hydro relicensing, of course, is very

meritorious and something we have to address and resolve.

First of all, let me thank Congressman Dingell for his remarks,

and I certainly look forward to working with he and his staff as

well as all the members of the committee to try and address our

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little bill, which suggests, if you will, that Alaska’s a little different,

that a five megawatt exemption is justified, and I would hope that

in my brief remarks I can convince the environmental community

that it is a big plus for the environment.

Let me give you an example of why perhaps Alaska is different.

You know, our pipeline has been in existence for 23 years. It’s up

for renewal. It needs to be relicensed. And the mandate of the Department of Interior was that it receive a full EIS. We were kind

of surprised, because there’s never been a pipeline that’s been relicensed in this country, the hundreds of pipelines, that required

anything more than environmental assessment. The explanation

was, ‘‘Alaska is different.’’

That being the case, what we’ve got in the five megawatt or less

bill that’s before this committee is really needed for two reasons.

It will help reduce the price of electricity to consumers, and it will

help the environment in our State.

As you know, and those of you who have traveled in Alaska, we

have a small—a potential for a small number of hydroelectric

projects of five megawatts or less. These are for areas where there

are no anadromous fish in the streams or the runoff, and they can

meet the needs of our small communities of 2,500 to 3,000 people.

Now, FERC’s licensing process is significant in case you’re wondering. And as a consequence, it costs millions of dollars, and the

burden of a FERC license is so great that the small projects simply

can’t afford the cost.

We have in my home town 18 feet of rainfall a year. That’s over

220 inches. This is in southeastern Alaska. These are mountainous

little streams that come down with a Pelton wheel plugged in. We

can get power generation to these communities that are dependent

currently on diesel power. And as a consequence, with that kind of

rainfall, we’re looking at projects like a black bear project on Prince

of Wales at 4.5 megawatt, took 7 years to get it through FERC. In

comparison, the construction only took a year. The FERC licensing costs of $1.2 million comparison with, you

know, $10 million to build the project, who pays that $1.2 million?

It’s the consumer through the licensing. And as a consequence, you

know, it just isn’t applicable in our small area. We only have

700,000 people in an area one-fifth the size of the United States

that goes from Canada to Mexico, Florida to California, with the

Aleutian Islands.

So what we want to make sure is that we’re not bypassing any

of the environmental oversight that is necessary. But we have high

costs because much of our electric generation is by diesel. You

know, the price, residential price of electricity in Alaska is 11.5

cents per kilowatt hour in our major cities as compared to 8.3

cents—that’s 39 percent higher. In some of the villages it’s up to

44 cents per kilowatt. And, you know, it’s because we have to bring

in the diesel fuel by barge during the summer season, or if we’re

short in the winter, we have to fly it in.

Now the consumers will benefit, the air quality will benefit. And

finally, we do have the safeguards to ensure that in this legislation

there is the necessary protection for the environment. It does not

exempt Alaska’s small hydro projects from regulation. Instead it allows the State to regulate in lieu of FERC. And obviously the

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State’s interested in its environmental consequences and responsibilities, more so than a distant FERC who, you know, sits here

in Washington and looks at something 3,000 miles away a little different than the folks that are there looking at it.

In addition, because licensing and regulation for these small

projects will be handled by the State instead of FERC, the processing time and the cost will be reduced.

Finally, this legislation allows Alaska to regulate the small

projects only after FERC certifies that the State has in place a regulatory program which protects the public interest and the environment to the same extent provided by licensing and regulation.

Finally, the legislation specifically provides that full application

of all Federal environmental natural resources or culture resource

protection laws apply. Thus the environment in the legislation will

provide full protection of the environment and the public interest

while at the same time reducing the cost and time required to license a small hydro project in Alaska.

In summary, if enacted, this legislation would benefit Alaska, the

environment and the economy, and I would encourage my environmental friends to join with me, and if they have differences, I’d be

happy to discuss it with them. But this is a win-win-win, and it’ll

do a great benefit for Alaskans. And when you see 18—that’s the

year I learned to swim, when we had 18 feet of rain in 1947. Thank

you, Mr. Chairman.

[The prepared statement of Hon. Frank Murkowski follows:]

PREPARED STATEMENT OF HON. FRANK H. MURKOWSKI, CHAIRMAN, COMMITTEE ON

ENERGY AND NATURAL RESOURCES, UNITED STATES SENATE

Chairman Barton and the Members of the Subcommittee, I appreciate the opportunity to testify before your Subcommittee on S. 422, a bill to provide for Alaska

state jurisdiction over small hydroelectric projects of 5 megawatts or less. This bill

passed the Senate unanimously.

This legislation is needed for two reasons. First, it will help reduce the price of

electricity to consumers in Alaska. Second, it will help the environment in Alaska.

Let me explain.

Alaska has great potential for a number of small hydroelectric projects of five

megawatts or less. These projects are generally run-of-the-river, meaning that no

dam will be built, and they are generally located on non-anadromous rivers. A 5

megawatt generator can meet the needs of an Alaskan community of two to three

thousand people.

But under existing law, in order for a hydroelectric project to be built—no matter

how small or remote—it must obtain a license from the Federal Energy Regulatory

Commission. And FERC’s licensing process itself is a major impediment for these

small projects, often killing otherwise beneficial ones.

For a large hydroelectric project costing tens or hundreds of millions of dollars,

the burden of obtaining a FERC license is large, but relatively small as compared

to the total cost. But that is not the case for a small project. Let me give some real

world examples.

Take the Black Bear project on the Prince of Wales Island, a 4.5 megawatt generator. It took seven years to get through the FERC process; in comparison, construction of the project took only one year. The FERC licensing process cost $1.2 million;

in comparison, it cost $10 million to build the project. And who pays that $1.2 million FERC licensing cost? You guessed it, consumers through higher electricity

rates.

The Goat Lake project is another example. This 4 megawatt project took five

years to get through the FERC process, which cost just over $1 million. Compare

that to a construction cost of $10 million.

These are not exceptions to the rule—they represent the normal cost and time to

obtain a license from the FERC. Thus, as you can see for a small project located

in a remote region of Alaska, FERC’s licensing process is a major expense. And for

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too many small projects, this alone dooms an otherwise economically viable and environmentally beneficial project.

These small hydro projects are critically important to consumers and for the economic development of Alaska. Alaskans have the most expensive electricity in the

United States, and anything we can do to reduce that would be very helpful. According to Department of Energy data, the average residential price of electricity in

Alaska is 11.5 cents per kilowatt hour as compared to a U.S. residential average

of 8.3 cents per kilowatt hour—39 percent higher. And in some parts of Alaska the

residential price reaches a stunning 44 cents per kilowatt hour—5 times the U.S.

average. A key reason for this high cost of electricity is that a large share of Alaska’s electrical supply—particularly in rural and remote regions—is provided by diesel-fired internal combustion engines. If high-priced diesel-fired electric generators

could be replaced with low-cost hydroelectric power, consumers would enjoy significant reductions in the electrical bills. That would be particularly beneficial to Alaskans on fixed incomes.

Not only would Alaska’s consumers benefit from low-cost hydroelectric power,

Alaska’s environment would also benefit. Diesel-fired generators produce significant

amounts of unhealthy air emissions—hydroelectric power produces none.

Let me turn now to the legislation itself. Its most important aspect is that it provides for the full protection of the environment. The legislation does not exempt

Alaska’s small hydro projects from regulation. Instead, it allows the State of Alaska

to regulate in lieu of FERC. I ask: Who is more interested in the environment of

Alaska—Alaskans or a distant FERC? In addition, because licensing and regulation

of these small projects will be handled by the State of Alaska, instead of FERC,

processing time and costs will be reduced significantly.

Moreover, the legislation allows Alaska to regulate these small projects only after

FERC certifies that the State of Alaska has in place a regulatory program which

‘‘protects the public interest... and the environment to the same extent provided by

licensing and regulation...[by the FERC].’’ Finally, the legislation specifically provides for the full application of all ‘‘Federal environmental, natural resources, or cultural resources protection laws . . .’’ Thus, enactment of this legislation will provide

for full protection of the environment and the public interest, while at the same

time reducing the cost and time required to license a small hydro project in Alaska.

In summary, if enacted this legislation will benefit both Alaska’s environment and

its economy.

Mr. BARTON. Thank you, Senator. I just want to——

Senator MURKOWSKI. And thank you, gentlemen.

Mr. BARTON. Thank you.

Senator MURKOWSKI. Thank you, John.

Mr. BARTON. I just—we have a new timing system, and we went

from the old timing system to an egg timer to this high tech system, and it’s supposed to give a certain amount of time into the

statement, usually at the end where you sum up and the little yellow light goes on. As soon as Senator Murkowski started speaking,

the yellow light went on to sum up.

Senator MURKOWSKI. Well, that’s because I’m from the Senate.

I was winding up.

Mr. BARTON. All right.

Senator MURKOWSKI. Would you excuse me?

Mr. BARTON. Yes. We’ll submit any questions to you in writing

for the record.

Senator MURKOWSKI. I’m conducting a hearing on climate

change.

Mr. BARTON. If you learn anything, send us a copy.

Senator MURKOWSKI. It’s pretty cold in Barrow this winter.

Mr. BARTON. Thank you, Senator.

Senator MURKOWSKI. Thank you very much.

Mr. BARTON. We’d now like to hear from our distinguished colleague from California, Mr. Radanovich. You will be recognized for

7 minutes also, and then your statement’s in the record in its entirety.

9

STATEMENT OF HON. GEORGE P. RADANOVICH

Mr. RADANOVICH. Thank you so much, Mr. Chairman. And I appreciate the opportunity to testify before your subcommittee.

I want to voice my support, my strong support for Congressman

Towns’ bill, 2335, The Licensing Process Improvement Act of 1999.

I appear before you today in two capacities, first as a representative who is concerned about our national energy policy, but also

here as chairman of the Western Caucus, a bipartisan group of 56

Members of Congress concerned about improving the quality of life

for Western and rural Americans.

The environmental vision of the Western Caucus is grounded in

the belief that sound scientific evidence, not politics, should be the

determining factor in environmental decisionmaking, and that environmental protection should be achieved in a cooperative manner

rather than through conflict and wasteful litigation.

That is precisely the philosophy behind H.R. 2335, and that’s

why I support the bill, and I urge others to support it as well.

Our Nation is at a precarious crossroads with energy—with regard to its energy policy. On need look no further than the local

gas station, where gas prices are reaching levels close to $2 a gallon in some areas of the Nation, to recognize the serious repercussions of our ongoing dependency on foreign sources of energy. This

dependence is even more perplexing when one considers that domestic generation of hydropower, our Nation’s largest emissionsfree renewable energy resource, is diminishing as a result of FERC

licensing process that most, if not all, parties agree is in need of

repair.

Since the late 1800’s when the first hydroelectric plant in the

American West—the Folsom Powerhouse—opened in California,

hydropower has played a vital role in California’s energy mix. According to the Energy Information Administration, California hydroelectric facilities generated about 88.5 billion kilowatt hours of

hydropower in the 2-year period of 1997 to 1998, representing approximately 40 percent of the net electric utility generation in the

State.

The benefits of hydropower to my State and to the Nation go well

beyond clean, efficient, renewable energy—renewable electric

power. Our Nation’s hydro projects provide drinking water, flood

control, fish and wildlife habitat, irrigation and environmental enhancement funding, and recreation to benefit all Americans.

In my district in California, Hunting Lake and Shaver Lake re

reservoirs that were created by and exist solely because of the Big

Creek hydro project. In total, my district comprises over 20 major

hydro projects, generating about 3,000 megawatts of hydropower.

Due to its unique load following capability, peak capacity and voltage stability attributes, hydropower plays a critical role in maintaining reliable electric service in the region that I represent as

well as throughout the Nation.

In spite of the benefits our country derives from hydropower, an

enormous problem exists. The problem is that overly burdensome,

costly and litigation-prone FERC licensing process is threatening

our Nation’s nearly 60,000 megawatts of nonFederal hydro capacity.

10

A typical hydro license application can take from 8 to 10 years

to weave its way through the complex licensing process. Some have

taken more than 20 years. Certain Federal agencies are allowed to

set mandatory conditions on FERC licenses without regard to their

effects on project economics, energy benefits and values protected

by other statues or regulations, or FERC-imposed license conditions.

There is no referee other than the Federal courts, which can resolve conflicts between these agencies and reconcile their inconsistent demands. Often the result is license conditions that have

nothing to do with project impacts. Hydropower licensees, and even

the FERC, have no opportunity to effectively appeal or even question the basis of mandatory conditions set by the agencies except

through litigation.

The unfortunate result is higher costs, loss of operational flexibility and lost generation due to new constrains imposed on other

operations.

Earlier this year in its Energy Outlook 200 report, the Energy

Information Administration, the independent statistical branch of

the U.S. Department of Energy, for the first time forecast decreased hydroelectric capacity as regulatory actions limit capacity

at existing projects.

My colleagues, this is troubling—and it’s a very troubling and urgent state of affairs. Troubling because this is a clean, wholly domestic source of energy we are talking about. Urgent because over

the next 15 years, over half of all nonFederal hydro capacity—nearly 29,000 megawatts of hydropower—must go through this FERC

relicensing process. That, my friends, are why we are here today

and why this bill is so important.

By enacting H.R. 2335, Congress can do its part to ensure that

this important renewable resource continues to operate in a costeffective and environmentally compatible manner. If current trends

continue, my State our country will lose a number of hydropower

projects, and with them, enormous clean energy benefits. Moreover,

consumers could faced increased energy replacement costs.

Let me talk briefly about what this bill is and what it isn’t. This

is a moderate bill that enjoys bipartisan support in the House of

Representatives. It will not change or modify any existing environmental laws nor remove regulatory authority from Federal resource

agencies. Rather, it will give these agencies the responsibility to

consider and to be accountable for the full effects of their actions

before imposing mandatory conditions on a hydro license. This bill

also requires that resource agency conditions reflect sound scientific evidence.

In closing, I want to reiterate that H.R. 2335 is a balanced bill.

It emphasizes sound scientific evidence as the determining factor

in environmental decisionmaking. the measure also achieves environmental protection in a cooperative manner, without costly lawsuits. By providing reasonable relicensing of hydroelectricity

projects, H.R. 2335 is a benefit to the future of this clean, renewable energy resource. For these reasons, I encourage you to support

this bill.

I commend Congressman Towns for his leadership in introducing

this important bill and urge that the subcommittee and all of my

11

colleagues in the House work toward the enactment of this bill in

this session.

Thank you, Mr. Chairman.

[The prepared statement of Hon. George P. Radanovich follows:]

PREPARED STATEMENT OF HON. GEORGE RADANOVICH, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Chairman Barton, members of the Subcommittee, thank you very much for giving

me the opportunity to appear before you today to voice my strong support for Congressman Towns’ bill, H.R. 2335, ‘‘The Licensing Process Improvement Act of 1999’’.

I appear before you today in two capacities. First, as a representative who is concerned about our national energy policy; but I am also here as the Chairman of the

Western Caucus, a bipartisan group of 56 Members of Congress concerned about improving the quality of life for Western and rural Americans. The environmental vision of the Western Caucus is grounded in a belief that ‘‘sound scientific evidence,

not politics, should be the determining factor in environmental decision-making,’’

and that environmental protection should be achieved ‘‘in a cooperative manner,

rather than through conflict and wasteful litigation.’’ That is precisely the philosophy behind H.R. 2335. That is why I support this bill. And that is why I urge you

to support it as well.

Our nation is at a precarious crossroads with regard to its energy policy. One

need look no further than the local gas station—where gas prices are reaching levels

close to $2.00/gallon in some areas of the nation—to recognize the serious repercussions of our ongoing dependency on foreign sources of energy. This dependency is

even more perplexing when one considers that domestic generation of hydropower—

our nation’s largest, emissions-free, renewable energy resource—is waning as a result of a FERC licensing process that most, if not all, parties agree is in need of

repair.

Since the late 1800s, when the first hydroelectric plant in the American West—

the Folsom Powerhouse—opened in California, hydropower has played a vital role

in California’s energy mix. According to the Energy Information Administration,

California hydroelectric facilities generated about 88.5 billion kilowatt hours of hydropower in the two year period 1997-98, representing approximately 40 percent of

net electric utility generation in the state.

The benefits of hydropower to my state and to the nation go well beyond clean,

efficient, renewable electric power. Our nation’s hydro projects provide drinking

water, flood control, fish and wildlife habitat, irrigation. environmental enhancement funding, and recreation benefits to all Americans. In my district in California,

Huntington Lake and Shaver Lake are reservoirs that were created by and exist

solely because of the Big Creek hydro project. Also, due to its unique load-following

capability, peaking capacity and voltage stability attributes, hydropower plays a

critical role in maintaining reliable electric service throughout the nation.

It seems like hydropower is a good deal for the country and its citizens. So, what

is the problem?The problem is that an overly burdensome, costly and litigationprone FERC licensing process is threatening our nation’s nearly 60,000 megawatts

of non-federal hydro capacity.

A typical hydro license application can take from eight to 10 years to weave its

way through the complex licensing process-some have taken more than 10 years.

Certain federal agencies are allowed to set ‘‘mandatory’’ conditions on FERC licenses

without regard to their effects on project economics, energy benefits and values protected by other statutes or regulations, or FERC imposed license conditions. There

is no ‘‘referee’’ other than the federal courts, which can resolve conflicts between

these agencies or reconcile their inconsistent demands. Often, the result is license

conditions that have nothing to do with project impacts. Hydropower licensees, and

even the FERC, have no opportunity to effectively appeal, or even question, the

basis of mandatory conditions set by the agencies, except through litigation.

The unfortunate result is higher costs, loss of operational flexibility, and lost generation due to these constraints imposed on operations. Earlier this year, in its Energy Outlook 2000 report. the Energy Information Administration—the independent,

statistical branch of the U.S. Department of Energy—for the first time forecasts decreased hydroelectric capacity as ‘‘regulatory actions limit capacity at existing

projects . . .’’

My colleagues, this is a troubling and urgent state of affairs. Troubling because

this is a clean, wholly domestic source of energy we are talking about. Urgent because over the next 15 years, over half of all non-federal hydro capacity—nearly

29,000 megawatts of hydropower—must go through this FERC relicensing process.

12

That, my friends, is why we are here today, and why this bill is so important.

By enacting H.R. 2335, Congress can do its part to ensure that this important renewable resource continues to operate in a cost-effective and environmentally compatible manner. If current trends continue, my state and our country could lose a

number of hydropower projects and, with them, enormous clean energy benefits.

Moreover, consumers could face increased energy replacement costs.

Let me talk briefly about what this bill is and what it isn’t. This is moderate bill

that enjoys bipartisan support in the House of Representatives. It will not change

or modify any existing environmental laws, nor remove regulatory authority from

federal resource agencies. Rather, it will give these agencies the responsibility to

consider, and be accountable for, the full effects of their actions before imposing

mandatory conditions on a hydro license. The bill also requires that resource agency

conditions reflect sound, scientific evidence.

In closing, I want to reiterate that H.R. 2335 is a balanced bill. It emphasizes

sound scientific evidence as the determining factor in environmental decision-making. The measure also achieves environmental protection in a cooperative manner,

without costly lawsuits. By providing reasonable relicensing of hydroelectricity

projects, H.R. 2335 is a benefit to the future of this clean, renewable energy source.

For these reasons, I encourage you to support the bill.

I commend Congressman Towns for his leadership in introducing this important

bill and urge the subcommittee and all of my colleagues in the House to work towards enacting this bill this session.

Thank you.

Mr. BARTON. Thank you, Congressman.

Mr. RADANOVICH. I, too, do have a hearing in the Resources Committee that is of specific interest to my constituents, so if I may excuse myself.

Mr. BARTON. Yes, sir.

Mr. RADANOVICH. Thank you very much.

Mr. BARTON. Thank you. We’d now like to hear from Congressman DeFazio. We’ll put your statement in the record and recognize

you for 7 minutes.

STATEMENT OF HON. PETER A. DeFAZIO

Mr. DEFAZIO. Thank you, Mr. Chairman. I’m here today to talk

about the JOE bill.

Mr. BARTON. Oh, no.

Mr. DEFAZIO. Sometimes known as Senate bill 1937. I commend

the committee on bringing the bill to the attention of the subcommittee and am hopeful that you’ll act favorably upon it in the

near future.

There is a time sensitivity to this legislation. The bill is quite

simple, actually. It would establish a JOE, or Joint Operating Entity, in the Pacific Northwest, which will allow the smaller, consumer-owned utilities to aggregate their demand and purchase

their power from the Bonneville Power Administration and achieve

some efficiency in their operations that could be passed on as cost

savings to consumers, both residential and business consumers of

those utilities.

The legislation is very, very narrow in scope. It does—you know,

although it amends the Northwest Electric Power Planning Conservation Act, it does not go to the issue of preference. It does not

entitle the utilities who would enter into the Joint Operating Entities to purchase more power than they could individually from the

Bonneville Power Administration. It does not change their rights in

terms of resale of the preference power. It just allows them to aggregate—these are very, for the most part, very small utilities that

do not have a tremendous amount of technical expertise.

13

They’re dealing with a very large Federal agency, the Bonneville

Power Administration, which is proposing rather complex new contractual arrangements, including some things called slice which nobody quite understands, and other things. And it just would be of

great utility to these small entities to be able to aggregate their

purchasing power and to also pool their funds to higher the technical expertise they need to better negotiate with the Bonneville

Power Administration.

In my opinion, it will not disadvantage any other customers or

potential customers of the Bonneville Power Administration since

all these utilities are entitled to full preference and generally are

all full requirements customers getting all of their power from the

Bonneville Power Administration. Yet you will hear from the aluminum industry, who are raising some procedural concerns, as I

understand, not particularly substantive concerns, and asking that

consideration be delayed til such a time as it could be part of a

greater overhaul or discussion of the Bonneville Power Administration’s operating statutes.

The problem is that the Bonneville Power Administration is on

a short timeline for these contracts. The current contracts are expiring. In order to meet their obligations both to bondholders and

to the Federal treasury and to the region, the Bonneville Power Administration is going to have to complete the contracts in the nottoo-distant future. And therefore, if this legislation is not quickly

adopted, it will just disadvantage one small group of ratepayers in

the contractual discussions.

So I would urge the subcommittee’s favorable preference—or favorable action. It does not, again, alter the status between and

among Bonneville’s other customers.

[The prepared statement of Hon. Peter A. DeFazio follows:]

PREPARED STATEMENT OF HON. PETER DEFAZIO, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF OREGON

As co-chair of the Northwest Energy Caucus, I would first like to thank the members of the Commerce Committee for their thorough and efficient work on Senate

Bill 1937. It has been a pleasure to work with this committee on Federal Power

Marketing Agency issues, in particular trying to establish joint Operating Entities.

I am particularly appreciative of Mr. Barton’s involvement with the Northwest Energy Caucus as the House struggles with energy restructuring. I am grateful to Mr.

Dingell for bringing this issue before the Commerce Committee so that everyone

might better understand the merits of establishing joint Operating Entity in the Pacific Northwest and its importance to many rural Oregonians.

The energy market in the Pacific Northwest is unique compared with other regions of the country. Over 45% of the power used by residential and industrial customers is generated and marketed by Bonneville Power Administration (BPA).

Many rural areas in my district are serviced by rural electric cooperatives and other

consumer-owned utilities that rely almost exclusively from on power provided by

BPA.

Establishing a Joint Operating Entity in the Pacific Northwest, will allow smaller,

consumer-owned utilities to more effectively purchase their power from BPA and

achieve more efficiency in their operations which should be passed on as cost savings to consumers.

While S. 1937 amends the Pacific Northwest Electric Power Planning and Conservation Act, the legislation does not amend statutes governing preference. The

Joint Operating Entity will not have the ability to purchase more power than individual utilities already receive from BPA. In addition, S. 1937 does not expand the

rights of BPA’s consumer-owned utilities to purchase and resell BPA power. It simply allows a joint Operating Entity to manage power purchases from BPA.

BPA and its customers have been working for two years to negotiate contacts and

establish rates for the future sale of power. This spring and summer, BPA will comVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
14

plete its subscription and rate negotiations. Oregon consumer-owned utility customers will greatly benefit from the establishment of joint Operating Entities before

contracts and rates are finalized.

I understand that the Direct Service Industries do not support moving the legislation although they have no substantive objections. I find this and other recent actions of the Direct Service Industries at odds with many of the consumer-owned and

investor-owned utilities in the Pacific Northwest. I urge this committee to support

S. 1937 and quickly move this legislation before the entire House.

Again, I appreciate the attention this Committee has given to this important

issue.

Mr. BARTON. Thank you, Congressman. The Chair will now recognize members for questions for Congressman DeFazio. I don’t

have any. Congressman Towns?

Mr. TOWNS. Do not have any.

Mr. BARTON. Congressman Shadegg?

Mr. SHADEGG. I don’t have any.

Mr. BARTON. Congressman Markey?

Mr. MARKEY. Good job. Excellent job.

Mr. BARTON. Congressman Bryant?

Mr. BRYANT. I don’t have any. We could call it the ED, though,

bill, JOE-ED bill, you know, if you’d like.

Mr. DEFAZIO. If that’ll help, anything. We’re flexible on the

name, Mr. Chairman.

Mr. BARTON. I understand.

Mr. DEFAZIO. As long as JOE is part of it.

Mr. BARTON. That’s—you know, success has many fathers, and

failure none, so we’ll see.

Mr. DEFAZIO. All right.

Mr. BARTON. Thank you for your testimony.

Mr. DEFAZIO. Thank you, Mr. Chairman.

Mr. BARTON. Good job. We now want to hear from our second

panel, but before I bring them forward, I want to make a statement. We have been in a continuing battle with members of the executive branch about getting their testimony in on time. Our primary problems have been with the Department of Energy. It got

so bad with the Department of Energy that I called the Secretary

and said, ‘‘If your testimony’s not on time this time, don’t bother

coming.’’ And it got here on time.

Today, of our administration witnesses, all but one had their testimony in on time. The Department of Agriculture testimony came

in at 8:30 this morning. So we’re going to ask Mr. Paul Brouha,

who’s the associate deputy chief, to wait until the third panel to

give staffs on both sides the opportunity to read the testimony.

My briefing book was given to me last night at 10:30. Didn’t have

it in it. So hopefully by the time the first—the second panel gets

their—goes through their testimony and answers questions, we will

have had a chance to digest the Department of Agriculture’s testimony. Mr. Brouha can be on the third panel. If he has other things

he needs to do, he can go back to the Department of Agriculture.

So, will Mr. Hoecker of the Federal Energy Regulatory Commission and Mr. Leshy from the Department of Interior come forward.

Mr. Hoecker is accompanied by Commissioners He ́bert and Massey.

Mr. Burns, who is with the Bonneville Power Administration, the

Department of Energy, and Ms. Penelope Dalton, who is with the

National Marine Fisheries Service, if you gentlemen and ladies will

come forward.

15

Do you want to make an opening statement?

Mr. MARKEY. Delighted to.

Mr. BARTON. While they’re coming forward, we will let Congressman Markey make a brief statement.

Mr. MARKEY. Thank you, Mr. Chairman. I appreciate it. Over

200 years ago, Sir Isaac Newton told us, every body continues in

its state of uniform motion unless it is compelled to change that

state by forces impressed upon it. Little did Mr. Newton know how

relevant that finding would be to today’s hearing.

Salmon swimming upstream know how relevant it is. They abut

Mr. Newton’s first law head on, literally, as they try to pass rivers

and streams blocked by hydroelectric facilities. The hydropower industry knows what it means, too. They know that FERC’s relicensing procedures may force them to consider the environmental

and the resource values of their hydroelectric plants. The process

provides the public with an opportunity to assess the critical environmental, recreational, navigational, flood control, irrigation, and

other values that are also in contention with the process of producing electricity.

So they’re trying to rewrite Sir Isaac Newton’s first law of motion

by diminishing the resource agency’s involvement in the relicensing

of these hydropower facilities by letting the hydropower industry

continue with less resistance and Federal oversight.

Now while I understand that the industry finds the complexity

of the relicensing process frustrating, I must note that licensees

held their licenses for up to 50 years. In 1985, in 1986 when I was

chairman of this subcommittee——

Mr. BARTON. Oh, the golden years.

Mr. MARKEY. The good old days. I spent considerable time and

effort in forging the consensus that became the Electric Consumers’

Protection Act of 1986, or ECPA. That legislation included provisions that required that the FERC base its recommendations for

mitigating the adverse effects of a license on the recommendations

of Federal and State resource agencies and mandated that FERC

negotiate with those agencies in the event of disagreements.

ECPA also required FERC to give equal consideration to the environment, to fish, wildlife and other nonelectricity values as it

gives to the development objectives in making licensing decisions.

Congress enacted these reforms.

Mr. BARTON. Can the gentleman speed it up a little bit? I see

you’ve got about four more pages of this brief statement.

Mr. MARKEY. I’ll be glad to do it. I’ll be glad to do it. That became the law of the land, and it became the new constitution for

constructing this balance between the environment——

Mrs. WILSON. Would the gentleman yield for just a question?

Mr. MARKEY. Sure. I’d be glad to.

Mrs. WILSON. Does this Newtonian theory mean that the gentleman is still living in the world before Einstein and the discovery

that energy and mass are interchangeable and perhaps we might

be able to move at the speed of light to——

Mr. BARTON. See, no good deed goes unpunished.

Mr. MARKEY. No. It only means that as an English major, it was

the best metaphor available on short notice.

16

And again, you know, congressional expert is an oxymoron. We’re

only experts compared to each other, not the real experts out here.

Mr. BARTON. That’s true.

Mr. MARKEY. So I just do my best to illuminate, you know, as

best I can the contentions on both sides.

Mr. BARTON. Well, we’ll put the gentleman’s complete formal

statement in the record.

Mr. MARKEY. So I’m not—all right. So I’ll conclude by saying I

am not saying torpedo all the dams. All I’m saying is we shouldn’t

be saying damn the environment, full speed ahead, that we have

to construct a balance. I think the 1985-’86 act was a good balance,

and I think that we should be very careful if we try to alter that

balance. And I thank you, Mr. Chairman.

[The prepared statement of Hon. Edward J. Markey follows:]

PREPARED STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MASSACHUSETTS

Thank you, Mr. Chairman. Over 200 years ago Sir Isaac Newton told us

‘‘Every body continues in its state . . . of uniform motion... unless it is compelled

to change that state by forces impressed upon it.’’

Little did Mr. Newton know how relevant that finding would be for today’s hearing.

Salmon swimming upstream know how relevant it is. They abut Mr. Newton’s

first law head-on—literally—as they try to pass rivers and streams blocked by

hyrdopower facilities.

The hydropower industry knows what it means too. They know that FERC’s relicensing procedures may force them to consider the environmental and resource values of their hydroelectric plants. The process provides the public with an opportunity to assure that critical environmental, recreational, navigational, flood control,

irrigation, other values are being properly served. So they’re trying to rewrite Sir

Isaac Newton’s first law of motion by diminishing the resource agencies’ involvement in the relicensing of these hydropower facilities—by letting the hydropower industry continue with less resistance and federal oversight.

While I understand that the industry finds the complexity of the relicensing process frustrating, I must note that licensees hold their licenses for up to 50 years.

From 1985 to 1986, I spent considerable time and effort, as the Chairman of the

Energy Conservation and Power Subcommittee, in forging the consensus that became the Electric Consumers Protection Act of 1986, or ECPA.

That legislation included provisions that required that FERC base its recommendations for mitigating the adverse effects of a license on the recommendations of Federal and State resources agencies and mandated that FERC negotiate

with those agencies in the event of disagreements. ECPA also required FERC to

give equal consideration to the environment, fish and wildlife, and other nonpower

values as it gives to power and development objectives in making licensing decisions. Congress enacted these reforms then because it was concerned that FERC

was not according sufficient weight to environmental and nonpower concerns as it

reviewed requests for relicensing of hydroelectric facilities.

I would note that when we passed EPCA, we did so with unanimous bipartisan

support of Members of the Committee and of the House and with the endorsement

of both the environmental community and the support of the electric utility industry, including the Edison Electric Institute and other industry trade associations. Indeed, the legislative history of the bill shows that it had the support of such wildeyed liberals as Frank Murkowski, Mike Oxley, and Ted Stevens. There were no

calls at the time for repeal or weakening of the resource agencies mandatory conditioning authority back then, even though this authority had been exercised by the

agencies for decades.

So what has changed? Little that I can see, other than the fact that FERC, at

the direction of Congress, must now give greater weight to the adverse environmental effects of a dam when it considers relicensing. Since many of the dams that

are coming up for relicensing were first licensed before Congress enacted many of

the environmental laws now on the books, it is inevitable that the industry will in

some cases be required to take actions to rectify harm to fish and wildlife, natural

habitat, recreational or other values. In my view, industry has a very high burden

of proof to meet if it is to seek alterations in the process that might sacrifice these

critical nonpower values.

17

Let me be clear: I’m not saying we should ‘‘torpedo all the dams’’. But I’m also

not saying ‘‘damn the environment—full speed ahead’’ with relicensing. What I am

saying is that we have a relicensing process administered by FERC that holds water

and should continue.

I look forward to the testimony of the witnesses this morning on this matter, and

to assuring that the integrity of the hydroelectric relicensing process remains intact.

Mr. BARTON. Well, we actually do value your expertise as past

chairman of this subcommittee. And as we move to mark-up, we

will call on that expertise.

Mr. MARKEY. Thank you, Mr. Chairman.

Mr. BARTON. This will be a bipartisan basis—process, and I’m

sure your institutional memory will be of considerable value, actually.

All right. Let’s start with the honorable chairman of the Federal

Energy Regulatory Commission. Did Mr. Massey and Commissioner He ́

bert, are you all going to give statements also or are you

just here to help the distinguished chairman? Okay. So we’ll go

with Mr. Hoecker, then Mr. Leshy and Mr. Burns, then Dr. Rosenberg. Okay.

Chairman Hoecker, we’ll recognize you for 5 minutes, put your

statement in the record, and ask you to summarize it. Welcome to

the subcommittee again.

STATEMENTS OF HON. JAMES J. HOECKER, CHAIRMAN, FEDERAL ENERGY REGULATORY COMMISSION, ACCOMPANIED

BY CURT HE ́BERT, JR. AND WILLIAM L. MASSEY, COMMISSIONERS; JOHN D. LESHY, SOLICITOR, U.S. DEPARTMENT OF

THE INTERIOR; ALLEN BURNS, VICE PRESIDENT OF REQUIREMENTS MARKETING, BONNEVILLE POWER ADMINISTRATION, U.S. DEPARTMENT OF ENERGY; ANDREW A.

ROSENBERG, DEPUTY ASSISTANT ADMINISTRATOR FOR

FISHERIES, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

Mr. HOECKER. Thank you, Chairman Barton and members of the

subcommittee. It’s a pleasure to be here. Thank you for the opportunity to discuss the proposed legislation and how it might affect

the commission’s hydropower program.

I am pleased, of course, to be joined by my colleagues, Commissioners Massey and He ́

bert, who will be available to answer questions. And I convey the regrets of Commissioner Breathitt, who

could not be here today.

The commission’s hydropower program faces significant challenges today, particularly in relicensing the major projects whose

licenses expire in the next 10 years. Although the commission is ostensibly responsible for balancing all competing interests when it

authorizes hydropower project operations, it effectively shares that

responsibility with other agencies which have critical environmental conditioning authority.

The commission often lacks the ability to control the timetable

for license issuance and often has only very limited discretion to

exercise its own judgment in determining the appropriate balance

of economic efficiencies, environmental protection, and all the other

public purposes the Federal Power Act identifies.

So hydropower licensing proceedings can be contentious, prolonged and costly. While I am persuaded that such problems necVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 E:\HEARINGS\64033 pfrm08 PsN: 64033
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essarily accompany any administrative proceeding that attracts

such diverse, multiple interests, I believe that it is incumbent upon

us in government to continue working to make licensing decisions

more timely and to develop better support for them.

I am proud of what the commission has accomplished in that regard and what we propose to achieve through further collaboration

with other resource agencies.

The commission takes very seriously its responsibilities to fully

analyze developmental and environmental impacts, to give equal

consideration to these impacts, and to exercise its balancing responsibilities in a manner that protects the environment.

It encourages the use of its alternative licensing procedures in individual cases as tools for reaching settlements to satisfy both public and private interests in a timely manner.

My written testimony today cites examples of our success. And

because we respect the challenges and responsibilities faced by the

resource agencies, which are assigned by the Congress to be stewards of the environment, the commission has dedicated much of its

limited much of its limited resources to the pursuit of interagency

agreements that will help us all serve the public better.

The commission is a key sponsor and participant with six executive branch departments in the Interagency Task Force on Improving Hydroelectric Licensing Processes. The ITF now also has a

chartered advisory committee that is gathering advice from States,

licensees, Indian tribes, counties, and nongovernmental organizations on how to improve the process, and I expect great things from

this effort.

The principal legislation before you today, H.R. 2335, is designed

to increase the efficiency of the licensing process and to promote

outcomes that are in the public interest. I certainly support that

intent, although some parts of the bill are more likely than others

to achieve these outcomes, I believe. For instance, having the resource agencies consider a range of public interest factors in developing mandatory conditions would lead to a better informed decisionmaking, unquestionably. The commission is required to take

into account a similar set of factors for matters within its discretion.

The requirement for resource agencies to document their

decisonmakings is essential for due process in my view. Subjecting

resource agencies to deadlines for submitting conditions, as the

commission’s regulations now provide, also could help improve licensing processes. These sensible requirements could make licensing more timely and efficient while developing the record that supports well-reasoned licensing decisions.

I am concerned that other provisions unnecessarily add burdensome, time-consuming steps to the process, however, and thereby

add to the burden and cost placed on licensees and other participants without a compensating benefit.

I’ve also been asked today to testify on six other bills. And in

that regard, I rely on my written testimony and have nothing further to add about them at this time.

I want to thank the chairman and the subcommittee for its interest in hydropower licensing at the Commission, and I will be very

pleased to answer whatever questions you may have.

19

[The prepared statement of Hon. James J. Hoecker follows:]

PREPARED STATEMENT OF JAMES J. HOECKER, CHAIRMAN, FEDERAL ENERGY

REGULATORY COMMISSION

Mr. Chairman and Members of the Subcommittee: I appreciate the opportunity

to appear before you to discuss proposed legislation, and how it might affect the

Commission’s hydropower program.

The Commission’s hydropower program faces significant challenges today, particularly in relicensing the important projects whose licenses expire in the next 10

years. Although the Commission is ostensibly responsible for balancing all competing interests when it authorizes hydropower project operations, its authority is

statutorily circumscribed. Other agencies have critical environmental conditioning

authority, and the multiple interests involved in relicensing cases require extensive

due process. As we have seen, hydropower licensing cases can lead to contentious

debates among the interested parties and, at times, among different elements of the

Federal government with statutory roles in the process. Concerns have been voiced

about whether licensing decisions can be more timely, and whether support for decisions can be better developed.

In response, the Commission has advanced approaches that favor collaboration

and balance. First, the Commission takes seriously its own responsibilities, for decisions within its discretion, to fully analyze developmental and environmental impacts, to give equal consideration to these impacts, and to exercise its balancing responsibilities in a manner that protects the environment. Second, the Commission

encourages the use of its alternative licensing procedures in individual cases. This

innovative approach is a tool for reaching settlements that satisfy public and private

interests in a timely manner. Third, the Commission is working hard to enhance

its procedures for working with the resource agencies, so the licensing process under

the Federal Power Act (FPA) is as smooth and productive as possible. Legislation

that will help us achieve these objectives and meet the FPA’s objective of balancing

all public interest considerations is helpful.

My prepared testimony today will survey the Commission’s statutory responsibilities and the overlap of regulatory authorities which are involved in the licensing

process. My objective is to share with the Subcommittee an assessment about how

that process has worked in practice, and what we are doing to improve our productivity and our responsiveness to the needs of various participants in future cases.

I will then turn to the specific bills before you.

I. THE COMMISSION’S LICENSING PROGRAM

Hydropower is the oldest area of Commission jurisdiction. The Commission’s predecessor began Federal regulation of private hydroelectric generation in 1920. The

Commission currently regulates over 1,600 hydropower projects at over 2,000 dams

pursuant to Part I of the FPA. Those projects represent more than half of the Nation’s approximately 100 gigawatts (GW) of hydroelectric capacity and over 5 percent of all electric power generated in the United States. Hydropower is an essential

part of the Nation’s energy mix and offers the benefits of an emission-free, renewable energy source.

I am proud of the Commission’s ability to meet the challenges in this area. The

Commission’s hydropower work generally falls into three categories of activities.

First, the Commission licenses and relicenses projects. Relicensing is of particular

significance because it involves projects that originally were licensed from 30 to 50

years ago. In the intervening years, enactment of numerous environmental, land

use, and other laws has begun to significantly affect the Commission’s ability to control the timing of licensing and the conditions of a license. The Commission’s second

role is to manage hydropower projects during their license term. This post-licensing

workload has grown in significance as new licenses are issued and as environmental

standards become more demanding. Finally, the Commission oversees the safety of

licensed hydropower dams. This program is widely recognized for its leadership in

dam safety.

Non-federal hydropower projects have been required by the Congress to obtain

Commission authorization if they are on lands or waters subject to Congress’ authority. Original licenses are issued for terms of 30-50 years. Under the standards

of the FPA, projects can be authorized if, in the Commission’s judgment, they are

‘‘best adapted to a comprehensive plan’’ for improving or developing a waterway for

beneficial public purposes, including power generation, irrigation, flood control,

navigation, fish and wildlife, municipal water supply, and recreation. The Congress

last spoke to the Commission’s role in balancing these purposes in the Electric Consumers Protection Act of 1986 (ECPA), which amended the FPA to require the ComVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
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mission to give ‘‘equal consideration’’ to developmental and non-developmental values. The number of applications for original licenses has steadily declined to a handful

per year for a number of reasons, including the diminished availability of attractive

sites and current economic conditions. The Commission does not expect this situation to change. Most licensing activity currently before the Commission therefore involves the relicensing of existing projects.

As I stated earlier, while the Commission’s overarching responsibility under the

FPA is to strike an appropriate balance among the many competing power and nonpower interests, as required by the public interest standards of §§ 4(e) and 10(a) of

the FPA, various statutory requirements give other agencies a powerful role in licensing cases. Those requirements include:

• Section 4(e) of the FPA, which authorizes the Departments of Agriculture and the

Interior to impose mandatory conditions on projects located on Federal reservations they supervise.

• Section 18 of the FPA, which authorizes the Departments of Commerce and the

Interior to impose mandatory fishway prescriptions.

• Section 10(j) of the FPA, which authorizes federal and state resource agencies to

propose conditions to protect fish and wildlife.

• Section 401 of the Clean Water Act, which authorizes States to impose mandatory

conditions as part of the State water quality certification process.

• The Coastal Zone Management Act, which authorizes States to impose conditions

on projects affecting their coastal resources.

• The Endangered Species Act, which directs the Departments of the Interior and

Commerce to propose measures to protect threatened and endangered species.

• The National Historic Preservation Act, which requires Commission consultation

with Federal and State authorities to protect historic sites.

Thus, licenses typically contain requirements that are developed by a variety of

agencies other than the Commission, and that often are imposed through those

agencies’ mandatory conditioning authority.

I recognize and respect the importance of the mandates of our sister Federal agencies, and appreciate the constraints under which they operate. However, the current

regulatory structure suggests at least two things to me. First, the Commission often

lacks the ability to control the timetable for license issuance. Second, the Commission often has only very limited discretion to exercise its own judgment in determining the appropriate balance of economic efficiencies, environmental protection,

and all the other public purposes the FPA identifies. These concerns have been

heightened by a series of court decisions that have held that the Commission has

essentially no authority to reject or modify mandatory conditions, even where, in the

Commission’s view, they are not consistent with the public interest. See Escondido

Mut. Water Co. v. LaJolla Band of Mission Indians, 466 U.S. 765 (1984) (Commission cannot reject Section 4(e) conditions); PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994) (States may include in Clean Water

Act certifications conditions to protect all designated uses contained in water quality

standards); American Rivers v. FERC, 129 F.3d 99 (2d Cir. 1997) (Commission cannot modify or reject State conditions under the Clean Water Act); American Rivers

v. FERC, 187 F.3d 1007 (9th Cir. 1999) (Commission cannot determine if Section

18 conditions fall within the scope of that provision). The Commission’s only discretion with respect to mandatory conditions it might conclude are not in the public

interest is simply to deny the license application. I am sure you understand what

a difficult position that puts the agency in.

II. MEETING NEW CHALLENGES

In determining whether and how to relicense a project upon expiration of its original license, the Commission must strike a balance among many legitimate but

sometimes competing interests. Development and utilization of hydropower must

now adjust to an increasingly competitive electric marketplace and heightened environmental scrutiny, as well as to a decisionmaking process characterized by shared

authorities. Projects coming up for relicense in the next several decades were originally licensed before the enactment of ECPA, the National Environmental Policy Act

(NEPA), the Endangered Species Act, the Federal Water Pollution Control Amendments of 1972 (the Clean Water Act), and the Coastal Zone Management Act. I

think it is fair to say that consideration of non-power values has come to dominate

most relicensing proceedings in the modern era.

The Commission has responded to this modern era of relicensing with orders

crafted to fully sustain environmental resources. For licenses issued since the passage of ECPA in 1986, the Commission has included approximately 95 percent of

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all fish and wildlife agency recommendations. Increased flows to provide for the

needs of fish have been provided in thousands of miles of streams, boat launches

and camping areas have been created for public recreation, and thousands of acres

of wildlife habitat have been set aside and protected as a result of the licensing

process. All of these environmental improvements have been implemented while

maintaining the viability of the hydropower industry. No license issued since the

Commission began relicensing the large group of projects in the so-called ‘‘class of

’93’’ has been surrendered. Thus, licensing can achieve the balance between developmental and non-developmental values mandated by Congress.

In order to achieve optimum outcomes in hydropower licensing proceedings, the

Commission has placed increased emphasis on promoting settlements and the more

collaborative, alternative licensing process. The alternative process allows license

applicants and other parties to collaborate on the preparation of environmental documentation and other matters early on—before an application is filed—with the goal

of developing consensus on the terms and conditions of the license. Several licenses

have been completed under the alternative process, and many more are currently

underway. Figure 1, attached to my testimony, shows the growth in the use of the

alternative licensing process, while Figure 2 shows a similar increase in the number

of licenses based on settlement agreements.

The most recent example of successful use of a collaborative process is Avista Corporation’s 700-MW Clark Fork Project located in Idaho and Montana. In July 1997,

Avista decided to use a collaborative process for relicensing this project and formed

a relicensing team consisting of Federal, State, and non-governmental organizations.

The members of the relicensing team met regularly, with Commission staff providing guidance and support, to address resource concerns and ultimately develop

a comprehensive settlement agreement that resulted in the protection and enhancement of the natural and human environment. A license incorporating Avista’s settlement agreement was issued by the Commission in February 2000, only one year

after the license application was filed.

Additional examples of successful collaborative processes include Georgia Power

Company’s 5.4-MW Flint River Project No. P-1218 located on the Flint River in

Georgia, and International Paper Company’s 23-MW Riley-Jay-Livermore Project

No. P-2375 and Otis Hydroelectric Company’s 10-MW Otis Hydroelectric Project No.

P-8277, both located on the Androscoggin River in Maine. Licenses for each of these

projects also were issued less than one year from the date the applications were

filed.

I have attached to my testimony a map, Figure 3, which shows the 220 project

licenses that will expire in the years 2000 through 2010. The Commission began receiving these relicense applications in 1998. They will comprise a significant ‘‘class’’

of projects and another spike in the Commission’s workload. This group of projects

has a combined capacity of approximately 22 GW, or 20 percent of the Nation’s installed hydroelectric capacity.

In addition to supporting collaboration in individual cases, the Commission is also

working hard to improve coordination among the disparate authorities involved in

hydropower licensing. By way of example, for the past two years, the Commission,

the Department of the Interior, the Department of Commerce, the Department of

Agriculture, the Department of Energy, the Council on Environmental Quality, and

the Environmental Protection Agency have convened an Interagency Task Force on

Improving Hydroelectric Licensing Processes to address problems in licensing. The

Interagency Task Force’s agenda includes matters such as the manner in which the

Commission issues notice of license applications, how to determine which environmental studies should be performed, environmental review under the NEPA, coordination of Endangered Species Act review, guidelines for participants in the Commission’s collaborative process, the crafting of clear and enforceable license conditions

by state agencies and other participants, a review of the economic techniques used

by various federal agencies as they participate in the licensing process, and input

to the reform of the Commission’s ex parte rule. At the Task Force’s request, Secretary Babbitt and I chartered an advisory committee, pursuant to the Federal Advisory Committee Act, to obtain input from states, licensees, Indian Tribes, counties,

and non-governmental organizations.

I expect that the Task Force will continue to generate important work products

and, perhaps just as important, foster a spirit of collaboration among the agencies

involved, with the goal of making the licensing process as efficient as possible within the existing statutory framework.

From the Commission’s vantage point, the Task Force has led to some encouraging developments. For instance, the resource agencies have indicated that they

are exploring concrete reforms to enhance their participation in the licensing process, including establishing procedures for obtaining public input, such as notice and

22

comment on draft mandatory conditions, and committing to participate in cases

where the collaborative process is used, subject to resource constraints. I support

these reforms, and have every reason to believe they will be implemented.

III. COMMENTS ON PENDING LEGISLATION

My comments above relate to the Commission’s diligent efforts to make the current statutory framework, as interpreted by the courts, work as effectively as possible. Now let me turn to comments on proposals to change Federal statutes. I will

discuss each of the several bills under consideration in turn.

A. H.R. 2335: Improving the Hydroelectric Licensing Process

H.R. 2335 would amend the FPA with the respect to mandatory license conditions

submitted by the Secretaries of the Interior and Commerce under Sections 4(e) and

18 of that Act, and by federal agencies supervising lands on which project works

are located. The bill would require them to take into consideration various factors,

including the impacts of proposed conditions on economic and power values, electric

generation capacity and system reliability, air quality, drinking water, flood control,

irrigation, navigation, or recreation water supply, compatibility with other license

conditions, and means to insure that conditions address only direct project environmental impacts at the lowest project cost. The Departments would be required to

provide written documentation for their conditions, submit them to scientific review,

and provide administrative review of proposed conditions.

H.R. 2335 would provide for the Commission to establish a deadline for the submittal of mandatory conditions in each case, to be no later than one year after the

Commission issues notice that a license application is ready for environmental review. If an agency fails to submit a final condition by the deadline, the agency loses

the authority to recommend or establish license conditions. The Commission must

conduct an economic analysis of conditions proposed by consulting agencies, and,

upon request of license applicants, must make a written determination whether

such conditions are in the public interest, were subjected to scientific review, relate

to direct project impacts, are reasonable and supported by substantial evidence, and

are consistent with the FPA and other license conditions.

In addition, the bill provides that the Commission shall be the lead agency for

environmental review under the NEPA, and that other Federal agencies will not

perform additional environmental review.

Finally, the bill provides that the Commission shall submit to Congress a study

of the feasibility of establishing a separate licensing procedure for ‘‘small hydroelectric projects,’’ which term the Commission may define by regulation, but which

must at a minimum include projects with generating capacities of five megawatts

or less. I comment on this study requirement in my discussion of S. 422.

I support the underlying purpose of the bill, which is to promote sensible and

timely decisions by all agencies involved in licensing matters. Reasoned decisionmaking with respect to mandatory conditions must be the responsibility of the resource agencies, given the Commission’s very limited discretion with respect to such

conditions. As Congress considers any legislation, however, it should be careful to

ensure that any procedures that could add time or expense to the process are justified by improved outcomes.

Several portions of H.R. 2335 could improve the process. For instance, having the

resource agencies consider a range of public interest factors in developing mandatory conditions would lead to better-informed decisionmaking. The Commission is

required to take into account a similar set of factors for matters within its discretion. The requirement for resource agencies to document their decision making is

essential for due process. See Bangor Hydroelectric Co. v. FERC, 78 F.3d 659 (D.C.

Cir. 1996). Subjecting resource agencies to deadlines for submitting conditions (as

the Commission’s regulations now provide) also could help improve the licensing

process. These sensible requirements could make licensing more timely and efficient, while developing the record that supports well-reasoned licensing decisions.

I am less sanguine about some other procedures that would be established by the

bill, such as those requiring scientific peer review of conditions, mandating detailed

administrative review procedures, and requiring the Commission to review the economic impact of proposed conditions and whether the resource agencies have complied with the bill’s requirements. I am concerned that adding burdensome, timeconsuming steps to the licensing process could lengthen and increase the expense

of the process, and thereby add to the burden placed on licensees and other participants, without a compensating benefit. I am also concerned about the portion of the

bill that would permit only the Commission to conduct NEPA environmental analyses. This might prevent individual agencies from performing the review that they

need to support their portion of the licensing process in a timely fashion. Further,

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the Commission would be required to do NEPA analysis on the agencies’ behalf,

which would not only increase the Commission’s workload, but could lead to disputes as to whether the Commission’s efforts are sufficient for the agencies’ purposes.

If all parties in a hydropower licensing case do not work harmoniously, resolution

of substantive and procedural issues will tend to become more time-consuming and

more expensive. I believe that, within the general framework of the FPA, the Commission and its expert staff are well-suited to bring proceedings to closure even if

there is a sustained level of disagreement and to render timely judgments that will

meet the public interest. To the extent that H.R. 2335 will help the resource agencies to be effective partners in this difficult licensing process, it could improve that

process.

B. S. 422: Small Hydroelectric Projects in Alaska

S. 422 provides (with certain exceptions discussed below) that, at such time as the

Commission determines that the State of Alaska has in place a process for regulating hydropower project works having a power production capacity of 5,000 kilowatts (5 megawatts or MW) or less, according to specified public interest standards,

Alaska shall have exclusive authority to authorize all such project works that are

not under Commission license or exempted from licensing, and are not within an

application for preliminary permit or license that has been accepted for filing as of

the date of the provision’s enactment. If such project works are under a Commission

license as of the date of enactment, then the licensee may elect to transfer the

project to state regulation.

The bill provides that project works are not removed or removable from Commission jurisdiction if they are located in whole or in part on any Indian reservation,

unit of the National Park System or other federal designated system, or component

of the Wild and Scenic Rivers System, or segment of a river designated for study

for potential addition to such system. State authorizations for project works located

in whole or in part on other Federal lands shall be subject to the approval of, and

terms and conditions imposed by, the Secretary having jurisdiction with respect to

such Federal lands. Finally, the transfer to the State of the above-described authority does not preempt the application of Federal environmental, natural, or cultural

resources protection laws according to their terms.

There are currently 22 licensed projects in Alaska. Of these, 17 projects occupy

National Forest lands administered by the U.S. Forest Service, and 5 projects occupy federal lands administered by the U.S. Bureau of Land Management (BLM).

Of the total of 22 licensed projects, 10 projects are 5 MW or less, and 12 projects

are larger than 5 MW. There are 3 exempted projects in Alaska, all under 5 MW.

One project occupies National Forest lands, and two occupy non-federal lands. There

are currently pending before the Commission five Alaska license applications, three

of which have been accepted for filing. One application, for a 0.5 MW project will

be located on lands managed by the U.S. Fish and Wildlife Service. The other four—

a 2.2-MW project, a 3.0-MW project, a 4.2-MW project, and a 6.0-MW project, will

be located on National Forest lands.

Finally, there are a number of potential Alaska projects at the pre-development

application stage. Eight project proposals are currently being studied under issued

preliminary permits. Of these, two would be projects over 5 MW, of which one would

occupy National Forest lands, and one would occupy Bureau of Land Management

lands. Six would be projects of 5 MW or less, of which three would occupy National

Forest lands, and three would occupy non-federal lands.

As a general matter, I do not support legislation removing non-federal hydropower

projects from the Commission’s jurisdiction based on the size of the project. A

project with a small capacity can have a significant impact both at the project site

and beyond its immediate environs. Pursuant to the mandates of the Federal Power

Act, the Commission evaluates that impact, and, in rendering a licensing decision,

gives equal consideration to development interests and environmental resources in

determining whether, and with what requirements, to authorize hydropower development.

The underlying premise of the legislation is that Alaska presents the Congress

with a special case that favors local control over projects that would otherwise be

subject to the Commission’s jurisdiction. Inasmuch as Alaska is not interconnected

with the interstate electric grid in the lower 48 states, that environmental impacts

of projects located in Alaska are relatively unlikely to affect the lower 48 states, and

that the bill requires a state program that will adequately evaluate project impacts,

I do not object to this legislation. However, I would oppose a generic 5-MW exemption for projects located in the lower 48 states. Because some 70 percent of the

projects the Commission regulates are 5 MW or smaller, such an exemption would

24

have a deleterious effect on the Commission’s ability to address the cumulative environmental effects of all non-federal hydropower projects in a river basin or watershed.

S. 422 also raises one technical issue. The bill provides for the transfer to the

State of Alaska of the Commission’s jurisdiction over the hydroelectric ‘‘project

works’’ of certain categories of projects. Section 3(12) of the Federal Power Act defines ‘‘project works’’ as ‘‘the physical structures of a project,’’ and Section 3(11) of

the Act defines ‘‘project’’ as a ‘‘complete unit of improvement of development’’ consisting of project works . However, the bill provides no standard for defining ‘‘project

works having a power production capability of 5,000 kilowatts (5 megawatts) or

less.’’ Absent statutory criteria to the contrary, there is the potential for abuse in

‘‘packaging’’ proposed project works in a manner that artificially segregates into 5-

megawatt groupings the power production components of what is in fact a single

unit of development, in order to evade Commission jurisdiction. Creating these incentives would not in my view foster public interest objectives. I therefore recommend that the bill specify that the power production capacity of a project be determined in accord with the Federal Power Act’s definition of a project.

C. S. 334: Voluntary Licensing of Hydroelectric Projects in the State of Hawaii

S. 334 would amend Section 4(e) of the Federal Power Act by inserting the following parenthetical limitation: ‘‘(except fresh waters in the State of Hawaii, unless

a license would be required by section 23 of the Act)’’. These words would modify

the reference to ‘‘several States,’’ so as to partially limit the authority of the Commission to issue licenses under Section 4(e) with respect to proposed hydropower

projects in Hawaii.

Section 4(e) of the Act contains the Commission’s authority to issue licenses for

hydropower projects. Section 23(b)(1) sets forth the circumstances under which a

project cannot be constructed, operated, or maintained without a license. In certain

circumstances, the Commission has authority to issue a license for a hydropower

project in response to a voluntary application under Section 4(e), even though licensing is not required under Section 23(b)(1). See Cooley v. Federal Energy Regulatory

Commission, 843 F.2d 1464, 1469 (D.C. Cir. 1988).

Under S. 334, the Commission would continue to have jurisdiction to issue licenses to construct, operate, and maintain hydropower projects in Hawaii whenever

Section 23(b)(1) would require a license for such activities. However, the Commission would be precluded from issuing a license for a project in Hawaii if Section

23(b)(1) did not require a license for such activities. In the absence of this legislation, an applicant might seek an FPA license if it wanted protection from competitors for a site, or if it concluded that federal regulation was preferable to state regulation.

Pursuant to Section 2408 of the Energy Policy Act of 1992, the Commission on

April 13, 1994, submitted to the Senate and House Committees a study of regulation

of hydropower projects in Hawaii. The study noted that the Commission has never

licensed a hydropower project in Hawaii, and is thus not currently regulating any

project in Hawaii. That is still the case. Therefore, S. 334 would not likely have any

impact on the Commission’s current operations, and I would not oppose its enactment.

D. S. 1236: Extending Deadline to Commence Project Construction

Section 13 of the Federal Power Act requires that construction of a licensed

project be commenced within two years of issuance of the license. Section 13 authorizes the Commission to extend this deadline once, for a maximum additional two

years. If project construction has not commenced by this deadline, Section 13 requires the Commission to terminate the license.

The project in question is the Arrowhead Project No. 4656, to be located at the

Bureau of Reclamation’s Arrowrock Dam, on the South Fork of the Boise River, in

Idaho. The Commission issued a license for this project on March, 27, 1989, and

granted a two-year extension of the commencement-of-construction deadline in 1991.

In 1993, pursuant to section 1704(c) of the Energy Policy Act of 1992, the Commission extended the deadline until March 26, 1999. S. 1236 would authorize the Commission to extend the deadline an additional six years, until March 26, 2005.

As a general principle I do not support the enactment of bills authorizing or requiring construction extensions for individual projects. More particularly, where

Congress has considered statutory extensions, the Commission has, as a matter of

policy, objected to granting a licensee a total of more than 10 years from the

issuance date of the license to commence construction. In my view, 10 years is a

more than reasonable period for a licensee to determine definitively whether a

project is economically viable and to sign a power purchase agreement. Moreover,

25

the Commission has a policy against ‘‘site-banking,’’ that is, allowing a licensee who

is not developing a site to prevent other potential applicants from doing so, and I

am also concerned that a license issued more than 10 years ago may not reflect current circumstances. I note that, even if a license is terminated, the applicant is free

to file a new application, based on current information. Since the bill in question

would extend the deadline until 16 years after the license was issued, I think it is

inadvisable on policy grounds.

E. H.R. 3852: Extending Deadline to Commence Project Construction

H.R. 3852 would require the Commission, upon the request of the licensee and

in accordance with the good faith, due diligence, and public interest requirements

of Section 13 of the Federal Power Act, to extend the deadline for commencement

of construction of Project No. 7115 for up to six additional years after September

21, 2000, the current deadline.

As I noted with respect to S. 1236, as a matter of general principle, I do not support the enactment of bills authorizing or requiring construction extensions for individual projects. However, if such extensions are authorized by the Congress, I would

object to granting a licensee more than 10 years from the issuance date of the license to commence construction. In my view, 10 years is a more than reasonable

period for a licensee to determine definitively whether a project is economically viable and to sign a power purchase agreement. If a licensee cannot meet such a deadline, I believe the license should be terminated pursuant to Section 13, so that the

site is once again available for whatever uses current circumstances may warrant.

Where the Commission has stayed the construction deadlines, or the entire license, for example pending judicial appeal of the license or the completion of preconstruction proceedings, the period of the stay is not counted in applying the 10-

year policy.

Because H.R. 3852 would not extend the construction commencement date beyond

10 non-stayed years from the issuance of the Project No. 7115 license, I have no

specific objection to its enactment.

F. H.R 1262: Exempting from Licensing Facilities on the Pentwater River

H.R. 1262 would exempt from Sections 23(b) and 4(e) of the FPA certain existing

facilities located on the Pentwater River in Michigan, so that no license would be

required under Part I of the FPA to operate and maintain those facilities.

I oppose this legislation. Congress’ purpose in enacting the FPA was to provide

‘‘a complete scheme of national regulation’’ to ‘‘promote the comprehensive development of the water resources of the Nation’’ and to avoid the piecemeal federal and

state regulation that had previously blocked that comprehensive scheme. See First

Iowa Hydro-Electric Coop. v. FPC, 328 U.S. 152, 10 (1946). Exempting particular

projects from regulation under the FPA would undercut the Commission’s ability to

ensure the optimum development of waterways, and would deny to the public the

consideration of public interest factors that is the basis for all Commission licensing

decisions. While the states of Alaska and Hawaii present special cases, in that they

are geographically distinct from the rest of the Nation and are not connected to the

interstate power grid, the same cannot be said for the lower 48 states. Thus, the

features that distinguish S. 422 and S. 334 are not present for H.R. 1262.

G. S. 1937: Sales of Bonneville Power Authority Energy to Joint Operating Entities

This bill would amend the Pacific Northwest Electric Power Planning and Conservation Act to provide for sales of energy by the Bonneville Power Administration

to joint operating entities composed of public bodies or cooperatives. The Commission has no jurisdiction over the matters that the bill addresses, and I have no comment on the bill.

CONCLUSION

In conclusion, I want to thank you for this opportunity to speak to you today

about the hydropower program. The Commission stands ready to work with Congress and with all interested parties to make the hydroelectric licensing process as

efficient as possible, while ensuring that we continue to balance all of the interests

that surround this important national resource.

I will be happy to answer any questions you may have.

26

27

28

29

Mr. BARTON. Thank you, Chairman. We’d now like to hear from

Mr.—is it Leshy or Leshy?

Mr. LESHY. It’s Leshy, Mr. Chairman.

Mr. BARTON. Leshy. We’d like to hear from you, sir. Your statement’s in the record, and we will recognize you for 5 minutes summarizing.

STATEMENT OF JOHN D. LESHY

Mr. LESHY. Thank you, Mr. Chairman. I’m very pleased to be

here. I’m the Solicitor of the Department of the Interior, pinch-hitting today for Deputy Secretary David Hayes, who’s on vacation

this week.

I’m very pleased to be here and have the opportunity to comment

and address the bills before the committee today, especially the

principal bill, H.R. 2335.

The Department of the Interior, particularly under Secretary

Babbitt, has made the Federal Power Act hydro relicensing process

a very high priority over the last several years. Ever since 1920,

our department has had an important role and responsibilities

under that act to provide input into the hydro licensing and relicensing process. Our mission, as defined by Congress in 1920, is to

ensure that certain resources are protected when the public resource of navigable waterways is dedicated to provide hydropower

generation for a period of 30 to 50 years.

We recognize that this licensing and now relicensing process can

be complex, time consuming, and can be resource intensive, but we

also believe—and we are taking I think great strides to make

sure—that the process can be improved to avoid inefficiencies and

delays.

I certainly associate myself with the remarks of Chairman

Hoecker and especially in his written testimony where he outlined

at some length the work that our department and the other Federal agencies that work with FERC are doing with FERC to improve the process in a number of respects—the Interagency Task

Force, the FACA committee that’s been chartered under that task

force. We are also working with the NHA and the Electric Power

Research Institute to focus our attention on ways we can improve

the process within the existing architectural structure of the Federal Power Act. And we think those collaborative efforts that we

have undertaken in the last several years and the energy and time

we’re putting into this is really beginning to bear fruit. We have

opened some really important lines of communication with FERC

and with the National Hydropower Association and the environmentalists, and we think there are a number of ideas being batted

around which will soon produce some really pretty dramatic improvements in the way the process of relicensing works, particularly as respects our mandatory conditioning authority, which has

been talked about so much here today.

With that preface, let me make some comments on the principal

bill in front of the committee, because we think that this bill would

make some very fundamental changes in the structure of the act

vis-a-vis the mandatory conditioning authority, and we are very

troubled by those changes because we think effectively they would

not streamline the existing process but would rather add a number

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of layers of new process and cumbersome procedures that would in

effect and ironically delay licensing still further.

It would go beyond, for example, the current well understood

standard that we have to have substantial evidence for any conditions that we impose on projects and require a separate scientific

peer review. There would be a mandated internal 6-month appeals

process before some independent body before our conditions could

be made final. Then when the conditions went over to the commission itself, the commission would have to do an economic analysis

of each condition and would have to undertake an additional review process.

So there are a number of additional layers and steps that would

be involved that we think would effectively be unworkable.

The basic structure of the act and our mandatory conditioning

authority has existed, as I said, since 1920, for 80 years. We think

it has stood the test of time. Of course today and in the modern

era, more attention is being paid to environmental factors in the

relicensing process. That’s true, of course, of just about every decision made in the public and private sector throughout society.

Our job under the Federal Power Act for the last 80 years has

been to set a mandatory floor of conditions for certain specified

areas: The fishway protection of section 18 and mandatory conditioning to protect Federal reservations when there are Indians—Indian reservations or national parks or other Federal reservations

of land involved. We do that to set the floor for how these projects

can be operated. We do that in a cost conscious manner, and we

do that as required by law only when we have substantial evidence

to support the conditions that we impose.

We think the public today is demanding more, not less, environmental sensitivity in resource management, and we unfortunately

regard the H.R. 2335 as a serious step backwards in that regard.

I would be happy to answer any questions. Thank you very much

for the opportunity to testify.

[The prepared statement of John D. Leshy follows:]

PREPARED STATEMENT OF JOHN D. LESHY, SOLICITOR, U.S. DEPARTMENT OF THE

INTERIOR

Good morning Mr. Chairman, Members of the Subcommittee. I appreciate the opportunity to discuss the Federal Power Act hydropower licensing process, HR 2335,

and several related bills before the Subcommittee today.

The Department of the Interior has made the Federal Power Act licensing process

a high priority over the last several years. The Department has an important role

and responsibilities under the Federal Power Act to provide input to the Federal Energy Regulatory Commission as it decides whether and how to license hydropower

projects. Our mission is not to interfere with licensing, but to ensure that certain

resources are protected when a public resource—a navigable waterway—is dedicated

to private hydropower generation for thirty to fifty years under a Federal Power Act

license.

The Department recognizes that the FERC licensing process can be complex, timeconsuming and resource-intensive for all parties, but we also believe that the process can be improved to avoid inefficiencies and delays. In undertaking to improve

the process, we have become convinced that the existing statutory framework is

sound, and whatever inefficiencies or shortcomings may exist can and should be addressed administratively. Therefore, we would oppose each of the bills the Subcommittee is considering today that would revise the licensing process or exempt

particular hydropower projects from all or part of the Federal Power Act requirements.

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Administrative Efforts on Hydropower Licensing

For the last two years, the Department has worked in several different forums

to improve the hydropower licensing process for all participants. I would like to

point out several specific efforts in that regard.

First, the Department is actively engaged in the Interagency Task Force on Hydropower Licensing (ITF)—a cooperative effort initiated by Interior, Commerce, Agriculture, EPA, Energy, CEQ, and FERC to find administrative solutions for inefficiencies in the licensing process that can sometimes result from unclear procedures,

poor communication, and the interaction of other federal statutes (e.g. NEPA, ESA)

with the Federal Power Act process. The ITF has developed a variety of administrative solutions:

• facilitating and streamlining noticing procedures, • standardizing the NEPA review process, • implementing necessary studies of resource impacts from licensing, • preparing trackable and enforceable license conditions pursuant to the Coastal

Zone Management Act and Section 401 of the Clean Water Act.

The ITF also has produced a draft set of guidelines that should make the Commission’s alternative licensing procedures (a.k.a., the ‘‘collaborative process’’) work

better for all federal and non-federal stakeholders. Currently, the ITF is working on

additional solution documents for Endangered Species Act consultation, various provisions of the Federal Power Act, and issues related to the post-licensing phase of

hydropower operations.

Second, the Department has sought input from others affected by hydropower licensing (e.g., licensees, NGOs, tribes, states and counties) to better understand and

address their concerns with the licensing process. As a member of the ITF, the Department was instrumental in establishing a federal advisory committee that enables these interests to advise the ITF. The advisory committee has met three times

in the last seven months and will continue to make recommendations to the ITF

through the end of this year, when the work of the ITF should be complete. As the

advisory committee provides its input, the ITF sets about institutionalizing the

agreed-upon reforms in each of our respective agencies.

One positive outcome of the ITF effort is that our relationship with many stakeholders in the licensing process has improved. For instance, the staffs of the Commission and the resource agencies have come to better understand each other’s

views and respective obligations under the Federal Power Act and other relevant

statutes, which in turn has led to increased trust among our agencies and an enhanced ability to work together. In my view, this improved relationship will pay

dividends in the field as we address the many projects scheduled for relicensing over

the next ten years.

Our relationship with the licensees has also greatly benefitted from the Department’s recent attention to hydropower licensing. The National Hydropower Association periodically visits with Department staff to discuss concerns they have about

various aspects of our participation in the licensing process. Moreover, the Department is an active participant in the industry-sponsored Electric Power Research Institute effort, which brings together the full range of affected interests to explore

our common goal of improving the hydropower licensing process.

Finally, the Department has taken concrete internal steps to further improve the

constructive role that its bureaus play in the licensing process. These internal

changes will facilitate better communication and coordination among Interior bureaus. Improving our own internal processes will help us avoid unnecessary delays

and ensure consistent application of Department policies throughout the bureaus’

regional offices.

H.R. 2335

Far from contributing to these efforts to improve hydropower licensing, we believe

that H.R. 2335 as written would interfere with the Department’s responsibilities

under the Federal Power Act, add multiple delays to the licensing process, and

make the Department’s involvement in Federal Power Act licensing proceedings

completely unworkable. We strongly oppose H.R. 2335, and if it were presented to

the President in its current form the Secretary of the Interior would recommend

that he veto it.

The most troubling feature of H.R. 2335 is that it would undercut the purposes

of much of the Department’s participation in federal hydropower licensing. The Department provides input to the Commission under several different sections of the

Federal Power Act; this bill is principally directed at the prescriptions for ‘‘fishways’’

issued by the Fish and Wildlife Service under section 18, and at the responsibility

of several bureaus that manage reserved lands to mandate conditions under section

4(e) ‘‘necessary for the adequate protection and utilization of such reservations.’’ The

32

resource agencies’ authority to protect the uses of reserved lands is an integral part

of the Federal Power Act licensing scheme, going back 80 years to the original enactment of Act in 1920. While the Act allowed licensing of private hydro facilities

on Federal lands, it also contemplated that the resource agencies would possess the

necessary expertise to ensure that those facilities would not interfere with protection and use of the lands. That responsibility of Federal land managers to condition

projects on the lands they manage remains in the statute to this day.

Section 4 of the bill (new section 32(b)(1) of the FPA) would change these mandates by requiring the Department to take into consideration a variety of factors,

including air quality, drinking [sic], flood control, irrigation and navigation, in determining section 4(e) conditions and section 18 prescriptions. At the same time, the

original purposes of sections 4(e) and 18—to protect and utilize reserved lands and

to ensure that fish can survive passage through hydro projects—are not mentioned

in the list of proposed new factors. Thus, there would be no mandate that the Department take these purposes into consideration. In effect, by emphasizing other

factors, H.R. 2335 would potentially force the Department to ignore fishery needs

in prescribing fishways. It might oblige us to ignore the project impacts to Indian

tribal lands and resources when determining conditions necessary to protect Indian

reservations, or the needs of parks, wildlife refuges and other conservation areas

when setting conditions to protect those reserved lands.

Furthermore, as if to underscore this effort to ignore the original purposes of sections 4(e) and 18, H.R. 2335 would then require the Commission to make a separate

determination based on the same factors. Under section 4 (new section 32(h)(1) of

the FPA), if requested by the license applicant, the Commission would have to make

a determination whether a 4(e) condition or section 18 prescription was in the public

interest, based solely on this same list of other factors. Thus, the Commission could

not take fisheries or land management needs into account in making this ‘‘public

interest’’ determination.

H.R. 2335 would also undercut the purpose of recommendations made by state

and federal fish and wildlife agencies for protection, mitigation and enhancement of

fish and wildlife and their habitats under section 10(j) of the Federal Power Act.

Section 4 (new section 32(g) of the FPA) would require the Commission to evaluate

these section 10(j) recommendations as well against the list of factors set out above.

The combined effect of these various provisions of H.R. 2335 would be to subordinate resource needs and trust responsibilities to a wide range of other factors. The

current structure of the Federal Power Act requires that a license be issued only

with conditions that ensure protection of underlying resources. Once this floor is established to protect against unreasonable resource destruction, then the Commission

balances various factors to determine whether and how to issue a license. This bill

would turn that scheme on its head, allowing protection of underlying resources only

if a laundry list of other needs were met.

In addition, rather than streamlining the licensing process under the Federal

Power Act, the bill would add new and cumbersome procedures to the process, delaying license issuance still further. It would go beyond the current judicially required standard of ‘‘substantial evidence’’ for agency conditions and require separate

scientific peer review (new section 32(c) of the FPA). It would mandate a six-month

appeals process before ‘‘an administrative law judge or other independent reviewing

body’’ before section 4(e) conditions and section 18 prescriptions could be made final

(new section 32(e) of the FPA). It would require the Commission to conduct an economic analysis of each section 4(e) condition or section 18 prescription (new section

32(g) of the FPA), plus an additional review process if requested by the license applicant (new section 32(h) of the FPA).

Apart from these concerns about delay, the licensing procedure prescribed by H.R.

2335 is simply unworkable. Section 5 (new section 33(b) of the FPA) would prohibit

the resource management agencies from doing any environmental analysis outside

of the Commission’s own NEPA analysis. This would make it impossible to formulate section 4(e) conditions and section 18 prescriptions. Our section 4(e) and 18 responsibilities can only be carried out through our own analysis of impacts to lands,

fisheries, and other resources—though this is not a separate NEPA process, it is environmental analysis. The Bangor Hydro court decision held that we must have

‘‘substantial evidence’’ to support our 4(e) conditions and section 18 prescriptions—

again, that substantial evidence is developed through environmental analysis. Without such analysis, we cannot do our job at all.

The Department could not rely on the Commission’s NEPA analysis to provide the

evidence necessary to support our determinations under sections 4(e) and 18, because H.R. 2335 would require that the draft conditions and prescriptions be formulated before the license application is filed (new section 32(e) of the FPA). Not surprisingly, the Commission does its NEPA analysis after the license application is

33

filed. Obviously, if there is no application available, and consequently no Commission NEPA analysis, many of the necessary conditions and prescriptions could not

be developed at all. Moreover, finalization of the conditions depends upon information provided in the Commission’s NEPA analysis. H.R. 2335 would require that

final conditions and prescriptions be issued within one year after the Commission

determines the application is ready for environmental analysis (new section 32(f) of

the FPA). But a condition could hardly be finalized if the Commission has not completed at least a draft NEPA analysis, which is often delayed more than one year

after the application is determined ready for environmental analysis.

The most impractical aspect of this process described by this bill bears repeating:

H.R. 2335 would require that the agencies formulate license conditions and prescriptions before the license application is filed (new section 32(e) of the FPA). Although

license applicants circulate draft applications before filing, these are often altered

substantially before they are filed before the Commission. An agency simply can’t

write a mandatory condition for a license application it hasn’t yet seen.

S. 422, S. 334, H.R. 1262, H.R. 3852, S. 1236

The remaining hydro licensing bills before the Subcommittee today have one feature in common: each seeks to exclude a project or class of projects from some or

all of the hydropower licensing requirements of the Federal Power Act. We oppose

each of these exemptions.

The Department has commented at some length in the past on S. 422, which

would place small hydroelectric projects in the State of Alaska solely under State

jurisdiction. The Secretary’s previous letters to Chairman Bliley are attached to my

testimony. In brief, we strongly oppose S. 422 because it would fragment hydropower regulation and impair the Federal government’s ability to protect federally

managed lands and resources affected by the projects. Although certain land areas

are exempted from application of S. 422, the bill’s provision addressing tribal lands

is confusing, since most Native lands in Alaska are not ‘‘reservations.’’ Furthermore,

it does not address the applicability of NEPA, the Endangered Species Act, or rights

of way under the Federal Land Policy and Management Act.

We also oppose S. 334, which would exempt hydropower projects on fresh waters

in the State of Hawaii from the Federal Power Act. Presumably, such an exemption

would leave jurisdiction for licensing to the State of Hawaii, although there might

be a question of Federal preemption. Whether or not the State would exert jurisdiction, this bill suffers from many of the same flaws as S. 422, in that it does not

provide for continued Federal protection of federally managed resources, nor for

NEPA and Endangered Species Act application in hydropower licensing. Hawaiian

fresh water streams currently provide habitat for six candidate and one listed species. The streams also contain fish and shrimp that are harvested for subsistence.

In addition, the proposed hydropower project on the Wailua River may impact the

Hanalei National Wildlife Refuge and its fish and wildlife resources including endangered water birds, migratory waterfowl and shorebirds.

H.R. 1262, H.R. 3852 and S. 1236 each provide special exemptions for particular

hydropower projects, and we oppose them. H.R. 3852 and S. 1236 provide extensions

of time for project construction. The Federal Power Act allows a two-year window

to begin construction after a license is issued, which may be extended another two

years. If a licensee does not begin construction within that time frame, there is no

reason to extend the benefit of the license for a longer period—if the site is appropriate for hydropower development, it should be available for another applicant to

obtain a license. License extensions simply encourage speculation in hydropower development, as well as diminish the applicability of pre-licensing economic and environmental reviews, and we oppose them in general.

H.R. 1262 is an attempt to evade the relicensing policy of the Federal Power Act,

exempting a single hydropower project owned by the City of Hart, Michigan, from

the Commission’s jurisdiction. Since we support the regulatory purposes of the Act,

and oppose any attempt to avoid periodic review of the operations of hydropower

projects, we oppose this bill as well.

Thank you. I would be happy to answer any questions.

Mr. BARTON. Thank you, sir. We appreciate that. We’d now like

to hear from Mr. Burns. We’re sooner or later going to get this

clock right. We’ve managed to mess it up on everybody so far.

Come on up. You’re recognized for 5 minutes, and your complete

statement’s in the record in its entirety.

34

STATEMENT OF ALLEN BURNS

Mr. BURNS. Thank you, Mr. Chairman and members of the subcommittee. I’m the Vice President of Requirements Marketing at

Bonneville Power Administration, responsible for power sales to

our public customers. I appreciate the opportunity to convey some

brief comments and thoughts on the proposed legislation on Bonneville selling to a Joint Operating Entity or a JOE. I have five quick

points I want to leave with you. There’s more in my testimony.

The first point is that BPA does not object to the proposed JOE

legislation. It does not expand or diminish the rights of those members of the JOE to buy power from Bonneville. Also, we do not believe that it diminishes the rights of any other customers to buy

or the cost of the power that they would be buying from us. Last,

we do believe that the JOE will provide some administrative benefits, some efficiencies in O&M operation, and other things to membership of the JOE.

The second point I want to touch on briefly is the eligibility for

a Joint Operating Entity. The proposed legislation applies only to

BPA’s preference customers. All of these customers were currently

customers of ours in January 1999, so as the legislation is proposed, they would be eligible to participate in a JOE. Currently we

are aware of four such entities. I think you’re going to hear from

one this afternoon, PNGC, that as currently formed would qualify

as a JOE.

The third point I want to make is that JOEs currently are ineligible to purchase BPA requirements power. We’ve had over 60

years of interpreting our current statutes regarding this matter

and believe this legislation is necessary if we are going to sell to

a Joint Operating Entity.

The fourth point I want to make is there will be no change to

preference customers’ current rights. A JOE will have the rights to

buy power from Bonneville, whether it be requirements power or

surplus power, will remain the same as for their individual members. The JOE will still have those same requirements not to resell

requirements power, and when it comes to surplus power, they’ll

have the same type of restrictions that any other customer would

have.

The fifth point I want to make is in regards to comprehensive

electricity energy restructuring, it is the administration’s view that

this should be done in a comprehensive manner. So the question

arises, well, what about this legislation? It’s our view at BPA and

the Department that this is really minor legislation. And for all the

reasons that I’ve currently mentioned, it has a very minor——

Mr. BARTON. Which is minor? The comprehensive electricity——

Mr. BURNS. No. Excuse me. The JOE language. Excuse me. Let

me be clear about that. The proposed JOE legislation would be

minor in scope and nature, and as such would not need to be held

up or be part of any comprehensive electricity restructuring moving

forward. That concludes my comments.

[The prepared statement of Allen Burns follows:]

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PREPARED STATEMENT OF ALLEN BURNS, VICE PRESIDENT, REQUIREMENTS

MARKETING, BONNEVILLE POWER ADMINISTRATION, U.S. DEPARTMENT OF ENERGY

INTRODUCTION

Mr. Chairman, distinguished members of the House Subcommittee, my name is

Allen—Burns. I am the Vice President for Requirements Marketing at the Bonneville Power Administration (BPA), responsible to the BPA Administrator for BPA’s

power sales to its public utility customers. We appreciate this opportunity to appear

today at this hearing on H.R. 3447, the proposed legislation to allow BPA to sell

to Joint Operating Entities (JOE). We thank you for your continued support and attention to issues affecting BPA and its customers.

Today, I will be brief. BPA does not object to the proposed JOE legislation. The

legislation will not expand or diminish the rights that our public preference utility

customers currently have to buy BPA power.

The legislation would create a new type of BPA preference customer—a JOE—

that could pool power purchases for customers who currently enjoy preference status

for purchase of BPA power. Under this legislation, a JOE’s member utilities might

realize several benefits. They might be able to reduce their administrative overhead,

combine their operations and maintenance work, or optimize their use of the interconnected transmission and distribution system. However, BPA does not believe the

legislation would result in less BPA power or increased costs for BPA’s other regional customers.

ELIGIBILITY FOR A JOE

The proposed JOE legislation would apply only to BPA’s preference customers.

These are public bodies and cooperative utilities, which, under current statutes, receive preference and priority in all sales of federal power. BPA must first meet requests of preference customers in all sales of power.

All of BPA’s current preference customers would be eligible to be a member or

participant of a JOE under this legislation, since they all were formed under state

laws prior to January 1, 1999. We are aware of only four Northwest organizations

that might qualify at this time to be a JOE under the requirements of the legislation, although there may be more. The four Northwest organizations are Pacific

Northwest Generating Cooperative (PNGC); Oregon Utility Resource Coordination

Association (OURCA); the Idaho Energy Authority (IdEA) and Western Montana

Electric Generating and Transmission Cooperative. To qualify as a JOE, an entity

must be organized under state law as a public body or cooperative on the bill’s date

of enactment.

JOE’S ARE CURRENTLY INELIGIBLE TO PURCHASE BPA REQUIREMENTS POWER

Section 5(b)(1) of the Northwest Power Act directs BPA to sell firm power to the

region’s utilities to meet each utility’s retail consumer load that exceeds—or is net

of—the amount of its firm power resources. This is referred to as a utility’s net firm

load requirement, or simply, requirements load. BPA’s obligation is to provide power

based on each utility’s individual loads and resources, independent of the loads and

resources of others. Utilities can only use that power to meet the load of their retail

consumers.

The Bonneville Project Act limits BPA’s authority to sell blocks of firm requirements power to an entity representing large groups of public bodies or cooperatives.

Section—2(b) of the Project Act expresses the general purpose of encouraging the

widest possible use of all electric energy marketed and preventing monopolization

of such energy by limited groups. Sections 4(c) and (d) say that public bodies and

cooperatives are to be both sellers and distributors of federal power—in other words,

retail utilities with distribution systems.

For the past 60 years, BPA has interpreted the Project Act as precluding sales

of firm requirements power to an entity which does not itself directly serve regional

retail consumers, but which simply reallocates the power to retail utilities. The proposed JOE legislation would create a limited exception to these provisions by permitting a combined sale of power to a JOE for its members’ requirements purchases.

BPA does see the need to have an express authorization for such sales included in

its statutes.

NO CHANGE TO PREFERENCE CUSTOMERS’ CURRENT RIGHTS

In sum, the proposed JOE legislation does not affect our preference customers’

rights under current law to buy BPA power. It simply allows a JOE to act as a purchasing agent for its member utilities.

36

When a JOE purchases from BPA on behalf of its members or participants, the

JOE will have the same preference and priority status for those purchases as the

member utilities currently have. Like its members, a JOE would be precluded under

this legislation from reselling requirements power for any purpose other than its

members’ requirements loads. Similarly, the same restrictions that apply to customers, which purchase BPA’s surplus power, would also apply to a JOE.

IMPACT ON ELECTRICITY RESTRUCTURING

Mr. Chairman, one of the questions that arises is whether this issue is one that

should be addressed in broader national electricity restructuring legislation. It is the

Administration’s view that electricity restructuring would best be handled in a comprehensive manner.

It is our view, however, that JOE legislation is a minor issue. It simply creates

a different way for existing preference customers to choose to purchase power from

BPA that is consistent with their existing rights. Therefore, we believe the Committee could reasonably move this legislation independent of national restructuring

legislation if it so chooses.

Mr. Chairman, members of the Subcommittee, thank you for your time and attention. I am available now to answer any questions about the JOE legislation that you

may have.

Mr. BARTON. Thank you, Mr. Burns. We’d now like to hear from

Dr. Rosenberg. Your statement’s in the record in its entirety, and

we recognize you for 5 minutes.

STATEMENT OF ANDREW A. ROSENBERG

Mr. ROSENBERG. Thank you, Mr. Chairman, and good morning to

you and members of the subcommittee. Thank you for inviting me

to testify on these seven hydropower bills under consideration.

I’m Andrew Rosenberg. I’m the Deputy Director of the National

Marine Fisheries Service in the U.S. Department of Commerce.

NOAA, the National Oceanic and Atmospheric Administration,

mandates under the Federal Power Act, includes some of our most

important tools for protecting anadromous fish—that is, fish that

migrate from rivers to the sea and back again—and mitigating

damage to fish habitat. And through the Federal Energy Regulatory Commission’s licensing process, resource agencies such as

National Marine Fisheries Service prescribe fishways to meet a variety of objectives, including the passage of healthy existing populations, passage for depleted populations as part of a restoration

program, and passage as a means of providing access to underutilized habitat areas.

Passage facilities must be constructed where they’re needed, and

deficient fishways must be improved by including—and by including effective fishways during relicensing, we can provide these fish

stocks will long-denied access to historically important habitats.

We have been working to ensure that the Nation’s fisheries resources receive the necessary protections, including those provided

by the Federal Power Act, with its key protections for anadromous

fish. And to effectively implement the Federal Power Act, NOAA

has developed a nationally recognized biological engineering and

legal expertise related to fish passage.

Many of our Nation’s stocks of anadromous fish are in unhealthy

condition, but we have a historic opportunity to change that prognosis because so many dams without passage facilities are soon to

be considered for relicensing. The health of these stocks continues

to decline, with several requiring listing as threatened or endangered under the Endangered Species Act. And therefore, now is the

37

time to strengthen our protections for anadromous fish, not diminish them. And by taking a preventive yet realistic approach, we can

decease the likelihood of additional listings under the Endangered

Species Act, which would be of even greater concern.

The commitment of the administration to the recovery of anadromous fish stocks is evident from the very significant resources

that have been expended by the resource management agencies to

restore fish habitat. Clearly, efforts to improve the health of aquatic ecosystems will be frustrated if fish cannot gain access to those

improved habitats. And thus by improving fish passage, we make

possible the ultimate success of the many regional and national

large-scale planning initiatives to enhance fisheries’ habitat by the

U.S. Forest Service, Bureau of Land Management, our agency and

others.

NOAA does oppose the bills being considered by the subcommittee today because they undercut the ability of the Federal

Power Act to provide important protections for fish. We strongly

oppose H.R. 2335 and its implication for the management of NOAA

trust resources. We have grave concerns about the bill and will

make those concerns known within the administration in concert

with the position stated by the Department of Interior.

We believe that H.R. 2335 would complicate and lengthen the

fishway prescription process as well as potentially remove any Federal obligation to provide fish passage at dams. The bill will cause

delays in fishway prescription by adding additional and duplicative

scientific and administrative reviews, and this could add many

months to an already long process.

The bill would provide sanctions for late prescriptions in the

form of changing the nature of the conditions from mandatory to

advisory for late submission, thereby removing any assurance that

fish passage will be implemented.

And most troubling of all, the sanction for late final prescription

removes any requirement that the commission provide any fish

passage, and this potentially could harm public fisheries resources

that may be severely impacted by dams. Because licenses are

issued for 30 to 50 years, that harm will be long-term for those

public resources.

We oppose the other bills because they, with the exception of the

JOE bill, where we have no position, because they all seek exemptions to the licensing requirements of the Federal Power Act, and

these requirements include important protections for NOAA trust

resources.

We do strongly support administrative changes for improving the

licensing process and have been working intensively in the interagency task force mentioned by the other speakers already.

We will continue to work in that task force, continue to work to

improve the licensing process with regard to communication, coordination and resolving outstanding issues in licensing.

NOAA is very deeply committed to the effort to restructure that

licensing process, but we believe it can be done administratively,

not through the legislative prescriptions provided here.

With that, Mr. Chairman, I would be happy to respond to any

questions. Thank you very much.

[The prepared statement of Andrew A. Rosenberg follows:]

38

PREPARED STATEMENT OF ANDREW A. ROSENBERG, DEPUTY ASSISTANT ADMINIS- TRATOR FOR FISHERIES, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

Mr. Chairman and members of the Subcommittee, thank you for inviting me to

testify on the hydropower bills under consideration. I am Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Oceanic and Atmospheric

Administration (NOAA).

INTRODUCTION

Role of NOAA Fisheries in Hydropower Relicensing

Although hydropower is cleaner than fossil fuel and nuclear power, it is not free

from adverse environmental effects. Efforts to reduce environmental problems associated with hydropower operations, such as providing safe fish passage and improved water quality, have received considerable attention in the past decade from

the Federal Energy Regulatory Commission (Commission) and from Congress. The

Federal Power Act (FPA) provides important safeguards for fish and wildlife resources from potentially serious harm that could be caused by hydropower projects.

The Commission’s relicensing process provides NOAA with an opportunity to reexamine operations and further the restoration of fisheries through the Department

of Commerce’s mandatory conditioning authority for prescribing fish passageways

under the FPA. Fishways serve a variety of resource objectives including, but not

limited to, passage for healthy existing populations, passage for depleted populations as part of a restoration program, and passage as a means of providing access

to under-utilized habitat areas.

NOAA is responsible for conserving and managing anadromous and marine fishery resources and their habitats, in accordance with the Magnuson-Stevens Fishery

Conservation and Management Act, and other statutes. Our authority with respect

to hydropower licensing is provided by the FPA, including sections 10(j) and 18, and

the Fish and Wildlife Coordination Act. The Commission must give due weight to

NOAA’s recommendations for the protection and mitigation of damages to, and enhancement of, fishery resources and their habitats. The Commission also must include any fishway prescriptions issued by the Secretary of Commerce pursuant to

section 18 in their licenses.

Two Initiatives to Streamline the Licensing Process

Hundreds of dams were licensed decades ago with inadequate or no fish passage

facilities. They will have to come into compliance with current environmental laws

and FPA mandates when those facilities are relicensed. Given the large number of

license expirations over the next decade, we have an unparalleled opportunity to reconfigure inadequate fishways, prescribe fishways for projects that have existed

without them for as long as 50 years, and provide other fish protection measures.

I will describe two initiatives in which we are already working to realize these opportunities.

First, there is the Interagency Task Force to Improve Hydroelectric Licensing

Processes (ITF) convened by the Commission, NOAA, the Department of the Interior, and other resource agencies to develop administrative reforms to the licensing

process. The ITF is playing a catalytic role between the Commission and the resource agencies, significantly improving communication and coordination. The ITF

workgroups are developing administrative measures that should make the licensing

process work more smoothly. They are being assisted by an advisory committee composed of industry, non-governmental organizations, tribes, and local, state, and Federal government agencies. Second, NOAA and our Federal partners are participating in an industry-led effort, sponsored by the Electric Power Research Institute

(EPRI), to develop mutually acceptable means for improving the licensing process.

The ITF and the EPRI initiatives collectively provide a means for stakeholders and

agencies to identify and discuss improvements to the licensing process.

HYDROPOWER BILLS

H.R. 2335—Hydroelectric Licensing Process Improvement Act of 1999

While we agree with the objective of making the hydropower licensing process

work smoothly, we disagree with the need for the proposed legislative changes and

therefore strongly oppose H.R. 2335. We have grave concerns with the bill for the

reasons outlined below. We believe that the ongoing, comprehensive efforts of the

ITF and EPRI to streamline the licensing process via administrative reforms will

improve the licensing process while still preserving the necessary environmental

protections of the FPA. Until this process reaches completion, and ITF and EPRI

39

recommendations can be implemented and assessed, legislative changes to the FPA

should be held in abeyance. I will now comment on several issues raised in the bill.

General Comments

Many anadromous fish stocks continue to decline, with several listed as threatened or endangered under the Endangered Species Act (ESA). By taking a preventative yet practical approach, the likelihood of additional listings under the ESA is decreased and chances for recovery are increased.

If mandates to provide passage for anadromous fish are diminished, our ability

to protect fish, ensure sustainable fisheries, and maintain healthy river systems will

be decreased. For nearly 30 years NOAA has been developing scientific capabilities

in the area of fish passage that should continue to be applied to development of

fishway prescriptions. It is appropriate that NOAA continue to provide for the protection of anadromous fish at hydropower projects because we have the statutory

authorities and scientific expertise to manage these species throughout their range.

It would be inefficient for the Commission to duplicate this expertise.

Specific Comments

Sec. 32(b). Factors to be Considered

NOAA recommends deleting sections A, B, and C of the bill because they are unnecessary and add confusion to the licensing process. The FPA requires the Commission to make decisions on licenses in the public interest by ‘‘balancing’’ varied and

competing biological, economic, and social interests. H.R. 2335 would either shift the

responsibility for balancing from the Commission to the resource agencies, or result

in a duplicative system where the agencies and the Commission are separately considering the implications underpinning a licensing decision. All of the factors in A

are appropriately considered by the Commission. NOAA already takes factors B and

C into consideration when developing fishway prescriptions.

NOAA works closely with other consulting agencies when fishway prescriptions

are developed. Additionally, in developing its mandatory conditions, NOAA already

considers their compatibility with other mandatory conditions, relation to project

impacts, and costs.

Sec. 32(b)(2). Documentation

NOAA considers this section unnecessary. The courts have stated that there must

be substantial evidence to support mandatory conditions in the Commission’s record.

This standard is one used for review of Federal agency actions and it is appropriate

for mandatory conditions to withstand legal challenge. Substantial evidence should

include the scientific basis for the agency’s conditions, as well as appropriate consideration of any other information provided to the consulting agency.

Sec. 32(c). Scientific Review

NOAA opposes this section because it would cause delays in an already lengthy

process. Also, it is unnecessary because we already consider the results of peer reviews, and base our decisions on the best available science.

The process of developing a fishway prescription directly involves the applicant

because it is an interactive, multi-phase process during which NOAA coordinates

with the license applicant, who can provide any additional information when needed. We work with the applicant or their contractors to ensure that appropriate data

are collected according to accepted scientific practice. If an applicant submits results

of a peer review, the review is given due consideration. Adding one more step to

this process would lengthen it unnecessarily.

NOAA is the world’s largest fishery research and management agency, and has

a scientific capability with diverse and highly specialized skills. As a science-based

agency, we believe strongly that management and conservation decisions should be

based on the best available science. Applicants can choose to provide us with their

own scientific analyses and peer reviews. We will give those reviews appropriate

consideration in our decisions, but believe we must retain the final decision for our

prescriptions. The FPA appropriately assigns this responsibility to us.

Sec. 32(e). Administrative Review

The option of an Administrative Law Judge (ALJ) or other non-scientific reviewing body recommending a fish passage condition improperly places the responsibility

for a technical decision on a person or review body without the requisite scientific

background. NOAA has a number of other concerns as well. First, the time to provide conditions for review is unworkable because we typically would not have all the

information needed to formulate fishway prescriptions at least 90 days before the

applicant files its application. Second, the ALJ or other reviewing body would not

have information available on energy or economic values of a project. Third, downVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
40

grading a mandatory condition to a recommendation because an ALJ or independent

reviewing body takes longer than 180 days potentially could significantly harm fishery resources and associated users. Fish passage prescriptions are mandatory measures needed to assure safe and effective fish passage. Fish passage needs do not

change because a procedural timing requirement is not met. Upon being downgraded to 10(j) recommendations, the Commission would be allowed to accept, reject,

or modify them. Such a practice would frustrate Congress’s clear purpose of ensuring that fish passage is required as prescribed by Federal fishery experts.

Sec. 32(f). Submission of Final Condition

NOAA opposes this section because the deadlines do not take the Commission’s

National Environmental Policy Act (NEPA) analysis into consideration and the result of missing a deadline may adversely affect fishery resources. The deadline for

submission of a final condition of no later than one year after the license application

is ready for environmental review is unrealistic in relation to the Commission’s

NEPA analysis. Currently, when sufficient information is available, NOAA will submit preliminary fishway prescriptions in response to the Commission’s notice that

the project is ready for environmental analysis. The Commission can then include

them in its NEPA analysis of the proposed project. NOAA may modify its prescriptions based on information developed during the NEPA analysis. As written, this

section would deny this option.

Also, the ‘‘default’’ option, essentially our sanction for not making the deadline,

is even more onerous. The consulting agency would not be able to recommend conditions for fish passage or alleviating impacts to a federal reservation. The result

would be that fishery resources could lack passage, causing significant declines in

their numbers. Many anadromous fishery resources are already in a precarious

state and this would exacerbate the problems.

Additionally, this section would encourage applicants to delay in providing information requested by the resource agencies because it would increase the likelihood

of the agencies missing a deadline. NOAA already makes every effort to meet its

deadlines and will continue to do so.

Sec. 32(g). Analysis by the Commission

NOAA opposes this section because it would require NOAA to conduct an analysis

that is duplicative with the Commission’s NEPA analysis. NEPA analysis requires

consideration of all impacts to the quality of the human environment, not only biological and physical impacts, but economic impacts as well. NOAA bases its conditions on the best available science, its expertise, and any other factors relevant to

providing adequate fish passage. We take into account information regarding costs

of the measures and will choose the least-costly option that provides adequate fish

protection.

The FPA is clear in its requirement that the Commission consider the economic

viability of a project as part of its ‘‘balancing’’ deliberations that precede the decision

to issue a license. During balancing the Commission considers a multiplicity of

issues affecting societal interests. NOAA does not have access to the varied types

of information that the Commission applies to balancing. The Commission’s decisions indicate that the economic viability of a project is not the only factor in their

deliberations, as the Commission often issues licenses to applicants whose projects

have been determined to have negative economic benefits.

Sec. 32(g)(2). Consistency With This Section

In regards to this section, the concerns stated above regarding section (b) and (c)

apply equally to FPA section 10(j).

Sec. 32(h). Commission Determination on Effect of Conditions

NOAA disagrees with the characterization of the public interest being only those

factors listed in section (b). There is no mention of the value of a resource protected

by the condition. As to the rest of the factors listed, the Commission already reviews

appropriate information on rehearing. Therefore, we recommend this section be deleted.

Sec. 33. Coordinated Environmental Review Process

NEPA and the President’s Council on Environmental Quality (CEQ) regulations

already provide deadlines for comments on NEPA documents. The Commission

should not set different deadlines for governmental agencies to provide their comments, because this runs counter to the CEQ regulations.

41

Sec. 6. Study of Small Hydroelectric Projects

The size of a hydropower project is not necessarily related to the magnitude of

its impacts on fish and habitat. Even small projects are major Federal actions and,

regardless of the licensing process in use, require some level of NEPA review. While

we would support consideration of processes for expediting the licensing process for

small projects, we would not support any action that diminishes the role of the resource agencies from safeguarding the public’s resources under their jurisdiction.

Currently, the FPA does provide an exemption from the licensing process for small

hydropower projects, and includes adequate protections for fish and wildlife.

S. 422—Alaska State Jurisdiction Over Small Hydroelectric Projects

NOAA strongly opposes S. 422. This bill would eliminate certain hydropower protections for fish and wildlife by removing small hydropower projects in Alaska from

the jurisdiction of the Commission. Enactment of S. 422 would prevent Federal fishery managers from being able to conserve and manage anadromous fish throughout

their range. NOAA’s statutory responsibility to protect anadromous fish is especially

important in Alaska, which supports many of the remaining healthy stocks of anadromous fish in the Nation. Alaska is where most new hydropower projects are under

development, presenting an opportunity to achieve compliance with fish protection

measures from the outset. Removing the Commission from the licensing process

would remove NOAA as well, thereby preventing the agency that is responsible for

management of anadromous fish throughout their range from participating in development of fish passage measures. Management of issues such as cumulative impact

assessment would be greatly complicated if responsibility for fish protections was

split between Federal and state entities within the same watershed, as many watersheds cross the boundaries of several states. While this is not true for Alaska, the

transboundry rivers shared with Canada (Yukon, Taku, Stikine) present an analogous and even more complex situation. Additionally, Canada has taken the position

that failure by the United States to protect salmon from hydroelectric development

is a principal cause for imbalance in salmon production between the two nations.

Passage of S. 422 may make future negotiations under the U.S. and Canada salmon

treaty more difficult.

Consultations with Affected Agencies

The bill states that the Commission shall consult with the Secretaries of Commerce and the Interior before certifying a state program. Apparently this is intended to ensure that Alaska’s program would provide adequate protection for Federal interests. However, there is no statutory provision requiring the Secretaries to

concur with the Commission’s decision, merely that the Commission consults. While

the bill provides for oversight by the Commission it does not give the Federal resource agencies a role in this review. This leaves NOAA with little recourse if anadromous fish are not receiving adequate protection under the state program.

Exemption Unnecessary

Small hydropower projects already can be exempted from the licensing process

pursuant to provisions of the Federal Power Act and the Public Utility Regulatory

Policies Act (PURPA). (See 16 U.S.C. 823a and 2705). Hydropower projects falling

within a FPA and PURPA licensing exemption already may apply for a FERC license exemption. This alternative involves much less time and effort on the part of

the license applicant than the licensing process. Such projects still remain subject

to conditions for fish protection issued by Federal resource agencies. This is important because projects of 5,000 kilowatts or less may have significant environmental

consequences and should, therefore, continue to be subject to the requirements of

the FPA and protections deemed necessary by the resource managers. Damming of

an anadromous fish stream has adverse impacts regardless of the project’s size.

Project Works on Federal Lands

Although NOAA is not a land management agency, we have concerns regarding

the direct and indirect effects of hydropower projects located in whole or in part on

Federal lands. S. 422 would require that the Secretary having jurisdiction with respect to such lands must approve the State of Alaska’s authorization for the hydropower project. However, S. 422 fails to require any consultation with the Federal

fish and wildlife resource agencies before such approval is provided. Public resources

under Commerce jurisdiction and management plans may be affected.

S. 334—Removing FERC Jurisdiction to License Projects on Fresh Waters

in Hawaii

NOAA opposes S. 334 because it would eliminate important living marine resource protections provided by the FPA and could cause significant harm to fishery

42

resources. S. 334 would exempt hydropower projects on fresh waters in the state of

Hawaii from the requirements of the FPA, and the Commission would no longer

have licensing authority. As with Alaska, we oppose complete devolvement of licensing authority to the states because of the important role that Federal fishery managers play in the licensing process. Although NOAA currently has no current involvement in hydropower licensing in Hawaii, we should not be precluded from

doing so in the future, where resources under Commerce jurisdiction are impacted.

S. 1236 and H.R. 3852—Extensions of Deadline and Reinstatement of License

NOAA opposes S. 1236 and H.R. 3852 ‘‘Extensions of Deadline and Reinstatement

of License’’ because we believe that all projects should be constructed on time to ensure that environmental information is current. S. 1236 and H.R. 3852 would authorize the Commission to extend the time limits for construction of projects after

issuance of a license in Idaho and Alabama, respectively. When Congress has authorized extensions of the construction deadlines for hydropower projects, the Commission generally has not objected to extensions of up to ten years from the date

the project was licensed. Conditions may change substantially in that amount of

time, thereby requiring supplementation of the Commission’s environmental analysis. At a minimum, the Commission should ensure that their NEPA analysis is still

valid, or prepare a supplemental NEPA document.

H.R. 1262—FPA License Not Required for Pentwater River, Michigan

NOAA opposes passage of H.R. 1262 for the same reasons we oppose S. 422 and

S. 334. Specifically, the erosion of the Commission’s authority, whether state by

state or project by project, circumvents the FPA requirements that provide the Federal resource agencies with an important role in the licensing process.

S. 1937—Allowing Bonneville Power Administration to Sell Electricity to

Joint Operating Entities

NOAA has no comment on this bill.

CONCLUSIONS

NOAA is working to ensure that the Nation’s fishery resources receive necessary

protections, including those provided by the FPA with its key protections for anadromous fish. By including effective fishways during relicensing, we can provide

anadromous fish stocks with long denied access to historically important habitats.

By combining this preventative approach under the FPA with the important curative measures under the ESA, we can decrease the decline in other populations and

decrease the likelihood of additional listings under the ESA.

NOAA mandates under the FPA include some of our most important tools for protecting anadromous fish and mitigating damages to fish habitat. Our positions on

these bills stem from our conviction that these mandates should not be diminished

or removed.

The FPA mandates the Commission to make licensing decisions in the public interest, balancing the Nation’s need for hydropower and the need to protect important natural resources. NOAA will continue our collaborative efforts with the Commission, industry, non-governmental organizations, tribes, and other interested entities to ensure that the hydropower licensing process provides a sound basis for the

balancing of societal priorities, including the need for healthy habitats and productive fisheries. We will also continue our efforts to make administrative changes that

will make the process work more smoothly.

NOAA views relicensing as an opportunity to increase, rather than retreat from,

efforts to improve fish passage at dams and protection of aquatic ecosystems. H.R.

2335 proposes changes to the FPA that will diminish our ability to protect anadromous fish by providing passage at dams and meet statutory mandates to ensure

the sustainability of stocks. Therefore, we strongly oppose H.R. 2335.

NOAA opposes S. 422 ‘‘Alaska State Jurisdiction Over Small Hydroelectric

Projects’’ because we believe that the fish and wildlife protection provisions of the

FPA should continue to apply to all hydropower projects, regardless of geographical

location. Applicants in Alaska can already apply for an exemption from the full licensing process for small hydropower projects and still enjoy adequate protection for

Federal resources.

NOAA opposes S. 334, ‘‘Removing FERC Jurisdiction to License Projects on Fresh

Waters in Hawaii,’’ because we are concerned that removing Hawaiian hydropower

projects from the licensing requirements of the Federal Power Act would eliminate

important resource protections that may be needed in the future. We believe that

the provisions of the Federal Power Act should continue to apply to all non-Federal

hydropower projects.

43

Thank you for the opportunity to provide testimony on these important issues. I

would be happy to respond to any questions.

Mr. BARTON. Thank you, Dr. Rosenberg. We have two pending

votes on the floor. We’ve got 10 minutes left in the first vote and

then there will be a 5-minute second vote. The chair’s going to try

to get one round of at least one member ask some questions before

we go vote, and then we’ll come back.

Congressman Towns, we’ll give you the option, if you wish, since

you have been so maligned by this distinguished group of witnesses.

They all——

Mr. TOWNS. They strongly oppose.

Mr. BARTON. Strongly oppose. And they just—I know your ego is

taking a beating. If you would like to go first to try to correct the

record so that your reputation remains intact, we’ll give you that

option. And then when we come back, we’ll give Mr. Shadegg the

opportunity if he wishes.

Mr. TOWNS. Thank you very much, Mr. Chairman.

Mr. BARTON. Five minutes.

Mr. TOWNS. I really appreciate this, because it’s strong language.

Let me just begin by asking you, Dr. Rosenberg, do you support

what’s happening now?

Mr. ROSENBERG. If you mean do we support——

Mr. TOWNS. I want to find out what you’re supporting. You

strongly oppose change.

Mr. ROSENBERG. Yes. And we strongly support——

Mr. TOWNS. Do you support what’s happening now?

Mr. ROSENBERG. We strongly support streamlining through administrative process, yes. If you mean do we support the current

licensing process, we think that a lot of things need to be fixed, but

we do not believe that that needs to be done legislatively. It can

be done administratively, and we’re working toward that end.

Mr. TOWNS. How long has the task force been in existence?

Mr. ROSENBERG. It’s a year and a half? Two years? Two years,

I believe, sir.

Mr. TOWNS. What have you accomplished up to this point?

Mr. ROSENBERG. There has been work in several areas including

so-called ex partite rules, the rules that constrain discussion between the parties outside of a legal setting, the overall communication and licensing process. There’s been discussion on economics.

There’s a fourth area which——

Mr. TOWNS. Would the commissioner agree with that? You know,

let me—this is a very serious issue. I mean, and I’m hoping you

realize, you know, how serious it is. Any time you have a situation

where people do not know how many lawyers they will need, how

much money they will have to spend, or what year they will ever

be relicensed, I mean—I mean, to me, that’s a very serious issue.

And I think that to form a task force is one thing, but the question

in my mind is what are you going to accomplish with this task

force?

Mr. ROSENBERG. Well, one of the main focal areas, Congressman,

for the task force has been development of a collaborative process

for working through licensing issues with the applicants. It certainly is true that this is a complicated process, but these license

44

are issued for a very long period of time and cover a very wide

range of issues as well as trust resources. So through that collaborative process, we believe that there can be much greater certainty

in the licensing activity. We do not believe that that would occur

through some of the legislative changes proposed. I certainly don’t

think I’ve done any damage to your reputation or anyone else’s by

making that statement.

Mr. BARTON. We’re just kidding about the reputation. Don’t take

us seriously on that.

You cannot damage a Congressman’s reputation.

Mr. TOWNS. Especially if that Congressman is from New York.

Yes, Commissioner?

Mr. HE

 ́

BERT. If I may, you had asked the commission, but what

I’d rather do is yield to the chairman first and then answer after

him unless he would like for me to go ahead.

Mr. HOECKER. No. Thank you, Commissioner. Do we agree that

the task force and the advisory committee can be productive? Absolutely. The FERC was instrumental in asking for this process. We

intend to help drive the process. And we are looking for some very

specific results in terms of collaboration, in terms of how we apply

the NEPA statute, in terms of what best practices we can adopt to

expedite the development of conditions, noticing techniques, even

model conditions under the Clean Water Act. A number of things

have been talked about.

But you’re absolutely right, Congressman, that your patience in

regard—and ours—shouldn’t be infinite. And at some point we

need to produce some very specific results. I think that the collaborative process is assisted by the attention that this subcommittee

has focused on this entire range of issues. And so I certainly applaud your efforts to shine that light.

Mr. TOWNS. Thank you. Commissioner.

Mr. HE

 ́

BERT. Congressman Towns, you and I had an opportunity

to speak together at a conference about a year ago and had the opportunity to speak about a couple of issues. And at that time I told

you I did agree with you and I thought that the process was broken. I continue to think that way, and I do support 2335, and let

me tell you quickly why I support it and why I think it moves us

in the right direction.

Your comments in the beginning, your summary as to that it

does not repeal mandatory conditioning, I think that’s an important observation. I think it’s something that everyone needs to understand, that it does not repeal mandatory conditioning, but that

it requires a reasonable implementation of the law with regard to

costs and benefits.

That is something similar to, I think, what we have certainly

done when it comes to pipeline certification. And as you know,

FERC has combined its offices of pipeline certification and hydro

licensing into an office of projects now, so an office of one. So I certainly think that would be consistent. It would move us in the right

direction.

But if I may point something out, too, which really alarms

me——

Mr. BARTON. Point it out quickly, because we’ve got 5 minutes

to vote.

45

Mr. HE

 ́

BERT. I’ll do that, Mr. Chairman. I’ve had an opportunity

to look over the written testimony of Andrew Fahlund, Director of

Hydropower Programs for American Rivers, and in his testimony

on page three he says, ‘‘these decisions have a relatively small impact on energy generation, electric rates, or industry viability.’’ And

if you go over to page six where he qualifies that, ‘‘according to the

chair of the Federal Energy Regulatory Commission, the relicensing of more than 140 hydropower projects resulted in an average reduction of generation of only 1 percent.’’ Well, only 1 percent

in a time where we not only have the administration but we certainly have Members of Congress concerned about reliability this

summer, I’m asking who’s going to lose that 1 percent?

And the Internet is a wonderful thing, and I had an opportunity

to pull up some numbers this morning, and based on the 1 percent,

I assume we should make a phone call to Idaho, Montana and Wyoming and tell them that over the years, they’re not going to have

their 1 percent. And if we’re not willing to do that, what I suggest

we do is make a phone call and say, well, perhaps you’re going to

have electricity, but we are going to have to burn something for

you to have that electricity.

And the last point is this. And he makes it on page 7. ‘‘One

would reasonably expect at least some loss with meeting environmental laws. A 1-percent loss in generation is a small price to pay

for the benefits received. We need not trade healthy rivers for clean

air.’’ I think that’s right. I think we need to have a balance. But

nor do I think we should trade clean air for clean rivers necessarily. I think a balance is right. I think Congressman Markey

said it right, not torpedo the dams, but not damn the environment.

I think a balance of the laws in relicensing is what is necessary,

and I think we can do that, and I don’t see how anyone could suggest that balancing is a bad idea.

Mr. BARTON. Let the record show I think that gentleman’s from

Mississippi, so his one more comment took about 3 minutes.

Mr. HE

 ́

BERT. We talk slower than the rest of you.

Mr. BARTON. We’re going to recess briefly. We’ve got this vote,

one more vote. We should be back, or at least the chairman intends

to be back, by 11:30. So members that wish to ask questions, if

you’ll come back at 11:30. In recess till 11:30.

[Brief recess.]

Mr. BARTON. The subcommittee will come to order. I see we’ve

been joined by the distinguished Congressman Sawyer. Glad to

have you. As soon as we get our witnesses back at the table, we

will recognize Congressman Shadegg for his 5 minutes of questions.

And it looks like Commissioner Massey is about to be seated, so the

Chair would recognize Congressman Shadegg for 5 minutes for

questions.

Mr. SHADEGG. I thank the chairman. Let me begin with you, Dr.

Rosenberg. You were in the room when Senator Murkowski testified that as a specific project, it took 7 years to get the license and

a year to build the plant, I believe, were you not?

Mr. ROSENBERG. Yes.

Mr. SHADEGG. Do you think that that’s appropriate?

Mr. ROSENBERG. Certainly not. But I don’t know the specifics of

the case at all.

46

Mr. SHADEGG. I don’t, either. Do you—as I understand your testimony it is that you believe the statute or the process now is flawed

and does not move quickly enough but you argue that Congress

should simply defer to your efforts and the efforts of those involved

to simply allow you to proceed with this now 2-year process to try

to improve the relicensing process. Is that right?

Mr. ROSENBERG. Yes, sir.

Mr. SHADEGG. Okay. I guess I should begin by extending my welcome to John Leshy. John Leshy was a professor at ASU law school

years ago when he and I worked together on projects.

Mr. LESHY. I still am, Congressman. I’m on leave and working

on the world’s longest leave.

Mr. SHADEGG. What’s the doctrine that we worked together on?

The doctrine that provides that the government owns the beds of

all navigable——

Mr. LESHY. Oh, right. The public trust doctrine.

Mr. SHADEGG. The public trust doctrine.

Mr. LESHY. Right.

Mr. SHADEGG. We were shoulder to shoulder in that fight and

had a lot of fun. Let me ask you, Mr. Leshy, you also heard the

testimony of Senator Murkowski to the effect that it took 7 years

to license a—what was evidently a very small plant, because they

built it in a year—in Alaska. Do you feel that 7 years to license

a plant that can be built in a year is appropriate?

Mr. LESHY. No, I don’t, Congressman. And I’m happy to have the

opportunity to talk about that a little bit. I don’t know the specifics

of that case.

There are many reasons for delay. It’s part of this process. The

conditioning authority, the Interior Department and its share is—

and Forest Service’s share is one aspect of delay, but it is by no

means the only aspect. A lot of times in our experience, frankly,

the problem is that we get applications that aren’t fully developed

and don’t have enough information them.

Mr. SHADEGG. I appreciate that. My time is very limited, so if

you’ll just say what you have to say on that issue in a sentence,

and if you want to expand your answer writing that’s fine. But as

you know, my time is——

Mr. LESHY. If I could make one quick other point, and that is,

during the delay process, the existing project goes on, so the incentive of people who want to improve the project from an environmental standpoint such as our agencies is to get this process going

forward. Because the existing process continues under annual licenses during this entire period of whatever delay is involved.

Mr. SHADEGG. You do agree, Professor Leshy—I’ll call you that

if you will—that the current law requires FERC to give equal consideration to the purposes of energy conservation, the protection

and mitigation of damage to and enhancement of fish and wildlife,

the protection of recreational opportunities and the preservation of

other aspects of environmental quality. You do agree that the law

requires equal consideration be given to essentially those two different aspects?

MR. LESHY. Yes. I think that was added by the legislation that

Congressman Markey talked about.

47

Mr. SHADEGG. But you also agree, I guess I understand from

your testimony, with Dr. Rosenberg that we should not pass 2335

at this time, we should simply trust you?

Mr. LESHY. Well, the existing conditioning authority that we

have, we’ve had since 1920. And Congress did not change that in

1985, 1986 when it gave the Commission the direction to give equal

consideration.

Mr. SHADEGG. Do you know if it took—in 1920, do you know if

it took 7 years to license a project?

Mr. LESHY. I don’t know, Congressman.

Mr. SHADEGG. I guess I just want to make a statement, and then

I want to ask you a series of other questions. You are a part now

of the administrative branch of the government and not the legislative branch. Is that correct?

Mr. LESHY. Yes.

Mr. SHADEGG. I just want to make it clear that——

Mr. BARTON. He had to think about it.

Mr. SHADEGG. I just want to make it clear that we have different

responsibilities, and my concern is that the voters of the 4th Congressional District of Arizona when they see issues like this of a

law that the Congress passes and then what appears to be inordinate delay—and I haven’t heard a witness say yet that there isn’t

excessive delay—that it’s a tough sell for me to go home to Arizona

and say, yes, I recognize there’s a problem here, but I didn’t do

anything about it because the administration, the other branch of

government said, well, they were working on it and had been working on it for 2 years, and I ought to just trust them. So I hope you’ll

appreciate that I have to come at this from a different position

than you do.

I also want to just clarify from your testimony and from your

written statement that you oppose certain aspects of Mr. Towns’

legislation. Specifically you oppose requiring scientific peer review.

You oppose allowing an administrative law judge or other independent review body to be inserted in the process. You oppose requiring the Commission to conduct an economic analysis of each

section 4(e) condition, and you do not want to be required to rely

on the Commission’s NEPA statement. Is that correct?

Mr. LESHY. Basically, yes, because we’re concerned about essentially the layering and the delay that’s involved in that process.

You know, is the issue, should we take cost into account in setting

our conditions? Of course we should. but should we have an elaborate independent appellate process——

Mr. SHADEGG. I just want it on the record that you oppose all of

those. You don’t want independent scientific peer review, you don’t

want an administrative law judge or independent review, you don’t

want an economic analysis of each section or of each section 4(e)

condition, and you don’t want to rely solely on the NEPA 4(a)—the

NEPA analysis by the Commission.

If I can, Mr. Chairman, with your indulgence, I’d like to turn to

the chairman, Mr. Hoecker, and say, I assume that you agree with

the other two witnesses that 7 years to license a project which can

be built in 1 year is too long?

48

Mr. HOECKER. Yes. We don’t want the process to be any longer

than necessary. And we have worked very hard to reduce the processing time for hydro licenses.

The average time for the class of 1993, the 160-some-odd projects

whose licenses expired in that general timeframe, was about 31⁄2

years. Under our new alternative licensing procedure, the average

time in those few cases where we have actually applied it is a year.

Mr. SHADEGG. I want to make it clear that I support your efforts,

the administrative efforts to try to improve the process. But Commissioner, I want to commend you for working in I think a good

faith way with us to say, look, I applaud the goal of Congressman

Towns’ legislation, which you have done here today, and to come

in and constructively say, these are things in the legislation that

I think would help. And I heard your testimony and listened carefully to it and took notes on it. And I genuinely appreciate that

you’re not just saying, ‘‘trust us. We’ve been at this 2 years. We’ll

solve it someday.’’

I would conclude, Mr. Chairman, by commending Commissioner

He ́bert. I want to completely associate myself with your remarks,

your support of this legislation, your thoughtful analysis of the testimony that’s before us, including the analysis of the American Rivers testimony. You were pointing out that the notion that losing

only 1 percent of generation is insignificant and shouldn’t be worried about, and also associate myself with your remarks saying we

can strike a balance here. I favor environmental protection and certainly don’t diminish that.

And I think the current law where it says we must strike a balance between those is appropriate, but I also think it’s important

to understand that this is a Nation which needs more energy, and

if we don’t produce it through hydroelectric power, almost every

other source that we know of results in the combustion of a fuel

and damage to our air quality. So, I commend you for your testimony.

Mr. HE

 ́

BERT. Thank you, Congressman.

Mr. BARTON. Mr. Sawyer for 5 minutes for questions.

Mr. SAWYER. Thank you, Mr. Chairman. I apologize for not being

here earlier. I was in another meeting. And so if the matters I’m

going to ask about have been covered, please don’t hesitate to tell

me.

I’d like to have you comment, both commissioners, on the kind

of success that you’ve had in the use of settlements and whether

there are other avenues that might be pursued in order to achieve

collaborative processing.

Mr. HOECKER. I identified several projects in my written testimony where we’ve had some considerable success in advancing the

timetable for resolving licensing—relicensing cases, the latest one

being the Avista case, which was the Clark Fork Project in Montana and Idaho. A couple of very major projects, a lot of power at

those sites.

We managed to license that project in a year because we did a

tremendous amount of collaboration. The applicant selected a process, brought the consulting agencies, the other parties into the

process, and a settlement was achieved. We’ve had other instances

like that where we have achieved success.

49

It’s my expectation that this procedure, coupled with what we

will be able to achieve in the context of our task force, which hopefully will help develop licensing conditions more in the open

through public process of some kind, will make our processes less

of a mystery to all the affected parties and will encourage settlements. And that’s where we’re focused.

Within this existing statutory framework, our only choice is to

try and reach some kind of administrative accommodations, and

that’s where we’re putting our effort.

Mr. MASSEY. Congressman, to be brief, I will associate myself

with the remarks of Chairman Hoecker. I think settlement is the

key to getting the cases through the process very quickly. I think

licensees and others know that we support settlements. They’re

hard to accomplish, but I am bullish with our alternative licensing

process, that the chairman talked about, will bear substantial fruit.

I also believe that the interagency task force will bear fruit. I

wouldn’t expect Congress to wait forever, but I do believe it will ultimately result in processes and procedures that are more reasonable.

Mr. HE

 ́

BERT. Congressman Sawyer, my comments will be very

similar, and I’ll attempt to be brief as well. The only problem that

we continued to have with the collaborative process—and I do

think it’s working. I think it’s been a wonderful benefit—is Section

18. Regardless of what we try to do with the collaborative process,

if we have the mandatory conditioning requirement over our head,

there’s nothing we can do with that, and therein lies the problem.

I think the balancing should be the requirement, and I don’t

think anyone would argue that there is anything wrong with moving forward with objective criteria. I don’t think we would have imposed SOX and NOX emission requirement had we not had some

type of scientific evidence suggesting that something should be

done, nor do I suggest we should do that with hydropower as well.

And I think that is something that has to be considered.

And a comment that Dr. Rosenberg made as well, as far as the

30 to 40 years that they are strapped with these conditions or the

lack thereof in his case, I would suggest the one thing that has to

be considered as well is that the government can at any time move

forward and reopen that license. The operator cannot.

Mr. SAWYER. Thank you, Mr. Chairman. Thank you all.

Mr. BARTON. Thank you, Congressman Sawyer. Congressman

Dingell, would you wish to be recognized for questions now? Would

you like to——

Mr. DINGELL. Mr. Chairman, thank you. I’d like to address first,

if you please, with Mr.—I can’t see the name there.

Mr. HE

 ́

BERT. He ́bert.

Mr. DINGELL. He ́bert. On the question of fish and wildlife. Under

the Towns bill, you get 180 days in which to respond. Is that right?

Mr. HE

 ́

BERT. That’s correct. Yes, sir.

Mr. DINGELL. Now, and can you do that in that period of time?

Mr. HE

 ́

BERT. Yes, sir, I think we can.

Mr. DINGELL. You can? So the 180 days you’re telling me is not

a problem?

50

Mr. HE

 ́

BERT. I think if it’s a deadline, we can meet it, sir. It’s

been my experience that the only thing that forces us most of the

time to make decisions is deadlines themselves.

Mr. DINGELL. All right. Now you’ve indicated, however, that you

would recommend a veto on this legislation. Is that because—is it,

Mr. Leshy, you’ve suggested that you’d recommend——

Mr. HE

 ́

BERT. Yeah. No, sir, I would not recommend a veto. Quite

the opposite.

Mr. LESHY. That’s me, Congressman Dingell, from the Department of the Interior. We would recommend a veto of this legislation.

Mr. DINGELL. Why?

Mr. LESHY. Because we think it actually will result in more delay

and more complication—more complicated structure in this already

complicated process, and it will really be a step backwards. It won’t

serve the objective that I think we all share, including members of

this committee, which is to make this a better, faster, more efficient process.

Mr. DINGELL. Can you make the 180 day limit that is imposed

on you?

Mr. LESHY. In terms of—I’m not sure exactly which limit you’re

talking about.

Mr. DINGELL. You have 180 days in which to comment. Is that

sufficient or not?

Mr. LESHY. Oh, okay. I see. I’m sorry. I don’t think we can do

that. Certainly if——

Mr. DINGELL. Why not?

Mr. LESHY. I’m sorry?

Mr. DINGELL. Why not?

Mr. LESHY. Setting these conditions can be a very complicated

matter, and it depends in large part on what the applicant is proposing to do, which we often don’t find out until much later, and

we are—the way I understand this bill, it would require us essentially to set conditions at the very beginning of the process before

we fully understand what the impacts of the license are going to

be.

That’s why in fact we support and are important participants in

this collaborative process, because the big advantage of the collaborative process is that we sit down with the applicant and the Commission before its plans get locked in stone and it submits an application. And we can work with the applicant through the development of the application to solve a lot of these problems. And we

think that holds great promise. We have had some successes already, and there’s a lot of interest among the license applicants in

going through this process. Our agency has a lot of interest in

using that alternative process, and we think it’s going to solve a

lot of the problems the committee is concerned about.

Mr. DINGELL. Now, Mr. Rosenberg, do you have any comments

on these points that I’ve been just raising?

Mr. ROSENBERG. Yes, sir. I think that the deadline is problematic. We might be able to make a 180-day deadline if you had full

information. But we rarely do. Most of the delay in developing the

prescriptions is waiting for additional information from the appliVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 E:\HEARINGS\64033 pfrm08 PsN: 64033
51

cant, from FERC, additional analyses to be done by contractors and

so on.

If you put in the timelines as in the bill, there is no incentive

for them to complete those, because if we miss the timeline, then

the prescriptions are no longer mandatory.

So there’s no reason why they would want to be forthcoming with

information more quickly if it would downgrade the actual prescriptions if they are not forthcoming with information. That’s not a

matter of ill will, it’s just a matter of common sense.

Mr. DINGELL. You’re saying what this does is to actually discourage cooperation by the applicant?

Mr. ROSENBERG. Yes, sir. I believe it does.

Mr. BARTON. Would the gentleman yield?

Mr. DINGELL. I don’t know how much time I’ve got.

Mr. BARTON. Well, we’ll give you extra.

Mr. DINGELL. But I’ll be glad to yield——

Mr. BARTON. I think I’m pretty generous with extra time. You

could still make a determination with imperfect information. And

we do it every day in the Congress, so——

Mr. ROSENBERG. Yes, sir, we can. But those would then be mandatory prescriptions, and we would be worse off and the applicant

would be worse off, so that’s why we don’t feel that those timelines

are actually helpful either to the applicant or to us.

Mr. BARTON. But you understand that sometimes this quest for

perfect knowledge drags the process on into infinity?

Mr. ROSENBERG. Yes, sir. But I don’t believe we’re——

Mr. BARTON. So there is some validity in Mr. Towns’ idea of putting a timeline. And I know the bureaucracy hates to make decisions, but sometimes you can make a decision based on relevant information and don’t have to wait for total, complete, perfect knowledge.

Mr. ROSENBERG. Sir, in this field, we always make decisions in

that circumstance. And I believe that’s the case for fishway prescriptions as well. But having a mandatory timeline with the consequence of that being an actual downgrading of the recommendation makes this a one-way process. There really does not seem to

be any incentive at that point to engage in a full collaboration. If

you had a timeline and reversed that process, maybe in fact you

would get better cooperation, but I can’t see how it would work in

this circumstance.

Mr. DINGELL. Well, and in point of fact, the applicant would have

every incentive to run the clock——

Mr. ROSENBERG. Yes, sir.

Mr. DINGELL. [continuing] to delay delivering the information, to

deliver less than the required information. So as a result, that puts

you in greater and greater difficulty in terms of your ability to address the problem. Isn’t that right?

Mr. ROSENBERG. Yes, sir. And that’s one of the primary reasons

we oppose the bill.

Mr. DINGELL. Okay. Now I can understand that FERC would not

object to this. They’re in a different line of work. And I’ve had to

deal with FERC over the years, and I find you gentlemen to be

quite uncooperative in terms of preserving and protecting fish and

52

wildlife values, and that tends to—that was one of the reasons I

directed the question at you that I did.

Having said these things, Mr. Burns, we have been requesting

from the Department of Energy for a goodly period of time certain

answers to certain questions. We finally wrote a nasty letter to the

Secretary on Monday. Last night after close of business, we got

your responses. The questions that were asked were essential to us

achieving an understanding of the legislation so we could understand what it is that we ought to do about the legislation.

I hope that you will take back to the department that I’m very

displeased, that I feel that this was not a lack of proper cooperation, and that you have essentially slowed down the process and

made our business more difficult. I want you to know that I find

this very displeasing. I hope you’ll carry this thought from here

with you and that were I the chairman of this committee, you

would feel rather noticeably more pained on this matter than you

are this morning.

So, Mr. Chairman, I thank you for your kindness.

Mr. BARTON. Thank you. The Chair recognizes himself. I’m going

to—I have a series of questions. I’m not going to set the clock. But

after my questions or during my questions if the members here

wish to ask questions, we’ll do that, and then we’ll let this panel

go so they can have lunch.

I want to make a statement first, and then I’ll ask the questions.

This is a hearing to get information on all these bills for potential

mark-up. And I talked to Congressman Towns on the way to our

vote and told him that I’m not afraid of controversy. I’m ready to

go to mark-up if we can find a consensus that’s a bipartisan consensus. I don’t want for it to be a Republicans on one side and

Democrats on the other. But if we can get—as I told Congressman

Towns, I just want friends and enemies on both sides of the issue.

And so, you know, the fact that these bills have been languishing

tells me that if they can pass the Senate, we ought to be able to

improve them in the House and then go to conference with the Senate if we can find consensus at all.

The second statement I want to make, it looks like we’ve got two

categories of bills. We have a category of bills that tries to reform

the process, and then we have a category of bills that tries to escape the process. I can understand why no one would support the

bills that give specific exemptions from the regulatory process. I

can understand the concerns of the regulatory agencies that you

perhaps don’t approve of Congressman Towns’ approach, but it

stuns me, Mr. Leshy, that the Department of the Interior would

recommend a veto before we’ve even had a hearing.

I mean, that is a record for this subcommittee. We have had lots

of veto threats by EPA and DOE, but it’s normally after we’ve done

something, not before we’ve even thought about doing something.

So we’ll give you the record for the earliest veto threat.

I also want to commend the Department of the Interior because

at least you gave us a definite position. I mean, you didn’t kind of

waffle around. I mean, you know, we sometimes get 40 pages of

testimony that tell us nothing. At least in Interior’s case you told

us why you opposed it and up front in language that even a Texan

could understand, so I appreciate that.

53

So but now I want to get down to my questions. And this first

question is a general question. I don’t think anybody accepts that

the current system really works. I think Congressman Towns has

an excellent point when he says that it really takes an inordinate

amount of time to relicense some of these hydro projects. Surely

there are people in the administration that are thinking about

ways to improve the process. And why not adopt an approach

where you take one agency, perhaps the FERC, give them ultimate

authority and let the other agencies work with them so that they

all have jurisdictional input but you have one agency that makes

the final decision. What’s wrong with that? And I’ll let anybody answer that.

Mr. LESHY. I’m happy to take a crack at it. My written statement

addresses this to some extent. The decision that Congress made in

1920 that it has stuck by ever since is that on a couple of aspects

of hydropower licensing, namely, where Federal Reservations are

involved and where fishways are involved, there ought to be conditions set by agencies outside the Federal Power—what was then

called the Federal Power Commission—to prescribe those conditions as the sort of baseline. This is the conditions these projects

have to meet, and then you go on to the balancing that takes place

by looking at all aspects of the project. We think that decision that

Congress made then was sound, and we think it’s still necessary.

Mr. BARTON. So your basic position is in the golden era of 1920,

we had smarter congressmen, and if we’d just revert back to all

laws that were established in 1920, the country would be better

off? Is that your position?

Mr. LESHY. No. I’m not saying that, Mr. Chairman. But I’m saying in this instance we don’t think the system has proved to work

out badly in practice. That in fact it is important to retain a notion

of mandatory conditioning for those aspects of——

Mr. BARTON. Do you happen to know—I didn’t see this in any of

the testimony, so any of the witnesses can answer this question.

What’s the average time it takes to relicense a hydro project? Dr.

Rosenberg?

Mr. ROSENBERG. Thank you, Mr. Chairman. I believe that the

commissioner noted that the average time was between 3 and 5

years if I heard him note that for the recent projects, and it was

as short as 1 year in——

Mr. BARTON. For relicensing?

Mr. ROSENBERG. For relicensing, yes, sir.

Mr. BARTON. Three to 5 years.

Mr. ROSENBERG. If I may answer or contribute to the answer——

Mr. BARTON. You may answer or contribute or obfuscate. It’s up

to you, sir.

Mr. ROSENBERG. Well, I’ll try not to do the latter if that’s all

right with you. I think that the reason why you would not include

all of the decisionmaking in a single agency is because each of the

agencies has different expertise. To do that, you would have to duplicate the expertise that’s been built up in the Department of the

Interior and the Department of Commerce with regard to specific——

54

Mr. BARTON. No, I’m not saying put it all in one agency. I would

still let each agency have input, but I’d put one agency in charge

to make the final decision.

Mr. ROSENBERG. If that agency had the mandate to in fact meet

the mandates of the other agency as opposed to simply consult,

then I think you could do that. And I would argue that is exactly

what we do now, put effective decisionmaking authority. But they

have to account for our mandates as well, for very specific sections

and only those sections. So I think that’s exactly the system we

have. They are primarily responsible for relicensing. But with regard to our specific mandates, in our case, Section 18, then they

must account for the mandates that we’re required to meet.

Mr. BARTON. Let me ask the distinguished chairman of FERC, do

you think you’ve got the ultimate decision and that you’re supreme

among equals? I was not aware of that from your testimony,

but——

Mr. HOECKER. Well, it depends on which part of the Federal

Power Act you read. I mean, we have authority to ensure that

there is a comprehensive plan of development for any water resource. We are the agency that is given the responsibility to balance the competing interests. But we must include under the statute and under current case law any mandatory conditions that are

developed elsewhere.

If I might, Mr. Chairman, a small history lesson, that in the era

of 1920 to 1930, the Federal Power Commission indeed did have

absolute control over the entire process because the Secretaries of

Interior, War and Agriculture were the Federal Power Commission.

In 1930, this became a five-member body, and when the—Mr.

BARTON. Well, those guys in 1920 were smarter than us today.

When the Secretaries went off to do things other than regulate

the power market and hydroelectric projects, they took their mandatory conditioning authority with them, obviously.

I think it’s important that we at the Commission acknowledge

two things. No. 1, we have an excellent staff. We do a great job.

We have a lot of environmental expertise, and we do care about the

environment. But the resource agencies are on the ground. They

have much larger staffs. They understand these projects and their

environments as well as we do. And so it’s not the mandatory conditioning authority that I necessarily would challenge. What it is

is the opaqueness of the process for developing conditions for the

licenses; conditions that we must include in the licenses.

And what I would advocate, what we are advocating in the context of the interagency task force, is more public process so that

participants other than the resource agencies and the FERC can

have input into the scientific adequacy and the environmental and

cost justifiability, if you will, of these conditions.

Mr. BARTON. Okay. Mr. Massey? Commissioner Massey.

Mr. MASSEY. Yes, Mr. Chairman. I respect the environmental

values that underlie the mandatory conditioning process, so I

wouldn’t necessarily change that. But I think the concept that is

represented in this bill of requiring some balance in the conditions,

requiring the other agencies to take into account additional factors,

as we have to, would mean that the conditions are more balanced

when they come to our agency. And so I would support that.

55

I would also support some tightening of the timelines. Having

said that, I do believe this task force will bear fruit by the end of

the year with rational and reasonable changes. And I look forward

to that. But if the agencies were to balance more in their processes,

I believe the proposed condition as it comes to our agency would

be much more rational and reasonable.

Mr. BARTON. How much of these resource agency recommendations are based on jurisdictional and turf considerations as opposed

to public policy as we go through this interagency task force? I

mean, the testimony reeks of bureaucratic jurisdictional turf protection, quite frankly.

Mr. MASSEY. Yes, well, I can’t endorse every word of their testimony, but I do endorse the environmental values that underlie

their decisionmaking.

Mr. BARTON. We’re not—I don’t believe anybody on this subcommittee, Congressman Towns, who’s not on the subcommittee,

but the full committee, is trying to do away with the environmental

protection.

Mr. MASSEY. I understand that.

Mr. BARTON. What we’re trying to do is come up with a legislative vehicle that actually creates an executive administrative process that doesn’t take 3 to 5 years. And I guarantee you, there are

a lot of projects we’ve heard about that take a lot longer than 3

to 5 years.

Mr. MASSEY. Yes.

Mr. BARTON. So you must have some that go through in a month

and some that take 15 years, because—so that your average comes

out to that figure.

Mr. MASSEY. I respect that goal of this legislation. I think some

of the processes and procedures in the bill will be too cumbersome.

But I think a short bill that required the other agencies to balance

as we do and that tightened up the timeframes would be very reasonable and would be one that I could fully endorse.

Mr. BARTON. Okay. Let me ask three or four questions that the

staff put together, and then we’ll let this panel go.

Would the FERC support legislation to require Federal resource

agencies to consider a broad range of public interest factors as well

as costs in their development of mandatory conditions, much as

FERC is required to do under current law? FERC has concerns

about the administrative review provisions of H.R. 2335, but we

could work with the FERC to help alleviate those concerns.

Mr. HOECKER. I agree with Commissioner Massey that the resource agency should consider a range of factors. I’m not—I don’t

necessarily think the range of factors that are listed in the bill are

the appropriate ones. But certainly economic and power values,

low-cost alternatives and so forth that are mentioned there would

be appropriate.

Mr. BARTON. Should legislation require mandatory conditions attached by the Federal resource agencies to a FERC license be limited to the mitigation of project impacts?

Mr. HOECKER. I believe they are.

Mr. BARTON. Mr. Massey?

56

Mr. MASSEY. I think they should. The agencies strive for that,

but a statutory requirement to achieve that goal would not trouble

me in any way.

Mr. BARTON. Commissioner He ́bert?

Mr. HE

 ́

BERT. Yes, sir, Mr. Chairman. I would agree with that.

And what I’d like to point out to you as well is the fact that the

problem we have had is in fact the balancing. And as much as we

hear from the other agencies, the fact that they don’t want to do

away with mandatory conditioning, as Congressman Towns pointed

out, his piece of legislation does not do that. It merely requires a

balance. And we have circumstances like the Enlow Dam case that

we heard just recently where in fact NMFs wanted one thing and

then we even had the Northwest Council, Bonneville Power Association and the Bureau of Reclamation no longer advocating or suggesting removal of Enlow Dam. And continually we had to fight

that. So I think the balance is the key, and I think it will work.

And if I can make one other qualifying remark. I don’t want Congressman Dingell to think I didn’t answer his question correctly.

The 180 days that he’s speaking of is the 180 administrative days.

There are 90 days prior to that that the resource agency will have

to give those mandatory conditioning requirements to the licensee,

and then there’s the 180 days. After that, there’s a year that the

Commission has to act, with at least one 30-day extension. So

that’s 1 year and 10 months. That’s not too far afield of where we

are today, but requiring balancing. And I don’t think anyone could

suggest that that couldn’t be done.

Mr. BARTON. Okay. Dr. Rosenberg, you testified that the current

exemptions in the Federal Power Act provide adequate protections

for fish and wildlife. Would legislation that expanded current exemptions to include small hydroelectric projects in Alaska also provide adequate protection for fish and wildlife?

Mr. ROSENBERG. I think the answer to that question is no. We

believe that it’s not clear in the legislation whether the State conditions would provide the same protection for fish and wildlife as the

Federal——

Mr. BARTON. Well, it would appear to me the answer would be

yes, so why would you say it’s no? Because you’d still—you and the

other resource agencies would still have the same ability——

Mr. ROSENBERG. We only have a consultative authority in that

case, and there’s no requirement for them to consider our comments in the way the legislation is drafted.

Mr. BARTON. Well, we’re not talking about the specific Murkowski bill.

Mr. ROSENBERG. Oh, I’m sorry, sir.

Mr. BARTON. We’re talking about simply giving an exemption for

small hydroelectric projects in Alaska, but you would still have the

same ability to attach mandatory conditions, expanding the current

exemptions in the Federal Power Act.

Mr. ROSENBERG. Well, then I guess the answer is I’m not sure.

Mr. BARTON. I’m not an expert on this. This is a question I’m

reading. I want the audience to know that.

Mr. ROSENBERG. Yes. And I’m not sure, because I was thinking

about the specifics of the Murkowski bill, how that would be structured. My understanding was that the current act provides that exVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00060 Fmt 6633 Sfmt 6602 E:\HEARINGS\64033 pfrm08 PsN: 64033
57

emption for small power projects in an abbreviated process. But if

I could respond to your question in writing.

Mr. BARTON. Well, under current law in a project that is exempted, can your agency attach a mandatory condition?

Mr. ROSENBERG. Yes, I believe so.

Mr. BARTON. So I think you can, too. So it would seem like this

question that I’ve probably garbled in asking you, if we could get

where great minds understand the details, we might actually agree

on the answer to this.

Mr. ROSENBERG. I think so. But the question I’d like to look into

a little more is whether that’s already a provision that does not require additional legislation.

Mr. BARTON. Right. I understand that. And Mr. Burns, you’ve

been so quiet, we can’t let you go without answering one question.

Mr. BURNS. That would be okay, but——

Mr. BARTON. There are some of your customers that want to

limit Bonneville’s authority to new contracts to 5-year terms. What

impact would that have on Bonneville’s financial stability?

Mr. BURNS. Well, there’s a couple of reasons why we believe it’s

the best thing to proceed with contracts up to a 10-year term. One

is it provides financial stability. Typically in the past, we’ve had

the situation where every 5 years, 2, 3, and most recently 5 years,

all of our contracts expire at a single point in time. That puts us

under a lot of pressure to renegotiate those deals, and the uncertainty of market changes, prices rising and falling relative to our

cost, and what our revenue stream is going to be like.

So having a split among customers signing 3, 5, 7, 10 years will

help to mitigate that uncertainty we face.

Mr. BARTON. Final question unless Congressman Towns has a

wrap-up question. Mr. Leshy, your statement was the most militant—or your agency statement was the most militant of the ones

we received. Does that mean that you are not interested in working

with the subcommittee to develop compromises, or are you willing

to engage in a collaborative process?

Mr. LESHY. Mr. Chairman, we’re happy to work with the subcommittee on this. I should note that—and Congressman Towns

earlier raised—asked an important question and a useful question,

which is, okay, we’ve seen all this interagency activity going on to

try to improve this process. When are we going to see results?

And I think—my answer to that is, you’re already seeing some

results, and you’re going to see many more results in the next few

months. This interagency task force, we put a deadline on it of

completing its work by the end of the year. We have about 6 or 7

initiatives underway. There are two I’m happy to share the results

of with the committee—subcommittee in writing. Immediately in

the next couple of months we’ll have two more initiatives out in

public I’m happy to share with you.

So we are moving forward. We’re going to show this subcommittee results in terms of that process, and I’m happy to work

with you on that.

Mr. BARTON. Well, our deadline’s a little bit sooner. It’s called

the first Tuesday in November, and we’ll actually adjourn in probably the third week in October if not sooner. And as I said before

I asked questions, I would really like to see this subcommittee

58

move some of these bills to full committee if we can get some support from the administrations and from a bipartisan group of congressmen.

So we’re going to help your task force as much as we can.

Congressman Towns and then Congressman Shadegg, if you’ve

got a wrap-up question before we let this panel go.

Mr. TOWNS. Let me just say, Mr. Chairman, I’m willing to work

with you to try to put together that bipartisan effort that you so

eloquently described. And let me just say what my problem really

is. You know, you mentioned the word ‘‘task force.’’ You know, I’m

not impressed with that word; not when it comes to the U.S. Congress after being around here close to all these—18 years, I’m not

impressed with the word ‘‘task force.’’ Because task force around

here means, you know, shut up, be quiet, because we’re not going

to do anything about it. That’s what it means.

And the other word that, you know, the ‘‘reform.’’ Those are two

words that, you know, I really don’t feel too comfortable with the

two of them. You know, when you say, you know, ‘‘reform’’ and

‘‘task force,’’ I want to let you know that I’m not impressed with

that for a lot of reasons. You know, when you say ‘‘reform,’’ you

know, the question is what are you going to do? You know, I

mean—and reformers can be either positive or negative. You know,

task force can—and you can do absolutely nothing.

You know, just the fact that you keep saying you have a task

force. And every time we start to move forward with legislation,

you have a bigger task force.

You know, and I’m concerned about that. You know, those words

are like my dad used to tell my brother and I about prayer. He

said, ‘‘Son, prayer is neither positive or negative. It’s just if somebody asks and say they’re going to pray for you, try to find out

what they’re going to say.’’

They might pray that you break your neck, you know.

So I just want to let you know that ‘‘reform’’ and ‘‘task force,’’ you

know, ‘‘reform’’ around here means cut the budget, you know what

I mean, you know? So these are words that, you know, I must

admit that doesn’t hit me well. So I’m concerned, you know, about

the fact that there has not been any movement.

And, Mr. Chairman, I’m hoping that we can put together a—and

we can have some dialog as we move along, you know. But I think,

Mr. Leshy, that those are strong terms. But I think we should talk

about some aspects of it. But the point is, I think that we cannot

continue to just sit and do nothing, you know. I think that that—

we can’t afford the luxury of that. And I’m hoping that, you know,

at some point we can discuss this further. But, Mr. Chairman, I

hope that we can move it forward, you know. I will work very hard

on my side of the aisle to try and get support for it, and I think

once you explain it and I think the way you explain it is important.

And I’m going to say this and I’m going to shut up. You see, I

think the way you explain it is very, very important, too. You

know, I remember years ago in Niagara Falls, New York, where

they were changing the insurance policy, and everybody was signed

up but one man. He flatly refused to sign, so they couldn’t move

it forward because this guy had been with the company like 30

years and he wanted to make certain he was a part of it. So the

59

foreman came by and asked him to sign it and he said, ‘‘No. I’m

not signing it.’’ And ‘‘No. Forget it. Get out. I’m not signing it.’’ The

supervisor—‘‘I’m not signing.’’ Then they took him to the general

manager of the entire plant, and he said, ‘‘Look,’’ he says, ‘‘we’re

moving to a new plant. Here’s the application. If you do not sign

it, you’re fired.’’ So he signed it. And he said, ‘‘Well, why did you

put us through all this?’’ He said ‘‘Nobody never explained it to me

like that before.’’

So we want to explain it to you right. You know, we’re going to

do something here. You know, I just want to explain it. Mr. Chairman, thank you very much for allowing me to have extra time. You

can see I’m a little frustrated.

Mr. BARTON. Yes, well. For the last word before this panel is released, Congressman Shadegg.

Mr. SHADEGG. Mr. Chairman, I’ll be very brief. First of all, I

guess I have to be hypertechnical because, as Mr. Leshy knows, I

used to do election law, and it’s not technically the first Tuesday

in November, it’s the first Tuesday after the first Monday in November.

Mr. BARTON. All right.

Mr. SHADEGG. But I do want to make that——

Mr. BARTON. Hydro Man is also Election Expert Man.

Mr. SHADEGG. That’s right. I do want to highlight the importance

of that, because I think that highlights the fact that we are in different branches of the government, and I think there has to be a

healthy respect for those two branches of the government. That

people affected by what you do in the executive branch, what FERC

does, have a right to appeal to you for a relief, and I commend

them for doing that, and I commend you for putting together the

task force and for doing what you’re doing. And if you’ve reached

conclusion on two issues and believe you’ll have conclusion on two

others soon, I commend you for that. And I’m anxious to look at

your work product.

But the Constitution sets up three co-equal branches of government. We have our job. And I strongly concur, Mr. Chairman, with

you, that it is a part of our duty to move forward with legislation.

The fact that these problems exist, the fact that some people believe that serious reforms are needed, reforms beyond which the

administration could itself enact are needed, suggest that we have

a duty to move forward legislatively. And so I am encouraged that

this is bipartisan legislation. I am anxious to hear the input of the

administration and its representatives and everyone affected—

those who operate dams, those who are affected by dams, those

who regulate dams. And each of those was ‘‘dams.’’

Mr. BARTON. I understand.

Mr. SHADEGG. But I commend the chairman for this, and I’m

anxious to work forward in moving legislation—work with him in

moving legislation forward.

Mr. BARTON. All right. We want to thank the panel. We’ll have

written questions for the record. We appreciate your willingness to

testify, and we look forward to working with you. So if Panel II

would excuse itself, we’ll now call forward Panel III.

60

All right. If we could get everybody up. And we also want, if our

Department of Agriculture witness is still in the room, we’d like for

him to come forward.

All right. Let’s see here. See if we—we’ll do a roll call. We have

Mr. Michael Murphy, who’s with the National Hydropower Association.

Mr. MURPHY. Good afternoon, Mr. Chairman.

Mr. BARTON. We have Mr. Kevin Lynch, who is with PacifiCorp.

Is that correct, sir? We have Mr. Andrew Fahlund.

Mr. FAHLUND. Fahlund.

Mr. BARTON. Fahlund, who is with Hydropower Programs for

American Rivers. We have Mr. Robert Grimm, who is the president

of Alaska Power & Telephone. We don’t show that Mr. Piper is

here. Oh, he is here. He’s standing up. He’s the chief executive officer of the Pacific Northwest Generating Coop. Mr. Steve

Waddington?

Mr. WADDINGTON. Yes, sir.

Mr. BARTON. Who’s with Reynolds Metals Company. Ms. Lynn

Kennedy, who is a hydroelectric specialist on behalf of the Western

Governors’ Association, and Mr. Paul Brouha, who is the associate

deputy chief of the Forest Service of the U.S. Department of Agriculture. So we’ve got everybody here, and we have a young lady

with Mr. Brouha. What’s her name, sir?

Mr. BROUHA. Her name is Mona Janopaul. She is our national

hydropower program manager.

Mr. BARTON. Okay. And I think we knew that she was—no we

didn’t? How did I know? I knew that. Ah, I read the testimony,

that’s how I knew. I read it this morning. All right. We’re going to

start with Mr. Murphy, give each of you gentlemen 5 minutes to

summarize your statements, and then we’ll have questions for the

record. All statements are in the record in their entirety, so. Mr.

Murphy, welcome to the subcommittee, and you’re recognized for 5

minutes.

STATEMENTS OF MICHAEL A. MURPHY, PRESIDENT, NATIONAL HYDROPOWER ASSOCIATION; KEVIN A. LYNCH, DIRECTOR OF GOVERNMENT AFFAIRS, PACIFICORP; ANDREW

FAHLUND, POLICY DIRECTOR FOR HYDROPOWER PROGRAMS, AMERICAN RIVERS; ROBERT S. GRIMM, PRESIDENT,

ALASKA POWER & TELEPHONE COMPANY; DAVE E. PIPER,

CHIEF EXECUTIVE OFFICER, PACIFIC NORTHWEST GENERATING COOPERATIVE; STEVE WADDINGTON, NORTHWEST

POWER MANAGER, REYNOLDS METALS COMPANY; LYNNE

KENNEDY, OREGON DEPARTMENT OF ENVIRONMENTAL

QUALITY; AND PAUL BROUHA, ASSOCIATE DEPUTY CHIEF,

FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE

Mr. MURPHY. Good afternoon, Mr. Chairman and members of the

committee. My name is Michael Murphy. I am a founder and principal of E/PRO Engineering & Environmental Consulting based in

Augusta, Maine. I appear before you today as President of the National Hydropower Association. I’d like to thank you for holding today’s hearing. I also want to commend Congressman Towns for his

hard work and leadership on H.R. 2335, and I greatly appreciate

this opportunity to appear.

61

Before becoming president of NHA, and before I founded E/PRO,

I worked for Central Maine Power in Maine and Green Mountain

Power Corporation in Vermont. Since 1988 I have worked on environmental issues related to hydropower, and more importantly, I

have been directly involved in the relicensing of dozens of hydroelectric projects.

It is from that experience that I can sit before you today and tell

you that FERC’s hydro relicensing process is in major need of repair. What’s more, the time to repair that process is now.

Here are the facts. Within the next 15 years over two-thirds of

the nonFederal hydro capacity must go through the relicensing

process. Electricity consumption in America is increasing. The electric power industry is in the midst of a monumental restructuring

that will lead to customer choice and competition, and in some

places, as where I’m from in Maine, it already exists.

Our Nation faces rising energy prices. The need to reduce greenhouse gases and other air pollutants is greater than ever. Since the

last committee hearing on relicensing, we have seen again and

again cases where the process simply does not work. In the midst

of all of this, for the first time DOE’s Energy Information Administration is saying that hydropower capacity will decline through

2020, and I quote, ‘‘as regulatory actions limit capacity at existing

sites.’’ The relicensing process is in need of repair for many reasons. And I can assure you the hydropower industry isn’t the only

stakeholder who believes this. NHA, along with its partners at the

Edison Electric Institute and the American Public Power Association, are members of WaterPower: the Clean Energy Coalition.

WaterPower’s membership consists of over 575 entities from all

over the Nation, including hydro producers and suppliers, but more

importantly, it includes environmental, labor, agricultural, recreational and consumer groups. WaterPower’s message is clear:

Congress must act now.

Let me briefly tell you what is wrong with the process. Federal

agencies are allowed to set conditions on license without regard to

their effects on project economics, energy benefits and values protected by other statutes or regulations, including other environmental benefits. Many times we have agencies fighting agencies

and issuing inconsistent demands. All too often, conditions are

placed on a license that have nothing to do with project impacts,

merely because the licensee is a deep pocket. Hydropower licenses

have no recourse to appeal or even question the basis of mandatory

conditions set by the agencies except through a costly process we

know as litigation.

The end result is a loss of operational flexibility and generation

capacity which on average is not a negative 1 percent, but on average is a negative 8 percent.

The Towns bill, which enjoys broad, bipartisan support, is a moderate approach to reforming the process. It does not repeal mandatory conditioning authority nor does it attempt to undermine any

environmental laws or diminish the power of the agencies to protect the environment. It does assign a new level of responsibility

and accountability to the agencies with conditioning authority and

requires agency conditions to reflect sound scientific evidence. It

will bring a new discipline to the process, will prevent time-conVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00065 Fmt 6633 Sfmt 6602 E:\HEARINGS\64033 pfrm08 PsN: 64033
62

1 Please see attached NHA policy papers on hydropower facts and benefits.

suming and costly litigation, and will bring a general balance and

efficiency to the relicensing process.

Let me tell you what has changed since ECPA was passed in

1986. First, a nonpartisan governmental statistical agency has projected a decline in hydropower generation due to regulatory actions.

Second, as you shall hear in a moment, and with the written documentation I am providing today, we have many new cases showing

how the process fails both industry and the environment.

Third, over 575 organizations across the country have told Congress it’s time to improve the process. And fourth and most important, the hydro industry has modified its approach to resolving this

problem and has embraced the moderate framework of Congressman Towns’ bill.

In closing, let me state that the hydropower industry takes very

seriously its role in promoting environmental stewardship of the

rivers and lands we are so privileged to use. One of the reasons I

enjoy working in this industry and why I’m so involved with the

National Hydropower Association is I truly believe that supporting

hydropower—an emissions-free, domestic, reliable, renewable and

clean source of energy—is the right thing to do not only for our

consumers but for our environment. By responsibly reforming the

hydro relicensing process, we have an excellent opportunity to preserve the Nation’s leading renewable resource and to protect the

environment. But we need your help to do it, and without your action on reform legislation, it is safe to say hydropower could be facing a crisis in the not-too-distant future.

Thank you again.

[The prepared statement of Michael A. Murphy follows:]

PREPARED STATEMENT OF MICHAEL A. MURPHY, PRESIDENT, NATIONAL HYDROPOWER

ASSOCIATION

INTRODUCTION

Good morning, Mr. Chairman and members of the Committee. My name is Michael A. Murphy, and I am founder and a principal of E/PRO Engineering & Environmental Consulting, based in Augusta, ME. I appear before you today as President of the National Hydropower Association.

NHA is the national trade association committed exclusively to representing the

interests of the hydroelectric power industry. Our members represent 61% of domestic, non-federal hydroelectric capacity and nearly 80,000 megawatts overall. Its

membership consists of more than 140 companies including public utilities, investor

owned utilities, independent power producers, equipment manufacturers, engineers

and consultants. NHA seeks to secure hydropower’s place as an emissions-free, renewable and reliable energy source 1 which serves the nation’s environmental and

energy policy objectives.

I’d like to thank Chairman Barton for holding today’s hearing. I also want to commend Congressman Towns for his hard work and leadership on H.R. 2335. And, I

greatly appreciate the opportunity to appear before the Committee today to share

with you the hydropower industry’s views on the relicensing process, give some examples of how things have changed since the Committee’s last hydro hearing, as

well as to urge your broad support for Congressman Towns’ bill.

Before becoming president of NHA, and before I founded E/PRO, I worked for

Central Maine Power and Green Mountain Power Corporation. Since 1988, I have

worked on environmental issues related to hydropower and, more importantly, I

have been directly involved in the relicensing of dozens of hydropower projects. It

is from that experience that I can sit before you today and tell you that FERC’s

hydro relicensing process is in major need of repair. What’s more, the time to repair

the process is now.

63

2Please see attached NHA policy paper on electric industry restructuring.

WHY WE MUST ACT NOW

Here are the facts: Within the next 15 years, over two-thirds of non-federal hydro

capacity must go through the relicensing process. Electricity consumption in America is increasing. The electric power industry is in the midst of a monumental restructuring 2 that will lead to customer choice and competition. Our nation faces rising energy prices. The need to reduce greenhouse gases and other air pollutants is

greater than ever. Since the last Committee hearing on relicensing, we have seen

again and again, cases where the process simply does not work. And in the midst

of all this, for the first time, DOE’s Energy Information Administration is saying

that hydropower capacity will decline through 2020 ‘‘as regulatory actions limit capacity at existing sites.’’

WHY THE RELICENSING PROCESS NEEDS TO BE REPAIRED

The relicensing process is in need of repair for many reasons—and I can assure

you, the hydropower industry isn’t the only stakeholder who believes this. NHA,

along with its partners at the Edison Electric Institute and the American Public

Power Association, are members of WaterPower: the Clean Energy Coalition.

WaterPower’s membership consists of over 575 entities from all over the nation, including hydro producers and suppliers, as well as environmental, labor, agricultural,

recreational and consumer groups. WaterPower’s message is clear: Congress must

act now to improve the FERC hydro relicensing process if we are to preserve the

future viability of hydropower.

So what is wrong with the relicensing process? Let me briefly tell you.

A multitude of statutes, regulations, agency policies and court decisions has made

the process time-consuming, costly, contentious and generally frustrating for all. A

typical hydro project can take from eight to 10 years to weave its way through the

relicensing process—some have taken more than 20 years—and cost up to a million

dollars a year. In comparison, gas fired plants which emit large amounts of CO2

can be sited and licensed in as little as 18 months.

Federal agencies are allowed to set conditions on licenses without regard to their

effects on project economics, energy benefits and values protected by other statutes

or regulations. Many times, we have agencies fighting agencies and issuing inconsistent demands. All too often, conditions are placed on a license that have nothing

to do with project impacts. Hydropower licensees have no recourse to appeal, or even

question, the basis of mandatory conditions set by the agencies, except through litigation. The end result is the loss of operational flexibility and generation capacity—

on average 8%—possibly putting system reliability at risk and certainly resulting

in the loss of clean, renewable power.

But there are other relicensing problems as important as the ones I just mentioned. Often we find that relicensing can lead to conflicting resource management

goals between federal agencies, different objectives in managing resources between

the state and federal agencies, species versus species conflicts and dealing with

broader quality of life issues, such as recreation, air quality and regional economics.

It’s not as simple as power values versus fish values as some may believe.

Today you will hear from PacifiCorp, an NHA member company. They are here

to share with you the details of the attempted relicensing of their North Umpqua

project in Oregon. Their case illustrates how the relicensing process can break

down, even when the parties try to use the collaborative process.

However, I can assure you they are not the only ones who have faced very difficult

and troubling relicensing experiences. As NHA President, I have heard time and

time again of relicensing efforts that unraveled with no clear benefit to the environment and where everyone goes to court to resolve matters. Below you will find several cases that point to the excessive length of the relicensing process, agencies inappropriately applying their authorities, judicial calls for legislative improvements,

conditions making projects uneconomic, insufficient impact analysis and the overall

duplicative and arbitrary nature of the process. I urge you take a very close look

at these cases as you consider moving forward on this important issue.

WHAT’S WRONG WITH THE HYDROPOWER LICENSING PROCESS? REAL-LIFE EXAMPLES

Two-thirds of all federally-regulated hydroelectric capacity—284 projects in 39

states, representing 28,917 megawatts of electricity generation—is due to be relicensed by FERC in the next fifteen years. An inefficient licensing process that is

time-consuming, arbitrary, and costly places all of these projects, and the future of

hydropower as a clean, renewable energy source, at risk. The following examples,

64

taken from hydro projects around the nation, illustrate some of the many problems

associated with the current hydropower licensing process.

Arbitrary and Unilateral Exercise of Mandatory Conditioning Authority

On February 23, 2000 FERC rescinded a license previously issued for the 4.1 MW

Enloe Dam Project in Okanagan County, Washington. Although FERC was in the

process of engaging all parties in addressing fish passage issues at the dam, the National Marine Fisheries Service (NMFS) challenged that process as encroaching its

unilateral conditioning authority under Section 18 of the Federal Power Act. NMFS

insisted on imposing a fish passage requirement in the project license despite i) opposition to such passage by the Washington Department of Fish and Wildlife, the

Okanagan Indian Nation, and the Canadian government; and ii) the desire of the

Congressionally authorized Northwest Power Planning Council to assign financial

responsibility for fish passage at Enloe Dam to regional entities.

NMFS had stated that its preferred position in the proceeding was license denial

and dam removal. By insisting on fish passage as a condition of the license and at

the licensee’s expense, NMFS not only acted, in the words of FERC Commissioner

Massey, ‘‘out of sync with regional planning,’’ but ultimately prevailed in gaining

denial of the license application. As FERC Commissioner He ́bert explained in his

concurring opinion:

‘‘Unfortunately, the Commission’s hope that this protracted dispute could result in a mutually-acceptable agreement has been undermined by the recalcitrance of a single agency . . . In today’s order, the Commission states that it no

longer has the discretion to continue to resist NMFS’ overtures...

One party, carrying mandatory conditioning authority, and focusing myopically on its own particular interest, can upset the collaborative process if so inclined. To a party opposing licensing, stalemate may mean victory for one party

and defeat to the rest of America’’

I view this process, where some participants, bearing veto power, have more

negotiating authority than others, if indeed inclined to negotiate at all, as absurd. As a result, I am encouraged by pending legislative efforts to rationalize

this process, by requiring a greater level of cooperation among federal and state

resource agencies. Such reform would benefit consumers by forcing all parties

to the table in an effort to resolve such disputes in a fashion that is best suited

for the benefit of all Americans.’’

Arbitrary Nature of Process/Inappropriate Application of Agency Authorities

PacifiCorp is currently seeking a new FERC license for its eight-dam, 185 MW

North Umpqua project in Douglas County, Oregon. PacifiCorp initiated the process

in 1992 and went far beyond the normal requirements for public involvement and

science collection in the hope that the North Umpqua licensing process would become a model of how a utility could work collaboratively with all stakeholders.

After submitting its relicense application in 1995, PacifiCorp initiated the North

Umpqua cooperative Watershed Analysis to identify and address specific resource

concerns that emerged during the relicensing process. The watershed analysis was

the first-of-its-kind for a hydro project and involved PacifiCorp, federal and state resource agencies, academic institutions and interested members of the public.

PacifiCorp and other interested parties then entered detailed settlement discussions

in 1997.

After two years of discussions, yielding little consensus, the U.S. Forest Service

(USFS) insisted—without providing an adequate scientific explanation—that Soda

Springs Dam (one of the eight dams on the project) be removed as a condition of

settlement to meet objectives contained in the President’s Forest Plan. This, despite

the fact that removal of Soda Springs Dam would put the viability of the entire

project at serious risk, from both an operational and economic standpoint, and despite there being other mitigation alternatives available. This also represents the

first time that the Forest Service has indicated it intends to use its 4 (e) conditioning authorities under the Federal Power Act to require a dam removal. This

would create a broad, adverse precedent for other hydroelectric projects in the West

located wholly or in part on Forest Service lands.

PacifiCorp had recently agreed to remove its Condit Dam in south central Washington because compelling reasons existed. By contrast, no compelling reason exists

for removal of Soda Springs. Citing an unreasonable bargaining position by USFS,

and concerns over the precedential nature of the removal requirement, PacifiCorp

walked away from settlement negotiations in November, 1999.

Despite its withdrawal from the settlement discussions, PacifiCorp remains committed to achieving a settlement that balances the need to mitigate for project impacts and the need for cost-effective renewable resources. FERC has since anVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00068 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
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nounced that it will restart the traditional licensing process—which had been on

hold while the parties pursued settlement talks.

The most recent news though is that North Umpqua may yet have a happy ending: the Forest Service has now indicated it does not have an official policy of using

4(e) to compel dam removal and that it did not intend to create such a policy via

the North Umpqua settlement talks.

In fact, the agency recently indicated it is willing to return to the settlement table

to see whether a mutually-acceptable resolution for relicensing this project can be

achieved. It also is saying that dam removal will not be a precondition to a return

to the table.

PacifiCorp would like to return to the talks because they still believe that settlement and collaboration is a good approach to resolving the tough issues that will

arise in any relicensing. However, this is not to say the licensing process doesn’t need

fixing—it does. In fact, PacifiCorp believes that settlement processes would work

much better if there is more accountability built into the process throughout.

Excessive Length of Process/Judicial Call for Legislative Improvements

In March, 1997, the Eugene Water & Electric Board (EWEB) received a new

FERC license for two projects (23.2 MW combined) on the McKenzie River in Oregon. In the license, FERC incorporated certain fishery conditions prescribed by federal resource agencies under Section 18 of the Federal Power Act (FPA)—at a cost

to EWEB of $14,000,000—but rejected several conditions because they did not meet

the requirements of the FPA for ‘‘fishway prescriptions.’’

Despite the $14,000,000 of project improvements, several interest groups and

agencies requested an administrative rehearing of the license before FERC; upon denial of the requests, the parties challenged the license before the U.S. Court of Appeals for the Ninth Circuit. Among other claims, the parties contended the FPA does

not authorize FERC to refuse to accept any condition prescribed under Section 18.

In other words, the parties asked the court to rule that the resource agencies had

absolute power to dictate license conditions under the FPA whether they met the

intent of the FPA for a fishway prescription or not.

In its August, 1999 decision, the court did just that—concluding the FPA denied

FERC the authority to modify, reject, or reclassify prescriptions submitted by resource agencies under Section 18, even while noting FERC’s observation that the

resource agencies ‘‘do not concern themselves with the delicate economic versus environmental balancing required in every license.’’ The court went on to acknowledge

Congressional ‘‘failure’’ to require agencies to develop improved ‘‘regulations, procedures or standards for implementing Section 18.’’ The court noted that, absent Congressional action, the court was powerless to rewrite the statute. ‘‘Our task,’’ the

opinion stated, ‘‘is to apply the statute’s text, not to improve upon it.’’ The court’s

decision means that currently only a federal court of appeals has the authority to

determine whether a fishery condition offered by a federal resource agency and required to be included in a license meets the requirements for a ‘‘fishway prescription’’ under the FPA.

With its hands thus tied, the court’s decision will mean a remand of the license

back to FERC to be re-written once the appeal is completed—8 years after EWEB

first submitted its license application; with only the Ninth Circuit then having the

authority to decide whether any condition prescribed by a resource agency meets the

FPA requirements for ‘‘fishway prescriptions.’’

Conditions Making Project Uneconomic/Arbitrary Nature of Process/Insufficient Impact Analysis

In 1996, during the relicensing of the Edwards Dam near Augusta, Maine, the US

Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service

(NMFS) prescribed a fishway system on the dam to safeguard a few species of fish.

The fishery agencies estimated this fishway system would cost approximately $9

million dollars while the licensee estimated the cost at $12 million—both of these

estimates effectively rendered the project uneconomic. Lacking the authority to

amend the prescription or otherwise balance it against the energy or other resource

values of the project, FERC instead ordered the removal of the dam in November

1997.

During the relicensing process, the USFWS and NMFS also recommended that

flows of 4,500 cubic feet per second be released annually in July into a deep hole

below the dam they determined was a spawning and nursery habitat for the Atlantic sturgeon. This flow recommendation had severe economic implications on the

project since it would force the project to forgo power generation completely in July

most years. This deep hole was located just below the area where the dam was

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eventually breached and this once-important spawning and nursery habitat is now

assumed to be filled with rubble.

The US Department of Interior and segments of the environmental community

have hailed FERC’s decision as a means of restoring a 17-mile stretch of the Kennebec River to its ‘‘natural condition’’. Moreover, certain environmental groups are

now claiming that the simple act of removing the dam has successfully restored this

section of the river yet no comprehensive studies are being planned to actually

measure the success of this dam removal on the restoration of the river ecosystem.

Arbitrary Nature/Excessive Length of Process

In an ongoing relicensing of a 35.5 MW facility in New York State, arbitrary fishway prescriptions have been proposed by the USFWS, at a cost of over $2 million. Why arbitrary?

• The blueback herring, the primary species on which the prescriptions were premised, is not native to the river where the project is situated. • With an 80-foot waterfall blocking upstream fish passage, there would be no migration without the man-made lock system adjacent to the project. • The project (and other hydro facilities on the river) have operated without

fishways for several decades—and during that time the fish population has

grown to over 100 million annually.

Pre-filing consultation started on this project in 1986, and a final license order

still has not been issued. If the fishway prescription is included in the license along

with other resource protection measures, the project would become economically

unviable.

Arbitrary Nature of Process/FERC Approval of Inappropriate Conditions

In a recent relicensing of a Western project, the U.S. Forest Service imposed numerous conditions, including one that required the project owner to annually send

the Forest Service a set payment, expected to cover all operation and maintenance

costs associated with existing campgrounds in the project vicinity. The owner pursued an administrative appeal of this condition at the Forest Service, arguing that

the Forest Service failed to demonstrate that most of the campgrounds’ use was related to the project. Furthermore, the Forest Service did not attempt to justify the

amount of the annual payment for the operation and maintenance costs it sought

from the licensee.

Nonetheless, FERC included the condition in the project license, concluding that

it lacked the authority to even consider if a relationship between the condition and

the project justified the Forest Service condition. Similarly, FERC was unable to reject an instream flow release imposed upon the project by the Bureau of Land Management, even though FERC summarily dismissed as inappropriate and unsupported the same exact amount of instream flow release recommended by the California Department of Fish and Game.

After FERC issued the new license for the project, containing the contested condition, the owner challenged the condition at FERC and took the case before the U.S.

Court of Appeals. Just prior to the case being heard and five years after the first

of the two administrative appeals were filed with the Forest Service, the Forest

Service decided that the operation and maintenance costs were indeed inappropriate

and accepted an owner-proposed method for reimbursement of only those campground operation and maintenance costs related to the project—approximately

1.25% of the amount originally demanded by the Forest Service.

Duplicative Nature of Process

The Energy Policy Act of 1992 specifically prohibits federal land managing agencies from requiring an existing hydropower project to obtain a Special Use Permit.

However, in a number of licenses, the Forest Service has taken the standard Special

Use Permit terms and included them in the conditions submitted to FERC under

section 4(e) of the Federal Power Act. In turn, FERC has had no choice but to impose these conditions on the project license. These Special Use Permit conditions are

designed to allow the Forest Service to regulate the project in the same manner that

FERC administers the licensed project. Thus, despite the Energy Policy Act prohibition, the Forest Service is duplicating FERC’s legislative mandate to administer federally licensed hydropower projects.

FERC Approval of Conditions That Result in ‘‘No Quantifiable Benefit’’/Excessive

Length of Process

After FERC asserted jurisdiction over a 70 year old, 1.2 MW project in New England, the project owner reached agreement with one state agency on the level of

minimum flows to be released from the project. However, a resource agency from

an adjacent state and the USFWS prescribed a minimum flow that was nearly twice

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the agreed upon level. In its final environmental assessment for the project, FERC

concluded that the owner’s minimum flow could be provided with existing project

equipment and that there was no ‘‘quantifiable benefit’’ from requiring the USFWS

flow level rather than the level proposed by the owner.

However, because the recommendation was made under section 10(j) of the FPA,

and because the recommendation appeared ‘‘consistent with the FPA,’’ FERC incorporated the higher minimum flow requirement in the license. FERC’s rubber stamp

approval of the USFWS 10(j) recommendation, along with other conditions imposed

on the project, had the effect of reducing net revenue from the project by 60%, making the project economically marginal at best. (Note: Issuance of the license for this

small project took more than 8 years.)

Conditions Making Project Uneconomic

In 1997, six years after the licensee filed its initial plan, FERC issued an order

approving a mitigation and management plan for the 170 MW Kerr Project in Montana. The FERC plan incorporated conditions submitted by the Department of the

Interior requiring a variety of non-operational measures, including: a fish and wildlife implementation strategy to be funded through a one-time payment of $12.5 million and annual payments of $1.27 million, a fish stocking plan, the acquisition of

6,800 acres to serve as replacement wildlife habitat, the construction of five islands

to serve as waterfowl habitat and construction of erosion control structures.

The FERC environmental impact statement (EIS) on the mitigation and management plan concluded that the conditions imposed by Interior would ‘‘eliminate the

project’s positive economic benefits.’’ The EIS found that the project’s current annual

net benefits were approximately $9 million, but that with Interior’s conditions, the

annual net benefits would be a negative $2.7 million. Not even Interior disputed

that the conditions would reduce the project’s net annual benefits by many millions

of dollars. However, the Commission noted that ‘‘any economic analysis of the impact of Interior’s conditions is of at best tangential relevance to our decision,’’ since

FERC was obligated to impose the Interior conditions.

Conditions Making Project Uneconomic/Insufficient Impact Analysis/Arbitrary Nature of Process/Litigation As Only Recourse

The 700kw Yaleville project in upstate New York is one of the smallest hydro facilities operated by Niagara Mohawk Power Corporation. In pre-filing consultation

in connection with the 1988 licensing of the project, the USFWS raised the issue

of fish passage. The agency recommendation was to provide for downstream passage

of freshwater non-migratory resident species, namely bass and walleye. This, despite:

• spillage over the dam provided natural passage of fish at least 85% of the time;

• despite decades of hydro project operation,—an abundance of bass and walleye

was evident on the river both above and below the project; and

• the $400,000 price tag for the agency-recommended fishway was prohibitive for

such a small project.

Niagara Mohawk disputed the agency recommendation in its license application

and FERC, in its 1991 draft Environmental Assessment (EA) for the project, agreed

with the owner and recommended a lower cost fish protection alternative. USFWS,

after failing to sway FERC away from its position in dispute resolution proceedings,

responded by prescribing the downstream passage fishway under its Section 18

mandatory conditioning authority.

FERC denied the fishway prescription in its 1992 license order because it did not

meet the day’s definition of ‘‘fishway’’ [at the time, a fishway had to serve the purpose of passing fish whose life cycle depended entirely on migration past the hydro

facility which was not the case with the Yaleville bass and walleye.] A broader

‘‘fishway’’ definition was established with the passage of the Energy Policy Act of

1992; accordingly, FERC had to rescind its prior denial and require Niagara Mohawk to install the fishway—despite the lack of biological basis and the fact that

its cost would negate the economic operation of the project.

Niagara Mohawk promptly appealed the FERC order. Negotiations with USFWS

ultimately led to an agreement to install a less expensive fishway design (at a cost

one-tenth of that originally prescribed.) If the owner had not pursued an aggressive

litigation action, USFWS would likely never had agreed to negotiate. Litigation, in

this case, spawned reason; but only after more than 8 years of licensing process and

a cost to the owner of nearly $300,000.

Conditions Making Project Uneconomic

In 1997, FERC issued a license for a 70 MW project in Washington state. In the

text of the license itself, FERC noted that the prescribed resource agency conditions

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would result in a yearly operating loss of over $6.5 million for the project owner.

Indicating that the project as licensed would not be ‘‘economically beneficial’’, FERC

issued the license with the conditions, leaving it to the owner to ‘‘make the business

decision whether [to operate the facility] in view of what appear to be the net economic costs.’’

HOW TO FIX THE RELICENSING PROCESS

I’ve just given you several reasons why the relicensing process is in need of repair.

But the real question is how do we fix it? Quite simply, enact H.R. 2335. By passing

this legislation, Congress will ensure that the relicensing process is balanced, costeffective, timely and environmentally sound. Without legislation, the country will

undoubtedly lose the many benefits of hydropower, America’s leading renewable resource.

The Towns bill, which enjoys broad bipartisan support, is a moderate approach

to reforming the process. It does not repeal mandatory conditioning authority, attempt to undermine any environmental laws or diminish the power of the agencies

to protect the environment. It does assign of new level of responsibility and accountability to the agencies with conditioning authority and requires agency conditions to reflect sound, scientific evidence.

It will bring a new discipline to the process, will prevent time consuming and

costly litigation and will bring a general balance and efficiency to the relicensing

process. Reform legislation will bring certainty to a process that desperately needs

it while protecting the environment. In short, it will provide the balance that was

sought in 1986 with the passage of the Electric Consumers Protection Act.

CHANGES SINCE THE COMMITTEE’S LAST HYDRO HEARING

At the last hydropower hearing before this Committee two years ago, a member

of the Committee posed this question to our industry: What has changed since

ECPA that should cause Congress to act? Allow me, in summation, to answer that

question.

• First, a non-partisan government statistical agency has projected a decline in hydropower generation due to regulatory actions.

• Second, as I have shown with the written documentation I am providing today,

we have many new cases displaying how the process fails both industry and the

environment.

• Third, over 575 organizations across the country have told Congress its time for

action to improve the process.

• Fourth, and perhaps most important, the hydropower industry has modified its

approach to resolving this problem and has embraced the moderate framework

of the Towns bill in an effort to see relicensing reform before the bulk of our

nation’s non-federal hydro projects comes up for relicensing.

WHAT HASN’T CHANGED SINCE THE COMMITTEE’S LAST HYDRO HEARING

Before I close, let me remind you of some things that haven’t changed:

• Hydropower is a clean, emissions-free, renewable and reliable energy source

which has long played a vital role in the U.S. energy portfolio.

• Hydropower accounts for 81 percent of the nation’s total renewable electricity generation and ranges between 10 and 12 percent of U.S. electrical generation.

• Of the 75,000 plus existing dams in the U.S., less than 3 percent are used for

hydroelectric generation.

• Hydropower’s operational flexibility—its unique ability to change output quickly,

its voltage control, load-following and peaking capabilities—help maintain the

stability and reliability of the electric grid ensuring economic growth and a high

quality of life.

CLOSING

In closing, let me state that the hydropower industry takes very seriously its role

in promoting the environmental stewardship of the rivers and lands we are so privileged to use. One of the reasons I enjoy working in the industry and why I am so

involved in NHA is because I truly believe that supporting hydropower—an emissions free, domestic, reliable, renewable and clean source of energy—is the right

thing to do.

By responsibly reforming the hydro relicensing process, we have an excellent opportunity to preserve the nation’s leading renewable resource and protect the environment.

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Mr. SHADEGG. Thank you, Mr. Murphy. Mr. Lynch?

STATEMENT OF KEVIN A. LYNCH

Mr. LYNCH. Thank you, Mr. Chairman and members of the subcommittee. My name is Kevin Lynch. I’m Director of Government

Affairs for PacifiCorp. My company serves 1.5 million retail electric

customers in six Western States. The company holds 20 FERC licenses for hydro projects totaling about 1,100 megawatts in capacity.

PacifiCorp supports H.R. 2335, and I’ll briefly explain why. Virtually every one of our hydro projects is in some stage of relicensing right now. To date, we’ve only succeeded in obtaining new

licenses for two relatively small projects. Both of them are located

in the State of Utah.

The company is also pending at the FERC a settlement agreement for its Condit hydroelectric project in Washington State. The

Condit settlement includes removal of the project in 7 years. As the

Condit settlement indicates, our record on hydro relicensing is not

great, but it’s not for want of trying. And it’s not for want of being

flexible in trying to achieve a resolution that balances economics

and environmental imperatives.

In southern Oregon, on the other hand, PacifiCorp has already

spent $20 million to $30 million on studies and activities to obtain

a new license for our 186 megawatt capacity North Umpqua

project. Last November, PacifiCorp exited a collaborative process

for its multi-facility North Umpqua project after the U.S. Forest

Service insisted on removal of a key part of the North Umpqua facility, one of the eight dams that make up the entire project, as a

precondition to reaching settlement on relicensing. Further, the

agency asserted if the company did not agree to removal of this facility as a precondition to settlement, it would mandate removal

through the exercise of its claimed conditioning authority under

Section 4(e) of the Federal Power Act. This assertion came more

than 18 months into the collaborative effort, with little or no scientific justification, and virtually no analysis of any of the alternatives available—alternatives to removal of that facility.

We’re hopeful the action by the Forest Service will be reconsidered, and we’re under some impression that the Forest Service is

in fact giving some more thought to trying to restart the negotiation process. We’re eager to do that. But the episodes demonstrated

to us a fundamental problem with the Federal Power Act. Federal

agencies have the power to mandate conditions in relicensing with

little justification, without examining alternatives, and with no

need to balance other considerations.

H.R. 2335 would add some much-needed accountability over

agency conditioning authority. Accountability to us is an essential

element to making a collaborative process work. So PacifiCorp

urges you to support this bill as a reasonable response to a real

problem. Thank you.

[The prepared statement of Kevin A. Lynch follows:]

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PREPARED STATEMENT OF KEVIN A. LYNCH, DIRECTOR OF GOVERNMENT AFFAIRS, PACIFICORP

Mr. Chairman and members of the Subcommittee, my name is Kevin A. Lynch.

I am Director of Government Affairs for PacifiCorp. PacifiCorp is an electric utility

headquartered in Portland, Oregon. We serve nearly 1.5 million retail electric customers in six western states.

PacifiCorp holds 20 hydroelectric licenses issued by the Federal Energy Regulatory Commission for 53 hydro plants totaling 1100 megawatts of electric generating capacity across seven states. These facilities provide about 10 percent of our

customers’ electric supply. Our hydro plants are crucial elements of our generation

portfolio, providing energy, peaking capacity, voltage support, and other benefits.

Nearly all our hydro projects are in some stage of relicensing under the Federal

Power Act. Since enactment of the 1986 amendments, however, PacifiCorp has been

successful in licensing only two projects, both located in Utah (30 Mw and 1 Mw).

We have also agreed to remove a significant facility as part of a relicensing settlement agreement—the 14 megawatt Condit project on the White Salmon River in

Washington state. The Condit settlement should indicate to you that PacifiCorp is

willing to be flexible in achieving results that balance economic and environmental

objectives.

These achievements, however, are few in comparison to the difficulties we face in

relicensing most of our other projects. We are concerned for the future of much of

our entire hydro portfolio as a direct result of the current hydroelectric relicensing

process.

This tenuous situation is due to the fact that the process now affords state and

federal agencies ‘‘trump’’ cards via their mandatory conditioning authorities. Agencies may impose license conditions on existing facilities without regard to economics

or other public values. Further, the process lacks any requirement for agencies to

quantify expected environmental benefits of a mandated license condition.

H.R. 2335 would reduce the arbitrary nature by which mandatory conditions are

imposed. It would impose a level of accountability on agencies to the decision making process that is currently lacking. This lack of accountability has, in some of our

experiences, created a frustrating, dysfunctional process. H.R. 2335 is needed to restore balance to the process.

To illustrate our concerns, PacifiCorp has participated in a number of collaborative relicensing processes around our system. Our experience with these processes

has been mixed.

The Condit process resulted in a mutually-agreeable outcome among a diverse

group of stakeholders. Participants included the company, three federal agencies

(excluding the FERC), two state government agencies, four Native American tribes,

and several environmental groups. Dam removal was not a result we sought at

Condit; but the collaborative process brought together a rationalization of steps and

conditions that made dam removal acceptable to us.

We also are probably one of the first utilities to leave a collaborative process over

the issue of dam removal. Our experience with relicensing the North Umpqua hydro

project in western Oregon illustrate the problem with lack of agency accountability

for mandatory prescriptions in the relicensing process.

At North Umpqua, PacifiCorp felt it had done ‘‘all the right things’’ for a successful relicensing:

• First-ever watershed analysis of a project on federal forest lands,

• Created a Citizens Advisory Committee,

• Initiated collaborative settlement proceeding even before FERC had developed its

Alternative Licensing Process.

In short, we worked collaboratively in a settlement proceeding using the best

science available over a four year period to try to arrive at a consensus-based solution involving all stakeholders.

That all ended when PacifiCorp exited the settlement negotiations last November.

We were driven to this action by the Forest Service’s insistence that we remove the

downstream dam (known as Soda Springs) as a starting point to reaching any accord. The agency based its directive on ambiguous language in its Northwest Forest

Plan, stating removal was the only way to achieve those objectives.

The agency further indicated that if PacifiCorp would not agree to removal of

Soda Springs voluntarily as part of settlement, the agency would simply mandate

it using its 4(e) conditioning authorities under the Federal Power Act.

In a September, 1999 memorandum from the Forest Service to PacifiCorp, the

agency stated, ‘‘Dam removal will be a condition of settlement for the Resource

Team as well as the Forest Service—Forest Service will submit preliminary 4(e)

terms and conditions for dam removal and other mitigation.’’

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As a company that has agreed to remove a dam, we believe we have a good understanding of when it is right—and when it is wrong. It is clearly wrong in the case

of the North Umpqua project where a number of other ways exist to meet the objectives of the NW Forest Plan: installation of fish passage facilities and off-site habitat restoration among them. The Forest Service discounted these alternatives, however, in insisting on agreement to remove of the Soda Springs facility before negotiating any other mitigation measures.

The Forest Service’s actions at North Umpqua illustrate how difficult it is to

achieve true collaboration if agencies bring their mandatory conditioning authorities

into the process.

At North Umpqua there may yet be a happy ending: the Forest Service has now

indicated it does not have an official policy of using 4(e) to compel dam removal and

that it did not intend to create such a policy via the North Umpqua settlement

talks.

In fact, the agency recently indicated it is willing to return to the settlement table

to see whether a mutually-acceptable resolution for relicensing this project can be

achieved. It also is saying that dam removal will not be a precondition to a return

to the table.

We would like to return to the talks because we still believe that settlement and

collaboration is a good approach to resolving the tough issues that will arise in any

relicensing.

However, this is not to say the licensing process doesn’t need fixing—it does.

In fact, PacifiCorp believes that settlement processes would work much better if

there is more accountability built into the process throughout.

Major flaws with the process as it currently exists include:

Lack of a mechanism to ensure a final licensing decision will be in the overall public interest. Under Sections 18 and 4 (e) of the FPA, agencies tend to focus narrowly

on the resources under their jurisdiction and to the exclusion of other important factors.

Additionally, agency conditions are often written at a technical level within the

agencies with little or no policy-level review or consideration of federal energy policy

or other public interests, including the need for flexible, reliable low cost power that

does not emit greenhouse gases.

A single Section 18 or 4(e) condition imposed by a single agency can render a beneficial project uneconomic yet FERC must include the conditions in a final license.

FERC cannot balance different kinds of public interests and benefits against one

another and there is no opportunity for administrative or judicial review until after

FERC issues its final order. Even then, conditions can only be challenged in court

on narrow legal grounds.

H.R. 2335 addresses these key problems in several ways that we strongly support:

• It requires agencies to take into consideration project benefits, including economics and power values, system reliability, air quality and flood control, and requires the agencies to document consideration of these factors.

• It allows for administrative review of contested conditions before the issuance of

a final order. This review could both improve the license and shorten the licensing process by eliminating much potential post-license litigation.

• It requires a scientific basis for all conditions and peer review. While peer review

may not be needed for all conditions, it is certainly desirable where the scientific merit of a condition is contested.

In conclusion, PacifiCorp believes that settlement processes would have a higher

chance of success with this legislation in place because ALL of the parties (not just

the license applicant) would need to consider the full range of relevant factors—both

the impacts and benefits of hydroelectric projects—in the licensing process.

H.R. 2335 merits support because it does not take away the agencies conditioning

authorities—it simply requires them to be used under the right conditions in an appropriate way, taking into account all the values associated with hydropower.

Mr. SHADEGG. Thank you, Mr. Lynch. Mr. Fahlund? Is that how

you pronounce it?

Mr. FAHLUND. Yeah. Fahlund.

Mr. SHADEGG. Fahlund.

STATEMENT OF ANDREW FAHLUND

Mr. FAHLUND. Mr. Chairman and members of the subcommittee,

thank you for allowing me to testify before you today. I represent

American Rivers as Policy Director for Hydropower Programs and

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serve as the Chair of the Hydropower Reform Coalition, a consortium of 62 conservation organizations from around the country

with a combined membership of more than 800,000.

The licensing provides significant benefits to rivers. Changes in

law in the 1980’s and 1990’s provided an opportunity to restore rivers and fisheries degraded by decades of unmitigated harm caused

by hydropower operations. These changes, coupled with administrative improvements at FERC, resources agencies, have established

an appropriate balance between power and nonpower values and

ensured a more efficient process. H.R. 2335 would turn back the

clock on this progress.

The licensing takes a 19th century technology—hydropower—and

brings it up to 21st century standards without significant losses in

power generation or profitability. Rivers are complex systems, and

their management impacts the interests of millions of Americans.

Relicensing reflects this complexity.

Congress made FERC responsible for issuing licenses that protect the public interest in power and nonpower values of rivers.

However, they established three basic provisions: water quality,

fish passage, and Federal lands management as a foundation of

minimum protection assigned—and assigned expert resource agencies to carry out these mandates. These are commonly referred to

as mandatory conditions.

H.R. 2335, described as a process bill, would have the effect of

fundamentally changing this balance. How? H.R. 2335 makes a

complex process more so and burdens resource agencies with limited resources so that they are unable to act. It creates three new

processes and a host of new standards of review, several of which

duplicate those already undertaken by FERC. This redundancy, inefficiency—this creates redundancy, inefficiency and forces State

and Federal resource agencies outside of their expertise and sets

them up to fail.

Because it is so vague and open-ended, the provisions of this bill

create countless openings for new litigation that will leave us in

court for years to come. It is also unworkable. One provision of the

bill would require agencies to submit conditions for review before

a dam owner even files an application for a new license. Agencies

cannot submit conditions on a project without an application and

the associated study results.

Agencies are not solely to blame for delays. In fact, delays in the

relicensing process only prolong ongoing environmental harm. That

is because once a license term expires, dam owners receive an annual license that grants them status quo conditions until a new license is issued. Delaying the expensive studies and the facility upgrades gives project owner a significant incentive to draw out the

process.

Finally, H.R. 2335 forces agencies to consider the profitability of

a hydropower project in determining basic environmental standards for protection of public trust resources. This fundamentally

changes the mandate of these agencies and threatens public rivers.

Federal agencies cannot and should not guarantee the profitability of private industry, especially at the expense of resource

protection. Industry does not even make information available to

do the kind of analysis they are asking for.

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FERC’s previously testified in the class of 1993 that it resulted

in an average loss of generation of 1 percent, which has been stated

here several times and attributed to me. Let’s remember that this

is measured against projects—that loss is measured against

projects that operated for 50 to 100 years with virtually no environmental protection. That’s a small price to pay for the significant

benefits to our rivers, wildlife, and recreation.

Hydropower will do just fine in this new era of competition, and

there is only sporadic anecdotal evidence to suggest otherwise.

After receiving a 30- to 50-year term, these projects should be fully

amortized. Projects both facing relicensing and having just been relicensed are selling for very competitive rates. Stories of successful

settlements far outnumber the horror stories of lengthy process or

expensive requirements. There are several ongoing administrative

improvements that are working and should be made to work to protect everyone’s interest.

Congress should ensure agencies have sufficient staff, resources

and training to effectively participate in relicensing.

Second, everyone should promote ongoing collaboration and cooperation using FERC’s alternative process.

Third, Federal agencies should implement comprehensive policies

and guidance already under development that will address coordination of and public input for mandatory conditioning.

Fourth, FERC should ensure that applicants complete all necessary environmental studies in a timely manner, and should place

interim conditions on annual licenses to give applicants an incentive to act quickly.

If the committee has any questions about this or any of the other

bills before us today which I have not referred to, I’d be happy to

answer them. American Rivers is ready to work with Congress,

agencies, and industry to make reasoned improvements to the process and substance of hydropower relicensing. Thank you for your

attention.

[The prepared statement of Andrew Fahlund follows:]

PREPARED STATEMENT OF ANDREW FAHLUND, POLICY DIRECTOR FOR HYDROPOWER

PROGRAMS, AMERICAN RIVERS

INTRODUCTION

Mr. Chairman and members of the Subcommittee, thank you for allowing me to

testify before you today regarding federal regulation of hydropower dams. I am Policy Director of Hydropower Programs for American Rivers, a national river conservation organization with more than 30,000 members nationwide. In addition, I

am the Chair of the Hydropower Reform Coalition, a consortium of more than 60

conservation and recreation organizations from around the country (see attachment). The Coalition was formed in 1992 with the purpose of improving river health

and recreational opportunities through the licensing, relicensing, and regulatory enforcement of hydropower dams under the jurisdiction of the Federal Energy Regulatory Commission (FERC). Coalition members are national, regional and local conservation organizations, and together have a combined membership totaling more

than 800,000. Coalition members are active in more than 75 percent of the relicensing cases currently pending before FERC and have constructively contributed

to numerous policy discussions concerning FERC regulated hydropower.

There are four basic messages in my testimony, geared primarily toward HR 2335

‘‘The Hydropower Licensing Process Improvement Act’’:

1. Hydropower relicensing results in significant improvements to environmental

quality;

2. On average, relicensing results in relatively modest costs to industry in exchange

for the privilege of utilizing a public resource;

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3. The FERC process has never worked better to protect the public interest. Continued use of the collaborative process, coupled with adequate resources for participating agencies, and minor administrative reforms will further this progress;

4. Single project or state exemptions to the Federal Power Act, as a matter of policy,

are inappropriate and unnecessary.

While the bulk of my testimony focuses on hydropower regulation generally and

my organization’s opposition to HR 2335 specifically, American Rivers and the members of the Hydropower Reform Coalition have strong reservations about single

project or state exemptions to existing rule or law and therefore cannot support any

of the other bills docketed for this hearing with the exception of S. 1937 for which

we take no position at this time.

I would like to stress that we believe that hydropower relicensing is a natural resource issue—a rivers issue—not simply an energy issue. That is because the improvements and changes that we are making at these projects will have enormous

implications for hundreds of species, thousands of river miles, and millions of dollars

in recreational opportunities for decades to come. In contrast, these decisions have

a relatively small impact on energy generation, electric rates, or industry viability.

I would also like to make clear that American Rivers and members of the Hydropower Reform Coalition are NOT anti-hydropower. We simply wish to ensure that

these dams are operated to protect and restore river resources using best available

technologies and best management practices. While decommissioning is a popular

topic these days, we believe that dam removal will be the exception and not the

rule.

ALL DAMS ARE NOT CREATED (OR OPERATED) EQUAL

It is important to remember that rivers are owned by the public. Licenses to operate non-federal hydropower dams last 30 to 50 years. It has always been Congress’

intent that at the end of a license term, the Federal government reviews its commitment of the public’s resource based on the knowledge and values of the time.

As early as 1908, President Teddy Roosevelt understood the need to safeguard our

nation’s rivers and helped to devise a system of periodic review to protect these national treasures.

‘‘The public must retain control of the great waterways. It is essential that any

permit to obstruct them for reasons and on conditions that seem good at the

moment should be subject to revision when changed conditions demand.’’

More than 75 years later, the 9th Circuit Court of Appeals in Yakima Indian Nation v. FERC found that:

‘‘Relicensing is more akin to an irreversible and irretrievable commitment of a

public resource than a mere continuation of the status quo. Simply because the

same resource had been committed in the past does not make relicensing a

phase in a continuous activity. Relicensing involves a new commitment of the

resource . . .’’

While hydropower has provided significant benefits to society over the past 100

years, this has not come without a cost to our nation’s rivers. Dams harm the physical, chemical, and biological function of rivers by disrupting flows, degrading water

quality, and blocking passage of fish and other species. Although hydropower’s energy source—water—is relatively renewable, the river ecosystems that dams affect

are not. The profound impacts of hydropower dams on river systems have been

widely documented in scientific literature. For example, dams cut off free-flowing

rivers, blocking not only fish and wildlife migration, but also the flow of nutrients

and sediments. By diverting water out of the river for power production, hydropower

projects often remove water from entire river channels leaving them completely dewatered.

By withholding and then releasing water to generate power for peak demand periods, dams cause downstream stretches to alternate between no water and powerful

surges. These drought to torrent episodes dramatically erode soil and vegetation and

alternately flood or strand wildlife. Such peaking operations also lead to massive

fluctuations in reservoir levels harming flatwater recreation and shoreline habitat.

Dam operations can also cause water quality problems in rivers and reservoirs that

can result in fish kills and permanent elimination of naturally occurring fish and

wildlife species.

The cumulative impacts that multiple dams have on rivers can spell disaster for

fish and wildlife. For example, 16 million salmon once traveled up the Columbia

River and its tributaries from the Pacific Ocean each spring to spawn. Now fewer

than 2% make the trip largely because dozens of hydropower dams bar their way.

Both coasts have seen dramatic declines in river spawning species that were once

mighty commercial industries from the Carolinas to Maine and all along the Pacific

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1The mean net generation of electric utilities and non-utility power producers for 1990 to 1996

is 3,203,998 million kilowatt-hours, with a standard deviation of +/-159084.6 million kwh or +/

-4.96%.

Coast. These declines are in large part attributed to alteration and fragmentation

of river habitat.

ECOLOGICAL AND ECONOMIC BENEFITS OF RELICENSING

Because these licenses are issued for 30 to 50 year terms, hydropower relicensing

is a once-in-a-lifetime opportunity to bring a 19th century technology up to 21st century environmental standards. By requiring dam owners to build passage for fish,

protect critical riparian habitat, adjust river flows to conform to a more natural pattern, and provide recreational access and opportunity we can protect valuable fisheries, native species diversity, recreational amenities, and natural ecosystem functions, while enhancing economic opportunities such as recreation, tourism, and ecological services. Because original licenses were issued prior to the enactment of modern environmental statutes and prior to our understanding of the impacts of dams

on river ecosystems, virtually none of these environmental conditions were required.

There are hundreds of examples where these improvements to river environments

have been made while maintaining the viability of the other benefits of the project.

On the Manistee, Muskegeon, and AuSable Rivers in Michigan, Consumers Power,

the State, the US Forest Service and Fish and Wildlife Service, and NGOs, reached

a settlement that resulted in significant improvements to anadromous fish runs,

sport fishing, and water quality and has restored these rivers to a more healthy condition. Studies are showing dramatic improvements in natural fish reproduction

simply from changing the flow regime out of one dam to a more natural condition.

Many changes obtained through relicensing of hydropower dams can also bring

economic benefits to communities. For example, in rural areas such as Western

Massachusetts, hydropower dams provide very few jobs as they are highly automated. But improved river conditions from relicensing created significant numbers

of jobs and increased revenue for this rural community. Improved flows on the Deerfield River have created a multi-million dollar rafting and fishing industry in this

once economically depressed region while still maintaining profitable energy production.

HEALTHY RIVERS AND CLEAN AIR

Simply because hydropower is emissions free, does not automatically mean that

it is without significant impacts on the environment. The overwhelming evidence of

the impacts of dams on rivers runs contrary to the assertion that hydropower is

‘‘green’’. This argument is often used to get around critical river protection measures, without any showing of actual impacts. Ironically, some of the same companies

that tout the climate change benefits of hydropower vehemently deny that climate

change is a problem when talking about their fossil generation.

The benefits derived from relicensing provide significant protection to rivers with

a low cost to air emissions. According to the Chair of the Federal Energy Regulatory

Commission, the relicensing of more than 140 hydropower projects resulted in an

average reduction in generation of only 1%! Based on this track record, we can reasonably expect a 1% average generation loss from projects due to be relicensed over

the next ten years (these represent 2.5% of the annual generation of the US). This

would result in a 0.025% reduction in the nation’s overall annual generation, which

would need to be offset by an alternative—most likely natural gas. That assumes

no gains through energy efficiency or other demand side improvements and fails to

consider emerging technologies such as wind and fuel cells.

In any case, the amount of ‘‘lost’’ generation is significantly less than the 5% average fluctuation of energy demand caused by factors such as weather, fuel prices, and

advances in technology.1 These losses in generation are derived from comparing a

baseline of operation that had NO environmental conditions to one with modern environmental standards. One would reasonably expect at least some loss with meeting environmental laws. A 1% loss in generation is a small price to pay for the benefits received. We need not trade healthy rivers for clean air. We can have both.

In response to the clean air benefits that hydropower dams do provide and to create an incentive for operating hydropower dams to protect river resources, American

Rivers and Green Mountain Energy have consulted with numerous power companies, resource managers and others in the hydropower community to establish a

market incentive for environmental improvements at hydropower dams. The Low

Impact Hydropower Institute was created as an independent body that rates the operation of hydropower dams using objective and measurable criteria for factors such

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as water quality, fish passage, and land protection. Those projects that meet these

standards of environmental protection are given a certification that will allow their

owners to sell the power from the project at a premium.

RELICENSING—AN IMPORTANT BALANCING ACT

Because rivers are public resources with many competing interests and significant

environmental impacts, the licensing process for hydropower dams involves multiple

stakeholders. Unlike most electricity generating technologies, hydropower does not

have ‘‘end of pipe’’ standards to ensure that the dam’s operations do not unduly

damage the environment. This is because every dam and every river is different,

and generic standards cannot be applied to each project. Most hydropower dam licensing conditions—including conditions to protect natural resources—are determined by FERC after giving equal consideration to power (electricity generation)

and non-power (fish and wildlife protection, recreation, etc.) benefits of the river.

The economics of the hydropower facility are taken into account in this balancing

process.

Congress, however, determined that some basic environmental protections must

be afforded at every dam, and should not be balanced away to promote cheap hydropower. Expert federal and state resource managers establish conditions based on

substantial evidence to protect public trust resources. These basic protections form

a floor above which FERC can do it’s balancing of license conditions in the public

interest.

Sometimes referred to as mandatory conditions, these requirements assure that:

1. Fish can be passed upstream and downstream of a dam (FPA Section 18);

2. If the private dam is located on federally-owned land, the uses of the federal land

are protected (FPA Section 4(e)); and

3. The dam does not result in a violation of state-developed water quality standards

(CWA Section 401).

Both fish passage and federal lands protection have been part of the relicensing

process since enactment of the Federal Power Act in 1920. The current construction

of the Act, which sets fishways apart as a special consideration, is in keeping with

the law and practice that came to us from Europe at the time of settlement. Requiring millers (dam owners) to provide fishways at their own expense dates back many

hundreds of years due to the fact that fish are equally important to interstate commerce. The changes proposed in HR 2335 to balance the financial needs of a privately held hydropower project with the protection of lands and fish resources held

in trust by the government for the people reflects a tension that has existed for generations. The proposed changes to the Federal Power Act in HR 2335 would upset

hundreds of years of precedent and tip the balance that has existed.

The provision under Section 4(e) of the Federal Power Act that grants authority

to land management agencies to ensure that projects on their lands meet current

management goals and objectives is simple, common sense. Projects that are located

on federal or tribal lands are already getting the benefit of cheap rent. In order to

adequately manage the lands entrusted to them, federal land management agencies

must have control of how these projects are operated.

Even today, mandatory conditioning by federal agencies in the relicensing process

is rare. According to a University of Michigan study, fish passage conditions were

required outside of settlement at fewer than 10% of projects between 1980 and 1996.

This hardly seems like a crisis given the dire need of salmon and other fisheries

in both the Atlantic and Pacific coasts. The instances where agencies are exercising

this authority are critical cases where improvements must be made.

HR 2335—A BAD SOLUTION TO THE WRONG PROBLEMS

The legislation before the Committee, HR 2335, is complex and rife with detail

about a process that is foreign to most. Rather than walk through the bill step by

step, the comments here simply refer to several of its most obvious problems. For

a complete critique of the bill, see attachment to this testimony.

No regulatory process is perfect and this one is no exception. Many in the environmental community believe that there should be stricter environmental conditions at

hydropower projects, while many in the industry believe that there should be fewer.

Perhaps that is a signal that things are working. Whichever position one believes,

HR 2335 will only make the relicensing process more complex and litigious and will

threaten public trust resources in the name of private gain.

HR 2335 will make a complex process more so

Efficiency in the hydropower relicensing process is a constant challenge because

of the complexity of the issues and the number of stakeholders involved. There are

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2 Barnes, FERC’s ‘‘Class of ’93’’: A Status Report, Hydro Review (Oct., 1995).

a wide variety of requirements, checks, and balances. But HR 2335 only makes a

complex process more so. It adds three new administrative processes at a time when

agency budgets are limited and when the same bill seeks to avoid duplication. It

further requires federal resource agencies to consider eight new factors in developing their environmental conditions, and then places on them a series of deadlines,

procedural hoops, and resource constraints, most of which are completely out of

their control.

Many of the new procedures and considerations placed on resource agencies are

redundant with FERC’s role in relicensing. HR 2335 requires agencies to consider

several factors beyond the scope of their resource protection responsibilities and well

beyond their expertise. Evaluation of these factors currently falls to FERC. The bill

would require both federal and state resource agencies to undertake this analysis

as well. It is unclear what is gained from having agencies duplicate this kind of

evaluation.

One of the most egregious elements of the bill requires federal agencies to submit

their mandatory conditions to a new administrative review process before the applicant has even filed its application for a new license! How can agencies write license

conditions for a project that has no application? At that stage, FERC does not even

recognize that there is a formal proceeding. Further, there is no guarantee that the

applicant has concluded the studies that agencies must use when drafting their license conditions. Even if the agencies chose to rely on their own studies and environmental review, the bill prohibits them from doing so and forces them to rely on

FERC’s review. Without an application on file, FERC will not have begun to scope

their environmental analysis, therefore it is unreasonable to require agencies to submit conditions at this stage in the process.

Delays in relicensing are often within the applicant’s control

Relicensing typically is a five to seven year process involving multiple stakeholders, dozens of studies, and numerous meetings. However, dam owners receive

a license that entitles them to utilize a public resource for 30 to 50 years. Delays

in the process are not uncommon but everyone shares some of the blame and the

impacts of delay are most often borne by the environment.

License applicants have caused significant delay of the relicensing process by failing to provide complete license applications. Of the 157 relicensing applications filed

by industry in 1993, only nine provided sufficient scientific information about project

impacts, forcing FERC to issue hundreds of additional information requests in the

other 148 cases.2 The subsequent need to conduct these studies to complete their

applications was a significant reason that there were major delays in these

relicensings. In written testimony for the Senate Energy and Natural Resources

Committee, FERC identified only 7 instances since 1992 where mandatory conditions were filed after the regulatory deadline without support from all parties to the

proceeding.

Who is really harmed by delay? Most often it is the interests of the environment.

That is because when a license expires the dam owner receives an ‘‘annual license’’

that maintains status quo conditions at the project until a final license is issued.

That means that the longer the process takes, the longer the applicant can stave

off the cost of having to comply with modern environmental conditions.

When one takes a closer look at ‘‘horror stories’’ of never ending relicensings one

can see that these dams operated for up to 30 years beyond their original license

term under requirements based upon 1940s and 50s environmental laws and

science. That provides a huge incentive for dam owners not to cooperate! The environment and the public are the parties most harmed by delay in the relicensing

process. However, just as most resource agencies are not guilty of purposeful delay,

neither are most power companies. But if we want to reduce the time required to

relicense projects, we should reevaluate the way in which FERC issues these annual

licenses to allow for interim amendments or abolish the practice altogether.

We should not guarantee profitability of hydropower

Being a good environmental steward is a legitimate cost of doing business. Acquiring a new license necessitates an upgrade of facilities and operations to meet modern environmental standards. This is appropriate and fair.

Should the federal government guarantee profitability of hydropower? If a project

is already unprofitable because of market forces or because it is run poorly, should

it be exempted from any environmental conditions? The answer to these questions

is clearly no. According to the courts, ‘‘There can be no guarantee of profitability

of water power projects under the Federal Power Act; profitability is at risk from

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3Wisconsin Public Service Corp. v. FERC, 32 F.3d 1165, 1168 (7th Cir. 1994) 4Written supplemental testimony of Doug Smith, FERC General Counsel, before the Senate

Energy and Natural Resources Committee, 10/27/99

a number of variable factors, and values other than profitability require appropriate

consideration.’’ 3

Applicants are not even required to provide economic information about their

projects. According to FERC’s own general counsel, ‘‘Licensees are not required to

file information with the Commission from which it (the Commission) could determine whether they (licensees) earn a profit on hydropower projects.’’ How are agencies supposed to measure the impacts of their conditions on project economics when

industry does not share this information and the information itself is speculative?

Federal agencies in fact do consider least cost alternatives provided that those

conditions meet the necessary level of environmental protection to fulfill statutory

obligations. Agencies are not insensitive to the needs of industry any less than the

industry is insensitive to protection and restoration of the public’s rivers.

Forcing agencies responsible for protection of public trust resources to consider economics in the development of environmental conditions changes the fundamental

nature of their mandate and forces them beyond their expertise. This shift runs

counter to the principles upon which Congress created these laws.

While couched in process, the bill effectively eliminates mandadory conditioning

for most cases. The result of this bill clearly sets agencies up to fail. All of this additional process, review, and requirements appear to be set up to provide avenues for

new litigation. Why are we moving in a direction of litigation, mistrust, and acrimony at a time when trust, cooperation, and settlement are flourishing?

FACTS DON’T SUPPORT THE CLAIMS OF A CRISIS

To date, federal resource agencies have not caused any hydropower owner to

abandon its project because of environmental conditions. The courts place an appropriate check on this discretion and require a substantial record of evidence to support these conditions. The Energy Information Administration has forecasted only

a 1% decline in total hydropower output over the next twenty years. This does not

represent significant economic hardship after having operated under licenses with

little or no environmental protections for the past 30 to 50 years. The original capital costs of these projects should be fully amortized.

In reality, dams are not being surrendered or abandoned due to environmental

regulation. Since 1996, only three operating licenses have been surrendered—each

because they fell into disrepair or were damaged by flooding. According to FERC,

since1993 ‘‘no licensee has refused to accept or surrender their license citing project

economics.’’ 4

In its entire history, FERC has ordered only one dam removed against the owner’s

wishes and that was later settled. The hydropower projects likely to come off line

in the next several years will be those that are too old and too costly to upgrade

and maintain and therefore won’t be competitive in the new market. While meeting

modern environmental standards in a few cases may lead to project decommissioning, upgrades for safety, operating efficiency, and the competition from natural

gas are the greatest threats to hydropower.

In fact, hydropower is doing well in a deregulated market, even while maintaining

modern environmental standards. Sales of recently relicensed hydropower facilities

have been quite competitive and have brought in purchase prices well beyond industry expectations. New England Power Company was sold in 1998 to US Gen for $1.8

billion, well above its assessed value. And 30 dams previously owned by Central

Maine Power Company—all with modern FERC licenses—were recently sold to Florida Power and Light for reportedly three times their assessed value. Recent divestiture proceedings in California have independent power producers salivating over Pacific Gas and Electric’s (PG&E) hydropower complex, most of which is just coming

up for relicensing.

If members of the hydropower industry are concerned with either environmental

conditions imposed by recent relicensing or by the threat of pending conditions in

upcoming relicensing, why are they so willing to pay a premium for hydropower

projects?

ADMINISTRATIVE IMPROVEMENTS TO THE RELICENSING PROCESS CAN WORK

There are appropriate ways to make incremental improvements to the way that

we license hydropower dams that do not place all blame on one sector and that meet

at least some of the interests of all stakeholders.

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5 EPRI, Hydro Relicensing and Mitigation Cost Data, Excerpted from EPRI Report TR-104858,

Water Resource Management and Hydropower: Guidebook for Collaboration and Public Involvement (Dec., 1995).

Provide Adequate Resources for Agency Participation—To ensure that the relicensing process is efficiently implemented, state and federal natural resource agencies must have sufficient staff, resources and training to enable productive involvement in individual relicensings. At present, many of the relevant state and federal

agencies do not have sufficient staff dedicated to relicensing. As a result, a range

of individuals (few of whom are trained in the relicensing process) may participate

in different parts of a relicensing proceeding as time allows, or the appropriate staff

is overburdened and cannot spend the time to conduct an adequate review of the

environmental needs at the site or participate constructively in the relicensing. Because of the complex nature of the proceedings, and because of the new, more productive trend toward collaborative relicensing efforts, a consistent presence of qualified staff with an appropriate workload would make agency efforts more efficient

and productive.

In the state of Alabama, licenses for 12 dams on three major rivers will expire

by 2007. Relicensing these projects will involve regular meetings, extensive studies,

and detailed negotiation. Currently, the US Fish and Wildlife Service, which has

significant statutory responsibilities for participating in this process, has only one

staff person to cover this area. His situation is not unique. Without additional resources, there is a risk of inefficient or incomplete participation on the part of

USFWS and potential disruption or delay in the process. This can be avoided with

additional resources.

One potential solution is Section 1701(a) of the Energy Policy Act of 1992, which

provides authority for FERC to reimburse resource agencies for their costs associated with licensing FERC projects. The provision calls for FERC to pass these costs

on to licensees through annual fees. Since 1992, FERC has been collecting fees from

licensees for some of the federal resource agency relicensing expenses but this

money has not found its way back to these agencies. Instead, it has gone to the

Treasury where these reimbursements to federal and state resource agencies have

not been made available through annual appropriations from Congress. This system

is not working. To provide adequate resources to these agencies that can facilitate

more efficient relicensings, this provision of law should be implemented such that

state and federal natural resource agencies are reimbursed off-budget.

Collaboration Not Confrontation—Since the codification of FERC’s rules on the alternative relicensing or collaborative process, an increasing number of projects have

reached successful settlement leading to positive project economics and greater environmental protection. In an independent evaluation of the costs of hydropower relicensing, the Electric Power Research Institute (EPRI) found that on average, savings of 20 to 50 percent can be realized by using a collaborative approach. EPRI also

found that the settlement process, on average, leads to reduced mitigation costs of

5 to 20 percent.5

In a recently signed settlement agreement in Montana and Idaho between Avista

Corporation and tribes, conservation groups, and federal and state agencies, each

party came out with what they viewed as a significant win. Even with a commitment of environmental protection valued at $250 million, Avista can move forward

with a profitable license that ensures profitability and contains certainty in their

future operating conditions and environmental stakeholders can have assurance

that environmental needs will be met over the next forty years.

This kind of cooperation must be fostered. Piecemeal legislation that targets only

one stakeholder group—resource agencies—threatens the present and future

progress and good will developed through this sort of collaboration.

Increase Cooperation and Coordination among FERC and Resource Agencies—Cooperation among FERC and state and federal resource agencies will greatly improve

the efficiency of the relicensing process. Resource agencies and FERC have begun

meeting to discuss ways to better meld their respective authorities. A better working relationship among FERC and resource agencies will make the relicensing process more efficient, and will likely result in better licensing decisions.

Under a charter signed in October 1998, the four principle federal agencies involved in relicensing—FERC, Interior, Agriculture, and Commerce—formed an

Interagency Task Force to Improve Hydroelectric Licensing Processes (ITF). This

committee was established to coordinate federal and state mandates.

In July of 1999, the ITF established a Federal Advisory Committee to provide a

forum for non-federal entities to review and provide feedback on the activities of the

ITF. The Hydropower Reform Coalition is represented by three members and is urging each of the members of the ITF to effect meaningful change through this process

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by advocating changes in guidance, policy, and regulations. The Coalition hopes to

work with members of industry and others on this committee to advance common

goals and interests.

At our last meeting in March 2000, the Department of the Interior announced the

intention of Interior and Commerce to explore the possibility of developing a process

that would allow public input into the development of draft conditions for fish passage and federal lands protection under FPA Sections 18 and 4(e) respectively. Such

a process would be welcomed by American Rivers and others in the Hydropower Reform Coalition. We also encourage these same agencies to come out with a uniform

policy on the development of FPA Section 18 fishway prescriptions and similarly

urge the US Forest Service to finalize its handbook for field staff on the development of FPA Section 4(e) land management conditions. These policies and guidance

will provide necessary consistency and uniformity across agencies and regions.

Another promising forum where coordination and cooperation are leading to positive reforms is a multi-stakeholder National Review Group (NRG) sponsored by the

Electric Power Research Institute (EPRI). Since January of 1999, members of industry, agencies, and NGOs have been working together to develop a guidance document of best practices in the relicensing process to assist stakeholders in relicensing

dealing with difficult issues and typical roadblocks. Development of this document

has enabled experienced practitioners from differing camps to reach consensus about

practical ways to make the process work better. Over the next several months, this

document will be published and a training and outreach program put forward to

train stakeholders and implement its ideas.

Proposed amendments to the Federal Power Act address the wrong issues and fail

to offer comprehensive improvements to the process or substance of hydropower regulation. Real reforms can protect the environment and meet the needs of industry

and other stakeholders. These administrative processes are making progress toward

systematic improvements in the relicensing process. They should be given an opportunity to work.

SPECIAL EXEMPTIONS TO THE FEDERAL POWER ACT ARE INAPPROPRIATE

In addition to HR 2335, several other bills are being given consideration during

this oversight hearing but rather than address the merits of each, I would like to

reserve my comments for a more general overview of single state or single project

exemption. These bills are often justified because the projects that they exempt are

‘‘small’’ in terms of generation capacity or they are proposed for states that have

‘‘unique’’ circumstances. While we acknowledge that there can be unique circumstances on a case-by-case basis, it is generally bad public policy to create unique

loopholes for only some projects.

In particular, American Rivers and our conservation partners have particular objection to S 439, which passed the Senate by unanimous consent in June 1998, and

would among other things, amend the Federal Power Act (FPA) to allow the State

of Alaska assume jurisdiction over hydropower projects of 5 megawatts or smaller.

We urge the House to reject any attempts to introduce or pass this bill, now or in

the future.

Small hydropower does not necessarily mean small impacts. Even dams generating less than 5 megawatts can have profound negative impacts on valuable migratory and resident fisheries, water quality, riparian habitats, and river recreation

and should therefore not receive less environmental review. If a project is non-controversial, it will move through FERC’s existing process quickly, making exemption

or duplication unnecessary. FERC already has in place a procedure to exempt

‘‘small’’ projects. Under Section 30 of the FPA, projects are subject to a shorter and

less regulatory licensing process in exchange for accepting the terms and conditions

of appropriate state and federal resource agencies.

Exemption for one state sets a dangerous precedent for further unnecessary individual exemptions to the Federal Power Act. Granting individual state jurisdiction

of hydropower projects would lead to a piecemeal regulatory system with gross inefficiencies in environmental review and enforcement. While we support the general

intent of S. 334, which would provide an exemption preventing projects in Hawaii

from seeking a voluntary license, we believe that the State of Hawaii can adequately

protect its unique water resources from hydropower development through state

standards under the Clean Water Act. Again, a single state exemption, even if done

for the right reasons, is inappropriate and in this case, unnecessary.

The Federal Power Act has established a process to ensure environmental and

economic values are considered and duplication is unnecessary. FERC also issued

a Rule in October 1998 that advances a more cooperative and collaborative alterVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00089 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
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native to the current relicensing process, which is being used widely in cases

throughout Alaska.

American Rivers and our partner organizations in Michigan also oppose HR 1262,

which would exempt hydropower facilities on the Pentwater River and owned by the

City of Hart, Michigan from regulation under the Federal Power Act. The Pentwater

River is a tributary to Lake Michigan and a small but important steelhead fishery

that currently suffers from inadequate flows from the Hart Project. These flows,

which drop down to almost zero at night, cause wild fluctuations that harm migrating fish and cause significant problems with water temperature, all for a small

amount of power. There is no reason that this project should be exempted from the

same environmental standards that others must meet.

As a general matter, American Rivers and the members of the Hydropower Reform Coalition oppose Congressional extensions for commencement to construct new

hydropower projects. The Federal Power Act currently provides for a two-year period

in which to commence construction of a dam with an option to extend that period

for an additional two years. Extending commencement of construction to 10 years

as proposed in S. 439 could render environmental and economic evaluations conducted during the licensing process useless as conditions in the project area may

change. Such extensions also limit alternative economic activity at the site, including alternative power development. Projects should not be licensed unless they are

fully prepared to carry out their obligations and responsibilities. Congress should

simply not accept so many extension bills.

CONCLUSION

Our nation’s rivers and fisheries are facing a crisis of slow but steady extinction.

Resource agencies with expertise in these areas are in the best position to address

this threat. The relicensing process can always benefit from incremental administrative improvements, and perhaps one day we will come to a conclusion that it is time

to look at an entirely new way of doing business, but until that point, HR 2335,

and bills like it, will only turn back the clock to an era of litigation, hostility, and

continued environmental decline. We can endeavor to find better ways to generate

hydropower and new sources of energy but we cannot bring back species once they

have gone extinct.

Mr. SHADEGG. Thank you. And I’d like to compliment each of the

witnesses so far for staying quite close to the timeline. Mr. Grimm?

STATEMENT OF ROBERT S. GRIMM

Mr. GRIMM. Thank you, Mr. Chairman and members of the subcommittee. My name is Robert Grimm. I serve as president of Alaska Power & Telephone Company. AP&T is an investor-owned, employee-owned corporation which has been providing public utility

services in Alaska since 1957.

We currently provide service to 25 different communities from

above the Arctic Circle to the very southern portions of Alaska.

Most of these communities are very small and due to lack of infrastructure, have isolated electric systems utilizing small diesel electric generating units that use fossil fuel.

In addition to representing my own company, I’m speaking today

on behalf of Alaska’s electric utility industry through our statewide

association known as ARECA. We strongly support S. 422 for the

reasons I would like to outline, using my utility experience as an

example, but emphasizing that many other companies in Alaska

have similar experiences.

One of the solutions to fossil fuel generation in these remote

areas is the development of small hydro to provide a renewable and

nonpolluting source of energy. We at AP&T began the program to

identify and develop cost-effective projects in 1984. In 1987 we applied for a preliminary permit from FERC, which we received in

June, for 36 months. In November 1993, FERC issued the license

authorizing the project with a capacity of 4.5 megawatts. The

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project was completed and began commercial operation in 1995.

The permitting and licensing process took 7 years and cost $1.2

million. The actual construction took 1 year and cost $10 million.

It’s interesting to note that the licensing cost and permitting cost

exceed the installed cost of equivalent diesel electric generating

units.

This is not just a bad example or an anecdotal thing. We also

have another project in Skagway, Alaska with a capacity of 4

megawatts. It’s at Goat Lake, which is near Skagway. Filed for the

preliminary permit in 1991. In 1994 a license application. Got the

license in 1996. Took over 5 years and cost over $1 million. The

project was completed in the fall of 1998 at a cost of $10 million.

Additionally, we have a couple of other projects that are currently under license. We’ve been through a relicense in our Dewey

Lake system. Hence, we have first-hand experience with FERC

during the last decade. It appears to us that the lack of flexibility,

large project, small project, large impact, small impact in the FERC

rules, regulations and requirements for these small projects has

been the major reason so few have been developed in Alaska. Thus,

we’re forced to use fossil fuel in these remote areas, with the significant impacts associated with fuel storage, fuel spills, air emission, more than offset any of the adverse effects that have been

identified in any of the projects that we’ve already completed or

have currently under license.

These projects are very similar to small community water systems which are being developed in Alaska under State law. Small

hydropower is a resource that has prove itself, yet the regulatory

maze continues to hinder its development. Those of us on the front

line trying to implement renewable energy policies are bewildered.

With all the benefit associated with the development of small hydropower when compared to the continued use of fossil fuel, why

is everybody making it so hard and difficult to develop?

My last point is tidal power. In Alaska, a lot of the communities

are either on coastal sites, because there’s no roads—very few

roads in Alaska—or along rivers. And we’ve looked at several different free-flowing turbines which are essentially an adapted windmill type of a thing that is actually put into the water. Uses the—

captures the free-flowing energy of the river that many of these villages sit by.

Unfortunately, these units are very small—in the neighborhood

of 100 KW. Well, because these rivers are navigable, that would

make a FERC permit required. So we would be looking at $1 million or more to permit a project of 100 KW in these villages where

we’re now using—it just makes some of the alternative energy a

non-option.

To reiterate, S. 442 will not diminish public interest, environmental or conservation considerations and protection as under

FERC. The bill will simply transfer regulatory jurisdiction from a

very distant Washington, DC to our State government in Juneau.

My understanding is that because of our special situation in

Alaska, FERC does not object to the Alaska-only program contained in S. 422, and the State of Alaska supports it. Thank you.

[The prepared statement of Robert S. Grimm follows:]

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PREPARED STATEMENT OF ROBERT S. GRIMM, PRESIDENT, ALASKA POWER &

TELEPHONE COMPANY

My name is Robert S. Grimm. I serve as President of Alaska Power & Telephone

Company (AP&T). AP&T is an investor-owned and employee-owned corporation

which has been providing public utility services in Alaska since 1957. We currently

provide services to 25 different communities from above the Arctic Circle to very

southern portions of Alaska. Most of these communities are very small and, due to

the lack of infrastructure, have isolated electric systems utilizing small diesel electric generating units that use fossil fuel.

In addition to representing my own company, I’m speaking today on behalf of

Alaska’s electric utility industry, through our statewide association known as

ARECA. We strongly support S.422 for reasons I would like to outline, using my

utility’s experience as an example, but emphasizing that many other of our rural

utilities have similar experiences.

One of the solutions to fossil fuel generation in these remote areas is the development of small hydroelectric projects to provide a renewable andnon-polluting source

of energy. We at AP&T began a program to identify and develop cost-effective

projects in 1984.

In July 1987 we applied to the Federal Energy Regulatory Commission (FERC)

for a preliminary permit for the Black Bear Lake Project on Prince of Wales Island

in Southeast Alaska. In June 1988, FERC issued a preliminary permit for a term

of 36 months. During this period, as evidenced by progress reports filed with the

agency, AP&T spent a considerable amount of time and effort consulting with the

agencies. In May 1991, we filed our license application. In November 1993, FERC

issued the license authorizing the project with a capacity of 4.5 MW. The project

was completed and began commercial operation on August 28, 1995. The permitting

and licensing phase took seven years and cost nearly $1.2 million. The actual construction took one year and cost $10 million. It is interesting to note that the permitting costs alone almost exceed the installed cost of equivalent diesel electric generating units. I would like to point out that this project was funded entirely from

private funds.

Another of our projects is located near Skagway, Alaska and has a capacity of 4

MW. The project is called the Goat Lake Hydropower. We filed for a FERC preliminary permit in January 1991 and the FERC issued that permit in June 1991. In

May 1994, we filed our license application and FERC issued the license in July

1996. The permitting and licensing process took over five years and cost us

$1,043,100. The project was completed in the fall of 1998 at a cost of about $10 million. Again, this project was funded entirely with private funds.

Another small hydroelectric project, Wolf Lake, is also located on Prince of Wales

Island, and has a capacity of about 2 MW. The preliminary permit was issued by

the FERC in April 1995. We fulfilled our obligations under the permit and filed our

license application March 27, 1998. We are still awaiting a FERC license. This

project would have been already permitted and under construction if the proposed

legislation before you had been in place five years ago.

Additionally, as part of the Upper Lynn Canal Regional Energy Plan, we are waiting for FERC licensing for a 3 MW project located on Kasidaya Creek north of Juneau near Skagway and Haines in Southeast Alaska. We filed for our preliminary

permit in July 1996 and FERC issued the permit in November 1996. We then followed an Applicant Prepared Environmental Assessment Process. That process took

three years, and we applied for the license last October.

In addition, we have had the opportunity to re-license and amend our 1 MW

project for Dewey Lakes FERC Project No. 1051 at Skagway, Alaska.

Hence, we have had extensive first hand experience with FERC during the last

decade. It appears to us that the lack of flexibility (i.e. large impact vs. small impact) in the FERC rules, regulations, and requirements for these small projects has

been the major reason that so few have been developed in Alaska.

The continued use of fossil fuel generation in these remote areas and the significant impacts associated with fuel storage and air emissions more than offset the

minor impacts of these hydroelectric projects. These projects do not have large dams

that constrict free-flowing rivers. These projects are very similar to the small-community water systems being developed in Alaska under state law.

As you are aware, the environmental costs associated with the continued use of

fossil fuels are significant. One authority has attempted to estimate the ‘‘bottom

line’’ cost of fossil fuels. Included in this assessment were health costs, damage to

water resources, treatment costs necessary to counteract the adverse effect of fossil

fuel use on food supplies, water resources, climate, and health. These costs, when

tabulated, equal 3.35 cents per kilowatt-hour of fossil fuel energy. Even this assessVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00092 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
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ment does not include the environmental costs of cleaning up contaminated fossil

fuel storage sites, which in rural Alaska alone is a $300 million dollar problem waiting to be addressed. These facts are understood and widely accepted.

Small hydropower in Alaska is a resource that has proven itself, yet the regulatory maze continues to hinder its development. Those of us on the front line trying

to implement renewable energy policies are bewildered. With all of the benefits associated with the development of small hydropower when compared to the continued

use of fossil fuels, why is it that small hydro is so difficult to develop?

The proposed legislation will provide us significant regulatory relief from the

hardship we are now encountering when trying to displace fossil fuel generation

with a proven renewable and non-polluting resource. That relief translates into dollars and time savings.

You may hear how FERC regulations contain shortcuts to be used by smaller

projects and how the Applicant Prepared Environmental Assessment can deliver a

FERC license in a shorter time period. We have had direct experience with these

shortcuts and have found them to be largely ineffective. While we appreciate the

intent and efforts of individual FERC staff, the Applicant Prepared Environmental

Assessment process simply has not saved us time or money.

A major underlying problem is the diffusion of hydropower oversight that once

was exclusively FERC’s. Over the years FERC’s overall authority under the Federal

Power Act has been eroded by court decisions and legislative initiatives giving multiple state and federal agencies authority over various aspects of the licensing process. The process has become very inefficient and confrontational and results in very

long licensing time periods and additional costs. Many small hydropower projects

simply cannot afford these costs.

My last point is tidal power. Currently we believe that small tidal or free flowing

hydropower plants placed upon navigable waters will be subject to the jurisdiction

of FERC. In Alaska this technology may have promise for many small coastal or

riverside villages. However, the cost and time required for a FERC license make

this technology a non-option for small-scale development.

S.422 recognizes the special circumstances that exist in rural Alaska: very small

communities, remote sites, no interstate (or for the most part intrastate) power grid,

stand-alone generation that is largely diesel, limited local financial resources and

much undeveloped small hydroelectric potential. Hence, S.422 would greatly facilitate the development of Alaska’s small hydro potential by removing regulatory overlay while still requiring applicants to receive approvals from all other local, state

and federal agencies.

To reiterate, S.422 will not diminish public interest, environmental or conservation considerations and protections as under FERC. The bill will simply transfer

regulatory jurisdiction from a very distant Washington, D.C. to our state government in Juneau. This jurisdictional transfer would only occur upon submission by

the Alaska governor of a state regulatory program and the approval of that program

by FERC after consultation with the secretaries of the Interior, Agriculture and

Commerce. My understanding is that, because of our special situation, FERC does

not object to the Alaska-only program contained in S.422, and the State of Alaska

supports it.

We ask for your support and passage of S.422. I will gladly respond to any questions.

Thank you for this opportunity.

Mr. SHADEGG. Mr. Grimm, thank you very much for your testimony. Mr. David Piper.

STATEMENT OF DAVID E. PIPER

Mr. PIPER. Thank you, Mr. Chairman, members of the subcommittee. My name is Dave Piper. I’m President and Chief Executive Officer of PNGC Power, which is also known as the Pacific

Northwest Generating Cooperative.

We’re located in Portland, Oregon. We’re a cooperatively based

energy service provider for our 11 owners who are mostly small,

rural electric systems throughout the Pacific Northwest.

I want to thank you and the staff particularly for convening this

hearing and the courtesies that have been extended to us in this

process over the last period of weeks and months. I’d like to submit

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my complete written testimony for the record, but I can quickly

summarize our support of the Joint Operating Entity legislation

with the following three points:

No. 1, time is of the essence. BPA has some limited authorities

but no clear guidance on selling preference power to aggregators

such as Joint Operating Entities. Because of the September 31

deadline for completing the present Bonneville contract negotiations and the lead time that’s necessary for analysis and contract

negotiation, we would like to see this enacted as soon as possible.

We need it, in fact.

No. 2, as it’s currently drafted, Senate bill 1937 does not expand

nor contract the amount of preference power sold by BPA. It does

not impact BPA’s revenue. It does not create any incentive for the

formation of new public power entities, nor does it create a loophole

for diverting preference power sales outside of the Pacific Northwest. What S. 1937 does do is allow BPA to sell to aggregators acting on behalf of existing preference customers so that administrative and operational efficiencies can be achieved by both Bonneville

and their customers. For instance, we estimate that for our PNGC

members, the total combined power scheduling operational billing

costs would be at least 60 percent higher without this piece of legislation.

And finally, Mr. Chairman, over the past 2 years that this legislation has been circulated in the region, we have achieved as much

of a consensus as any Northwest energy matter in my recent memory. S. 1937 has passed the Senate with the support of the entire

bipartisan delegation. Congressmen Hastings and Walden introduced companion legislation late last session, which also enjoys bipartisan support. The Northwest Power Planning Council with

members appointed by each Governor from the region have reviewed this legislation and have submitted positive statements to

the Congress.

On a substantive basis, we believe regional and Federal energy

policy goals are enhanced with the passage of this legislation. On

a procedural basis, there are organizations which believe Senate

1937 should wait for comprehensive reform of BPA and argue that

Congress should not pass piecemeal legislation. I personally have

been an advocate for comprehensive reform and review, and I have

been involved in regional discussions on this matter. In this instance, however, relative to this piece of legislation, there is no effect on any other Bonneville customer group. It creates important

benefits to members of my organization, but it does so in a way

that does not disadvantage anyone else.

I firmly believe the Senate recognized this when they passed S.

1937 last year. I would hope that this subcommittee and the House

would do the same. I appreciate the time and am available for

questions.

[The prepared statement of David E. Piper follows:]

PREPARED STATEMENT OF DAVID E. PIPER, PRESIDENT AND CEO, PNGC POWER

Mr. Chairman and Members of the Subcommittee, my name is Dave Piper, and

I am the President and Chief Executive Officer of PNGC Power. PNGC Power, also

known as the Pacific Northwest Generating Cooperative, is a Portland, Oregonbased energy-services cooperative that is owned by 11 mostly rural electric distribution utilities located throughout the Northwest.

91

First and foremost, I would like to thank the Chairman and the Subcommittee

for holding this hearing. PNGC appreciates the courtesy with which we have been

treated by the Committee and its staff in our quest to see adoption of S.1937. We

also we appreciate the sense of urgency with which the Subcommittee has chosen

to act. As I will explain later in my testimony, we are particularly concerned that

this bill be enacted into law in time for our members to be able to use its provisions.

PNGC Power Overview

In the parlance of the industry, PNGC Power is a wholesale aggregator. Our mission is very simple—to minimize the wholesale power costs of our members. Because

we lack any substantial ‘‘owned’’ resources, we are principally in the business of

purchasing wholesale power and/or managing wholesale power contracts. The overwhelming bulk of that power comes from the Federal government, through the Bonneville Power Administration (BPA). PNGC also makes market purchases to meet

the needs of its members, for which we acquired the nation’s first FERC power-marketing license granted to a cooperative entity.

The ability of our members to efficiently manage power supply rests on their ability

to work together through PNGC Power. Put simply, our members formed PNGC to

bring some economies of scale to their power-supply efforts. We provide technical

expertise, participate in ratecases, negotiate power contracts, manage transmission

arrangements, and, in the case of non-federal power, purchase and resell power. As

a wholly owned and not-for-profit entity, we look out for our members’ best interests

in all that we do. By centralizing the wholesale power-supply management, we

spread costs, increase economies, and create administrative and operational efficiencies for systems that are not big enough to justify power management staffs on

their own.

Allowing our members to consolidate their federal power-supply contracts through

PNGC is a natural extension of the role we already play on their behalf. S.1937

would allow BPA to sell preference power to an aggregation entity called a Joint

Operating Entity, or JOE, so long as the amounts of power sold to the JOE, and

the terms and conditions of those sales, are the same as would otherwise apply if

the power were sold directly to the individual customer. Pursuant to the text of

S.1937, a JOE would have to have been formed as a public body or cooperative

under relevant state law as of the date of enactment and consist of two or more public bodies or cooperatives that were BPA customers as of January 1, 1999. This is

included in the bill to specifically address concerns about this legislation leading to

new public power formation. A JOE would be eligible to purchase preference power

for resale exclusively to its members for the purpose of meeting those systems’ net

requirements.

Effectively, what all of this means is that consumer-owned utilities in the Northwest would have the option of consolidating their Bonneville contracts through a

central entity—effectively purchasing their BPA power through a jointly owned entity in order to achieve operational and administrative efficiencies.

As I explained earlier, S.1937 would not expand the pool of preference-eligible customers or alter the amount of preference power that customers are eligible to receive from Bonneville. Its provisions would also not alter the status quo with regard

to the ability to resell either requirements or surplus power purchased from the

agency.

Why we want it

The provisions of S.1937 do not grant any opportunities to PNGC Power that are

not currently available to its member systems. However, as a result of working together, our members do anticipate meaningful operational and administrative savings.

For instance, under future power-supply scenarios that involve PNGC providing

load-following capability for its members, the JOE provisions would allow PNGC to

file a single schedule rather than individual schedules for each member as it arranges power deliveries with control area operators on both a preschedule and realtime basis. Because filing multiple schedules with BPA and other parties involves

exponentially more complicated scheduling requirements, both PNGC and the control-area operator (primarily BPA) can expect lower staffing requirements and significantly reduced paper and electronic transaction costs as a result of joint operations.

We have estimated that, for PNGC, the total combined scheduling and operations

costs would be as much as 60% higher without the ability to operate on a joint

basis. Spread over 400-500 average megawatts of load, those costs are significant

as our members attempt to minimize the retail rates of their customers.

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The second major opportunity presented to our members through enactment of

S.1937 is the ability to save money through more efficient management of billing

processes.

Currently, Bonneville bills PNGC members separately on the basis of hourly demands at metered points of delivery, all read at the hour of the BPA system peak.

Consolidating systems’ contracts through a JOE will not change the basis on which

points of delivery are metered and read, but will result in one single bill rather than

multiple bills.

Accordingly, the administrative burden of rendering separate statements and

monitoring individual accounts and payments will give way to a more streamlined

process involving one single account and one monthly statement received and managed centrally. As is the case with joint scheduling, this would reduce administrative burden and cost. The savings could be substantial for both BPA and PNGC

members, since Bonneville’s billings are very complex and are frequently problematic for the agency to prepare correctly and for the customer to understand and respond properly. We also believe that this simplification in billing process will save

time and money for the agency.

Also, it should be pointed out, no other customers of BPA would experience any

increased costs as a result of the JOE legislation, nor are BPA’s total revenues affected.

The provisions of S.1937 do not provide an ability to match up divergent load profiles in a way that allows a JOE to purchase less power from BPA than its members

would individually. Accordingly, there is no impact on the revenues collected by

BPA as a result of S.1937. As mentioned above, each BPA customer is separately

metered and is billed based on its load during the hour of the BPA system peak.

As a consequence, S.1937 does not provide an ability to capture additional ‘‘diversity’’ benefits because the power usage and consequent charges do not change as a

result of operating under a single contract.

Conversely, enactment of S.1937 will also not allow for a JOE to purchase more

BPA power than its members could individually. These purchases are effectively

limited by the inability to resell cost-based ‘‘preference’’ power beyond what is used

to meet the requirements of its member systems. Section 5(a) of the Northwest

Power Planning and Conservation Act (Regional Act) and Section 5(a) of the Bonneville Project Act, as interpreted by BPA, prohibit the agency’s customers from reselling requirements power. Accordingly, any contract between BPA and an eligible

JOE would include a provision expressly restricting its resale other than to meet

the net requirements of its members.

The politics and timing of the JOE bill

The provisions of S.1937 have achieved as much consensus as any Northwest energy matter in recent memory. No member of the Northwest delegation opposes its

provisions. Congressmen Hastings and Walden introduced companion legislation

late in the session last year, H.R.3447, which still enjoys bipartisan support. Virtually every member of the delegation with committee jurisdiction involving energy

policy has actively supported enactment of the bill. And, the region’s Northwest

Power Planning Council also has fully vetted the JOE legislation and submitted

supportive comments to the Congress.

The Bonneville Power Administration and the Department of Energy do not oppose its provisions. It has substantial support from those entities seeking its adoption—primarily small to medium sized consumer-owned utilities. It is not, to my

knowledge, opposed by any entity, regional or national, on the substance of its merits.

With all of that said, there may be those who do not support enacting S.1937 into

law. As I understand them, the basis of their arguments revolve around a desire

not to amend the Regional Act in a piecemeal fashion. Frankly, for me, this is a

difficult argument to swallow. The idea behind more ‘‘comprehensive’’ amendments

to the Regional Act can only be forwarded by those with changes of their own in

mind. Some of those changes may have merit, some may not. However, I would say

to them that if they too can come up with legislation that creates benefits without

disadvantaging any other parties—I will be the first to support its timely adoption.

Unless they pass that test—as I believe S.1937 does—I believe that any efforts

to delay passage of this bill on that basis would represent an attempt to hold the

JOE bill hostage to other, more controversial agendas. I would entreat the Committee not to be party to efforts of this kind. Instead, S.1937 should be seen for what

it is—a non-controversial measure that creates benefits at no one’s expense. Its enactment, I believe, would constitute a clear case of forwarding good public policy.

As mentioned above, the timing of the enactment of S.1937 is of particular concern to PNGC Power and its members. PNGC is participating in the BPA Power

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Business Line’s rate case on behalf of its members. That rate case is scheduled to

conclude at the end of April 2000. Pursuant to the agency’s Power Subscription

Strategy, the deadline for signing power purchase contracts with the agency on the

terms and at the rates set in the rate case is September 31, 2000.

In order to make informed decisions by BPA’s deadline, PNGC and its members

must undertake a myriad of analyses and decisions, as well as to negotiate appropriate contract forms and plan to meet substantial operational and staffing requirements. Without timely consideration of S.1937, we will not be able to adequately

plan for our energy future and we will not be able to utilize the bill’s provisions for

the purposes of signing those contracts. This would effectively foreclose our ability

to achieve the savings mentioned above.

Summary

While our business and this amendment may appear complex upon initial review,

we believe that our case for S.1937 is straightforward. It achieves savings for small

to medium-sized utilities by allowing them to administer their BPA power contracts

jointly. We also believe it achieves modest savings for the agency as well. Those benefits ultimately accrue to ratepayers. It achieves those outcomes at no expense to

any other interest.

I would again like to thank the Subcommittee for its expeditious review of this

bill. As is obvious by my comments above, PNGC Power and its member utilities

strongly support its adoption. Further, we believe that without timely consideration,

we will lose the opportunity to achieve the benefits that its provisions entail.

I would be happy to answer any questions that the Subcommittee may have.

Mr. SHADEGG. Thank you, Mr. Piper. Mr. Steve Waddington.

STATEMENT OF STEVE WADDINGTON

Mr. WADDINGTON. Thank you, Mr. Chairman, members of the

subcommittee. My name is Steve Waddington. I’m the Northwest

Power Manager for Reynolds Metals Company. Reynolds operates

two aluminum reduction plants in the Northwest, and for nearly 60

years has relied upon Bonneville for direct power service.

I’m here today also to testify on the JOE bill, S. 1937, on behalf

of Reynolds and six other aluminum companies, all with operations

in the Pacific Northwest.

S. 1937 is a bill to amend the Northwest Power Act. It would create a new obligation for Bonneville to sell power to a new customer

class. This new class would be Joint Operating Entities or JOEs,

composed exclusively of existing public agencies that purchase their

power from BPA today. For the small public utilities that would

qualify to purchase from Bonneville as a Joint Operating Entity,

this bill provides some administrative efficiency.

The aluminum companies may ultimately have no opposition to

Bonneville’s selling to JOEs. However, we believe this idea should

not be viewed in isolation but rather as one element in a comprehensive reexamination of the Northwest Power Act. The aluminum companies believe strongly that Congress should not amend

the Northwest Power Act in a piecemeal fashion. The act is now

20 years old and was never designed for application in a deregulated electric industry. All of the act’s basic assumptions are out of

date because of industry restructuring and the movement by the

States to allow retail access.

S. 1937 would contribute to amending this act little by little with

no contemplation of this larger picture, and we believe this is inappropriate, given the ongoing changes in the electric industry.

Many interests affected by the Northwest Power Act, including

the aluminum companies, would like to amend certain sections. We

believe that all parties should work together in a comprehensive revision of the entire act. However, should Congress decide to open

94

the Northwest Act at this time and move S. 1937, we would like

to work with you to repeal the New Large Single Load Provision

in this act.

This New Large Single Load or NLSL clause blocks certain loads

from being served by a local utility and thereby receiving the benefit of Bonneville Power. This provision is preventing the aluminum companies from turning to their local utilities for needed

electric supply. Historically, the aluminum companies in the Northwest received electric service directly from Bonneville rather than

from our local utility. The times are changing. Bonneville once supplied all of the aluminum load. They are now planning to serve

only half. As a result of this new BPA policy, in combination with

this outmoded provision in the act, companies are caught in a

Catch-22. BPA is reducing direct service, and this New Large Single Load clause prevents low-cost service from our local utilities.

This NLSL clause is just one example of the many elements in

the act that no longer make sense. Again, we believe the NLSL

provision would be best considered in the context of reexamining

the entire Northwest Power Act. But if the subcommittee wants to

open the act now, we would like to eliminate the unfairness of this

provision.

In addition, if the subcommittee decides to approve S. 1937, the

bill should be amended to limit Bonneville’s obligation to sell to

Joint Operating Entities to a term of 5 years. In the light of the

need for reexamining the Northwest Power Act, longer term contracts between Bonneville and Joint Operating Entities may limit

the ability for Congress to make more comprehensive change.

The aluminum companies look forward to working with you and

with the Northwest delegation on a review of the Northwest Act,

and thank you for this opportunity to testify.

[The prepared statement of Steve Waddington follows:]

PREPARED STATEMENT OF STEVE WADDINGTON, NORTHWEST POWER MANAGER,

REYNOLDS METALS COMPANY

My name is Steve Waddington. I am the power manager for the Reynolds Metals

Company in the Pacific Northwest. Reynolds operates two aluminum reduction

plants in the Northwest and for nearly 60 years has relied upon direct power service

from the Bonneville Power Administration (‘‘BPA’’) to operate these electric-intensive facilities. Reynolds’ future viability, and that of the other aluminum companies

in the Northwest, depends on continued access to low-cost power.

I am here to testify regarding S. 1937 on behalf of the following companies: Reynolds, Alcoa Inc., Columbia Falls Aluminum Company, Goldendale Aluminum, Kaiser Aluminum and Chemical Corporation, Northwest Aluminum and Vanalco, Inc.

(‘‘the Companies’’). Recently, in response to a request from Representative John D.

Dingell, these Companies joined in a letter expressing our concerns regarding this

proposed legislation. A copy of the letter is attached for your review.

As background, the Northwest aluminum industry employs almost 10,000 Northwest citizens directly and over 30,000 indirectly. The Companies’ direct annual economic contribution to the region is estimated at over $3 billion. The aluminum

plants in the Northwest produce 40 percent of the nation’s aluminum, making the

Northwest the top aluminum-producing region in the country. Close to $1 billion

worth of aluminum is exported overseas from the Northwest each year, contributing

substantially to the nation’s balance of trade.

S. 1937 is a bill to amend the Northwest Power Planning and Conservation Act

(‘‘the Act’’). It would create an obligation for the Bonneville Power Administration

to sell power to a new customer class. This new class would be joint operating entities (or ‘‘JOEs’’) composed exclusively of existing public agencies that purchase

power from BPA today. For the small public utilities that would qualify to purchase

from BPA as a joint operating entity, this bill provides some administrative effiVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00098 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
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ciency. The Companies may ultimately have no opposition to Bonneville selling to

joint operating entities; however, this idea should not be viewed in isolation, but

rather as one element in a comprehensive reexamination of the Northwest Power

Act.

The Companies strongly believe that Congress should not amend the Northwest

Power Act in a piecemeal fashion. The Act is now 20 years old and was never designed for application in a deregulated electric industry. All of the Act’s basic assumptions are being called into question because of pending industry restructuring

and the movement by state governments into the realm of open and competitive energy markets. S. 1937 would contribute to amending the Act, little by little, with

no contemplation of this larger picture. We believe this is inappropriate, given dramatic changes in the electric industry.

Many interests affected by the Northwest Power Act, including the aluminum

Companies, would like to amend certain sections of the Act. As stated above, the

Companies’ believe that all parties should work together in a comprehensive revision

of the entire Northwest Power Act. On the other hand, should Congress decide to

open up the Regional Act this year and move the JOE amendment, the Companies

believe one of the most important issues for Congressional action would be to eliminate the New Large Single Load (NLSL) provision from the Act.

The New Large Single Load provision blocks any new load of 10 MW or more from

being served by a local public utility and receiving the benefit of BPA’s cost-based

power. Thus, the aluminum Companies—whose loads are all much larger than 10

MW—cannot turn to their local public utility for needed economical power as Bonneville reduces their access to direct service.

This is an anomaly the Northwest Power Act did not, we believe, foresee. The aluminum Companies, unlike other industrial consumers in the region, have received

electric service directly from BPA, rather than from their local utility. There were

a number of historical reasons for this direct service relationship with BPA, but

times are changing. Where in the past, BPA supplied 100 percent of the aluminum

load, they are now planning to serve only 50 percent of the load. Although the Companies that signed BPA’s Compromise Approach to supply partial power needs, support it, it has become apparent that BPA no longer intends to supply the full power

needs of the Companies at cost-based rates. As a result of this new BPA policy, and

in combination with an outmoded provision in the Act, the Companies are caught

in a Catch-22. BPA is reducing direct access to cost-based power while the New

Large Single Load provision precludes meaningful access through a local public utility. Ironically, had BPA not preferred to serve the aluminum plants directly in the

past, these companies would have been served all this time by their local public utilities at BPA cost-based rates, just like other industrial loads, and thus would not

be ‘‘new’’ loads blocked off by the NLSL provision.

The NLSL provision is just one example of the many provisions in the Act that

no longer make sense as circumstances change. Again, we believe the NLSL provision would be best considered in the context of reexamining the entire Northwest

Power Act. However, if the Subcommittee decides to open the Act to amendment,

the NLSL needs to be corrected. It is a matter not just of administrative efficiency

to the Companies (as is the JOE provision to its supporters), but of fundamental

fairness and basic economic viability. To that end, if the Subcommittee decides to

move S. 1937 we would like to work with you to include an amendment eliminating

the NLSL provision.

In addition, if the Subcommittee decides to approve S. 1937, apart from consideration of the overall Act, the bill should limit Bonneville’s obligation to sell to joint

operating entities to a contract term of five years. In light of the need for comprehensive review of the Northwest Power Act, longer-term contracts with joint operating entities may prejudge or limit the ability for Congress to make more comprehensive changes to the Northwest Power Act.

In the meantime, as Bonneville intends to offer new contracts to its customers in

the near future, the Companies would support language in these contracts to permit

assignment of the purchase obligations to joint operating entities. Public agencies

that are supporters of S. 1937 can individually sign contracts with BPA—as they

always have done—and assign those contracts to a joint operating entity at the time

when future legislation may authorize BPA to contract with a JOE. This assignment

clause will ensure no need for a rush to judgement on this bill without adequate

consideration of this amendment as part of an overall reexamination of the Regional

Power Act.

Thank you for the opportunity to testify. The Companies look forward to working

with you and the Northwest Delegation on a comprehensive review of the Northwest

Power Act. Concurrent with national energy restructuring, it is time for a review

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of all of the Act’s assumptions in the content of an open access, market-based industry.

Mr. SHADEGG. Thank you for your testimony, Mr. Waddington.

Ms. Lynne Kennedy.

STATEMENT OF LYNNE KENNEDY

Ms. KENNEDY. Mr. Chairman, members of the subcommittee and

the full committee, my name is Lynn Kennedy and I’m a hydroelectric certification program coordinator for the Oregon Department of Environmental Quality. I appreciate the opportunity to

speak today to you on behalf of Governor John Kitzhaber and the

Western Governors’ Association.

My testimony today only addresses House Resolution 2335. The

Western Governors’ Association has no position on the other bills,

but some Governors may choose to submit independent written testimony on those bills.

The main point of what I want to tell you today is that the Western Governors’ Association opposes House Resolution 2335. We

think the goals of the bill are laudable, but we don’t believe the bill

will reach those goals. In fact, we think the bill will create less efficient, less equitable government and provide less resource protection.

Before I go into our specific concerns with the bill, I’d like to talk

some about the reasons that we’re interested in relicensing in the

first place. Western Governors have long recognized the economic

importance of hydroelectric production and supported its development. Utilities are valued and essential partners in our goal to

have strong, healthy economies. At the same time, the projects that

are coming up for relicensing were originally licensed 50 or more

years ago when the scientific understandings of natural resource

needs as well as societal values were significantly different than

today. Relicensing is our one attempt to bring those facilities up to

modern day environmental standards, and it’s our one shot for the

next 30 to 50 years to do that.

In the West, over 100 projects will be in relicensing in the next

10 years. Thirteen of those are in Oregon. Some of these projects

have multiple developments and they affect entire watersheds.

Western States are interested particularly in developing and

maintaining balanced, diverse economies while still protecting the

natural resources on which those economies were traditionally

based and those resources which provide the quality of life that we

enjoy. We necessarily view hydropower in a context that includes

other sectors and values. We believe that the Federal Power Act as

amended under ECPA also recognizes that same need to accommodate diverse values. We see the Federal Power Act with ECPA as

allowing FERC to balance among various interests by setting a

floor of resource protection that holds some things safe from that

balancing.

The agencies that are given the responsibility to set that resource protection floor are the same agencies that set that floor in

other sectors of our economies, for example, agriculture, forestry

and urban development. And this is a key point, is that we need

to look beyond just the energy sector to all the sectors that affect

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our economies. We want to have a level playing field where everyone provides the appropriate mitigation for their impacts.

Some of the authorities that create that resource protection floor

are best at the State level. In Oregon the Federal and State agencies have collaborated well. We have appreciated the Federal expertise that they bring to the process in areas where we don’t have

expertise, and we’ve particularly appreciated their authority to

backstop our 10(j) fish and wildlife recommendations.

Now I’d like to move on to briefly discuss the reasons that we

oppose House Resolution 2335. First, we believe that the bill will

create duplication and spinning of wheels in government. The bill

requires agencies to evaluate a broad set of criteria, criteria for

which these agencies don’t have the expertise or jurisdiction to

make such evaluations. For example, they’re required to look at

drinking water and air quality. These are areas of expertise that

fall under my agency, the Department of Environmental Quality,

and we don’t think it would be helpful to have the fish and wildlife

agencies making separate, independent assessments of those values.

Second, the bill requires submittal and justification of conditions

prior to application—to the submittal of a license application. The

conditions really should be based on what’s in the license application, so this is kind of putting the cart before the horse and making

agencies do a lot of justification up front that they’ll probably have

to change later when they know what’s actually in the license application.

Another example is that the bill requires substantial scientific

evidence—which I think we all agree we want scientific evidence

to be substantial—and then it turns around and it prohibits those

agencies from conducting their own environmental reviews, aside

from what FERC might do. So I think it undermines their ability

to meet the very standards that it specifies.

Our second significant issue with the bill is that it will result in

less resource protection. It explicitly removes that balance—the

floor—by causing the agencies to balance with economics and other

factors. Remember, where there’s no floor, there’s not going to be

equity across sectors. Other sectors may have to pick up the mitigation that hydro should justly have had to provide.

Having explained why we oppose the bill, we believe there are

other collaborative efforts that we can support. We’ve talked about

one of those, that’s the Federal agencies task force. EPRI had

brought together some national stakeholder meetings which have

produced some very useful papers. And then the Western Governors, National Governors have worked with the NHA and EPRI

to foster conferences to the same goals.

Finally, I’d like to say that Oregon has put together a process in

which our agencies must collaborate and must come out with a unified position. So even though we sometimes have conflicting mandates, we have a way of working that through within the State of

Oregon. We offer that as a model.

This concludes my remarks. Mr. Chairman, once again I thank

you on behalf of Governor John Kitzhaber and the Western Governors’ Association for this opportunity to share our views. I’d be

happy to answer any questions.

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[The prepared statement of Lynne Kennedy follows:]

PREPARED STATEMENT OF LYNNE KENNEDY, STATE OF OREGON, OFFICE OF THE GOV- ERNOR, ON BEHALF OF THE STATE OF OREGON AND THE WESTERN GOVERNOR’S AS- SOCIATION

Mr. Chairman, members of the subcommittee, my name is Lynne Kennedy. I am

the Hydroelectric Certification Program Coordinator for the Oregon Department of

Environmental Quality. I appreciate the opportunity to appear here today before the

subcommittee on behalf of Governor John Kitzhaber and the Western Governors’ Association.

The Subcommittee is hearing testimony on a number of bills today related to hydroelectric power production. I will be testifying on only one of those bills, HR 2335.

The Western Governors have taken no position on the other bills; Governor

Kitzhaber’s Office may submit separate written comments on S. 1937, which concerns the Northwest Power Act.

The main point that I want to communicate today is that the State of Oregon and

the Western Governor’s Association oppose HR 2335. We believe that while improving the hydroelectric relicensing process is a laudable goal, the bill will not meet

this goal. In fact, we believe the bill will result in inefficiency, inequity, and undesirable loss of natural resource protection.

Before I address specifics of the bill, I’d like to highlight the reasons for our interest in it. Oregon has 13 hydroelectric projects that will be involved in the Federal

Energy Regulatory Commission’s (FERC) relicensing process within the next ten

years. In the West as a whole, the licenses of over 100 hydropower projects will expire in the same timeframe. Many of these projects include multiple developments,

some of which affect the movement of fish and wildlife populations, quality of habitat, and water quality across entire watersheds.

Western governors have long recognized the economic importance of hydropower

and supported its development—subject to a strong state role. Utilities are valued

and essential partners in the economic development and health of our states. At the

same time, socioeconomic conditions, scientific knowledge, and society’s values have

all changed dramatically in the last fifty years, since those hydropower licenses

were first issued.

We owe it to our citizens to ensure that hydroelectric projects address current

knowledge and public policy concerns. Relicensing may provide the only opportunity

during the next thirty to fifty years to address the effects a hydroelectric facility has

on water quality, fisheries, and other natural resources. Many of these effects were

not understood and were not addressed when the projects were first licensed.

Perhaps the most obvious illustration of the need to re-evaluate the impacts of

hydropower projects is the status of salmon in the Northwest. Today we know that

the cumulative impact of human activities, including hydropower production, has

exceeded the ability of many populations to adapt. Oregon is now working to save

our signature species from a human-caused slide toward extinction.

Western states are interested in developing and maintaining diverse economies,

while protecting the natural resources that traditionally served as the base for both

our economies and our quality of life. We necessarily view hydropower in a context

that includes economic and social values beyond just those related to power production. We believe that the Federal Power Act (FPA), as modified by the Electric Consumers Protection Act (ECPA) also recognizes this need to accommodate diverse values.

The FPA gives FERC responsibility to balance power-related interests, but limits

its ability to ‘‘balance away’’ certain resource protection requirements that are best

evaluated in contexts broader than just power production. Under the FPA, resource

agencies with mandatory conditioning authority set a ‘‘floor’’ of natural resource protection, above which FERC is free to make economic tradeoffs to ensure an efficient

and plentiful power supply. The agencies who provide the floor for the energy sector

are the same ones who provide the floor for other economic activities such as agriculture, forestry, and urban development. This promotes a level playing field across

sectors. To encourage local involvement and decision-making, these authorities are

vested in federal and state agencies according to their respective expertise and geographic scope.

In Oregon, State and Federal agencies have used their respective authorities in

a collaborative and productive manner. While we haven’t always agreed on every

issue, better outcomes have resulted from our discussions. Oregon state agencies

have relied on specific expertise that the federal agencies bring to the relicensing

table, such as fish passage design and geomorphologic process evaluation, to assist

us in making better recommendations for protection and mitigation measures at a

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project. FPA Section 18 fishway authority has been a critical federal tool for helping

meet state goals, and Section 4(e) authorities can serve to backstop state recommendations under FPA Sections 10(a) or 10(j).

I’d like to move on to discuss the reasons we oppose HR 2335. For each reason,

I’ve tried to provide at least one example to illustrate the point.

Contrary to its stated goals, HR 2335 will increase duplication of effort—thereby

increasing inefficiency in government. By way of example, Section 32 requires that

agencies such as NMFS and USFWS consider diverse factors such as economic values, air quality, irrigation, and drinking water supply when writing license conditions. Unfortunately, these agencies have neither the expertise, nor the information

required to evaluate such factors. There are other agencies who already have responsibility and expertise to evaluate and condition for those factors. For example,

my own agency, the Department of Environmental Quality, has obtained federal delegation under both the Clean Air and Clean Water Acts to protect air and water

quality. We do not believe that it is either practical or useful for other agencies to

make their own independent determinations concerning these issues during relicensing.

My second major point concerning HR 2335 is that it promotes waste in government by establishing standards, and then creating roadblocks that impede compliance with those standards. For example, among the requirements in Section 32 is

a statement that consulting agencies must take into account the mandatory conditions of other agencies. While this may seem reasonable, the bill later adds a process requirement that conditions be submitted to the applicant 90 days prior to the

filing of a license application. At this point in the process agencies cannot know how

the applicant proposes to operate the project under the new license, nor how it

should best be conditioned. Agencies don’t have enough information to determine

their own conditions—much less to conform them to other agencies’ mandatory conditions. The likely outcome is that conditions would have to be written and fully justified twice, creating extra work with little payoff.

Our third major objection to HR 2335 is perhaps the most important: the bill will

result in inadequate protection of natural resources. By requiring federal resource

agencies to meet untenable process standards and to base their conditions on a balance of factors outside their expertise and traditional jurisdiction, the bill will greatly diminish those agencies’ ability to write defensible conditions. The bill even addresses the recommendations made by state fish and wildlife agencies under FPA

10(j), making it easier for FERC to simply balance away those recommendations.

In addition, the bill removes the natural resource protection floor I mentioned earlier by including economics as a primary consideration in every resource-protection

decision affected by the bill. This reduces the ability of agencies such as my own

to balance the burden of resource protection across sectors, leaving others to repair

damage caused by the hydropower industry. Where this damage can’t be repaired,

it may deprive future generations of the opportunities and quality of life that is

their proper heritage.

At this point, I’d like to note that there are ongoing efforts to improve the hydropower relicensing process within the existing legal framework. These are collaborative efforts that recognize the needs of all participants. There are at least three

such ongoing efforts. (1) Federal agencies and states are participating in workgroups

designed to improve coordination and communication during relicensing. These

agencies are seeking input from a broader stakeholder group formed under FACA

rules to ensure the usefulness of the workgroups’ products. (2) Stakeholders nationwide are meeting to resolve issues under the facilitation of the Electric Power Research Institute (EPRI.) These discussions have resulted in a number of useful issue

papers that include recommendations that can be adopted by relicensing participants. (3) The National and Western Governor’s Associations have worked with

EPRI and NHA to sponsor nationwide and regional conferences to discuss and resolve relicensing issues.

Finally, I’d like to mention that the State of Oregon has developed a very successful collaborative approach for participating in hydroelectric reviews that could be a

model for others. The State has designed its water right review to coincide with and

track the FERC relicensing process, with a goal of minimizing effort, and maximizing shared information. The process was the brainchild of a Task Force that included state agencies and a broad range of stakeholders. Oregon’s process respects

differing agency mandates, but ultimately resolves conflicts so that one unified state

position results. We believe that collaboration—not legislation that favors one interest at the expense of others, is the best way to improve the relicensing process.

This concludes my remarks. Mr. Chairman, once again I thank you, on behalf of

the State of Oregon and the Western Governor’s Association, for this opportunity

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to share our views with the subcommittee. I look forward to answering any questions the committee might have.

Mr. SHADEGG. Thank you, Ms. Kennedy. Mr. Paul Brouha.

STATEMENT OF PAUL BROUHA

Mr. BROUHA. Good afternoon, Mr. Chairman, Mr. Towns. The

Department of Agriculture and the Forest Service have made the

licensing of hydropower projects on national forest system lands a

very high priority. Of the approximately 200 federally licensed

projects due for relicensing in the next 10 years, more than half are

partially or wholly within national forests, while the remainder lie

in watersheds—most of the remainder lie in watersheds that contain national forests.

The Forest Service is responsible for conditions in hydropower licenses necessary for the adequate protection and utilization of the

national forest, as stated in Section 4(e) of the Federal Power Act

and the Wild and Scenic Rivers Act, Section 7.

We recognize that hydropower is a valid use of National Forest

System lands. However, without appropriate protections, hydropower projects can have adverse impacts upon National Forest System resources; notably, water quality, fisheries, and wildlife.

Since hydropower licenses are for terms of 30 to 50 years, it’s important that we exercise our conditioning authority as necessary at

the time of licensing to ensure that adequate resource protection

measures are included in the license. The Forest Service is very active in this licensing, working with the licensees, other Federal and

State resource agencies, the FERC, and other users of National

Forest System lands to reduce the negative environmental and recreational impacts of hydropower projects and create partnerships

with others that will protect and enhance National Forest System

resources.

In addition, we have created national and regional hydropower

assistance teams led by my colleague, Ms. Janopaul, that facilitate

the involvement of national forests with licensees, National Forest

System stakeholders and other agencies.

The Forest Service is determined to effectively participate in both

alternative and traditional licensing. To date, we have been able to

provide sufficient staff and resources to accept all licensee invitations to participate in collaborative licensing processes.

Along with other Federal agencies, USDA and the Forest Service

are taking an active role in a number of ongoing national processes

mentioned by other people testifying here today. We are aimed at

improving hydropower licensing and industry relationships and

protecting our national resources.

During this year’s review of our regional hydropower programs,

the Forest Service invited licensees and other stakeholders to participate and comment on the Forest Service’s performance in hydropower relicensing and licensing.

In the interest of good communication and improved hydropower

licensing, the Forest Service ensures three opportunities to comment on its license terms and conditions before such conditions are

finalized. The first opportunity is provided through the FERC licensing process when parties to the licensing process can comment

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upon the Forest Service’s preliminary conditions in response to the

license application.

The second opportunity for comments to FERC is upon draft conditions in respond to FERC’s NEPA process. The third opportunity

for comment is offered to the general public and the established

Forest Service NEPA process. To elaborate, this process supplement’s FERC’s NEPA document, provides the Forest Service information and analysis record used to develop and support the conditions, and provides the proposed final conditions themselves.

The Forest Service joins in the concerns raised by the Department of Interior and NOAA on the bills under consideration. We

also offer the following additional comments. H.R. 2335 would create onerous, costly and time-consuming burdens on the Forest

Service that would lead to additional complexity and possible conflicts in law and authority. Far from streamlining FERC licensing

process, this bill would create delays, conflicts, confusion, and impossible requirements. The bill does not fully recognize the different responsibilities of each agency or the potential impacts of hydropower generation.

The most objectionable proposal was the potential loss of the

mandatory 4(e) conditioning authority. Some of our other concerns

are included in our written testimony, which I’ll just include in the

record with your permission, sir.

On Senate 422, the Forest Service has previously testified in opposition to this proposal to eliminate protections for National Forest System resources by removing small hydropower projects in

Alaska from FERC jurisdiction. The bill would significantly impair

the ability of the Forest Service to manage National Forest System

lands and eliminate comprehensive fisheries management in Alaska. The bill creates a confusing configuration of State and Federal

jurisdictions. The Federal Power Act already provides for special

treatment of small hydropower while maintaining the ability of the

Forest Service to protect National Forest System resources.

Senate 1236, H.R. 1262, and H.R. 3852 provide for special exemptions for particular hydropower projects, and the Forest Service

objects to such measures, sir.

Thank you, and I’d be happy to answer questions.

[The prepared statement of Paul Brouha follows:]

PREPARED STATEMENT OF PAUL BROUHA, ASSOCIATE DEPUTY CHIEF, NATIONAL

FOREST SYSTEM, FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE

Good morning Mr. Chairman and members of the Subcommittee. I appreciate the

opportunity to testify regarding hydropower legislation currently under your consideration. My name is Paul Brouha, Associate Deputy Chief for the National Forest

System. With me is Mona Janopaul, National Hydropower Program Manager.

Background

The Department of Agriculture and the Forest Service have made the licensing

of hydropower projects on National Forest System (NFS) lands a very high priority.

Of the approximately 200 federally licensed projects due for relicensing in the next

ten years, more than half are partially or wholly within national forests, while most

of the remainder lie in watersheds that contain national forests. The Forest Service

is responsible for conditions in hydropower licenses ‘‘necessary for the adequate protection and utilization of—the national forest (Section 4(e) Federal Power Act

(FPA)), and Wild and Scenic rivers (Section 7, FPA).

We recognize that hydropower is a valid use of NFS lands, however, without appropriate protections hydropower projects can have adverse impacts upon NFS resources, including water quality, fisheries, and wildlife.

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Since hydropower licenses are for terms of 30 to 50 years, it is important that

we exercise our conditioning authority, as necessary, at the time of licensing to insure that adequate resource protection measures are included in the license. The

Forest Service is very active in these licensings, working with the licensees, other

federal and state resource agencies, the Federal Energy Regulatory Commission

(FERC), and other users of NFS lands to reduce the negative environmental and

recreational impacts of hydropower projects and create partnerships with others

that will protect and enhance NFS resources.

In addition, we have created national and regional Hydropower Assistance Teams

that facilitate the involvement of the national forests with licensees, national forest

system stakeholders, and other agencies. The Forest Service is determined to effectively participate in both alternative and traditional licensings. To date, we have

been able to provide sufficient staff and resources to accept all licensee invitations

to participate in collaborative licensing processes.

Along with other federal agencies, USDA and the Forest Service are taking an

active role in a number of ongoing national processes that are aimed at improving

hydropower licensing, industry relationships, and protecting our natural resources.

National processes include the Interagency Task Force and its Federal Advisory

Committee, as well as the hydropower-industry sponsored Electric Power Research

Institute’s National Review Group. In addition, many of our staff have met with various members of the hydropower industry and attended industry conferences around

the country. During this year’s review for our regional hydropower programs, the

Forest Service invited licensees and other stakeholders to participate and comment

on the Forest Service’s performance in hydropower licensing.

In the interest of good communication and improved hydropower licensing, the

Forest Service ensures at least three opportunities to comment on its license terms

and conditions before such conditions are finalized. The first opportunity is provided

through the FERC licensing process when parties to the FERC licensing can comment upon the Forest Service preliminary conditions in response to the license application. The second opportunity for comments to FERC is upon draft conditions

in response to FERC’s NEPA process. The third opportunity for comment is offered

to the general public in the established Forest Service NEPA process.

HYDROPOWER BILLS

The Forest Service joins in the concerns raised by Department of the Interior and

NOAA on H.R. 2335, H.R. 1262, H.R.3852, S.422, and S.1236 and defer to their positions on these bills. We also offer the following additional comments on these bills.

H.R. 2335

H.R. 2335 would create onerous, costly, and time-consuming burdens on the Forest Service that would lead to additional complexity and possible conflicts in authority and law.

Far from streamlining or improving the FERC licensing process, this bill would

create delays, conflicts, confusion and impossible requirements. The bill does not

fully recognize the different responsibilities of each agency or the potential impacts

of hydropower generation. Some of our specific objections include:

Section 32(b)

Section 32(b) would eliminate consideration of measures necessary for the

protection of NFS resources, and instead direct the Forest Service to consider

issues outside its realm of expertise and outside NFS lands, e.g., economic and

power values, electricity generation, capacity and reliability, air quality, flood

control, and compatibility with other agencies’ terms and conditions. Forest

Service analyses would also be duplicative of other resource agencies and FERC

analyses. The bill would undermine Forest Service authority over NFS lands

and introduce a possible conflict between the FPA and Federal Land Policy and

Management Act that was resolved by Congress in the 1992 amendments to the

FPA.

Section 32(c):

Section 32 (c) would require that each condition proposed by the Forest Service or other agencies be subject to ‘‘appropriately substantiated scientific review.’’ This proposed standard is nebulous and untested. In contrast, the current standard for determining the adequacy of conditions and recommendations

in licenses is whether they are supported by ‘‘substantial evidence,’’ and is wellsettled in law. The Forest Service makes science-based decisions, and we must

retain the final decision-making authority and comport with individual Forest

Plans when issuing mandatory terms and conditions designed to protect NFS

resources.

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Section 32(e):

Section 32 (e) would require that agencies issue their terms and conditions

before the licensee has filed its application. An agency cannot adequately assess

conditions appropriate for a license before the license application is filed. Based

upon each license application, the Forest Service creates specific terms and conditions for that hydropower project. The responsibility to manage NFS lands

cannot be delegated to any other entity by creating an additional reviewing authority over Forest Service conditions. As the Ninth Circuit Court of Appeals

has observed, if the license applicant desires to construct or operate a hydropower project on NFS lands, the applicant should rightly answer to the Forest

Service.

This Section would also delay licensing by adding a six-month appeal process

(before an administrative law judge or other independent reviewing body) prior

to the finalization of agency conditions and separate economic analysis by FERC

of each term and condition. This Section would open the door to significant

harm to NFS resources by reducing mandatory conditions regarding fish, wildlife, habitat, and other resources to mere recommendations if the independent

reviewer takes more than 180 days to complete the review. Finally, this Section

would duplicate the appeal process available to the general public under the

Forest Service NEPA process.

Section 6:

This section is unnecessary. Under the FPA, when FERC is considering an

exemption from licensing for a small hydropower project, the Forest Service is

allowed to participate and condition the exemption so as to protect NFS resources. These existing FPA provisions regarding exemptions for small hydroelectric projects are sufficient and further study of a separate licensing process

for such facilities is not warranted.

If a study were conducted and a new procedure for licensing small hydropower projects were enacted into law, the Forest Service would oppose any procedure that would diminish our role in the protection of NFS resources under

such licensings

S. 422:

The Forest Service has previously testified in opposition to this proposal to eliminate protections for NFS resources by removing small hydropower projects in Alaska

from FERC jurisdiction.

This bill would significantly impair the ability of the Forest Service to manage

NFS lands, and eliminate comprehensive fisheries management in Alaska. The bill

creates a confusing configuration of state and federal jurisdictions. As stated above,

regarding Section 6 of H.R. 2335, the FPA already provides for special treatment

of small hydropower while maintaining the ability of the Forest Service to protect

NFS resources.

S. 1236 and H.R. 1262, and H.R. 3852:

These bills provide for special exemptions for particular hydropower projects, and

the Forest Service objects to such measures. The Forest Service NEPA process provides for public participation and timely environmental analysis. By extending a

construction period or eliminating licensing altogether, Congress would be impairing

the public’s opportunity to participate in the process and to receive electric power

from a more efficient licensee. Such extensions take the matter beyond the scope

of the original environmental review, and may lead to conflicts with ESA and other

statutory obligations. Eliminating applicability of FPA to a non-federal hydropower

project, as proposed in H.R. 3852, defeats the FPA’s purpose of development of the

waterway and protection of its resources.

Thank you. I would be happy to answer any questions.

Mr. SHADEGG. Thank you for your testimony. And before we

move to questioning, I’d like to ask unanimous consent that statements submitted by stakeholders be made a part of the record.

Without objection, so ordered. And questions submitted by our colleague, Mr. Dingell, to stakeholders on S. 1937 and the response

to those questions also be made a part of the record. Without objection, so ordered.

Let’s begin by turning to Mr. Towns for his questions.

Mr. TOWNS. Let me—first of all, let me begin by asking—we’ve

heard a lot of talk about task forces. You’ve heard a lot of talk

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about the task force this morning. How many of you feel comfortable just moving forward with the task force?

Mr. LYNCH. Mr. Towns, I’ll try that one first. The task force may

be a good process and it may come up with some good results, but

in the meantime, we’re licensing projects.

Mr. TOWNS. Right.

Mr. LYNCH. And we can’t wait that long.

Mr. MURPHY. And just on behalf of all the members of the National Hydropower Association, we do support that task force and

we want that to move forward. Do we think it will do all the things

that this legislation will do? No, it won’t. And do we know when

it will get done or what we will exactly accomplish? We don’t know

that at that point. We think this legislation remains a very important facet as well as the task force, but neither one of them will

work alone.

Mr. TOWNS. Thank you.

Mr. FAHLUND. As a member of the Federal advisory to that task

force, I’d like to respond. I do think that the task force won’t do

all of the things that are in this bill, and that’s precisely why I

think it’s a good avenue, because I think that what this bill does

is effectively creates unnecessary and additional process, whereas

it doesn’t actually get at the heart of the matter in some instances.

There is a need, I think——

Mr. TOWNS. Could you be specific?

Mr. FAHLUND. Sure. I believe that there is a need to create some

certainty of process within relicensing, and I think that there are

ways that the Federal agencies can do that, and they are, I believe,

moving in that direction through the task force.

I think that we’re going to see some products coming out of that

task force in the next several months that are going to result in

some significant improvements in terms of creating certainty of

process, in terms of how conditions are developed, and as well as

giving the public an opportunity to at least have some input on

how those conditions are developed. I don’t believe that anything

coming out of the task force is going to lead to any guarantee of

profitability of projects. I don’t believe that anything coming out of

the task force is going to give industry the ultimate in assurance

that every project is going to make it through without some problems.

This is a very complicated process, and we are inevitably going

to run into projects where there are stumbling blocks. The individual unique characteristics of all of these river resources and all

of the stakeholders involved necessitate complexity. It’s almost an

inevitability. And that’s why we grant 50-year licenses for these

projects; 30 to 50-year licenses for these projects. That’s—these industries dominate——

Mr. TOWNS. But it takes 30 years to get it.

Mr. FAHLUND. In fact, actually, the 30 years to get it is as much

upsetting—at least as upsetting to me as it is to anyone here. As

a representative of the environmental community, we sit year after

year with projects that are beyond expiration that receive annual

licenses of status quo terms and conditions. That status quo condition basically prolongs harm to the environment, because we don’t

upgrade those projects. Now, that’s not to say that industry is the

105

only one to blame in that instance. But it is an incentive not to

move forward and not to meet environmental responsibilities.

Mr. TOWNS. You know, I hear all these horror stories, you know,

and that’s the reason why I keep asking about this task force, you

know, because I keep getting this, you know. And I’m certain

there’s probably a lot of you sitting there probably have some horror stories that you could tell. I wish I had the time to tell you a

horror story and you tell your horror story. I wish I could go down

the line.

Mr. FAHLUND. We probably could all come up with horror stories

I’m sure. But I think it’s also important to remember that a lot of

the horror stories that you hear are really relics of the past. Things

like Cushman, for instance, the Cushman project, which is the 30-

year relicensing. That started 30 years ago. It was a morass. Nobody benefited from that. It’s in court today. It’s not doing any—

none of that did anybody any good. But we’ve learned a lot since

then, and I think we’re on a trajectory to make some real improvements. I think we’re actually working well with industry for the

first time in most folks’ memory. And I think that a lot of this can

jeopardize those efforts.

Mr. TOWNS. And I don’t know. I mean, I could go on. Just recently a project in Wisconsin, where it was moving along. All of a

sudden the State came into the picture in Section 401 of the Clean

Water Act, and now that’s a mess. I mean, so it’s one thing after

another. So, I mean, you know——

Mr. BROUHA. Mr. Towns, may I address your question, sir?

Mr. TOWNS. Sure. You can.

Mr. BROUHA. The Forest Service is committed to that process

with the interagency task force. That said, however, we feel the

FERC needs to be more forthright in addressing our concerns with

respect to modification of the NEPA process so that we could get

out of the NEPA business and they could effectively address our

concerns in their process. And I’d be pleased to discuss that at

greater length with you. And I believe Ms. Kennedy has a followup.

Ms. KENNEDY. You asked if people actually think the task force

activities will result in the necessary changes. I think they have

high potential to do that. My experience is that actually the folks

in our—that work in hydropower in Oregon have similar goals to

ours. They really do want to protect the resource. And yet, commonly, you know, we come up against roadblocks, and it’s more of

the timing, the scheduling of things, and just the opportunity to

have discussions that is lacking. And I think these Federal task

forces are going to address those types of issues so that we can in

fact get on the ground and resolve them.

I sit on the State Mandates Task Force, which is one of the subgroups of the Federal task force. And we recently came out with

a document which is just our first, which is looking at how can

States write conditions in a way that will be actually

implementable and enforceable by FERC. And we just produced a

document. The FACA looked at that and thought that it was really

helpful. So I think that’s an example of ways that this task force

actually is furthering the process and will make it far more efficient.

106

Mr. MURPHY. Mr. Towns, Mr. Chairman, may I just respond

again?

Mr. TOWNS. Yes.

Mr. MURPHY. A couple things that have come up here that I’d

like to clarify. One is whether these horror stories are old horror

stories. You heard Mr. Lynch speak today about the North Umpqua

project. That is not a 30-year-old story. That is a story that has occurred within the past few months. And if you go through my testimony, when you look at the stories that we’ve talked about, these

are not old stories. These are stories that have been occurring within the past year. Do I think we’re making progress on some fronts?

Sure. But do I have enough trust that we don’t need some other

things? No, I don’t. We do need these other things.

The other thing I do want to point out is when people talk about

delays, appreciating that the delays are for various causes, there

is absolutely no truth to the fact that a licensee has an incentive

to delay the issuance of a license. With deregulation happening, licensees are trying to sell projects. New owners are coming in who

are becoming generators rather than your typical old-style utility.

And for a generator to delay the issuance of that license only does

one thing to that project—it lowers the price and the value of that

project, because no one wants to buy a project that has the questionable issues in front of it that a project in the middle of relicensing does.

Also as a project continues to sit on the books, and we continue

to look at more things, more millions of dollars are spent looking

at more and more issues until the licensee finally gets to a point

where it knows what it’s going to do. So these licensees are very

interested in getting those licenses issued.

Mr. TOWNS. Thank you very much, Mr. Chairman.

Mr. SHADEGG. Okay. We can have a second round of questioning

if you want. And let me ask a series of questions. First of all, Ms.

Kennedy, I want to—you testified on behalf of the Western Governors’ Association. Did they—how did they reach their decisions?

Is this a unanimous position of all of the Western Governors?

Ms. KENNEDY. My comments here reflect a position that was developed I believe at the end of the 1980’s and then renewed more

recently. And it was a fairly——

Mr. SHADEGG. Wait, wait, wait, wait. It’s a position that was developed at the end of the 1980’s?

Ms. KENNEDY. Right. And then——

Mr. SHADEGG. On Mr. Towns’ bill, which was introduced——

Mr. TOWNS. Just recently.

Mr. SHADEGG. I’m having a little trouble here.

Ms. KENNEDY. I was speaking more generally. There was a general position on hydropower and resource protection done in the

late 1980’s. And then more recently, there was a Western Governors’ position on—I believe on the Craig bill, which is very similar to this one.

Mr. SHADEGG. But not on Mr. Towns’ bill?

Ms. KENNEDY. I believe it’s the same bill.

Mr. TOWNS. What? I’m sorry? No.

Mr. SHADEGG. Is that S. 422?

Ms. KENNEDY. I don’t know the number of that.

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Mr. SHADEGG. So you’re not sure if it was on Mr. Towns’ bill or

not? You think maybe it was, but you’re not sure?

Ms. KENNEDY. My understanding was that it was the same bill.

It is the same bill. I’m getting feedback that it’s the identical bill.

Mr. SHADEGG. Can I—now can I get to my question? Is this a

unanimous position of the Western Governors’ Association, or is

this a staff position that they’ve reviewed? Is it a unanimous decision of the Western Governors? To oppose Mr. Towns’ bill?

Ms. KENNEDY. I don’t know how that decision was arrived at.

Mr. SHADEGG. Okay.

Ms. KENNEDY. I can get back to you on that.

Mr. TOWNS. Is anyone on the task force, any of those Governors

on the task force?

Ms. KENNEDY. On the Federal task force?

Mr. TOWNS. Yeah.

Ms. KENNEDY. There are State representatives on there who report to their Governors, but no Governor is actually on that task

force. It’s more a staff level task force.

Mr. SHADEGG. Thank you very much. Let me turn to Mr.

Fahlund and Mr. Murphy. And Mr. Fahlund, I wanted to ask you

a question. As I can tell the testimony, as I understand the testimony, there is a dispute over the degree of reduction in hydropower

as a result of the relicensing process. Mr. Murphy has indicated he

believes it’s 8 percent or at least that amount. And you’ve indicated

in your testimony that it’s 1 percent. But it’s a dispute over the reduction in the electrical—in the generating capacities or process of

the relicensing. Is that right?

Mr. FAHLUND. Yeah. I guess there is a dispute in what number

is most appropriate.

Mr. SHADEGG. Okay. I want to ask you. I would certainly agree

with the concept that in the relicensing process, it could be that

you would look at environmental impacts of a particular project in

a particular location and decide, you know, there are more negatives here than positives, so we’re going to shut that one down in

order to mitigate the environmental impact. That’s a plausible circumstance. My question of you is, a series of questions. No. 1, it’s

my understanding that there are literally hundreds if not thousands of hydro—of dams across America where there is no turbine,

and yet there could be. The dam’s already there, but no one ever

built a turbine.

Second, there is a category of dams where there is a turbine or

turbines, but not as many turbines as could be present. And third,

there is a category of dams where you have an older, inefficient

turbine which could be replaced with a newer, more efficient turbine.

If Congress accepts the premise that some dams, upon examination, are causing—and some hydropower producing plants—are

causing more environmental damage than the benefit they’re producing, would—and so therefore should be shut down—would

American Rivers and the others that you represent support the addition of hydroelectric generating capacity either at existing dams

where there is no generating capacity or where there’s less generating capacity than there could be, or where we could put in more

efficient generating capacity?

108

Mr. FAHLUND. I guess I’d like to respond first by stressing something, and that is that we by no means seek removal or decommissioning of all hydropower. In fact, it’s a rare instance where we actually seek decommissioning of hydropower. But that said, I think

your point is a good one actually. I think given that there is actually—there are many sites across the country where there is either

no capacity or there’s underutilized capacity or perhaps just inefficient capacity, I’ll address the second two first of all.

Where there’s older, inefficient turbines, relicensing—oftentimes

licensees will put in new turbines at that time, or they’ll rewind

old turbines and they will do upgrades and things of that nature

that basically improve the efficiency of those projects. And provided

that the environmental considerations of—the impacts of those

changes are considered in doing that, I have no objection to it.

I think that with respect to the thousands of dams without hydropower across the country, I think it’s necessary to take a look

on a case-by-case basis. There is one company out there that I’m

aware of that has applied for preliminary permits on 160, 170

Army Corps-owned lock and dams, particularly in throughout the

Midwest, and while we don’t have a good understanding of that

technology just yet, I have no objection per se in building capacity

where it’s the environmentally responsible thing to do.

Mr. SHADEGG. In your answer to those, you said ‘‘I have no objection.’’ I assume you were testifying on behalf of American Rivers?

Mr. FAHLUND. I am. I am speaking for American Rivers.

Mr. SHADEGG. Let me ask you another question. Has American

Rivers ever supported an expansion or increase in hydropower capacity under any of those three circumstances in the past?

Mr. FAHLUND. Not to my—I have no idea, and I can get back to

you with an answer to that question to the best of my ability, but

our records are a little fuzzy when it gets back into the 1970’s.

Mr. SHADEGG. I would like to know that. As you well know, I

have some legislation trying to encourage the development of hydro

in the future because it is clean, and my goal is not to damage the

environment, my goal is to look at, particularly where we have existing dams. I mean, you get pretty radical if you say, well, we’ll

build a dam today. But when we have existing dams where we’re

not producing power——

Mr. FAHLUND. Sure.

Mr. SHADEGG. Let me——

Mr. FAHLUND. And might I add that I don’t necessarily have objection to supporting further development as long as the environment is adequately protected.

Mr. SHADEGG. I guess that’s where the rub comes.

Mr. FAHLUND. Pardon me?

Mr. SHADEGG. I guess that may be where the rub comes.

Mr. FAHLUND. Perhaps.

Mr. SHADEGG. We can’t go at great length, but I do want to ask

another point that—I believe Mr. Grimm raised a very interesting

point, and that is, he talked about two things, really. One, the

question of having the law distinguish between the relicensing

process that applies to very large hydro plants and the relicensing

process that applies to a very small process, or a small plant. And

it seems to me that that makes a great deal of sense.

109

And then the second point that he raised—and I guess, Mr.

Grimm, I’ll give you a chance to expand on this—but I’d like to

hear Mr. Fahlund’s testimony on it. The second point he raised is

the concept of in-stream generation, where you put a very small

generator into a stream. You don’t even build a dam. You just capture Mr. Newton’s concept, as Mr. Markey talked about earlier, and

yet—and yet, because of the cost of licensing such a facility, you

make that impossible. And I guess I’d be interested in getting first

of all your position on those two issues and then allow Mr. Grimm

to comment.

Mr. FAHLUND. Well, let me say that FERC currently has a process to address small projects; projects in fact of five megawatts or

less, and that’s FERC’s exemption.

Mr. SHADEGG. Does that take the Forest Service out of the process or——

Mr. FAHLUND. No it does not. What it does is it in fact—agencies

are given the—well, a licensee is required to accept the terms and

conditions of State and Federal agencies, as I understand how exemptions work. They’re required to accept those terms and conditions on their face, and they can then operate in perpetuity. There’s

not a relicensing or reexemption process. And as long as they accept those reasonable terms and conditions, then that’s effectively

how it works, as I understand it.

Now, in an instance where we had described to us a propeller at

the base of a river, for instance, no dam involved, my suspicion is

that the agencies would have virtually nothing to say about those

sorts of projects. I can’t imagine that there would be a whole lot

to be said in that instance.

However, let me also say that just because a project is small does

not mean that its impacts are small—are equally small. There can

be relatively large impacts for relatively small projects. And I think

what’s important here is that we recognize that size doesn’t really

factor into this. I almost said something that I really didn’t want

to say, but——

Mr. SHADEGG. Mr. Grimm, I have my own response, but why

don’t I let you respond.

Mr. GRIMM. Well, we—the numbers I testified to of over $1 million on projects under five megawatts was using the accelerated.

Lord only knows what it would have been on the regular basis. It’s

the process. The process drags out several years. There’s plenty of

time for input and output. A lot of the agencies are late. We had

an excellent working relationship with the Forest Service on our

projects on Forest Service land. They weren’t the problem. It was

the multitude. We did essentially three or four different public

scoping meetings because the Forest Service had different NEPA

requirements than FERC had. It’s the process that’s broken.

Mr. SHADEGG. Does Mr. Towns’ bill address this issue?

Mr. GRIMM. I can testify in support of S. 422. Mr. Towns’ bill is

very interesting to us. But we’re out of our league here. We want

to build new, small hydro to replace fossil fuel. We do not want to

play——

Mr. SHADEGG. I like that idea myself, as you know.

Mr. GRIMM. We can’t afford, on behalf of our customers, to play

at this level. That’s why we’re proposing some alternative process

110

that it would allow more local representation by moving—not forsaking—if it was on Forest Service property, we would still need

a special use permit issued by the Forest Service. So the Federal

guidelines would be there. But we would have it locally where we

can control the costs and make the licensing and permitting costs

proportionate to the benefit and the size and the impact of the

project. So we’re kind of taking a different tact.

Mr. SHADEGG. I think Mr. Murphy is dying to make a comment,

as is Mr. Brouha, and we have a vote on, and the chairman’s returned. So, Mr. Chairman, I guess I’ll leave it at your will. Mr.

Murphy.

Mr. MURPHY. As you point out, there are almost 80,000 dams in

this country. There are 2,400 with hydroelectric added. That’s a

sizable difference between those two groups of dams. There’s a sizable opportunity there. If the current system was encouraging

small projects to be built, you would be seeing it happen, but it’s

not happening. And it’s not happening because of what was just

talked about, because the process does not distinguish. Mr. Towns’

bill does ask that it be studied and that a proposal be put forward

for smaller projects. But at this point, we’re not seeing development

of new hydro, whether it’s large or small. And when there’s 80—

77,000 dams in this country that do not have hydroelectricity

added, we certainly wouldn’t expect that we’re going to take a sizable portion of that. But are there some there that are going to be

benign to the environmental—negative environmental impacts? We

would have to believe so.

Mr. SHADEGG. Mr. Brouha?

Mr. BROUHA. I’d like to follow up a little bit about the NEPA

process requirements that we have that are different from FERC’s

and the reason behind that.

We do a separate NEPA process on our 4(e) conditions because

the NEPA process for the Forest Service is open to the public and

all users of the national forests. It’s a final agency action. It’s subject to appeal. And we feel that this process is necessary in order

to provide the legally defensible documentation of the scientific and

management basis for these terms and conditions, these mandatory

conditions.

The FERC NEPA document only presents the conditions without

the supporting rationale. And a lot of times we—well, we do all the

time provide that supporting rationale. At FERC, they just don’t

choose to include it. Hence, the commissioners don’t have any basis

for their subsequent decision because they can’t see the rationale.

If there’s subsequent court proceedings, that’s also obscured from

their view.

Mr. SHADEGG. I take——

Mr. BARTON. We’re going to have to adjourn this hearing in the

next two to 3 minutes.

Mr. SHADEGG. I take it that you do not approve of the preconditioning that Mr. Lynch referred to and do not think that was an

appropriate—if it occurred—that that was an appropriate exercise

of Forest Service authority?

Mr. BROUHA. Well, we don’t know the conditions on the ground

of what’s proposed, sir. And as a result——

111

Mr. SHADEGG. Well, I think Mr. Lynch’s position is that at 6

months—how many months into the process? Eighteen months into

the process, the Forest Service walked in and said, we’re only going

forward if you shut down a dam.

Mr. BROUHA. Let me point out, sir, that that was part of a confidential settlement discussion which was largely informal.

Mr. BARTON. We’ll keep it a secret, I promise you.

Mr. BROUHA. What I mean, they walked off the table. And instead of advancing through that process to this level, the Washington level, they chose to go public.

Mr. SHADEGG [presiding]. Mr. Lynch, did you want to respond?

And then I guess we have to adjourn.

Mr. LYNCH. I’m not sure it was—well, we did walk from the

table, but we felt, to add to the metaphors, we felt like we had a

gun to our head. We didn’t have much of a choice. And I guess I’d

just leave it at that.

Mr. BROUHA. We’re hopeful we can fix this problem.

Mr. LYNCH. And we are, too.

Mr. SHADEGG. I’d like to——

Ms. KENNEDY. If I could just add one thing. I actually sat on that

negotiating settlement team. And there was a working document,

a working model for how the relicensing would proceed that included a lot of conditions for 2 years, and that working model included removal of the dam in question. It was only after that 2-

year period and a change in staff with PacifiCorp that the company

made it apparent that that working model wasn’t acceptable. So I

think it would have been incumbent upon the applicant to have

had an alternative model that was acceptable also being developed.

I just wanted to say that there are two sides to this issue.

Mr. BARTON. We rarely get issues that have two sides to them.

Mr. SHADEGG. At the risk of making you miss a vote——

Mr. BARTON. Well, you’re not. I’m going to take back over the

gavel.

Mr. SHADEGG. Thank you, Mr. Chairman.

Mr. BARTON. I’m going to thank everybody. We’re going to have

some written questions. I have several that I wanted to ask, but

Hydro Man was doing such a good job.

And he’s to be commended for being here when apparently no

other member was here.

We are going to work with the minority to see if we can develop

some consensus positions to go to mark-up in the next 6 weeks on

some of these bills. So I would encourage you to look at the bills

that are pending, get with your congressman or congresswoman or

somebody that you consider friendly to your position on the committee if you don’t have a direct congressman from your area and

offer constructive suggestions on how to improve them so that you

could support them.

Mr. SHADEGG. I would like to thank all the witnesses. And I do

think we can continue this dialog and work together.

Mr. BARTON. You’ve got to bang the gavel. The hearing is adjourned.

[Whereupon, at 1:27 p.m., the subcommittee was adjourned.]

[Additional material submitted for the record follows:]

112

STATE OF ALASKA

OFFICE OF THE GOVERNOR

March 29, 2000

The Honorable JOE BARTON

Energy and Power Subcommittee

United States House of Representatives

2125 Rayburn House Office Building

Washington, DC 20515-6115

DEAR REPRESENTATIVE BARTON: The State of Alaska supports S. 422 which would

offer the state the opportunity to assume jurisdiction over licensing hydroelectric

projects of five megawatts or less. Development of small hydroelectric projects is

critical to the economic development of our state. Of the 29 hydropower projects supplying power to public utilities in Alaska, 17 are five megawatts or less in size.

Small hydro is especially important in rural Alaska where the cost of other energy

sources is high and the resulting availability of power can be limited. The only practical alternative in many rural villages is small-scale diesel generation, which can

also create undesirable environmental impacts. Where hydropower generation is feasible, it offers reliability unmatched by other currently available alternatives. Unfortunately, the financial feasibility of many small hydroelectric projects is impeded by

the relatively high cost and lengthy process it takes to license these plants under

the existing Federal Energy Regulatory Commission (FERC) regulatory regime.

Alaska’s rural electrical production is unique. Over 150 villages in Alaska are isolated from any larger electrical grid, and each village is supplied with power almost

exclusively from its own diesel generators. The cost of power in these communities

is very high. Median residential rates are between 40 and 45 cents per kilowatthour, which is four to five times the average elsewhere in the United States.

Small hydro projects can help reduce these rates if the projects can be built economically. For example, at King Cove, Alaska, which is a remote community of 900

people in the Aleutian Islands, an 800-kilowatt hydro project completed in 1995 not

only reduced costs but provides cost stability over the long-term by displacing most

of the utility’s diesel generation. Similar long-term benefits are expected from the

new 825-kilowatt Tazimina hydro project, which serves a remote population of 450

people who live about 200 miles from Anchorage.

My Administration requires that development be done right. We apply this standard equally to hydroelectric development. For example, every hydroelectric project

must also protect fish and wildlife. In the past, we have worked closely—and successfully—with the FERC to ensure minimal environmental impacts and to consider

the cumulative impacts of development. It is critical this cooperation continues

under S. 422 as well.

The State of Alaska is not presently able to assume exclusive authority to authorize small hydroelectric projects, because state law does not provide a regulatory regime for project review, monitoring, or licensing of these projects. We feel such a

framework must be in place at the state level before the State of Alaska could apply

to the Secretary of Energy to take jurisdiction. The regulatory framework needs to

include regulations to ensure proper project design and construction, and to protect

fish and wildlife populations at least as well as under existing federal law. Present

FERC authority is broader than that held by the state, in that FERC may assert

jurisdiction over watersheds, while the regulatory authority of the Alaska Department of Fish and Game is confined to the area between stream banks.

In addition to the lack of a state regulatory regime, the state has established no

appropriate funding mechanism to support small hydro licensing and monitoring.

Such a funding mechanism could be either a direct appropriation or based on a user

fee system.

Again, the state appreciates the opportunity to express its support of S. 422. Although we desire the benefits this legislation offers, it is important to state clearly

we are not currently in a position to implement the option that this legislation

would present to Alaska.

Sincerely,

TONY KNOWLES

Governor

113

CONGRESS OF THE UNITED STATES

HOUSE OF REPRESENTATIVES

March 29, 2000

The Honorable JOE BARTON

Chairman

House Commerce Subcommittee on Energy and Power

2125 Rayburn House Office Building

Washington, D.C. 20515

DEAR MR. CHAIRMAN: I would like to thank you for the opportunity to submit a

statement today on behalf of my legislation, H.R. 1262. I believe this bill is a common-sense solution to a costly, bureaucratic and controversial regulatory process required for the re-licensing of a small hydroelectric dam in my district.

The regulatory process and scrutiny hydroelectric dams undergo to be re-licensed

by the Federal Energy Regulatory Commission (FERC) was brought to my attention

by the small community of Hart, Michigan. In a meeting with members of the Hart

City Council and the city manager, I was dismayed to learn of the extravagant

costs, environmental scrutiny and time this rural city faces as part of the FERC relicensing process. This process will cost the community an estimated $400,000-

$600,000 and take three to five years for completion. For that reason, I introduced

H.R. 1262, to provide that existing facilities located on the Pentwater River in

Michigan are not required to be licensed by the Federal Energy Regulatory Commission under part I of the Federal Power Act. I feel this legislation represents a reasonable attempt to alleviate the unnecessary environmental scrutiny and costs associated with the FERC re-licensing process.

The Hart Dam which serves a predominately rural community, generates about

2 percent of the city’s electrical power and has contributed to the creation of the

Hart Lake. The lake has created millions of dollars in surrounding development and

lakefront property for the community. The generation of hydropower provides inexpensive, efficient and environmentally safe energy for 1,300 residents of Hart.

The prospect of breaching the Hart Dam or requiring costly environmental structures looms heavily over the city as environmental groups weigh in and scrutinize

all operations of the dam. The city is subject to finance all studies related to the

ecological and recreational impacts from environmental groups that are adamant

about tearing down hydropower dams. Dismantling the Hart Dam would be catastrophic to the developments and property values surrounding the Hart Lake, not

to mention the cost passed onto consumers for the loss of energy generation from

the hydropower plant.

I am frustrated by the prospect of complications in the re-licensing process for city

of Hart, despite the fact the dam was rebuilt just more than 10 years ago with no

objections or environmental concerns by the Michigan Department of Natural Resources, Michigan Department of Environmental Quality or FERC. Is the city of

Hart to believe these agencies now have environmental concerns they didn’t have

10 years ago?

As the amount of hydropower projects facing re-licensing will drastically increase

over the next years, small communities across the country like Hart will continue

to bear the burden of this costly system. I am particularly concerned with the costs

passed on to communities as the result of environmental groups pressure to perform

costly and unnecessary studies. The economic impacts associated with this process

must be considered before conditions of re-licensing are mandated from a state or

federal agency. At this point these considerations are not being made and I feel it

is unnecessary to subject the city of Hart to this process.

Sincerely,

PETE HOEKSTRA

Member of Congress

CITY OF HART

HART, MICHIGAN

March 29, 2000

Chairman Barton

Subcommittee of Energy and Power:

The City of Hart, located in west central Michigan, is currently in the midst of

FERC relicensing for our small hydro electric facility having filed a notice of intent

in September 1997. If all goes well, we anticipate issuance by 2002. Five years and

an estimated $650,000 later! For one of the smallest municipal electric utilities in

the state and perhaps the nation, this is unacceptable. The time and financial burVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00117 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
114

dens of relicensing for a system of 1300 customers and four employees on top of day

to day operations, growth management, and pending deregulation will certainly tax

our capabilities.

We understand and fully accept the licensing requirements. We welcome with

open arms the participation of all interested parties. However, the scales of balance

have tipped from participation to elimination. Non-pollutant sources of energy

should be encouraged, not economically regulated out of business.

The costs of relicensing will consume an excess of 16% of our annual operating

revenues over the next two years causing us to dip into capital improvement reserves. The City must delay expansion to a substation to keep pace with industrial

growth and forestall improvements to the diesel generation plant to provide the reliable back up power our customers demand in an increasingly unreliable market in

order to obtain a piece of paper.

The relicensing process for the City has been positive to date as the participation

has been very cooperative. We entered the process as a child visiting the dentist for

the first time. We have heard, first hand, the horror stories. Now that we are in

the chair, it has not been all that bad. Will Hart continue to be ‘‘Lucky’’ or is the

dentist reaching for a drill without administering novocaine?

The Hart Dam was built in the 1920’s and rebuilt in 1986 under the watchful

eyes of FERC, the Michigan Department of Environmental Quality, and the Michigan Department of Natural Resources. It is our belief that such a newer facility

should be held to less stringent relicensing requirements, if not exempt.

Even under the best scenario, dam relicensing is too lengthy and too costly. The

City of Hart urges this committee to support procedural changes to make relicensing

practical for all parties.

Respectfully yours,

SCOTT K. HUEBLER

Hart City Manager

PREPARED STATEMENT OF THE AMERICAN PUBLIC POWER ASSOCIATION

By the year 2015, over half of all federally regulated hydroelectric capacity—284

projects in 39 states—will be up before FERC for license renewals. This group,

which includes many large and complex projects, has a combined capacity of approximately 29,000 MW, or 20 percent of the nation’s installed hydroelectric capacity. By the year 2010, 16,000 MW of publicly owned hydro capacity will be up for

license renewal. This represents nearly 50% of all hydro capacity subject to the relicense renewal process.

The experience of projects that completed relicensing in the early 1990’s demonstrated that the process was costly, time-consuming and resulted in capacity

losses. Studies are showing that there may be an average of 8% loss of hydropower

generation per project resulting from new conditions imposed on existing projects up

for relicensing in the next 20 years. At this rate, nearly 2400 MW of total hydro

capacity may be lost. In the 2000 edition of its annual Energy Outlook report, the

Energy Information Administration—the Department of Energy’s statistical agency

for the first time predicts that hydropower generation will decline through 2020, ‘‘as

regulatory actions limit capacity at existing sites.’’

The costs of the licensing process has brought into focus a system that is broken

and in conflict with the pressures to meet the demands of electricity competition.

As states open their regions and electric utilities to competition, utilities are under

increasing pressure to lower prices or risk losing customers. The ability of hydro licensees to pass to their customers ever increasing costs of environmental compliance

will be limited by the market. These increasing costs threaten to significantly reduce hydropower’s economic viability.

The regulatory process and resulting problems are also at odds with current concerns over rising gasoline prices and the impact these costs will have on the nation’s

energy security. As one of the cleanest and most efficient sources of energy, hydropower should play a greater role in the nation’s energy mix. Along with its ability

to provide clean, efficient and renewable electric power, this energy source offers

operational flexibility for maintenance of system reliability as well as drinking

water, flood control, fish and wildlife habitat improvement, irrigation support, transportation recreational and environmental enhancement funding. Despite these numerous and important benefits, policymakers have chosen to discount hydropower’s

energy resource potential.

One of the disturbing outcomes of the existing licensing process, as evidenced by

a hydropower owner in the Northwest, is the inability to improve environmental

conditions around the project. Without a license in hand, this particular hydropower

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owner cannot install recommended fish improvements. Thus, it is in the interest of

all project stakeholders—power and nonpower interests—to bring reasonableness

and fairness to the process. No one wins under current law.

H.R. 2335 and its counterpart in the Senate, S. 740, represent a reasonable and

well-meaning approach to the licensing process. The legislation limits reform to

allow project owners and operators timely knowledge of the impact of mandatory

conditions on project economics and other values. When agencies develop their statute-authorized mandatory conditioning authority, they will be required to consider

key factors and document their consideration of those factors. These factors are to

include the benefits gained or lost to the project’s economics and to the environment.

As entities of the public domain, public power electric utilities are not interested,

capable or supportive of any measure that would weaken the public input process.

We regularly work with citizen and environmental groups through public processes

and meetings. Through these activities we learn and are guided by what our citizens

demand—a regulatory process that preserves and protects the environment. For

that reason, we remain strong supporters of a hydropower licensing process that

provides significant and meaningful environmental protections granted by law to

the federal resource agencies involved in the licensing process. In our view, the legislation achieves this important objective.

Hydropower stakeholders, which includes electricity providers, consumers, recreational interests, labor, agriculture and farming groups, are supportive of reform.

Working with these groups, APPA is convinced that common agendas can be met

to construct a process that is more predictable, less time-consuming and results in

adequate resources being committed to protection of the environment.

The legislation before the committee is a reasonable solution to the problems that

face this industry and the country. We strongly encourage Congress to take steps,

such as those represented in H.R. 2335, to improve the hydropower licensing process. As with the important and needed reforms that were made to accommodate environmental concerns in the 1980’s, the pendulum has swung in the opposite direction requiring a hard look at what is happening to the hydropower energy resource

in this country. The future of this emissions-free, reliable and domestic-based energy

resource rests in your hands.

PREPARED STATEMENT OF JAMES R. GOODHEART, EXECUTIVE DIRECTOR, MICHIGAN

UNITED CONSERVATION CLUBS

On behalf of the 100,000 members and 510 affiliated clubs of the Michigan United

Conservation Clubs (MUCC), I would like to express our opposition to HR 2335 and

HR 1262 which have been recently referred to the House Committee on Commerce,

Subcommittee on Energy and Power, regarding hydroelectric licensing under the

Federal Power Act.

Generally speaking, the MUCC views the issue of hydroelectric licensing as imperative in protecting and wisely using our public river resources. MUCC supports

the re-licensing, renovation, and reconstruction of dams for hydroelectric power

where it can be proven to be both economically feasible and environmentally sound.

MUCC recognizes that if not properly managed, the trade-off of generating power

from rivers is the river ecosystem. Hydro facilities can negatively impact liver ecosystems, fish habitat, and fish reproduction through river flow or temperature alterations, blocking fish movement or impeding the natural cycling of nutrients

throughout the river. As an organization of hunters, anglers, boaters, and other outdoors enthusiasts, MUCC has participated as part of the Michigan Hydro Relicensing Coalition in its efforts to monitor the progress of the Federal Energy Regulatory Commission’s re-licensing of the 113 hydroelectric dams in Michigan.

Licensing hydroelectric projects is a commitment of our natural river resources as

they are only re-licensed every 30 to 50 years. For this reason, MUCC stresses the

importance of incorporating the protection, enhancement, and long-term sustainability of the natural resources into the licensing process.

H.R. 2335—The Hydropower Licensing Improvement Act

MUCC’s membership clearly supports the existing Federal. Energy Regulatory

Commission (FERC) licensing program as the only opportunity to address natural

resources concerns, particularly in regards to protecting fish populations and natural reproduction. The MUCC strongly believes that the existing rules and laws of

the current hydroelectric licensing process have demonstrated clear and successful

results in providing hydro power that is not detrimental to the river ecosystems.

The benefit of the current FERC licensing process is widely distributed across

many of Michigan’s 36,350 miles of rivers and streams, and applauded by the anVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00119 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
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glers, boaters, and other recreational users who benefit from the vast improvements

to these river systems—physically, chemically, and biologically—as a result of the

current process.

The membership of the MUCC already benefits from the recent improvements

through re-licensing on highly utilized river systems such as the Muskegon,

Manistee, and Au Sable Rivers. The importance of these river enhancements can be

defined by angler usage alone, as anglers travel from throughout the state and

country to take part in the popular trout and salmon fishing of these rivers. This

is demonstrated through sportfishing hours spent on these systems in 1999. The

Muskegon River accounted for about 374,895 hours of angler effort 96,329 angler

trips, while on the Manistee River, anglers spent approximately 528,766 hours fishing during 111,863 trips. The Au Sable River accounted for nearly 280,000 hours

of angling effort and almost 80,000 fishing trips. MUCC’s conservation approach of

protecting a usable resource stands to benefit not only the river and fishery, but also

those who enjoy the fishery through recreation and the community, which benefits

economically through tourism.

The re-licensing process for hydroelectric projects may not be perfect. However,

the current process incorporates industry, state and federal agencies, as well as private citizens into the re-licensing process, significantly increasing the benefits to our

natural resources while minimizing economic impacts on the hydroelectric facilities.

Current attempts to reform this process appear to the benefit of hydroelectric

projects, as changes would create an easier and less restrictive licensing process to

work through and an corresponding short-term economic gain for the hydroelectric

facility. MUCC does not support the proposed changes in H.R. 2335 as they are at

the potential cost of the sustaining the long-term biological integrity of these river

ecosystems.

H.R. 1262—Exempting existing facilities located on the Pentwater River in Michigan

from the FERC licensing under the Federal Power Act

MUCC firmly opposes Representative Hoekstra’s bill, H.R. 1262, exempting the

hydroelectric projects on the Pentwater River in Michigan from licensing under the

Federal Power Act. The sportsmen and women of the MUCC point to the many

hydro projects in Michigan that have already been re-licensed through the FERC

process. These projects provide significant protection and enhancements to the public river and fishery resources while allowing the hydro facilities to continue generating power and private economic gain.

As a member of the Michigan Hydro Relicensing Coalition, the MUCC has long

supported and advocated for a wise and conservative use of our natural resources

including public rivers and river fishery resources. The currently existing federal licensing is a common sense approach to managing hydroelectric projects that need

be applied to all projects, including those on the Pentwater River. Improvements to

hydro licenses that provide for run-of-river flow management, temperature monitoring and controls, upstream and downstream fish passage, and other habitat improvements allow for a wise and conservative use of the natural resources our rivers

provide. This ensures that all favorable benefits can be derived for all users from

a river resource, from power generation to a healthy, sustainable fishery.

MUCC believes there is no reason to exempt projects on the Pentwater River in

Michigan from a licensing process that has proven beneficial to the river, the fishery, anglers, and other public users of the river resources while maintaining operation of the hydroelectric facilities. In promoting conservation, MUCC contends that

the re-licensing of hydro projects in Michigan demonstrates that hydro projects can

utilize river resources while promoting long term sustain ability of fish and wildlife

populations valued by the public in our state’s rivers,

MUCC urges that this philosophy be maintained throughout the state of Michigan, if not across the nation. Considering the exemption of the Pentwater hydro

projects in Michigan sets a dangerous precedent that the public of Michigan would

be willing to sacrifice the long-term recreational and economic benefits of our rivers

for short-term economic gain to the hydroelectric facilities on that river. This is a

sacrifice that the sportsmen and women of the Michigan United Conservation Clubs

are not willing to make.

MUCC opposes any legislation that would exempt hydro projects from the licensing process under the Federal Power Act. Furthermore, MUCC opposes proposed

legislation to change this process. This license process allows hydroelectric projects

to generate power from a renewable resource while providing for the proper consideration and minimization of the impacts of these projects on the river and fishery

resources.

The Michigan United Conservation Clubs appreciates your consideration of our

comments, and asks your support in opposing bills H.R. 2335 and H.R. 1262, regardVerDate 11-MAY-2000 11:36 Oct 26, 2000 Jkt 010199 PO 00000 Frm 00120 Fmt 6633 Sfmt 6621 E:\HEARINGS\64033 pfrm08 PsN: 64033
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ing the hydroelectric licensing process under the Federal Power Act and exemption

of projects from this process.

PREPARED STATEMENT OF OREGON UTILITY RESOURCE COORDINATION ASSOCIATION

The Oregon Utility Resource Coordination Association (OURCA) supports the intent of H.R. 3447 and urges timely enactment. Passage of this legislation will facilitate coordinated power supply planning among BPA’s public preference customers,

providing both them and BPA with added efficiencies. This legislation will enable

municipal utilities, people’s utility districts, and cooperatives in the Pacific Northwest to manage their resource planning similar to how customers of other federal

power marketing agencies do today. We do not believe passage of this legislation

would have an adverse impact on BPA or other BPA customers. To the contrary,

we believe that this legislation will provide enhanced efficiencies that directly or indirectly serve the entire region.

Background on OURCA

OURCA is an intergovernmental agency, formed under the laws of Oregon.

OURCA was formed in September 1999 by the action of three municipalities and

four people’s utility districts (PUDs) which operate electric utilities in Oregon. These

utilities include the City of Ashland, McMinnville Light & Power, the Eugene Water

& Electric Board, and the Clatskanie, Emerald, Northern Wasco County, and

Tillamook PUDs. The first action of the OURCA Board of Directors was to expand

the membership to include the City of Forest Grove.

OURCA qualifies under the legislative definition contained in H.R. 3447. In fact,

OURCA was formed largely for the purpose of performing the coordinated operational functions as envisioned by H.R. 3447.

Benefits of the Legislation

OURCA envisions a number of potential operational and fiscal opportunities

through coordinated utility purchasing, planning and administration. Many of these

opportunities, such as joint purchasing of distribution poles or transformers, are

available absent this legislation.

As drafted, this legislation provides opportunities for OURCA specifically and exclusively in terms of the joint purchasing and scheduling of power from the Bonneville Power Administration (BPA). Each of the current members of OURCA is a public preference customers of BPA.

Passage of H.R. 3447 enables OURCA to act as an agent to coordinate the power

purchases of the OURCA members from BPA. OURCA has not yet decided what

form that coordination will take. Options range from joint billing and coordinated

management of multiple contracts to a single contract based on the combined net

requirements of OURCA members.

Impact of Legislation on Other Customer Groups

OURCA does not believe enactment of H.R. 3447 adversely impacts any other

Northwest customer group—in terms of either power supply or costs.

Under the Pacific Northwest Electric Power Planning and Conservation Act

(Northwest Power Act), BPA has a legal obligation to provide a power exchange with

participating regional investor-owned utilities (IOUs) for service to such IOUs’ residential and small farm consumers. In addition, any regional utility can seek to have

BPA provide power to serve its net requirements. Nothing in H.R. 3447 alters or

limits these provisions. BPA is not statutorily required to provide service to the Direct Service Industries (DSIs) post-2001.

More importantly, OURCA does not believe that enactment of H.R. 3447 will reduce the power available to serve other customers in the region. The intent of the

legislation is to limit the purchase of power by the JOE to the sum of its members’

net requirements. In other words, if a JOE’s members could individually purchase

a total of 100 MW of requirements power from BPA, then the JOE could purchase

no more than 100 MW of requirements power from BPA under this legislation.

Nor will enactment of H.R. 3447 increase costs to other regional customers. To

the contrary, enactment of H.R. 3447 could provide BPA with some administrative

efficiencies, the benefit of which will inure to all regional customers.

Impact of Legislation on Resale of Power

Some parties have expressed concern that enactment of this legislation could promote resale of preference power.

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Other than sales to its retail customers or to its members or participants, OURCA

has no intention of reselling requirements power purchased from BPA. In fact, such

resale could violate current legal and contractual prohibitions.

The intent of the legislation is to restrict the JOE’s purchase of requirements

power from BPA to the sum of the net requirements of its members, and OURCA

supports that intent. However, OURCA would note that the language could potentially create a problem for a JOE whose members have generation resources of their

own and are not full requirements customers of BPA.

The current language of H.R. 3447 authorizes BPA to sell power to a JOE ‘‘solely

for the purpose of meeting the regional firm power customer loads’’ of its regional

public preference customer members. This language does not fully mirror the language of Section 5(b) of the Northwest Power Act, which provides that BPA shall

offer to sell power to meet a customer’s firm load, to the extent that the firm load

exceeds the customer’s own resources. OURCA is concerned that this might potentially create confusion and lead to the unintended circumstance where BPA would

be required to sell to the JOE an amount of power that is more than the actual

requirements of the JOE membership due to the existence of other utility power

supply resources of the JOE’s members. Similarly, the language might unintentionally preclude BPA from selling other non-requirements products to a JOE that other

public preference customers (or even non-preference customers) could purchase.

Notwithstanding this potential statutory construction, the legislation is not intended—and should not—alter any existing resale restrictions that are contained in

present law or contract.

Finally, we would note that the legislation does not preclude a JOE from purchasing ‘‘surplus power’’ from BPA which does not have resale restrictions associated with it (Note: Under the Northwest Power Act any entity may purchase ‘‘surplus power’’ from BPA, and such purchases do not have a resale restriction.)

Eligibility

OURCA sees no compelling reason for either the January 1, 1999 member eligibility restriction or the restriction that JOEs must form by the date of enactment.

The legislation is designed to provide public preference customers of BPA with opportunities to capture administrative and operational efficiencies. OURCA sees no

legitimate public policy reason why certain current (those who fail to form a JOE

before enactment of this legislation) or future public preference customers should be

denied the opportunity to capture these benefits.

For instance, the City of Hermiston, Oregon is in the process of forming a municipal utility. Because Hermiston was not a customer of BPA on or before January

1, 1999, Hermiston would not be an eligible member of a JOE. Ironically, based on

a strict interpretation of H.R. 3447, Hermiston could not participate in a JOE in

any form—even to simply receive newsletters’ without negating the eligibility of a

JOE. State laws provide for formation of municipal, PUD and cooperative utilities,

and federal law provides these public preference customers with priority purchase

rights to BPA power. OURCA fails to see a public policy rationale for arbitrarily

precluding lawfully constituted public preference customers from managing their

lawfully purchased BPA resources under this legislation.

Timing of Legislation

OURCA believes that the legislation needs to be enacted as soon as possible, preferably before the end of April, in order to realize the intended benefits as soon as

possible.

BPA is in the process of finalizing its rates and developing and executing contracts for post-2001 sales. Under the current schedule, rates for power will be finalized by April 21, 2000 and contracts must be signed by September 30, 2000. However, OURCA would note that enactment needs to occur as soon as possible in order

to provide JOE participants: (a) the opportunity to select their form of coordinated

power purchases, (b) draft the necessary operating agreements and protocols, (c) negotiate contracts with BPA, (d) undertake any needed billing or metering purchases

and installations, and (e) consider and arrange for any alternate power supplies.

Given the required steps needed to make a JOE fully functional, OURCA believes

the legislation needs to be enacted by the end of April.

Enactment of H.R. 3447 after September 30, 2000 would preclude Pacific Northwest public preference customers from utilizing a JOE for requirements power purchases until the next contract period in 2006 (or 2011 for BPA customers choosing

10 year contracts). While BPA power contracts are assignable (with the concurrence

of BPA), such post-subscription assignment would not enable JOE participants to

truly realize the benefits of the legislation: the JOE members would not be able to

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have the potential existence of the JOE influence their post-2001 power supply decisions.

Conclusion

OURCA strongly supports timely enactment of H.R. 3447 to facilitate coordinated

power supply planning among BPA’s public preference customers. As noted above,

OURCA would prefer minimal refinements to the legislation to: (1) clarify that the

intent of the law is for BPA to serve the cumulative net requirements of the JOE

members and no more, and (2) to remove the eligibility restrictions. In sum, we believe that the legislation should grant JOEs the same rights, responsibilities and restrictions as those that apply to its public preference customer members: no more,

and no less. If the Committee determines that such refinements are appropriate,

OURCA would be happy to assist in the necessary drafting changes.

PREPARED STATEMENT OF IDAHO ENERGY AUTHORITY

The Idaho Energy Authority (IDEA) strongly supports enactment of H.R. 3447

and deeply appreciates the Committee’s efforts to promote prompt consideration of

this common sense legislation.

Throughout the country, consumer-owned utilities (municipals, PUDs and co-ops)

have formed entities to provide coordinated power supply and other services. These

entities are generally formed on the basis of geography, organizational form and historic relationships. Given these factors, the cities of Burley, Idaho Falls, Soda

Springs, and United Electric Cooperative chose to form the Idaho Energy Authority

(IDEA) under the provisions of existing Idaho law enabling establishment of nonprofit membership corporations consisting of intergovernmental and cooperative

members. The cities of Heyburn and Rupert and East End Mutual Electric, Farmers

Electric, Idaho County, Lower Valley Energy, Salmon River Electric, South Side

Electric Lines, and Fall River Rural Electric Cooperatives have also joined, and

other consumer-owned utilities in Idaho are considering membership in IDEA. We

expect the membership to continue to expand.

Although IDEA anticipates providing a number of services for its members, the

timing of IDEA’s formation was greatly influenced by our desire to meet the eligibility standards of the pending legislation and to jointly manage our requirements

purchases from the Bonneville Power Administration (BPA).

Purpose of H.R. 3447

The bill enables existing BPA preference customers (e.g., public body and cooperative utilities) to designate a joint operating entity (JOE) as their agent for contracting with BPA for the purchase and delivery of power to meet the members net

power requirements. Such coordination can provide the members of IDEA with administrative savings by providing for centralized interaction with BPA personnel. In

addition, IDEA members can capture operational savings by having centralized billing, metering and scheduling and potentially achieving diversity benefits that reflect

the different load characteristics of IDEA’s members. The extent to which these benefits are realized will depend, in part, on (1) the purchasing form IDEA chooses

(e.g., single administration of multiple contracts or a single contract reflecting the

pooled requirements of IDEA’s members), (2) the type(s) of product(s) that IDEA

chooses to purchase from BPA and how those products are managed with other resources either owned by IDEA members or contracted for with other parties and (3)

the design of BPA’s rates.

BPA’s existing statutes provide a first right of purchase—or ‘‘preference’’—to cooperative and public body utilities (See Section 5(b) of the Pacific Northwest Electric

Power Planning and Conservation Act). The statutes further direct BPA to make

such sales in compliance with BPA’s standards of service (See Section 5(b)(1) of the

Pacific Northwest Electric Power Planning and Conservation Act). Those standards

of service provide that the applicable preference customer must own distribution facilities necessary to deliver the BPA power to end-use consumers.

While IDEA (or another JOE) is itself a public body, it neither directly serves enduse consumers nor directly owns distribution facilities. The responsibilities and facilities needed to provide retail service are owned by IDEA’s members. While IDEA’s

members meet the statutory test and the requirements of the BPA standards of

service, BPA has determined that IDEA’s members cannot assign their BPA purchases to IDEA nor authorize IDEA to act as their agent in purchasing requirements power from BPA. H.R. 3447 provides the clear authority for BPA to make

sales to Joint Operating Entities.

In addition to the coordination of BPA purchases authorized by the legislation,

IDEA may provide the following additional services to its members: diversification

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power supply acquisition and management, transmission planning and contracting

(including with BPA), materials purchase, public purpose services, safety programs,

etc. Enactment of H.R. 3447 is not necessary for IDEA to engage in these other

functions.

Eligibility Restrictions are Inappropriate

Existing Idaho law allows for the formation of new cooperative and municipal utilities and creation of joint powers agencies and cooperative associations. IDEA sees

no reason why future consumer-owned utilities or future JOE’s should be prevented

from receiving the benefits of this legislation.

IDEA would support removing the eligibility restrictions from the legislation.

Alternately, IDEA would support granting the Secretary of Energy authority to

add other JOEs by rule as well as authorizing the Secretary to permit future BPA

preference customers the right to purchase and or manage requirements power

through an existing or future JOE.

Legislation Does Not Harm Other Customers

While benefiting public preference customers in the Northwest, H.R. 3447 does

not harm the interests of other regional customers in either the cost or availability

of power.

IDEA does not believe that enactment of this legislation would result in a reduction of power available to serve other customers in the region. The legislation establishes a maximum purchase authority for any JOE equal to the combined load of

its members. The legislation intends that a JOE would not be able to purchase firm

requirements power in excess of what the members could purchase through individual contracts. Thus, enactment of this legislation should not reduce the power

available for other regional customers.

Similarly, IDEA does not believe that enactment of H.R. 3447 will result in increased costs to other regional customers. To the contrary, enactment of this legislation is likely to result in some administrative savings for BPA which will benefit

all regional customers.

IDEA is aware that some have expressed potential concern that a JOE might be

able to realize diversity savings—reduced purchases during peak periods as a result

of differences in the coincident peak of a JOE’s member loads. While it is true that,

depending on the details of future BPA power contracts, such diversity savings may

be realized and may result in reduced purchases from BPA, this would result in either (a) additional peak power available for sale to other regional entities, or (b) surplus peak power that could be sold by BPA with the revenue credited to regional

customers. Under either circumstance, it would appear that regional parties would

benefit—not face increased costs.

Legislation Does Not Promote Merchant Marketing of Preference Power

H.R. 3447 does not provide preference customers any authority to purchase power

surplus to the needs of the JOE participants. Current law and BPA contracts restrict the resale of requirements power. H.R. 3447 does not alter these current statutory or contractual restrictions.

Nor does IDEA intend to resell requirements power. Such action would be in violation of existing statutory and contractual restrictions, and IDEA and its members

intend to comply fully with all applicable laws and restrictions.

Legislation Should be Enacted Promptly

Based on a variety of contractual, operational and system requirements, IDEA believes that the legislation should be enacted before the end of April.

In order for this legislation to be of value to IDEA during the 2001-2006 BPA contract term, it needs to be enacted prior to the September 2000 conclusion of the BPA

subscription contract window. However, considerable time will be needed prior to

this date for the legislation to realize its intended benefits. As noted above, IDEA

has been in existence for a short period of time. IDEA and its members will need

to review the existing BPA power products, assess alternative power supply opportunities , and determine which purchases (or mix of purchases) are most desirable.

Once this decision is made, IDEA will need to prepare and execute the relevant contracts (with BPA, any other selected power suppliers, and between the IDEA members). In addition, we may need to purchase and install computer hardware and/or

software to provide for real-time scheduling and joint billing. Given these potential

requirements and the established closing date for BPA contracts, we believe the legislation should be enacted before the end of April to provide the time needed to

properly and diligently fulfill our power supply responsibilities to our consumerowners.

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Some have questioned whether, if the legislation is not enacted in time, if IDEA

members could assign their contracts to IDEA if the legislation were passed in a

subsequent Congress. First, it should be recognized that assignment of BPA contracts is dependent on BPA concurrence. More importantly, such action would be

largely ministerial and would not enable JOE members to realize the full benefit

of the legislation during the pending subscription period. Specifically, IDEA members may make different power supply decisions—both from BPA and alternative

power suppliers—if they can act jointly rather than individually. In the absence of

timely enactment of the legislation, IDEA members will purchase power products

from BPA or elsewhere without realizing the benefits of joint purchasing decisions

envisioned by this legislation.

Conclusion

IDEA supports H.R. 3447 in its current form. As noted above, IDEA would support relaxation or elimination of the eligibility restrictions contained in the legislation. However, we would still support the legislation without any such changes if

needed to ensure swift enactment.

CENTER FOR ENERGY EFFICIENCY AND

RENEWABLE TECHNOLOGIES, ENVIRONMENTAL DEFENSE,

NATURAL RESOURCES DEFENSE COUNCIL, SIERRA CLUB

March 30, 2000

The Honorable JOE BARTON

Chairman, Subcommittee on Energy and Power

The House Committee on Commerce

2125 Rayburn House Office Building

Washington, DC 20515

Re: H.R. 2335/S. 740—Hydropower Licensing Process Improvement Act—

OPPOSE

DEAR CHAIRMAN BARTON: Legislation has recently been introduced that would

dramatically change the hydropower licensing process and jeopardize a critical restoration opportunity for rivers that have suffered for decades. Pitched as a process

reform bill, the legislation actually adds nine new requirements for federal agencies

and three new administrative processes to an already complex process. The result?

A significantly diminished ability of resource agencies to protect public trust resources such as fish, wildlife, water quality, as well as economically beneficial recreational resources.

While the hydropower relicensing process is not perfect, the industry is not what

is in jeopardy here. They warn that the relicensing process will render their dams

uneconomic. In fact, no license issued in the last seven years has been rejected by

its owner. Industry also threatens that reduced generation capacity will result in

increased greenhouse gas emissions. In fact, in the last decade, relicensing has

yielded dramatic improvements in rivers around the country while reducing average

generation by only 1%! That is just 0.05% of the nation’s overall electrical capacity.

Surely we can afford such a small price for such enormous benefits.

It is important to remember that licenses are issued for 30 to 50 year terms. Relicensing is a once-in-a-lifetime opportunity to ensure that private use of the nation’s

public river resources is balanced and fair. Judicious changes to a dam’s operations

can provide dramatic benefits to fish, wildlife, and recreation opportunities. H.R.

2335 is a transparent attempt by the hydropower industry to circumvent its accountability to the public.

In recent years, industry, state and federal resource agencies, and private citizens

have worked together to resolve many inefficiencies with the relicensing process,

significantly reducing the need for litigation. Parties are working toward administrative solutions for remaining issues. Legislative fixes, particularly this legislation,

will only set back the substantial progress and trust that stakeholders have built

and dramatically tilt the balance away from protecting public trust resources.

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Please join us in opposing H.R. 2335.

Sincerely,

V. JOHN WHITE, Executive Director,

Center for Energy Efficiency and Renewable Technologies

JOHANNA THOMAS, Hydropower Project Director,

Environmental Defense

SHERYL CARTER, Senior Policy Analyst,

Natural Resources Defense Council

DAN BECKER, Director,

Global Warming and Energy Program, Sierra Club

cc: Subcommittee on Energy and Power

INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES

March 28, 2000

Hon. JOSEPH BARTON, Chairman

Subcommittee on Energy and Power

Commerce Committee

U.S. House of Representatives

2125 Rayburn House Office Building

Washington, DC 20515

DEAR CHAIRMAN BARTON: This is in reference to H.R. 2335, the ‘‘Hydroelectric Licensing Process Improvement Act of 1999,’’ scheduled for hearing March 30, 2000

before your subcommittee. The Association strongly opposes H.R. 2335 because it

would significantly constrain the US Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) from fulfilling their responsibility under

law to submit permit conditions that could ensure that hydroelectric projects are

consistent with the conservation of the public trust resources of fish and wildlife.

We also believe H.R. 2335 would impede the significant progress now being made

under the Interagency Task Force to Improve Hydroelectric Licensing Processes. For

those reasons, the Association is strongly opposed to H.R. 2335.

The International Association of Fish and Wildlife Agencies was founded in 1902

as a quasi-governmental organization of public agencies charged with the protection

and management of North America’s fish and wildlife resources. The Association’s

governmental members include the fish and wildlife agencies of the states, provinces, and federal governments of the U.S., Canada, and Mexico. All 50 states are

members. The Association has been a key organization in promoting sound resource

management and strengthening federal, state, and private cooperation in protecting

and managing fish and wildlife and their habitats in the public interest.

While the goal of enhanced permit efficiency is laudable, our analysis is that, as

currently drafted, H.R. 2335 would actually create more problems than it would

solve. We believe the bill would 1) impose new, difficult, and burdensome process

requirements and increase government cost, and 2) inappropriately change the process from the wise use and conservation of public trust resources of a whole river,

to one that makes each individual project economically viable, no matter what the

impact on public’s resources. The impact of this bill as drafted would especially compromise the resource stewardship role of the US Fish and Wildlife Service and the

National Marine Fishery Service in maintaining the Nation’s fish and wildlife resources. Since the Federal Power Act preempted traditional State’s rights to protect

fish and wildlife in hydropower licensing, the role reserved under Section 18 (16

USC 811) for the Secretaries of Interior and Commerce to prescribe fishways is of

critical concern to our State fish and wildlife agency membership.

The IAFWA recognizes the significant role of hydropower in the Nation’s mix of

energy sources; however, inadequately mitigated hydroelectric facilities have the potential for exacting a substantial toll on the surrounding environment. Hydroelectric

plants can obstruct fish movements and migration, alter water temperature and

depth, injure or kill fish entrained through turbines, deter normal river sediment

flows and even desiccate rivers entirely, devastating ecosystems and endangering

fish populations. Often with only a few modifications, these facilities can operate

while mitigating most adverse impacts on fish and wildlife resources. It is important

that the law continue to provide the U.S. Fish and Wildlife Service and the National

Marine Fisheries Services adequate time and authority to examine the operations

of hydroelectric plants and submit reasonable conditions for licensing.

The following concerns are submitted for your consideration:

• Consulting agencies are required to consider the various economic impacts of their

conditions under § 32, subsection (b)(1)(A) of the bill. However, these agencies

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do not have the legal authority and staff resources to compel submission of relevant economic data from license applicants and to interpret and challenge such

submissions.

• The requirements under § 32, subsection (c) would limit the ability of consulting

agencies to submit supporting evidence for the conditions they impose. Though

the provision requires the use of current data, the use of historical data in conjunction with current data is necessary to demonstrate the long-term impact of

these facilities on environmental quality and aquatic populations. Furthermore,

the provision which mandates ‘‘peer review’’ may obviate timely submission of

environmental data. Field studies are currently reviewed by supervising biologists for competency and accuracy. Additional ‘‘peer review’’ would be time-consuming, costly and unnecessary.

• Administrative review under § 32, subsection (e) would allow a hydroelectric facility operator, prior to filing a license application, to obtain an expedited review

of conditions imposed by a consulting agency. However, the Federal Energy

Regulatory Commission (FERC) requires environmental studies to be conducted

after the submission of the application and any Additional Information Requests, when the case is deemed ‘‘ready for environmental review’’. The bill’s

new provision would require the consulting agency to defend its conditions before an administrative law judge without access to relevant information contained in the license application.

• Also under § 32, subsection (e), an administrative law judge in a court of competent jurisdiction would be instructed to consider the effect of the conditions

on ‘‘energy and economic values of the project’’. The judge would not be required

to consider the reasonableness of the conditions given the potential environmental impacts of a project. An impartial determination would require consideration of both environmental impacts as well as economic impacts.

• Section 32, subsection (f) would set a maximum limit of one year as the deadline

for submission of conditions from consulting agencies, but would not legislate

a minimum time frame, which could permit FERC to set unreasonably short

deadlines.

We believe there is a cooperative process already well underway which could

achieve improvements to the hydropower licensing and relicensing processes without

the negative impacts on both process and natural resources of H.R. 2335. That effort

is being conducted by the Interagency Task Force To Improve Hydroelectric Licensing Processes. Its steering committee is comprised of senior representatives from the

Federal Energy Regulatory Commission, the Department of the Interior, the Department of Commerce, the Department of Agriculture, the Environmental Protection

Agency, and the Council on Environmental Quality. We understand that its working

groups are making great progress cooperatively, and urge you to consider their recommendations. Until such time as those recommendations become available, we

urge that no further legislative action be taken on H.R. 2335.

Thank you for this opportunity to express the Association’s concerns about H.R.

2335. I have attached a more detailed analysis of the bill for your consideration and

use.

Sincerely,

GARY J. TAYLOR

Legislative Director

cc: Hon. Thomas Bliley, Chairman, Commerce Committee

Hon. John Dingell, Ranking Minority Member, Commerce Committee

Hon. Ralph Hall, Ranking Minority Member, Energy and Power Subcommittee

State Fish and Wildlife Directors

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