[Congressional Record Volume 143, Number 32 (Thursday, March 13, 1997)]
[Senate]
[Pages S2279-S2280]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MURKOWSKI (for himself, Mr. Akaka, Mr. Domenici, and Mr. 
        Kyl):
  S. 439. A bill to provide for Alaska State jurisdiction over small 
hydroelectric projects, to address voluntary licensing of hydroelectric 
projects on fresh waters in the State of Hawaii, to provide an 
exemption for portion of a hydroelectric project located in the State 
of New Mexico, and for other purposes; to the Committee on Energy and 
Natural Resources.


              THE FEDERAL POWER ACT AMENDMENT ACT OF 1997

 Mr. MURKOWSKI. Mr. President, along with Senators Akaka, 
Domenici, and Kyl, I am today introducing legislation to address 
several issues associated with hydroelectric projects.
  Section 1 gives the State of Alaska jurisdiction over small 
hydroelectric projects 5 megawatts or smaller. Section 2 precludes the 
voluntary licensing of hydroelectric projects on fresh waters in the 
State of Hawaii. Section 3 provides an exemption from licensing for the 
transmission line portion of a hydroelectric project located in the 
State of New Mexico. Section 4 gives the FERC the authority to extend 
for up to 10 years the deadline for commencement of construction of 
hydroelectric projects.
  Sections 1, 2, and 3 of this bill are virtually identical to sections 
7, 8, and 9 of S. 737 as reported in the 104th Congress. By unanimous 
vote, S. 737 was ordered reported by the Committee on Energy and 
Natural Resources (Report No. 104-77). On September 27, 1996, the 
Senate unanimously passed S. 737 (Senate Calendar No. 100). 
Unfortunately, just a few days later, on October 6, the House of 
Representatives went out of session not having acted on the Senate-
passed bill.
  Sections 2 and 3 are of direct interest to Senators Akaka and 
Domenici, and they will speak separately on their merits. I will 
discuss sections 1 and 4, which are of direct interest to me.
  Section 1 gives the State of Alaska jurisdiction over hydroelectric 
projects 5 megawatts or smaller. It goes into effect when the Governor 
of Alaska notifies the Secretary of Energy that the State has in place 
a comprehensive process for regulating these facilities. The required 
process is modeled on the one contained in the Federal Power Act for 
the FERC. The authority granted to the State of Alaska would apply only 
to projects that are located entirely within the State. Moreover, these 
projects may not be located on an Indian reservation, a unit of the 
National Park System, a component of the Wild and Scenic Rivers System, 
or a segment of a river designated for study for potential addition to 
such system. In the case of a project that is

[[Page S2280]]

already licensed by the FERC, the project sponsor may elect to make it 
subject to State authority. Projects located on Federal lands are 
subject to the approval of the Secretary of the Federal agency having 
jurisdiction, and that Secretary may include such terms and conditions 
as may be necessary for the protection of the public interest. The 
provisions specifically provide that nothing preempts the application 
of Federal environmental, natural, or cultural resources protection 
laws according to their terms.
  Section 4 amends section 13 of the Federal Power Act to give the FERC 
authority to extend for up to 10 years the deadline for the 
commencement of a hydroelectric project. Under existing law, a project 
must commence construction within 2 years of the date of the issuance 
of the license. That deadline can be extended by the FERC one time for 
as much as 2 additional years, for a total of 4 years. If construction 
has not commenced at the end of the statutory time period, the license 
must be terminated by the FERC. Termination not only results in the 
licensee losing its investment of time and many tens of thousands of 
dollars to obtain the license, it also delays the construction of the 
project by requiring a new licensee to start the licensing process all 
over.
  In the past, 4 years was adequate time to commence construction. 
However, with growing uncertainty in the electric power market, it is 
proving increasingly difficult for licensees to obtain the power 
purchase contract necessary to secure financing so as to permit 
commencement of construction. This has resulted in a number of 
individual requests to Congress to legislatively extend on a case-by-
case basis the commencement of construction deadline. During the 104th 
Congress, for example, 28 bills were introduced in the House and Senate 
to extend the deadline for individual projects. Acting on these 
individual requests proved to be very time consuming for the committee 
and for the Congress. Had this provision been enacted, all of these 
requests could have been accommodated administratively by the FERC. 
Hence, I am introducing this bill to give the FERC the generic 
authority to extend the deadline for the commencement of construction 
for up to 10 years.
  Mr. President, it is for these reasons that I am introducing this 
legislation along with Senators Akaka, Domenici, and Kyl.
 Mr. AKAKA. Mr. President, the State of Hawaii, its delegation 
in Congress, and conservation organizations throughout the State are 
deeply concerned about Federal efforts to regulate hydroelectric power 
projects on State waters. The question of who should have authority for 
hydropower regulation--the State or the Federal Government--is very 
contentious.
  Those who care for Hawaii's rivers and streams recognize that 
continued Federal intervention may have serious repercussions for our 
fresh water resources and the ecosystems that depend upon them. 
Whenever a hydroelectric power project is proposed, a number of 
environmental considerations must be weighed before approval is 
granted. Important issues must be evaluated, such as whether the 
proposed dam or diversion will impair the stream's essential flow 
characteristics, or what effect the hydropower project will have on the 
physical nature of the stream bed or the chemical makeup of the water. 
Will a dam or diversion diminish flow rates and reduce the scenic value 
of one of Hawaii's waterfalls? Will it harm recreational opportunities? 
These, and other questions must be answered.
  The effect of a new dam or diversion on the State's disappearing 
wetlands must be weighed. Wetlands provide vital sanctuary for 
migratory birds, as well as habitat for endangered Hawaiian waterfowl. 
They serve as reservoirs for storm water, filtering water-borne 
pollutants before they reach the fragile coastal habitat, and provide a 
recharge area for groundwater.
  Historic resources may be at risk on streams when hydropower projects 
are proposed. When Polynesians first settled our islands, Hawaiian 
culture was linked to streams as much as it was linked to the sea. The 
remnants of ancient Hawaiian settlements can be found along many State 
rivers. Will the Federal Government give adequate attention to stream 
resources that have unique natural or cultural significance when it 
issues a hydroelectric license or permit?
  Most important of all, hydropower development must be compatible with 
preserving native aquatic resources. Hawaiian streams support many 
species that depend on undisturbed habitat. Perhaps the most remarkable 
of these species is the gobie, which can climb waterfalls and colonize 
stream sections that are inaccessible to other fish. These are some of 
the complex factors that must be considered during Federal hydropower 
decisionmaking.
  Federal agencies that have responsibility for fish, wildlife, and 
natural resource protection have raised questions about the State of 
Hawaii's commitment to protecting stream resources. They assert that 
the Federal Energy Regulatory Commission is better equipped than the 
State to protect environmental values.
  Nothing could be further from truth. The State of Hawaii has 
demonstrated its commitment to protect stream resources by instituting 
a new water code, adopting instream flow standards, launching a 
comprehensive Hawaii stream assessment, and organizing a stream 
protection and management task force.

  Meanwhile, FERC has shown little regard for stream protection and has 
granted a preliminary permit to a hydropower developer on the Hanalei 
River. This is the same river that the Fish and Wildlife Service is 
fighting to preserve. The Hanalei National Wildlife Refuge is the 
largest refuge on the island of Kauai, and is home to four endangered 
water birds. Sixty percent of the State's taro crop is grown in the 
wetlands adjacent to the river. When it comes to protecting 
environmental values, FERC is off to a very poor start.
  The experience with the proposed Hanalei hydropower project raises 
serious questions about appropriateness of the Federal efforts to 
regulate hydropower in Hawaii. Our rivers and streams bear no 
resemblance to the wide, deep, long, and relatively flat rivers of the 
continental United States. Hawaiian streams generally comprise groups 
of short riffles, runs, falls, and deep pools. There are only five 
streams with a length of 40 miles or more. Only two streams have a 
median flow rate greater than 100 cubic feet per second. By comparison, 
the mean discharge of the Mississippi River is nearly 40,000 times the 
annual flow of Hawaii's longest river, the Kiikii River.
  The Federal interest in protecting the vast interconnected river 
systems of North America is misplaced in our isolated mid-Pacific 
location. When it comes to regulating hydropower in Hawaii, FERC is a 
fish out of water.
  Chairman Murkowski has agreed to include the text of my legislation 
to exempt Hawaii from the FERC hydropower jurisdiction in section 2 of 
the hydropower legislation he introduced today. Section 2 would 
terminate FERC's jurisdiction over hydropower projects on the fresh 
water of the State of Hawaii. Section 2 is identical to the legislation 
passed by the Senate during the 103d Congress as part of an omnibus 
hydropower bill, but the House and Senate could not resolve their 
differences on the bill. In the 104th Congress, the Senate Energy and 
Natural Resources Committee again approved the bill. I will continue to 
fight for the passage of this legislation during the 105th 
Congress.
                                 ______