[Congressional Record Volume 163, Number 182 (Wednesday, November 8, 2017)]
[House]
[Pages H8614-H8641]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HYDROPOWER POLICY MODERNIZATION ACT OF 2017
General Leave
Mr. UPTON. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days to revise and extend their remarks and include
in the Record extraneous material on H.R. 3043.
The SPEAKER pro tempore (Mr. Simpson). Is there objection to the
request of the gentleman from Michigan?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 607 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 3043.
The Chair appoints the gentleman from Illinois (Mr. Hultgren) to
preside over the Committee of the Whole.
{time} 1343
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 3043) to modernize hydropower policy, and for other purposes,
with Mr. Hultgren in the chair.
The Clerk read the title of the bill.
The Acting CHAIR. Pursuant to the rule, the bill is considered read
the first time.
The gentleman from Michigan (Mr. Upton) and the gentleman from
Illinois (Mr. Rush) each will control 30 minutes.
The Chair recognizes the gentleman from Michigan.
{time} 1345
Mr. UPTON. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I rise today in strong support of H.R. 3043, the
Hydropower
[[Page H8615]]
Policy Modernization Act of 2017. This legislation, introduced by my
friend and colleague from the Energy and Commerce Committee, Cathy
McMorris Rodgers, is an important step toward modernizing our energy
infrastructure, creating jobs, and, yes, strengthening our economy. I
want to thank her for her commitment to this issue.
The committee went through regular order with the bill. We held two
hearings on background issues, one legislative hearing, and both
subcommittee and full committee markups, where the bill was agreed to
by a voice vote. Following the markups, bipartisan committee staff held
more meetings to hear from over a dozen Tribal governments to gather
additional views.
I think that the resulting bill strikes a careful balance. Changes
were made to increase State and Tribal consultation requirements, and a
very strong savings clause was added to protect States' authorities
under the Clean Water Act.
Hydropower is an essential component of an all-of-the-above energy
strategy for this country. Hydropower is clean; it is renewable and
affordable base load power. It is good for consumers' electricity
bills, and it is also good for jobs, which is why labor is strongly
supportive of this legislation.
There is a tremendous opportunity to expand hydropower production on
existing nonpowered dams. Less than 3 percent of the dams in the U.S.,
approximately 2,200 dams, produce electricity. There are also
opportunities to improve the process for the projects that are due for
relicensing. By 2030, over 400 existing projects, with almost 19,000
megawatts of capacity, will begin the relicensing process, and these
projects, in fact, may be at risk.
Fixing the licensing process would also improve safety. Upgrading the
performance of existing dams and utilizing existing nonpowered dams,
canals, and conduits would enable investments, which would address
aging dams and, yes, improve overall safety.
The duration, complexity, and uncertainty of the hydropower licensing
process creates significant challenges that prevent investments that
would create jobs and benefit consumers. The licensing process for a
new hydropower development project can last over a decade and costs
tens of millions of dollars--significantly longer than the time that it
takes to construct a natural gas-fired power plant of the same size.
This legislation, H.R. 3043, would level the playing field by
modernizing the permitting process without compromising environmental
protections. The bill improves administrative efficiency,
accountability, and transparency. It requires balanced, timely
decisionmaking and reduces duplicative oversight from the multiple
Federal agencies that review hydropower applications.
This bill brings certainty and timeliness to the licensing process by
enhancing consultation with Federal, State, and local agencies and
Indian Tribes, and it requires FERC to establish a process for setting
the schedule for review. H.R. 3043 streamlines and improves procedures
to identify scheduling issues, propose licensing conditions, and
resolve disputes.
This bill also contains provisions to expedite the approval process
for an amendment to a license for a qualifying hydro project upgrade.
Without the hydropower licensing improvements in this bill--without
them--we risk losing investment opportunities in new hydropower
infrastructure which would benefit consumers with affordable
electricity and expand the use of clean, renewable energy.
Again, I thank my colleagues for their work, and the great staff, on
this important piece of legislation.
Mr. Chairman, I reserve the balance of my time.
House of Representatives, Committee on Oversight and
Government Reform,
Washington, DC, October 31, 2017.
Hon. Greg Walden,
Chairman, Committee on Energy & Commerce, House of
Representatives, Washington, DC.
Dear Mr. Chairman: I write concerning H.R. 3043, the
``Hydropower Policy Modernization Act of 2017.'' This bill
contains provisions within the jurisdiction of the Committee
on Oversight and Government Reform. As a result of your
having consulted with me concerning the provisions of the
bill that fall within our Rule X jurisdiction, I agree to
forgo consideration of the bill so the bill may proceed
expeditiously to the House floor.
The Committee takes this action with our mutual
understanding that by foregoing consideration of H.R. 3043 at
this time we do not waive any jurisdiction over the subject
matter contained in this or similar legislation, and we will
be appropriately consulted and involved as the bill or
similar legislation moves forward so that we may address any
remaining issues that fall within our Rule X jurisdiction.
Further, I request your support for the appointment of
conferees from the Committee on Oversight and Government
Reform during any House-Senate conference convened on this or
related legislation.
Finally, I would appreciate your response to this letter
confirming this understanding and ask that a copy of our
exchange of letters on this matter be included in the
Congressional Record during floor consideration thereof.
Sincerely,
Trey Gowdy.
____
House of Representatives,
Committee on Energy and Commerce,
Washington, DC, November 1, 2017.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
Washington, DC.
Dear Chairman Gowdy: Thank you for your letter concerning
H.R. 3043, Hydropower Policy Modernization Act of 2017. As
you note, this bill contains provisions within the
jurisdiction of the Committee on Oversight and Government
Reform, and appreciate your agreement to forgo consideration
of the bill so the bill may proceed expeditiously to the
House floor.
I agree that by foregoing consideration of H.R. 3043 at
this time, the Committee on Oversight and Government Reform
does not waive any jurisdiction over the subject matter
contained in this or similar legislation, and you will be
appropriately consulted and involved as the bill or similar
legislation moves forward so that you may address any
remaining issues that fall within your Rule X jurisdiction.
Further, I will support the appointment of conferees from the
Committee on Oversight and Government Reform during any
House-Senate conference convened on this or related
legislation.
Finally, a copy of our exchange of letters on this matter
will be included in the Congressional Record during floor
consideration thereof.
Sincerely,
Greg Walden,
Chairman.
Mr. RUSH. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I rise in strong opposition to H.R. 3043, the
Hydropower Policy Modernization Act of 2017.
Mr. Chairman, while Members on both sides of the aisle support
hydropower, unfortunately, the bill before us today is deeply flawed
and will not modernize or improve the hydropower licensing process.
Instead, Mr. Chairman, H.R. 3043 would place private profits above the
public interest by giving priority of our public waterways to industry
in order to generate power and profits over and above the rights and
the interests of Native Tribes or farmers or fishermen, boaters, and
other stakeholders who also rely on these public rivers and streams.
Mr. Chairman, it is very important for us to remember that
hydroelectric licenses can span between 30 and 50 years, and, under
existing law, a license holder can be granted automatic yearly
extensions in perpetuity without even having to reapply.
Mr. Chairman, this issue is far too important for us not to get it
right this time. And what does H.R. 3043 actually do?
This bill will make the Federal Energy Regulatory Commission, FERC,
the lead agency over the licensing process and will require Native
Tribes, the States, and other Federal resource agencies to pay
deference to the Commission, even in areas where FERC has absolutely no
expertise or statutory authority, including on issues regarding
agricultural water use, drinking water protection, fisheries
management, and recreational river use. How absurd, Mr. Chairman.
Additionally, Mr. Chairman, H.R. 3043 would expand and alter the
trial-type hearing provisions on the Federal Power Act, essentially
rigging the process in favor of industry by providing multiple new
entry points to challenge conditions designed by Federal resource
agencies.
Mr. Chairman, the threat of these timely and costly hearings may be
used to coerce agencies to propose weaker conditions, and, at the same
time, this bill also shifts the venue for these hearings to FERC, which
is another very obvious handout and handover to industry.
Mr. Chairman, in testimony before the Energy and Commerce Committee,
we heard, repeatedly, that a major
[[Page H8616]]
cause for licensing delays was due to incomplete applications that do
not include all the pertinent information that is necessary to issue a
decision.
Mr. Chairman, H.R. 3043 does nothing, absolutely nothing, to address
this very, very serious issue. In fact, this bill will implement strict
timelines on Federal resource agencies, States, and Tribes, but does
not require applicants to submit all of their information to these
agencies before the clock actually starts ticking.
Mr. Chairman, FERC, itself, the very agency that will be charged with
implementing this grossly bad bill, FERC, itself, disputed claims that
this bill would streamline the licensing process, noting that the
legislation ``could increase the complexity and the length of the
licensing process.'' These are FERC's words, FERC's words before the
committee.
Mr. Chairman, we cannot allow hydropower facilities to claim a
monopoly over our public waterways without mitigating the negative
impacts of these facilities on others who rely on these resources and
without, at the same time, without complying with modern environmental
laws.
H.R. 3043, Mr. Chairman, is opposed by States, opposed by the Native
Tribes, opposed by the outdoor recreation industry and by more than 150
national and local environmental organizations.
Mr. Chairman, it is for all of these reasons that I, too, stand in
concert and side by side with Native Tribes, the outdoor recreation
industry, and the other 150 national and local environmental
organizations. It is for these reasons that I, too, must oppose this
bill, and I urge all of my colleagues to do the same.
Mr. Chairman, I reserve the balance of my time.
Mr. UPTON. Mr. Chairman, I yield such time as she may consume to the
gentlewoman from Washington State (Mrs. McMorris Rodgers), the author
of this legislation.
Mrs. McMORRIS RODGERS. Mr. Chairman, I appreciate all of the work
that has gone into this legislation, and I rise in support and urge
support of the Hydropower Policy Modernization Act of 2017.
Hydropower serves as the Nation's largest source of clean, renewable,
reliable, and affordable energy. In my home State of Washington, it is
roughly 70 percent of our electricity that comes from hydropower. It is
one of the reasons that we enjoy some of the lowest electricity rates
in the country.
Only 3 percent of the dams produce electricity, and there is room for
tremendous potential to increase production of this renewable energy
resource. In fact, we could double hydropower production and create an
estimated 700,000 new jobs without building a single new dam, simply by
updating the technology in our existing infrastructure and streamlining
the relicensing process. But we must reduce the regulatory burden to
allow this process to move forward.
This legislation seeks to streamline the relicensing process in an
inclusive and environmentally friendly way. On average, it only takes
18 months to authorize or relicense a new natural gas facility--18
months--but it can take up to 10 years or longer to license a new
hydropower project or relicense an existing facility--10 years.
Right now, it can be extremely costly and an uncertain process to
relicense an existing dam or license a new dam. Investors are pursuing
other base load sources of energy because of the current regulatory
process. I want to encourage these investments so that we can support
and expand renewable, carbon-free hydropower.
As I understand it, hydropower is well-supported by my colleagues,
but many think we are tipping the scales in favor of this source.
First, I would like to define industry. We are hearing a lot about
industry on the other side.
In eastern Washington, many of these dams are owned by small PUDs who
pass on all of the costs to the ratepayers. These costs are delivered
to the people of eastern Washington and throughout the United States.
These are not major corporations.
I have also heard that we are lowering environmental standards during
the licensing process for Tribes and States. At the request of the
Western Governors' Association, we added language to clarify that
nothing in this bill--nothing in this bill--will touch the Federal
Water Pollution Control Act, the Fish and Wildlife Coordination Act,
the Endangered Species Act, the Rivers and Harbors Appropriation Act,
or the National Historic Preservation Act.
I have also heard that we did not allow Tribes and States to testify
on this bill. I struggle with these comments. This bill has gone
through regular order. We have held multiple hearings. We had a member
from the Standing Rock Sioux Tribe on one of the panels. It passed out
of committee with a voice vote because concerns were raised from the
Tribes, and we committed to sitting down and working with the Tribes to
attempt to reach some language. I am proud of our efforts in that
regard, and I am greatly disappointed that, at the end of the day, the
Tribes did not come to an agreement on the legislation.
{time} 1400
Although we weren't able to reach that resolution, we do protect the
integrity of this legislation.
Licenses are complex, but there is no excuse for a process to take 10
years. It is time to update the approval process and make hydropower
production easier and less costly without sacrificing environmental
review. That is exactly what the Hydropower Policy Modernization Act of
2017 will do.
Specifically, my legislation designates FERC as the lead agency for
the purpose of coordinating all applications of Federal authorizations,
and establishes coordinated procedures for the licensing of hydropower
projects.
By designating FERC as the lead when coordinating with agencies,
States, and Tribes, there will be added transparency and collaboration.
This added certainty in the relicensing process will diminish the
burden on resource agencies, help avoid unnecessary delays, and
ultimately lower costs to my constituents.
My legislation also incentivizes capital-intensive projects like
updating turbines or improving fish ladders. Right now, these upgrades
are only included in the lifespan of a dam's license during the
relicensing window.
Included in the legislation is an early action provision requiring
FERC to include all protection, mitigation, and enhancement measures
during the relicensing process. In addition, the legislation allows the
timely and efficient completion of licensing procedures by minimizing
the duplication of studies and establishing a program to compile a
comprehensive collection of studies and data on a regional or basin-
wide scale. At the same time, industry has the option to help pay for
studies and staff resources to speed up the process.
As a co-chair of the Northwest Energy Caucus, I recognize and I am
excited about the tremendous potential hydropower brings not just to my
district in eastern Washington, but to the country. By utilizing
currently untapped resources and unleashing American ingenuity,
hydropower production will lower energy costs and help create jobs.
This bill is not about changing outcomes or environmental law. This
bill is about speeding up the process and saving time and money.
Mr. Chair, I urge all of my colleagues to support clean American
energy and to support the Hydropower Policy Modernization Act of 2017.
Mr. RUSH. Mr. Chair, I yield such time as he may consume to the
gentleman from New Jersey (Mr. Pallone), from the State that made such
a significant and giant step last night to making our Nation a better
nation, the ranking member of the full committee.
Mr. PALLONE. Mr. Chair, I thank Mr. Rush, our ranking member of the
subcommittee, for yielding.
Mr. Chair, I rise in strong opposition to H.R. 3043.
I support hydropower. It can deliver low-carbon, affordable power if
it is well-sited and managed. But these facilities, which are licensed
for 30 to 50 years, can do enormous harm to fisheries, agriculture, and
recreational cultural resources if not properly overseen. The
hydropower licensing process can be more efficient, but electric
utilities should not be permitted to operate without license conditions
that ensure other public interests are met.
As I look at H.R. 3043 and weigh it against the list of stakeholders
with interests in the rivers and watersheds
[[Page H8617]]
that provide hydroelectric facilities their fuel, I see a bill that is
unbalanced, regressive, and dangerous; that will harm farmers,
fishermen, boaters, Tribes, and drinking water.
H.R. 3043 will allow private hydropower companies to use public water
resources to generate power and profit, but without mitigating the
negative impacts of their facilities on others who rely on our rivers,
and without complying with modern environmental laws.
H.R. 3043, is a direct assault on States' rights, Tribal rights, and
it undercuts major environmental laws, including the Clean Water Act,
the National Environmental Policy Act, and the Endangered Species Act.
It prioritizes the use of rivers for power generation above the needs
of all other water uses, and it inserts the Federal Energy Regulatory
Commission into decisions that it has no authority, experience, or
expertise to make.
So what this bill will not do is speed up the licensing process. FERC
testified before our committee that one of the causes of delay in the
licensing process was the failure of the applicant to provide a
complete application, yet this bill does nothing to ensure that an
applicant provides one. It makes no sense to impose a deadline if there
is no clearly defined starting point in the form of a completed
application.
How can a State make a decision on a water quality certificate if the
applicant hasn't submitted the information that State needs to make
that decision?
While FERC requires applicants to submit a complete application on
the matters over which it has direct responsibility, the Commission has
many times denied a similar opportunity to State and Federal agencies
with regard to matters where they have primacy. In fact, FERC has a
history of merely consulting with other stakeholders while dismissing
their concerns and failing to incorporate minimal resource protections
into hydropower licenses.
As an example, FERC recently failed to impose a number of conditions
the State of West Virginia included in its water quality certificate
for a project on the Monongahela River. FERC did this in spite of the
fact that West Virginia acted in a timely manner. West Virginia acted
in accordance with its law and delegated responsibility under the Clean
Water Act.
Yesterday, I sent a letter with several of my colleagues to FERC
expressing concern over the process it used on this project.
This bill virtually ensures that type of situation will be repeated.
Now, a project that is noncontroversial, supported by the State, is
likely to be stalled by hearings and other possible litigation that
could have been avoided.
Mr. Chair, the truth is that H.R. 3043 treats Federal agencies, State
governments, and Indian Tribes as second class citizens in this
process. FERC is required to consult with them, but consultation does
not ensure they will get FERC's support to fulfill their missions.
In this bill, all of the discipline is applied to government
agencies, but none to the applicant. This is especially true in the
case of license renewals. Any license that wants to avoid new
investments or operating conditions can certainly do so because FERC
will grant them automatic annual license renewal for as many years as
they need.
Another reason why this bill will not expedite hydroelectric licenses
is because, rather than streamlining the process, H.R. 3043 greatly
expands litigation opportunities, something that will increase the
expense and time required to award a license. It does this by providing
for a biased, costly trial-type hearing process to secure decisions in
the utility's favor.
Current law allows a single opportunity to challenge an agency
condition to avoid undue expense and delay in the licensing process.
H.R. 3043 expands the opportunities to challenge agency decisions,
allows multiple challenges, and moves the venue for these hearings.
Not even FERC thinks that this is a good idea. In fact, at our
hearing on this bill, the Deputy Associate General Counsel of FERC
advised the committee to either retain the existing trial-type hearing
process or eliminate it altogether.
Well, that advice obviously fell on deaf ears because the bill puts
the trial-type hearing process on steroids. In essence, the private
hydro companies pick the venue, set the rules, and secure additional
points in the license process to challenge conditions that Federal
resource agencies or FERC seeks to impose on a license to protect
public interests. FERC warned that this change would increase the
expense, complexity, and the length of licensing process--hardly the
traits you would associate with streamlining.
Ultimately, the bill is a bad bill because it is bad for Native
Americans; it is bad for the environment; it is bad for recreation; it
is bad for farmers and agriculture; and H.R. 3043 is bad for States,
that will now find it much harder to protect water quality and manage
the waters within their boundaries.
Maybe that is why the bill is opposed by States, Tribes, the outdoor
recreation industry, and more than 150 national and local environmental
organizations.
Opponents of the bill include the Western Governors' Association, the
Southern States Energy Board, the National Congress of American
Indians, the Environmental Council of the States, the Outdoor Alliance,
the National Wildlife Federation, the American Rivers, Trout Unlimited,
and the League of Conservation Voters, among many others.
Perhaps the ultimate condemnation comes from FERC, which, in
testimony before our committee, disputed claims that the bill would
streamline the licensing process, noting that the legislation ``could
increase the complexity and length of the licensing process.''
Hydropower facilities are using our most precious resource: water.
I don't think it is too much to ask that facilities awarded long-term
licenses and free fuel share the rivers with others.
Mr. Chair, I urge my colleagues to oppose the bill.
Mr. UPTON. Mr. Chair, I yield 1\1/2\ minutes to the gentleman from
Virginia (Mr. Griffith), a member of the Energy and Commerce Committee.
Mr. GRIFFITH. Mr. Chairman, hydropower is an essential component of
an all-of-the-above energy strategy.
We have a tremendous opportunity to expand renewable hydropower
production. However, without some much-needed licensing improvements,
we risk losing investment opportunities in new hydropower
infrastructure. In particular, closed-loop pumped storage hydro
projects offer the opportunity to store energy for use when it is
needed.
I have introduced separate legislation, H.R. 2880, with the goal of
making the review process of these projects as efficient as possible.
Both H.R. 3043 and H.R. 2880 will allow the Federal Energy Regulatory
Commission to impose licensing conditions only as necessary to protect
public safety, or that are reasonable, economically feasible, and
essential to protect fish and wildlife resources.
I am excited about the possibility some are exploring to build these
facilities in abandoned mine lands. This renewable energy solution for
power could be a real benefit to our coal field regions in central
Appalachia in the form of jobs, economic development, and energy
security. I am proud of what we are doing here in an effort to make
this happen.
Industry and labor groups alike support H.R. 3043 because a modern
regulatory framework for hydro is good for jobs and good for consumers.
The following groups have written in support of the bill:
The American Council on Renewable Energy, the International
Brotherhood of Boilermakers, the International Brotherhood of
Electrical Workers, the International Federation of Professional and
Technical Engineers, and many others.
Mr. Chairman, I include in the Record the letter containing the names
of supporters.
November 6, 2017.
The undersigned groups are writing to express strong
support for H.R. 3043, the Hydropower Policy Modernization
Act of 2017, and to request your vote as it is considered on
the floor of the U.S. House of Representatives this week.
Hydropower is America's single largest provider of
renewable electricity, making up almost one-half of all
generation from renewable resources. Given that hydropower is
an important source of domestic, emissions-free, flexible
power needed to ensure consistent and reliable electric
service, we must
[[Page H8618]]
look to preserve and protect our existing hydropower system
and promote new expansion opportunities.
H.R. 3043 provides a framework that adds accountability and
transparency, eliminates inefficiencies and redundancies, and
unlocks innovation and advancements in technology and
operations, while protecting environmental values, public
participation, and all existing authorities of federal and
state decision-makers in the licensing process
The current regulatory environment is placing hydropower at
risk. The licensing process can result in both new and
existing projects taking up to ten years or longer to receive
their approvals. This not only creates uncertainty for
project owners and developers alike, but burdens electricity
customers with additional unnecessary costs and only delays
important environmental measures that the industry, resource
agencies, and the environmental community agreed upon during
the licensing process and want to see deployed.
Additionally, the fleet of almost 2,200 hydropower projects
across the country supports approximately 118,000 ongoing
full-time equivalent jobs in operations and maintenance and
25,000 jobs in construction and upgrades. By maintaining our
existing fleet and supporting growth in the sector, the
hydropower industry could support close to 200,000 jobs.
Further local economic development in other industries is
also spurred due to access to affordable electricity from
hydropower projects. However, we will not realize the full
measure of these jobs and economic opportunities without
improvements to the licensing process.
We believe H.R. 3043 is a moderate proposal developed with
bipartisan input and, as such, deserves strong support by
both Republicans and Democrats. Please contact any of our
organizations for additional information or assistance on
this bill.
Sincerely,
The American Council on Renewable Energy (ACORE),
American Public Power Association (APPA), Business
Council for Sustainable Energy (BCSE), Edison Electric
Institute (EEI), International Brotherhood of
Boilermakers (Boilermakers), International Brotherhood
of Electrical Workers (IBEW), International Federation
of Professional and Technical Engineers (IFPTE), Large
Public Power Council (LPPC), Laborers' International
Union of North America (LiUNA), National Electrical
Contractors Association (NECA), National Hydropower
Association (NHA), National Rural Electric Cooperative
Association (NRECA), North America Building Trades
Council (NABTU), United Brotherhood of Carpenters and
Joiners of America (Carpenters).
Mr. UPTON. Mr. Chair, can I inquire as to how much time is remaining
on both sides?
The Acting CHAIR (Mr. Rogers of Kentucky). The gentleman from
Michigan has 17 minutes remaining, and the gentleman from Illinois has
16 minutes remaining.
Mr. RUSH. Mr. Chairman, I yield 2 minutes to the gentleman from
Maryland (Mr. Sarbanes), a very important member of the committee.
Mr. SARBANES. Mr. Chairman, I thank the gentleman for yielding.
Mr. Chair, I rise in opposition to the Hydropower Policy
Modernization Act of 2017 because it weakens States' rights to protect
their own water quality.
Under the Clean Water Act, States have the right to protect their
water by setting water quality conditions on hydropower licenses. This
bill would constrain that authority, forcing States to issue rushed
conditions using incomplete scientific data, or surrender their
authority to issue conditions at all. In short, the choice that States
have to protect their water and their people is to either do it poorly
or not at all.
We had a fix for this. We had an amendment to H.R. 3043, but it was
not made in order. It would have preserved the critical role States
play in protecting local water quality by exempting their rights under
the Clean Water Act from the bill.
For Marylanders in my State, this issue is bipartisan and hits close
to home. FERC is currently considering the relicensing of a
hydroelectric dam on the Susquehanna River. The Susquehanna provides 50
percent of all of the freshwater that reaches the Chesapeake Bay,
making it a critical driver of the Bay's water quality. Any new FERC
license will need to have conditions that protect the Susquehanna and
the Bay from the sediment and nutrient pollution built up behind the
dam. That is why even Republicans in our State, the secretary of the
environment, and secretary of natural resources sent a letter urging
Congress to strike the provisions in this bill that would limit
Maryland's ability to set water quality conditions.
I am disappointed that my colleagues on the other side of the aisle
in this body, who so often remark on the importance of protecting
States' rights from usurping Federal agencies, have refused to protect
States by bringing this critical amendment to the floor.
Mr. Chair, I urge all of my colleagues to oppose H.R. 3043.
{time} 1415
Mr. UPTON. Mr. Chairman, I yield 3 minutes to the gentleman from
Oregon (Mr. Walden), who is the chair of the Energy and Commerce
Committee.
Mr. WALDEN. Mr. Chairman, I want to draw attention, first of all, to
page 17, line 23, of the bill because we have heard from those who
oppose it that somehow this could adversely undermine the Federal Water
Pollution Control Act, the Fish and Wildlife Coordination Act, the
Endangered Species Act, the Clean Water Act, et cetera.
Line 23 makes it very clear, ``No effect on other laws. Nothing in
this section shall be construed to affect any requirement of'' these
underlying and very important laws that protect our environment.
So I just want to make sure that is in the Record. This is the
current text of the bill we are voting on today.
Mr. Chairman, I rise in support of H.R. 3043, the Hydropower Policy
Modernization Act.
Hydropower plays an enormously important role in electricity
generation across the country, and especially in my home State of
Oregon. Hydropower generates 43 percent of electricity in my State. It
is dependable base load, it is carbon-free, it is renewable, and it is
very important to our region.
Nationally, hydropower is one of the largest sources of renewable
electricity generation. A recent Department of Energy report said that
U.S. hydropower could grow by almost 50 percent by the year 2050.
Thankfully, my good friend from Washington, Cathy McMorris Rodgers,
introduced this legislation because, as these entities go to relicense,
sometimes it costs tens of millions of dollars just to get a renewal of
a government permit to continue to do what you have been doing, and it
can take 7 to 10 years to work through the process. By the way, all
those costs generally--guess who pays for them? The ratepayers. People
paying their electricity bill end up paying for all this incredible,
out-of-control review and regulation.
As the committee worked on this legislation under the able hand of
the chairman of the Subcommittee on Energy, Mr. Upton, we solicited
feedback from all stakeholders as we crafted this. We made a number of
changes to address the concerns. We had hearings, and we had lots of
other individual discussions and roundtables. We added new provisions
to ensure that States and Tribes are consulted early in the licensing
process to identify and resolve issues of concern.
We also made sure that State and local governments could recoup the
cost of reviewing applications and conducting studies. We even added a
strong savings clause that clarifies our intent that nothing in the
bill shall be construed to effect any requirement of the Clean Water
Act, the Endangered Species Act, and other environment laws.
As a result, we find ourselves here today with bipartisan support for
this legislation and the support of the American Council on Renewable
Energy, the American Public Power Association, the Business Council for
Sustainable Energy, Edison Electric Institute, the International
Brotherhood of Boilermakers and Electrical Workers, the International
Federation of Professional & Technical Engineers, the Large Public
Power Council, Laborers' International Union of North America, the
National Electrical Contractors Association, the National Hydropower
Association, the National Rural Electric Cooperative Association, North
America Building Trades Council, and the United Brotherhood of
Carpenters and Joiners of America--those most intricately involved in
making sure we have reliable and clean base load hydropower.
Support this modernization legislation. Mr. Chairman, it is
bipartisan, and I urge my colleagues to support it.
Mr. RUSH. Mr. Chairman, I yield 3 minutes to the gentleman from New
York (Mr. Tonko).
[[Page H8619]]
Mr. TONKO. Mr. Chairman, I thank the ranking member of our
subcommittee, the gentleman from Illinois, for his leadership and hard
work on the subcommittee and for yielding me this time.
Mr. Chairman, I want to express a few concerns with the bill before
us. But first, let me say that I support hydropower and believe it must
be maintained as an important part of our generation mix.
Hydro is an excellent source of reliable, zero-emissions electricity
generation. In order to address climate change and increase clean
energy production, it is, indeed, critical that we make licensing and
relicensing of these projects feasible.
This is an important issue for my home State of New York. Hydropower
resources produce 19 percent of New York State's total electricity
generation in 2016. The average age of New York's hydropower facilities
is over 50 years, and many projects are expected to go through the
relicensing process in the next 15 years.
I want to reiterate that Members on both sides of the aisle want to
see these projects developed within reasonable timelines. I understand
the current challenges in relicensing and the desire to bring greater
certainty to the process. However, I do not think the bill before us
would address those concerns in a balanced approach, which takes into
account the legitimate concerns of State and Tribal governments and
environmental stakeholders.
The process that produced this bill was flawed from the beginning.
The committee failed to hold a hearing to understand the concerns of
State and Tribal governments or Federal resource agencies. These
entities would be those whose authorities may be limited by FERC under
this legislation.
The bill enables FERC to set a schedule that may limit State and
Tribal governments and other Federal agencies from having the time to
fully consider and, yes, set conditions on license applications.
An enforceable FERC schedule, outside the control of these agencies,
may create a perverse incentive for applicants to slow-walk their
responses to information requests from other agencies and State
governments, effectively running out the clock and preventing
conditions from being required on the application.
Our water resources are precious. Different stakeholders have a
variety of expectations and demands--power generation, recreation,
wildlife and fish habitat, drinking water, and agriculture. Managing
these resources effectively is about balancing those often-competing
interests.
The Democratic alternative addresses the schedule concern by allowing
stakeholders to be involved in the creation of the schedule-setting
process. But I also believe FERC has some of the necessary tools
already in the underutilized Integrated Licensing Process which
encourages all stakeholders to engage in a robust, information sharing
process up front.
Now, finally, to set the record straight, I listened intently as the
gentlewoman from Washington State, the sponsor of the bill, spoke to
the fact that the Standing Rock Sioux were, indeed, represented at
hearings, that they had a witness at the FERC hearings. They were there
to discuss pipelines and not hydro.
Mr. Chairman, so I am opposing this bill today, but I hope we can
move forward with a truly bipartisan process in the future to improve
the licensing process while respecting the needs of all stakeholders.
Mr. UPTON. Mr. Chairman, I yield 2 minutes to the gentleman from
Colorado (Mr. Lamborn), who is a member of the Natural Resources and
Armed Services Committees, to speak in support of the bill.
Mr. LAMBORN. Mr. Chairman, I rise today in support of H.R. 3043, the
Hydropower Policy Modernization Act of 2017, sponsored by the
gentlewoman from the State of Washington (Mrs. McMorris Rodgers).
This bill simply intends to bring hydropower permitting into the 21st
century by improving efficiency, accountability, and transparency
within the Federal Energy Regulatory Commission and also reducing
Federal duplication.
Hydropower is a reliable and emissions-free source of electricity
that accounts for much of the Nation's total renewable electricity
generation. In fact, only 3 percent of existing dams in the United
States produce hydroelectricity. This illustrates the vast opportunity
in this country for new hydropower generation.
In the Water, Power, and Oceans Subcommittee of the Natural Resources
Committee which I chair, we have spent much of this Congress crafting
and advancing legislation to capitalize on these opportunities.
Legislation such as my bill, the Bureau of Reclamation Pumped Storage
Hydropower Development Act, is intended to promote pumped storage
hydropower development at existing reclamation facilities. Mrs.
McMorris Rodgers' bill in front of us today goes hand in hand with
those efforts.
Even our friends across the aisle agree with our efforts to promote
hydropower development. At a May oversight hearing in my subcommittee
on the challenges facing hydropower, committee Democrats helpfully
suggested that we should find ways to retrofit all nonpowered Federal
facilities with hydropower. We should all agree that improving the
permitting and approval process for these facilities would be the
easiest way to achieve this goal.
Mr. Chairman, I want to thank Congresswoman McMorris Rodgers again
for sponsoring this critical piece of legislation. She has been and
continues to be a champion supporter of hydropower. Just last month, my
subcommittee considered another bill authored by the Congresswoman--
H.R. 3144--that looks to provide certainty and reliability to several
Federal hydropower projects producing electricity in the Federal
Columbia River Power System that have been mired in third-party
litigation, questionable and expensive judicial edicts, and onerous
Federal regulations.
Mr. RUSH. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Garamendi).
Mr. GARAMENDI. Mr. Chairman, February 17, Oroville Dam, California, a
30-foot potential tsunami coming down on the cities of Oroville and
further down the river in Marysville and Yuba City. 200,000 people
evacuated. Thankfully, the rain did stop and the levee, or the
spillway, that had failed did not become a catastrophe.
FERC is now in the process of relicensing the dam, and a complete
environmental impact statement is now more than a decade over, 2007.
However, there have been very significant changes like, you know, maybe
the dam could collapse, or the spillway. We know that the river has
been further congested with the material that came from the broken
spillway.
There are serious negative environmental impacts that have resulted
from the damaged spillway. The river can't carry the same capacity. It
has been silted.
Bottom line, it is for these reasons that a failure by FERC to
require a supplemental environmental impact statement would be a
serious abdication of FERC's responsibility.
Unfortunately, a proposed amendment by Mr. LaMalfa, my good
Republican colleague, and me to require such a supplemental impact
statement was not included in the bill. Nevertheless, my message to
FERC is clear: you must do this so that there is full protection and
full understanding of the potential impact that this dam will have on
communities, our water supply, as well as flooding.
Mr. UPTON. Mr. Chairman, I yield 2 minutes to the gentleman from
Arizona (Mr. Gosar).
Mr. GOSAR. Mr. Chairman, I rise today in strong support of H.R. 3043
from Representative McMorris Rodgers, the Hydropower Policy
Modernization Act of 2017.
For centuries, Western States have fought over scarce water supplies.
We even have an expression in the West that says: Whiskey is for
drinking and water is for fighting over.
Water scarcity in the West led our visionary forefathers to build
Federal water storage projects throughout the West to provide water,
hydropower, recreation, flood control, and environmental benefits while
adhering to States' water rights.
These were nonpartisan endeavors, as evidenced by President John F.
Kennedy dedicating the San Luis Dam in California. While the Central
Arizona Project came after President Kennedy,
[[Page H8620]]
it continues to bring prosperity to Arizona's cities, Tribal
communities, ranches, and farms almost 50 years after its inception.
The Glen Canyon Dam and other projects affiliated with the Colorado
River Storage Project provided the backbone of a regional economy that
has produced year-round and emissions-free hydropower.
H.R. 3043 streamlines the permitting process and encourages the
expansion of hydropower generation by establishing a single lead
coordinating agency, the Federal Energy Regulatory Commission, FERC, in
order to facilitate in a timelier manner all hydropower authorizations,
approvals, and requirements mandated by Federal law.
This bill will also dramatically decrease costs to relicense non-
Federal dams, a huge win for the West.
Presently, FERC exercises jurisdiction over 1,600 non-Federal
hydropower projects at more than 2,500 dams under the Federal Power
Act.
According to FERC, the relicensing workload is increasing
dramatically. Between FY 2017 and FY 2030, roughly 480 projects
amounting to 45 percent of FERC-licensed projects will begin the
relicensing process.
Rural co-ops, power companies, and other stakeholders in the West
need a clear process without the bureaucracy. Let's get bureaucracy out
of the way and pass H.R. 3043 so we have a clear process moving forward
for pursuing worthwhile hydropower projects.
Mr. Chairman, I thank the gentlewoman from Washington for the
sponsorship of this much-needed legislation, and I urge my colleagues
to vote in support of this commonsense bill.
Mr. RUSH. Mr. Chairman, I yield 3 minutes to the gentleman from
California (Mr. Ruiz).
Mr. RUIZ. Mr. Chairman, I rise in strong opposition to H.R. 3043, the
Hydropower Policy Modernization Act, which undercuts Federal-Tribal
treaty and trust obligations. In fact, parts of this bill specifically
eliminate protection for Tribes and ensure that dams and other
hydropower projects do not harm Tribal fisheries, livelihoods, or
violate treaty rights.
This is unacceptable. Not only does this undermine Tribal
sovereignty, but it flies in the face of our moral and legal obligation
to protect Tribal treaties, land, and resources under the Federal trust
responsibility.
I am especially disappointed that the majority had the opportunity to
fix this issue, yet walked away from the table. Even though I brought
this up as an issue to fix in committee, the majority rushed this bill
through committee for a House vote without adequately addressing Tribal
concerns.
{time} 1430
Furthermore, the majority refused to make in order my amendment,
meaning they denied the fix to empower Tribes to set reasonable
conditions on hydropower projects to protect their reservation and
resources. In fact, the letter sent by Democratic Ranking Member
Pallone requesting a hearing to allow Tribal input and Tribal
participation on this particular issue was left unanswered.
So I say this to those Republicans who do support Tribal sovereignty
and self-determination: You can still fix this issue and improve the
Federal hydropower licensing process, simultaneously, while still
protecting Tribal treaty rights, by supporting the Rush substitute
amendment.
Join the Democratic Rush amendment that includes language to empower
Tribal governments to determine when a project may harm their Tribe.
Without this fix, this bill undermines Tribal governments and harms
resources and lands, therefore, putting energy profits above Tribal
treaty rights.
I urge my colleagues to take a stand. Do not ignore your
responsibility to Tribes when it matters most. Support the Democratic
substitute amendment sponsored by Representative Rush that preserves
the responsibility of the Federal Government to honor treaty
obligations and protect Tribal resources.
Mr. UPTON. Mr. Chair, I yield 2 minutes to the gentleman from
California (Mr. Denham).
Mr. DENHAM. Mr. Chair, I rise in support of H.R. 3043, the Hydropower
Modernization Act of 2017.
In my area of California's Central Valley, we have the Turlock and
Modesto Irrigation Districts. They have been fighting for over 8 years
to relicense the Don Pedro hydropower facility. This is on the Tuolumne
River. This is where we get our drinking water for the families in our
communities; this is where we get our water for irrigation for our
farms; yet our ratepayers have been spending money, for over 8 years,
just on the relicensing process.
They have had engineers and scientists who have done 35 studies. They
have done the modeling for FERC to show all the different impacts that
will be had here. In the process, they have spent $30 million already.
They planned to spend over $50 million.
We are not going to have one drop of extra water storage. This is not
going to improve the quality of the water that the people in my
district are going to drink. No new water, no better quality--it is
still going to see the same conditions for our fish, the same
conditions for our streambeds.
After $50 million and over 8 years, all we will have done is
completed over 35 studies to continue to look, continue to go through
red tape, and the people in my district will still have a water
shortage. We can do things much better.
Close to me, we also have the Merced Irrigation District, as well.
They have been working over a decade in relicensing the Exchequer
Hydroelectric project. Over $20 million has been spent. Again, the same
type of scenario: for farmers and families, no new improved water
quality, no new water storage, just a decade and $20 million for many,
many studies that are not improving our process.
The Acting CHAIR. The time of the gentleman has expired.
Mr. UPTON. Mr. Chair, I yield the gentleman from California an
additional 30 seconds.
Mr. DENHAM. Mr. Chair, this legislation is not going to solve all of
our problems for California's Central Valley, but it will help us with
the challenges we are facing with relicensing.
We can do things better, we can do them more efficiently, and we can
actually bring water delivery to the people who need it most. It starts
with FERC relicensing and changing the process to a much more
transparent and efficient process. This bill deserves a ``yes'' vote,
which will help us through that process.
Mr. RUSH. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Costa).
Mr. COSTA. Mr. Chair, I thank the gentleman from Illinois for
yielding.
Mr. Chair, I rise in support of H.R. 3043, the Hydropower Policy
Modernization Act.
Mr. Chair, I believe, and I think others do as well who have had
experiences within their constituencies, within their congressional
districts, that the hydro relicensing process is plainly broken, plain
and simple.
Let me give you a couple of real-life examples of why this
legislation is needed, and why it is needed now. They both provide
energy in my district for the people in the San Joaquin Valley, for
households, for farmers, and for people in the valley, and they are the
same two examples that Congressman Denham spoke of a moment ago.
The Turlock and Modesto Irrigation Districts have worked through the
licensing process in good faith for more than 8 years, and they have
spent over $30 million to renew the license for Don Pedro Dam, a
facility that has been in operation for almost 40 years. The districts
estimate that, when they are finished with this process, they will have
spent almost $50 million.
Meanwhile, the Merced Irrigation District, my constituency, has spent
over 10 years and $20 million to relicense the Exchequer Hydroelectric
project. This process is still not finished. This facility has been in
operation for over 60 years.
Since these are public agencies, these costs are passed on to the
ratepayers in mostly small, rural communities that Congressman Denham
and I represent. It raises their electric costs. It makes no sense.
This is about maintaining clean, renewable energy. This is about
reducing the regulatory burden and not passing these costs on to the
ratepayers. Given the experience that I have just given you, my
constituents believe that, frankly, this bill could go further in
removing inefficiencies in the relicensing
[[Page H8621]]
process, but it is a good first step. It is a work in progress. It is
certainly not perfect.
I support the legislation, and I urge my colleagues to do the same.
Mr. RUSH. Mr. Chair, may I inquire as to how much time is remaining
on both sides.
The Acting CHAIR. The gentleman from Illinois has 5 minutes
remaining. The gentleman from Michigan has 7\1/2\ minutes remaining.
Mr. UPTON. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. LaMalfa).
Mr. LaMALFA. Mr. Chairman, I thank the gentleman for yielding.
Mr. Chairman, I rise in support of this commonsense hydropower
streamlining process for modernizing the way we permit in order to
bolster the process for over 400 existing hydropower projects in the
United States. It is very important in my area as well.
Hydropower delivers clean, reliable, and renewable power 24 hours a
day, unlike other renewable power sources which fluctuate with time of
day, weather, sun or wind, or lack thereof.
California has a long history of hydropower generation. In 2014,
California, alone, produced 14,000 megawatts of electricity from
hydropower facilities--again, clean, renewable, and reliable. You turn
on the switch, hydroelectric power.
My district in northern California is home to two of the largest
facilities in the country: Oroville Dam and Shasta Dam. Each of these
facilities delivers cost-efficient power, provides flood control, and
generates significant local economic activity for the community via
stored water and recreation.
With local input, which is very important, we need to address the
streamlining of this process and expanding renewable hydropower
production in this country to pave the way for new jobs and affordable
power to consumers everywhere.
Relicensing permits ought not be a wish list for every special
interest, but, indeed, on measures of the power that can be generated.
Mr. Chairman, I appreciate the time, and I wholeheartedly support and
urge this House to support H.R. 3043.
Mr. RUSH. Mr. Chairman, I reserve the balance of my time.
Mr. UPTON. Mr. Chairman, I yield 2 minutes to the gentleman from
Montana (Mr. Gianforte).
Mr. GIANFORTE. Mr. Chair, I rise to join my colleagues in supporting
the Hydropower Policy Modernization Act.
Nearly one-third of the electricity generated in Montana comes from
hydropower. The Libby, Hungry Horse, and Noxon Rapids projects each
have the generating capacity of more than 400 megawatts. There are
dozens more smaller hydropower facilities in Montana, from Thompson
Falls to those around Great Falls, to Tiber and Fort Peck and
Yellowtail.
This legislation will ensure that existing projects will have timely
relicensing and enhance consultation between Federal, State, local
agencies, and our Indian Tribes. It will also help provide certainty
for new projects.
I know, in my home State, there are proposals to electrify existing
flood control and irrigation dams, like the Gibson Dam, that face
ongoing licensing issues. I have introduced legislation to address that
particular one.
This bill is a step in the right direction for hydropower nationwide,
and I am happy to support it.
Mr. RUSH. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, I include in the Record letters from Confederated Tribes
and Bands of the Yakama Nation, Puyallup Tribe of Indians, Snoqualmie
Tribe, Skokomish Indian Tribe, and a copy of the resolution passed in
October 2017 by The National Congress of American Indians opposing the
proposed amendments to the Federal Power Act.
Confederated Tribes and
Bands of the Yakama Nation,
Toppenish, WA, November 7, 2017.
Re Hydro legislation still bad for Indian Tribes, States and
Users of Public Waterways.
Hon. Paul Ryan, Speaker,
Hon. Nancy Pelosi, Minority Leader,
Honorable Members of the House of Representatives,
Washington, DC.
Dear Speaker Ryan, Minority Leader Pelosi and Honorable
Members of Congress: Yesterday, when the Rules Committee
discussed HR 3043, the Hydropower Policy Modernization Act of
2017, a number of members of the committee including Chairman
Sessions, Congressman Cole, Congressman Newhouse, Congressman
McGovern, Congresswoman Cheney as well as the Chairman Walden
and Ranking Subcommittee Member Rush (who were testifying),
all stressed the importance of ensuring that Indian tribes
have their treaty rights and natural resources protected by
any actions of the Congress relative to hydropower reform. We
greatly appreciate the concerns of these members and the
amount of time they spent discussing tribes and dam
relicensing. I think many of them were aware of the degree to
which the placement of dams has negatively affected a number
of reservations, flooding some and damaging salmon runs at
others. While there was universal agreement that the rights
of tribes and states must be protected, there was not
agreement on whether HR 3043 accomplishes that laudable
intent. I must tell you that the bill does not do so.
First understand what the Federal Power Act (FPA) now says.
Under provisions that have been in effect for decades,
state governments, pursuant to the Clean Water Act, are able
to set water quality standards at hydro dams. Such conditions
are mandatory. Allowing states to establish water quality
standards, a key aspect of Federalism that many in Congress
have always fought for, was a lynchpin of the grand bargain
reached when the Clean Water Act became law. While Federalism
has not really benefitted Indian tribes, we are surprised
that the Congress would weaken the ability of states to
protect the public in this fashion. We hope you will read
what many states have said in letters to the Committee, i.e.,
HR 3043 weakens their ability to ensure their standards are
met during the licensing process. Letters of this nature have
come from entities as varied as the Western Governors
Association and the Southern States Energy Board.
Also under the longstanding language of Section 4(e) of the
FPA, Cabinet Secretaries with authority over ``federal
reservations'' are directed to ensure that a proposed hydro
project doesn't negatively affect a reservation or interfere
with its congressionally designated use. These include all
lands and marine reserves in the Federal estate from Indian
reservations, to National Forests to Wildlife Refuges.
Section 18 of the FPA deals with the establishment or
modification of fishways to ensure fish can pass over these
dams. The Secretaries of Commerce (for NMFS) and Interior
(for USFWS) deal with fish passage and the Secretaries of
Interior (for BIA, BLM, USFWS and NPS) and Agriculture (for
USFS) deal with protecting federal reservations. They have
the authority to propose mandatory conditions on hydro dams
to ensure their operation protects these federal resources
that belong to all Americans.
The legislation weakens the conditioning authority for
protecting state water quality, for fishways and for federal
reservations by transferring significant decision-making
authority to FERC. Under the bill, FERC and the license
applicant can challenge the necessity of a condition and have
that challenge heard via a trial-type hearing only at FERC
before an Administrative Law Judge (ALJ) at that agency.
Under present law, decisions such as these are heard by ALJs
in the agency making the recommendation, where the expertise
resides. This provision in the bill is legislating forum
shopping and directing that the decision be made before an
entity whose expertise is in areas such as energy markets and
safety at power plants. FERC and its ALJs have no expertise
relative to Indian treaty rights or the Federal Land Policy
and Management Act among many bedrock laws and FERC testified
before the Committee that they do not want to be given this
newfound authority. While having trial-type hearings at FERC
and authorizing FERC to set all manner of schedules in the
permitting process will certainly create countless billable
hours for attorneys representing license applicants, it will
do nothing to protect the interest of Indian tribes or the
public at large, and as stated above, is directly contrary to
state authority under the Clean Water Act and Secretarial
authority now found in the Federal Power Act.
Yesterday we heard that this process will expedite
licensing but if that is the goal then wouldn't it make sense
to determine when an application for a license is complete?
Tribes repeatedly asked the hydropower industry to clarify
that matter in the bill but they refused. Why? Existing
hydropower dam licenses were issued decades ago before any
environmental statutes were on the books and many of those
dams are fish killers. Under the present law, when a license
expires the operator can automatically get annual extensions
allowing it to operate under 30-50 year old standards. These
extensions can go on for year after year with the operator
not having to spend any money to mitigate the damage to fish
or other resources. This is more than ironic considering that
the hydropower industry is telling Congress that they need
the legislation to ensure certainty and time frames in the
relicensing process. Additionally, the bill is drafted in
such a fashion that FERC can set schedules that are so
abbreviated that Tribes, Cabinet Secretaries or States who
wish to comment and perhaps undertake a fishery study when
necessary may not have the time to properly prepare suggested
or mandatory operating conditions. It is noteworthy that FERC
told the Committee that they don't see the legislation
actually streamlining the application process. Also, we
checked today and could find no tribes in support of this
bill.
[[Page H8622]]
We believe the Amendment in the Nature of a Substitute
(AINS) incorporates much of what the majority proposed in HR
3043 while incorporating many changes that are reflective of
the input that the Committee received from states and tribes
who took the time to relay views and concerns to the
Committee. A key part is the requirement for a negotiated
rule-making to improve and expedite the hydro licensing
process by bringing in states, local governments,
stakeholders and tribes to FERC to develop a process that
will enable FERC to make decisions on license applications
within a maximum of three years. We urge you to vote for the
AINS. Without such changes it is highly unlikely that the
bill will make it through the Senate. Thank you for
considering our views.
Sincerely,
Jode L. Goudy,
Tribal Council Chairman.
____
Puyallup Tribe of Indians,
Tacoma, WA, August 9, 2017.
Re Hydropower Policy Modernization Act, H.R. 3043.
Hon. Greg Walden,
Chairman, Energy and Commerce Committee, Washington, DC.
Hon. Frank Pallone,
Ranking Member, Energy and Commerce Committee, Washington,
DC.
Dear Chairman Walden and Ranking Member Pallone: I write to
express the Puyallup Tribe's strong objections to the
amendments to the Federal Power Act that are now being
considered as part of the Hydropower Policy Modernization
Act, H.R. 3043.
First, the bill would give FERC, an agency with no relevant
experience or capacity, the responsibility for determining
the scope of environmental review that Interior, Commerce,
States and even Tribes should undertake.
Second, H.R. 3043 would upset the careful balance that now
exists under federal law and let FERC set the timeline on
case-by-case basis for agencies to impose mandatory 4(e)
conditions and other requirements, including Section 18
(fishways) and Clean Water Act permits. The consideration of
hydropower licenses is a complicated process that must
consider the impact of a project on watersheds and numerous
species of fish and wildlife before giving operators 50-year
licenses to take power from these ecosystems. It takes time
to do the necessary studies to determine what types of
conditions can best protect these watersheds, including
sensitive fisheries habitat, and the resources not only for
Treaty-reserved Indian Reservations and resources, but also
for the multiple users of these watersheds, including
recreation, commercial fishing, and agriculture. If FERC's
past actions are any guidance, FERC will impose unrealistic
deadlines that the agencies will not meet. This bill will
return the Nation back to a time when hydropower projects
flooded Indian lands, extirpated entire species of salmon,
and destroyed critical cultural resources.
Third, this bill would allow FERC for the first time to
make a determination that a mandatory condition is
inconsistent with the Federal Power Act. This would undermine
the Supreme Court's decision in Escondido Mut. Water Co. v.
La Jolla Band of Mission Indians, 466 U.S. 765 (1984), which
held that the FPA provides no authority to FERC to impose
restrictions on the 4(e) conditions submitted by the
Secretary of Interior. The current process affords the
hydropower industry ample opportunity to consider and respond
to potential Sections 4(e), 18, and Clean Water Act
conditions. Hydropower licensees can (and in fact do)
actively participate in the process by which these conditions
are deliberated and set. And while these conditions are not
subject to modification by FERC, they are subject to judicial
review, and FERC is free to express its disagreement with the
conditions, so that FERC's views can also be considered by
the courts.
Finally, the bill requires the Agency imposing these
conditions to prepare a written statement that the Agency
gave equal consideration to power generating interests in
issuing its 4(e) conditions. Currently, if a hydroelectric
project is located on federal lands, including Indian
Reservations, the only consideration the Secretary has is to
impose conditions that protect those reservations. There is
no consideration of other interests. This has been the law
for almost ninety years.
We urge you to continue to work with Tribes and other
stakeholders to improve the hydropower licensing process for
all interests and not simply for the industry.
Sincerely,
Bill Sterud,
Chairman,
Puyallup Tribal Council.
____
Snoqualmie Tribe,
June 21, 2017.
Hon. Greg Walden,
Chairman, Committee on Energy and Commerce,
Washington, DC.
Hon. Frank Pallone, Jr.,
Ranking Member, Committee on Energy and Commerce, Washington,
DC.
Dear Chairman Walden and Ranking Member Pallone: On behalf
of the Snoqualmie Indian Tribe, we write to express our
continued concerns regarding proposed changes to the federal
hydropower licensing approval process. The proposed changes
would abrogate the federal government's overarching trust
responsibility to Indian tribes and its ability to uphold
tribal treaty rights. Our Tribe is particularly concerned
that current legislative reform efforts to consolidate
hydropower approval authority within the Federal Energy
Regulatory Commission (FERC) unduly favor the interests of
private industry at the expense of tribes, local and state
governments, natural resources, and local citizens. As our
trustee, we urge you to ensure that any hydropower
legislation passed out of the Committee will only strengthen
Tribes' ability to give input on hydropower licensing
decisions at hydropower facilities.
The Snoqualmie Tribe is adamantly opposed to legislative
reforms efforts that seek to undermine current mechanisms
that ensure adequate consideration of the effects of a
proposed hydropower project on affected Indian lands and
natural resources. In particular, the proposed changes to
Sec. Sec. 4(e) and 18 of the Federal Power Act and Sec. 401
of the Clean Water Act would enable FERC to disregard
mandatory conditions imposed by federal and state land
management agencies. Disregarding the established expertise
and mission of such agencies to evaluate and mitigate impacts
to Indian lands and natural resources directly undermines the
federal government's ability to fulfill its trust and treaty
obligations to Indian tribes. For example, Sec. Sec. 34 and
37 of the draft legislation would allow FERC to effectively
waive conditions necessary to implement the Northwest Power
Act, Endangered Species Act, or the Clean Water Act if a
state, tribe, or federal agency cannot meet a FERC deadline.
Additionally, the proposed schedule of 120 days to complete
all ``federal authorizations'' is unworkable in practice and
will inevitably lead to such waivers.
It is imperative that any legislative reforms to the
hydropower permitting process adequately consider and
mitigate the impacts to Indian lands, Tribal sacred sites,
and natural resources. Historically, American Indian tribes
have experienced disproportionate negative effects when dams,
including hydroelectric projects, were approved without
adequate tribal consultation or consideration of the effects
on surrounding natural resources. For example, in the past,
hydropower dams have flooded Indian reservations resulting in
the permanent loss or damage to Tribal lands and sacred
sites.
Given the Snoqualmie Tribe is a signatory to the Treaty of
Point Elliot of 1855, the federal government has an
enforceable fiduciary obligation to act as trustee on the
Tribe's behalf. Of critical significance to our people is
Snoqualmie Falls, a 268-foot waterfall that is the place of
our creation history and our most sacred site. The Falls are
an essential part of our cultural and religious practices
where we pray, conduct sacred ceremonies, and traditionally
buried our dead. Our Tribe is all too familiar with the
negative impacts of inadequately planned hydroelectric dams
on our culture, lands, and very way of life. For more than
100 years, Snoqualmie Falls has been hampered by the
diversion of its water for a hydroelectric dam that
significantly reduces the strong flow of water and the mists
coming from the Falls. Without these, our religious practices
are severely limited and we cannot fully engage in our
cultural heritage.
The current draft hydropower reform legislation does not
appropriately balance various stakeholders' interests and,
instead, prioritizes private industry interests above the
federal governments' responsibility as trustee to Tribes.
Accordingly, we urge the Committee to ensure that legislation
passed out of the Committee strengthens Tribes' ability to
give input on hydropower decisions.
Thank you for your consideration on this very important
religious and cultural issue to our Tribe. We look forward to
working with the Committee to ensure any hydropower reform
efforts are suitably tailored to uphold the federal
government's trust responsibility to Indian peoples and
protect tribal treaty rights.
Sincerely,
Snoqualmie Tribal Council.
____
Skokomish Indian Tribe,
Skokomish Nation, WA, June 21, 2017.
Re Proposed Amendments to the Federal Power Act.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Hon. Frank Pallone, Jr.,
Ranking Member, Committee on Energy and Commerce, House of
Representatives, Washington, DC.
Dear Chairman Upton and Ranking Member Pallone: I write to
again express the Skokomish Tribe's strong objections to the
amendments to the Federal Power Act that are now being
considered by the House Energy and Commerce Committee.
If this bill is enacted as approved by the Committee, it
would represent one of the most significant roll backs of the
federal trust responsibility since termination. For more than
ninety years the Federal Power Act directed Interior and
other land management agencies to impose conditions on
hydroelectric projects to protect federal lands including
federal Indian Reservations and Treaty protected resources.
However, in the first forty years, the federal land
management agencies largely ignored this responsibility. As a
consequence of this abdication to the Skokomish Tribe, our
Reservation and our resources paid a very high price.
[[Page H8623]]
Our story is but one of many across Indian country. In the
1920s Tacoma City and Light received a license for the
Cushman Dam on the North Fork of the Skokomish River. The
entire flow of the North Fork of the Skokomish River was
diverted from its channel and sent to a power house on Hood
Canal (a bay of the Puget Sound). The dewatering of the North
Fork completely destroyed a premier salmon run, with grievous
economic and cultural consequences for the Tribe. See
generally, City of Tacoma v. FERC, 460 F.3d 53, 62 (D.C. Cir.
2006); Skokomish Indian Tribe v. United States, 410 F.3d 506,
509-510 (9th Cir. 2005) (en banc revised). In terms of direct
impact on the Skokomish Reservation itself, the dewatering of
the North Fork resulted in an approximately 40% reduction in
the flow of the Skokomish River mainstem. This change in the
hydrology of the Skokomish River caused one-third of the
Reservation to be flooded. Skokomish v. United States, 410
F.3d at 509-510, see also id. at 521 (dissenting opinion of
Judge Graber). In short, this project almost completely
destroyed the Reservation and the fishery for which the
Reservation was established.
The original Cushman Dam license expired in 1974 and the
Skokomish Tribe spent significant time, energy and resources
to ensure that the United States would not once again
abdicate its responsibility to the Tribe and sought
conditions on the new license that would protect the
Skokomish Reservation. At every turn Tacoma and the
hydropower industry fought the Tribe. However, in 2006, the
Skokomish Tribe won the right for the Department of the
Interior to exercise its Federal Power Act 4(e) conditioning
authority to protect the Reservation and the Tribe. City of
Tacoma, Washington v. F.E.R.C., 460 F.3d 53, 59 (D.C. Cir.
2006) (``Cushman'')
As a result of this decision, the Cushman project is now
being operated in a manner meant to reverse the more than 80
years of damage to the Skokomish Reservation. These changes
are slow but, over time, there will be improvements to the
flow of the mainstem and flooding will lessen. Reservation
lands that are waterlogged and useless will be restored and
productive for the Tribe and our members again.
The bill now before the Committee would essentially reverse
the decision that my Tribe fought so hard for, and will let
FERC set the timeline for 4(e) mandatory conditions and other
conditions, including Section 18 (fishways) and Clean Water
Act Permits. The bill goes on to require the agency to
imposing these conditions to give equal weight to power
generating interests. Again, this would significantly
undermine the federal trust responsibility to my tribe and
others. If a hydroelectric project is located on Tribal
lands, then the only consideration the Secretary has is to
impose conditions that protect that Reservation. There is no
balance of other interests. This has been the law for almost
ninety years. The Tribe is at a loss for why Congress would
want to change this now.
Furthermore, the bill before the Committee seeks to have
FERC, an agency with no experience or capacity, the
responsibility for determining the scope of environmental
review that Interior, Commerce, States and even Tribes should
take.
A change to the Federal Power Act is not needed. First,
sections 4(e), 18 and the other related provisions of the
Federal Power Act, establish proper checks and balances in
the licensing process. While FERC is examining a broad range
of issues in connection with the license application or
renewal, the Interior Secretary can bring to bear Interior's
knowledge and expertise regarding the needs of Indian
country, the potential impact of the project on the Indian
reservation, and address measures to ensure the proper
protection of that reservation. Other sections of the Act
likewise establish appropriate checks and balances by
recognizing and giving effect to the responsibilities and
expertise that such other agencies have on natural resource
management--such as that provided by Interior's Fish &
Wildlife Service and the Department of Commerce on fisheries
and fish passage facilities as well as the vital and
longstanding authority exercised by States and Tribes in
setting water quality standards under the Clean Water Act.
While hydropower is clean energy, it is clean only because of
the important role that these other agencies, with the
necessary expertise, have in addressing terms and conditions
for hydropower licenses. FERC does not have the technical
capacity to make these decisions.
The current process affords the hydropower industry ample
opportunity to consider and respond to potential Section
4(e), 18 and Clean Water Act conditions. Hydropower licenses
can (and in fact do) actively participate in the process by
which these conditions are deliberated and set. And while
these conditions are not subject to modification by FERC,
they are subject to judicial review, and FERC is free to
express its disagreement with the conditions, so that FERC's
views can also be considered by the courts.
Finally, while the current process may take time to
complete necessary studies and vetting of potential
conditions, any delay in renewing licenses does not harm the
hydropower licensees. As a general matter, until the license
renewal process is completed, hydropower licenses are able to
operate under their existing licenses which, in our
experience, typically do not have many of the conditions
needed to protect Indian reservations or natural resources.
We urge you to oppose amendments to the Federal Power Act
that would undermine the federal trust responsibility to
protect Indian Reservations or that would alter the Interior
Secretary's authority under section 4(e), the provisions of
section 18, or the Clean Water Act.
Sincerely,
Charles ``Guy'' Miller.
____
National Congress of American Indians
The National Congress of American Indians Resolution No. MKE-17-005
title: to oppose proposed hydropower amendments to the federal power
act
Whereas, we, the members of the National Congress of
American Indians of the United States, invoking the divine
blessing of the Creator upon our efforts and purposes, in
order to preserve for ourselves and our descendants the
inherent sovereign rights of our Indian nations, rights
secured under Indian treaties and agreements with the United
States, and all other rights and benefits to which we are
entitled under the laws and Constitution of the United States
and the United Nations Declaration on the Rights of
Indigenous Peoples, to enlighten the public toward a better
understanding of the Indian people, to preserve Indian
cultural values, and otherwise promote the health, safety and
welfare of the Indian people, do hereby establish and submit
the following resolution; and
Whereas, the National Congress of American Indians (NCAI)
was established in 1944 and is the oldest and largest
national organization of American Indian and Alaska Native
tribal governments; and
Whereas, Indian Tribes are sovereigns that pre-date the
United States, with prior and treaty protected rights to
self-government and to our Indian and Alaska Native lands;
and
Whereas, the conservation and preservation of tribal land
and resources is a priority for all tribes and a critical
component of the federal trust responsibility; and
Whereas, fish are a sacred resource for many tribes; and
Whereas, the production of electricity through hydropower
dams includes impacts to water quality, waterways, wildlife,
recreation, livelihoods, customary and traditional
activities, and treaty resources within and outside Indian
and Alaska Native lands; and
Whereas, the impacts of hydropower projects located on
federal lands often extend far beyond the confines of the
specific lands on which the projects are sited; and
Whereas, some members of Congress and representatives from
the hydropower industry have proposed amendments to the
Federal Power Act that would (a) weaken the current
protections Indian tribes have through the Mandatory
Conditions requirements under Section 4(e) and Section 18 of
that Act, (b) roll back efforts to restore fish populations
through the requirement of fishways, and (c) unnecessarily
limit the available time and scientific information available
to federal agencies in deciding what Mandatory Conditions
should be included with a license; and
Whereas, these proposed amendments to the Federal Power Act
would not improve the federal hydropower licensing process,
which is an important source of protections for tribal lands
and resources, but rather weaken these critical protections.
Now therefore be it
Resolved, that the National Congress of American Indians
(NCAI), its leadership, and its executive staff shall call on
the U.S. Congress and the Administration to oppose all
proposed amendments to the hydropower provisions in the
Federal Power Act that would remove or lessen the protections
currently afforded tribal governments, tribal lands, inherent
reserved rights, treaty rights and other tribal resources
under the Federal Power Act; and be it further
Resolved, that this resolution shall be the policy of NCAI
until it is withdrawn or modified by subsequent resolution.
certification
The foregoing resolution was adopted by the General
Assembly at the 2017 Annual Session of the National Congress
of American Indians, held at the Wisconsin Center in
Milwaukee, WI, Oct 15, 2017-Oct 20, 2017, with a quorum
present.
Jefferson Keel,
President.
Attest: Juana Majel Dixon, Recording Secretary.
Mr. RUSH. Mr. Chair, the substitute amendment that we will consider
shortly provides Indian Tribes with authority to speak for themselves
with respect to the hydropower licensing process.
Currently, Mr. Chair, the agencies of the Departments of the Interior
and Commerce proposed conditions to protect Tribal reservations. If the
substitute is enacted, Tribes that have sufficient capacity can assume
responsibility for protecting their own reservations.
{time} 1445
The Tribal authority provision is absolutely very important and long
overdue. As sovereign entities, Tribes have a status different from
that of States and Federal agencies. They should be negotiating on
their own behalf to protect their own interests.
[[Page H8624]]
Mr. Chair, hydropower projects, a number of which were designed and
built over the objections of Tribes, resulted in devastating losses of
Tribal lands and fisheries.
We can and must do better. Hydropower projects can be designed,
upgraded, and operated in ways that lower the environmental costs and
preserve other important uses of the river.
Current law and current regulations already provide for consultation
with Tribes. In fact, under the integrated license process, applicants
are required to consult with Tribes 5 years before the current license
expires if they plan to seek a renewed license.
The integrated license process was designed specifically for the more
complex, controversial hydropower projects, either new projects or
relicensing of existing projects.
Mr. Chair, many applicants, however, request and are allowed to
pursue their license under the traditional license process that
includes less opportunity for consultation. FERC should be denying some
of these requests, but each and every one of them are granted by FERC.
When this happens, controversial projects run into predictable
problems that bog down the license process. This is an administrative
change that FERC could make that would require no new legislation and
would improve the license process.
Mr. Chair, this bill does nothing--absolutely nothing--to speed up
this problem or fix the process that we have been discussing.
Mr. Chair, I yield back the balance of my time.
Mr. UPTON. Mr. Chair, I yield myself such time as I may consume. I
don't intend to use all the time that is remaining. I just want to make
a couple of points to my colleagues as we close debate on the general
debate on this bill.
This isn't a new bill. A lot of us in this body on both sides support
an all-of-the-above strategy. It includes safe nuclear. It includes
clean coal. It supports energy efficiencies, renewables, wind, solar,
and hydro.
This bill, H.R. 3043, is not a new bill. In fact, the provisions,
almost to a tee, in both the House and the Senate version last year in
a bill that ultimately didn't get conferenced to President Obama, we
didn't really have any disagreements on the hydro section. We came to
an agreement and the House passed the bill as it relates to the hydro
bill. And the Senate bill passed, as I recall it, 92-8, pretty
overwhelming, pretty bipartisan. In essence, the same provisions that
we have here.
I got to say that, throughout the process, we listened to the concern
raised by some of the stakeholders, including States and Tribes. We
made a number of significant changes to the version of the bill as
compared to the version again last year that added more strength, more
hurdles to go through.
The biggest change, frankly, that we made was taking the hammer away
from FERC to compel agencies to stick to a deadline. Consequently, no
permits are going to be granted by default because of a missed
deadline. But we also inserted new State and Tribal consultation
requirements with a very strong savings clause that clarifies that
nothing shall affect the Clean Water Act and other environmental laws.
That wasn't in the bill last year. That is new this year.
So I think that we have accommodated the concerns, particularly when
many of the Members that are here in this Congress that were there last
Congress actually voted for the provisions we had, certainly in
committee as well as on the Senate floor.
Again, I just want to read into the Record page 17, line 23: ``No
Effect on Other Laws. Nothing in this section shall be construed to
affect any requirement of the Federal Water Pollution Control Act, the
Fish and Wildlife Coordination Act, the Endangered Species Act of 1973,
section 14 of the Act of March 3, 1899 (commonly known as the Rivers
and Harbors Appropriations Act of 1899), and those provisions of
subtitle III of title 54, United States Code, commonly known as the
National Historic Preservation Act, with respect to an application for
a license under this part.''
This bill is stronger than the one that most of us supported last
year, particularly as it pertains to hydroelectric licensing by FERC.
So I commend the action of Mrs. McMorris Rodgers, who, again, carried
the water on this in this Congress. I would like to think that we will
have a positive vote with Republicans and Democrats supporting the
bill. We are prepared to now discuss and debate the amendments.
Mr. Chair, I yield back the balance of my time.
Mr. COLE. Mr. Chair, I rise today in opposition to H.R. 3043, the
Hydropower Policy Modernization Act of 2017. However, I would like to
point out the positive outcomes this bill would provide to the
Hydropower industry. This bill would improve the administrative
efficiency, accountability and transparency in the process of expanding
hydropower generation. It would bring certainty and timeliness to the
licensing process, that right now takes decades to move through. This
bill would require other federal agencies to submit earlier any
foreseeable issues that would prolong the licensing process, instead of
waiting until the last hour as they are able to today.
With that said, H.R. 3043 falls short in its treatment of tribal
communities. I believe the proponents of this bill have worked in the
best interest of Indian Country, but have unfortunately fallen short.
First, this bill would overturn the D.C. Circuit Court of Appeals
decision in Tacoma v. Federal Energy Regulatory Commission (FERC) that
held that the Department of the Interior has the mandatory authority to
develop appropriate conditions to protect federal Indian reservations
under the Federal Power Act. Also, that FERC has no authority to reject
these conditions because the Interior Department did not meet FERC's
schedule. H.R. 3043, would overturn this decision by allowing FERC to
put a clock on other Federal agencies and force them to accommodate
their schedule. For example, if the Interior Department misses the
deadline then Tribal interests cannot be considered again until the
next re-licensing opportunity at least 40 years later.
H.R. 3043 does nothing to strengthen the tribal voice in the process
and truncates our trustee agencies' responsibility. This bill would
allow FERC to make the determination as to the scope of environmental
review for 4(e) conditions, which the Interior Department is already
required to give deference to. Hydropower projects affect entire
watersheds, which in turn impact Indian reservations in ways that FERC
and the hydropower industry have fought to deny. However, in Tacoma v.
FERC, the Court was again clear that if a project is on Indian lands,
Interior alone gets to determine what conditions, and by necessity the
environmental review, that are necessary to protect the Indian
Reservation.
H.R. 3043 would require Interior to balance energy generating
interests against the Agency's trust responsibility to protect Indian
Reservations. Currently, under the Federal Power Act, Interior's only
interest is developing conditions to protect federal Indian
Reservations, which, frankly, should only be their interests in line
with the Bureau of Indian Affairs, and not the Department of Energy.
Finally, H.R. 3043 would overturn the Supreme Court's decision in
Escondido v. FERC, 466 U.S. 765 (1984) and give FERC the authority to
make a determination that a 4(e) condition and fishway condition is
inconsistent with the Federal Power Act. This is unprecedented change
in the Federal Power Act, which will undermine the federal trustee
agency's ability to protect Indian lands and resources.
There is nothing in the bill that improves the FERC relicensing in
regards to tribes and, frankly, would severely undermine tribal
governments and Interior Department's ability to protect tribal and
trust resources.
Mr. RUSH. Mr. Chair, I include in the Record letters from: Vermont
Agency of Natural Resources, California State Water Resources Control
Board, Western Governors' Association, State of Washington Department
of Ecology, Environmental Council of the States, and Association of
State Wetland Managers.
State of Vermont,
Agency of Natural Resources,
Montpelier, VT, September 12, 2017.
Re Comments in Opposition to Hydropower Policy Modernization
Act of 2017, H.R. 3043.
Hon. Paul Ryan,
Speaker, House of Representatives,
Washington, DC.
Hon. Nancy Pelosi,
Minority Leader, House of Representatives,
Washington, DC.
Dear Speaker Ryan and Minority Leader Pelosi: The Vermont
Agency of Natural Resources (VTANR) would like to express
strong concerns over the proposed Hydropower Policy
Modernization Act of 2017, H.R. 3043. While VTANR supports
efforts to improve and streamline current hydroelectric
licensing processes, the Agency strongly opposes legislative
efforts to diminish States' ability to protect water quality.
Several provisions of H.R. 3043 would essential curtail the
State authority under Section 401 of the
[[Page H8625]]
federal Clean Water Act, effectively constraining State
agencies' ability to use their independent authority to set
license conditions, making it more difficult to protect
natural resources.
VTANR strenuously opposes provisions of H.R. 3043 that
eliminate or reduce States' delegated authority under Section
401 of the federal Clean Water Act to develop mandatory
licensing conditions protective of natural resources. State
agencies serve an essential role in the Federal Energy
Regulatory Commission (FERC) licensing process for
hydroelectric facilities. H.R. 3043 would designate FERC as
the lead agency over federal authorizations related to
applications of hydroelectric projects for a license, license
amendment, or exemptions. As the lead agency, FERC would
establish and control the timeline for licensing review and
process for hydroelectric projects. H.R. 3043 appears to give
FERC the authority to create a schedule reducing the time a
State would have to get necessary scientific studies
completed and reviewed to determine specific conditions
needed to protect water quality, as required under Section
401 of the federal Clean Water Act. This would effectively
permit FERC to license a facility before a thorough review of
the environmental impacts could be completed. Vermont uses
its Section 401 authority to issue water quality
certifications with conditions to ensure projects are built
and operated in a manner consistent with State environmental
laws and protective of the environment and public health.
In addition, a provision of H.R. 3043 provides applicants
with an opportunity to a trial-type hearing before a FERC
Administrative Law Judge whenever there is a dispute of
material fact. Under the provisions of H.R. 3043, the
decision of the FERC Administrative Law Judge would be final
and not subject to further administrative review. Currently,
conditions included in a Section 401 water quality
certification become mandatory license conditions and cannot
be altered or modified by FERC. Further matters of material
facts related to Section 401 water quality certifications for
hydroelectric facilities are heard at the State level by
courts or boards that are familiar with a State's water
quality standards and other environmental laws. The allowance
for the trial-type hearing before FERC could undermine the
States' authority granted under Section 401, making it more
challenging to protect water quality and natural resources.
Through decades of decisions, federal courts have affirmed
the authority of States to impose conditions in federal
licenses issued to hydroelectric projects under Section 401
of the Clean Water Act. These decisions recognize that States
have the primary responsibility to ensure State water quality
standards and other environmental laws are met. H.R. 3043
would undermine this authority by including a provision that
would allow FERC to seek resolution between it and States at
the federal level, elevating the dispute to the secretary
overseeing the federal statute. In the case of the federal
Clean Water Act, H.R. 3043 appears to allow FERC to negotiate
with the Administrator of the Environmental Protection Agency
or Secretary of Army, who are responsible for Clean Water Act
on the federal level, to settle a dispute with between it and
a state, effectively cutting States out of the process.
Vermont's interest in protecting natural resources is as
important and relevant today as ever, particularly because a
large number of hydroelectric facilities in Vermont are
slated to begin the federal relicensing process over the next
five years. FERC issues licenses to hydroelectric projects
for a term of 30 to 50 years. As such, many of the projects
scheduled for relicensing will likely need significant
changes in operations to meet modern water quality standards
and to restore State water resources from impacts of project
operations. As drafted, H.R. 3043 would reduce VTANR
delegated authority under Section 401 of the federal Clean
Water Act, creating ways for project operators to circumvent
state regulations during the licensing process to allow them
to operate in a manner that would continue to degrade the
environment and resources of the State.
VTANR recognizes the importance of hydroelectric generation
in meeting renewable energy goals. We urge you to consider
how the federal process can be improved without undermining
the very checks and balances that have helped hydroelectric
generation be viewed as a sustainable and renewable energy
source.
We appreciate your consideration of these comments on H.R.
3043 and look forward to solutions that improve our energy
security and infrastructure while protecting the environment.
Sincerely,
Julia S. Moore, P.E.,
Secretary.
____
California State
Water Resources Control Board,
Sacramento, CA, May 17, 2017.
Hon. Greg Walden,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Hon. Frank Pallone,
Ranking Member, Committee on Energy and Commerce, House of
Representatives, Washington, DC.
Dear Chairman Walden and Ranking Member Pallone:
comments in opposition to provisions of house of representatives
discussion drafts: (1) hydropower policy modernization act of 2017; (2)
promoting closed-loop pumped storage hydropower act; and (3) promoting
hydropower development at existing non-powered dams act
The California State Water Resources Control Board (State
Water Board) would like to express its concerns with the
following House of Representatives Legislative Discussion
Drafts: (1) Hydropower Policy Modernization Act of 2017; (2)
Promoting Closed-Loop Pumped Storage Hydropower Act; and (3)
Promoting Hydropower Development at Existing Non-Powered Dams
Act (collectively Hydropower Discussion Drafts). While the
State Water Board supports the goals of energy infrastructure
modernization, it opposes several provisions as drafted
because the Hydropower Discussion Drafts would reduce or
eliminate essential protections for California's natural
resources.
The Hydropower Discussion Drafts would seriously impact the
mandatory conditioning authority of the State Water Board
under Section 401 of the Clean Water Act, as well as similar
authorities of federal agencies. State and federal agencies
serve an essential role in the Federal Energy Regulatory
Commission's (Commission) hydropower licensing process. The
Hydropower Discussion Drafts designate the Commission as the
sole lead agency over federal authorizations related to an
application for a license, license amendment, or exemption
for a hydropower project. As the sole lead agency, the
Commission would establish and control the timeline for the
hydropower licensing process for all aspects of federal
authorization, including Section 401 of the Clean Water Act.
As such, the Commission could limit the State Water Board and
federal agencies' time to complete their respective actions
which could adversely impact the agencies' ability to comply
with necessary state and federal laws and may negatively
impact public and environmental health.
As noted in this letter, the State Water Board is
particularly concerned about provisions of the Hydropower
Discussion Drafts that would undermine states' authorities
under Section 401 of the Clean Water Act. As former Chief
Justice Rehnquist observed, there has been a ``consistent
thread of purposeful and continued deference to state water
law by Congress.'' (California v. U.S. (1978) 438 U.S. 645,
653.) This ``cooperative federalism'' is epitomized by
Section 401 of the Clean Water Act, which authorizes states
to set conditions to protect the waters of their states, and
provides that review of conditions of certification is in
state court, not by federal agencies. In so doing, Section
401 preserves both state authority and the integrity of state
procedures and state institutions in overseeing how state
agencies exercise that authority. Consistent with Congress'
usual respect for state rights in this area, this structure
must be preserved. The Hydropower Discussion Drafts
inappropriately place limitations on state rights in this
area by placing Section 401 of the Clean Water Act in the
definition of Federal Authorization and under the
Commission's jurisdiction.
The State Water Board recognizes the importance of
hydropower as a clean energy source that helps provide grid
reliability and supports the goal of promoting efficiencies
in the Commission's licensing of hydropower projects. To
promote such efficiencies, in 2013, the State Water Board
entered into a memorandum of understanding with the
Commission to coordinate pre-application procedures and
schedules between the two agencies. Since implementation, the
memorandum of understanding has improved coordination between
the State Water Board and the Commission, and is beginning to
streamline portions of the licensing process. The State Water
Board acknowledges that it has a pending backlog of water
quality certification applications, due in part to
California's recent drought, and we are committed to acting
upon these applications as expeditiously as possible. The
State Water Board opposes provisions of the Hydropower
Discussion Drafts because they may result in harm to
California's water quality and associated beneficial uses,
public lands, and fish and wildlife by removing key state and
federal authorities designed to protect the environment and
the public enjoyment of the environment. Specific comments
and concerns are provided in Attachment A. Key provisions of
the Hydropower Discussion Drafts are provided in Attachment B
for ease of reference in reviewing the State Water Board's
comments.
I appreciate your consideration of these comments and look
forward to solutions that improve our energy security and
infrastructure while protecting the environment.
Sincerely,
Felicia Marcus,
Chair.
____
Western Governors' Association,
May 1, 2017.
Hon. Greg Walden,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Hon. Frank J. Pallone,
Ranking Member, Committee on Energy and Commerce, House of
Representatives, Washington, DC.
Dear Chairman Walden and Ranking Member Pallone: Western
Governors recognize the importance of renewable energy
sources, including hydropower, as critical components of an
all-of-the-above national energy portfolio. The West accounts
for nearly 70 percent of the nation's hydroelectric power
generation, and the Pacific
[[Page H8626]]
Northwest is the nation's largest hydropower-producing region
Western Governors support improving the efficiency of
existing hydropower systems and increasing the amount of
electricity generated from new, retrofitted, or relicensed
hydroelectric facilities.
States are vested with primary authority to manage water
within their borders, and they have the authority to develop,
use, control and distribute water resources within their
boundaries. As expressed in section B(1)(a) of WGA Policy
Resolution 2015-08, Water Resource Management in the West.
``While the Western Governors acknowledge the important
role of federal laws such as the Clean Water Act, the
Endangered Species Act and the Safe Drinking Water Act,
nothing in any act of Congress or Executive Branch regulatory
action should be construed as affecting or intending to
affect states' primacy over the allocation and administration
of their water resources.''
Western Governors are concerned about provisions in Section
34, ``Hydropower Licensing and Process Improvement'' of the
proposed Hydropower Policy Modernization Act of 2017.
Portions of the language included in the published discussion
draft of this proposal are identical to language of Subtitle
B, ``Hydropower Regulatory Modernization'' of the proposed
North American Energy Security and Infrastructure Act of 2015
(H.R. 8).
On July 18, 2016, Governor Steve Bullock and Governor
Dennis Daugaard provided correspondence (attached) to the
Committee, expressing the Western Governors' concerns over
the language included in Subtitle B of H.R. 8, which would
have designated the Federal Energy Regulatory Commission
(FERC) as lead agency fol all hydropower authorizations,
approvals, and requirements mandated by federal law,
including hydropower facility licenses and amendments, as
well as all permits, special use authorizations,
certifications, and opinions. The Governors requested that
this language be removed or amended so that existing state
hydropower licensing authorities are not replaced, or in any
way impeded, by FERC jurisdiction.
Western Governors request that the language in Section 34
of the proposed Hydropower Policy Modernization Act of 2017
be removed or amended so that states' existing hydropower
licensing authorities are in no way usurped by FERC
jurisdiction. Thank you for your attention to this important
matter.
Sincerely,
James D. Ogsbury,
Executive Director.
____
State of Washington,
Department of Ecology,
Olympia, WA, November 3, 2017.
Re Hydropower Regulatory Modernization Act of 2017.
Hon. Frank Pallone, Jr.,
House of Representatives, Washington, DC.
Hon. Greg Walden,
House of Representatives, Washington, DC.
Dear Chairman Walden and Ranking Member Pallone: I am
writing to express my concerns with the Hydropower Regulatory
Modernization Act of 2017, H.R. 3043, which would amend the
Federal Power Act to modify certain requirements. The
Washington Department of Ecology (Ecology) supports the
ostensible intent of this bill to gain efficiency in the
licensing of hydropower projects. In addition, we support the
goal of improving the certainty and timeliness of the
hydropower licensing process. However, provisions in H.R.
3043 that modify the authorities of the Federal Energy
Regulatory Commission (FERC) would impede or invalidate
states' independent authority provided by Section 401 of the
Clean Water Act (CWA Sec. 401) to establish license
conditions that protect water quality.
Our residents and tribes harvest salmon from the Puget
Sound up through the Columbia River, and our farmers grow
hops in the Yakima River basin. They also depend on water as
a source of energy to power their homes and communities, and
our industries rely on abundant and consistent energy to
build aircraft in Everett, power data server farms in Quincy,
manufacture car bodies for electric vehicles in Moses Lake,
and process apples along the Wenatchee River basin. Balancing
the need for clean energy with the need for safe water
supplies begins with the proper management of water as a
resource, and it is one of the major focal points of this
legislation.
Decades of federal court decisions interpreting CWA
Sec. 401 have established the states' authority to require
conditions in FERC licenses that are necessary to protect
water quality. These decisions recognize and affirm the basic
principle of federalism embodied in the CWA that states have
a primary role and responsibility to ensure state water
quality standards are met.
Ecology implements the state's Water Pollution Control Act
(RCW 90.48). As the state water pollution control agency, we
are responsible for implementing federal water pollution
control laws and regulations, including state water quality
certifications required by CWA Sec. 401 for any federal
permit or license that result in a discharge to state waters.
Ecology has developed durable partnerships with the
hydropower industry in Washington State--the largest of any
state in the nation--and has a successful record of
accomplishment in expediting water quality certifications
that are incorporated as FERC license conditions.
In an effort to improve H.R. 3043, my team worked for
several weeks with two members of the National Hydropower
Association along with staff at the Chelan County Public
Utility District in Washington State. Our objective in these
discussions was to maintain the intent of this legislation
while also protecting states' authority provided in the CWA
Sec. 401. Although the group did not reach full consensus,
significant progress was made to put forth alternative
language that would remove ambiguity regarding FERC and state
authority. My team identified a number of changes in language
that are necessary to protect independent state authority to
condition and certify FERC licenses. If provided more time,
and engagement directly with your committee, I am confident
that all parties can reach a mutually-satisfactory policy.
Ecology appreciates Congress' effort to streamline the FERC
licensing process, however, the addition of SEC. 34(b)(2)
OTHER AGENCIES AND INDIAN TRIBES, would require states' water
quality certification process to follow a schedule under the
requirements of the FERC, rather than the schedule in CWA
Sec. 401. The timelines and independent state authorities
granted by CWA Sec. 401 must remain intact, as both are
essential for states to issue water quality certifications.
States must also retain the ability to practice a ``withdraw
and reapply'' process that has proven necessary for some
complex hydropower licenses. If FERC is provided authority to
oversee and set a timeline different than that provided under
CWA Sec. 401, it undermines states' ability to ensure
effectiveness and certainty for protection of water quality.
Meanwhile, SEC. 34. HYDROPOWER LICENSING AND PROCESS
IMPROVEMENTS (b) designates FERC as the lead agency for
federal authorizations related to a license application,
license amendment, or exemption for a hydropower license.
H.R. 3043 SEC. 34. HYDROPOWER LICENSING AND PROCESS
IMPROVEMENTS (d) also requires states to adhere to deadlines
established by FERC, effectively reducing the amount of time
a state would have to complete scientific studies necessary
to determine whether water quality standards and requirements
would be met in accordance with CWA Sec. 401. This will
likely create pressure on states to utilize existing
information (SEC 3 (b)) rather than new studies to make these
determinations.
In Washington State, work thus far to provide CWA Sec. 401
certifications for licensing of hydropower facilities have
been timely, responsive, efficient, and protective of the
state's water quality. While additional work remains, durable
partnerships and a strong track record form a solid
foundation to build upon.
In summary, Ecology opposes this bill in its current form
because:
FERC will have undue influence on the ability of states and
tribes to obtain environmental data and information via
studies that are necessary to write CWA Sec. 401
certifications to protect waters in their jurisdiction.
It would lock state and federal natural resource agencies
into a no-win situation. Agencies will be forced to make
regulatory decisions based on incomplete applications that
lack the necessary technical information, which would put
agencies at risk of missing new FERC deadlines resulting in
litigation.
We believe this bill provides enough ambiguity for
individuals to attempt to preempt state CWA Sec. 401
authority. The bill as written could result in legal
challenges and protracted litigation on how the extension of
FERC's authority conflicts with states' rights to protect
water quality and quantity.
Finally, Ecology views many elements of this modernization
bill as unnecessary. In July 2005, FERC restructured its
process and implementing the Integrated Licensing Process
(ILP) that effectively streamlined FERC's licensing process.
Over the course of 12 years, Washington State has provided
water quality certifications for 16 FERC issued licenses as
well as 10 license amendments. The ILP has proven to be a
predictable, efficient, and timely licensing process that
continues to ensure adequate resource protections. This bill
would eliminate the flexibility available in the current
system and return to a traditional approach that is less
responsive to environmental concerns and more susceptible to
litigation.
We urge that the provisions of H.R. 3043 that would have
the effect of curtailing state authority under CWA Sec. 401
be significantly improved or stricken from the bill.
Sincerely,
Maia D. Bellon,
Director.
Mr. WALDEN. Mr. Chair, I rise today in support of H.R. 3043, the
Hydropower Policy Modernization Act, sponsored by fellow Energy and
Commerce committee member and our Conference Chair, Cathy McMorris
Rodgers.
Hydropower plays an integral role in generating electricity across
the nation, especially back in my home state of Oregon. Hydropower
generates nearly 43 percent of electricity in Oregon and this
dependable baseload power has helped drive the development of
everything from value-added agriculture processing to data centers,
creating jobs along the Columbia River and throughout Oregon.
Nationally, hydropower is the largest source of renewable electricity
generation and a recent Department of Energy report found that
[[Page H8627]]
U.S. hydropower could grow by almost 50 percent by the year 2050.
However, as my colleagues from the Pacific Northwest and across the
country know, we are not taking full advantage of this valuable
resource. Unfortunately, the duration, complexity, and uncertainty of
the licensing process has raised significant challenges, preventing
investments that would create jobs and benefit consumers.
Thankfully, my good friend from Washington introduced this
legislation to alleviate these problems and streamline the federal
hydropower licensing process. The bill before us today didn't just
emerge from thin air. It is the culmination of five committee hearings
and markups, along with several bipartisan staff meetings with the
hydropower industry and tribes that have a stake in the licensing
proceedings.
We solicited feedback from all stakeholders as we crafted this
legislation and made a number of changes to address the concerns
raised. We added new provisions to ensure that states and tribes are
consulted early in the licensing process to identify and resolve issues
of concern. We also made sure that state and local governments could
recoup the costs of reviewing applications and conducting studies. We
even added a strong savings clause that clarifies our intent that
nothing in this bill shall be construed to affect any requirement of
the Clean Water Act, Endangered Species Act, and other environmental
laws.
In recognition of the regular order committee process, H.R. 3043
sailed out of committee unanimously by voice vote. The supporters of
this bill, especially labor and industry organizations, recognize the
vital role it will play in supporting job growth, local economic
development, and providing much-needed reforms to the licensing
process.
H.R. 3043 seeks to modernize the permitting process by improving
administrative efficiency, accountability, and transparency; requiring
timely decision making; and by designating Federal Energy Regulatory
Commission as the lead agency is approving permits. You may be asking
yourself, `why is this process in need of reform?' The answer is
simple. As my colleague from Washington likes to point out, it can take
up to 10 years or longer to license a new hydropower project of
relicense an existing facility. Further underscoring the need for this
legislation is the fact that by 2030, over 400 existing projects with
over 18,700 megawatts of capacity will begin the relicensing process.
Mr. Chair, this emissions-free energy resource should not be bogged
down in bureaucratic red tape any longer. It's past time we modernize
this grossly outdated licensing process, so we can get projects to
market faster and streamline those projects in need of relicensing. At
the end of the day, this important legislation promotes hydropower
development, creates jobs, and provides consumers across the country
with continued access to clean, affordable, and reliable baseload power
generation.
I include in the Record the Supporters of H.R. 3043:
The American Council on Renewable Energy (ACORE); (American
Public Power Association (APPA); Business Council for
Sustainable Energy (BCSE); Edison Electric Institute (EEI),
International Brotherhood of Boilermakers (Boilermakers);
International Brotherhood of Electrical Workers (IBEW);
International Federation of Professional and Technical
Engineers (IFPTE); Large Public Power Council (LPPC);
Laborers' International Union of North America (LiUNA);
National Electrical Contractors Association (NECA); National
Hydropower Association (NHA); National Rural Electric
Cooperative Association (NRECA); North America Building
Trades Council (NABTU); United Brotherhood of Carpenters and
Joiners of America (Carpenters).
Mr. RUSH. Mr. Chair, I include in the Record letters in opposition to
H.R. 3043 from environmental, recreation, fisheries, and conservation
groups from across the country along with the list of groups that have
signed these letters.
Environmental, Fisheries, Recreation, and Conservation Organizations in
Opposition to H.R. 3043
Alabama Rivers Alliance; Alaska Survival; All Outdoors;
Alliance for the Great Lakes; Alpine Lakes Protection
Society; Altamaha Riverkeeper; American Packrafting
Association; American Rivers; American Whitewater; Anacostia
Watershed Society; Anglers of the Au Sable; Animal Welfare
Institute; Apalachicola Riverkeeper; Appalachian Mountain
Club; Association of Northwest Steelheaders; Atlantic Salmon
Federation; Black Warrior Riverkeeper; California Hydropower
Reform Coalition; California Outdoors; California River
Watch; California Sportfishing Protection Alliance;
California Trout; Cascadia Wildlands; Catawba Riverkeeper;
Center for Biological Diversity.
Center for Environmental Law and Policy; Central Sierra
Environmental Resource Center; Clean Water Action; Coastal
Conservation League; Colorado River Water keeper Network;
Columbiana; Congaree Riverkeeper; Connecticut River
Conservancy; Conservation Law Foundation; Conservation
Northwest; Conservatives for Responsible Stewardship; Coosa
Riverkeeper; Crab Apple Whitewater Defenders of Wildlife;
Deschutes River Alliance; Downeast Salmon Federation;
Earth Design; Earthjustice; Earthworks; Endangered
Habitats League; Endangered Species Coalition;
Environmental Protection Information Center (EPIC);
Foothill Conservancy; Foothills Paddling Club; Foothills
Water Network; Friends of Butte Creek.
Friends of Cooper Landing; Friends of Grays Harbor; Friends
of Kenai National Wildlife Refuge; Friends of the Kinni;
Friends of Merrymeeting Bay; Friends of the Crooked River;
Friends of the Eel River; Friends of the River; Friends of
the White Salmon River; Golden West Women Flyfishers; Grand
Canyon Trust; Grand Riverkeeper Labrador; Great Lakes Council
Fly Fishers; Green Latinos; Hells Canyon Preservation
Council; High Country Conservation Advocates; Holy Spirit
Missionary Sisters; Huron River Watershed Council; Hydropower
Reform Coalition; Idaho Rivers United; Illinois Council of
Trout Unlimited; Institute for Fisheries Resources; James
River Association; Kalmiopsis Audubon Society; Kenai River
Watershed Foundation.
Klamath Forest Alliance; Klamath Riverkeeper; Klamath-
Siskiyou Wildlands Center; Kootenai Environmental Alliance;
League of Conservation Voters; Lower Columbia Canoe Club;
Lower Susquehanna Riverkeeper Association; Maine Rivers;
Michigan Environmental Council; Michigan Hydro Relicensing
Coalition; Middle Susquehanna Riverkeeper; Milwaukee
Riverkeeper; Mono Lake Committee; Mousam and Kennebunk Rivers
Alliance; National Heritage Institute; National Park
Conservation Association; National Wildlife Federation;
Native Fish Society; Natural Heritage Institute; Natural
Resources Defense Council; Natural Resources Council of
Maine; Naturaland Trust; Nature Abounds; Naugatuck River
Revivial Group.
New England FLOW; New Hampshire Rivers Council; North
Cascades Conservation Council; Northwest Environmental
Advocates; Northwest Guides and Anglers Association;
Northwest Resources Information Center; Olympic Forest
Coalition; Oregon Kayak and Canoe Club; Outdoor Alliance;
Pacific Coast Federation of Fishermen's Associations; Pacific
Rivers; Penobscot Paddle and Chowder Society; Planning and
Conservation League; Potomac Riverkeeper; Prairie Rivers
Network; Prince William Soundkeeper; Quartz Creek Homeowners'
Association; Religious Coalition for the Great Lakes; River
Alliance of Wisconsin; River Guardian Foundation; River
Network; Riverkeeper Network.
Rogue Riverkeeper; San Juan Citizens Alliance; Save Our
Saluda; Save Our Wild Salmon; Save the Colorado; Selkirk
Conservation Alliance; Smith River Alliance; Snake River
Waterkeeper; South Carolina Native Plant Society; Southern
Environmental Law Center; South Yuba River Citizens League;
Spartanburg Area Conservancy; Spearfish Canyon Society;
Spokane Riverkeeper; St. Mary's River Watershed Association;
Tennessee Clean Water Network; The Lands Council; The
Mountaineers.
The Roanoke River Basin Association; The Sierra Club;
Tributary Whitewater Tours, LLC; Trout Unlimited; Tuolumne
River Trust; Upstate Forever; Washington Environmental Law
Center (see Western Environmental Law Center); Washington
Wild; Waterkeeper Alliance; Waterkeepers Chesapeake;
WaterWatch of Oregon; WESPAC Foundation; West Michigan
Hacklers; Western Environmental Law Center; Wild Earth
Guardians; Wild Washington Rivers; Yadkin Riverkeeper; Zoar
Valley Paddling Club.
____
November 7, 2017.
Dear Representative: On behalf of our millions of members
and supporters nationwide, we are writing to urge you to
oppose H.R. 3043, the Hydropower Policy Modernization Act.
This bill is a devastating assault on our nation's rivers and
the people and wildlife that depend upon them. Its passage
would end 95 years of balance in hydropower licensing,
tipping the scales against taxpayers and in favor of huge
utilities.
Hydropower licenses are issued for up to 50 years. Many
hydropower facilities that are coming up for relicensing now
were first constructed before virtually all modern
environmental laws were in place. It is during relicensing
proceedings that the public gets the opportunity to ensure
that dam owners make the necessary changes to comply with
modern laws. The opportunity to mitigate for the damage to
the environment, while still providing reliable electricity,
only arises once in a generation or two.
The balance the Federal Power Act currently strikes between
power and non-power values has existed for almost a century.
Current law protects the public's right to enjoy its rivers,
a right which can and should be compatible with responsible
electricity production. However, H.R. 3043 upends that
balance. Simply put, the bill is a massive giveaway to
special interests at the expense of healthy rivers and the
fish, wildlife, and people that depend upon them. If H.R.
3043 passes, power company profits will go to the head of the
line, ahead of every other user.
We appreciate that the House Committee on Energy and
Commerce heard testimony from recreational and conservation
interests who raised serious concerns about its many
provisions. Unfortunately, the Committee
[[Page H8628]]
chose to make no changes to reflect the constructive
suggestions that the Hydropower Reform Coalition put forward
that would improve the licensing process while maintaining
environmental protections. The Committee also failed to
solicit testimony from states, tribes, and federal natural
resource agencies whose authorities will be usurped by the
Federal Energy Regulatory Commission (FERC) if H.R. 3043 is
enacted. You are now being asked to vote on a bill that no
state, tribe, or conservation organization publicly supports.
The bill under consideration today will only benefit power
companies at the expense of every other user of a waterway.
H.R. 3043 attempts to streamline the hydropower licensing
process by centralizing power and allowing FERC to set an
aggressive licensing schedule that all federal and state
agencies must adhere to throughout the licensing process.
There are no requirements that FERC or the licensee provide
the agencies with the information they deem necessary to
quickly and competently exercise their Clean Water Act or
Endangered Species Act authority. This creates a dynamic
where, unless every step of the process proceeds seamlessly,
agencies are faced with the impossible decision to either
exercise their authority without necessary information (which
exposes them to legal liability) or to fail to meet the
schedule. This change will constrain federal, state, and
tribal agencies use of their independent authorities and rush
decision making, potentially making it more difficult to
protect water quality, recover threatened and endangered
species, and manage tribal-trust resources and public lands.
Other provisions of H.R. 3043, such as the changes to the
Trial Type Hearing process for alternative conditions, the
requirement that federal natural resource agencies conduct
costly, wasteful and time consuming review of matters outside
of their scope of expertise and jurisdiction, and the
requirement that scientific decisions be made only by
political appointees in Washington, DC are all examples of
how H.R. 3043 tilts the balance toward the interests of
power companies.
In order to protect clean water, irrigation, meeting tribal
treaty and trust obligations, wildlife, recreational fishing,
commercial fishing, whitewater boating, water quality,
municipal water supply, fire safety, flood control, or any
other purpose other than generating power, we urge you to
vote NO on H.R. 3043.
Sincerely,
Alabama Rivers Alliance; American Packrafting Association;
American Rivers; American Whitewater; Apalachicola
Riverkeeper; Appalachian Mountain Club; Atlantic Salmon
Federation; California Outdoors; California Sportfishing
Protection Alliance; Cascadia Wildlands; Center for
Biological Diversity; Center for Environmental Law and
Policy; Columbia Bioregional Education Project; Connecticut
River Conservancy; Conservatives for Responsible Stewardship;
Defenders of Wildlife; Deschutes River Alliance; Downeast
Salmon Federation; Earthjustice.
Earthworks; Endangered Habitats League; Endangered Species
Coalition; Environmental Protection Information Center
(EPIC); Foothill Conservancy; Friends of Butte Creek; Friends
of the Kinni; Friends of the River; Golden West Women
Flyfishers; Grand Riverkeeper Labrador; Green Latinos; High
Country Conservation Advocates; Idaho Rivers United; Illinois
Council of Trout Unlimited; Klamath Forest Alliance; Kootenai
Environmental Alliance; League of Conservation Voters; Lower
Columbia Canoe Club; Maine Rivers; Michigan Environmental
Council.
Michigan Hydro Relicensing Coalition; Mono Lake Committee;
Mousam and Kennebunk Rivers Alliance; National Heritage
Institute; National Park Conservation Association; National
Wildlife Federation; Native Fish Society; Natural Heritage
Institute; Natural Resources Defense Council; Naturaland
Trust; North Cascades Conservation Council; Northwest
Environmental Advocates; Northwest Resource Information
Center; Oregon Kayak and Canoe Club; Oregon Natural Desert
Association; Pacific Coast Federation of Fishermen's
Associations; Pacific Rivers; Penobscot Paddle and Chowder
Society; Planning and Conservation League.
Prarie Rivers Network; River Network; Riverkeeper Network;
Rogue Riverkeeper; Save Our Wild Salmon; Save the Colorado;
Selkirk Conservation Alliance; Southern Environmental Law
Center; St. Mary's River Watershed Association; The Lands
Council; The Mountaineers; The Sierra Club; Tributary
Whitewater Tours, LLC; Tuolumne River Trust; Upstate Forever;
Washington Environmental Law Center (see Western
Environmental Law Center); Washington Wild; WaterWatch of
Oregon; Wild Earth Guardians; Wild Earth Guardians; Wild
Washington Rivers.
____
National Wildlife Federation,
National Advocacy Center,
Washington, DC, November 7, 2017.
Dear Representative: The National Wildlife Federation, with
over 6 million members and supporters and its affiliate
organizations from 51 states and territories across the
country, represents a broad diversity of political views,
mirroring the nation. Regardless of party affiliation, these
members want their families to be safe, their water to be
clean, and ecosystems to be healthy in order to support our
nation's wildlife. It is important, then, that any large-
scale energy project, including hydroelectric, uphold those
values as well. While NWF believes that the United States
should pursue a renewable energy future, the country should
do so while seeking to minimize harm to local ecosystems and
wildlife and gather input from those near hydroelectric
facility sites. This is especially important as hydropower is
not without environmental impacts, including greenhouse gases
released from reservoirs associated with dams. In order to
weigh all impacts as well as the benefits, proper review
processes should be followed and corners cannot be cut.
Because of these long-held standards, NWF opposes H.R. 3043,
the Hydropower Policy Modernization Act of 2017.
The National Wildlife Federation has long supported robust
environmental review processes. Federal and state governments
should approach projects with a genuine interest in
determining negative effects on the environment, wildlife,
and local communities. H.R. 3043 includes provisions that
place arbitrary deadlines on project reviews, even when it is
clear that a proper study will take longer. Unfortunately,
this bill would remove our experts in natural resources from
the review process and usurp states' rights to enforce their
own standards for hydropower projects. Additionally,
considerations of energy supply would be required alongside
protections for endangered species, fisheries, and cultural
sites, contradicting existing laws. If passed into law, H.R.
3043 would likely create confusion and litigation. We have
seen in the past how large-scale hydroelectric projects have
not always considered potential negative effects. We should
learn from our past mistakes, not repeat them.
While there was a hearing on this bill, only the Federal
Energy Regulatory Commission testified, leaving out important
voices. Among those voices left out were tribal leaders,
states, and local officials who will be required to abide by
these new rules. Not only does this legislation limit input
from those near proposed hydroelectric projects, but it also
does so for those who live near existing dams seeking a
permit renewal. This legislation would constrict the review
processes for dams approaching their 50-year review mark. It
is important to make sure that these projects, which were
built before our current rules were put in place, remain up
to the standards we set for human safety and minimal impact
to the environment, economically important fisheries, and
recreation sites.
In short, while this bill and its proponents claim to help
our nation move toward a more sustainable and climate-
friendly future, we need a system in place that can consider
our energy needs in addition to the economic, environmental
and cultural needs of our communities. Since climate change
is the most significant challenge of our time, we urge the
committee and supporters of this legislation to have a
transparent and robust discussion, not only of our energy
needs but also of potential impacts from hydropower such as
wildlife and greenhouse gases. For all of these reasons,
National Wildlife Federation recommends you oppose H.R. 3043.
Sincerely,
Jim Lyon,
Vice President for Conservation Policy,
National Wildlife Federation.
____
Outdoor Alliance,
November 6, 2017.
Re H.R. 3043, Hydropower Policy Modernization Act.
Hon. Paul Ryan,
Speaker, House of Representatives,
Washington, DC.
Hon. Nancy Pelosi,
Minority Leader, House of Representatives,
Washington, DC.
Dear Speaker Ryan and Minority Leader Pelosi: We are
writing to ask you to oppose H.R. 3043, the Hydropower Policy
Modernization Act. If enacted, this bill would have
significant negative impacts on outdoor recreation and its
associated local economic benefits and would remove
opportunities for meaningful local public involvement in
hydropower licensing.
Outdoor Alliance is a coalition of nine member-based
organizations representing the human powered outdoor
recreation community. The coalition includes Access Fund,
American Canoe Association, American Whitewater,
International Mountain Bicycling Association, Winter
Wildlands Alliance, The Mountaineers, the American Alpine
Club, the Mazamas, and Colorado Mountain Club and represents
the interests of the millions of Americans who climb, paddle,
mountain bike, and backcountry ski and snowshoe on our
nation's public lands, waters, and snowscapes.
Our members directly participate in licensing processes for
hydropower projects in partnership with state and federal
resource agencies. The authorities granted to federal
agencies under the Federal Power Act, Clean Water Act, and
Endangered Species Act have helped ensure that hydropower
operations balance our society's need for power with the
benefits of flowing rivers. These benefits include important
economic contributions generated through the outdoor
recreation economy, and outdoor recreation may be one benefit
of hydropower under certain circumstances.
Outdoor recreation powers a vast economic engine valued at
$887 billion annually with much of this activity focused
around water-based recreation, including rivers affected by
[[Page H8629]]
hydropower operations. The National Hydropower Association's
own website, which promotes the benefits of hydropower,
states that ``Swimming, boating, fishing, camping, skiing and
hiking are just some of the recreational activities that take
place year-round and across the country at sites developed
and supported by the hydropower industry.''
We are concerned that H.R. 3043 will severely limit the
ability of local communities to advocate for recreational
benefits in hydropower licensing. If passed, H.R. 3043 will
shift responsibilities away from states, federal land
managers with locally-based recreation staff, and affected
communities, and instead place exclusive authority within the
hands of the Federal Energy Regulatory Commission (FERC).
FERC is a regulatory agency with no local field staff,
frequently with only the ability to participate in one or two
site visits in all. As a result, FERC staff are unlikely to
have experience and familiarity with local resources and
values. The end result of H.R. 3043 would be outcomes that
are detrimental to outdoor recreation and local communities.
While hydropower provides certain benefits, it also always
comes with significant impacts. This legislation would upset
an important balance and the cooperative approach to
hydropower licensing that effectively ensures that the
interests of local communities and their interests in outdoor
recreation are represented. Outdoor Alliance finds the
hydropower provisions of H.R. 3043 to be deeply problematic,
and we oppose any effort to diminish the ability of citizens
and public resource agencies to ensure that hydropower
licenses include provisions to protect the public river
resources that are important to them.
Best regards,
Louis Geltman,
Policy Director,
Outdoor Alliance.
____
TROUT Unlimited,
November 6, 2017.
Re Trout Unlimited opposes the ``Hydropower Policy
Modernization Act of 2017'' (H.R. 3043) and we urge
members of the House of Representatives to vote against
this legislation.
Dear Representative: H.R. 3043 is due for House floor
consideration this week. We urge you to reject the bill and
instead to develop a bill worthy of broad stakeholder
support.
Hydropower is an essential component of our nation's energy
mix. Hydropower produces energy with low hydrocarbon
emissions, but can and does cause massive impacts to
watershed health and fisheries habitats. Striking a balance
between power and nonpower values, such as fisheries habitat,
is essential.
To that end, the Federal Power Act assigns oversight and
conditioning roles for the natural resource agencies to
ensure adequate protections or conditions related to project
effects on underlying lands, waters and related resources.
These authorities, in particular sections 18 and 4e of the
Federal Power Act, and section 401 of the Clean Water Act,
contain some of the most useful fisheries conservation
provisions in state or federal statute and are critical to
minimize and mitigate impacts to trout and salmon habitats,
covering issues like fish passage, instream flow below the
project and water quality and quantity issues.
H.R. 3043 would significantly disrupt efforts to balance
power and nonpower values in the licensing process and for
all the wrong reasons. If the goal of the bill is to make the
licensing process more efficient and expeditious, Congress
should support the funding and information needs of the
resource agencies, not penalize or further constrain their
participation. H.R. 3043 instead would hamstring tribes,
states, and federal resource agencies from review and
conditioning of FERC licensed hydropower projects by imposing
overly restrictive timelines, adding new process hurdles for
debating agency requirements on applicants, and greatly
restricting the scope and basis on which resource agencies
can require conditions or investments to protect non-power
resources impacted by the project.
The harmful bill could not come at a worse time. Dozens of
projects coming up for relicensing soon. Many of them haven't
been reviewed since being originally licensed 30-50 years
ago. It is more imperative now than ever to ensure strong
review of these projects.
Instead of H.R. 3043 Congress should support smart process
improvements that will benefit applicants and operators while
supporting strong protections to balance nonpower values.
Smart improvements would include support for incremental
upgrades, promote ongoing investment and ongoing study during
the life of licenses so that we aren't starting from scratch
every 30 to 50 years. A smart approach would ensure that the
regulatory requirements for states, tribes and federal
resource agencies to permit and condition these projects is
fully supported early in the process to reduce conflict and
delay. H.R. 3043 misses these opportunities, focusing instead
placing arbitrary constraints on environmental review and
conditioning agency authorities that will result in increased
conflict during licensing.
As we have said a number of times before, Congress should
take adequate time to hear the views of the tribes, as well
as the state and federal resource agencies about existing
process hurdles and potential solutions before legislating
changes to hydropower project licensing procedures and
standards. Some in the industry blame delays and cost
overruns on agency inaction and bad decisions, yet the
committee has so far not called them to testify. If the
committee wants to have a thoughtful legislative process, it
needs to hear from the agencies who some claim to be the root
of the problem. Although the Energy and Commerce committee
and its subcommittee on Energy and Power held hearings on
this bill and related hydropower legislation, those hearings
did not include these constituencies. Again, we urge the
committee and the House to take the time to do the
deliberative process in the right way, and build broad
support for bipartisan legislation.
The most balanced and efficient way to bring new hydropower
online, is to ensure that the development is well-sited and
appropriately mitigated from the start and to support and
encourage early and often investment in evaluating and
improving operations over time.
This bill fails the test of carefully balancing power and
non-power values, such as trout and salmon fisheries and
river restoration. Specifically, we urge the House to support
and defend--and not weaken as this bill does--resource agency
authorities and mandates--including the Clean Water Act,
Endangered Species Act and Federal Power Act.
We urge you to vote against H.R. 3043.
Sincerely,
Steve Moyer,
Vice President of Government Affairs.
____
November 7, 2017.
Dear Representative: On behalf of our millions of members
and supporters nationwide, we are writing to urge you to
oppose H.R. 3043, the Hydropower Policy Modernization Act.
This bill is a devastating assault on our nation's rivers and
the people and wildlife that depend upon them. Its passage
would end 95 years of balance in hydropower licensing,
tipping the scales against taxpayers and in favor of huge
utilities.
Hydropower licenses are issued for up to 50 years. Many
hydropower facilities that are coming up for relicensing now
were first constructed before virtually all modern
environmental laws were in place. It is during relicensing
proceedings that the public gets the opportunity to ensure
that dam owners make the necessary changes to comply with
modern laws. The opportunity to mitigate for the damage to
the environment, while still providing reliable electricity,
only arises once in a generation or two.
The balance the Federal Power Act currently strikes between
power and non-power values has existed for almost a century.
Current law protects the public's right to enjoy its rivers,
a right which can and should be compatible with responsible
electricity production. However, H.R. 3043 upends that
balance. Simply put, the bill is a massive giveaway to
special interests at the expense of healthy rivers and the
fish, wildlife, and people that depend upon them. If H.R.
3043 passes, power company profits will go to the head of the
line, ahead of every other user.
We appreciate that the House Committee on Energy and
Commerce heard testimony from recreational and conservation
interests who raised serious concerns about its many
provisions. Unfortunately, the Committee chose to make no
changes to reflect the constructive suggestions that the
Hydropower Reform Coalition put forward that would improve
the licensing process while maintaining environmental
protections. The Committee also failed to solicit testimony
from states, tribes, and federal natural resource agencies
whose authorities will be usurped by the Federal Energy
Regulatory Commission (FERC) if H.R. 3043 is enacted. You are
now being asked to vote on a bill that no state, tribe, or
conservation organization publicly supports. The bill under
consideration today will only benefit power companies at the
expense of every other user of a waterway.
H.R. 3043 attempts to streamline the hydropower licensing
process by centralizing power and allowing FERC to set an
aggressive licensing schedule that all federal and state
agencies must adhere to throughout the licensing process.
There are no requirements that FERC or the licensee provide
the agencies with the information they deem necessary to
quickly and competently exercise their Clean Water Act or
Endangered Species Act authority. This creates a dynamic
where, unless every step of the process proceeds seamlessly,
agencies are faced with the impossible decision to either
exercise their authority without necessary information (which
exposes them to legal liability) or to fail to meet the
schedule. This change will constrain federal, state, and
tribal agencies use of their independent authorities and rush
decision making, potentially making it more difficult to
protect water quality, recover threatened and endangered
species, and manage tribal-trust resources and public lands.
Other provisions of H.R. 3043, such as the changes to the
Trial Type Hearing process for alternative conditions, the
requirement that federal natural resource agencies conduct
costly, wasteful and time consuming review of matters outside
of their scope of expertise and jurisdiction, and the
requirement that scientific decisions be made only by
political appointees in Washington, DC are all examples of
how H.R. 3043 tilts the balance toward the interests of power
companies.
In order to protect clean water, irrigation, meeting tribal
treaty and trust obligations, wildlife, recreational fishing,
commercial
[[Page H8630]]
fishing, whitewater boating, water quality, municipal water
supply, fire safety, flood control, or any other purpose
other than generating power, we urge you to vote NO on H.R.
3043.
Sincerely,
American Packrafting Association; American Rivers; American
Whitewater; Apalachicola Riverkeeper; Appalachian Mountain
Club; Atlantic Salmon Federation; California Outdoors;
California Sportfishing Protection Alliance; Center for
Biological Diversity; Center for Environmental Law and
Policy; Connecticut River Conservancy; Conservatives for
Responsible Stewardship; Downeast Salmon Federation;
Earthjustice; Earthworks; Endangered Habitats League;
Endangered Species Coalition; Environmental Protection
Information Center (EPIC); Foothill Conservancy; Friends
of Butte Creek.
Golden West Women Flyfishers; Grand Riverkeeper Labrador;
Green Latinos; High Country Conservation Advocates; Idaho
Rivers United; Illinois Council of Trout Unlimited; Klamath
Forest Alliance; Kootenai Environmental Alliance; League of
Conservation Voters; Lower Columbia Canoe Club; Maine Rivers;
Michigan Environmental Council; Michigan Hydro Relicensing
Coalition; Mono Lake Committee; Mousam and Kennebunk Rivers
Alliance; National Heritage Institute; National Park
Conservation Association; National Wildlife Federation;
Natural Resources Defense Council; Naturaland Trust.
North Cascades Conservation Council; Northwest
Environmental Advocates; Oregon Kayak and Canoe Club; Pacific
Coast Federation of Fishermen's Associations; Penobscot
Paddle and Chowder Society; Planning and Conservation League;
Prairie Rivers Network; River Alliance of Wisconsin; River
Network; Riverkeeper Network; Rogue Riverkeeper; Save Our
Wild Salmon; Save the Colorado; Selkirk Conservation
Alliance; Southern Environmental Law Center; St. Mary's River
Watershed Association; The Lands Council; The Sierra Club;
Tributary Whitewater Tours, LLC; Tuolumne River Trust;
Upstate Forever; Washington Environmental Law Center (see
Western Environmental Law Center); Washington Wild;
WaterWatch of Oregon; Wild Washington Rivers.
The Acting CHAIR. All time for general debate has expired.
Pursuant to the rule, the bill shall be considered for amendment
under the 5-minute rule.
It shall be in order to consider as an original bill for the purpose
of amendment under the 5-minute rule the amendment in the nature of a
substitute recommended by the Committee on Energy and Commerce, printed
in the bill. The committee amendment in the nature of a substitute
shall be considered as read.
The text of the committee amendment in the nature of a substitute is
as follows:
H.R. 3043
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Hydropower Policy
Modernization Act of 2017''.
SEC. 2. HYDROPOWER REGULATORY IMPROVEMENTS.
(a) Sense of Congress on the Use of Hydropower Renewable
Resources.--It is the sense of Congress that--
(1) hydropower is a renewable resource for purposes of all
Federal programs and is an essential source of energy in the
United States; and
(2) the United States should increase substantially the
capacity and generation of clean, renewable hydropower that
would improve environmental quality in the United States.
(b) Modifying the Definition of Renewable Energy to Include
Hydropower.--Section 203 of the Energy Policy Act of 2005 (42
U.S.C. 15852) is amended--
(1) in subsection (a), by striking ``the following
amounts'' and all that follows through paragraph (3) and
inserting ``not less than 15 percent in fiscal year 2017 and
each fiscal year thereafter shall be renewable energy.'' ;
and
(2) in subsection (b), by striking paragraph (2) and
inserting the following:
``(2) Renewable energy.--The term `renewable energy' means
electric energy generated from solar, wind, biomass, landfill
gas, ocean (including tidal, wave, current, and thermal),
geothermal, or municipal solid waste, or from a hydropower
project.''.
(c) Preliminary Permits.--Section 5 of the Federal Power
Act (16 U.S.C. 798) is amended--
(1) in subsection (a), by striking ``three'' and inserting
``4''; and
(2) by amending subsection (b) to read as follows:
``(b) The Commission may--
``(1) extend the period of a preliminary permit once for
not more than 4 additional years beyond the 4 years permitted
by subsection (a) if the Commission finds that the permittee
has carried out activities under such permit in good faith
and with reasonable diligence; and
``(2) if the period of a preliminary permit is extended
under paragraph (1), extend the period of such preliminary
permit once for not more than 4 additional years beyond the
extension period granted under paragraph (1), if the
Commission determines that there are extraordinary
circumstances that warrant such additional extension.''.
(d) Time Limit for Construction of Project Works.--Section
13 of the Federal Power Act (16 U.S.C. 806) is amended in the
second sentence by striking ``once but not longer than two
additional years'' and inserting ``for not more than 8
additional years,''.
(e) License Term.--Section 15(e) of the Federal Power Act
(16 U.S.C. 808(e)) is amended--
(1) by striking ``(e) Except'' and inserting the following:
``(e) License Term on Relicensing.--
``(1) In general.--Except''; and
(2) by adding at the end the following:
``(2) Consideration.--In determining the term of a license
under paragraph (1), the Commission shall consider, among
other things, project-related investments to be made by the
licensee under a new license issued under this section, as
well as project-related investments made by a licencee over
the term of the existing license (including any terms under
annual licenses). In considering such investments, the
Commission shall give the same weight to--
``(A) investments to be made by the licensee to implement a
new license issued under this section, including--
``(i) investments in redevelopment, new construction, new
capacity, efficiency, modernization, rehabilitation, and
safety improvements; and
``(ii) investments in environmental, recreation, and other
protection, mitigation, or enhancement measures that will be
required or authorized by the license; and
``(B) investments made by the licensee over the term of the
existing license (including any terms under annual licenses),
beyond those required by the existing license when issued,
that--
``(i) resulted in, during the term of the existing
license--
``(I) redevelopment, new construction, new capacity,
efficiency, modernization, rehabilitation, or safety
improvements; or
``(II) environmental, recreation, or other protection,
mitigation, or enhancement measures; and
``(ii) did not result in the extension of the term of the
existing license by the Commission.''.
(f) Alternative Conditions and Prescriptions.--Section 33
of the Federal Power Act (16 U.S.C. 823d) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by striking ``deems'' and inserting
``determines'';
(B) in paragraph (2)(B), in the matter preceding clause
(i), by inserting ``determined to be necessary'' before ``by
the Secretary'';
(C) by striking paragraph (4); and
(D) by striking paragraph (5);
(2) in subsection (b)--
(A) by striking paragraph (4); and
(B) by striking paragraph (5); and
(3) by adding at the end the following:
``(c) Further Conditions.--This section applies to any
further conditions or prescriptions proposed or imposed
pursuant to section 4(e), 6, or 18.''.
SEC. 3. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
(a) Hydropower Licensing and Process Improvements.--Part I
of the Federal Power Act (16 U.S.C. 792 et seq.) is amended
by adding at the end the following:
``SEC. 34. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
``(a) Definition.--In this section, the term `Federal
authorization'--
``(1) means any authorization required under Federal law
with respect to an application for a license under this part;
and
``(2) includes any permits, special use authorizations,
certifications, opinions, or other approvals as may be
required under Federal law to approve or implement the
license under this part.
``(b) Designation as Lead Agency.--
``(1) In general.--The Commission shall act as the lead
agency for the purposes of coordinating all applicable
Federal authorizations and for the purposes of complying with
the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.).
``(2) Other agencies and indian tribes.--
``(A) In general.--Each Federal, State, and local
government agency and Indian tribe considering an aspect of
an application for Federal authorization shall coordinate
with the Commission and comply with the deadline established
in the schedule developed for the license under this part in
accordance with the rule issued by the Commission under
subsection (c).
``(B) Identification.--The Commission shall identify, as
early as practicable after it is notified by the applicant
for a license under this part, any Federal or State agency,
local government, or Indian tribe that may consider an aspect
of an application for a Federal authorization.
``(C) Notification.--
``(i) In general.--The Commission shall notify any agency
and Indian tribe identified under subparagraph (B) of the
opportunity to participate in the process of reviewing an
aspect of an application for a Federal authorization.
``(ii) Deadline.--Each agency and Indian tribe receiving a
notice under clause (i) shall submit a response acknowledging
receipt of the notice to the Commission within 30 days of
receipt of such notice and request.
``(D) Issue identification and resolution.--
``(i) Identification of issues.--Federal, State, and local
government agencies and Indian tribes that may consider an
aspect of an application for Federal authorization shall
identify, as early as possible, and share with the Commission
and the applicant, any issues of concern identified during
the pendency of the Commission's action under this part
relating to any Federal authorization that may delay or
prevent the granting of such authorization, including any
issues that may prevent the agency
[[Page H8631]]
or Indian tribe from meeting the schedule established for the
license under this part in accordance with the rule issued by
the Commission under subsection (c).
``(ii) Issue resolution.--The Commission may forward any
issue of concern identified under clause (i) to the heads of
the relevant State and Federal agencies (including, in the
case of an issue of concern identified by a State or local
government agency or Indian tribe, the Federal agency
overseeing the delegated authority, or the Secretary of the
Interior with regard to an issue of concern identified by an
Indian tribe, as applicable) for resolution. If the
Commission forwards an issue of concern to the head of a
relevant agency, the Commission and the relevant agency shall
enter into a memorandum of understanding to facilitate
interagency coordination and resolution of such issues of
concern, as appropriate.
``(c) Schedule.--
``(1) Commission rulemaking to establish process to set
schedule.--Not later than 180 days after the date of
enactment of this section the Commission shall, in
consultation with the appropriate Federal agencies, issue a
rule, after providing for notice and public comment,
establishing a process for setting a schedule following the
filing of an application under this part for a license for
the review and disposition of each Federal authorization.
``(2) Elements of scheduling rule.--In issuing a rule under
this subsection, the Commission shall ensure that the
schedule for each Federal authorization--
``(A) includes deadlines for actions by--
``(i) any Federal or State agency, local government, or
Indian tribe that may consider an aspect of an application
for the Federal authorization;
``(ii) the applicant;
``(iii) the Commission; and
``(iv) other participants in any applicable proceeding;
``(B) is developed in consultation with the applicant and
any agency and Indian tribe that submits a response under
subsection (b)(2)(C)(ii);
``(C) provides an opportunity for any Federal or State
agency, local government, or Indian tribe that may consider
an aspect of an application for the applicable Federal
authorization to identify and resolve issues of concern, as
provided in subsection (b)(2)(D);
``(D) complies with applicable schedules established under
Federal and State law;
``(E) ensures expeditious completion of all proceedings
required under Federal and State law, to the extent
practicable; and
``(F) facilitates completion of Federal and State agency
studies, reviews, and any other procedures required prior to,
or concurrent with, the preparation of the Commission's
environmental document required under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
``(d) Transmission of Final Schedule.--
``(1) In general.--For each application for a license under
this part, the Commission shall establish a schedule in
accordance with the rule issued by the Commission under
subsection (c). The Commission shall publicly notice and
transmit the final schedule to the applicant and each agency
and Indian tribe identified under subsection (b)(2)(B).
``(2) Response.--Each agency and Indian tribe receiving a
schedule under this subsection shall acknowledge receipt of
such schedule in writing to the Commission within 30 days.
``(e) Adherence to Schedule.--All applicants, other
licensing participants, and agencies and Indian tribes
considering an aspect of an application for a Federal
authorization shall meet the deadlines set forth in the
schedule established pursuant to subsection (d)(1).
``(f) Application Processing.--The Commission, Federal,
State, and local government agencies, and Indian tribes may
allow an applicant seeking a Federal authorization to fund a
third-party contractor selected by such an agency or tribe to
assist in reviewing the application. All costs of an agency
or tribe incurred pursuant to direct funding by the
applicant, including all costs associated with the third
party contractor, shall not be considered costs of the United
States for the administration of this part under section
10(e).
``(g) Commission Recommendation on Scope of Environmental
Review.--For the purposes of coordinating Federal
authorizations for each license under this part, the
Commission shall consult with and make a recommendation to
agencies and Indian tribes receiving a schedule under
subsection (d) on the scope of the environmental review for
all Federal authorizations for such license. Each Federal and
State agency and Indian tribe shall give due consideration
and may give deference to the Commission's recommendations,
to the extent appropriate under Federal law.
``(h) Extension of Deadline.--
``(1) Application.--A Federal, State, or local government
agency or Indian tribe that is unable to complete its
disposition of a Federal authorization by the deadline set
forth in the schedule established under subsection (d)(1)
shall, not later than 30 days prior to such deadline, file
for an extension with the Commission.
``(2) Extension.--The Commission shall only grant an
extension filed for under paragraph (1) if the agency or
Indian tribe demonstrates, based on the record maintained
under subsection (i), that complying with the schedule
established under subsection (d)(1) would prevent the agency
or tribe from complying with applicable Federal or State law.
If the Commission grants the extension, the Commission shall
set a reasonable schedule and deadline, that is not later
than 90 days after the deadline set forth in the schedule
established under subsection (d)(1), for the agency or tribe
to complete its disposition of the Federal authorization.
``(i) Consolidated Record.--The Commission shall, with the
cooperation of Federal, State, and local government agencies
and Indian tribes, maintain a complete consolidated record of
all decisions made or actions taken by the Commission or by a
Federal administrative agency or officer (or State or local
government agency or officer or Indian tribe acting under
delegated Federal authority) with respect to any Federal
authorization. Such record shall constitute the record for
judicial review under section 313(b).
``(j) Submission of License Recommendations, Conditions,
and Prescriptions.--
``(1) Submission of recommendations.--Any Federal or State
agency that is providing recommendations with respect to a
license proceeding under this part shall submit to the
Commission for inclusion in the consolidated record relating
to the license proceeding maintained under subsection (i)--
``(A) the recommendations;
``(B) the rationale for the recommendations; and
``(C) any supporting materials relating to the
recommendations.
``(2) Written statement.--In a case in which a Federal
agency is making a determination with respect to a covered
measure (as defined in section 35(a)), the head of the
Federal agency shall submit to the Commission for inclusion
in the consolidated record, in addition to the information
required under paragraph (1), a written statement
demonstrating that the Federal agency gave equal
consideration to the effects of the covered measure on--
``(A) energy supply, distribution, cost, and use;
``(B) flood control;
``(C) navigation;
``(D) water supply; and
``(E) air quality and the preservation of other aspects of
environmental quality.
``(3) Information from other agencies.--In preparing a
written statement under paragraph (2), the head of a Federal
agency may make use of information produced or made available
by other agencies with relevant expertise in the factors
described in subparagraphs (A) through (E) of that paragraph.
``(k) Delegation.--A Secretary may delegate the authority
to determine a condition to be necessary under section 4(e),
or to prescribe a fishway under section 18, to an officer of
the applicable department based, in part, on the ability of
the officer to evaluate the broad effects of such condition
or prescription on--
``(1) the applicable project; and
``(2) the factors described in subparagraphs (A) through
(E) of subsection (j)(2).
``(l) No Effect on Other Laws.--Nothing in this section
shall be construed to affect any requirement of the Federal
Water Pollution Control Act, the Fish and Wildlife
Coordination Act, the Endangered Species Act of 1973, section
14 of the Act of March 3, 1899 (commonly known as the Rivers
and Harbors Appropriation Act of 1899), and those provisions
in subtitle III of title 54, United States Code commonly
known as the National Historic Preservation Act, with respect
to an application for a license under this part.
``SEC. 35. TRIAL-TYPE HEARINGS.
``(a) Definition of Covered Measure.--In this section, the
term `covered measure' means--
``(1) a condition determined to be necessary under section
4(e), including an alternative condition proposed under
section 33(a);
``(2) fishways prescribed under section 18, including an
alternative prescription proposed under section 33(b); or
``(3) any action by the Secretary to exercise reserved
authority under the license to prescribe, submit, or revise
any condition to a license under the first proviso of section
4(e) or fishway prescribed under section 18.
``(b) Authorization of Trial-type Hearing.--An applicant
for a license under this part (including an applicant for a
license under section 15) and any party to a license
proceeding shall be entitled to a determination on the
record, after opportunity for a trial-type hearing of not
more than 120 days, on any disputed issues of material fact
with respect to an applicable covered measure.
``(c) Deadline for Request.--A request for a trial-type
hearing under this section shall be submitted not later than
60 days after the date on which, as applicable--
``(1) the Secretary determines the condition to be
necessary under section 4(e) or prescribes the fishway under
section 18; or
``(2) the Secretary exercises reserved authority under the
license to prescribe, submit, or revise any condition to a
license under the first proviso of section 4(e) or fishway
prescribed under section 18, as appropriate.
``(d) No Requirement to Exhaust.--By electing not to
request a trial-type hearing under subsection (c), a license
applicant and any other party to a license proceeding shall
not be considered to have waived the right of the applicant
or other party to raise any issue of fact or law in a non-
trial-type proceeding, but no issue may be raised for the
first time on rehearing or judicial review of the license
decision of the Commission.
``(e) Administrative Law Judge.--
``(1) In general.--All disputed issues of material fact
raised by a party in a request for a trial-type hearing
submitted under subsection (c) shall be determined in a
single trial-type hearing to be conducted by an
Administrative Law Judge within the Office of Administrative
Law Judges and Dispute Resolution of the Commission, in
accordance with the Commission rules of practice and
procedure under part 385 of title 18, Code of Federal
Regulations (or successor regulations), and within the
timeframe established by the Commission for each license
proceeding (including a proceeding for a license under
section 15) under section 34(d).
``(2) Requirement.--The trial-type hearing shall include
the opportunity--
[[Page H8632]]
``(A) to undertake discovery; and
``(B) to cross-examine witnesses, as applicable.
``(f) Stay.--The Administrative Law Judge may impose a stay
of a trial-type hearing under this section for a period of
not more than 120 days to facilitate settlement negotiations
relating to resolving the disputed issues of material fact
with respect to the covered measure.
``(g) Decision of the Administrative Law Judge.--
``(1) Contents.--The decision of the Administrative Law
Judge shall contain--
``(A) findings of fact on all disputed issues of material
fact;
``(B) conclusions of law necessary to make the findings of
fact, including rulings on materiality and the admissibility
of evidence; and
``(C) reasons for the findings and conclusions.
``(2) Limitation.--The decision of the Administrative Law
Judge shall not contain conclusions as to whether--
``(A) any condition or prescription should be adopted,
modified, or rejected; or
``(B) any alternative condition or prescription should be
adopted, modified, or rejected.
``(3) Finality.--A decision of an Administrative Law Judge
under this section with respect to a disputed issue of
material fact shall not be subject to further administrative
review.
``(4) Service.--The Administrative Law Judge shall serve
the decision on each party to the hearing and forward the
complete record of the hearing to the Commission and the
Secretary that proposed the original condition or
prescription.
``(h) Secretarial Determination.--
``(1) In general.--Not later than 60 days after the date on
which the Administrative Law Judge issues the decision under
subsection (g) and in accordance with any applicable schedule
established by the Commission under section 34(d), the
Secretary proposing a covered measure shall file with the
Commission a final determination to adopt, modify, or
withdraw any condition or prescription that was the subject
of a hearing under this section, based on the decision of the
Administrative Law Judge.
``(2) Record of determination.--The final determination of
the Secretary filed with the Commission shall identify the
reasons for the decision and any considerations taken into
account that were not part of, or were inconsistent with, the
findings of the Administrative Law Judge and shall be
included in the consolidated record maintained under section
34(i).
``(i) Resolution of Matters.--Notwithstanding sections 4(e)
and 18, if the Commission finds that a final determination
under (h)(1) of the Secretary is inconsistent with the
purposes of this part or other applicable law, the Commission
may enter into a memorandum of understanding with the
Secretary to facilitate interagency coordination and resolve
the matter.
``(j) Judicial Review.--The decision of the Administrative
Law Judge and the record of determination of the Secretary
shall be included in the record of the applicable licensing
proceeding and subject to judicial review of the final
licensing decision of the Commission under section 313(b).
``SEC. 36. LICENSING STUDY IMPROVEMENTS.
``(a) In General.--To facilitate the timely and efficient
completion of the license proceedings under this part, the
Commission shall, in consultation with applicable Federal and
State agencies and interested members of the public--
``(1) compile current and accepted best practices in
performing studies required in such license proceedings,
including methodologies and the design of studies to assess
the full range of environmental impacts of a project that
reflect the most recent peer-reviewed science;
``(2) compile a comprehensive collection of studies and
data accessible to the public that could be used to inform
license proceedings under this part; and
``(3) encourage license applicants, agencies, and Indian
tribes to develop and use, for the purpose of fostering
timely and efficient consideration of license applications, a
limited number of open-source methodologies and tools
applicable across a wide array of projects, including water
balance models and streamflow analyses.
``(b) Use of Studies.--To the extent practicable, the
Commission and other Federal, State, and local government
agencies and Indian tribes considering an aspect of an
application for Federal authorization (as defined in section
34) shall use studies and data based on current, accepted
science in support of their actions. Any participant in a
proceeding with respect to such a Federal authorization shall
demonstrate that a study requested by the participant is not
duplicative of current, existing studies that are applicable
to the project.
``(c) Intra-watershed Review.--The Commission shall
establish a program to develop comprehensive plans, at the
request of project applicants, on a watershed-wide scale, in
consultation with the applicants, appropriate Federal
agencies, and affected States, local governments, and Indian
tribes, in watersheds with respect to which there are more
than one application for a project. Upon such a request, the
Commission, in consultation with the applicants, such Federal
agencies, and affected States, local governments, and Indian
tribes, may conduct or commission watershed-wide
environmental studies, with the participation of at least 2
applicants. Any study conducted under this subsection shall
apply only to a project with respect to which the applicants
participate.
``SEC. 37. LICENSE AMENDMENT IMPROVEMENTS.
``(a) Qualifying Project Upgrades.--
``(1) In general.--As provided in this section, the
Commission may approve an application under this section for
an amendment to a license issued under this part for a
qualifying project upgrade.
``(2) Application.--A licensee filing an application for an
amendment to a project license, for which the licensee is
seeking approval as a qualified project upgrade under this
section, shall include in such application information
sufficient to demonstrate that the proposed change to the
project described in the application is a qualifying project
upgrade.
``(3) Notice and initial determination on qualification.--
Not later than 30 days after receipt of an application under
paragraph (2), the Commission, in consultation with other
Federal agencies, States, and Indian tribes the Commission
determines appropriate, shall publish in the Federal Register
a notice containing--
``(A) notice of the application filed under paragraph (2);
``(B) an initial determination as to whether the proposed
change to the project described in the application for a
license amendment is a qualifying project upgrade; and
``(C) a request for public comment on the application and
the initial determination.
``(4) Public comment and consultation.--The Commission
shall, for a period of 45 days beginning on the date of
publication of a notice under paragraph (3)--
``(A) accept public comment regarding the application and
whether the proposed license amendment is for a qualifying
project upgrade; and
``(B) consult with each Federal, State, and local
government agency and Indian tribe considering an aspect of
an application for any authorization required under Federal
law with respect to the proposed license amendment, as well
as other interested agencies and Indian tribes.
``(5) Final determination on qualification.--Not later than
15 days after the end of the public comment and consultation
period under paragraph (4), the Commission shall publish in
the Federal Register a final determination as to whether the
proposed license amendment is for a qualifying project
upgrade.
``(6) Federal authorizations.--In establishing the schedule
for a proposed license amendment for a qualifying project
upgrade, the Commission shall require final disposition of
all authorizations required under Federal law with respect to
an application for such license amendment, other than final
action by the Commission, by not later than 120 days after
the date on which the Commission publishes a final
determination under paragraph (5) that the proposed license
amendment is for a qualifying project upgrade.
``(7) Commission action.--Not later than 150 days after the
date on which the Commission publishes a final determination
under paragraph (5) that a proposed license amendment is for
a qualifying project upgrade, the Commission shall take final
action on the license amendment application.
``(8) License amendment conditions.--Any condition or
prescription included in or applicable to a license amendment
for a qualifying project upgrade approved under this
subsection, including any condition, prescription, or other
requirement of a Federal authorization, shall be limited to
those that are--
``(A) necessary to protect public safety; or
``(B) reasonable, economically feasible, and essential to
prevent loss of or damage to, or to mitigate adverse effects
on, fish and wildlife resources, water supply, and water
quality that are directly caused by the construction and
operation of the qualifying project upgrade, as compared to
the environmental baseline existing at the time the
Commission approves the application for the license
amendment.
``(9) Rulemaking.--Not later than 180 days after the date
of enactment of this section, the Commission shall, after
notice and opportunity for public comment, issue a rule to
implement this subsection.
``(10) Definitions.--For purposes of this subsection:
``(A) Qualifying project upgrade.--The term `qualifying
project upgrade' means a change to a project licensed under
this part that meets the qualifying criteria, as determined
by the Commission.
``(B) Qualifying criteria.--The term `qualifying criteria'
means, with respect to a project licensed under this part, a
change to the project that--
``(i) if carried out, would be unlikely to adversely affect
any species listed as threatened or endangered under the
Endangered Species Act of 1973 or result in the destruction
or adverse modification of critical habitat, as determined in
consultation with the Secretary of the Interior or Secretary
of Commerce, as appropriate, in accordance with section 7 of
the Endangered Species Act of 1973;
``(ii) is consistent with any applicable comprehensive plan
under section 10(a)(2);
``(iii) includes only changes to project lands, waters, or
operations that, in the judgment of the Commission, would
result in only insignificant or minimal cumulative adverse
environmental effects;
``(iv) would be unlikely to adversely affect water quality
or water supply; and
``(v) proposes to implement--
``(I) capacity increases, efficiency improvements, or other
enhancements to hydropower generation at the licensed
project;
``(II) environmental protection, mitigation, or enhancement
measures to benefit fish and wildlife resources or other
natural and cultural resources; or
``(III) improvements to public recreation at the licensed
project.
``(b) Amendment Approval Processes.--
``(1) Rule.--Not later than 1 year after the date of
enactment of this section, the Commission shall, after notice
and opportunity for public comment, issue a rule establishing
new standards and procedures for license amendment
applications under this part. In issuing such rule, the
Commission shall seek to develop
[[Page H8633]]
the most efficient and expedient process, consultation, and
review requirements, commensurate with the scope of different
categories of proposed license amendments. Such rule shall
account for differences in environmental effects across a
wide range of categories of license amendment applications.
``(2) Capacity.--In issuing a rule under this subsection,
the Commission shall take into consideration that a change in
generating or hydraulic capacity may indicate the potential
environmental effects of a proposed license amendment but is
not determinative of such effects.
``(3) Process options.--In issuing a rule under this
subsection, the Commission shall take into consideration the
range of process options available under the Commission's
regulations for license applications and adapt such options
to amendment applications, where appropriate.''.
SEC. 4. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Licenses.--Section 4(e) of the Federal Power Act (16
U.S.C. 797(e)) is amended--
(1) by striking ``adequate protection and utilization of
such reservation'' and all that follows through ``That no
license affecting the navigable capacity'' and inserting
``adequate protection and utilization of such reservation:
Provided further, That no license affecting the navigable
capacity''; and
(2) by striking ``deem'' and inserting ``determine''.
(b) Operation of Navigation Facilities.--Section 18 of the
Federal Power Act (16 U.S.C. 811) is amended by striking the
second, third, and fourth sentences.
The Acting CHAIR. No amendment to the committee amendment in the
nature of a substitute shall be in order except those printed in House
Report 115-391. Each such amendment may be offered only in the order
printed in the report, by a Member designated in the report, shall be
considered read, shall be debatable for the time specified in the
report, equally divided and controlled by the proponent and an
opponent, shall not be subject to amendment, and shall not be subject
to a demand for division of the question.
amendment no. 1 offered by Mr. Grothman
The Acting CHAIR. It is now in order to consider amendment No. 1
printed in House Report 115-391.
Mr. GROTHMAN. Mr. Chair, as the designee of my friend and colleague,
Mr. Pocan, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end of the bill, add the following new section:
SEC. 5. CONSIDERATION OF INVASIVE SPECIES.
Section 18 of the Federal Power Act (16 U.S.C. 811) is
amended by inserting after ``the Secretary of Commerce.'' the
following: ``In prescribing a fishway, the Secretary of
Commerce or the Secretary of the Interior, as appropriate,
shall consider the threat of invasive species.''.
The Acting CHAIR. Pursuant to House Resolution 607, the gentleman
from Wisconsin (Mr. Grothman) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Wisconsin.
Mr. GROTHMAN. Mr. Chair, first of all, I would like to thank the
chair and ranking member for their collaborative effort to bring this
bill forward.
This amendment, which is supported by colleagues on both sides of the
aisle, is pretty simple. It requires Federal decisionmakers in the
Department of the Interior to consider the threat of invasive species
when installing fishways.
This was brought to my attention while looking at a dam on the
Wisconsin River in Wisconsin. Below that dam, we had Asian carp, an
invasive species, a huge fish. If that fish was able to get further
north on the Wisconsin River, because of a fishway, you could wind up
with this invasive species not only in the northern part of the river,
but, and quite frankly, in dozens of lakes throughout northern
Wisconsin.
As a matter of fact, given where that dam is, if there is even
flooding, that invasive species could wind up working its way into Lake
Michigan and up the Saint Lawrence Seaway. It is very important that
before the Department of the Interior listens to certain
environmentalists, they realize that a fishway at this dam would result
in big trouble.
Because of the devastating effects invasive species can have on the
environment, local fish population, and the economy, this amendment
will ensure the Federal agencies take into account all consequences
before installing fishways.
Mr. Chair, I include in the Record a letter from Alliant Energy.
Alliant Energy,
November 8, 2017.
Hon. Mark Pocan,
Member of Congress, House of Representatives, Washington, DC.
Hon. Glenn Grothman,
Member of Congress, House of Representatives, Washington, DC.
Dear Representatives Pocan and Grothman: I am writing in
strong support of your invasive species amendment to H.R.
3043, the Hydropower Modernization Act of 2017, which is due
to be considered on the floor of the U.S. House today.
Alliant Energy deeply appreciates your commitment to this
pro-environment measure, and for protecting Wisconsin's
watersheds.
As you know, an Alliant subsidiary, Wisconsin Power and
Light, owns and operates a dam located in Prairie du Sac,
Wisconsin, on the Wisconsin River. The Prairie du Sac dam,
now over 100 years old, is responsible for the formation of
Lake Wisconsin, which serves as an enormous recreational and
wildlife resource for our state.
Over a decade ago, the U.S. Fish and Wildlife Service
sought to impose a fishway requirement on the license for the
dam, essentially calling for a ``fishway'' to be installed to
allow for the upstream migration of native fish. Since that
time, however, scientists and state officials have discovered
the existence of non-native, invasive fish species (Asian
carp) at the base of the dam. If a fishway were now
installed, it seems clear that these invasive species would
also be able to migrate--and thereby endanger native fish
populations upstream, including Lake Wisconsin.
Your amendment would ensure that, in this particular case,
the U.S. Fish and Wildlife Service would be required to
consider the threats posed by invasive species before
imposing a fishway condition on a hydroelectric license. We
believe strongly that such decisions should be predicated on
the most up to date information available, and your amendment
will help guarantee that invasive species are not permitted
to threaten the Lake Wisconsin watershed.
Again, thank you for offering your amendment. Please let me
know how Alliant may assist you in ushering this much-needed
provision into public law.
Sincerely,
David de Leon,
Vice President Operations--Wisconsin,
Alliant Energy.
Mr. UPTON. Will the gentleman yield?
Mr. GROTHMAN. Mr. Chair, I yield to the gentleman from Michigan.
Mr. UPTON. Mr. Chair, I just want to say that this is a very good
amendment. It is bipartisan. It is critical that--I know our Great
Lakes Caucus, on a bipartisan basis, in both bodies, the House and
Senate, have taken strong actions against the Asian carp.
This is a good amendment. We are certainly prepared to accept it, and
I commend you for taking the time on the floor.
Ms. MOORE. Will the gentleman yield?
Mr. GROTHMAN. Mr. Chair, I yield to the gentlewoman from Wisconsin.
Ms. MOORE. Mr. Chairman, I thank my colleague from the Badger State
for yielding to me. I am so pleased to join him, along with
Representative Mark Pocan, in support of this amendment.
It is critical, Mr. Chairman. Wisconsinites value our natural
resources like no other. The Great Lakes are an immense source of
regional pride as well as a great economic engine for our region, and
we know that these resources are constantly under attack from a variety
of threats. One particularly nefarious threat is invasive species.
My colleagues and I are all aware of the costs these species impose.
These costs are something that, unfortunately, the Great Lakes region
knows too well. From the sea lamprey to the zebra mussel, to the
carnivorous Asian carp now advancing toward the region, we have spent
hundreds of millions of dollars dealing with the damage created when
these invasive and nuisance species get into the Great Lakes ecosystem;
and keeping them out of the Great Lakes in the first place is the most
effective strategy.
A stitch in time saves nine, so I am pleased that this is a
bipartisan amendment. I want to emphasize that the amendment does not
predetermine any particular outcome or decision.
There is no magic bullet, Mr. Chairman, to the problem of invasive
species given that there are so many pathways for them to get into a
body of water, including through ballast water, but this commonsense
amendment gives us a more effective tool in that fight.
Mr. Chairman, I support this amendment, and I urge my colleagues to
vote for it.
Mr. RUSH. Will the gentleman yield?
Mr. GROTHMAN. I yield to the gentleman from Illinois.
[[Page H8634]]
Mr. RUSH. Mr. Chair, the minority side is prepared to accept this
amendment.
Mr. GROTHMAN. Mr. Chair, I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Wisconsin (Mr. Grothman).
The amendment was agreed to.
Amendment No. 2 Offered by Mr. Babin
The Acting CHAIR. It is now in order to consider amendment No. 2
printed in House Report 115-391.
Mr. BABIN. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end of the bill, add the following new section:
SEC. 5. EXAMINATION OF LICENSES FOR PROJECTS LOCATED IN
DISASTER AREAS.
Not later than one year after the date of enactment of this
Act, the Federal Energy Regulatory Commission may examine the
license issued by the Commission under part I of the Federal
Power Act for any project that is located in an area that was
declared by the President to be a disaster area in 2017.
The Acting CHAIR. Pursuant to House Resolution 607, the gentleman
from Texas (Mr. Babin) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Texas.
Mr. BABIN. Mr. Chairman, when a disaster like Hurricane Harvey
strikes, the most important job we have is to assist those in harm's
way.
From the Texas National Guard to the Louisiana Cajun Navy, to
countless volunteers and citizens who have volunteered and contributed
their time, their money, and their prayers, we saw across southeast
Texas, in the immediate aftermath of that storm, nothing less than a
model to which the whole Nation and world can aspire.
I have even compared the rescue of so many Texans by boat to the
miracle at Dunkirk.
But when the storm passes, it is just as important that we look for
lessons, demand accountability, and work to fix whatever went wrong or
may have made this situation worse.
I am pleased to offer this amendment today that will begin to address
such an issue.
When a hydropower station is licensed and regulated by FERC, it is
not just the power plant that falls under Federal control. Decisions
about lake levels, flood storage capacity, and other measurements of
the body of water that powers that station are set forth in FERC
license protocols and guidelines written and administered by folks who
work right here in Washington.
{time} 1500
As a former official for the Texas Lower Neches Valley River
Authority, I know that these are tough decisions to make, and sometimes
it is a matter of choosing between bad and worse options of where to
put all of that water.
But in my district, serious concerns have been raised by my
constituents and local river authorities about whether FERC's licenses
for hydropower facilities need to be adjusted to account for the
unprecedented flooding that we just experienced and with the ability to
make commonsense changes in the face of an impending flood event.
My amendment ensures that nothing will stand in the way of FERC going
in and examining the licenses for any facility located in the path of
the terrible disasters that we have seen this year. By passing it with
strong bipartisan support, we will make clear that that is just what
FERC should do.
Mr. Chairman, I yield such time as he may consume to the gentleman
from Michigan (Mr. Upton) and introduce someone who is now famous in
Texas, Uncle Fred Upton, now that the Astros have won the World Series.
Mr. UPTON. Mr. Chairman, I thank the gentleman for yielding. And,
yes, I do have, now, extended family in Texas.
Mr. Chairman, this is another tool in the toolbox for FERC. We want
to make sure that areas are protected that have survived, somehow,
these terrible hurricanes.
Mr. Chairman, I urge all of my colleagues on a bipartisan basis to
support this good amendment.
Mr. BABIN. Mr. Chairman, I yield the balance of my time to the
gentleman from Louisiana (Mr. Higgins), my next-door neighbor and
cosponsor of this amendment.
Mr. HIGGINS of Louisiana. Mr. Chairman, I rise today in support of
amendment No. 2 to the Hydropower Policy Modernization Act of 2017,
offered by my friend, Representative Babin of Texas.
My colleague's amendment, of which I am a cosponsor, is a commonsense
addition to this important piece of legislation, which will allow the
government to take more reasonable steps to mitigate the damages of
flooding and hurricanes.
Mr. Chairman, I participated in rescue operations in Texas in the
immediate wake of Hurricane Harvey. The last rescue I personally
responded to was early on Friday, around 1 or 2 in the morning, less
than 2 days after Harvey's landfall.
The elderly gentleman we rescued told me something I will never
forget. With tears in his eyes, he said: Sir, I have lived in my home
since 1968 and it never flooded. In 50 years, I have seen this much
water fall, but I have never seen this much water rise.
Mr. Chairman, no one in this body batted an eye when we approved
hundreds of billions of dollars in emergency appropriations relief to
the victims of this year's hurricane season. It is time we as the
people's House move past the reactionary era of addressing the need to
repeal and rebuild after natural disasters and start focusing on
proactive solutions to mitigate potential damage before natural
disasters.
A proactive spirit should be fully implemented in our regulations and
how we invest in infrastructure. If we had invested, over the last few
decades, just a small percentage of the people's treasure that we have
granted postdisaster as emergency relief appropriations into
premitigation efforts, such as the cleaning and maintenance of our
existing water management systems, both natural and man-made, much of
the resulting damage would not have occurred and many fewer American
families would have suffered.
Representative Babin's amendment will allow a procedural tool for the
FERC to review licenses for any project located in a region declared by
the President to be a disaster area, which will allow us to better and
more strategically manage our dams, floodgates, and reservoirs when we
know storms like Hurricane Harvey are imminent.
Mr. Chairman, I thank Congressman Babin for introducing this
amendment, and I urge my colleagues on both sides of the aisle to
support this commonsense solution, as well as the underlying bill.
Mr. RUSH. Will the gentleman yield?
Mr. BABIN. I yield to the gentleman from Illinois.
Mr. RUSH. Mr. Chairman, the minority is prepared to accept this
amendment.
Mr. BABIN. Mr. Chairman, I yield back the balance of my time.
The Acting CHAIR (Mr. Estes of Kansas). The question is on the
amendment offered by the gentleman from Texas (Mr. Babin).
The amendment was agreed to.
Amendment No. 3 Offered by Mr. Jenkins of West Virginia
The Acting CHAIR. It is now in order to consider amendment No. 3
printed in House Report 115-391.
Mr. JENKINS of West Virginia. Mr. Chairman, I have an amendment at
the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end of the bill, add the following new section:
SEC. 5. STUDIES FOR NON-FEDERAL HYDROPOWER.
Notwithstanding any other provision of law, if the Federal
Energy Regulatory Commission has in place a memorandum of
understanding with another Federal agency for non-federal
hydropower with respect to a project licensed under part I of
the Federal Power Act (regardless of explicit Congressional
authorization for such non-federal hydropower), the other
Federal agency may fully study and review the potential
expansion of such non-federal hydropower at the project,
including a review of seasonal pool levels and slowing flood
releases.
The Acting CHAIR. Pursuant to House Resolution 607, the gentleman
from West Virginia (Mr. Jenkins) and a Member opposed each will control
5 minutes.
[[Page H8635]]
The Chair recognizes the gentleman from West Virginia.
Mr. JENKINS of West Virginia. Mr. Chairman, my amendment is very
straightforward. It supports the mission of the underlying bill to
responsibly increase opportunities for hydropower across the Nation.
My amendment authorizes agencies with an existing memorandum of
understanding with FERC to study the expansion of hydropower. The need
for this arises from a project in my district in Summersville, West
Virginia. There is what is called a run-of-the-river hydroelectric
project in Summersville. There is an MOU between the town--the city of
Summersville--FERC, and the Army Corps of Engineers.
The Summersville hydro project was actually licensed by FERC in 1992
and constructed in 2001, with the cooperation of the Army Corps of
Engineers. It provides enough renewable energy to power 22,000 homes.
It might be possible to increase hydropower by adjusting the seasonable
pool levels and managing the releases. Even if this is only for just a
few days, it could result in a 15 percent increase in power generation
for the surrounding community.
Unfortunately, I have heard that even to conduct a study requires
explicit authorization from Congress. So that is what we are doing here
today with this amendment. This amendment would provide that authority,
and only in limited cases where there is an existing MOU on the books
between the agencies and FERC.
Mr. Chairman, I yield 30 seconds to the gentleman from Michigan (Mr.
Upton).
Mr. UPTON. Mr. Chairman, I thank my friend from West Virginia for
yielding.
Mr. Chairman, this is an amendment that allows for a study of the
potential to expand non-Federal hydropower projects in Federal dams. It
is a good amendment. I support it, and I urge my colleagues to support
it on a bipartisan basis.
Mr. RUSH. Will the gentleman yield?
Mr. JENKINS of West Virginia. I yield to the gentleman from Illinois.
Mr. RUSH. Mr. Chairman, the minority is prepared to support this
amendment.
Mr. JENKINS of West Virginia. Mr. Chairman, I thank the minority very
much for their support on this and, again, to the chair, for his
leadership on this effort.
Mr. Chairman, let me close by thanking specifically a couple of
individuals:
Jim Price, who has been integrally related and involved with this
project from its inception, and I appreciate his leadership so much.
Enel Green Power North America, the operator and developer on this
project. I thank them for their efforts.
Also, the mayor of the city of Summersville, Robert Shafer. I thank
Bob Shafer for his incredible support and leadership in the city of
Summersville.
Mr. Chairman, I encourage support for this amendment, and I yield
back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from West Virginia (Mr. Jenkins).
The amendment was agreed to.
Amendment No. 4 Offered by Mr. Rush
The Acting CHAIR. It is now in order to consider amendment No. 4
printed in House Report 115-391.
Mr. RUSH. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Hydropower Policy
Modernization Act of 2017''.
SEC. 2. HYDROPOWER REGULATORY IMPROVEMENTS.
(a) Sense of Congress on the Use of Hydropower Renewable
Resources.--It is the sense of Congress that--
(1) hydropower is a renewable resource for purposes of all
Federal programs and is an essential source of energy in the
United States; and
(2) the United States should increase substantially the
capacity and generation of clean, renewable hydropower that
would improve environmental quality in the United States.
(b) Modifying the Definition of Renewable Energy to Include
Hydropower.--Section 203 of the Energy Policy Act of 2005 (42
U.S.C. 15852) is amended--
(1) in subsection (a), by amending paragraphs (1) through
(3) to read as follows:
``(1) Not less than 17 percent in fiscal years 2017 through
2019.
``(2) Not less than 20 percent in fiscal years 2020 through
2024.
``(3) Not less than 25 percent in fiscal year 2025 and each
fiscal year thereafter.''; and
(2) in subsection (b), by striking paragraph (2) and
inserting the following:
``(2) Renewable energy.--The term `renewable energy' means
electric energy generated from solar, wind, biomass, landfill
gas, ocean (including tidal, wave, current, and thermal),
geothermal, or municipal solid waste, or from a hydropower
project.''.
(c) Preliminary Permits.--Section 5 of the Federal Power
Act (16 U.S.C. 798) is amended--
(1) in subsection (a), by striking ``three'' and inserting
``4''; and
(2) by amending subsection (b) to read as follows:
``(b) The Commission may--
``(1) extend the period of a preliminary permit once for
not more than 4 additional years beyond the 4 years permitted
by subsection (a) if the Commission finds that the permittee
has carried out activities under such permit in good faith
and with reasonable diligence; and
``(2) if the period of a preliminary permit is extended
under paragraph (1), extend the period of such preliminary
permit once for not more than 4 additional years beyond the
extension period granted under paragraph (1), if the
Commission determines that there are extraordinary
circumstances that warrant such additional extension.''.
(d) Time Limit for Construction of Project Works.--Section
13 of the Federal Power Act (16 U.S.C. 806) is amended in the
second sentence by striking ``once but not longer than two
additional years'' and inserting ``for not more than 8
additional years,''.
(e) Considerations for Relicensing Terms.--Section 15(e) of
the Federal Power Act (16 U.S.C. 808(e)) is amended--
(1) by striking ``(e) Except'' and inserting the following:
``(e) License Term on Relicensing.--
``(1) In general.--Except''; and
(2) by adding at the end the following:
``(2) Consideration.--In determining the term of a license
under paragraph (1), the Commission shall consider project-
related investments by the licensee over the term of the
existing license (including any terms under annual licenses)
that resulted in new development, construction, capacity,
efficiency improvements, or environmental measures, but which
did not result in the extension of the term of the license by
the Commission.''.
SEC. 3. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
(a) Hydropower Licensing and Process Improvements.--Part I
of the Federal Power Act (16 U.S.C. 792 et seq.) is amended
by adding at the end the following:
``SEC. 34. HYDROPOWER LICENSING AND PROCESS IMPROVEMENTS.
``(a) Definition.--In this section, the term `Federal
authorization'--
``(1) means any authorization required under Federal law
with respect to an application for a license under this part;
and
``(2) includes any conditions, prescriptions, permits,
special use authorizations, certifications, opinions, or
other approvals as may be required under Federal law to
approve or implement the license under this part.
``(b) Designation as Lead Agency.--The Commission shall act
as the lead agency for the purposes of complying with the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) with respect to an application for a license under this
part.
``(c) Rulemaking to Establish Process to Set Schedule.--
``(1) Negotiated rulemaking.--Not later than 90 days after
the date of enactment of this section the Commission, the
Secretary of Agriculture, the Administrator of the National
Oceanic and Atmospheric Administration, and the Secretary of
the Interior shall enter into a negotiated rulemaking
pursuant to subchapter III of chapter 5 of title 5, United
States Code, to develop and publish a rule providing a
process for the Commission to evaluate, and issue a final
decision on, a completed application for a license under this
part.
``(2) Negotiated rulemaking committee.--The negotiated
rulemaking committee established pursuant to the negotiated
rulemaking process entered into under paragraph (1) shall
include representatives of State and Indian tribal
governments, and other stakeholders who will be significantly
affected by a rule issued under this subsection.
``(3) Deadlines.--
``(A) Proposed rule.--Not later than 2 years after the date
of enactment of this section, the Commission shall publish a
proposed rule resulting from the negotiated rulemaking under
this subsection.
``(B) Final rule.--Not later than 3 years after the date of
enactment of this section, the Commission shall publish a
final rule resulting from the negotiated rulemaking under
this subsection.
``(4) Elements of rule.--In publishing a rule under this
subsection, the Commission shall ensure that--
``(A) the rule includes a description of the Commission's
responsibility as the lead agency in coordinating Federal
authorizations;
[[Page H8636]]
``(B) the rule includes a process for development of a
schedule for the review and disposition of a completed
application for a license under this part;
``(C) each schedule developed pursuant to such process
shall--
``(i) include deadlines for actions on the applicable
completed application--
``(I) that are consistent with the duties of each agency
under this Act and under applicable State, tribal, and other
Federal laws; and
``(II) by--
``(aa) each Federal agency responsible for a Federal
authorization;
``(bb) each State agency, local government, or Indian tribe
that may consider an aspect of an application for a Federal
authorization or is responsible for conducting any separate
permitting and environmental reviews of the applicable
project;
``(cc) the applicant;
``(dd) the Commission; and
``(ee) other participants in a license proceeding;
``(ii) facilitate the identification and completion of
Federal, State, and tribal agency-requested studies, reviews,
and any other procedures required to be conducted prior to,
or concurrent with, the preparation of the Commission's
environmental review required under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), to
the extent practicable; and
``(iii) provide for a final decision on the applicable
completed application to be made by not later than 3 years
after the date on which the Commission receives such
completed application;
``(D) the rule includes a mechanism for resolving issues of
concern that may delay the completion of a license
application or review of a completed application;
``(E) the rule includes a definition of a completed
application; and
``(F) the rule provides for an opportunity for public
notice and comment on--
``(i) a completed application; and
``(ii) the schedule developed for the review and
disposition of the application.
``(d) Application Processing.--The Commission, Federal,
State, and local government agencies, and Indian tribes may
allow an applicant seeking a Federal authorization to fund a
third-party contractor selected by such an agency or tribe to
assist in reviewing the application. All costs of an agency
or tribe incurred pursuant to direct funding by the
applicant, including all costs associated with the third
party contractor, shall not be considered costs of the United
States for the administration of this part under section
10(e).
``(e) Issue Resolution.--The Commission may forward any
issue of concern that has delayed either the completion of
the application or the issuance of a license for a completed
application beyond the deadline set forth in the schedule
established under the final rule published under subsection
(c) to the heads of the relevant State, Federal, or Indian
tribal agencies for resolution. If the Commission forwards an
issue of concern to the head of a relevant agency, the
Commission and the relevant agency shall enter into a
memorandum of understanding to facilitate interagency
coordination and resolution of the issue of concern, as
appropriate.
``(f) No Effect on Other Laws.--Nothing in this section--
``(1) expands or limits the application of any power or
authority vested in an agency, State, or Indian tribe by any
applicable law or regulation;
``(2) shall be construed to affect any requirements of
State, tribal, or other Federal law (including under the
Federal Water Pollution Control Act, the Fish and Wildlife
Coordination Act, the Endangered Species Act of 1973, section
14 of the Act of March 3, 1899 (commonly known as the Rivers
and Harbors Appropriation Act of 1899), the Coastal Zone
Management Act of 1972, the Magnuson-Stevens Fishery
Conservation and Management Act, and those provisions in
subtitle III of title 54, United States Code, commonly known
as the National Historic Preservation Act) with respect to an
application for a license under this part; or
``(3) abrogates, diminishes, or otherwise affects any
treaty or other right of any Indian tribe.
``SEC. 35. LICENSING STUDY IMPROVEMENTS.
``(a) In General.--To facilitate the timely and efficient
completion of the license proceedings under this part, the
Commission shall, in consultation with applicable Federal and
State agencies and interested members of the public--
``(1) compile current and accepted best practices in
performing studies required in such license proceedings,
including methodologies and the design of studies to assess
the full range of environmental impacts of a project that
reflect the most recent peer-reviewed science;
``(2) compile a comprehensive collection of studies and
data accessible to the public that could be used to inform
license proceedings under this part; and
``(3) encourage license applicants, agencies, and Indian
tribes to develop and use, for the purpose of fostering
timely and efficient consideration of license applications, a
limited number of open-source methodologies and tools
applicable across a wide array of projects, including water
balance models and streamflow analyses.
``(b) Use of Studies.--To the extent practicable, the
Commission and other Federal, State, and local government
agencies and Indian tribes considering an aspect of an
application for Federal authorization (as defined in section
34) shall use relevant, existing studies and data and avoid
duplicating such studies that are applicable to the project.
Studies repeated for the purpose of characterizing seasonal
or annual variation of a relevant characteristic or resource
shall not be considered duplicative.
``SEC. 36. EVALUATION OF EXPEDITED LICENSING FOR QUALIFYING
PROJECT UPGRADES.
``(a) Definitions.--In this section:
``(1) Expedited license amendment process.--The term
`expedited license amendment process' means an expedited
process for issuing an amendment to an existing license
issued under this part for a project.
``(2) Qualifying project upgrade.--The term `qualifying
project upgrade' means a change--
``(A) to a project; and
``(B) that meets the criteria under subsection (b).
``(b) In General.--To improve the regulatory process and
reduce the time and cost of making upgrades to existing
projects, the Commission shall investigate the feasibility of
implementing an expedited license amendment process for a
change to a project that meets the following criteria:
``(1) The change to the project--
``(A) is limited to the power house equipment of the
project; or
``(B) will result in environmental protection, mitigation,
or enhancement measures to benefit fish and wildlife
resources or other natural or cultural resources.
``(2) The change to the project is unlikely to adversely
affect any species listed as threatened or endangered under
the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.),
as determined by the Secretary of the Interior.
``(3) The Commission ensures, in accordance with section 7
of the Endangered Species Act of 1973 (16 U.S.C. 1536), that
the change to the project will not result in the destruction
or modification of critical habitat.
``(4) The change to the project is consistent with any
applicable comprehensive plan under section 10(a).
``(5) The change to the project is unlikely to adversely
affect water quality and water supply, as determined in
consultation with any applicable State or Indian tribe.
``(6) Any adverse environmental effects resulting from the
change to the project will be insignificant.
``(c) Workshops and Pilots.--The Commission shall--
``(1) not later than 60 days after the date of enactment of
this section, hold an initial workshop to solicit public
comment and recommendations on how to implement an expedited
license amendment process for qualifying project upgrades;
``(2) evaluate pending applications for an amendment to an
existing license of a project for a qualifying project
upgrade that may benefit from an expedited license amendment
process;
``(3) not later than 180 days after the date of enactment
of this section, identify and solicit participation by
project developers in, and begin implementation of, a 3-year
pilot program to evaluate the feasibility and utility of an
expedited license amendment process for qualifying project
upgrades; and
``(4) not later than 3 months after the end of the 3-year
pilot program under paragraph (3), hold a final workshop to
solicit public comment on the expedited license amendment
process.
``(d) Memorandum of Understanding.--The Commission shall,
to the extent practicable, enter into a memorandum of
understanding with any applicable Federal, State, or tribal
agency to implement the pilot program described in subsection
(c).
``(e) Reports.--Not later than 3 months after the date of
the final workshop held pursuant to subsection (c)(4), the
Commission shall submit to the Committee on Energy and
Commerce of the House of Representatives and the Committee on
Energy and Natural Resources of the Senate a report that
includes--
``(1) a summary of the public comments received as part of
the initial workshop held under subsection (c)(1);
``(2) a summary of the public comments received as part of
the final workshop held under subsection (c)(4);
``(3) a description of the expedited license amendment
process for qualifying project upgrades evaluated under the
pilot program, including--
``(A) a description of the procedures or requirements that
were waived under the expedited license amendment process;
``(B) a comparison between--
``(i) the average amount of time required to complete the
licensing process for an amendment to a license under the
expedited license amendment process tested under the pilot
program; and
``(ii) the average amount of time required to complete the
licensing process for a similar amendment to a license under
current Commission processes;
``(4) the number of requests received by the Commission to
participate in the expedited license amendment process for
qualifying project upgrades;
``(5) a description of changes to Commission rules required
to create and standardize an expedited license amendment
process for qualifying project upgrades;
``(6) a description of factors that prevented any
participant in the pilot program from
[[Page H8637]]
completing the expedited license amendment process in the
expedited time frame.
``(f) Implementation.--If the Commission determines, based
upon the workshops and results of the pilot program under
subsection (c), that an expedited license amendment process
will reduce the time and costs for issuing amendments to
licenses for qualifying project upgrades, the Commission
shall revise its policies and regulations, in accordance with
applicable law, to establish an expedited license amendment
process.
``(g) Public Input.--In carrying out subsection (f), the
Commission shall solicit and consider public comments before
finalizing any change to policies or regulations.''.
SEC. 4. PILOT PROGRAM FOR CONSOLIDATED LICENSING PROCESS FOR
INTRA-WATERSHED PROJECTS.
(a) Definitions.--In this section:
(1) Commission.--The term ``Commission'' means the Federal
Energy Regulatory Commission.
(2) Project.--The term ``project'' has the meaning given
such term in section 3 of the Federal Power Act (16 U.S.C.
796).
(b) Initial Workshop.--Not later than 3 months after the
date of enactment of this Act, the Commission shall hold a
workshop to solicit public comment and recommendations on how
to implement a pilot program described in subsection (c).
(c) Establishment of Pilot Program.--The Commission shall
establish a voluntary pilot program to enable the Commission
to consider multiple projects together in a consolidated
licensing process in order to issue a license under part I of
the Federal Power Act (16 U.S.C. 792 et seq.) for each such
project.
(d) Candidate Project Identification.--Not later than 1
year after the date of enactment of this Act, the Commission,
in consultation with the head of any applicable Federal or
State agency or Indian tribe and licensees, shall identify
and solicit candidate projects to participate in the pilot
program established under subsection (c). In order to
participate in such pilot program a project shall meet the
following criteria:
(1) The current license for the project expires between
2019 and 2029 or the project is not licensed under part I of
the Federal Power Act (16 U.S.C. 792 et seq.).
(2) The project is located within the same watershed as
other projects that are eligible to participate in the pilot
program.
(3) The project is located in sufficiently close proximity
and has environmental conditions that are sufficiently
similar to other projects that are eligible to participate in
the pilot program so that watershed-wide studies and
information may be developed, thereby significantly reducing
the need for, and scope of, individual project-level studies
and information.
(e) Designation of Individual Projects as a Single Group.--
The Commission may designate a group of projects to be
considered together in a consolidated licensing process under
the pilot program established under subsection (c). The
Commission may designate such a group only if each licensee
(or applicant) for a project in the group, on a voluntary
basis and in writing, agrees--
(1) to participate in the pilot program; and
(2) to a cost-sharing arrangement with other licensees (or
applicants) and applicable Federal and State agencies with
respect to the conduct of watershed-wide studies to be
considered in support of the license applications for the
group of projects.
(f) Project License Terms.--The Commission may change the
term of any existing license for an individual licensee in a
group designated under subsection (e) by up to 5 years--
(1) to provide sufficient time to develop a consolidated
study plan for--
(A) studies for individual projects in the group, as
necessary; and
(B) relevant watershed-wide studies for purposes of the
consolidated licensing process under the pilot program
established under subsection (c) that will be applicable to
each project in the group; and
(2) to align the terms of the existing licenses such that
they expire on the same date.
(g) Memorandum of Understanding.--The Commission shall, to
the extent practicable, enter into a memorandum of
understanding with any applicable Federal or State agency or
Indian tribe to implement the pilot program established under
subsection (c).
(h) Initial Report.--Not later than 3 months after the date
of the initial workshop held pursuant to subsection (b), the
Commission shall submit to the Committee on Energy and
Commerce of the House of Representatives and the Committee on
Energy and Natural Resources of the Senate a report that
includes--
(1) a summary of the public comments received as part of
such initial workshop; and
(2) a preliminary plan for identifying and soliciting
participants in the pilot program established under
subsection (c).
(i) Interim Report.--Not later than 4 years after the
establishment of the pilot program under subsection (c), the
Commission shall submit to the Committee on Energy and
Commerce of the House of Representatives and the Committee on
Energy and Natural Resources of the Senate a report that
includes--
(1) a description of the status of the pilot program,
including a description of the individual projects that are
participating in the pilot program and the watersheds in
which such projects are located; or
(2) if no projects are participating in the pilot program,
a summary of any barriers the Commission has identified to
proceeding with the pilot program and the reasons provided by
potential participants for their preference for using an
individual license process.
SEC. 5. INTERAGENCY COMMUNICATIONS AND COOPERATION.
Part I of the Federal Power Act (16 U.S.C. 792 et seq.) is
further amended by adding at the end the following new
section:
``SEC. 37. INTERAGENCY COMMUNICATIONS AND COOPERATION.
``(a) Ex Parte Communications.--Interagency communications
relating to the preparation of environmental documents under
the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.) with respect to an application for a license under
this part, or to the licensing process for a license under
this part, shall not be considered to be ex parte
communications under Commission rules.
``(b) Participation in Proceedings.--Interagency
cooperation, at any time, in the preparation of environmental
documents under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.) with respect to an application for a
license under this part, or in the licensing process for a
license under this part, shall not preclude an agency from
participating in a licensing proceeding under this part.
``(c) Separation of Staff.--Notwithstanding subsection (a),
to the extent the Commission determines necessary, the
Commission may require Federal and State agencies
participating as cooperating agencies under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) to
demonstrate a separation of staff that are cooperating with
the Commission with respect to a proceeding under this part
from staff that may participate in an intervention in the
applicable proceeding.''.
SEC. 6. HYDROELECTRIC PRODUCTION INCENTIVES AND EFFICIENCY
IMPROVEMENTS.
(a) Hydroelectric Production Incentives.--Section 242 of
the Energy Policy Act of 2005 (42 U.S.C. 15881) is amended--
(1) in subsection (c), by striking ``10'' and inserting
``20'';
(2) in subsection (f), by striking ``20'' and inserting
``30''; and
(3) in subsection (g), by striking ``each of the fiscal
years 2006 through 2015'' and inserting ``each of fiscal
years 2017 through 2026''.
(b) Hydroelectric Efficiency Improvement.--Section 243(c)
of the Energy Policy Act of 2005 (42 U.S.C. 15882(c)) is
amended by striking ``each of the fiscal years 2006 through
2015'' and inserting ``each of fiscal years 2017 through
2026''.''.
SEC. 7. TECHNICAL AMENDMENTS.
(a) Alternative Conditions.--Section 33(a)(2)(B) of the
Federal Power Act (16 U.S.C. 823d(a)(2)(B)) is amended, in
the matter preceding clause (i), by inserting ``deemed
necessary'' before ``by the Secretary''.
(b) Licenses.--Section 4(e) of the Federal Power Act (16
U.S.C. 797(e)) is amended by striking ``adequate protection
and utilization of such reservation'' and all that follows
through ``That no license affecting the navigable capacity''
and inserting ``adequate protection and utilization of such
reservation. The license applicant and any party to the
proceeding shall be entitled to a determination on the
record, after opportunity for an agency trial-type hearing of
no more than 90 days, on any disputed issues of material fact
with respect to such conditions. All disputed issues of
material fact raised by any party shall be determined in a
single trial-type hearing to be conducted by the relevant
resource agency in accordance with the regulations
promulgated under this subsection and within the time frame
established by the Commission for each license proceeding.
Within 90 days of the date of enactment of the Energy Policy
Act of 2005, the Secretaries of the Interior, Commerce, and
Agriculture shall establish jointly, by rule, the procedures
for such expedited trial-type hearing, including the
opportunity to undertake discovery and cross-examine
witnesses, in consultation with the Federal Energy Regulatory
Commission: Provided further, That no license affecting the
navigable capacity''.
SEC. 8. IMPROVING CONSULTATION WITH INDIAN TRIBES.
(a) Guidance Document.--
(1) In general.--Not later than one year after the date of
enactment of this Act, the Federal Energy Regulatory
Commission and the Secretary of the Interior shall prepare,
in consultation with interested Indian tribes, licensees
under part I of the Federal Power Act, and the public, a
guidance document that identifies best practices for the
Commission, Federal and State resource agencies, Indian
tribes, and applicants for licenses under part I of the
Federal Power Act for effective engagement of Indian tribes
in the consideration of applications for licenses under part
I of the Federal Power Act that may affect an Indian
reservation, a treaty, or other right of an Indian tribe.
(2) Updates.--The Commission and Secretary shall update the
guidance document prepared under paragraph (1) every 10
years.
(3) Public participation.--In preparing or updating the
guidance document, the Commission and the Secretary shall
convene public meetings at different locations in the United
States, and shall provide an opportunity for written public
comments.
(b) Public Workshops.--
(1) In general.--Not later than one year after preparing or
updating the guidance
[[Page H8638]]
document under subsection (a), the Commission shall convene
public workshops, held at different locations in the United
States, to inform and educate Commission staff, Federal and
State resource agencies, Indian tribes, applicants for
licenses under part I of the Federal Power Act, and
interested members of the public, on the best practices
identified in the guidance document.
(2) Consultation.--In preparing the agenda for such
workshops, the Commission shall consult with the Secretary of
the Interior, interested Indian tribes, and licensees under
part I of the Federal Power Act.
SEC. 9. TRIBAL MANDATORY CONDITIONS.
(a) In General.--Section 4 of the Federal Power Act (16
U.S.C. 797) is amended--
(1) in subsection (e), in the first proviso, by inserting
``, or, in the case of tribal land, subject to subsection
(h), the Indian tribe having jurisdiction over the tribal
land,'' after ``under whose supervision such reservation
falls''; and
(2) by adding at the end the following:
``(h) Tribal Mandatory Conditions.--
``(1) Criteria.--An Indian tribe may deem conditions
necessary under the first proviso of subsection (e) only if
the Secretary of the Interior (referred to in this subsection
as the `Secretary') determines that the Indian tribe has--
``(A) confirmed the intent of the Indian tribe to deem
conditions necessary under the first proviso of subsection
(e) by resolution or other official action by the governing
body of the Indian tribe;
``(B) demonstrated financial stability and financial
management capability over the 3-fiscal-year period preceding
the date of the determination of the Secretary under this
paragraph; and
``(C) demonstrated the ability to plan, conduct, and
administer all services, functions, and activities that would
otherwise be administered by the Secretary with respect to
deeming conditions necessary on tribal land under the first
proviso of subsection (e).
``(2) Determination on request.--On request of an Indian
tribe, not later than 1 year after the date on which the
Secretary receives the request, the Secretary shall make the
determination under paragraph (1).
``(3) Withdrawal of determination.--
``(A) In general.--Subject to subparagraph (B), if the
Secretary determines that an Indian tribe no longer meets the
criteria under paragraph (1), the Secretary may withdraw the
determination under paragraph (2).
``(B) Notice and opportunity to respond.--Before
withdrawing a determination under subparagraph (A), the
Secretary shall provide to the Indian tribe--
``(i) notice of the proposed withdrawal; and
``(ii) an opportunity to respond and, if necessary, redress
the deficiencies identified by the Secretary.''.
(b) Alternative Conditions.--Section 33(a) of the Federal
Power Act (16 U.S.C. 823d(a)) is amended--
(1) in paragraph (1), by inserting ``or an Indian tribe''
before ``deems a condition'';
(2) in paragraph (2), by inserting ``or Indian tribe''
after ``the Secretary'' each place it appears;
(3) in paragraph (3), by inserting ``or Indian tribe''
after ``the Secretary'' each place it appears;
(4) in paragraph (4)--
(A) by inserting ``or Indian tribe'' before ``concerned
shall submit'';
(B) by inserting ``or Indian tribe'' before ``gave equal
consideration'';
(C) by inserting ``or Indian tribe'' after ``may be
available to the Secretary'';
(D) by inserting ``or Indian tribe'' before ``shall also
submit,''; and
(E) by striking ``available to the Secretary and relevant
to the Secretary's decision'' and inserting ``available to
the Secretary or Indian tribe and relevant to the decision of
the Secretary or Indian tribe''; and
(5) in paragraph (5)--
(A) by striking ``Secretary's final condition'' and
inserting ``final condition of the Secretary or Indian
tribe'';
(B) by inserting ``or Indian tribe'' after ``consult with
the Secretary'';
(C) by inserting ``or Indian tribe'' before ``may accept
the Dispute Resolution'';
(D) by inserting ``or Indian tribe'' after ``advisory
unless the Secretary'';
(E) by inserting ``or Indian tribe'' before ``shall submit
the advisory and''; and
(F) by striking ``Secretary's final written determination''
and inserting ``final written determination of the Secretary
or Indian tribe''.
SEC. 10. CONSIDERATION OF INVASIVE SPECIES.
Section 18 of the Federal Power Act (16 U.S.C. 811) is
amended by inserting after ``the Secretary of Commerce.'' the
following: ``In prescribing a fishway, the Secretary of
Commerce or the Secretary of the Interior, as appropriate,
shall consider the threat of invasive species.''.
The Acting CHAIR. Pursuant to House Resolution 607, the gentleman
from Illinois (Mr. Rush) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Illinois.
Mr. RUSH. Mr. Chairman, I include in the Record letters of opposition
to H.R. 3043.
Kalispel Tribe of Indians,
Usk, WA, November 8, 2017.
Re Opposition to H.R. 3043, the Hydropower Policy
Modernization Acts.
Hon. Greg Walden,
Chairman, House Energy and Commerce Committee, Washington,
DC.
Hon. Frank Pallone,
Ranking Member, House Energy and Commerce Committee,
Washington, DC.
Dear Chairman Walden and Ranking Member Pallone: On behalf
of the Kalispel Tribe of Indians, we write to once again
voice our opposition to H.R. 3043, the Hydropower Policy
Modernization Act. As stated by Kalispel Vice Chairman
Raymond Pierre during testimony before the House Natural
Resources Committee in April, H.R. 3043 goes much too far in
trying to address inefficiencies in the federal hydropower
licensing process and will create more problems than it
resolves. If enacted, H.R. 3043 will allow hydropower
operations to undermine the purposes of Indian reservations
and destroy with impunity tribal trust resources. We
respectfully call on you to oppose this legislation.
The Kalispel Tribe resides on a 5,000-acre reservation on
the Pend Oreille River in northeast Washington. Our
reservation was created to provide our people with a
permanent home, including the ability to use our river and
its resources like we have since time immemorial. This
purpose has been undermined by the construction and operation
of the Albeni Falls, Box Canyon, and Boundary hydropower
projects on the Pend Oreille River. The Box Canyon Reservoir
flooded ten percent of our reservation. In addition, these
facilities have combined to transform our free-flowing river
into a fragmented system of reservoirs in which native fish
struggle to survive while invasive species thrive. Many
Kalispel no longer trust or use the river because of its
altered ecology.
One of the Tribe's highest priorities is limiting any
additional loss of reservation lands and remedying the
cultural disconnection to the Pend Oreille River. The Federal
Power Act (``FPA'') offers the Tribe its most potent tool in
achieving these objectives. No other federal statute affords
the same degree of protection to the tribal nations whose
reservations are occupied by a Federal Energy Regulatory
Commission (``FERC'')-licensed hydroelectric project.
Section 4 (e) of the FPA authorizes the Secretary of the
Interior to develop mandatory conditions for the approval of
FERC licenses that impact Indian reservations. In our case,
these conditions are the only way to mitigate longstanding
and otherwise unaddressed environmental and cultural impacts
caused by FERC-licensed projects. The Pend Oreille Basin will
be the recipient of significant conservation investments to
restore connectivity and other habitat characteristics that
make those projects consistent with the purposes of the
Kalispel Indian Reservation because of the 4(e) conditions
and Section 18 fishway prescriptions in the Box Canyon and
Boundary FERC licenses. This conditioning authority also
makes it much more difficult for hydroelectric projects to
further flood Indian lands, which is a recurring problem
across the United States.
H.R. 3043 does not improve the federal hydropower licensing
process, but instead weakens its protections for impacted
tribal nations. H.R. 3043 detrimentally impacts the Section
4(e) conditioning regime and undermines its effectiveness in
protecting Indian Country. H.R. 3043 would overturn the D.C.
Circuit Court of Appeals decisions in Tacoma v. FERC, which
held that the Department of the Interior has mandatory
authority to develop appropriate conditions to protect Indian
reservations under the FPA and that FERC has no authority to
reject these conditions because Interior did not meet FERC's
truncated schedule. H.R. 3043 would force the Department of
the Interior to comply with FERC's schedule. This change will
impair the Department of the Interior's ability to fully
examine each project and if it misses a deadline, tribal
interests will not be considered until the next relicensing,
often fifty years later.
H.R. 3043 would empower FERC to determine the scope of the
environmental review for 4(e) conditions. This change creates
a new burden for FERC in an area in which it lacks expertise.
It also would require the Department of the Interior to
consider the balance of energy production against its trust
responsibility to Indian lands. Interior's only interest in
the current process is the protection of Indian lands and
that should remain its focus--it is not an arm of FERC.
Finally, H.R. 3043 would overturn the Supreme Court's
decision in Escondido v. FERC, 466 U.S. 765 (1984) by giving
FERC the authority to make a determination that a 4(e)
condition or fishway prescription is inconsistent with the
FPA. This fundamentally changes the FPA and undermines the
Department of the Interior's ability to protect Indian lands
and tribal resources.
The Kalispel Tribe urges the House of Representatives to
reject H.R. 3043. The bill elevates hydropower interests at
the expense of tribal rights. If this bill is enacted the
Kalispel Tribe will suffer so that hydropower licensing may
proceed without protecting tribal lands and trust resources.
Sincerely,
Glen Nenema,
Chairman, Kalispel Tribe of Indians.
[[Page H8639]]
____
House of Representatives,
Committee on Energy and Commerce,
Washington, DC, April 27, 2017.
Hon. Greg Walden,
Chairman, Committee on Energy and Commerce,
Washington, DC.
Hon. Fred Upton,
Chairman, Subcommittee on Energy,
Washington, DC.
Dear Chairman Walden and Chairman Upton: As Members of the
Subcommittee on Energy with strong interest in facilitating
improvements in hydropower operations, development, and
licensing, we write to urge you to schedule another hearing
on this critical topic. We believe a hearing with
representatives of states, resource agencies, and Native
American Tribes is vital to having a full understanding of
how the 2005 hydropower license process reforms are working
and what changes may be necessary to further improve the
licensing and relicensing process to reduce delays and costs
for all parties involved.
Hydroelectric power provides substantial, virtually carbon-
free, baseload energy at low cost to our manufacturing sector
and to residential and commercial consumers. It is an
important asset that we believe is essential to maintain.
At the same time, however, it is clear that while
hydroelectric generation is essentially free of air emissions
relative to fossil generation, it is not impact-free. Absent
mitigation, hydropower has major negative impacts on fish and
wildlife populations, water quality and other important
physical and cultural resources, particularly if it is poorly
operated or sited. In addition, increased demands for water
creates significant challenges of water supply management in
some regions. All of these competing interests must be
balanced in issuing a license. The Federal Power Act (FPA)
respects states' authorities to manage water resources
according to state laws allocating water rights. And, the FPA
authorizes states and federal natural resource agencies to
place conditions on hydroelectric licenses to preserve water
quality, protect public lands and Native American
reservations, and ensure proper fish passage to preserve
healthy ecosystems and fisheries.
We were very encouraged by the substance and tone of the
Subcommittee's March 15, 2017 hearing entitled ``Modernizing
Energy Infrastructure: Challenges and Opportunities to
Expanding Hydropower Generation.'' The comments and
contributions from witnesses and Members on both sides of the
aisle were constructive, measured, and thoughtful, leading us
to believe that great potential exists to develop legislation
to improve the process for licensing hydroelectric generation
and pumped storage in this country.
However, the hearing provided an incomplete record with
regard to the process of hydroelectric licensing. In order to
move forward on considering any legislative changes to
current law in a knowledgeable manner, the Committee must
hear from those who propose the conditions included in
licenses: states, federal resource agencies, and Native
American Tribes. Each of these entities has a unique role in
the licensing process stemming from its equally unique
responsibility for overseeing water rights and managing the
many demands on a river and its use. Neither power
generation, nor any other single use of a river, should
dominate the decision making process.
We look forward to working with you on this matter and
respectfully urge you to hold a second hearing with these
witnesses prior to consideration of any legislative proposal.
Thank you for your attention and consideration.
Sincerely,
Frank Pallone, Jr., Ranking Member, Committee on Energy
and Commerce; Bobby L. Rush, Ranking Member,
Subcommittee on Energy; Jerry McNerney, Member of
Congress; Scott Peters, Member of Congress; Gene Green,
Member of Congress; Michael F. Doyle, Member of
Congress; Kathy Castor, Member of Congress; John P.
Sarbanes, Member of Congress; Peter Welch, Member of
Congress; Paul Tonko, Ranking Member, Subcommittee on
Environment; Dave Loebsack, Member of Congress; Joseph
P. Kennedy III, Member of Congress; G.K. Butterfield,
Member of Congress.
____
October 5, 2017.
Hon. Paul Ryan,
Speaker, House of Representatives, Washington, DC.
Hon. Nancy Pelosi,
Minority Leader, House of Representatives, Washington, DC.
Dear Speaker Ryan and Minority Leader Pelosi: We are
writing you on behalf of the members of The Association of
Clean Water Administrators (ACWA), Environmental Council of
States (ECOS), and The Association of State Wetland Managers
(ASWM) to express our concern with provisions of H.R. 3043--
Hydropower Policy Modernization Act of 2017. If enacted as
written, the draft bill would modify Federal Energy
Regulatory Commission (FERC) licensing requirements under the
Federal Power Act, and may conflict with the states'
authority under Section 401 of the Clean Water Act to protect
water quality and provide critical input on federal dredge
and fill permits to wetlands and other waters under Sec. 404.
Under the CWA and a state's own laws and regulations,
states are responsible for advancing the attainment of clean
and healthy waters. Section 401 of the CWA requires states to
certify that projects impacting navigable waters will comply
with applicable water quality standards and other state
requirements. Additionally, 401 certification is required for
federal dredge and fill permits to wetlands and other waters
under Section 404. Under this framework, states and
permittees have efficiently been able to balance
certification of hydropower facilities while ensuring that
water quality standards are met initially or through remedial
actions. By weakening Sec. 401 authority, H.R. 3043 would
harm the ability of the governmental entity with primary
responsibility for water quality protection.
Additionally, H.R. 3043 places FERC in control of
permitting timetables and limits time extensions. This could
restrict states' abilities to gather necessary data and
scientific studies for permitting, which are crucial to
reaching collaborative, science-based conclusions. Rushing
scientific studies and data gathering would result in federal
agencies making regulatory decisions without sufficient
technical information, and may lead to litigation and less
effective oversight of hydropower facilities.
H.R. 3043 needlessly impairs state authority granted under
the CWA, and undermines ``cooperative federalism,'' a core
principle of the Act and the Administration's approach to
environmental law. The bill will not improve permitting
efficiency, and will likely result in water quality standards
being even harder to achieve. ACWA, ECOS and ASWM welcome the
opportunity to discuss revisions that would better preserve
states' rights under CWA Section 401 and ensure the
protection of state water resources. Should you have any
additional questions, do not hesitate to contact us.
Sincerely,
Alexandra Dunn,
Executive Director, ECOS.
Julia Anastasio,
Executive Director, ACWA.
Jeanne Christie,
Executive Director, ASWM.
____
Maryland Department of
the Environment,
Baltimore, MD, August 14, 2017.
Hon. Paul Ryan,
Speaker, House of Representatives, Washington, DC.
Hon. Nancy Pelosi,
Minority Leader, House of Representatives, Washington, DC.
Dear Speaker Ryan and Minority Leader Pelosi: The State of
Maryland (``Maryland'') provides the following comments on
the House of Representatives Bill 3043 (H.R. 3043)--
Hydropower Policy Modernization Act of 2017. Although
Maryland generally welcomes reforms that streamline the
Federal Energy Regulatory Commission (FERC) licensing
process, Maryland strenuously opposes any provisions in H.R.
3043 that would have the effect of curtailing State authority
under Section 401 of the Clean Water Act to establish license
conditions to protect water quality. Several provisions of
H.R. 3043 essentially serve to constrain state agencies use
of their independent authorities, making it more difficult to
protect water quality.
States serve an essential role in the FERC hydropower
licensing process when they review applications under Section
401 of the Clean Water Act in order to determine whether the
construction and/or operation of the facility will meet state
water quality standards and requirements. These reviews often
result in applicants conducting additional scientific studies
and states putting in place requirements (conditions) to
ensure that State water quality standards and requirement are
met. These types of conditions are essential for ensuring
that existing and new hydropower projects are built and
operated in a manner that is consistent with state and
federal environmental laws and are protective of the
environment. These conditions then become conditions of the
FERC license.
H.R. 3043 designates FERC as the lead agency over federal
authorizations related to an application for a license,
license amendment, or exemption for a hydropower project.
This bill requires states to meet deadlines established by
FERC in a schedule that FERC develops for the licensing
action. Further, this bill places limits on FERC's ability to
easily grant extensions to the deadlines. As the lead agency,
FERC would establish and control the timeline for the
hydropower licensing process and it appears that H.R. 3043
gives FERC the authority to create a schedule that would
reduce the amount of time a state would have to get necessary
scientific studies completed and to assess whether water
quality standards and requirements will be met as required
under Section 401 of the Clean Water Act. Further, not only
does this legislation likely place pressure on states to
complete their water quality reviews more quickly using
existing information, it also provides applicants with an
entitlement to a trial-type hearing before a FERC
Administrative Law Judge whenever there is a dispute of
material fact. Moreover, this legislation declares the
decision of the FERC Administrative Law Judge to be final and
not subject to further administrative review. This allowance
for a trial-like hearing
[[Page H8640]]
combined with pressure to use existing science and meet
strict deadlines together makes it even more challenging for
states to protect water quality.
Finally, applications for amendments to existing licenses
which qualify as a project ``upgrade'' (which is determined
by FERC as to whether a proposed amendment qualifies as an
upgrade) obtain even more expedited processing by FERC. In
these cases, it appears that FERC would be the decision
maker, not the state, with regard to whether the desired
amendment to project operations would affect water quality.
Decades of federal court decisions interpreting Section 401
have established the states' authority to require conditions
in FERC licenses necessary to protect water quality. These
decisions recognize and affirm the basic principle of
federalism embodied in the Clean Water Act that states have
the primary role and responsibility to ensure state water
quality standards are met.
Maryland's interest in protecting water quality is as
important and relevant today as ever, particularly now as
FERC considers the relicensing of the Conowingo hydroelectric
dam on the Susquehanna River in Maryland. The Susquehanna
River provides approximately 50 percent of the fresh water to
the Chesapeake Bay and is an important driver of the Bay's
water quality. A joint study funded by Maryland and the Army
Corps of Engineers concluded that the Dam's loss of capacity
to trap sediment and associated nitrogen and phosphorus
pollution (nutrients) adversely affects the health of the
Bay. The precise nature of the Dam's adverse impacts on the
health of the Bay and the circumstances under which they
occur are currently the subject of additional study. What is
clear, however, is that any new FERC license for the Dam will
have to contain appropriate conditions to address sediment
and associated nutrient transport and ensure that Maryland's
water quality standards are maintained. Without appropriate
conditions Maryland may not be able to meet its commitment to
achieve EPA's Total Maximum Daily Loads (``TMDL'') for the
Bay.
In impairing the states' primary roles and responsibilities
under Section 401 to fashion conditions in FERC licenses,
H.R. 3043 relegates the states--the entities with the
greatest interest and expertise in protecting state water
quality--to bystander or second-class status. Maryland
strenuously objects to the provisions in H.R. 3043 that would
make it more difficult for Maryland to ensure water quality
through the Clean Water Act Section 401 water quality
certification process.
Maryland's concerns with the legislation's impact on the
Conowingo hydroelectric dam relicensing process could be
addressed by making clear that nothing in the legislation
alters Section 401 of the Clean Water Act with regard to
State authority, role, responsibilities, process and
timeline. Further, the legislation should clearly indicate
that state actions associated with Section 401 requirements,
including the assessment of water quality standard
achievement and resulting conditions, are not eligible for a
trial type hearing by a FERC Administrative Law Judge for
purposes of resolving disputes of material fact. Maryland
urges that the provisions of H.R. 3043 that would have the
effect of curtailing State authority under Section 401 of the
Clean Water Act be stricken from the bill.
We thank you for your time and attention to this matter.
Respectfully,
Ben Grumbles,
Secretary, Maryland Department of the Environment.
Mark Belton,
Secretary, Maryland Department of Natural Resources.
Mr. RUSH. Mr. Chairman, I rise in strong support of the Rush
amendment in the nature of a substitute, and I urge all of my
colleagues to support it as well.
Mr. Chairman, hydropower is backed by Members on both sides of the
aisle. We all support hydropower, but the process for how we license
these projects is far too important for us to get it wrong.
While many Members on the minority side have objections to the
underlying bill, H.R. 3043, due to its negative impact on States'
rights and States' prerogatives under the Clean Water Act, my
substitute amendment addresses these issues in a more responsible way.
Mr. Chairman, H.R. 3043 will not modernize or improve the hydropower
licensing process, but, rather, it simply places private profits for
industry over the public interest.
Mr. Chairman, we certainly need a more balanced approach, such as the
one provided in my substitute amendment, which contains bipartisan
provisions that were included in the hydropower package that both sides
agreed to in a fit of bipartisanship last December in committee.
Mr. Chairman, my amendment contains several provisions to improve the
licensing process while also offering incentives to the hydropower
industry.
This substitute contains a requirement to set up a new licensing
process, but, unlike H.R. 3043, it protects the rights of Federal
resource agencies, States, and Indian Tribes to impose conditions in
accordance with modern environmental laws.
My substitute also amends the definition of renewable energy to
include all hydropower, just as H.R. 3043 does; however, it expands the
goals for Federal purchasing of renewable power beyond the 15 percent
included in H.R. 3043 as an objective, not a mandate.
Mr. Chairman, my amendment also contains a ``reward for early
action'' provision that authorizes FERC to take into account a
licensee's investments made over the course of their license in order
to improve the efficiency or environmental performance of their
hydropower facility when setting the term of their new license.
Mr. Chairman, in testimony before the Energy and Commerce Committee,
we heard, repeatedly, that a major cause for licensing delays was due
to incomplete applications that do not include all the pertinent
information necessary to issue a decision.
While H.R. 3043 does nothing to address this issue, my substitute
does so by directing FERC and other Federal resource agencies to
convene a negotiating rulemaking with all the stakeholders to develop a
process in which a completed license application will be evaluated and
issued or denied within a period of not more than 3 years.
{time} 1515
Mr. Chairman, my amendment preserves States' and Tribal authorities
by directing FERC and the Secretary of the Interior to issue guidance
on best practices for engagement with Indian Tribes in the hydropower
licensing process.
Mr. Chairman, we cannot allow industry profits to supersede the
interests of Native Tribes, States, and other important stakeholders.
Mr. Chair, I yield back the balance of my time.
Mr. UPTON. Mr. Chair, I claim the time in opposition to the
amendment.
The Acting CHAIR. The gentleman from Michigan is recognized for 5
minutes.
Mr. UPTON. Mr. Chairman, I rise in opposition to the amendment. I do
so with some hesitancy against my good friend, but I would say that
this amendment would strike and replace the base tax with language that
would add additional layers of red tape and bureaucracy already to the
permitting process.
The bill itself, H.R. 3043, contains essential permitting and
licensing reforms to ensure that renewable hydropower remains an
important part of our all-of-the-above approach to energy, something
that many of us on both sides of the aisle support.
We know that the permitting process has been broken. We have heard
from FERC over the years and project developers who have been stuck for
more than a decade because of bureaucratic delays.
We also know that we need to improve coordination. There are lots of
moving parts with multiple permits required and sometimes dozens of
agencies that are involved, but this bill, H.R. 3043, brings
transparency and predictability to the process by empowering the State
and Federal agencies to actually sit at the table with FERC to identify
issues of concern and resolve them before they result in unnecessary
delay.
The bill, H.R. 3043, as we have said a number of times over the last
hour, ensures that States and Tribes are an integral part of that
process. The word ``consult'' appears no less than a dozen times in the
30 pages.
Without these important changes to the law, States and Tribes may
continue to be left out of the important decisions relating to
hydropower licensing.
Again, I remind my colleagues that this is a new provision that we
added. This wasn't in the bill last year as we debated this title and
approved it in committee and saw it move again on the Senate floor with
a vote that, as I recall, was 92-8.
The bill, H.R. 3043, strikes a careful balance, which is why it has
broad support from the American Council on Renewable Energy, the
American Public Power Association, the Business Council for Sustainable
Energy, Edison Electric Institute, International Brotherhood of
Boilermakers, International
[[Page H8641]]
Brotherhood of Electrical Workers, International Federation of
Professional and Technical Engineers, Large Public Power Council,
Laborers' International Union of North America, National Electrical
Contractors Association, the National Hydropower Association, the
National Rural Electric Cooperative Association, the North American
Building Trades Council, and the United Brotherhood of Carpenters and
Joiners of America.
Mr. Chairman, this amendment, we view over here on this side as a
poison pill. It would kill jobs and discourage the development of
clean, affordable, and reliable hydropower.
Mr. Chair, I would urge my colleagues to vote ``no'' on this
amendment and vote ``yes'' on the bill.
Mr. Chair, I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Illinois (Mr. Rush).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Mr. RUSH. Mr. Chair, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Illinois
will be postponed.
Mr. UPTON. Mr. Chair, I move that the Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
DeSantis) having assumed the chair, Mr. Estes of Kansas, Acting Chair
of the Committee of the Whole House on the state of the Union, reported
that that Committee, having had under consideration the bill (H.R.
3043) to modernize hydropower policy, and for other purposes, had come
to no resolution thereon.
____________________