On April 3, representatives of the hydropower industry, Native American tribes, and conservation organizations provided a package of proposed legislative reforms to the Federal Power Act (FPA) to the ranking members of the U.S. Senate’s Energy and Natural Resources Committee and the U.S. House of Representatives’ Energy and Commerce Committee. The package, which was developed as part of the Stanford University Uncommon Dialogue on hydropower and river conservation, is the result of year-long intense negotiations between a variety of hydropower stakeholders.
If enacted, the proposal would implement the most significant changes to the Federal Power Act since 1935. When sharing the legislative package with congressional leadership, supporters stated that it “reflects our shared goal of enhancing the health of river ecosystems, respecting the rights of tribes, and providing greater regulatory certainty for hydropower facilities.” Specifically, the package touches on eight major themes aimed at improving hydropower licensing:
Theme 1: Promote a culture of “show your work” in hydropower licensing. This theme includes proposed amendments to the FPA, which would:
- Require that mandatory conditions submitted under FPA § 4(e) be “reasonably related to project effects on the reservation and its utilization”;
- Require that any fishway prescribed pursuant to FPA § 18 be “as appropriate to address project effects and other relevant factors”; and
- Require mandatory conditioning agencies to provide a rationale for their decisions on alternative conditions and prescriptions submitted under FPA § 33.
Theme 2: Improve cooperation among FERC, federally recognized tribes, and resource agencies in the hydropower licensing process. This theme includes proposed amendments to the FPA that would, among other things, require FERC, other federal and state agencies, and tribes to:
- Consult to develop a coordinated schedule for all federal authorizations for hydropower licensing;
- Attempt to cooperate in the preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA);
- Work together to develop a joint study plan to the extent possible; and
- Consult toward the end of the licensing process in an attempt to resolve inconsistent and conflicting license conditions.
Theme 3: Expand the authority for federally recognized tribes to protect their lands, waters, other resources and treaty-protected rights. This theme includes proposed amendments to the FPA that would:
- Shift mandatory conditioning authority under § 4(e) of the FPA from the U.S. Department of the Interior to a federally recognized tribe for any project located on land held in trust within the boundaries of a tribal reservation;
- Require FERC and other agencies to meet federal obligations applicable to a federal treaty with a federally recognized tribe; and
- Extend FPA § 10(j) recommendation authority to federally recognized tribes during the licensing of a project that may affect treaty rights.
Theme 4: Address climate change in the hydropower licensing process. This theme includes proposed amendments to the FPA that would:
- Direct FERC, mandatory conditioning agencies, and tribes to consider climate change and changing project effects under an uncertain climate when developing license conditions; and
- Require FERC to stay abreast of, and incorporate, climate science and analytical tools through periodic technical conferences convened in consultation with the U.S. Department of Energy.
Theme 5: Provide improved evaluation of projects during the licensing process. This theme includes proposed amendments to the FPA that would, among other things:
- Statutorily define the terms “ongoing effect” and “reasonably foreseeable effect” to provide greater certainty to licensing participants and regulators;
- Require FERC, federal agencies, and tribes to consider whether any ongoing or reasonably foreseeable adverse effect on fish species can be mitigated by providing access to, maintaining, or improving upstream or downstream habitat, or by off-site mitigation;
- Improve the analysis of project economics and market conditions; and
- Add a new section of the FPA that would permit consideration of off-site mitigation measures, as appropriate to supplement on-site measures.
Theme 6: Require improved processes for license surrender and for addressing nonoperational facilities. This theme includes proposed amendments to the FPA that would:
- Direct FERC to undertake a rulemaking to establish procedures governing license surrender proceedings; and
- Require FERC to establish a program for addressing long-standing nonoperational projects.
Theme 7: Provide opportunities for expedited licensing of certain low-impact projects. This theme would introduce two new expedited licensing processes, including:
- A two-year licensing process for certain projects at qualifying nonpowered dams; and
- A three-year licensing process for certain closed-loop and off-stream pumped storage projects.
Theme 8: Support new technologies. This theme would amend the FPA to:
- Require FERC and other resource agencies to consider innovative solutions and emerging technologies as a means of meeting their responsibilities and authorities in hydropower licensing; and
- Require FERC to undertake a study to investigate opportunities and challenges for expanding micro hydropower resources.
Supporters of this package are now moving their efforts to Capitol Hill to advocate for Congress’ enactment. Today’s Wall Street Journal reported Senator John Barrasso (R-WY), ranking member of the Senate Energy and Natural Resources Committee, as stating that he “look[s] forward to seeing the agreement various stakeholders have reached.” The Wall Street Journal also reported that Chairman Frank Joseph Pallone (D-NJ) of the House Energy and Commerce Committee, called the package an “unprecedented collaborative effort,” and stated that he is “committed to ensuring that Congress passes legislation that protects and enhances fish and wildlife populations, water quality, recreational activities, and the role of Tribal Nations, while providing industry with the certainty it needs for this important carbon-free resource.”
Additional information on the proposed legislative package is available here.