Action Alert: Bad Hydropower Legislation Returns - Mountain Buzz
 



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Old 10-21-2015   #1
 
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Action Alert: Bad Hydropower Legislation Returns

As early as next week, the House is expected to vote on H.R. 8–the "North American Energy Security and Infrastructure Act.” H.R. 8 is a comprehensive energy bill with hydropower provisions that, if passed, will make restoring rivers impacted by hydropower dams nearly impossible and would give hydropower developers special treatment by allowing them to ignore the Clean Water Act, Endangered Species Act, and other laws that protect fish, wildlife, recreation and public lands. It would strip states and Native American tribes of their existing authority to hold dam owners accountable for pollution and damage to local rivers and communities, as well as federal agencies to protect fish and other aquatic species.

Take Action! Your voice in this matter will make a huge difference because reps are not used to hearing about these types of bills from their constituents. Reach out to your Congressional Representatives this week and make your voices heard! Share your personal experience enjoying rivers where hydropower projects provide recreational flows. Ask your Representative to oppose the hydropower provisions in H.R. 8–the "North American Energy Security and Infrastructure Act” or any bill that would undermine the public's ability to balance hydropower interests with non-power values like recreation, fish and wildlife.

Thanks!

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Old 10-21-2015   #2
 
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Quote:
Originally Posted by AW-Evan View Post
H.R. 8–the "North American Energy Security and Infrastructure Act.” H.R. 8 is a comprehensive energy bill with hydropower provisions that, if passed, will make restoring rivers impacted by hydropower dams nearly impossible and would give hydropower developers special treatment by allowing them to ignore the Clean Water Act, Endangered Species Act, and other laws that protect fish, wildlife, recreation and public lands. It would strip states and Native American tribes of their existing authority to hold dam owners accountable for pollution and damage to local rivers and communities, as well as federal agencies to protect fish and other aquatic species.
I skimmed H.R. 8 and could not find these provisions. Could you point out the portions of the bill that remove these protections so that I can make specific comments to my congressman?
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Old 10-21-2015   #3
Shapp
 
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I read the bill and don't see any real connection to any of the claims above related to undermining the Endangered Species Act, Clean Water Act, Tribal involvement and deference or protection of fish, wildlife, etc., or allowing pollution or damage.

I am all for these protections and can't see how the bill would undermine these. Please advise.
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Old 10-21-2015   #4
 
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This language is potentially concerning

Quote:
“(3) To the extent any omission or action taken by a party, that is necessary to comply with an order issued under this subsection, including any omission or action taken to voluntarily comply with such order, results in noncompliance with, or causes such party to not comply with, any Federal, State, or local environmental law or regulation, such omission or action shall not be considered a violation of such environmental law or regulation, or subject such party to any requirement, civil or criminal liability, or a citizen suit under such environmental law or regulation.
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Old 10-22-2015   #5
 
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Originally Posted by restrac2000 View Post
This language is potentially concerning

Quote:
“(3) To the extent any omission or action taken by a party, that is necessary to comply with an order issued under this subsection, including any omission or action taken to voluntarily comply with such order, results in noncompliance with, or causes such party to not comply with, any Federal, State, or local environmental law or regulation, such omission or action shall not be considered a violation of such environmental law or regulation, or subject such party to any requirement, civil or criminal liability, or a citizen suit under such environmental law or regulation.
I only speak passing legalese, but if that says what I think it does, it means,

"If you blow off any Federal, State, or local environmental law or regulation, that's OK."

Can someone that knows how to read this stuff better than I chime in?
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Old 10-22-2015   #6
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Originally Posted by Andy H. View Post
I "If you blow off any Federal, State, or local environmental law or regulation, that's OK."

Can someone that knows how to read this stuff better than I chime in?
Not sure if that is what it is saying. Read the preceeding paragraphs, especially "and, to the maximum extent practicable, is consistent with any applicable Federal, State, or local environmental law or regulation and minimizes any adverse environmental impacts."


There is legal garbadly gook here, but I am not sure it rises to the level of the initial post characterization. I hope AW will post something here to actually explain/analyze how they think this might play out if enacted.


The entire environmental conflicts section:


SEC. 1102. Resolving environmental and grid reliability conflicts.

(a) Compliance with or violation of environmental laws while under emergency order.—Section 202(c) of the Federal Power Act (16 U.S.C. 824a(c)) is amended—

(1) by inserting “(1)” after “(c)”; and

(2) by adding at the end the following:

“(2) With respect to an order issued under this subsection that may result in a conflict with a requirement of any Federal, State, or local environmental law or regulation, the Commission shall ensure that such order requires generation, delivery, interchange, or transmission of electric energy only during hours necessary to meet the emergency and serve the public interest, and, to the maximum extent practicable, is consistent with any applicable Federal, State, or local environmental law or regulation and minimizes any adverse environmental impacts.

“(3) To the extent any omission or action taken by a party, that is necessary to comply with an order issued under this subsection, including any omission or action taken to voluntarily comply with such order, results in noncompliance with, or causes such party to not comply with, any Federal, State, or local environmental law or regulation, such omission or action shall not be considered a violation of such environmental law or regulation, or subject such party to any requirement, civil or criminal liability, or a citizen suit under such environmental law or regulation.

“(4) (A) An order issued under this subsection that may result in a conflict with a requirement of any Federal, State, or local environmental law or regulation shall expire not later than 90 days after it is issued. The Commission may renew or reissue such order pursuant to paragraphs (1) and (2) for subsequent periods, not to exceed 90 days for each period, as the commission determines necessary to meet the emergency and serve the public interest.

“(B) In renewing or reissuing an order under subparagraph (A), the Commission shall consult with the primary Federal agency with expertise in the environmental interest protected by such law or regulation, and shall include in any such renewed or reissued order such conditions as such Federal agency determines necessary to minimize any adverse environmental impacts to the extent practicable. The conditions, if any, submitted by such Federal agency shall be made available to the public. The Commission may exclude such a condition from the renewed or reissued order if it determines that such condition would prevent the order from adequately addressing the emergency necessitating such order and provides in the order, or otherwise makes publicly available, an explanation of such determination.

“(5) If an order issued under this subsection is subsequently stayed, modified, or set aside by a court pursuant to section 313 or any other provision of law, any omission or action previously taken by a party that was necessary to comply with the order while the order was in effect, including any omission or action taken to voluntarily comply with the order, shall remain subject to paragraph (3).”.
(b) Temporary connection or construction by municipalities.—Section 202(d) of the Federal Power Act (16 U.S.C. 824a(d)) is amended by inserting “or municipality” before “engaged in the transmission or sale of electric energy”.
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Old 10-22-2015   #7
 
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What does "maximum extent practicable" mean under federal law? That seems like a Trojan horse of sorts.
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Old 10-22-2015   #8
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Does not seem to be a Trojan horse at all, for example: The term “consistent to the maximum extent practicable” means fully consistent with the enforceable policies of management programs unless full consistency is prohibited by existing law applicable to the Federal agency." https://www.law.cornell.edu/cfr/text/15/930.32
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Old 10-24-2015   #9
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Here is the section-by-section analysis. The problem here is the McMorris Rodgers/McNerney Amendment that subordinates the mandatory conditioning authority of states and federal agencies to FERC, having the effect of weakening the Clean Water Act and Endangered Species Act protections. See below:

Section 1304 (added via McMorris Rodgers/ McNerney Amendment on 9/30/15): Hydropower Licensing and Process Improvements

and

Section 1305 (added via McMorris Rodgers / McNerney Amendment on 9/30/15): Judicial Review of Delayed Federal Authorizations



Adds a new section to the Federal Power Act that undermines decades of established case law: It allows FERC to preempt State laws and procedural requirements for agency decision-making by dictating unreasonable deadlines. It also weakens authorities under ESA and CWA, by subordinating all other State and federal agencies to FERC’s sense of how much time those administering agencies should have to do their jobs.



Specifically, these sections:

· Designates FERC as the lead agency and allows FERC to set the schedule for all federal authorizations, including those issued pursuant to the Clean Water Act (CWA), the Endangered Species Act (ESA), The Federal Land Policy and Management Act (FLPMA), the Coastal Zone Management Act (CZMA), The Wild and Scenic Rivers Act (WSRA), and other federal authorizations, even where those authorizations have been delegated to the states or Native American Tribes.

· Requires FERC to maintain a consolidated record for the proceeding, which is the record for judicial review for all federal or state authorizations.

· Forces all other federal and state agencies and tribes to cooperate with FERC and comply with FERC’s schedule and give due consideration or deference to FERC’s proposed scope of environmental review.

· Waives the Endangered Species Act or the Clean Water Act if a state, tribe, or federal agency cannot meet FERC’s schedule or misses a deadline. FERC and the license applicant may simply proceed with the proposed action and the authorization is waived. There are no similar remedies or penalties if FERC or the license applicant fails to meet a deadline, or if delay caused by FERC or the license applicant results in an agency missing a deadline. The end result of this and the following provisions will be that states and tribes may be forced to deny certification for new projects in order to avoid potential legal liability.

· Fails to require FERC to provide agencies with the information they need to make a decision on FERC’s timeline. FERC often refuses to require information that agencies need to complete these authorizations, and it does not require that applications for these authorizations be complete before it starts the clock. This results in major delays as agencies are forced to request the information they need from licensees who can continue to operate their projects under their old licenses indefinitely. This provision would force agencies to choose between making decisions with incomplete information (thus leaving them open to legal challenge), losing their authority altogether, or denying an authorization and having the license end up in court.

· Forces states, tribes, and federal agencies to go to a federal court of appeals to request an extension of time if they are unable to meet a FERC deadline, regardless of cause, such as an applicant or FERC failing to provide necessary information for the agency to complete its analysis. This requirement stretches agency resources and expertise better used for completing analyses in support of the licensing process and adds unnecessary workload to an already overburdened Federal Appeals Court docket. States, tribes, or agencies must petition the court at least 30 days in advance of the deadline, and are required to meet a high bar for demonstrating the need for additional time, based on a record that is maintained by FERC

· Limits extensions of time to an unworkable 90 days: The court may only grant an extension of up to 90 days. If, for example, an authorization was delayed because an additional study season was necessary to resolve an issue, or a study is incomplete due to an applicant refusing to provide a state, tribe or federal agency with the information necessary for that agency to responsibly discharge its duties, this provision would preclude the agency from acting, thus involuntarily waiving its authority.

· Discourages settlement and collaborative problem solving: Applicants and regulators cannot elect to take additional time to resolve a difficult issue, which is often essential to working through technical issues and keep the licensing process moving forward, avoiding time consuming and expensive litigation. Further, the strict requirements for the Appeals Court’s decision prohibit the Court from granting deadline extensions for settlement.



Section 1306 (added via McMorris Rodgers/ McNerney Amendment on 9/30/15): Licensing Study Improvements



· Directs FERC to compile best practices for studies used in licensing and compile a collection of studies that could inform licensings. It encourages parties to use open-source methodologies and tools.

· Requires FERC, tribes, other federal agencies, states, and local governments to use “current, accepted science in support of their actions.”

· Requires parties requesting studies or information to demonstrate that their requested studies are “not duplicative of current, existing studies that are applicable to the project.”

· Creates an optional program at FERC to prepare regional or basin-scale comprehensive plans and studies in support of multiple relicensings. Basin scale planning can only take place at the request of a license applicant, and studies can only apply to projects if license applicants participate.



Section 1307 (added via McMorris Rodgers/ McNerney Amendment on 9/30/15): Closed-Loop Pumped Storage Projects

Adds a new section to the Federal Power Act that deregulates closed-loop pumped storage projects by limiting the Commission’s licensing authority and fast-tracking their approval.



· Defines “closed-loop pumped storage” as a project “in which the upper and lower reservoirs do not impound or directly withdraw water from navigable waters; or that is not continuously connected to a naturally flowing water feature.”

· Removes the Commission’s licensing and conditioning authority, comprehensive planning responsibility, equal consideration responsibility, and requirements for working with federal and state agencies to protect fish and wildlife under sections 4(e), 10(a), 10(g), and 10(j) of the Federal Power Act.

Narrows / limits protections for natural resources and other public values: License conditions intended to address natural resource impacts would be limited to impacts on fish and wildlife resources directly caused by the construction and operation of the hydropower plant, and must be – in FERC’s judgment – reasonable, economically feasible, and essential. Measures necessary to protect public safety are permissible. License conditions would be prohibited from addressing the underlying natural resource impacts of the existing dam, diversion, or reservoir if one is involved. License conditions would not be permitted to address the full range of impacts of the project on national parks, federal lands, recreational opportunities, cultural resources, water quality, and other values. Currently, FERC, states, tribes, and federal agencies have broad authority to protect these values at hydropower projects. All of these authorities would be significantly curtailed.
· Allows the developers of closed-loop pumped storage facilities to avoid complying with the Clean Water Act, the Federal Land Policy and Management Act, and other federal authorizations by limiting natural resource protections as described above.

· Overrides the Endangered Species Act by limiting conditions for the protection of threatened and endangered species to conditions that are, in FERC’s judgment, “economically feasible.”

This is an indirect, yet effective, attack on states, tribes, and federal agencies’ conditioning authority under sections 4(e), 10(a), 10(j), and 18 of the Federal Power Act, section 401 of the Clean Water Act, section 7 of the Endangered Species Act, and other federal authorities for protecting public lands and other resources.
Allows private companies to partner with municipalities on closed-loop pumped storage projects in order to claim the Federal Power Act’s municipal preference and gain application priority over other private companies, even if the municipality will not construct or operate the project.


Section 1308 (added via McMorris Rodgers/ McNerney Amendment on 9/30/15): License Amendment Improvements.

· Narrows environmental oversight and sets extremely tight time frames (120 days for agency review and 150 days for commission action) for the processing of amendment applications that FERC has determined are unlikely to harm the environment (based on a set of criteria defined in this section) and will either increase capacity, improve environmental protection, or enhance public recreation.

· Overrides statutory deadlines for review under the Clean Water Act and the Endangered Species Act.

Narrows / limits protections for natural resources: Amendment conditions intended to address natural resource impacts would be limited to impacts on fish and wildlife resources, water supply, and water quality directly caused by the construction and operation of the hydropower plant, and must be – in FERC’s judgment – reasonable, economically feasible, and essential. Measures necessary to protect public safety are permissible. Amendment conditions would be prohibited from addressing the underlying natural resource impacts of the existing dam, diversion, or reservoir if one is involved. Amendment conditions would not be permitted to address the full range of impacts of the project on national parks, federal lands, recreational opportunities, cultural resources, and other values. Currently, FERC, states, tribes, and federal agencies have broad authority to protect these values at hydropower projects. All of these authorities would be significantly curtailed. This is an indirect, yet effective, attack on agencies’ conditioning authority under sections 4(e), 10(a), 10(j), and 18 of the Federal Power Act, and other federal authorities for protecting public lands and other resources.
This is an indirect, yet effective, attack on states, tribes, and federal agencies’ conditioning authority under sections 4(e), 10(a), 10(j), and 18 of the Federal Power Act and other federal authorities for protecting public lands and other resources.



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Old 10-24-2015   #10
Shapp
 
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Thanks for the analysis! I'll have to read this over thoroughly
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