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,…
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
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. 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. Chairman, I yield 2 minutes to the gentleman from Maryland (Mr. Sarbanes), a very important member of the committee.
Mr. Chairman, I yield 3 minutes to the gentleman from New York (Mr. Tonko).
Mr. Chairman, I yield 2 minutes to the gentleman from California (Mr. Garamendi).
Mr. Chairman, I yield 3 minutes to the gentleman from California (Mr. Ruiz).
Mr. Chairman, I yield 2 minutes to the gentleman from California (Mr. Costa).
Mr. Chair, may I inquire as to how much time is remaining on both sides.
Mr. Chairman, I reserve the balance of my time.
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.
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.
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.
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.
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. 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
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.
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.
Will the gentleman yield?
Mr. Chair, the minority side is prepared to accept this amendment.
Will the gentleman yield?
Mr. Chairman, the minority is prepared to accept this amendment.
Will the gentleman yield?
Mr. Chairman, the minority is prepared to support this amendment.
Mr. Chairman, I have an amendment at the desk.
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,
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.
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. Chair, I demand a recorded vote.