[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
IMPROVING THE HYDROPOWER LICENSING PROCESS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON ENERGY
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
JUNE 7, 2018
__________
Serial No. 115-137
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
34-508 PDF WASHINGTON : 2019
COMMITTEE ON ENERGY AND COMMERCE
GREG WALDEN, Oregon
Chairman
JOE BARTON, Texas FRANK PALLONE, Jr., New Jersey
Vice Chairman Ranking Member
FRED UPTON, Michigan BOBBY L. RUSH, Illinois
JOHN SHIMKUS, Illinois ANNA G. ESHOO, California
MICHAEL C. BURGESS, Texas ELIOT L. ENGEL, New York
MARSHA BLACKBURN, Tennessee GENE GREEN, Texas
STEVE SCALISE, Louisiana DIANA DeGETTE, Colorado
ROBERT E. LATTA, Ohio MICHAEL F. DOYLE, Pennsylvania
CATHY McMORRIS RODGERS, Washington JANICE D. SCHAKOWSKY, Illinois
GREGG HARPER, Mississippi G.K. BUTTERFIELD, North Carolina
LEONARD LANCE, New Jersey DORIS O. MATSUI, California
BRETT GUTHRIE, Kentucky KATHY CASTOR, Florida
PETE OLSON, Texas JOHN P. SARBANES, Maryland
DAVID B. McKINLEY, West Virginia JERRY McNERNEY, California
ADAM KINZINGER, Illinois PETER WELCH, Vermont
H. MORGAN GRIFFITH, Virginia BEN RAY LUJAN, New Mexico
GUS M. BILIRAKIS, Florida PAUL TONKO, New York
BILL JOHNSON, Ohio YVETTE D. CLARKE, New York
BILLY LONG, Missouri DAVID LOEBSACK, Iowa
LARRY BUCSHON, Indiana KURT SCHRADER, Oregon
BILL FLORES, Texas JOSEPH P. KENNEDY, III,
SUSAN W. BROOKS, Indiana Massachusetts
MARKWAYNE MULLIN, Oklahoma TONY CARDENAS, California
RICHARD HUDSON, North Carolina RAUL RUIZ, California
CHRIS COLLINS, New York SCOTT H. PETERS, California
KEVIN CRAMER, North Dakota DEBBIE DINGELL, Michigan
TIM WALBERG, Michigan
MIMI WALTERS, California
RYAN A. COSTELLO, Pennsylvania
EARL L. ``BUDDY'' CARTER, Georgia
JEFF DUNCAN, South Carolina
Subcommittee on Energy
FRED UPTON, Michigan
Chairman
PETE OLSON, Texas BOBBY L. RUSH, Illinois
Vice Chairman Ranking Member
JOE BARTON, Texas JERRY McNERNEY, California
JOHN SHIMKUS, Illinois SCOTT H. PETERS, California
ROBERT E. LATTA, Ohio GENE GREEN, Texas
GREGG HARPER, Mississippi MICHAEL F. DOYLE, Pennsylvania
DAVID B. McKINLEY, West Virginia KATHY CASTOR, Florida
ADAM KINZINGER, Illinois JOHN P. SARBANES, Maryland
H. MORGAN GRIFFITH, Virginia PETER WELCH, Vermont
BILL JOHNSON, Ohio PAUL TONKO, New York
BILLY LONG, Missouri DAVID LOEBSACK, Iowa
LARRY BUCSHON, Indiana KURT SCHRADER, Oregon
BILL FLORES, Texas JOSEPH P. KENNEDY, III,
MARKWAYNE MULLIN, Oklahoma Massachusetts
RICHARD HUDSON, North Carolina G.K. BUTTERFIELD, North Carolina
KEVIN CRAMER, North Dakota FRANK PALLONE, Jr., New Jersey (ex
TIM WALBERG, Michigan officio)
JEFF DUNCAN, South Carolina
GREG WALDEN, Oregon (ex officio)
(ii)
C O N T E N T S
----------
Page
Hon. Fred Upton, a Representative in Congress from the State of
Michigan, opening statement.................................... 1
Prepared statement........................................... 3
Hon. Bobby L. Rush, a Representative in Congress from the State
of Illinois, opening statement................................. 4
Prepared statement........................................... 5
Hon. Greg Walden, a Representative in Congress from the State of
Oregon, opening statement...................................... 6
Prepared statement........................................... 7
Hon. Frank Pallone, Jr., a Representative in Congress from the
State of New Jersey, opening statement......................... 8
Prepared statement........................................... 10
Witnesses
Terry L. Turpin, Director, Office of Energy Projects, Federal
Energy Regulatory Commission................................... 11
Prepared statement........................................... 13
Answers to submitted questions............................... 80
Chris Oliver, Assistant Administrator for Fisheries, National
Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce......................... 20
Prepared statement........................................... 22
Answers to submitted questions \1\........................... 94
Greg Sheehan, Principal Deputy Director, U.S. Fish and Wildlife
Service, Department of the Interior............................ 33
Prepared statement........................................... 35
Answers to submitted questions............................... 97
Ryan A. Fisher, Principal Deputy Assistant Secretary of the Army
for Civil Works, Army Corps of Engineers....................... 39
Prepared statement........................................... 41
Answers to submitted questions............................... 105
John Goodin, Acting Director, Office of Wetlands, Oceans, and
Watersheds, Office of Water, Environmental Protection Agency... 44
Prepared statement........................................... 46
Answers to submitted questions............................... 109
Submitted Material
Letter of June 4, 2018, from Dennis Daugaard, Chair, and David
Ige, Vice Chair, Western Governors' Association, to Hon. Paul
Ryan, Speaker of the House of Representatives, et al.,
submitted by Mr. Upton......................................... 78
----------
\1\ Mr. Oliver did not answer submitted questions for the record
by the time of printing.
IMPROVING THE HYDROPOWER LICENSING PROCESS
----------
THURSDAY, JUNE 7, 2018
House of Representatives,
Subcommittee on Energy,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 11:04 a.m., in
room 2123, Rayburn House Office Building, Hon. Fred Upton
(chairman of the subcommittee) presiding.
Members present: Representatives Upton, Olson, Shimkus,
Latta, Kinzinger, Griffith, Johnson, Long, Bucshon, Mullin,
Walberg, Duncan, Walden (ex officio), Rush, McNerney, Peters,
Green, Doyle, Castor, Sarbanes, Welch, Tonko, Loebsack,
Kennedy, and Pallone (ex officio).
Also present: Representative McMorris Rodgers.
Staff present: Mike Bloomquist, Staff Director; Samantha
Bopp, Staff Assistant; Kelly Collins, Legislative Clerk,
Energy/Environment; Wyatt Ellertson, Professional Staff Member,
Energy/Environment; Margaret Tucker Fogarty, Staff Assistant;
Jordan Haverly, Policy Coordinator, Environment; Mary Martin,
Chief Counsel, Energy/Environment; Sarah Matthews, Press
Secretary; Drew McDowell, Executive Assistant; Brandon Mooney,
Deputy Chief Counsel, Energy; Mark Ratner, Policy Coordinator;
Annelise Rickert, Counsel, Energy; Peter Spencer, Senior
Professional Staff Member, Energy; Jason Stanek, Senior
Counsel, Energy; Austin Stonebraker, Press Assistant; Hamlin
Wade, Special Advisor for External Affairs; Everett Winnick,
Director of Information Technology; Jean Fruci, Minority Policy
Advisor, Energy and Environment; Rick Kessler, Minority Senior
Advisor and Staff Director, Energy and Environment; John
Marshall, Minority Policy Coordinator; Alexander Ratner,
Minority Policy Analyst; Andrew Souvall, Minority Director of
Communications, Member Services, and Outreach; and Catherine
Zander, Minority Environment Fellow.
OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mr. Upton. Good morning, everyone.
Good morning again to you, Mr. Shimkus. He and I sat
together for the last couple hours at our Republican
conference.
Today, the Energy Subcommittee--you'll read about it,
right--the Energy Subcommittee is going to examine the benefits
of our Nation's hydroelectric resources and how we can improve
upon the existing framework to more efficiently license and
relicense non-Federal hydropower projects in the U.S. and to
help us better understand this complex and multi-agency
process, we are joined by a great panel of experts representing
five agencies that play a significant role in the hydro
licensing process. So thank you for being here and appreciate
you submitting your testimony to us in advance.
Although the Nation's first hydroelectric plant began
generating electricity back in 1882 in Wisconsin, we have been
served by a dependable fleet of hydropower dams, many of which
have been in operation since the early 1900s.
Nearly 8 percent of the country's electricity is now
produced by renewable hydro and that number has the potential
to substantially grow in coming years as the demand for clean
energy increases and as advancements in hydro technologies
still occur.
While the energy industry is in the midst of a debate
regarding whether coal and nuclear resources should be
compensated for their baseload characteristics, it is easy to
overlook that hydro produces a significant amount of clean,
zero emissions baseload electricity. Hydro also contributes to
the flexible and reliable operations of the electric grid by
providing more than just energy and capacity.
Hydro facilities provide many ancillary services. In fact,
the old-fashioned pumped-storage infrastructure which has been
contributing to the grid since the 1920s closely resembles
today's newer energy storage and battery technologies.
Setting aside the many benefits that affordable hydro
provides to our economy and national security, the focus of
today's hearing relates to how non-Federal hydro projects are
licensed and how that process can in fact be improved.
As the lead agency for licensing, FERC is authorized by the
Federal Power Act to review proposals for the construction of
hydro facilities as well as to oversee the operations and
safety of hydro facilities over their license term, ranging
from 30 to 50 years.
However, the licensing of new hydro and the relicensing of
existing facilities requires extensive consultation with a
number of resources and agencies at the Federal, State, and
local levels.
Those agencies, including NOAA, the Corps of Engineers,
EPA, the U.S. Fish and Wildlife, plays an important role in
lending their expertise and evaluating a range of impacts that
a hydro project may have on the natural environment.
Their collective analysis assists FERC in the preparation
of an EIS and the input of these cooperating agencies can
influence the mandatory conditions that a hydro developer must
agree to follow in order to receive a license approval from
FERC.
Unfortunately, we have heard of a number of instances where
resource agencies are failing to cooperate with FERC by
withholding necessary authorizations to allow the project to
proceed.
And while a typical relicensing action ought to take about
5 years, it is not uncommon for the project to stretch much
longer. Just last month, FERC Chairman McIntyre provided us
with a long list of hydro projects that are waiting for other
agencies to act before FERC can even issue a decision.
Too frequently, FERC cannot take final action because other
agencies such as the National Marine Fisheries Service or the
Fish and Wildlife, et cetera, have not completed the
consultation pursuant to the Endangered Species Act.
In other instances, FERC has been waiting years for a State
agency to issue a water quality certification under section 401
of the Clean Water Act. In one case, FERC completed the NEPA
review in 2004, but they are still waiting on approvals from a
California State agency and Fish and Wildlife. Obviously,
that's 14 years.
We can't allow important infrastructure projects as hydro
to fall victim to an endless bureaucratic process. It's not
fair. I am optimistic that these agencies will make progress
towards improving their coordination and the timely processing
of environmental reviews.
Notably, the agencies appearing today, along with many
others, signed an MOU a couple months ago to seek a cooperative
relationship and expedite authorizations of major
infrastructure projects, such as hydro facilities.
So we welcome your attendance today.
[The prepared statement of Mr. Upton follows:]
Prepared statement of Hon. Fred Upton
Good morning. Today, the Energy Subcommittee will examine
the benefits of our Nation's hydroelectric resources and how we
can improve upon the existing framework to more efficiently
license and relicense non-Federal hydropower projects in the
United States. To help us better understand this complex and
multiagency process, we are joined by a panel of experts
representing five agencies that play a significant role in the
hydro licensing process. Thank you for being here to testify
this morning.
Although the Nation's first hydroelectric plant began
generating electricity in 1882 in Wisconsin, next door in
Michigan we have been served by a dependable fleet of
hydropower dams--many of which have been in operation since the
early 1900s. Nearly 8 percent of the country's electricity is
now produced by renewable hydropower. That number has the
potential to substantially grow in coming years as the demand
for clean energy increases, and as advancements in hydro
technologies occur.
While the energy industry is in the midst of a debate
regarding whether coal and nuclear resources should be
compensated for their baseload characteristics, it is easy to
overlook that hydropower produces a significant amount of
clean, zero emissions, baseload electricity. Hydropower also
contributes to the flexible and reliable operations of the
electric grid by providing more than just energy and capacity.
Hydropower facilities provide many ancillary services. In fact,
the oldfashioned pumped-storage infrastructure which has been
contributing to the grid since the 1920s closely resembles
today's newer energy storage and battery technologies.
Setting aside the many benefits that affordable hydropower
provides to our economy and national security, the focus of
today's hearing relates to how non- Federal hydropower projects
are licensed and how this process can be improved. As the lead
agency for licensing, the Federal Energy Regulatory Commission
is authorized by the Federal Power Act to review proposals for
the construction of hydropower facilities, as well as to
oversee the operations and safety of hydro facilities over
their license term, ranging from 30 to 50 years.
However, the licensing of new hydropower facilities and the
relicensing of existing facilities requires extensive
consultation with various resources agencies at the Federal,
State, and local levels. Those agencies, including NOAA, the
Army Corps of Engineers, EPA, and the U.S. Fish and Wildlife
Service play an important role in lending their expertise and
evaluating a range of impacts that a hydro project may have on
the natural environment. Their collective analysis assists FERC
in the preparation of an Environmental Impact Statement (or
``EIS''), and the input of these ``cooperating agencies'' can
influence the mandatory conditions that a hydro developer must
agree to follow in order to receive a license approval from
FERC.
Unfortunately, we have heard of some instances and examples
where resource agencies are failing to cooperate with FERC by
withholding necessary authorizations to allow the project to
proceed. While a typical relicensing action should take
approximately 5 years according to FERC, it is not uncommon for
the process to stretch much longer. Just last month, FERC
Chairman McIntyre provided me with a long list of hydro
projects that are waiting for other agencies to act before FERC
can issue a decision.
Too frequently, FERC cannot take final action because other
agencies such as the National Marine Fisheries Service or the
Fish and Wildlife Service have not completed its consultation
pursuant to the Endangered Species Act. In other instances,
FERC has been waiting years for a State agency to issue a water
quality certification under section 401 of the Clean Water Act.
In one case, FERC completed its NEPA review in 2004, but is
still waiting on approvals from a California State agency and
Fish and Wildlife. That's 14 years!
We cannot allow important infrastructure such as hydropower
projects to fall victim to an endless bureaucratic process--
it's simply not fair. I am optimistic, however, that these
agencies will make progress towards improving their
coordination and the timely processing of environmental
reviews. Notably, the agencies appearing today, along with many
others, signed an MOU in April seeking to establish a
``cooperative relationship'' and expedite authorizations of
major infrastructure projects, including hydropower facilities.
I look forward to hearing from our agency witnesses on how
together we can improve and streamline the existing licensing
process and, in turn, encourage the development of new and
needed hydropower resources in the United States.
Mr. Upton. I would ask unanimous consent to put a statement
in the record from a colleague not on our committee, Mr.
Poliquin, into the record.
Without dissent, it will be part of the record.
And I will yield 5 minutes to the ranking member of the
subcommittee, Mr. Rush.
OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Rush. I want to thank you, Mr. Chairman, for holding
today's hearing on improving the hydropower licensing process.
Although, Mr. Chairman, I must admit, this hearing would
have been even more helpful if it had occurred before this
subcommittee passed legislation making sweeping changes to that
licensing process such as H.R. 3043 last year.
Mr. Chairman, as we have previously discussed on many
occasions, hydropower is supported by Members on both sides of
the aisle.
However, the process for how we license these projects is
too important for us to get it wrong by making changes that
could lead to negative unintended consequences.
After all, Mr. Chairman, we must remember that
hydroelectric licensing can span between 30 to 50 years, and
under existing law a license holder can be granted automatic
yearly extension in perpetuity without even having to reapply.
Mr. Chairman, any potential changes to this process must
include a balanced approach that protects the rights of Federal
resource agencies, States, and Native Tribes to impose
conditions in accordance with modern environmental law.
As you may remember, Mr. Chairman, I offered such an
approach in the form of an amendment in the nature of a
substitute to H.R. 3043 on the floor of the House last
December.
While that amendment was defeated, I continue to urge the
majority to work with our side to address this issue in a
bipartisan manner if we are to truly enact legislation that can
pass both chambers of Congress and truly help improve the
licensing process.
Mr. Chairman, I remain very leery of supporting any
approach that will make FERC the lead agency over the licensing
process and would require Native Tribes, the States, and
Federal resource agencies to pay deference to FERC.
This is especially true when it comes to matters 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.
Initially, Mr. Chairman, in past testimony before this
subcommittee we have heard repeatedly that a major cause for
the licensing delays was due to the incomplete application that
do not include all the pertinent information necessary to issue
a final decision while none of the bills previously passed out
of this subcommittee have done anything to address this issue.
The minority side, Mr. Chairman, has offered an approach
that would address the critical concerns. In the amendment that
I offered during the floor debate on H.R. 3043, FERC, and the
other Federal resource agencies would be directed to convene a
negotiating rulemaking when all stakeholders include State and
local government representatives as well as Native Tribes.
These stakeholders would then collaboratively develop a
process to coordinate all necessary Federal authorizations and
to enable the Commission to make a final determination on a
license not later than 3 years of receiving a completed license
application.
Mr. Chairman, I continue to oppose any modification, and I
look forward to today's hearing, and I want to welcome all the
expert witnesses to this subcommittee hearing.
Thank you, and I yield back.
[The prepared statement of Mr. Rush follows:]
Prepared statement of Hon. Bobby L. Rush
Thank you, Mr. Chairman, for holding today's hearing on
improving the hydropower licensing process.
Although, I must admit that this hearing would have been
even more helpful if it had occurred before this subcommittee
passed legislation making sweeping changes to the licensing
process, such as HR 3043 last year.
Mr. Chairman, as we have previously discussed on many
occasions, hydropower is supported by Members on both sides of
the aisle.
However, the process for how we license these projects is
too important for us to get it wrong by making changes that
could lead to negative unintended consequences.
After all, we must remember that hydroelectric licenses can
span between 30-50 years, and under existing law a license
holder can be granted automatic yearly extensions in perpetuity
without ever even having to re-apply.
Mr. Chairman, any potential changes to this process must
include a balanced approach that protects the rights of Federal
resource agencies, States, and Native Tribes to impose
conditions in accordance with modern environmental laws.
As you may remember, Mr. Chairman, I offered such an
approach in the form of an Amendment in the Nature of a
Substitute to HR 3043 on the floor of the House last December.
While that amendment was defeated, I continue to urge the
majority to work with our side to address this issue in a
bipartisan manner if we are to truly enact legislation that can
pass both chambers of Congress and truly help improve the
licensing process.
Mr. Chairman, I remain very leery of supporting any
approach that would make FERC the lead agency over the
licensing process and would require Native Tribes, the States,
and Federal resource agencies to pay deference to the
Commission.
This is especially true when it comes to matters 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.
Additionally, Mr. Chairman, in past testimony before this
subcommittee we have 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
final decision.
While none of the bills previously passed out of this
subcommittee have done anything to address this issue, the
minority side has offered an approach that would address this
critical concern.
In the amendment that I offered during floor debate of HR
3043, FERC and the other Federal resource agencies would be
directed to convene a negotiated rulemaking with all
stakeholders, including State and local government
representatives, as well as Native Tribes.
These stakeholders would then collaboratively develop a
process to coordinate all necessary Federal authorizations and
enable the Commission to make a final decision on a license not
later than 3 years of receiving a completed license
application.
Mr. Chairman, I will continue to oppose any modifications
to the process that would give priority of our public waterways
to industry, over and above the rights and interests of Native
Tribes, farmers, fishermen, boaters, and other stakeholders who
also rely on our public rivers and streams.
I look forward to engaging today's panelists on the best
way forward to improving this process in a fair, balanced, and
transparent manner and with that I yield back the remainder of
my time.
Mr. Upton. Gentleman yields back.
The Chair would recognize the chair of the full committee,
Mr. Walden, from the good State of Oregon.
OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. Walden. Thank you, Mr. Upton. Good morning.
And today's hearing will focus on ways to improve the
hydropower licensing process. Hydropower, of course, is the
Nation's largest source of clean, domestic, renewable energy.
Unfortunately, as those of us certainly in the West know,
the lengthy and unpredictable project licensing process
disadvantages hydropower when compared to fossil fuel
generation and other renewables, such as wind and solar.
So this committee has defined and identified several ways
to improve the permitting processes for hydropower licensing by
modernizing the Federal Power Act.
At the same time, the administration has taken promising
steps with executive orders to bring greater discipline and
accountability in the environmental review and permitting
processes.
Now, while these steps help, there is, clearly, more work
that needs to be done. That's why we are here today.
We need to make this process more predictable, more
transparent, and more efficient.
The purpose of today's hearing is to hear directly from
those agencies most closely involved in the hydropower
permitting process, to see what specific measures have been
taken to increase the efficiency and effectiveness of your
respective reviews.
Today's hearing will also allow for a deeper discussion
about the benefits of real statutory reforms, such as those
that have already passed through this committee and, by the
way, through the House floor.
Given what's at stake, I'm optimistic our colleagues in the
Senate will eventually be able to pass companion legislation so
we can finally get these bills across the finish line.
And, you know, hydropower is, clearly, near and dear to my
heart. My district has a lot of the major main stem dams along
the Columbia River and certainly up the Snake River as well.
Our district is impacted in Oregon and, of course, Washington
and Idaho.
In fact, hydropower, mainly from projects of the Federal
Government, is often able to supply up to two-thirds of our
electricity generation, and I would argue it's also carbon
free.
The challenges of utilizing our hydro resources do not end
with permitting and licensing, however. Despite decades of
thorough science-backed analysis by many of these agencies here
with us today, litigation and biology from the bench negatively
impacts river operations and our ratepayers.
In fact, this year, the Army Corps and Bonneville Power
Administration are spilling water instead of generating power
at full capacity.
This all comes at a cost--nearly $40 million in increased
rates to Pacific Northwest electric ratepayers this year alone,
according to the Federal agencies that are involved.
And it is not just the rates. BPA invested nearly $275
million last year in fish projects across the Northwest. This
spill, supposedly in the name of fish, undercuts that revenue
stream as well.
Now, the House recently passed H.R. 3144. This was
legislation led by Cathy McMorris Rodgers, Kurt Schrader, and
myself to provide certainty for operations of the hydro system
and to protect ratepayers.
So I'm hopeful our colleagues in the Senate will move this
legislation forward as well to help tackle the challenges of
operating the hydro system.
There is no question that hydropower licensing is complex.
There are lots of equities involved. It requires dozens of
Federal, State, and local agencies to coordinate and balance a
wide range of issues and competing interests, such as
electricity production, flood control, Tribal issues, water
navigation, and fish and wildlife issues.
Recognizing this complexity, I look forward to hearing from
our agency witnesses today--and, again, we thank you for being
here--so we can gather together some suggestions on ways to
improve the process--the licensing process.
Not to diminish the environmental issues, not to diminish
any of that, but just how do we streamline this--how do we make
it more efficient--how do we get the answer sooner?
So I thank you for being here.
Mr. Chairman, I yield back the balance of my time.
[The prepared statement of Mr. Walden follows:]
Prepared statement of Hon. Greg Walden
Good morning. Today's hearing will focus on ways to improve
the hydropower licensing process. Hydropower is the Nation's
largest source of clean, domestic, renewable electricity.
Unfortunately, the lengthy and unpredictable project licensing
process disadvantages hydropower when compared to fossil fuel
generation and other renewables, like wind and solar.
This committee has identified several ways to improve the
permitting process for hydropower licensing by modernizing the
Federal Power Act. At the same time, the administration has
taken promising steps with Executive Orders to bring greater
discipline and accountability in the environmental review and
permitting process. While there's no silver bullet, there's
plenty of room to improve coordination, and to make the process
more predictable and transparent.
The purpose of today's hearing is to hear directly from
those agencies most closely involved in the hydropower
permitting process, to see what specific measures have been
taken to increase the efficiency and effectiveness of their
respective reviews. Today's hearing will also allow for a
deeper discussion about the benefits of real, statutory
reforms, such as those that have already passed through this
committee and the House Floor. Given what's at stake, I'm
optimistic that our colleagues in the Senate will eventually be
able to pass companion legislation, so that we can finally get
these bills across the finish line.
Hydropower is near and dear to my heart because it supplies
the majority of the power that we consume in the Pacific
Northwest. In fact, in my home State of Oregon, hydropower,
mainly from Federal projects, is often able to supply up to
two-thirds of our electricity generation.
The challenges of utilizing our hydro resources do not end
with permitting and licensing, however. Despite decades of
thorough, science backed analysis by many of the agencies here
with us today, litigation and biology from the judicial bench
negatively impacts river operations and ratepayers.
This year, the Army Corps and Bonneville Power
Administration are spilling water over dams instead of
generating power at full capacity. This all comes at a cost.
Nearly $40 million in increased rates to Pacific Northwest
ratepayers this year, according to the Federal agencies. And it
is not just rates. BPA invested nearly $275 million last year
in fish projects across the Pacific Northwest. This spill--
supposedly in the name of fish--undercuts that revenue stream
as well.
The House recently passed H.R. 3144--legislation Cathy
McMorris Rodgers, Kurt Schrader, and myself worked on to
provide certainty for operations of the hydro system and
protect ratepayers. I'm hopeful our colleagues in the Senate
will move this legislation forward as well to help tackle the
challenges of operating this hydro system.
There is no question that hydropower licensing is complex--
it requires dozens of Federal, State, and local agencies to
coordinate and balance a wide range of issues and competing
interests, such as electricity production, flood control, water
navigation, fish, and wildlife issues. Recognizing this
complexity, I look forward to hearing from our agency
witnesses, to gather suggestions on ways to improve the
licensing process.
Thank you, I yield back the balance of my time.
Mr. Upton. The Chair yields back, and I yield now for an
opening statement of the ranking member of the full committee,
Mr. Pallone from New Jersey, 5 minutes.
OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman.
I am glad that we are holding a hydropower hearing with the
Federal resource agencies. This is something we have been
requesting ever since the committee began to consider changes
to the hydropower licensing provisions of the Federal Power
Act.
And while we should have heard from these agencies before
we moved legislation that fundamentally alters the licensing
regime, I do appreciate the chairman convening this hearing
today.
And I hope we will follow this up with a hearing with
States and Tribal governments on this issue since they are
equal and critical stakeholders in this process who should not
be ignored.
Hydropower has provided reliable baseload electricity for a
century. It's an important source of renewable energy and we
certainly want it to continue providing power safely and
reliably.
At the same time, we can't ignore the fact that hydropower
has major impacts on water quality, water supply and
management, fish and wildlife populations, and other important
physical and cultural resources, and we also must recognize
that a lot of changes can occur over the period of a 30- to 50-
year hydro license.
Just think of the dramatic changes that are possible in
weather patterns, population, economic development, and
competition for water resources.
These issues must be analyzed and addressed during the
licensing process and this is particularly important for
facilities that were last licensed before modern environmental
laws.
This process will understandably be more complex and
contentious. We must also guarantee dam safety and structural
integrity are reviewed carefully during the process.
The damage to the Oroville Dam in California last year that
led to the evacuation of more than 180,000 people is a wake-up
call.
These dams and hydropower facilities are critical
infrastructure that require investment and physical maintenance
to ensure they are structurally sound and able to handle new
conditions created by shifting weather patterns due to climate
change.
And I realize that companies and public power entities want
faster more efficient decision making on their license
application. Dealing with multiple Federal agencies, States,
Tribal governments, and other water users is complex and time
consuming.
But the fuel these licenses are using--water--is a resource
owned by all of us. It's essential for everyone's daily life
and since licenses are granted from 30 to 50 years, the process
must take proper account of the needs of others who also
require the use of that water.
FERC has the difficult task of coordinating all
stakeholders in this process, and for the larger older
facilities this is an especially difficult task.
It is FERC's responsibility to ensure that license
applicants provide all the necessary info for the Commission
and all other participating agencies so they can make their
decisions.
An application is not complete until all participating
agencies have the information required to make a sound analysis
and support their decisions under the applicable laws, and I
continue to believe that FERC could do more to support the
information requests of other Federal agencies, States, and
Tribes in these proceedings.
Unfortunately, one of the largest sources of delay
continues to be licenses failing to provide complete
applications, making it nearly impossible for resource
agencies, States and Tribal governments to complete their work
on time.
And because the law provides for unlimited automatic 1-year
license extensions, licensees failing to provide that info can
gain the process to their advantage without jeopardizing their
license.
So we need to put an end to this if we are serious about
expediting the licensing process.
So, Mr. Chairman, we can have clean water, thriving
fisheries, healthy watersheds, good jobs, and affordable
hydropower.
But it requires cooperation, collaboration, and the
inclusion of all stakeholders in the process, returning to the
days when power was the only consideration, and issuing a
license will not ensure that our water resources are managed to
serve everyone's needs.
[The prepared statement of Mr. Pallone follows:]
Prepared statement of Hon. Frank Pallone, Jr.
I am glad that we are finally holding a hydropower hearing
with the Federal resource agencies. This is something we have
been requesting ever since the committee began to consider
changes to the hydropower licensing provisions of the Federal
Power Act. While we should have heard from these agencies
before we moved legislation that fundamentally alters the
licensing regime, I do appreciate the chairman convening this
hearing today.
I hope we will follow this up with a hearing with States
and Tribal governments on this issue, since they are equal and
critical stakeholders in this process who should not be
ignored.
Hydropower has provided reliable, baseload electricity for
a century. It is an important source of renewable energy, and
we certainly want it to continue providing power safely and
reliably.
At the same time, we cannot ignore the fact that hydropower
has major impacts on water quality, water supply management,
fish and wildlife populations, and other important physical and
cultural resources. We also must recognize that a lot of
changes can occur over the period of a 30- to 50-year hydro
license. Just think of the dramatic changes that are possible
in weather patterns, population, economic development, and
competition for water resources. These issues must be analyzed
and addressed during the licensing process. And this is
particularly important for facilities that were last licensed
before modern environmental laws. This process will
understandably be more complex and contentious.
We also must guarantee dam safety and structural integrity
are reviewed carefully during this process. The damage to the
Oroville Dam in California last year that led to the evacuation
of more than 180,000 people is a wake-up call. These dams and
hydropower facilities are critical infrastructure that require
investment and physical maintenance to ensure they are
structurally sound and able to handle new conditions created by
shifting weather patterns due to climate change.
I realize that companies and public power entities want
faster, more efficient decision-making on their license
applications. Dealing with multiple Federal agencies, States,
Tribal governments, and other water users is complex and time-
consuming. But, the fuel these licensees are using--water--is a
resource owned by all of us. It is essential for everyone's
daily life. Since licenses are granted for 30 to 50 years, the
process must take proper account of the needs of others who
also require the use of that water.
The Federal Energy Regulatory Commission has the difficult
task of coordinating all stakeholders in this process. And, for
the larger, older facilities, this is an especially difficult
task. It is FERC's responsibility to ensure that license
applicants provide all the necessary information for the
Commission and all other participating agencies so they can
make their decisions. An application is not complete until all
participating agencies have the information required to make a
sound analysis and support their decisions under the applicable
laws.
I continue to believe that FERC could do more to support
the information requests of other Federal agencies, States, and
Tribes in these proceedings.
Unfortunately, one of the largest sources of delay
continues to be licensees failing to provide complete
applications, making it nearly impossible for resource
agencies, States and Tribal governments to complete their work
on time. And, because the law provides for unlimited, automatic
1-year license extensions, licensees failing to provide that
information can game the process to their advantage without
jeopardizing their licenses. We need to put an end to this if
we are serious about expediting the licensing process.
We can have clean water, thriving fisheries, healthy
watersheds, good jobs and affordable hydropower. It requires
cooperation, collaboration and the inclusion of all
stakeholders in the process. Returning to the days when power
was the only consideration in issuing a license will not ensure
that our water resources are managed to serve everyone's needs.
Mr. Pallone. I'd like to yield the remainder of my time now
to Mr. McNerney.
Mr. McNerney. Well, I thank the ranking member. I thank the
chairman for holding this hearing.
Hydropower is an important energy resource but, like all
energy resources, it has environmental down sides. A
significant benefit, though, of hydropower is that it produces
no greenhouse gases.
So the question is do you believe that climate change is a
problem or not. If you do, let's work together to minimize the
down sides of hydropower.
As Chairman Upton discussed, hydropower licensing and
relicensing can take up to a decade of time and $50 million.
Now, that's excessive and will prevent hydropower projects from
going forward and that'll also prevent--it'll also help produce
more greenhouse gases, which we want to avoid.
So I ask my colleagues to work together on a bipartisan
basis and make progress on hydropower licensing and
relicensing, and let's not have the majority forcing through a
program that will get bogged down in partisan fighting.
Thank you. Mr. Chairman, I yield back.
Mr. Pallone. Thank you, and I yield back, Mr. Chairman.
Mr. Upton. The gentleman yields back. Thank you.
All Members' opening statements will be made part of the
record again to our panel. Thank you for your statements.
We are going to give you now each 5 minutes to summarize
your statement, at which point we will ask questions of both
sides.
Mr. Turpin, Deputy Director, Office of Energy Projects from
FERC, welcome.
STATEMENTS OF TERRY L. TURPIN, DIRECTOR, OFFICE OF ENERGY
PROJECTS, FEDERAL ENERGY REGULATORY COMMISSION; CHRIS OLIVER,
ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE
FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, DEPARTMENT OF COMMERCE; GREG SHEEHAN, PRINCIPAL
DEPUTY DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF
THE INTERIOR; RYAN A. FISHER, PRINCIPAL DEPUTY ASSISTANT
SECRETARY OF THE ARMY FOR CIVIL WORKS, ARMY CORPS OF ENGINEERS;
JOHN GOODIN, ACTING DIRECTOR, OFFICE OF WETLANDS, OCEANS, AND
WATERSHEDS, OFFICE OF WATER, ENVIRONMENTAL PROTECTION AGENCY
STATEMENT OF TERRY L. TURPIN
Mr. Turpin. Thank you, sir.
Good morning, Chairman Upton, Ranking Member Rush, and
members of the committee.
My name is Terry Turpin and I am Director of the Office of
Energy Projects at the Federal Energy Regulatory Commission.
The office is responsible for taking a lead role in carrying
out the Commission's duties and siting infrastructure.
This includes non-Federal hydropower projects, interstate
natural gas pipelines and storage, and liquefied natural gas
terminals.
Thank you for the opportunity to appear before you today to
discuss hydropower permitting and the Commission's processes
for conducting the environmental reviews under the National
Environmental Policy Act.
As a member of the Commission's staff, the views I express
in this testimony are my own and not necessarily those of the
Commission or of any individual Commissioner.
The Commission regulates over 1,600 non-Federal hydropower
facilities projects at over 2,500 dams, which represents about
half of the hydropower-generating capacity in the U.S.
Under the Federal Power Act, the Commission acts as the
lead agency for conducting the environmental review for both
relicensing actions and for original licenses.
To support these activities, FERC has established
procedures to give stakeholders the opportunity to participate
in collaborative public proceedings where all significant
issues are identified and studied.
The Commission must also ensure compliance with many
statutes including the Coastal Zone Management Act, Wild and
Scenic Rivers Act, National Historic Preservation Act,
Endangered Species Act, and the Clean Water Act.
These statutory requirements, along with those of the
Federal Power Act, give multiple agencies a significant role in
the licensing process.
The Commission has, for many years, worked closely with
other Federal and State agencies to complete reviews of
infrastructure projects in an expeditious, coordinated, and
transparent manner.
Since fiscal year 2010, the Commission has issued 180
hydropower licenses and small hydropower exemptions authorizing
approximately 13 gigawatts of generation capacity.
Earlier this year, Chairman McIntyre entered into the one
Federal decision memorandum of understanding with several
agencies.
This MOU, which calls for a goal of completing action on
all governmental decisions within 2 years, should encourage
agencies to redouble their efforts in actively participating in
the review process as well as in communicating their analysis
needs to each other and to project sponsors so that the review
process becomes more predictable, transparent, and efficient.
This concludes my remarks and I'd be happy to answer any
questions you have.
[The prepared statement of Mr. Turpin follows:]
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Mr. Upton. Well, I think you set the record for most time
yielded back in my tenure not only as full committee chair but
certainly as subcommittee chair as well.
So Mr. Oliver, Assistant Administrator for Fisheries at
NOAA, welcome to you. You don't have to beat the record, by the
way. But welcome.
STATEMENT OF CHRIS OLIVER
Mr. Oliver. Thank you, Chairman Upton and Ranking Member
Rush, for the opportunity to testify.
NOAA has authorities under the Federal Powers Act and the
Endangered Species Act to protect and restore migratory fish
and their habitats for new or relicensed FERC hydropower
facilities.
With more than a thousand hydropower dams licensed by FERC,
we are busy keeping up with the demand to upgrade the Nation's
hydropower infrastructure to meet today's environmental
standards.
Many migratory fish such as Pacific and Atlantic salmon,
need access to both ocean and fresh water habitats to complete
their life cycles. When dams block their upstream and
downstream passage, migratory fish cannot reproduce, maintain,
or grow their populations.
On the West Coast alone, 28 salmonic species are listed
under the ESA, many of which interact with hydropower
operations and we have relicensed many FERC projects that have
allowed for fish passage or other mitigation measures.
The preferred approach for streamlining ESA consultation is
to front load the ESA process into FERC's licensing steps.
Use of the prefiling process improves the quality of
hydropower applications filed with the Commission, accelerates
the environmental review process, assists participants in
assessing the resource impacts with the applicant's proposal,
and evaluating reasonable alternatives pursuant to the NEPA
requirements.
It also allows participants to reach a negotiated
settlement on all issues raised by a hydropower license
application.
As one example, on the Clackamas River project, 33 parties
signed a negotiated settlement agreement, resulting in the 2010
license renewal.
We have had discussions with other agencies about how to
better integrate these ESA consultations into the FERC
licensing process.
We are specifically working with Fish and Wildlife Service
on our ESA implementing regulations to clarify and streamline
Section 7 and Section 4 implementation.
In general, we process ESA actions through three types of
consultations--informal, formal, and programmatic. NOAA
fisheries is committed to improving the processing time for
informal consultations by 25 percent on average nationwide.
In 2017, consultations took an average of 53 days
informal--53 days from request to completion of the letter of
concurrence.
In the previous 4-year period, these took an average of 122
days, which is an overall improvement of more than 50 percent.
In addition, we are also focusing on increasing the use of
programmatic consultations and increasing tracking and
workforce management to improve time lines.
We are also exploring improvements to our formal
consultation process, which we intend to implement over the
coming year.
Building on our commitment to streamlining this process, we
are also committed to implementing the provisions of EO 13807,
the one Federal decision memorandum of understanding.
We are currently in the process of developing an
implementation plan that details specific actions we are
planning to take to ensure the success of that policy.
These include a centralized process for monitoring our
authorizations and consultations, internal process improvements
to reduce time lines, and particularly enhance coordination
with lead and other cooperating agencies. We have a strong
interest in avoiding unnecessary delays in the FERC licensing
process.
To cite a recent example of exercising flexibility in that
licensing process pursuant to major projects on the Tuolumne
River in California, in January of this year we chose not to
require fish passage in that license renewal process.
Rather, we reserved our mandatory fish passage conditioning
authority under the FPA for the La Grange and Don Pedro
projects until December of 2025. This reservation authority
aligns with the time frames and conditions in the San Joaquin
River Restoration Settlement Act and facilitates coordination
of potential future fish passage actions for both Central
Valley steel head and Central Valley's spring-run Chinook.
When FERC issues a new license, they will decide whether to
include NOAA's fish passage planning recommendations. We
believe this is an example of carefully weighing the
significant cost of fish passage against potential benefits
while considering alternative mitigation measures through the
settlement negotiation process.
In addition, we recently conducted fish passage program
review where a diverse external panel considered the
effectiveness of our fish passage activities over the past 10
years including those under our hydropower program.
We look forward to receiving the recommendations provided
by that panel on potential ways to improve our program
effectiveness and we expect to that get that reported in the
next couple of weeks.
We remain committed to increasing our efficiency and
effectiveness in this permitting process and I thank you for
the opportunity again to testify and hope to be able to answer
any questions that you have.
[The prepared statement of Mr. Oliver follows:]
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Mr. Upton. Thank you very much.
Mr. Sheehan, Principal Deputy Director of U.S. Fish and
Wildlife, welcome.
STATEMENT OF GREG SHEEHAN
Mr. Sheehan. Thank you, Chairman Upton and Ranking Member
Rush and members of the subcommittee for an opportunity to
testify today.
My name is Greg Sheehan, Principal Deputy Director of the
U.S. Fish and Wildlife Service. I do, again, want to thank you
for an opportunity to testify on the important role of
hydropower licensing process.
The administration's goal is to streamline regulatory
processes to facilitate the development of our infrastructure
for energy, transportation, and other uses.
We also recognize our responsibilities to ensure the
appropriate conservation objectives of our Nation's fish and
wildlife resources as part of review processes established
under Federal statutes and serving those resources is important
to current and future generations of Americans with their
recreational, economic, and cultural values.
The Fish and Wildlife Services' mission is working with
others to conserve, protect, and enhance fish, wildlife, and
plants and their habitats for the continuing benefit of the
American people.
In the licensing of hydroelectric dams, the working
together part of our mission includes close and timely
coordination with Federal, State, and Tribal partners as well
as engagement with project applicants and open communications
with the public.
We recognize the role and importance of the Federal Energy
Regulatory Commission as they regulate and license non-Federal
hydroelectric projects.
FERC authorizes initial construction issues, licenses for
operation, and renews licenses every 30 to 50 years. FERC's
licensing decisions are guided by the Federal Power Act.
The law directs FERC to, quote, ``give equal consideration
to the purposes of energy conservation, the protection and
mitigation of damage to and enhancement of fish and wildlife,
including related spawning grounds and habitat, the protection
of recreational opportunities and the preservation of other
aspects of environmental quality,'' end quote.
The Federal Power Act also provides the avenue through
which the Fish and Wildlife Services makes recommendations, in
some cases prescribes conditions, to conserve fish and wildlife
species and mitigate the impact of hydroelectric projects
through those species.
Hydroelectric dams span rivers and restrict natural flows.
As a result, dams impede fish passage. This includes preventing
migratory fish from reaching spawning grounds.
Dams also change water temperature and water levels, which
can adversely affect fish. Fish and Wildlife Service's role in
the hydropower project licensing process is to recommend or
prescribe solutions to restore the impact of those effects
while still recognizing the goals of our Nation's clean
renewable energy resources.
When we are successful, our recommendations can contribute
to species and habitat conservation as well as to energy
development and energy production objectives.
Although the review process provides important benefits, it
can be complex and lengthy, and there are situations where
licenses are delayed as a result.
As the Fish and Wildlife Service works to achieve our
conservation mission, we must also recognize the importance of
hydropower to the administration's energy objectives.
We are working within the Federal family to make sure we
are efficient in implementing the law. One example, as you have
heard already today, is President Trump's executive order 13807
establishing discipline and accountability in the environmental
review and permitting process for infrastructure.
This executive order includes a framework to coordinate
environmental reviews and authorizations under one lead agency.
The goal is to facilitate improved coordination and timely
decisions.
This April, the Federal agencies involved in the permitting
process including the Department of Interior signed an MOU on
one Federal decision to implement the executive order and
fulfilled the president's goal of completing permitting
decisions within 2 years.
Within the Department of Interior we also have been given
secretarial direction to streamline time lines and document
length for other types of reviews under NEPA.
We are committed to improving the review process to
facilitate environmentally sound hydropower operations through
timely, transparent, and predictable reviews.
In the review and permitting of complex hydropower
projects, delays may occur. But we recognize that there are
steps that the Government could take to be more efficient and
provide more certainty for the relicensing of hydropower
projects.
We appreciate that subcommittee's interest in further
improving the process. Thank you for the opportunity to discuss
the service's work and the hydropower licensing process.
I would be happy to address any questions that you may
have.
[The prepared statement of Mr. Sheehan follows:]
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Mr. Upton. Thank you.
Mr. Fisher, Principal Deputy Assistant Secretary of the
Army Corps of Engineers, thank you. Welcome, sir.
STATEMENT OF RYAN A. FISHER
Mr. Fisher. Thank you, Mr. Chairman, Ranking Member Rush,
distinguished members of the subcommittee.
Thank you for the opportunity to testify before you today
to discuss the U.S. Army Corps of Engineers' hydropower
program.
Like the chairman said, my name is Ryan Fisher. I am the
Principal Deputy Assistant Secretary of the Army for Civil
Works. Army Corps is the Nation's largest producer of
hydropower.
In total, the Corps owns 715 dams and has constructed
hydropower projects at 75 of those, generate 353 generating
units at a total capacity of over 21,000 megawatts.
In addition, non-Federal interests have constructed
hydropower projects at 68 other Corps-owned dams. These
projects contain 199 generating units and produce a total
capacity of 2,500 megawatts.
In 2014, the Department of Energy released its non-powered
dam resource assessment which listed the top 100 dams who were
most likely to have the potential for commercial hydropower.
Of those 100 dams, 81 are owned by the Corps of Engineers.
In fiscal years 2016 and 2017, the Corps supported the
development of non-Federal hydropower at 36 of its dams.
In addition to these active projects, there are
approximately another 60 planned hydropower projects. In 2016,
the Corps and FERC renewed their MOU on non-Federal hydropower
project development.
In addition to renewing mutual commitment to early
involvement and proactive participation, the two agencies laid
out a synchronized two-phased environmental review process to
be used during non-Federal hydropower development at Corps-
owned dams.
This MOU reflects the commitment by both agencies to work
together to facilitate non-Federal development of hydropower
projects at Corps-owned dams when it is appropriate.
Section 14 of the Rivers and Harbors Act of 1899--it's
often referred to as Section 408--provides the--as amended,
provides the basis for the Corps review of requests by non-
Federal interests to construct a hydropower project at a Corps-
owned dam.
Section 408 provides the secretary of the Army the
authority upon the recommendation of the chief of engineers to
grant permission to other entities for the permanent or
temporary alteration or use of any Corps civil works project.
In order to address concerns we have heard from the public
about the 408 process. The Corps has already implemented a few
improvements.
For instance, Section 408 decisions are being delegated to
the lowest level possible. This has resulted in more than 95
percent of such decisions being made at the Army Corps district
level.
Additionally, the Corps has clarified when Section 408
permission is or is not required, and it's further clarified
when the requirements of Section 408 may be met by another
Corps authority or process, which has resulted in the reduction
of redundancies.
The Corps recognizes the importance of establishing a one
Federal decision striction for environmental reviews throughout
its program with the goal of it shortening environmental review
time lines will still protecting the environment, including the
need to eliminate redundance and unnecessary reviews,
concurrences, and approvals as well as the importance of firm
deadlines to complete review and make timely decisions.
As a member of the Federal Permitting Improvement Steering
Council, which facilitates the statutory responsibilities
identified in the FAST-41 Act, the Army works with fellow
council members to improve the timeliness, predictability, and
transparency of the Federal environmental review and
authorization process for covering infrastructure projects.
In addition, the Corps is working to incorporate the
objectives as FAST-41 and the Executive Order 13807, one
Federal decision, into its directives, its manuals, its
policies, and plans.
For example, where FERC is the lead agency on a proposed
Federal action that will also require a Corps approval or
permit, the Corps works closely with FERC as a cooperating
agency under NEPA.
This enables the Corps to ensure that the information
prepared by FERC is able to support a decision by the Corps
under its Section 408 authority and any other Clean Water Act
permits that might be applicable.
U.S. Army Corps of Engineers is responsible for the dams
that it owns and operates. We are consistent with the other
authorized purposes of this infrastructure and other applicable
law.
The Corps stands ready to support the needs of non-Federal
hydropower development.
This concludes my testimony, Mr. Chairman. I thank you for
being here and I look forward to answering any questions you
might have.
Thank you.
[The prepared statement of Mr. Fisher follows:]
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Mr. Upton. Thank you.
Mr. Goodin, Assistant Director for the Office of Wetlands
at EPA, welcome to you.
STATEMENT OF JOHN GOODIN
Mr. Goodin. Good morning, Chairman Upton, Ranking Member
Rush, and members of the subcommittee, I am John Goodin, Acting
Director of the Office of Wetlands, Oceans, and Watersheds at
the Office of Water at U.S. Environmental Protection Agency.
Thank you for the opportunity to be here before you today
to discuss the Clean Water Act's State certification authority
as it relates to Federal permits and licenses.
Section 401 of the Clean Water Act provides States with an
opportunity to evaluate and address aquatic resource impacts of
federally issued licenses and permits including Federal Energy
Regulatory Commission licenses for non-Federal hydroelectric
dams.
It is a direct grant of authority from Congress to the
States. The statute does not provide EPA with the authority to
review, approve, or deny State certification programs or
individual State certification decisions.
Under the statute, a State determines whether any discharge
that may result from a federally licensed or permitted activity
will comply with certain specified sections of the act
including approved State water quality standards, effluent
limitations, and monitoring requirements, as well as any other
appropriate requirements of State law.
A Federal agency cannot issue a license or a permit for an
activity that may result in a discharge to waters until the
State where the discharge would originate has granted or waived
water quality certification.
Congress sought to ensure that State certification did not
unduly delay the issuance of Federal licenses or permits by
providing that States complete their certification analysis and
decision within a reasonable period of time which shall not
exceed 1 year.
Tribes with treatment as State status also may exercise
certification authority. A State or Tribe may grant, deny,
condition, or waive their certification of a Federal license or
permit based in part on whether a discharge from the proposed
project will comply with their water quality standards.
Conditions imposed on a licensed or permitted activity
assure compliance with any other appropriate provision of State
law and must relate to water quality in one manner or another.
Such conditions must become a term of the permit or license
should it be issued. EPA has two primary roles with respect to
water quality certification.
First, the agency acts as the certifying agency where the
proposed discharge would originate in a jurisdiction without
such authority. Most typically, that is on Tribal lands lacking
treatment as State status.
Second, where EPA has determined that the proposed
discharge may affect neighboring jurisdictions, the statute
requires EPA to notify those other jurisdictions as well as the
licensing or permitting agency and the applicant and provide an
opportunity to comment on or object to the license or permit.
Administrative regulations which predate the establishment
of EPA describe these procedures.
The president's infrastructure initiative seeks to increase
the efficiency and effectiveness of environmental reviews for
new roads, dams, pipelines, and other critical infrastructure.
EPA strongly supports the initiative's emphasis on the use
of advanced coordination and thinks that such coordination can
play an important role in ensuring States and Tribes complete
their water quality certification process on a time frame
consistent with other planning and review activities.
We support the president's recommendations regarding
clarification of those provisions in the statute. Moreover, the
agency has identified a potential clarifying action in its most
recent regulatory agenda and may consider updates to its 2010
handbook to assist States and Tribes in making informed and
timely decisions.
In conclusion, I would like to thank you, Chairman Upton,
Ranking Member Rush, and members of the subcommittee for the
opportunity to testify before you today.
EPA looks forward to continuing our work with the
subcommittee to foster protection of America's waterways and
the public's health and wellbeing.
I will happy to answer questions that you may have.
[The prepared statement of Mr. Goodin follows:]
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Mr. Upton. Well, thank you all. Thank you all for being
here and, again, presenting your testimony in advance.
As we know, hydropower is a pretty big bipartisan--has a
lot of bipartisan support and not only in the House but
certainly in the Senate.
And, you know, we've seen in this committee we've passed a
number of hydro bills with strong bipartisan support, often by
voice vote not only in committee but on the House floor as well
waiting for the Senate where they are a little bit stuck but
hopefully moving soon.
One of the--one of the principles that we've moved through
the committee here is that the lead agency, since we have all
five you here, really ought to be FERC to manage where things
are and I would just welcome a comment from you as to whether
you agree that FERC ought to be the lead agency.
And Mr. Turpin, we don't need to hear from you. Even though
you don't speak for the agency, as you said, we'll presume that
you are on that point but maybe just if you'd like to concur
that FERC ought to be the lead agency on this one that we are
working together. If you could give a response, yes or no, that
would be great or expand on it if you'd like.
Mr. Oliver.
Mr. Oliver. The short answer, Mr. Chairman, is yes, our
responsibilities within fisheries are really similar to U.S.
Fish and Wildlife Service with regard to the ESA consultation
aspect of it and we are rarely, if ever, and I don't this will
change under the one Federal decision--the lead agency--we are
cooperating and are a consulting agency.
Mr. Upton. Mr. Sheehan.
Mr. Sheehan. I would concur very much with what Mr. Oliver
just shared. You know, certainly, we respect and look for that
guidance out of FERC as we move through these processes now and
I think that will continue.
Certainly, we've got other laws--Endangered Species Act and
all that both NMFS and ourselves have to address. But, you
know, I think there's always more we can do together better and
we look forward for feedback that comes from Congress itself to
help us instruct that.
Mr. Upton. Mr. Fisher.
Mr. Fisher. Mr. Chairman, I would concur as well. We have
an MOU in place with FERC--just renewed it a couple years ago,
in 2016.
We are a cooperating agency. FERC is the lead agency and it
has worked well for us as long. As the Corps continues to focus
on some internal 408--Section 408 permissions we'll be just
fine with FERC as the lead agency.
Mr. Upton. Mr. Goodin.
Mr. Goodin. Thank you for the question, and EPA supports--
--
Mr. Upton. Softball--it's a softball question.
Mr. Goodin [continuing]. Coordinated activity and would
concur that FERC is the appropriate lead.
Mr. Upton. Now, I will say that FERC provided us with a
list of 21 different pending projects. Some of them are fairly
lengthy in terms of how long they've been in the queue. I think
there's one that's been there almost, what, 18 years--I am
sorry, 14 years.
I don't know--Mr. Sheehan, you indicated that since 2010
you all have seen 180 projects, you said in your testimony,
move through the process. What's happening to some of these
that have been longer than 2, 3, 4 years that are on that list
of 21? Are there some additional steps that you're taking to
focus on those? Are they particularly troublesome? What's your
reaction on where we are as it relates to those?
Mr. Turpin.
Mr. Turpin. So those in the table we provided I think
predominantly they're relicensing actions and so I think what
we see there a lot of times are facilities that were built long
before a lot of the environmental laws and so there's a lot of
very complicated contentious issues that are involved in those.
I think if you look at the list, a large part of them are
in a very few number of States that their water quality cert
process has a large implication for the timing of it and then
some of them have areas--are in areas where there have been
additional species listed since the completed its review and so
we have to kind of go back and coordinate through that.
So we do do outreach to all the entities involved on those
to try to get updates and to try to help move the process
along. But it always comes down to the priorities of those
agencies and their resources.
Mr. Upton. So I think each of you talked about the MOU that
was--that was signed. Is there some effort to try and focus on
those that have taken already longer than 2 or 3 years in the
next couple of months?
Mr. Turpin. So on FERC's staff's part, we are setting up
the implementation plan for the one Federal decision with a
rollout later this summer and, I mean, all that's going to be
sort of across-the-board outreach to all the agencies involved
to try to get things moving not just on those specific projects
but on everything.
Mr. Upton. My time is expired.
I yield to the ranking member of the subcommittee, Mr.
Rush.
Mr. Rush. Once again, Mr. Chairman, I want to thank you.
I want to direct my question to Director Turpin, and I
mentioned in my opening statement I previously ordered an
amendment on H.R. 3043 that would direct FERC and Federal
resource agencies to convene a negotiated rulemaking within 90
days of enactment with State and local representatives, Native
Tribes, and other stakeholders.
The purpose of this collaborative approach would have been
to develop a process to coordinate all necessary Federal
authorization and enable the Commission the make a final
decision on a license within 3 years of receiving a completed
license application.
Director Turpin, in your opinion, how would this type of
approach when stakeholders are brought into the process early
on and their input is considered, how would it impact the
application process?
And once Director Turpin completes, I would like to ask all
the other panellists if they had an opinion about the impact of
this type of approach on the application process.
Mr. Turpin. Thank you, sir. That essentially is an approach
we take on a project by project basis. You know, there's a
significant amount of outreach whether it's under the
integrated license process or by the applicant on the
traditional licensing process.
That sort of outreach and negotiations are done on a case
by case basis. We last did a more sort of programmatic approach
like that I think in about the mid-2000s when we looked at the
ILP process.
And so we've gotten all the stakeholders in to sort of help
design. That was a little bit more focused on relicensing as
opposed to original licenses and I think since then we've seen
a lot more originals come in.
But by and large, the original licenses are done--
typically, the median time for those is well under 2 years--3
years to start with. I think it's somewhere around 29 months on
median.
So collaboration with all of the parties is necessary. It's
valuable in every aspect of the process and because of all the
differing authorities and responsibilities it can't work
without everybody coming to the table.
Mr. Rush. Anybody else want to respond?
I want to ask the second question here. Deputy Director
Sheehan, how is the work of the Fish and Wildlife Service
affected in instances where licensees provide incomplete
information in their application? Are there State deadlines in
place for applicants to submit all of the necessary information
and what are the enforcement mechanisms where an applicant does
not meet these deadlines?
And again, I want to ask if any of the other members have
any opinions on how incomplete applications impact overall time
lines for final decisions.
Mr. Sheehan. Thank you, Ranking Member. I think your first
question or your question revolved around time lines--what are
the requirements. We don't, at the Fish and Wildlife Service,
impose times lines.
We really are working under a framework of time lines that
FERC, who's a lead on this effort, gives us and as a
cooperating agency if we feel there is insufficient information
on a permit application, we would return back to the applicant
and try to get that as rapidly as possible.
So I think that's how we try to move through this and that
needs to be done timely on both our part and the applicant's
part if we are going to keep the overall time lines in check,
as was mentioned by Mr. Turpin.
Mr. Rush. Anyone else want to respond? Mr. Oliver.
Mr. Oliver. Yes, sir. Yes, sir.
I would say as I--when some of these projects take what
seems like an inordinately long time to get the process, it can
be a number of reasons or the combination of several factors.
But in many cases one of the most important, and this was
mentioned earlier, is to get a complete package which to
evaluate and which to consult on, and we have to have an
application--license application package that has sufficient
definition of the proposed action and in some cases the
proposed action itself is not crystal clear and it has to have
sufficient information upon which for us to do an evaluation
and in many cases we get an application and we say we are
sorry--it's not complete or it's not specific enough, and
there's a back and forth process, and there's not a specific
time line and perhaps that's part of the problem is that it can
drag out because we go back and forth and eventually--and
during that period new information can come into play.
The proposed project action can change. New species can get
listed during that time. A number of other factors can
exacerbate that time. But it is important to get that initial
complete application that very clearly describes the project
and very clearly provides us the information on which to base
it.
And so getting that back and forth that occurs to get to
that point can often take years.
Mr. Rush. I want to thank you, Mr. Chairman.
I yield back.
Mr. Griffith [presiding]. I thank the gentleman.
I now recognize the ranking member of the full committee,
the gentleman from Oregon, Mr. Walden.
Mr. Walden. The chairman of the full committee.
Mr. Griffith. Chairman of the full committee. Didn't I say
that?
Mr. Walden. The ranking member.
Mr. Griffith. Oh, sorry. Sorry about that.
Mr. Walden. Yes. Good morning. Thank you for being here
today to talk about hydro. I've got a couple of Oregon-specific
issues, and I think we flagged them for you on these as we
raise them. Obviously, we are doing a lot on hydro.
But NOAA and NMFS have a lot of other authorities in my
district and across the West. On Friday, Mr. Oliver, your
agency finalized a year overdue grazing biological opinion for
the Malheur National Forest allotments on the Malheur National
Forest and I've repeatedly heard concerns about the process and
concerns about the science used.
As an example, I understand from your regional staff that
there's no science behind using the three trampled reds as a
threshold for take forest wide. Just that it is an easy way for
the agencies to monitor, but there's no science behind this.
As you know, ranchers and others had barely a week to
review and comment on the 300-plus page document but they did
their best.
Can you explain how their concerns are being addressed in
the final biological opinion?
Mr. Oliver. I will try to address that, sir.
First of all, we wanted to be sure that we got the
biological opinion finalized by June the 1st in time for the
traditional turnout for grazing.
My understanding and--my understanding is that there are a
couple of different ways. While there may be some question
about the three trampled reds threshold for reinitiation, that
was different or altered from the original one red per year
that was at one point proposed.
So that was one way in which we hoped to address some of
the concerns or alleviate some of the concerns. There was a lot
of contention over the stubble height issue, and I am not an
expert on stubble height but we did----
Mr. Walden. You may have to become one.
Mr. Oliver. I am quickly becoming an expert on many of
these issues, sir.
Mr. Walden. Yes.
Mr. Oliver. And but the stubble height issue was presented
to us by the U.S. Forest Service--excuse me--support for a
standard less than six inches is--there's no support for a
standard less than six inches where you have habitat that is
presently degraded and where you have a ESA-listed fish
present.
Now, that may be different in areas where--such as the Blue
Mountain Forest plan where it may allow a lesser number in
certain conditions but that's only where stream conditions are
good.
And so that was one of the issues that I know was raised.
But what we did change is that the stubble height requirement
would be considered in the context only of individual--only in
individual pastures and therefore reinitiation would only occur
for violations in successive years on the same pasture and such
that we would only reinitiate consultation on the subject
pasture as opposed to the whole forest. So those were a few
ways----
Mr. Walden. Welcome to my world.
Mr. Oliver [continuing]. In which we addressed those
concerns and we certainly--the other issue was to delay turnout
until July 1st in response to two incidences of noncompliance.
But we didn't want to delay that until July 1st, which is one
of the reasons we got that finalized this Friday on June 1st.
Mr. Walden. Thank you for that.
What I would like is the science behind this determination
about the reds. Meanwhile, we have, you know, predators in the
river devouring all kinds of fish.
You have got one cow steps in one red and all of a sudden
you may--it may be OK, but two may be a reconsultation. Three
may be a disaster.
I mean, there's a lot of frustration out there, as you
know. The issue of stubble height--and I've been through a
number of briefings out in my district and parts of the
planning process there were requirements initially for stubble
heights that, frankly, probably couldn't be achieved if nobody
was within 100 miles because the grass just never grows that
high.
And I just--you know, when you--these communities are
pretty upset and when it comes to taking all the hits, applying
it all to grazing, when it comes to trying to do a balanced
effort to restore salmon and steel head fishery and they really
want a little more face to face time with NMFS and we don't
feel like we get it in eastern Oregon.
And so I appreciate the conversations and participation
around the Blue Mountain Forest plan, but we've got a few other
things at some point--and I know you're talking about hydro
today but we'll need to get together and discuss because this
is a life and death matter for the ranchers out there and a lot
goes on out in the ocean.
We are told it's just a black box--can't do anything about
it--and then we watch the fish get devoured by the sea lions
coming up the river and then the only thing you can do is shut
down cattle operations and blame it all on them and we are not
going to put up with that.
And so we'll talk more, but my time has expired. With that,
I yield back.
Mr. Griffith. I thank the chairman of the full committee,
and I respectfully request great forgiveness for prior----
Mr. Walden. Did you want to revise and extend your opening
remarks?
Mr. Griffith. I do. Yes, sir. Absolutely. Thank you very
much.
I now recognize the gentleman from California, Mr.
McNerney, for 5 minutes.
Mr. McNerney. I thank the Chair and I thank the witnesses
this morning.
Mr. Turpin, several groups filed motions with the
Commission during the relicensing in 2005 for the Oroville
facility, arguing that FERC should require a licensee to
install concrete-lined emergency spillway because the existing
structure was not adequate. The Commission did not require
this, but it was certainly a concern that needed much more
serious consideration.
The facility was not able to handle the high flow rates
encountered during the flood and we came very close to
catastrophic damage.
What adjustments have been made given this experience to
ensure that dam safety issues raised during the relicensing are
thoroughly investigated?
Mr. Turpin. So after Oroville we had gone out to both
request, of course, that DWR put up a forensics team and we
also stood up a team internally of independent consultants to
look at our own process to kind of go through the inspection
process, our review process to see is there something that we
could have done on our side that could have headed that off or
is something that we are routinely missing.
That panel is still investigating and I expect results back
sometime this summer or later this year and with that we'll
then go through our program and sort out what changes we need
to make.
Mr. McNerney. OK. Please contact my office with those
results and let's go over those together.
Mr. Turpin. Absolutely.
Mr. McNerney. Mr. Turpin, again, on another subject, any
reason why legislation would not require applicants to provide
all necessary information for FERC to make timely decisions?
Mr. Turpin. I think the question of what's the necessary
information is a bit hard to pin down in regulations. Most of
the time we do have regulations that lay out what the minimal
filing requirements are and what the sort of first shot it.
But oftentimes the project issues are so specific or are so
varied that there is a lot of back and forth data requests that
need to happen as issues are raised through the NEPA process so
that folks can get the right data.
I don't think it would be possible to lay out this sort of
a checklist of everything that anyone could ever think that
might apply.
I think to do that you end up--that one-size-fits-all ends
up with sort of an over complexity for a lot of projects that
isn't needed, and we tend to handle it with a minimum level to
get in the door and then additional data requests.
When we have applicants that provide information quickly or
that are responsive, the process works very well. When we have
applicants that don't provide it or we have agencies that don't
let folks know what information it needs to have, that tends to
gum it up a bit.
Mr. McNerney. OK. So you can work on a case by case basis
to make sure the applicants are providing the information that
you need as a licensing agency.
There's a measure in H.R. 3043 that grants FERC the
authority to set deadlines for decisions by Federal agencies.
Do you see that as necessary?
Mr. Turpin. I think in every--in every circumstance I've
seen language like that. I mean, there's a couple issues. So,
first, the Commission has routinely done that.
I mean, under the FPA and the NGA the Commission already
attempts to set schedules for agencies to kind of keep the
process moving. But none of that overrides these agencies'
independent authority for the processes under their own
statutes.
Most every language I've seen that's been enacted or been
proposed along those lines includes language that points to the
fact that these other statutes have their own independent time
lines and that this can't override that.
So you have sort of always got that out or that conflict
that's built in.
Mr. McNerney. Thank you.
Has implementation of FAST-41 been good? Has the outline
dashboard been helpful in agencies' project applicants?
Mr. Turpin. I think it has been good. There hasn't been a
lot of projects that have nominated themselves for coverage.
The ones--the majority of the ones that are on there were ones
that were open at the time that the law was passed.
The effect of that as well as the administration's interest
in infrastructure I think has really been to get agencies to
pay attention to the sort of maybe smaller activities that feed
into the large licensing process. And so we have seen a lot
more diligence and a lot more turnover in the information that
comes in and then processes moving forward.
Mr. McNerney. Given that hydropower licenses are awarded
for long periods of time, significant changes can happen due to
climate or other causes.
How does FERC account for these changes during
consideration of a license renewal--of long-term projection of
change?
Mr. Turpin. So there's a couple of ways.
First, we are basing our look at impacts on the historical
record. So, you know, as climate change, being a geologic sort
of scale event, anything that's been going on is already going
to be reflected in the projections that go forward.
Secondly, there are reopeners in cases as well as the
general approach is one of adaptive management. When you're
issuing a license that's 30 to 50 years long you have to have
processes in there that will allow for adjustments throughout
that life or else it's just not possible that to do anything
that makes a lot of sense.
Mr. McNerney. OK. Thank you, Mr. Chairman. I yield back.
Mr. Griffith. I thank the gentleman.
I now recognize the gentleman from Ohio, Mr. Latta, for 5
minutes.
Mr. Latta. Thank you, Mr. Chairman, and thanks very much to
our panel of witnesses here today. Appreciate the testimony
you're giving today.
Mr. Ryan, if I--Mr. Fisher, if I could start with a
question to you. A common complaint that I hear from private
industry is that environmental regulations are often redundant
and needless costly.
States requiring environmental reviews before issuing
Section 401 water quality certification for hydropower
developments. FERC requires a comprehensive environmental
review of proposed hydropower developments before it will issue
a license for them.
If one of these--those projects is to be built on a Corps-
owned project, the developers often must repeat the
environmental review, adding time and cost to the development
with no gain to the environment or the public interest.
In reading your testimony you referenced the need to
eliminate redundant unnecessary reviews, concurrences, and
approvals. And so the question is what is and how is the Corps
going to accomplish this goal for FERC license hydropower
projects.
Mr. Fisher. Yes. Thank you, sir. It would be--so you're,
obviously, aware of how this works. If an applicant approaches
the Army Corps, has a FERC license to be on a Corps project,
our role in this is how it's going to modify that project and
we have to give permission for an applicant to modify the
structure itself or the operation of it to allow for hydropower
while not impacting the other missions with flood control or
commercial navigation.
The Corps is doing some things. They've delegated some of
those decisions down to the district level so there's not
multiple levels of review so we can hopefully make those
decisions quicker.
We are trying to eliminate duplication within a division of
the Corps--it's the planning branch or the real estate division
to make sure that both of those parts of the Corps district are
not taking separate chops at an application so that we are
streamlining that process as well.
And we also want to do more public facing communication, I
think, with the applicant themselves. The Corps, obviously,
tracks these 408 requests and want to make sure that the
applicants are aware of where their application is in the
process at any given time. So, hopefully, those will reduce
redundancies and move things quicker from the Corps
perspective.
Mr. Latta. Let me just follow up real quick just on those
four points that you brought up there. When did you start that
process of, you know, delegating down to the district level and
also eliminating the duplication within the branches and the
public safety and also the apprising, you know, the applicants
out there. How long have you started doing that?
Mr. Fisher. It's relatively new. I think when the new
administration came in, Corps leadership recognized the focus
on infrastructure and even before the one Federal decision MOU
was signed by the relevant agencies, some of the civil works
leadership at the Army Corps started pushing--delegating
decisions down to the district level in trying to streamline
those processes so that applicants might have a smoother
process.
Mr. Latta. Let me ask you another question, if I may. You
also state in your testimony that the Corps stands ready to
support the needs of non-Federal hydropower developments. You
point to the Corps implementing improvements to the Section 408
review process for private entities to develop hydropower and
other alterations to Corps projects.
Would you go into more detail about these improvements in
the status of your implementation?
Mr. Fisher. Sure. I think some of the ones I just outlined
that's exactly what I was talking about--the delegating to
districts and eliminating the redundant reviews of the planning
branch and the real estate branch. So that's kind of what I was
referring to.
The second part of that question there, the Corps will
continue to do that. I think the one Federal decision memo
forces some of that.
We are currently doing implementation plans as are the
other agencies. Those are--those are due on the one Federal
decision MOU in July.
So we will, hopefully, see more initiatives and we'll
continue to identify--as we talk to applicants that identify
issues we will certainly consider those and the Corps will look
to continue to streamline and eliminate any redundancies.
Mr. Latta. Just out of curiosity, when you're delegating
back to the district level on a lot of different projects I
know of maybe on the hydro side but I've been involved with
Corps.
By getting it down to the district level how much time do
you think you're going to save on projects?
Mr. Fisher. So, sir, I actually--before this appointment I
worked at a district level of the Corps office and you're
talking about district, division, headquarters office, then a
potential shop, even at the assistant secretary of the Army's
office where I am now. So you're looking to take out two to
three levels.
So it could be weeks and months that we would be shortening
the time. It's project specific, obviously, but it would
certainly be shortened.
Mr. Latta. Well, thank you very much, and Mr. Chairman, my
time has expired.
Mr. Griffith. I thank the gentleman. I appreciate him
yielding back and now recognize the gentleman from
Pennsylvania, Mr. Doyle, for 5 minutes.
Mr. Doyle. Thank you, Mr. Chairman, and thank you to our
witnesses today.
Pittsburgh is home to three rivers--the Allegheny, the
Monongahela, and the Ohio, and utilizing these water resources
is incredibly important, and hydropower plays a critical role
in our renewable energy portfolio.
In Pennsylvania, there are many existing dams though that
do not have hydropower and this existing infrastructure
presents a significant opportunity to develop and increase our
hydropower capacity.
Mr. Fisher, how is the U.S. Army Corps of Engineers working
to prioritize the establishment of hydropower on existing dams
and what are some of the challenges in this process that the
Corps has identified and is addressing?
Mr. Fisher. Sir, I don't have the numbers in front of me. I
actually spent time in the--actually I was just in Pittsburgh
for the past couple of days, to be honest with you and I know
that there's a lot--I think 11 reservoirs that--Corps-owned
reservoirs that feed down in Allegheny County as well as the 20
some locks and dams that feed the system as well. All are--some
of those do have hydropower and others have pending licenses or
are in the process of looking at that.
The Corps simply wants to continue working with those
applicants on the permit process, work with FERC. FERC is the
lead agency. We want to--if somebody proposes to modify a Corps
project, our main objective there is to make sure that those
modifications are not impacting the flood control--flood risk
management operations that affect downtown Pittsburgh there at
the Point while at the same time--it's about balance, right.
It's about balancing that need for the hydropower with the
other environmental concerns and improving the economic
environment as well.
Mr. Doyle. Does the Corps intend to construct anymore
hydropower projects on your existing dams?
Mr. Fisher. We are certainly--the Corps of Engineers is a
self--there are projects federally, yes, but I think you're
mostly referring to non-Federal.
So we intend to, yes, as applicants approach us with what
is private investment and these sort of non-Federal investment
in hydropower at a Corps facility, yes, we would certainly want
to pursue that with them.
Mr. Doyle. So when a non-powered dam is developed for
hydropower, how does the Corps of Engineers work with FERC on
the licensing and are there opportunities for your agencies to
coordinate earlier in that process to increase coordination?
Mr. Fisher. The MOU we've signed with them and just
recently renewed it in 2016, yes, it's about early
coordination, most definitely, and the two-phase approach there
with the FERC license as well as the Corps 408 review. And,
certainly, a direct question was asked earlier about
insufficient information on applicant--applications so I would
certainly also encourage that the applicants--to reach out
early to your Corps district and make sure you're providing the
proper information to us as well.
Mr. Doyle. Let me ask, Mr. Fisher, you and Mr. Turpin.
Given the potential in adding hydropower to existing dams, do
you see any potential to expanding utilization of pump storage
capacity as well?
For example, in my region, we have substantial existing
locks and dams infrastructure. What potential do you see for
expanded pump storage capacity?
Mr. Fisher. Sir, that might be one I have to get back with
Corps staff and review and come back to you on. As you
mentioned, in your area there's--the Allegheny River has eight
locks and dams going up it and the Mon does as well as well as
all the ones on the Ohio River.
So there's certainly Corps--a lot of Corps infrastructure
there. The capacity might be available. I am going to have to
come back to you after I speak with Corps headquarters staff to
get you a more firm answer.
Mr. Doyle. Mr. Turpin, do you have anything to add to that?
Mr. Turpin. Yes. There's a tremendous amount of interest, I
think, on the private sector with pump storage. I know we have
a number of applications or processes underway. I don't know an
exact number and I have to get back to you. But it does--you
know, given the benefits of storing the energy it does--it does
always present good opportunities for the Nation.
Mr. Doyle. Mr. Fisher, you mentioned in your testimony that
the Corps recently made several changes to the Section 408-
related non-Federal use of Corps civil works process. What's
the time line for finalizing that draft policy?
Mr. Fisher. So as it relates to one Federal decision, I
think all of our agencies are looking at July--or July 9th, I
believe, is the deadline for that.
But overall, separate from one Federal decision, the Corps
continues to look. Anytime an applicant approaches us with an
idea, there's not necessarily a time line to get it done but we
want to consider that and see--always continually look at how
we are doing this 408 process and make continual improvement in
it at any time.
Mr. Doyle. Thanks.
Mr. Chairman, thank you. I will yield back.
Mr. Griffith. I thank the gentleman for yielding back.
I now recognize the gentleman from Virginia, myself, for 5
minutes. I am going to pick up some of or similar to what Mr.
Doyle was just asking related to pump storage.
I had a bill last year on closed loops pump storage and the
question that he asked was what is the potential. Of course,
what we are looking at is maybe using some of our old coal
mines and having the closed loop pump storage in there or some
other closed loop pump storage possibilities.
But the bill was put in to kind of streamline the
regulatory process. So I am guessing I need to know both on Mr.
Doyle's potential projects where there's already a lot of
infrastructure or on others.
What is FERC doing, or any other agency that wants to
answer, to try to streamline the regulatory process to make it
easier if you already have the infrastructure there as we do in
the mines. There's already electricity and roads and all kinds
of things.
In Mr. Doyle's case, he's already got the dams built. What
are we doing to try to streamline that regulatory process so we
can make this a reality? because there is a lot of potential.
Mr. Turpin. I would say that we approach that--well,
fundamentally we are always looking for ways within the
existing authority of the Commission to make things move along
better.
But also on a case by case basis, as we have projects,
especially for projects that don't involve a lot of issues or a
lot of infrastructure additions, they, by their very nature,
end up sort of being streamlined in the process.
So we did the 2-year pilot program a couple years ago, a
report to Congress on that, and there I think that demonstrated
that, under the existing processes, it is not a stretch at all
to get things done under 2 years and even faster when you have
got something that doesn't involve a lot of issues, that
doesn't involve a lot of new infrastructure.
Mr. Griffith. Well, and I would say, and I think I speak
for Mr. Doyle as well, that if there's something that you think
that we need to do in Congress, some additional authority or
some tweaking of some regulation, we are not going to do
anything crazy. But don't hesitate to let us know if there's
something we can do to be of assistance on that as well.
I appreciate that. Does anybody else want to comment on
that topic?
All right. Sticking with you, Mr. Turpin, I also have a
little bill in called the SHORE Act. I picked it up from Robert
Hurt. It's an issue in our area where FERC has come in and said
to the power dams, electric power companies, you have to do
this, that, and the other along property lines, and we have all
kinds of issues that we've brought up with you all.
I am just wondering what can we do to assure that people
who own the land adjacent to lakes can use that property as
they see fit and, of course, it's a big--one of the reasons
people like to have those projects is oftentimes it's a big
economic development tool for a region when you suddenly have
the recreational facility available.
So what can we--what can we do to help there?
Mr. Turpin. I think a lot of those sort of hot issues
around that topic come from the fact that it's predominantly a
land rights issue between the land owner--the adjacent land
owner and the power company that has either the flowage
easement or the deed to the--where the high water mark is.
The Commission is not involved in adjudicating those
property rights. So when a license is first issued, the
Commission looks at, within the property boundary, to balance
all of the recreation and development uses around there.
But it's really up to the applicant who owns that land to
then monitor and to be certain that those things occur within
their property.
Mr. Griffith. But here's what we've been discovering is is
that FERC is saying you have to do this, that, or the other,
and folks are--to the power company.
So the rules have changed within the last 10 years and at
least the power companies are coming in and saying, no, wait a
minute, you have to keep this clear--you have to do this, that,
or the other.
And what is interesting is de facto you are actually, maybe
not intentionally, making some property rights decisions
because--I happen to know of one lake in the region where when
the power company acquired--decades ago acquired the land
titles they did three--must have had three different people
working on it. So there's three different sets.
Some places they got the fees simple--some places they just
got an easement to flow onto the water and that changes what
can be done.
So if they own it outright, got you--they've got the whole
thing. But if there's only an easement, I would submit that in
that situation a person can build out onto their own property.
It just happens to be in the water, which works perfectly
fine if you want a boat dock. But they're being told in some
places, wait a minute, we don't want a boat dock there and it's
creating some conflicts. So I would just make you aware of
that.
I see my time is up and I yield back, and now recognize Mr.
Tonko of New York for 5 minutes.
Mr. Tonko. Thank you, Mr. Chair, and thank you to our
witnesses for testifying on an important topic here today.
I believe we all want to avoid unnecessary delays in the
hydro relicensing process and, without a doubt, complaints
about long licensing processes have persisted for some time--
for years.
It is my understanding that over a decade ago, FERC created
the integrated licensing process, or the ILP, to address many
of the same issues that we are discussing here.
So Director Turpin, can you explain the purpose and
benefits of the ILP, please?
Mr. Turpin. Sure. It was developed, I think, in looking out
for a large upcoming relicensing workload that we were
anticipating in the--in that sort of mid-2000 era.
The primary benefits of it is it gets a lot of people to
the table early. In fact, all of our processes do that. We try
to get folks to the table early.
The ILP tends to have a much more structured approach to--
and a much more driven approach for schedules to try to get all
of the stakeholders to commit to meeting a lot of, you know,
information points or consensus points in that process on a
very tight time line or a very strict time line so that
everybody has some expectation of what's going to be the full
schedule.
It also includes a dispute resolution process to be used
when there are disputes over study information needs and study
plans.
Mr. Tonko. And of those structured points, which--are there
any that are the most meritorious here?
Mr. Turpin. In all honestly, I am not as familiar with each
step of that process. So I would have to--I would have to get
back to you on that.
Mr. Tonko. OK. Thank you.
And generally, how often is it used today?
Mr. Turpin. By regulation, it was--it is the default
process. But only about a quarter of the projects use it. About
68 percent of projects come in and request to use the
traditional licensing process.
I mean, it really is up to the applicant or the licensee to
try to take their shot at saying which of the three license
processes best meets their circumstance and to work with the
stakeholders to sort that out.
My suspicion is that a large part of the reason the number
is so high right now is we've just hit a patch of a lot of
projects that don't have--the stakeholders don't see it as the
ILP schedule being advantageous.
Mr. Tonko. All right. And do any of our other witnesses
want to weigh in? Have you had any experience from your agency
perspective with the ILP and generally what's that about?
Mr. Oliver.
Mr. Oliver. If I could comment, sir. We strongly support
the process and our experience when it's being used is that, as
I understand, it's a two-phase process and that prelicensing
part of the process where we are able to interact with the
other agencies that are involved with State entities,
municipalities, Tribal interests, environmental group
interests, other stakeholder/landowner interests, when you're
able to effectively engage in that part of the process and very
clearly resolve a lot of issues and define the environmental
impacts and alternatives, that makes the second part of the
process where we actually have to do the NEPA analysis and the
Endangered Species Act consultation much more timely and smooth
process.
Mr. Tonko. Well, that's good to hear, because it seems to
me that the ILP can speed up the process because it does front
load information gathering and consultations, and enables the
State and Tribal governments and Federal resource agencies and
other interested stakeholders to start coordinating much
earlier in the process this includes putting licensees on
notice about the information and studies required in order for
agencies to review the application.
And I heard a lot of discussion and I just want to state
that it seems to me that everyone agrees that in order for the
licensing process to go smoothly it is important to determine
all the necessary information and include interested
stakeholders earlier on in the process and I think that's an
assessment that we all share.
I believe the ILP was created to address many of the same
issues we are discussing now and debated last year in Hydro
Power Policy Modernization Act.
I am sure that there are things that can be done to improve
the ILP process but we should be looking at ways to further
encourage its use rather than strictly seeking to weaken
environmental laws or severely limiting Federal, State, or
Tribal partners from completely--totally from their reviews.
Moving to another potential cause for delays to your
agencies or your counterparts in State government, to what
extent has insufficient staffing or resources caused delays in
applications or permitting reviews?
Mr. Turpin. At the Commission, there's not--I don't think
we've had a staffing problem on the hydro side. We've got a
very large upcoming relicensing workload and that should start
kicking up in 2019.
So we are looking at that. But we have the options of using
third-party contractors or direct contracts to augment staff.
So I don't think that's been a huge impact for us.
Mr. Tonko. Anyone else want to comment about the impact of
resources or staffing?
Mr. Sheehan. Yes. Thank you, Congressman.
The Fish and Wildlife Service--first of all, we need to
make sure we prioritize these right and in the right time
lines.
But the president has recognized this need and the
president's fiscal year 2019 proposed budget he's proposed an
increase for energy consultation for the very type of work that
you're describing, and if that makes its way through Congress I
think it will only broaden our ability to react timely and make
sure that we have this staffed in the way that we need.
Mr. Tonko. Well, I see I am way over my time. So, Mr.
Chair, I apologize and I yield back.
Mr. Griffith. I thank the gentleman and now recognize the
gentleman of Ohio, Mr. Johnson, for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Fisher, coming back to you, our committee has listened
to testimony from companies that express concern over the
predictability of the permitting process when adding hydropower
to a Federal dam.
For instance, we've heard that the Corps might prescribe a
different water quality standard than FERC late in the
permitting process, which can significantly affect the
financial viability of a hydro project.
Is there any way the Corps can help provide a bit more
certainty when making this determination?
Mr. Fisher. Sir, I think water quality mission isn't
necessarily the most important thing to the Corps regarding
these applications. We are mostly looking at the--how it's
modifying the dams.
So if there's a lock and dam on the Ohio River and you have
an applicant that wants to put a hydropower at the foot of that
dam, we certainly have a water quality staff that looks at
these things.
But we are mostly concerned with how they're modifying the
project. So that's where most of our concerns would lie.
Mr. Johnson. Well, the question--I mean, the problem lies
in that a different water quality standard than FERC. I mean, I
don't understand why two Federal agencies have a--would have a
different water quality standard for adding a hydro project to
an existing dam.
Mr. Fisher. Certainly. It could be how the water quality
impacts--you're probably well aware of some of those locks and
dams on the Ohio River and how old they are and the aging
infrastructure problems the Corps faces.
So we would be looking at water quality from the standpoint
of how it affects those projects.
Mr. Johnson. Doesn't FERC have that information too, I
mean, how old these are?
Mr. Fisher. Sure. It's certainly in our MOU----
Mr. Johnson. Well, can the Corps be more up front with its
standard when FERC is working through its side of the
permitting process?
Mr. Fisher. Sure.
Mr. Johnson. Can you guys communicate so that it doesn't
drag this thing out?
Mr. Fisher. Certainly. We want to, no doubt, work with FERC
under our MOU to make sure that we are providing them with all
of our information and vice versa and then make sure that the
applicant is aware of that information as well.
Mr. Johnson. OK. All right. Well, thank you.
Mr. Sheehan, as you know, it's often more difficult to
relicense existing projects on dams that predate our modern
environmental laws and regulations.
So how do you approach this issue and what can be done to
ensure that your agency's license conditions are achievable and
cost effective, given the age of some of our dam
infrastructure?
Mr. Sheehan. Thank you.
I think there's a variety of things. You mentioned aged
structures that predate many environmental laws or even
processes--things that may not even necessarily be a law, how
we address its passage and those sorts of things.
As these come to us now, we do make those evaluations. We
do look at the economics that are involved and how those may
impact the project applicant and we try to be wise and create
balance.
We've approved or worked through about 400 projects since
2000. In specific terms for fish passage, about 100 of those
required either new or some modification of a fish passage
structure, you know, to get them compliant or more up to date.
I do think we need to be wise and I think we need to make
sure at a top level that we don't let our staff get ahead of
the processes as far as requiring what--more than what needs to
be required to fulfil those project needs, and I hope we're
going to have that.
Mr. Johnson. OK. Well, continuing on, you mentioned in your
testimony that environmental reviews are conducted at the field
level where most of the coordination between other agencies and
stakeholders takes place.
What happens when there's a disagreement about a study or a
proposed licensing condition?
Mr. Sheehan. Well, first of all, we try to elevate those as
best we can and I--you know, often the applicants will elevate
those for us.
There was some discussion earlier today about some of these
California projects that are many years past their licensing
date.
Yesterday, I had a good phone call with our California
field office--the individuals working on that to try to get to
the bottom of is this something that's being caused by Fish and
Wildlife Service or other partners through this process.
I think we--you know, again, it's a cultural process. It's
a prioritization process and we've got to make sure we do it
right.
Mr. Johnson. Is it--do you think it would be helpful to
more formally outline a dispute resolution process so that the
head of the agency can get involved quicker? Would that--would
that expedite and make it more efficient?
Mr. Sheehan. Certainly, anything we can do to make upper
level management aware of these situations and try to help to
resolve those is always going to be part of the process.
Mr. Johnson. I would encourage--I would encourage the
agency to look at how to do that.
Mr. Sheehan. Thank you for that suggestion.
Mr. Johnson. I yield back, Mr. Chairman.
Mr. Griffith. I thank the gentleman for yielding back.
I now recognize the gentleman from Iowa, Mr. Loebsack, for
5 minutes.
Mr. Loebsack. Thank you, Mr. Chair, and I do want to thank
the panel for being here today.
Iowa is an interesting State in many ways, but I think we
are kind of unique in some ways for our energy and electricity
production.
Some of you may know that in Iowa close to 40 percent of
our State's electricity is coming from wind and then we've got
hydropower and we've got coal.
We've got natural gas. Got a lot of different components to
our--to our energy portfolio, and we are seeing solar grow more
and more as well. So I am very proud, obviously, of my State
and my district in particular.
But we are talking about hydropower today and this has been
a great hearing. Learning a lot about this and how we can
streamline regulations.
But in my district I do have the Mississippi River and it
starts at--those of you who don't know the geography that's OK,
but it starts at Clinton in the north of my district and then
goes all the way down to Keokuk, in fact, on the Mississippi
River--the lock and dam in Keokuk, which is right on the border
with Missouri and Illinois.
We've got a hydro plant that's produced an enormous amount
of clean energy since 1913. Currently, the plant does produce
enough energy to power about 75,000 homes and I visited that
plant in the past.
And I've also got the Red Rock Dam at my district. It's
located right there at the Army Corps Red Rock Dam and they've
got a hydroelectric project there.
I've been there at least a few times since that began, and
when that's completed the project is estimated to produce about
178,000 megawatt hours, or enough energy to power 18,000 homes.
So it will be that--much of that area if not that entire area
around Pella, Iowa.
And it's really important. It's created jobs and,
obviously, it's going to bring electricity to a whole lot of
homes. But it's taken a long time to complete.
There's no question about that. That's why what we are
talking about today I think is really important in terms of
streamlining the hydropower licensing process.
I am also very interested to know more of what we can do on
the Mississippi, much like Congressman Doyle, what he was
talking about with respect to the three rivers there in
Pennsylvania.
So I guess I want to address my concerns to you, Mr.
Fisher, primarily and if you can't answer all the questions
today, I get that. That's not a problem. We can, you know, get
some information from you in writing.
I guess--I guess I just want to ask at the outset hasn't
the technology risen to a level where the Mississippi River is
now an economically feasible option for hydropower expansion,
especially at these locks and dams?
Mr. Fisher. I probably should speculate a little bit there.
I am not an expert on the technology. But yes, I think in the
industry the technology has certainly increased. A lot of it is
still going to depend on the flow, right.
If you have a private applicant approaching the Army Corps
of Engineers, we are not going to just alter the flow rates
through the Mississippi River just to accommodate that
applicant. We still have to manage our flood risk management
mission as well as the commercial navigation that certainly
flows on the Mississippi.
But yes, I believe there are advances and we certainly want
to work with any applicant and FERC as well to drive that
economy in your area.
Mr. Loebsack. And the Corps is trying to do that at the
Rock Island Arsenal. We've got a small project there. But a
project nonetheless where they're going to be able to generate
some significant electricity, I think.
So what are some of the challenges, if you will, of adding
hydropower generation to the existing dams, particularly some
of the older ones on the upper Mississippi?
Mr. Fisher. I think that's exactly it, sir. Old ones,
right--aging infrastructure. As we're--as we are considering
hydropower on a Corps infrastructure somewhere, we've got to
make sure that we are not further damaging an already
deteriorating structure.
We want to make sure those are bolstered. We want to make
sure that whatever modifications we have to make to allow that
hydropower to exist there is also not affecting all the other
water resources there.
Mr. Loebsack. Yes. And, look, I mean, I think all of us
agree that we've got to have a huge infrastructure emphasis
here in this country, going forward. We are not going to go
forward this year, it looks like, with the president's proposal
on a trillion-or-so-dollar plant, but locks and dams upgrading
has to be a part of that.
There's no question about it. These things are from the
1930s, you know, and we've got to be able to ship more grain
down the Mississippi and out to the Panama Canal and out to our
trading partners in other parts of the world so that we are not
out competed, if you will, by Brazil and various folks.
But I just want to advocate for kind of a--something
comparable to the one-dig policy when we talked about building
roads and what have you and then making sure we don't have to
dig again to put fiber in and all the rest.
Do the same kind of thing with these locks and dams on the
Mississippi. Take that back to your folks, if you will. I think
it's a great suggestion to think about as we upgrade our locks
and dams that we take advantage of that opportunity also to add
hydropower so we don't have to worry about the old existing
systems we have now that are crumbling in many ways and trying
to deal with all that.
But when we actually do the upgrade that we need and we are
going to put a lot of money into this that we think about the
expansion and think seriously about the expansion of hydropower
as well.
So just keep that in mind, going forward, and send that
along to the folks at the Army Corps, if you would.
And thank you, Mr. Chair, and I yield back my time.
Mr. Olson [presiding]. Thank you.
Mr. Long, 5 minutes for questions.
Mr. Long. Thank you, Mr. Chairman.
And Mr. Turpin, FERC, as you know, exercises jurisdiction
over non-Federal hydropower projects and their licensing. Do
you think the current hydropower licensing process involves too
many agencies with too little accountability for making
deadlines?
Mr. Turpin. I think that's--there's such a wide variety of
expertise that's required I don't know that I could say that it
involves too many agencies.
I think that all agencies don't prioritize the work on
those the same way. I mean, for us, it's kind of easy. We are,
in this regard, a single purpose agency. This is all we do is
look at the non-Federal hydropower.
Other agencies are balancing other mandates and other
competing workloads and so I think----
Mr. Long. Is there no way to streamline that? I mean, at
one of the competing agencies?
Mr. Turpin. I don't know that--I don't know that
streamlining--I think keeping the focus on what ought to be the
priority helps tremendously.
Mr. Long. FERC is responsible for licensing projects and
issuing exemptions, but the Commission is also responsible for
ensuring compliance during the life of a project, as you know.
In your opinion, can FERC adequately monitor all non-
Federal hydroelectric plants with the resources currently
available to the Commission?
Mr. Turpin. Yes. We have about 70 folks who do the
licensing and about 40 or so that do just the compliance and
administration of a license, and then another 120 that do the
dam safety. So I think we are adequately staffed in that
regard.
Mr. Long. You do think you are? I mean, it doesn't matter
the numbers if you don't think you're--you have the adequate--
you think you have adequate numbers?
Mr. Turpin. We are consistently consulting with the
chairman on that to talk about staffing levels.
Mr. Long. OK. In your testimony you state that since 2010
FERC has issued 180 hydropower licenses and small hydropower
exemptions.
Based on the number of hydropower licenses up for renewal
on the horizon, is FERC's current pace of renewal capable of
meeting the demand?
Mr. Turpin. Well, the good thing about relicense is you
know that they are coming. So, unlike originals where it's very
hard to forecast what your workload is going to be, we've known
what the workload is going to be for a while.
And so we are continuing looking for ways to improve the
process in-house and so to bring other resources to bear. So
we've been preparing for this and I think, I mean, depending
upon what issues are raised it may be a different scenario in
each case. But I think, by and large, we've adequately
prepared.
Mr. Long. OK. Is there a way to hold agencies accountable
when deadlines proposed by the president's executive orders and
interagencies' memorandums of understanding or, I as I call
them, memorandums of misunderstanding, are not met?
Mr. Turpin. I think a large benefit of this approach is--
has been over the last year or so and is going to be that the
decentralized agencies get sort of a reset and a refresh on
maybe what ought to be priorities in certain things and that
you don't have field staff that are making decisions that
possibly the headquarters folks don't know about.
Again, at the Commission we are relatively fortunate. We
are all located in one building. I kind of get to know what's
going on by just walking down the hallway. I don't have a lot
of remote field offices.
Mr. Long. OK.
Mr. Oliver, there are a number of projects that have been
delayed between two and 12 years because the National Marine
Fishery Services has not approved licenses under the Endangered
Species Act.
Can you explain the reason for these extensive delays?
Mr. Oliver. Sir, I alluded a little bit in my earlier
testimony there can be a number of reasons for delays. They can
range from the very beginning when we get a license application
to having a complete project description--and adequately
detailed project description and it's sufficient--a sufficient
definition of the proposed action and information for us to
begin that consultation process on.
And there are instances where we've gone back and said, we
are sorry but this is insufficient for us to do our
consultation. That can result in a back and forth. There can be
changes to the project action. There can be new information
that comes to bear, scientific studies.
We are dealing with the very issue with a particular major
project right now where we have new scientific information
that's likely going to compel us to request an extension of the
NEPA deadline in order to adequately assess that information.
There--sometimes we are held up by Clean Water Act
certifications that are out of our control and there are times
when we have to prioritize.
We do over, I believe, 1,200 informal and over 300 formal
consultations a year on various infrastructure projects not
limited to hydropower, obviously. So there are resource
limitations and prioritization decisions we have to make.
And so there are a number of reasons that--and so I don't
want to make an excuse--that it's sometimes just staff workload
but there are a number of reasons or combinations of reasons
for those delays, some of which are within our control or
partially and some of which are not. But we are striving to
make improvements in that.
Mr. Long. OK. I am past my time. I do have other questions
for Mr. Goodin and Mr. Fisher but I will submit them in writing
to you all.
And with that, Mr. Chairman, I yield back.
Mr. Olson. Thank you, Mr. Long.
The Chair now calls upon the gentleman from Indiana, Dr.
Bucshon, for 5 minutes of questions.
Mr. Bucshon. Thank you, Mr. Chairman. I think, hopefully,
you all are gathering from the very diplomatic questioning that
there's a high level of frustration among the constituents that
we represent across the country and how Federal agencies not
only, honestly, in hydropower but across the permitting process
have a very high level of frustration that is projected through
their elected representatives here today.
And we've heard from developers, for example, in my
district and across--really, across the country that on
hydropower projects 10, 12 years to get--to secure a license,
and this is on projects on existing dams.
The dams are already there, but we are just trying to
convert them--10, 12 years, some of which is, you know, from a
multitude of different reasons as what has been described here
today.
You know, duplicative red tape, duplicative regulations,
duplicative agencies looking at the project not in a--you know,
in a timely fashion--red tape.
And so, I mean, honestly--I was on Transportation
Infrastructure for 4 years--I honestly believe unless Congress
sets hard deadlines that the reality is, this is probably not
going to change in any substantial way.
You know, we've been debating this for decades and in
that--in that vein I think, you know, I applaud the president's
efforts and the administration established the one Federal
decision policy by signing the Executive Order 13807. But there
still, in my view, needs to be a modernization of our existing
infrastructure and particularly in my--the area I am talking
about is in the non-powered dams and conversion of those to
hydroelectric power.
And to do that in a timely fashion, I introduced and the
House passed unanimously H.R. 2872, the Promoting Hydro Power
Development at Existing Non-powered Dams Act, which would
instruct FERC to issue a rule establishing an expedited
licensing process for qualifying facilities that will result in
a final decision on an application within 2 years or less,
which is a hard deadline.
Again, on Transportation Infrastructure we heard, you know,
on bridges, on roads that we are streamlining--we are doing
everything we can to streamline the process and it's getting
better and all that.
But, honestly, I think you have probably heard from the--
from what we are asking today the frustration is there. And,
you know, the Senate--Senator Portman and Senator McCaskill
have introduced a companion bill in the Senate and I hope the
Senate passes that soon.
So a couple questions. Mr. Turpin and Mr. Fisher, could
you--what do you think the impact might be on powering--
potentially powering over the 50,000 suitable non-powered dams
across the country might have on our power grid and also,
honestly, might have on our emissions, because this is clean
renewable energy, as well as do you have any thoughts on what
it might do in the job creation area and also in the private
investment area into our Nation's infrastructure.
Just kind of a general question, Mr. Turpin.
Mr. Turpin. Yes. That is, of course, the area with the
largest potential for expansion on any hydropower. I know DOE
did the study a number of years ago that identified a very
large number of dams that--nonpowered dams that might be
suitable.
Mr. Bucshon. Fifty thousand, the number that I have.
Mr. Turpin. So----
Mr. Bucshon. That may be a little over generous.
Mr. Turpin. Well, that's the number I was remembering too,
so----
Mr. Bucshon. It's the number I have so----
Mr. Turpin. Yes. So it's, obviously, great benefits to the
Nation in terms of what it might do to the grid. I mean,
hydropower--you know, the benefits of that have been enumerated
in a lot of different ways in terms of either black start or
just sort of renewable energy kind of component to it.
So in terms of economic and jobs it's not something I have
enough of a background in to provide info on.
Mr. Bucshon. I guess, I mean--I guess the point I am trying
to make is that what you all do in the licensing process is not
just--not just necessarily having an impact on, you know,
actually the direct impact that you might have in getting
projects completed but there is, you know, the impact of
getting the surrounding big infrastructure projects in our
country, as all of us know, whether that's on hydroelectric
power, whether that's bridges, whether that's road, the overall
economic impact of being able to produce big infrastructure
projects in a timely manner is a substantial positive
economic--has a substantial positive economic impact on our
country.
So I hope that that message comes across today that as
quickly as we can get through the process the better it is for
all of us.
Thank you. I yield back.
Mr. Olson. Thank you.
The Chair now calls upon the gentleman from Michigan, Mr.
Walberg, for 5 minutes.
Mr. Walberg. Thank you, Mr. Chairman, and thanks to the
panel for being here.
And what we've discussed so far is water over the dam, as
they say. But I would like to go to some specific questions.
That's what happens when you're so far down on the dais here.
Mr. Turpin, the Commission has spent a fair amount of time,
I understand, recently on making it faster to license very
small hydro projects. Does FERC have any plans to find ways to
speed up the licensing process for larger hydros?
Mr. Turpin. Well, I think we are always looking for ways
for improvement, as I said earlier, within the existing
authorities that we've got.
And, again, I think a large time it's not the process. It's
the issues that are there. So I think getting folks to bring
issues to the table on a specific project earlier and getting
the stakeholders to identify the information needed to meet
those needs is probably the single biggest thing that can be
done to improve time lines.
Mr. Walberg. So that would, I would assume, would involve
FERC making sure that the appropriate questions are given to
people who are submitting request for licensing, wouldn't you
say?
Mr. Turpin. Yes, that's correct. FERC and--as well as the
other agencies that have statutory authorities.
Mr. Walberg. Because that can--that can be just a major
problem, as I understand it, understanding what in the world I
am supposed to be taking care of to get that licensing
received.
So any way we can help on that, that would be super. Does
FERC have any plans to put its recently revised license term
policy into regulations or does it plan to keep that policy
solely as a policy?
Mr. Turpin. So I am not aware of any move to move--to make
that a regulation. But I don't know that it needs to be. The
Commission issued it as a policy to state that 40 would be the
default and then with accommodation could kind of, depending on
the circumstance, fluctuate the time line.
I think with that policy issued it gives certainty to the
industries to kind of what to expect, coming in.
Mr. Walberg. Wouldn't regulation, though, provide greater
certainty?
Mr. Turpin. It does, but it also then provides no ability
to adapt to unique circumstances. Whether you have multiple
facilities in the same watershed that might need to have their
terms aligned because they all have the same environmental
impact or whether there are investments that are made that
might warrant a longer term just so that folks can recoup the
costs of having made those improvements.
Mr. Walberg. OK. OK.
There's been a regular group of licensees that have
protected FERC's inclusion of certain costs related to non-FERC
agencies into their annual hydro bills from FERC.
Does FERC have any plans to clarify the rules governing
what can be included and what can't?
Mr. Turpin. Well, I don't have a very strong background in
how the annual charges are done. I do know that--I am not aware
that we have a lot of discretion as to--as to which agencies we
charge on behalf of. I think that's enumerated in the--in the
Federal Power Act.
So that's certainly something I can look into and get back
to you on.
Mr. Walberg. I appreciate that.
And then, finally, does FERC believe it would add value to
the Commission to have the legal authority to resolve disputes
between agencies during the licensing process?
Mr. Turpin. We do quite a lot of work with that now and
that's the entire intent, I think, behind the prefiling part of
the ILP and it's always beneficial to have everybody kind of
get to an agreement about what needs need to be met in studies
before any actions are taken.
Mr. Walberg. Anything that stands in the way of making that
more efficient?
Mr. Turpin. No, it's really--it really comes down to the
willingness of the participants to collaborate and reach the
consensus.
Mr. Walberg. Thank you, Mr. Chairman. I yield back.
Mr. Olson. Thank you.
The Chair now calls upon the biggest advocate for
hydropower in this committee, Mrs. McMorris Rodgers from
Washington State. You have 5 minutes, ma'am.
Mrs. McMorris Rodgers. Thank you very much. I want to thank
the committee for hosting this hearing and everyone for being
here today.
As I know many realize, but hydropower is foundational to
the Northwest economy, and I am proud to represent a district
that is largely based upon carbon-free baseload. It's
renewable. It's reliable and it's essential to our energy
supply in the Northwest.
Hydropower can be expanded nationwide by modernizing the
inefficient permitting process. According to a recent report
that was actually from the previous administration, only 3
percent of the dams actually produce hydroelectricity and we
could double hydropower in America without investing--or by
simply investing in the turbines such that are needed to
convert dams into hydroelectric dams.
On average right now it takes 18 months to license a
natural gas facility and it takes 10 years to relicense a
hydropower facility. We can do better.
I've heard from PUDs, co-ops, investor-owned utilities
across the country that they would like to upgrade non-powered
dams but are unwilling to risk spending millions of dollars on
an uncertain and bureaucratic process.
Even if we brought new dams online it would only burden the
current relicensing process. Previous testimony by FERC's
deputy associate general counsel testified that the Commission
staff already had a full workload.
It's obvious that the current process is broken. After
hearing these concerns as well as other local stories from
eastern Washington, I've introduced legislation, the Hydro
Power Policy Modernization Act of 2017 and it passed the House
earlier this Congress with 256 yes votes.
The bill seeks to improve the coordination among agencies
and provide FERC the ability to resolve interagency disputes.
My legislation also increases communication between FERC
and other agencies by requiring them to explain in writing when
deadlines may be missed. This added step of accountability is
crucial to keep an account of delays and avoid the increasing
backlog of hydropower relicensing.
Finally, we are also seeking to encourage investments at
dams outside of the relicensing window. Currently, there is a
small window to receive credit for making upgrades at a dam
that can be included in the length of a new license.
By allowing early action, newer technologies can be
installed as they come online that can increase power
generation or fish passage, or both.
Before I move on to my questions, I quickly wanted to
highlight the issues on the Colombia Snake River Dam system
with current limitation over the 2014 biological opinion.
I have introduced legislation to codify this common sense
biological opinion that the previous administration supported.
Included in the Energy and Water Appropriations bill is
language that will effectively stop the court-mandated spill
and I encourage the Senate to act on my legislation which
recently passed the House and which codifies the current Bi-op.
In the meantime, I am submitting questions for the record
to both NOAA and the Army Corps requesting an update on aspects
of the court-mandated NEPA review and the implementation of
spill.
Now to questions--Mr. Oliver and Mr. Sheehan, data from
FERC shows that a number of hydro licensings are delayed
waiting for a final EIS biological opinion from your agencies.
Some of these cases have been delayed 5, 10 years, or
longer. My office has even heard that agency staff have
suggested that applicants may need to redo studies that are now
stale or out of date--a situation caused by the agency itself.
I think we can all agree that this is not good practice and
ultimately delays beneficial mitigation measures that industry
members would otherwise enact with the issuance of a new
license.
So I urge you to undertake a comprehensive review of this
issue across your regional offices. For today, what are your
thoughts on how your agencies can address this problem, and I
would like to work with your office to have you report back
your findings as well as your recommendations and a time table
for when these bi-ops will be completed.
Mr. Sheehan. Thank you, Congresswoman.
At the Fish and Wildlife Service, I think there are a
number of things. We've talked a lot today about one Federal
decision. That forces us to get on some time lines and keep
these projects advancing forward.
Whether it's through our biological opinions or other
processes, it will force us to make sure that we are being
persistent and working with applicants or other co-operators in
these efforts.
But achieving time lines is critical and I think that your
suggestion that we devise ways to better do that is well
heeded. Again, processes being re-examined internally is where
we are at right now.
Mr. Oliver. I will echo what Mr. Sheehan said.
We have been working I believe cooperatively with all the
agencies that are on this panel over the, certainly, the last
year that I've been here to explore mechanisms to streamline
these reviews and consultations.
We've had coordination occur through our participation in
the Federal Permitting Improvement Steering Council, through
interagency working groups relative to the executive order, and
through interactions on specific projects that we are mutually
engaged on.
I think that we--NOAA and Department of Commerce--are
developing a specific implementation plan to, in addition to
the cross-agency MOU that was signed we are developing a
Commerce-level implementation plan for the Executive Order
13807, the one Federal decision.
So I am hopeful that that will go a long ways toward
getting at some of these issues that are frustrating you and
other members of this committee.
Mrs. McMorris Rodgers. OK. Well, unfortunately, I've run
out of time. I do have some further questions, and I will get
them to you in writing as well as a question to the EPA on
Clean Water Act Section 401 that I need your attention on.
I appreciate, again, the committee hosting this hearing
today and really highlighting hydropower and the potential that
it has to meeting America's important energy needs.
Mr. Olson. Thank you.
The Chair now calls upon himself for 5 hours.
[Laughter.]
You're paying attention. Five minutes.
Welcome to our five witnesses. A special welcome to the
witness who has an esteemed title back home that I will never,
ever have--a native Texan--Mr. Oliver.
Welcome. Now, as I understand it too, you went to a special
school there called Texas A&M University--the Aggies. Is that
correct?
Mr. Oliver. That's correct, sir.
Mr. Olson. So you understand that this is a compliment but
I just want to say howdy and woop.
Mr. Oliver. Gig 'em.
Mr. Olson. OK. As you all probably know, my home State of
Texas has only 23 hydropower dams. It's a minor source of power
for our State.
In fact, the State energy conservation office has basically
said our good hydropower has been developed.
And this is a question for you, Mr. Turpin, of FERC. Your
office is responsible for drafting the environmental documents
for infrastructure projects like LNG terminals and natural gas
pipelines.
Different issues in hydropower, but are there lessons
learned--you can improve upon the permitting process with
lessons learned from permits for LNG, natural gas--apply that
to hydropower? Lessons you can learn?
Mr. Turpin. Yes, absolutely. We are always trying to cross-
pollinate. I mean, that--both those infrastructure are handled
by the office I work in and so ideas can flow back and forth
freely.
I think the things we've most is that the--what benefits
the process and the time lines the most is having the early
engagement of all the stakeholders and getting everybody to the
table to identify the issues as well as to identify the
information needs and then having the applicants meet those
needs.
Mr. Olson. The question for all your comments--Mrs.
McMorris Rodgers had her bill pass the House, H.R. 3043, and an
overwhelming bipartisan vote, and the goal of this legislation
is for FERC to be the lead agency in these hydropower projects.
We want to create more predictable, transparent, and an
accountable licensing process.
And so my question for all five of you is are we hitting
the target? Is there something we are missing, lacking? Can we
modify it before the Senate acts? Because we hope they act--
there's no guarantee--but they've got the bill in their court
right now.
So anything we should look to change on the bill we passed?
Because I think it's a good bill but sometimes these things
cause unforeseen consequences. So are you guys concerned about
the text that we may modify?
Mr. Turpin. Well, I have to admit that--I know we testified
on it last April and we had a lot of technical calls with staff
on it. But I am not familiar enough with it to give you that
diagnosis today. But, certainly, we can look at it and get back
to you.
Mr. Olson. Mr. Oliver, the proud Aggie--any comments that
we should address with this bill? Suggestions?
Mr. Oliver. I have to admit, sir, I would probably have to
give the same answer as Mr. Turpin. I am not familiar enough
with the details of it to really provide you a comment. It's
something I would have took at carefully and get back to see
whether we could offer you some meaningful insights.
Mr. Oliver. Aggie never lies, always tells the truth.
Mr. Sheehan from Fish and Wildlife, any issues we should
address, you think, with the bill that's out there--that passed
the House?
Mr. Sheehan. Well, certainly, I can't formally comment on
the bill today but what I would probably say, and we heard a
little bit earlier from Mr. Turpin, is we want to make sure
that we don't tie our hands in some areas too tight so that as
we have applicants come in with unique conditions that we don't
legislate them right out of interest in a project.
So I think it's critical that flexibility exists throughout
any process that we create in Government.
Mr. Olson. Thank you.
Mr. Fisher.
Mr. Fisher. I sound like a broken record here. I, too, did
not really come prepared to address specific legislation but, I
certainly want to work with the panellists here, huddle with
Corps headquarters and to perhaps come back to you with a
fuller response.
Mr. Olson. Mr. Goodin, anything--concerns you have with,
sir?
Mr. Goodin. I would offer a similar answer. Happy to
provide any requested technical assistance there. But would
just emphasize the theme of early coordination being important.
Mr. Olson. OK. Great. Thank you, guys. We are out of our
time.
Seeing no more witnesses, I would like to thank all the
witnesses for coming today. I would like to introduce--ask
unanimous consent to introduce for the record a document called
a letter from the Western Governors' Association.
Without objection, so ordered.
[The information appears at the conclusion of the hearing.]
Mr. Olson. Pursuant to committee rules, I remind Members
that they have 10 business days to submit additional questions
for the record, and I ask that witnesses submit their response
within 10 business days upon receipt of the questions.
Without objection, this hearing is now water under the dam
and is adjourned.
[Whereupon, at 1:08 p.m., the committee was adjourned.]
[Material submitted for inclusion in the record follows:]
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[Mr. Oliver did not answer submitted questions for the
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