The Hydropower Regulatory Efficiency Act
A couple of weeksago, the Hydropower Regulatory Efficiency Act passed the full house with bi-partisan support. The bill was co-sponsored by Cathy McMorris-Rogers (WA,R) and Diana DeGette (CO, D) Quite an accomplishment in the current political climate! The Bill does several things, here are some highlights:
- It raises the generation threshold from 5 megawatts to 10 megawatts to qualify for a “small hydropower exemption” Exemptions mean developers only have to get one operating license but in order to do so they have to abide by all state and federal agency recommendations for fish and wildlife protection.
- It directs the Federal Energy Regulatory Commission (FERC) to implement a collaborative process to investigate the feasibility of a two year licensing process for closed loop pumped storage and adding hydropower to existing non-powered dams.
- Most importantly, the bill exempts small non-controversial conduit projects from federal licensing requirements. The vast majority of these types of projects have little or no impact on rivers. They generate hydropower by installing turbines in existing water supply pipes and irrigation ditches. While water diversions for other non-hydropower uses can affect river health, FERC does not have authority over state water laws. Developers will still need to obtain water rights and appropriate permits on the state and local level to build their projects.
Initially, our biggest concern with the bill was that hydropower developers would be tempted to mis-characterize their projects as conduits to avoid federal licensing. There is precedent for this: The city of Aspen recently tried get FERC to permit a small conventional project as a conduit to avoid independent environmental review under the National Environmental Policy Act.
The final language in the bill represents a compromise between American Rivers and the National Hydropower Association that addresses this potential loophole. The compromise includes a provision known as the “Aspen Provision” that requires developers to first file a notice with FERC, which FERC will then make a timely determination as to whether the facility meets the criteria of a small conduit and will publicly notice its decision. At this time the public will have 45 days to contest whether the project is truly a conduit and FERC will have to provide a written determination based on all evidence. If the project is then determined not to qualify, it can still get built, it just has to go through the normal licensing process.
Overall, this is a good bill that represents a comprise between American Rivers and the hydropower industry. The bill provides a regulatory incentive to develop low impact hydropower without sacrificing our nation’s rivers and streams to get it.
It distinguishes between responsible new hydropower development (e.g. projects using existing water infrastructure), which it encourages by easing the regulatory burden, and projects which are more likely to cause environmental harm (the construction of new dams), where existing regulatory structures are left in place in order to protect the environment, recreation, and other aspects of the public interest.
In May 2012, I testified in support of the Hydropower Regulatory Efficiency Act before the House Energy and Commerce Committee.