Only FERC may issue a license to construct, operate, and maintain a non-federal hydropower project. It is ultimately responsible for deciding whether to license a given project, and if so, under what conditions. As Congress intended in adopting the FPA in 1935, this exclusive jurisdiction helps to ensure that such projects are regulated in a consistent manner in and across our river basins. However, State and other federal agencies have significant authorities to prescribe or recommend environmental conditions,1 not preempted by the FPA.2 In practice, FERC's exclusive authority to issue a license is subject to checks and balances administered by other agencies. The community of agencies involved in licensing proceedings includes the following federal as well as state agencies.
As discussed below in Section 2.3.4, each license includes duties for project operation, such as release of a minimum flow, for the protection, mitigation, and enhancement of the affected river. We use the shorthand “environmental condition” or “environmental measure” to describe any such duty in a license.
See First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 181 (“The detailed provisions of the Act providing for the federal plan of regulation leave no room or need for conflicting state controls.”). FERC and the State where a project is located generally do not share the final decision of any issue in a licensing proceeding. Id. at 168. Under the Commerce and Supremacy Clauses of the U.S. Constitution, FPA preempts State law that otherwise would apply to the project, except where it reserves State authority over a specific issue. Id.; Sayles Hydro Association v. Maughn, 985 F.2d 451, 455 (9th Cir. 1993) (Sayles Hydro). The primary exceptions are: (A) water quality certification issued under Clean Water Act (CWA) section 401(a); (B) issuance and regulation of water rights necessary for project operation and to prevent injury to prior water rights (FPA section 27, 16 U.S.C. § 821; see Sayles Hydro, 985 F.2d at 455); (C) regulation of retail rates for electrical service (FPA § 19, 16 U.S.C. § 812); and (D) authorization for a State or municipal agency to take over any licensed project, through a condemnation proceeding and on payment of fair market value (FPA § 14(a), 16 U.S.C. § 807(a)).
The National Marine Fisheries Service1 (NMFS), an agency within National Oceanic and Atmospheric Administration of the U.S. Department of Commerce, manages, conserves, and protects living marine resources that spend at least part of their life cycle within the U.S. Exclusive Economic Zone.2 NMFS administers several statutes that bear on licensing decisions. Under the Endangered Species Act (ESA), NMFS may establish Reasonable and Prudent Alternatives or Measures to prevent project take of marine animals or diadromous fish listed under the ESA. Under the Magnuson-Stevens Fishery Conservation and Management Act,3 NMFS consults with FERC on any licensing action that may adversely affect essential fish habitat (EFH) for diadromous fish. Under FPA section 18,4 NMFS may prescribe a fishway as a mandatory license condition to protect diadromous fish. Under the Coastal Zone Management Act (CZMA),5 a license for a project in the coastal zone may issue only if the State certifies the license as consistent with the CZMA Program as approved by the U.S. Department of Commerce. Under the Fish and Wildlife Coordination Act (FWCA)6 and FPA section 10(j),7 NMFS recommends conditions to protect, mitigate damages to, and enhance fish and wildlife, including related spawning grounds and habitat. Under FPA section 10(a), NMFS recommends other conditions to ensure that a project is best adapted to comprehensive plans for developmental and non-developmental resources.
See the NMFS website, at http://www.nmfs.noaa.gov/.
See Reorganization Plan No. 4 of 1970, section 1, codified at 5 U.S.C. app. 1.
16 U.S.C. § 1801 et seq.
16 U.S.C. § 811.
16 U.S.C. § 1451 et seq.
16 U.S.C. § 661 et seq.
16 U.S.C. § 803(j).
The Department of Interior1 protects and provides access to the nation's natural and cultural resources and honors our trust responsibilities to the Indian Tribes.2 It includes several agencies that routinely participate in licensing proceedings.
Fish and Wildlife Service3 (FWS) conserves, protects, and enhances fish, wildlife, and plant resources which do not use marine habitat or otherwise are not under NMFS' jurisdiction.4 FWS may submit a mandatory fishway prescription for riverine fish under FPA section 18; adopt Reasonable and Prudent Alternatives or Measures for non-marine species listed under ESA; and may recommend other conditions under FPA sections 10(j) and 10(a) and the Fish and Wildlife Coordination Act.
National Park Service5 (NPS) is responsible for preserving unimpaired natural and cultural resources and values of the National Park System6 and implementing technical assistance provisions of the Wild and Scenic Rivers Act of 19687 and the Outdoor Recreation Act of 1963.8 The NPS is actively involved in hydropower regulation on both Park and non-park lands. In most proceedings where the NPS participates, hydropower operations do not directly affect a National Park. In this circumstance, the NPS' primary function is to advise FERC under FPA Section 10(a) and represent public interests in recreational and river conservation opportunities. In proceedings where hydropower operations directly affect a National Park,9 the NPS also advocates for protection and enhancement of park resources. Although the FPA specifically excludes the use of Section 4(e) authority if the affected reservation is a National Park or Monument, NPS has such authority for other reservations, such as National Recreation Areas.
Bureau of Land Management (BLM)10 administers federal lands not included in National Parks, National Fish and Wildlife Refuges, or National Forests.11 Under FPA section 4(e), it may prescribe mandatory conditions for any such lands set aside as a federal reservation. Under FPA section 10(a), BLM may also recommend conditions for a project's use of other lands and associated waters.
Bureau of Indian Affairs12 (BIA) seeks to enhance the quality of life, promote economic opportunity, and carry out the responsibility to protect and improve the trust assets of Indian Tribes. Under FPA section 4(e), the BIA may prescribe mandatory conditions for the protection and use of Tribal reservations occupied by a project. BIA may recommend other conditions under FPA section 10(a) to protect Indian reservations and trust assets from any adverse effects of other projects.
Bureau of Reclamation13 (BOR) constructs and operates federal dams (and related facilities) for water supply, hydropower generation, and other beneficial uses under the Reclamation Act.14 It participates in a licensing proceeding if a powerplant that a non-federal licensee proposes or owns is located at a federal dam, or if a licensed project may otherwise affect the operation of such a dam.
United States Geological Survey15 (USGS) collects and publishes scientific data on our natural biological and physical resources, including rivers. USGS operates flow gages and undertakes other research and monitoring programs that collect scientific data regarding the resources affected by licensed projects. A licensee or other agency may contract with the USGS for the collection of scientific data or for the design of a hydrologic or biologic monitoring program or fish passage facility.
See the DOI website, athttp://www.doi.gov/.
See The Act of March 3, 1849, 43 U.S.C. § 1451.
See the FWS website, athttp://www.fws.gov/.
See Reorganization Plan No. 2 of 1939, section 401, codified at 5 U.S.C.app. 1; Reorganization Plan No. 3 of 1940, section 3, codified at 5 U.S.C.app. 1.
See the NPS website, at http://www.nps.gov/.
See The National Park Service Organic Act, 16 U.S.C. § 1. The National Park System includes units in 17 different classifications besides National Parks and National Monuments, such as National Recreation Areas, National Rivers, and National Historic Sites.
See 16 U.S.C., Ch.28, §1282(b)(1). NPS is authorized to assist, advise, and cooperate with governments, landowners, or individuals to plan, protect, and manage river resources.
See 16 U.S.C., Ch.I, Subchapter LXIX, Part A, §4601-1(d) and (g). NPS provides technical assistance and promotes coordination of activities generally relating to outdoor recreation resources including rivers and associated trails.
A new hydropower project may not be built in a national park without a specific Congressional authorization (16 U.S.C. § 797a and 16 U.S.C. § 797c). Several licensed projects operate within National Parks, either because they predate that prohibition or are permitted through special legislation. Others are located upstream of National Parks but affect flows through park lands.
See the BLM website, athttp://www.blm.gov/.
See Reorganization Plan No. 3 of 1946, section 403, codified at 5 U.S.C.app. 1.
See the BIA website, at www.doi.gov/bureau-indian-affairs.html.
See the BOR website, athttp://www.usbr.gov/.
43 U.S.C. §§ 372, 373, 383, 391, 392, 411, 416, 419, 421, 431, 432, 434, 439, 461, 491, 498.
See the USGS website, at http://www.usgs.gov/.
The Forest Service,1 an agency within the U.S. Department of Agriculture, administers National Forests and Grasslands.2 Under FPA section 4(e), the Forest Service may require that a license for a project occupying lands or waters of a National Forest include those conditions necessary to assure the protection and use of the affected resources. Such conditions assure the high productivity of renewable resources as provided by the Multiple Use-Sustained Yield Act and National Forest Management Act.3 The Forest Service requires a Special Use Permit for any new project not licensed as of the enactment of ECPA.4 Under FPA section 10(a), it may recommend environmental conditions for a project that affects a National Forest without occupying it.
See the Forest Service website, at http://www.fs.fed.us.
See Organic Act of 1897, 16 U.S.C. § 475.
16 U.S.C. §§ 472a, 521b, 1600, 1611 - 1614.
16 U.S.C. 797b, 823b.
The Environmental Protection Agency1 (EPA) administers various permitting programs to protect life and property against the adverse impacts of various forms of pollution.2 It administers the Clean Water Act (CWA), under which it approves the water quality standards that a State then applies in a water quality certification for an individual project.3 Under the Clean Air Act, it has general authority to review all environmental documents issued by federal agencies, including those issued by FERC.4
See the EPA website, at http://www.epa.gov.
See Reorganization Plan No. 3 of 1970, section 1, codified at 5 U.S.C.app. 1.
See CWA § 101, 33 U.S.C. § 1251(d).
See CAA § 309, 42 U.S.C. § 7609.
The Army Corps of Engineers1 (Corps) has built and operates 75 dams and other facilities that, in addition to their primary purposes of flood control and navigation, 2 generate 25% of the nation's hydroelectricity incident to flood control and navigation. 3 These dams are not regulated by FERC, whose jurisdiction is limited to non-federal facilities. However, a license may require that a project coordinate operations with any Corps' dam located in the same watershed. Finally, the Corps may establish protocols for the flood control operations of any licensed project 4 and may require any measure necessary for commercial navigation.5
See the Corps website, at http://www.usace.army.mil/.
The Army Corps of Engineers was established by the Act of March 16, 1802, “An Act fixing the military peace establishment of the United States.” See 2 Stat. 132 (1845).
SeeFlood Control Act of 1936,ch. 688, Sec. 1, 49 Stat. 1570 (June 22, 1936).
See 33 U.S.C. § 1.
Under CWA section 401(a), states must issue a certification that a license will comply with all applicable water quality standards. FERC may not issue a license if the State denies such certification. The State also administers property rights both in land and waters occupied by a project.1 Through its public utilities commission, the State regulates the rates for any retail service of electricity generated by a project.2 Through its department of fish and game, the State may recommend conditions, under FPA sections 10(a) or (j) (see Sections 2.3.4(B) and (C)), for the protection, mitigation, and enhancement of fish and wildlife resources and recreation. The State also must assure protection of coastal waters affected by a project, in compliance with the Coastal Zone Management Act (see Section 2.3.4(G)).
Agencies are significant allies to citizen groups and other participants in licensing proceedings. They have unique technical expertise in addition to their regulatory authorities. While you have standing to intervene and otherwise participate in any licensing proceeding, you should never view yourself as an island. You should try to persuade the agencies to use their respective authorities to further the public interest in a manner that includes your interest in the affected lands and waters. FERC must provide deference to their recommendations, and it must adopt their mandatory conditions, while it has more leeway with citizen groups.
To that end, you should establish a working relationship with the assigned agency staff. You should offer to help them as appropriate, by providing needed information, supporting their additional study requests to the licensee, and even co-drafting documents. By the time settlement negotiations start, or, when the agencies are drafting their final conditions for submittal in a disputed proceeding, the agencies hopefully will consider you as their ally or at least as a trusted source of information, and they will give weight to your recommendations. Bear in mind that, by law, any agency is required to give the same opportunities to other participants whose interests may be conflicting. Your power of persuasion turns on your trustworthiness.
FPA § 27, 16 U.S.C. § 821.
FPA § 19, 16 U.S.C. § 812.