Pacific Gas & Electric Company's Pit 3, 4 and 5 hydroelectric project has been certified to receive production tax credits as a renewable energy source.
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As a result of the Energy Policy Act of 2005, the Departments of Agriculture, Commerce, and the Interior were charged with developing new rules for the hydropower licensing process. The three Departments published a set of "interim final" rules in the Federal Register on November 17, 2005. While each agency published its own set of rules, the three sets are functionally identical.
These rules create two new administrative procedures. Resource agencies within these departments routinely place conditions on hydropower dams to make them operate in ways that are less damaging to rivers, land, wildlife, and recreation. The new rules will allow any party to a licensing to challenge the underlying facts behind these conditions. They also give parties the ability to propose alternative conditions that either cost less or allow for more power generation.
The rules immediately went into effect (hence "final") but did not answer crucial questions and requested comments on those questions (hence "interim"). Although a January 2006 comment deadline was established, the Departments noted that it would be at least a year before any revisions were made to the rules. Failing to allow for notice and comment for substantive rules is illegal under the Adminstrative Procedures Act (APA). The Departments also chose to permit any project that was past the procedural applicability point in the process but for which a license had not issued to use the rules. This retroactive application is blatantly impermissible.
Related News
Hydro project in California to get production tax credits
Project:
Pit 3, 4, & 5 : P-233
 Idaho Bar Review on the Energy Policy Act
By: Rebecca Sherman Wednesday June 13, 2007
Project:
Hells Canyon : P-1971 | Spokane River : P-2545 | Klamath : P-2082
The June/July 2007 edition of The Advocate, the official publication of the Idaho State Bar, features an article on the hydropower provisions of the Energy Policy Act (EPAct). The point: "the EPAct... makes the [licensing] process more complex, litigious, and expensive." Energy Policy Act rules go to federal court
By: Rebecca Sherman Thursday August 31, 2006
On August 29, 2006, a federal court heard arguments over whether the Departments of Interior, Commerce, and Agriculture followed the law when they published the implementing rules for the hydropower provisions of the Energy Policy Act of 2006. Senate Holds Hearing on EPAct Hydro ProvisionsOn Monday, May 8th, the Senate Energy and Natural Resources Committee held a hearing to discuss the hydroelectric provisions of the Energy Policy Act of 2005. NMFS fails to require fish passage for Hells Canyon
Project:
Hells Canyon : P-1971
FERC's deadline for all interested parties in the Hells Canyon dams to file their recommendations for terms and conditions in the new license was January 26, 2006. The federal National Marine Fisheries Service - the agency charged with protecting migrating endangered salmon and steelhead - submitted a simple reservation of authority. In other words, the agency did nothing and failed in its responsibility to protect these endangered species. Coalition leaders file suit over Energy Bill hydropower rulesCoalition leaders American Rivers, American Whitewater, Friends of the River (California), Idaho Rivers United, Trout Unlimited, and Upper Chattahoochee Riverkeeper filed a complaint in federal court on December 16th challenging new federal regulations for hydropower. SCE files alternative 4(e) conditions for Borel project
By: John Seebach Monday December 19, 2005
Project:
Borel : P-382
Take Action to Oppose NEPA Loophole in the Energy BillThe House Resources Committee will consider the Domestic Energy Security Act (current energy bill) on Wednesday, April 13. This bill includes a provision that establishes a loophole under which agencies would be precluded from considering a range of environmental action alternatives under the National Environmental Policy Act (NEPA) for so-called " renewable energy sources," including hydropower dams. This provision has been approved by the House before, but was not passed by the Senate. If your Representative serves on this committee, he or she needs to hear from you on Wednesday in strong opposition to this provision of the bill. New Energy Bill Rules Weaken Environmental ProtectionsLearn more about the Coalition's work on the Energy Policy Act rulemaking. Contact: John Seebach, HRC Coordinator 202-243-7055 On Thursday, November 17th, the Departments of Interior, Commerce, and Agriculture unveiled new rules for hydropower dam licensing, as directed by the Energy Policy Act of 2005. Although the public may comment on the new rules within the next sixty days, they take effect immediately, squandering the ability for the public to have an impact on something that directly affects a public resource - rivers. Congress Passes Final Energy BillFor the past month, a conference committee comprised of ranking members from both houses of Congress have been working to reconcile differing aspects of energy legislation passed in the House and the Senate. This week, the conferees released the Conference Report, their recommendation for a final Energy Bill, which was subsequently approved by both houses of Congress. |
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