2.1 Federal Power Act
The Federal Power Act, along with its amendments, specifies provisions for the development of navigable waterways for hydroelectric power. It establishes the Federal Energy Regulatory Commission (FERC) for the purpose of issuing licenses for non-federal hydroelectric development projects. The Act includes provisions for shoreline management planning for licensed hydroelectric projects. Amendments in the Electric Consumers Protection Act of 1986 specifically requires FERC to give equal consideration between hydro development and energy conservation and the protection, mitigation and enhancement of environmental and recreational opportunities. Relevant sections include the following:
Equal Consideration - Section 4(e) of the Federal Power Act requires FERC to give "equal consideration to the purposes of energy conservation, the protection, 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." This is an important provision of the act with regards to land protection because it gives FERC the authority to include conditions in the license that set aside lands for recreational development, establish buffer zones along project shoreline, protect visual and aesthetic values of project lands, or protect lands for wildlife habitat. If the project is located on or within any federal reservation this section also gives authority to the responsible federal land management agency to file terms and conditions that protect the reservation to be included in the project license. Federal reservations include National Forests, National Parks, Land and Water Conservation Fund Act lands, National Trails, Wilderness Areas, National Wildlife Refuges, and other public lands.
Comprehensive Plan - Section 10(a) of the act specifies that a hydroelectric project can be developed by an individual or corporation, or an agency of a municipality or state provided it is "best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water power, for the adequate protection, mitigation, and enhancement of fish and wildlife?and for other beneficial public uses including irrigation, flood control, water supply, and recreational and other purposes?". FERC requires project applicants to identify all applicable comprehensive plans developed by state and federal agencies and determine if the project will comply with these plans (18 CFR 4.38). See section 3.1.d for examples of these plans.
Fish and Wildlife Agencies - Section 10(j) requires FERC to solicit recommendations from the U.S. Department of Commerce's National Marine Fisheries Service, the U.S. Department of Interior's Fish and Wildlife Service and state fish and wildlife agencies. FERC has to address and then either accept or refute recommendations from these resource agencies relative to the protection, mitigation, and enhancement of fish and wildlife resources impacted by the project. Shoreline protection request adequately researched and presented by these resource agencies can be very effective at protecting lands. But such request must specify the resources that would be protected by such actions, for example an adequate buffer to protect a heron rookery, bald eagle nesting site, or wetland. If on-site protection is not practical, such as when reservoir level fluctuations degrade or eliminate wetlands, protection of off-site wetlands is a justifiable request. The scope and magnitude of agency recommendations relative to shoreline protection can vary from extremely well thought out and documented to being non-existent, superficial, poorly executed and unlikely to be incorporated by FERC. Section 10(j) is a potent tool, but only if properly executed. It can not be over-emphasized the need to work closely with natural resource agencies and have them make similar land protection requests, including providing them with supporting evidence for specific parcels to be protected relative to fish and wildlife resources. If they are passive, then do the work for them.
- Work closely with natural resource agencies in developing land protection requests.
Compliance and Enforcement - Section 31(a) of the act requires FERC to investigate and monitor compliance with the license terms and conditions. It gives FERC the authority to assess civil penalties or revoke the license for noncompliance. This is an important provision for land protection as it requires FERC to ensure that shoreline management plans, wildlife management plans, and recreation plans required by the license are being followed. But remember that once licenses are issued, the public spotlight is removed. FERC?s record in enforcing compliance of license required shoreline protection has been variable. FERC frequently grants extensions of time to implement license requirements or accepts requested amendments from the project owners. Watchdogging FERC and due diligence in monitoring Licensee requests to alter land protection requirements in its license are highly recommended.