Through a press release issued last week, FERC has claimed jurisdiction over hydro projects on the Outer Continental Shelf (OCS), a region within three miles off the ocean shore.FERC asserted that the Federal Power Act (FPA) gives the Commission authority to regulate hydroelectric projects on the OCS while the Energy Policy Act of 2005 (EPAct) intends the Commission to be the lead authority over such projects.
Federal hydropower control was born to govern our navigable waterways. It grew up as a tool to speed electrification and develop mining and logging. But forces today are seeking to make federal hydropower law more sympathetic to wildlife preservation. More and more we discover that the commercial value of recreation and tourism on rivers and lakes rivals or exceeds that of traditional waterway interests, such as logging or barge traffic. Rivers like the Missouri and Snake place the question on the table: who is to say that campers, boaters and fishermen must defer to timber and shipping interests at FERC hearings.
The Federal Power Act (FPA) was enacted in 1935 to establish a broad and paramount federal regulatory role in the development of the nation's hydroelectric resources. The cornerstone of the FPA is 10(a), which requires the Federal Energy Regulatory Commission (FERC) to ensure that projects it licenses are "best adapted to a comprehensive plan" for the waterway. This mandate requires the Commission to equally consider all issues relevant to the public interest: energy demand and supply; conservation; protection, mitigation and enhancement of fish and wildlife resources; impacts on irrigation and water supplies; and recreation. The Commission must seek and consider the views of the states on all of these matters. Under the FPA, weighing these often conflicting considerations and determining what conditions a license should contain are the Commission's responsibility.