On June 7, 2018, the House Energy and Commerce Committee’s Subcommittee on Energy held a hearing to review improving interagency coordination for the timely processing of environmental reviews and authorizations for non-Federal hydropower projects.  The hearing focused on delays in the licensing process and how interagency coordination can improve licensing reviews.

As Subcommittee Chairman Upton (R-MI) noted in his opening remarks, although nuclear and coal generation have been receiving headlines due to the debates over their baseload abilities, hydropower remains a significant zero-emission baseload resource.  However, as noted during the hearing, the licensing and re-licensing of hydropower projects consists of a lengthy environmental review (five-to-ten years) led by FERC and spanning across a myriad of federal and state agencies, subjecting projects to a lack of agency coordination, duplicative agency efforts and inconsistent or conflicting agency opinions, and unreasonable regulatory uncertainty.

In addition, multiple Members of Congress asked during the hearing how they can assist agencies in unlocking hydropower’s growth potential. As noted by Chairman Upton, hydropower has been a largely bipartisan matter, and bills have passed through Committee generally by voice voting.  Recently, several hydropower-related bills have passed the House, including H.R. 3043, and are awaiting Senate approval.  Additionally, several bills are also pending in the Senate, including Chairwoman Murkowski’s (R-AK) S. 1460.  Although hydropower has been on Congress’ radar with bipartisan support for the last several years, no bill has passed both chambers.  Some representatives, including Ranking Member Bobby Rush (D-Ill) and Representative John Pallone (D-NJ) (Ranking Member of the full Energy and Commerce Committee), voiced caution in the face of speedy licensing and the need for a continued collaborative process with stakeholders, including states and tribal nations, and that environmental review remains robust.

A focus of last week’s hearing centered around delays in the licensing process, and many representatives and witnesses noted the potential for extensive delays in the licensing process.  Representative Greg Walden (R-OR) (Chairman of the full Energy and Commerce Committee) highlighted that incessant delays jeopardize the economic viability of hydropower projects.  Terry Turpin, Director of FERC’s Office of Energy Projects, explained that longer delays typically occur with relicensing projects that went into service before the modern regime of environmental regulations.  Relicensed projects need to be reevaluated in light of new environmental standards, such as new species listings under the Endangered Species Act (“ESA”).  To mitigate delays, witnesses stressed the need for early collaboration, including through pre-filing procedures, between the applicant and agencies to give a project the best chance of submitting a complete application and beginning the review process.

Moreover, the hearing reviewed several upcoming important agency developments for stakeholders tracking hydropower licensing and inter-agency efforts aimed at better coordination to alleviate delays:

• Several agencies will be releasing their updated National Environmental Policy Act policies to meet the goals of the Trump Administration’s new Executive Order 13807 on July 9, 2019.

• John Goodin, Acting Director of the Office of Wetlands, Ocean, and Watersheds of the Environmental Protection Agency, noted that the agency might update its 2010 Water Quality Handbook to clarify procedures to help states and tribes make informed decisions on water quality in the hydropower licensing context.

• The National Oceanic and Atmospheric Administration and the U.S. Fish & Wildlife Service will be collaborating on implementing ESA regulations to clarify and streamline section 7 and section 4 implementation.

Lastly, in terms of expanding the footprint of hydropower, Ryan Fisher, Principal Deputy Assistant Secretary of the Army Civil Works with the U.S. Army Corps of Engineers (“USACE”), testified that USACE-owned dams have an enormous potential for hydropower generation.  A 2014 Department of Energy study assessed the top 100 dams that have hydropower potential, and USACE owned 81 of those listed dams.  USACE has authority to grant permission for private entities to retrofit USACE owned dams, and currently 68 USACE dams utilize private hydropower.  USACE recently modified its decision-making authority designating approval to the district level to streamline the process.