The Interstate Council on Water Policy requests that the attached testimony on The Interstate Council on Water Policy (ICWP) is the independent national ICWP appreciates the opportunity to offer testimony on S. 341 and stands The Interstate Council on Water Policy (ICWP) is deeply concerned about provisions of the proposed National Energy Security Act of 1991 (S. 341) that would severely impact the ability of the States to protect and manage our water resources. These provisions found in Title IV. Subtitle C-Hydropower would amend both the Clean Water Act and the Federal Power Act to expand the powers of the Federal Energy Regulatory Commission (FERC) in licensing hydropower projects. The interstate Council on Water Policy believes the proposed amendments are unnecessary for the development of a viable national energy policy and detrimental to the ability of the States to ensure federally-licensed projects comply with state law. State water resource administrators have had a long-standing concern about FERC's authority in hydropower licensing. It has never been clear why a federal energy development agency (FERC) is best positioned or qualified to have authority over hydropower projects which contribute minimally to national energy needs and can have significant effects on a wide variety of local resource management concerns such as recreation, fish and wildlife, water quality, and land use. FERC does not and cannot conduct comprehensive water planning activities States, not FERC, have the primary responsibility for protecting and managing the water resources in the public interest. With specific reference to the hydropower provisions of S. 341, the Interstate Council on Water Policy offers the following comments: 1) Section 4201 would prohibit the States from including as a condition of certification, under Section 401 of the Clean Water Act, any requirement not directly related to discharges resulting from the construction or operation of the hydropower project. Furthermore, the decision as to whether the state requirements violate this section would rest exclusively with FERC. Section 401 certification is currently the only regulatory foothold which many States have in the hydropower licensing process. Rather than narrowly defining this authority, the Interstate Council on Water Policy supports an approach such as that offered by Senator Jeffords last year (S. 3186) which would expand Section 401 of the Clean Water Act to Page 2 stipulate that a "discharge" includes an activity that, while it might not introduce foreign objects (chemicals) into the waterway, might still result in water quality degradation or impairment of designated uses recognized under state law. Regardless of how the limits of Section 401 certification are ultimately defined by the courts or by Congress, it seems clear that FERC is not the appropriate agency to judge whether or not State 401 certification requirements are legitimate. FERC's history of disregard for state water law and its lack of expertise in water quality suggest that they are not wellsuited to making such determinations. States must retain the authority to ensure that federally-licensed hydropower projects comply with state law. 2) Section 4202 would eliminate the present authorities of the Secretaries of Interior and Agriculture to condition permits for projects on lands under their jurisdiction. FERC would only be required to consider recommendations from such federal agencies. This provision also appears to be an unnecessary consolidation of authority in FERC, which as previously noted is not particularly well-equipped to address the broad range of natural resource concerns involved in hydropower development. 3) Section 4202 would also exempt projects with power production capacities of 1500 kilowatts (1.5 megawatts) or less from provisions of the Federal Power Act. The Interstate Council on Water Policy believes there is great merit to this approach and would in fact suggest that consideration be given to raising the limit even higher than 1.5 megawatts. Nearly 80 percent of the total hydropower capacity in the nation is in plants over 100 megawatts. Clearly, small hydropower facilities contribute little to this country's total energy needs. Given the fact that thermal power plants which often exceed 1000 megawatt capacity are not within the jurisdiction of FERC, it is difficult to assert that hydropower projects, most having capacities of less than 100 megawatts, are of paramount importance to the development and implementation of a sound national energy policy and warrant setting aside state comprehensive plans and laws. Exempting small hydropower facilities from federal licensing deserves serious consideration. In light of the fact that States are better qualified to balance competing uses and that FERC has frequently pre-empted state authority in its licensing decisions, some States have even suggested that a program of state assumption may provide a viable alternative. Last year, 50 States joined together in opposition to the FERC decision in the California Rock Creek case. The U.S. Supreme Court upheld the FERC decision, ruling that a State does not have the right to regulate the flow of water at dams within its borders. However, the Court noted that it was obliged to bind itself to "longstanding and well-entrenched decisions," arguing that it is better that a rule of law be settled than it be settled correctly. The Supreme Court clearly invited Congress to clarify its intent regarding States' authority. The Interstate Council on Page 3 Water Policy (ICWP) urges Congress to accept the Invitation from the court. Amendments to the Clean Water Act and the Federal Power Act are needed to clarify and reinstate the right of States to manage and protect their water resources in the public interest. However, ICWP does not believe that the amendments offered in S. 341 meet that need. In fact, with regard to the issue of Section 401 certification, this legislation would further frustrate the States' ability to manage their water resources comprehensively. In contrast, ICWP supports legislation sponsored last year by Senator Jeffords (S. 3186) which would amend the Clean Water Act to expand and protect the States' right to ensure projects comply with state law through the condition of certification under Section 401. Furthermore, ICWP supports bills introduced this year by Senator Craig (S. 106) and Rep. Stallings (H.R. 649) which would provide states the right to control the use of water within their jurisdiction. Recent actions by FERC in Issuing a license to a private entity to develop a hydroelectric project at the Nockamixon State Park Dam in Pennsylvania underscore the need to further amend the Federal Power Act. The FERC position is that the Federal Power Act preempts all state authority, including the state's proprietary interest in a State Park. The right of the State of Pennsylvania to provide for its citizens a major recreation facility and operate a facility as part of the Delaware River Basin Commission's drought management plan is being preempted by FERC under the guise of national interest in energy development. The Federal Power Act should be amended to exempt state owned or controlled lands from the right of the licensee to exercise the power of eminent domain. In conclusion, the Interstate Council on Water Policy supports Section 4202(f) but opposes Sections 4201 and 4202(a-e) of the proposed National Energy Security Act of 1991. While ICWP concurs with the need to amend both the Clean Water Act and the Federal Power Act, we suggest that the type of amendments proposed last year by Senator Jeffords and those offered this year by members of the Idaho delegation be considered for inclusion in S. 341. In addition, the amendment discussed above to address the state issue raised by Pennsylvania should also be included. The Interstate Council on Water Policy stands ready to assist in this most important endeavor. |