By Kennedy Maize
The federal government’s assault on the 1969 National Environmental Policy Act — pronounced in the Trump administration and abetted by the U.S. Supreme Court — continued yesterday (July 16) at the Federal Energy Regulatory Commission. A unanimous FERC at its July meeting approved two measures to fast-track agency review of the environmental impacts of actions planned at licensed hydropower projects.
The commission characterized its steps as covering insignificant but burdensome reviews during the NEPA process, slowing agency action on plans by licensees. In a news release, the commission said its moves “simplify its National Environmental Policy Act (NEPA) review procedures for hydropower-related actions with minimal environmental impact. These regulatory improvements are intended to increase efficiency and accelerate approvals while upholding environmental standards.”
FERC Chairman Laura Swett said, “We must move important approvals forward quickly while ensuring we fully meet our NEPA obligations. Today’s actions are practical, common-sense solutions that streamline our hydropower environmental review processes and allow us to better focus our efforts on reviewing large-scale projects.”
Acting on a February proposed rule, FERC created a series of new “categorical exclusions” from NEPA reviews, a classification of minor environmental impacts that Congress has approved bypassing. FERC said the new exclusions cover “terminations or revocations of hydropower licenses and exemptions that involve minor or no ground-disturbing activities and minor or no alterations to reservoir conditions and downstream flows.”
In the second order, FERC adopted as its own two categorical exclusions from the Tennessee Valley Authority’s NEPA review of hydro actions. The commission does not have jurisdiction over TVA generating facilities, as it is a federal agency.
The TVA exclusions, now FERC’s as well, “apply to development of recreation sites near hydropower projects to support activities such as hunting, fishing, primitive camping, wildlife observation, hiking, and mountain biking, as well as development of public use areas that generally result in physical disturbance of no more than 10 acres. These activities may include construction of parking areas, campgrounds, stream access points, and day use areas.”
The two hydro items on FERC’s July agenda generated little discussion, only praise, which could lead to the impression that they were uncontroversial. That’s not the case.
When FERC issued its “notice of proposed rulemaking” at the February meeting (Docket RM26-7-000), it got several comments from industry in favor of the plan for wider categorical exemptions. It also drew two important objections.
A widely respected national environmental group, The Nature Conservancy (TNC), commented: “TNC believes this proposed rulemaking would fundamentally change whether and how environmental risks and public safety are evaluated at the end of a dam’s intended life. Of most concern, the proposed rule provides a pathway for a subset of FERC licensees – those facing termination or revocation – to legally walk away from hydropower dams, leaving the risks and obligations associated with the caretaking of those dams to states and local communities.”
Suggesting a pathway to legal appeals of FERC’s action, the Conservancy said, “FERC’s NEPA review also includes coordination with other applicable authorities, including the Clean Water Act, Endangered Species Act, National Historic Preservation Act, and other statutory and regulatory requirements triggered by the action. Action by FERC to terminate or revoke a project license thus has implications beyond the Federal Power Act.”
Michigan’s Department of Natural Resources also opposed the FERC action. Michigan is facing a contentious and complex dispute over 13 elderly hydro dams, which the investor-owned utility Consumers Energy wants to give to a Maryland firm for $1 each in order to avoid liability for repairs or abandonment of the dams.
The state agency said, “The MDNR is concerned with the potential environmental consequences of inaction by FERC to evaluate license impacts for hydropower projects that cease operation. For these projects, existing license conditions dictate impoundment levels and flow releases, measures for management of aquatic and terrestrial habitat, and recreation amenities. As a result, termination or revocation of hydropower project licenses can directly impact natural resource species and habitats and public recreation.”
The DNR added, “Non compliant projects subject to revocation have not been following license conditions; therefore, the sum of impacts of those projects was never evaluated as required under the Federal Power Act as amended by the Electric Consumers Protection Act of 1986. While termination or revocation of some hydropower projects may have minor environmental consequences, we do not support complete avoidance of environmental review through categorical exclusion.”
What FERC describes as minimal impacts may find their way into the courts before the issues are ultimately decided.
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