Changes in Forest Service Policy
by Lynn Francisco
With hundreds of hydroelectric projects up for relicensing in the next few years, federal agencies are facing pressure to speed up the process. The US Forest Service recently bowed to that pressure, sending out notice that it would no longer conduct in-house reviews under the National Environmental Policy Act. Instead, it will rely on the NEPA review conducted by the Federal Energy Regulatory Commission.
The Forest Service also promised to "harmonize" its hydro analysis with other resource agencies, putting all reviews on the same timeline. In addition, the agency will eliminate applicants' right to appeal resource-protecting license conditions.
While some applicants may lament the loss of the appeal process, the reduction in bureaucratic processes and the simultaneous analysis by all resource agencies should meet with approval.
"Even though they've lost the right to appeal, these decisions seem to be an improvement for license applicants," said Michael Swiger, a hydro attorney with Van Ness Feldman in Washington, DC.
The May 12 notice from the Forest Service concerns sections 4(e) and 18 of the Federal Power Act, which give resource agencies authority to impose conditions on hydro licenses that are intended to protect fish, wildlife and surrounding habitat. Under its new policy, the Forest Service will now provide its 4(e) conditions before FERC issues its final NEPA document.
The elimination of the right to appeal a Forest Service ruling will leave unhappy license holders no choice but to go to court. Swiger said that in past rulings, courts have noted that the mandatory conditioning "is a strange statute," but the courts have declined to challenge the statute itself.
Another Forest Service policy statement, issued in March, may provide hydro project owners more solace. In that notice, the USFS promised to strike a balance among competing resource management policies and "be mindful of [its] responsibilities to foster the economic well-being of the many people, industries and communities that are dependent on these hydropower projects."
Hydro project owners have chafed under the resource agencies' mandatory license conditions for several years. This year, they successfully added provisions to the House and Senate energy bills that give them more clout in the process. Language added by Sen. Larry Craig (R-ID) would allow utilities and other project owners to propose alternative ways to meet the conditioning mandates. The resource agency would be required to evaluate those alternatives using economic criteria in addition to environmental considerations.
The National Hydropower Association supports the Senate language, while environmental and fish protection groups strongly oppose it. The environmentalists' arguments appear to have convinced the major newspaper in Craig's state, the Idaho Statesman, which recently accused Craig of "going too far" in his proposal.
"Craig wants to hand too much power to the utilities, taking it away from the people who count on federal agencies to protect their fish and their rivers," said the May 18 editorial.
Craig has staunchly defended his relicensing language, saying it "restores balance" to the licensing process.
Senate Democrats, including Maria Cantwell (D-WA), are gearing up to fight the hydro language, insisting that it adds bureaucracy and uncertainty to the process.
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