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Democrats Raise Concerns with FERC Over Two West Virginia Hydropower Licenses

Nov 7, 2017
Press Release

Energy and Commerce Committee Ranking Member Frank Pallone, Jr. (D-NJ), Energy Subcommittee Ranking Member Bobby Rush (D-IL), Environment Subcommittee Ranking Member Paul Tonko (D-NY), and Rep. John Sarbanes (D-MD) today sent a letter to Federal Energy Regulatory Commission (FERC) Chairman Neal Chatterjee expressing  concern about the process FERC followed to issue two hydropower licenses on existing dams operated by the U.S. Army Corps of Engineers on the Monongahela River in West Virginia.  West Virginia plans to challenge these licenses because FERC did not incorporate all the conditions included in the water quality certificate issued by West Virginia’s Department of Environmental Protection in plans for the projects. 

In their letter, the Members specifically call out FERC’s intent to ignore the rights and responsibilities of its federal resource agency, as well as tribal and state partners in the face of an applicant’s inability to provide a complete application.  

The Members acknowledge the value of setting and adhering to schedules to ensure applications are processed in a timely fashion, but warn that FERC should not be expediting its own schedule by denying federal, state, and tribal agencies access to information adequate for their decision-making, or at the expense of ensuring compliance with all public laws.

“By denying the state its allotted time to review this application and submit requirements on these licenses, FERC is undermining the State’s authority under the Clean Water Act and Federal Power Act to impose conditions that will ensure water quality standards are met,” the members wrote to Chairman Chatterjee.    

The Democrats’ letter comes as the House of Representatives takes up H.R. 3043, The Hydropower Policy Modernization Act of 2017 this week, which would provide FERC with greater authority over the licensing process than it currently possesses.  If H.R. 3043 were to be enacted, states would have a much more difficult time protecting its interest in clean water. 

The members continued, “States’ requirements are not likely to be fulfilled by an incomplete application.  It therefore, appears counterproductive to start the ‘shot clock’ on the issuance of a water quality certificate at the point when a state receives a request because it is possible that request may be deficient with respect to information required by the state to issue a valid certificate.  This may even create a perverse incentive wherein an applicant may actually be rewarded for submitting an incomplete application by not being required to meet some or all water quality conditions imposed by a state.  Such a situation is unacceptable under the current statutory regime, and gives us serious concern over any legislative proposal that would provide FERC more authority to set the hydroelectric licensing schedule.”

A copy of the letter to Chairman Chatterjee is available here.