Mr. Chairman and members of the Subcommittee, thank you for inviting me to testify on the hydropower bills under consideration. I am Andrew A. Rosenberg, Deputy Assistant Administrator for Fisheries, National Oceanic and Atmospheric Administration (NOAA).

Role of NOAA Fisheries in Hydropower Relicensing

Although hydropower is cleaner than fossil fuel and nuclear power, it is not free from adverse environmental effects. Efforts to reduce environmental problems associated with hydropower operations, such as providing safe fish passage and improved water quality, have received considerable attention in the past decade from the Federal Energy Regulatory Commission (Commission) and from Congress. The Federal Power Act (FPA) provides important safeguards for fish and wildlife resources from potentially serious harm that could be caused by hydropower projects. The Commission's relicensing process provides NOAA with an opportunity to reexamine operations and further the restoration of fisheries through the Department of Commerce's mandatory conditioning authority for prescribing fish passageways under the FPA. Fishways serve a variety of resource objectives including, but not limited to, passage for healthy existing populations, passage for depleted populations as part of a restoration program, and passage as a means of providing access to under-utilized habitat areas.

NOAA is responsible for conserving and managing anadromous and marine fishery resources and their habitats, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, and other statutes. Our authority with respect to hydropower licensing is provided by the FPA, including sections 10(j) and 18, and the Fish and Wildlife Coordination Act. The Commission must give due weight to NOAA's recommendations for the protection and mitigation of damages to, and enhancement of, fishery resources and their habitats. The Commission also must include any fishway prescriptions issued by the Secretary of Commerce pursuant to section 18 in their licenses.

Two Initiatives to Streamline the Licensing Process

Hundreds of dams were licensed decades ago with inadequate or no fish passage facilities. They will have to come into compliance with current environmental laws and FPA mandates when those facilities are relicensed. Given the large number of license expirations over the next decade, we have an unparalleled opportunity to reconfigure inadequate fishways, prescribe fishways for projects that have existed without them for as long as 50 years, and provide other fish protection measures. I will describe two initiatives in which we are already working to realize these opportunities.

First, there is the Interagency Task Force to Improve Hydroelectric Licensing Processes (ITF) convened by the Commission, NOAA, the Department of the Interior, and other resource agencies to develop administrative reforms to the licensing process. The ITF is playing a catalytic role between the Commission and the resource agencies, significantly improving communication and coordination. The ITF workgroups are developing administrative measures that should make the licensing process work more smoothly. They are being assisted by an advisory committee composed of industry, non-governmental organizations, tribes, and local, state, and Federal government agencies. Second, NOAA and our Federal partners are participating in an industry-led effort, sponsored by the Electric Power Research Institute (EPRI), to develop mutually acceptable means for improving the licensing process. The ITF and the EPRI initiatives collectively provide a means for stakeholders and agencies to identify and discuss improvements to the licensing process.

H.R. 2335 - Hydroelectric Licensing Process Improvement Act of 1999

While we agree with the objective of making the hydropower licensing process work smoothly, we disagree with the need for the proposed legislative changes and therefore strongly oppose H.R. 2335. We have grave concerns with the bill for the reasons outlined below. We believe that the ongoing, comprehensive efforts of the ITF and EPRI to streamline the licensing process via administrative reforms will improve the licensing process while still preserving the necessary environmental protections of the FPA. Until this process reaches completion, and ITF and EPRI recommendations can be implemented and assessed, legislative changes to the FPA should be held in abeyance. I will now comment on several issues raised in the bill.

General Comments

Many anadromous fish stocks continue to decline, with several listed as threatened or endangered under the Endangered Species Act (ESA). By taking a preventative yet practical approach, the likelihood of additional listings under the ESA is decreased and chances for recovery are increased.

If mandates to provide passage for anadromous fish are diminished, our ability to protect fish, ensure sustainable fisheries, and maintain healthy river systems will be decreased. For nearly 30 years NOAA has been developing scientific capabilities in the area of fish passage that should continue to be applied to development of fishway prescriptions. It is appropriate that NOAA continue to provide for the protection of anadromous fish at hydropower projects because we have the statutory authorities and scientific expertise to manage these species throughout their range. It would be inefficient for the Commission to duplicate this expertise.

Specific Comments

Sec. 32(b). Factors to be Considered

NOAA recommends deleting sections A, B, and C of the bill because they are unnecessary and add confusion to the licensing process. The FPA requires the Commission to make decisions on licenses in the public interest by "balancing" varied and competing biological, economic, and social interests. H.R. 2335 would either shift the responsibility for balancing from the Commission to the resource agencies, or result in a duplicative system where the agencies and the Commission are separately considering the implications underpinning a licensing decision. All of the factors in A are appropriately considered by the Commission. NOAA already takes factors B and C into consideration when developing fishway prescriptions.

NOAA works closely with other consulting agencies when fishway prescriptions are developed. Additionally, in developing its mandatory conditions, NOAA already considers their compatibility with other mandatory conditions, relation to project impacts, and costs.

Sec. 32(b)(2). Documentation

NOAA considers this section unnecessary. The courts have stated that there must be substantial evidence to support mandatory conditions in the Commission's record. This standard is one used for review of Federal agency actions and it is appropriate for mandatory conditions to withstand legal challenge. Substantial evidence should include the scientific basis for the agency's conditions, as well as appropriate consideration of any other information provided to the consulting agency.

Sec. 32(c). Scientific Review

NOAA opposes this section because it would cause delays in an already lengthy process. Also, it is unnecessary because we already consider the results of peer reviews, and base our decisions on the best available science.

The process of developing a fishway prescription directly involves the applicant because it is an interactive, multi-phase process during which NOAA coordinates with the license applicant, who can provide any additional information when needed. We work with the applicant or their contractors to ensure that appropriate data are collected according to accepted scientific practice. If an applicant submits results of a peer review, the review is given due consideration. Adding one more step to this process would lengthen it unnecessarily.

NOAA is the world's largest fishery research and management agency, and has a scientific capability with diverse and highly specialized skills. As a science-based agency, we believe strongly that management and conservation decisions should be based on the best available science. Applicants can choose to provide us with their own scientific analyses and peer reviews. We will give those reviews appropriate consideration in our decisions, but believe we must retain the final decision for our prescriptions. The FPA appropriately assigns this responsibility to us.

Sec. 32(e). Administrative Review

The option of an Administrative Law Judge (ALJ) or other non-scientific reviewing body recommending a fish passage condition improperly places the responsibility for a technical decision on a person or review body without the requisite scientific background. NOAA has a number of other concerns as well. First, the time to provide conditions for review is unworkable because we typically would not have all the information needed to formulate fishway prescriptions at least 90 days before the applicant files its application. Second, the ALJ or other reviewing body would not have information available on energy or economic values of a project. Third, downgrading a mandatory condition to a recommendation because an ALJ or independent reviewing body takes longer than 180 days potentially could significantly harm fishery resources and associated users. Fish passage prescriptions are mandatory measures needed to assure safe and effective fish passage. Fish passage needs do not change because a procedural timing requirement is not met. Upon being downgraded to 10(j) recommendations, the Commission would be allowed to accept, reject, or modify them. Such a practice would frustrate Congress's clear purpose of ensuring that fish passage is required as prescribed by Federal fishery experts.

Sec. 32(f). Submission of Final Condition

NOAA opposes this section because the deadlines do not take the Commission's National Environmental Policy Act (NEPA) analysis into consideration and the result of missing a deadline may adversely affect fishery resources. The deadline for submission of a final condition of no later than one year after the license application is ready for environmental review is unrealistic in relation to the Commission's NEPA analysis. Currently, when sufficient information is available, NOAA will submit preliminary fishway prescriptions in response to the Commission's notice that the project is ready for environmental analysis. The Commission can then include them in its NEPA analysis of the proposed project. NOAA may modify its prescriptions based on information developed during the NEPA analysis. As written, this section would deny this option.

Also, the "default" option, essentially our sanction for not making the deadline, is even more onerous. The consulting agency would not be able to recommend conditions for fish passage or alleviating impacts to a federal reservation. The result would be that fishery resources could lack passage, causing significant declines in their numbers. Many anadromous fishery resources are already in a precarious state and this would exacerbate the problems.

Additionally, this section would encourage applicants to delay in providing information requested by the resource agencies because it would increase the likelihood of the agencies missing a deadline. NOAA already makes every effort to meet its deadlines and will continue to do so.

Sec. 32(g). Analysis by the Commission

NOAA opposes this section because it would require NOAA to conduct an analysis that is duplicative with the Commission's NEPA analysis. NEPA analysis requires consideration of all impacts to the quality of the human environment, not only biological and physical impacts, but economic impacts as well. NOAA bases its conditions on the best available science, its expertise, and any other factors relevant to providing adequate fish passage. We take into account information regarding costs of the measures and will choose the least-costly option that provides adequate fish protection.

The FPA is clear in its requirement that the Commission consider the economic viability of a project as part of its "balancing" deliberations that precede the decision to issue a license. During balancing the Commission considers a multiplicity of issues affecting societal interests. NOAA does not have access to the varied types of information that the Commission applies to balancing. The Commission's decisions indicate that the economic viability of a project is not the only factor in their deliberations, as the Commission often issues licenses to applicants whose projects have been determined to have negative economic benefits.

Sec. 32(g)(2). Consistency With This Section - In regards to this section, the concerns stated above regarding section (b) and (c) apply equally to FPA section 10(j).

Sec. 32(h). Commission Determination on Effect of Conditions

NOAA disagrees with the characterization of the public interest being only those factors listed in section (b). There is no mention of the value of a resource protected by the condition. As to the rest of the factors listed, the Commission already reviews appropriate information on rehearing. Therefore, we recommend this section be deleted.

Sec. 33. Coordinated Environmental Review Process

NEPA and the President's Council on Environmental Quality (CEQ) regulations already provide deadlines for comments on NEPA documents. The Commission should not set different deadlines for governmental agencies to provide their comments, because this runs counter to the CEQ regulations.

Sec. 6. Study of Small Hydroelectric Projects

The size of a hydropower project is not necessarily related to the magnitude of its impacts on fish and habitat. Even small projects are major Federal actions and, regardless of the licensing process in use, require some level of NEPA review. While we would support consideration of processes for expediting the licensing process for small projects, we would not support any action that diminishes the role of the resource agencies from safeguarding the public's resources under their jurisdiction. Currently, the FPA does provide an exemption from the licensing process for small hydropower projects, and includes adequate protections for fish and wildlife.

S. 422 - Alaska State Jurisdiction Over Small Hydroelectric Projects

NOAA strongly opposes S. 422. This bill would eliminate certain hydropower protections for fish and wildlife by removing small hydropower projects in Alaska from the jurisdiction of the Commission. Enactment of S. 422 would prevent Federal fishery managers from being able to conserve and manage anadromous fish throughout their range. NOAA's statutory responsibility to protect anadromous fish is especially important in Alaska, which supports many of the remaining healthy stocks of anadromous fish in the Nation. Alaska is where most new hydropower projects are under development, presenting an opportunity to achieve compliance with fish protection measures from the outset. Removing the Commission from the licensing process would remove NOAA as well, thereby preventing the agency that is responsible for management of anadromous fish throughout their range from participating in development of fish passage measures. Management of issues such as cumulative impact assessment would be greatly complicated if responsibility for fish protections was split between Federal and state entities within the same watershed, as many watersheds cross the boundaries of several states. While this is not true for Alaska, the transboundry rivers shared with Canada (Yukon, Taku, Stikine) present an analogous and even more complex situation. Additionally, Canada has taken the position that failure by the United States to protect salmon from hydroelectric development is a principal cause for imbalance in salmon production between the two nations. Passage of S. 422 may make future negotiations under the U.S. and Canada salmon treaty more difficult.

Consultations with Affected Agencies

The bill states that the Commission shall consult with the Secretaries of Commerce and the Interior before certifying a state program. Apparently this is intended to ensure that Alaska's program would provide adequate protection for Federal interests. However, there is no statutory provision requiring the Secretaries to concur with the Commission's decision, merely that the Commission consults. While the bill provides for oversight by the Commission it does not give the Federal resource agencies a role in this review. This leaves NOAA with little recourse if anadromous fish are not receiving adequate protection under the state program.

Exemption Unnecessary

Small hydropower projects already can be exempted from the licensing process pursuant to provisions of the Federal Power Act and the Public Utility Regulatory Policies Act (PURPA). (See 16 U.S.C. 823a and 2705). Hydropower projects falling within a FPA and PURPA licensing exemption already may apply for a FERC license exemption. This alternative involves much less time and effort on the part of the license applicant than the licensing process. Such projects still remain subject to conditions for fish protection issued by Federal resource agencies. This is important because projects of 5,000 kilowatts or less may have significant environmental consequences and should, therefore, continue to be subject to the requirements of the FPA and protections deemed necessary by the resource managers. Damming of an anadromous fish stream has adverse impacts regardless of the project's size.

Project Works on Federal Lands

Although NOAA is not a land management agency, we have concerns regarding the direct and indirect effects of hydropower projects located in whole or in part on Federal lands. S. 422 would require that the Secretary having jurisdiction with respect to such lands must approve the State of Alaska's authorization for the hydropower project. However, S. 422 fails to require any consultation with the Federal fish and wildlife resource agencies before such approval is provided. Public resources under Commerce jurisdiction and management plans may be affected.

S. 334 - Removing FERC Jurisdiction to License Projects on Fresh Waters in Hawaii

NOAA opposes S. 334 because it would eliminate important living marine resource protections provided by the FPA and could cause significant harm to fishery resources. S. 334 would exempt hydropower projects on fresh waters in the state of Hawaii from the requirements of the FPA, and the Commission would no longer have licensing authority. As with Alaska, we oppose complete devolvement of licensing authority to the states because of the important role that Federal fishery managers play in the licensing process. Although NOAA currently has no current involvement in hydropower licensing in Hawaii, we should not be precluded from doing so in the future, where resources under Commerce jurisdiction are impacted.

S. 1236 and H.R. 3852 - Extensions of Deadline and Reinstatement of License

NOAA opposes S. 1236 and H.R. 3852 "Extensions of Deadline and Reinstatement of License" because we believe that all projects should be constructed on time to ensure that environmental information is current. S. 1236 and H.R. 3852 would authorize the Commission to extend the time limits for construction of projects after issuance of a license in Idaho and Alabama, respectively. When Congress has authorized extensions of the construction deadlines for hydropower projects, the Commission generally has not objected to extensions of up to ten years from the date the project was licensed. Conditions may change substantially in that amount of time, thereby requiring supplementation of the Commission's environmental analysis. At a minimum, the Commission should ensure that their NEPA analysis is still valid, or prepare a supplemental NEPA document.

H.R. 1262 - FPA License Not Required for Pentwater River, Michigan

NOAA opposes passage of H.R. 1262 for the same reasons we oppose S. 422 and

S. 334. Specifically, the erosion of the Commission's authority, whether state by state or

project by project, circumvents the FPA requirements that provide the Federal resource agencies with an important role in the licensing process.

S. 1937 - Allowing Bonneville Power Administration to Sell Electricity to

NOAA has no comment on this bill.

NOAA is working to ensure that the Nation's fishery resources receive necessary protections, including those provided by the FPA with its key protections for anadromous fish. By including effective fishways during relicensing, we can provide anadromous fish stocks with long denied access to historically important habitats. By combining this preventative approach under the FPA with the important curative measures under the ESA, we can decrease the decline in other populations and decrease the likelihood of additional listings under the ESA.

NOAA mandates under the FPA include some of our most important tools for protecting anadromous fish and mitigating damages to fish habitat. Our positions on these bills stem from our conviction that these mandates should not be diminished or removed.

The FPA mandates the Commission to make licensing decisions in the public interest, balancing the Nation's need for hydropower and the need to protect important natural resources. NOAA will continue our collaborative efforts with the Commission, industry, non-governmental organizations, tribes, and other interested entities to ensure that the hydropower licensing process provides a sound basis for the balancing of societal priorities, including the need for healthy habitats and productive fisheries. We will also continue our efforts to make administrative changes that will make the process work more smoothly.

NOAA views relicensing as an opportunity to increase, rather than retreat from, efforts to improve fish passage at dams and protection of aquatic ecosystems. H.R. 2335 proposes changes to the FPA that will diminish our ability to protect anadromous fish by providing passage at dams and meet statutory mandates to ensure the sustainability of stocks. Therefore, we strongly oppose H.R. 2335.

NOAA opposes S. 422 "Alaska State Jurisdiction Over Small Hydroelectric Projects" because we believe that the fish and wildlife protection provisions of the FPA should continue to apply to all hydropower projects, regardless of geographical location. Applicants in Alaska can already apply for an exemption from the full licensing process for small hydropower projects and still enjoy adequate protection for Federal resources.

NOAA opposes S. 334, "Removing FERC Jurisdiction to License Projects on Fresh Waters in Hawaii," because we are concerned that removing Hawaiian hydropower projects from the licensing requirements of the Federal Power Act would eliminate important resource protections that may be needed in the future. We believe that the provisions of the Federal Power Act should continue to apply to all non-Federal hydropower projects.

Thank you for the opportunity to provide testimony on these important issues. I would be happy to respond to any questions.