STATEMENT FOR THE RECORD OF

WILLIAM T. HOGARTH, PH.D.

ACTING ASSISTANT ADMINISTRATOR FOR FISHERIES

OFFICE OF PROTECTED RESOURCES

NATIONAL MARINE FISHERIES SERVICE

U.S. DEPARTMENT OF COMMERCE

ON

HYDROELECTRIC POWER RELICENSING AND NUCLEAR ENERGY

BEFORE THE

SUBCOMMITTEE ON ENERGY AND AIR QUALITY

COMMITTEE ON COMMERCE

U.S. HOUSE OF REPRESENTATIVES

WASHINGTON, D.C.

JUNE 27, 2001

Mr. Chairman and Members of the Subcommittee, thank you for inviting me to submit testimony for the record on hydro licensing as it is related to fishery management. I am William T. Hogarth, Acting Assistant Administrator for Fisheries in the National Oceanic and Atmospheric Administration/Department of Commerce.

I would like to thank the Subcommittee for the opportunity to address NMFS's role in the hydroelectric licensing process. Hydropower is a clean, domestic, and renewable source of electricity. The Administration seeks to increase electricity generation from hydropower plants. NMFS is committed to accomplishing these gains in an environmentally sound manner.

Impacts of Hydropower on Fisheries

Hydroelectric dam construction and operation can have significant impacts on anadromous fish species, including Pacific and Atlantic salmon, shortnose sturgeon, and American shad. Changes in habitat, fish passage, water quality, and downstream flows are the biggest direct effects.

Fortunately, hydroelectric dam impacts can often be significantly reduced through operational and structural modifications. Upstream and downstream fish passage can be improved with fish passage facilities such as fish ladders, fish screens, and trap and transport operations. Temperature impacts can be reduced through releasing cool water when it is needed, and habitat and migratory rates can be improved with modified stream flows.

NMFS Role in Hydropower Relicensing

Several statutory mandates provide the Department of Commerce (DOC) with authority to protect anadromous fish affected by Federal Energy Regulatory Commission (FERC) licensed hydroelectric projects. In DOC, these responsibilities are delegated to NMFS:

Federal Power Act

• Section 18 (16 USC 811) - The DOC and the Department of the Interior have authority to require fish passage at hydroelectric projects.
• Section 10(j)(16 USC 803(j)) - NMFS, Fish and Wildlife Service (FWS), and state resource agencies can provide recommendations to protect, mitigate damages to, and enhance fish and wildlife, including related spawning grounds and habitat.
• Section 10(a)(16 USC 803(a)) - Resource agencies can provide recommendations for ensuring that a project is best adapted to comprehensive plans for developmental and non-developmental resources.
• Small Hydropower and Conduit Exemptions 16 USC 823(a) and 16 USC 2705 - NMFS, FWS, and state agencies can provide conditions to prevent loss of or damages to fish and wildlife.
• Indian trust responsibilities, as outlined in various laws.

Endangered Species Act (ESA)

Under Section 7(a)(2) of the ESA (16 USC 1536 (a)(2)), if their action may affect listed species, federal agencies are required to consult with FWS and/or NMFS, as appropriate, to ensure that any federal action is not likely to jeopardize the continued existence of any threatened or endangered species, or adversely modify critical habitat designated for those species.

Magnuson-Stevens Fishery Conservation and Management Act

Federal action agencies must consult with NMFS if their actions may adversely affect essential fish habitat; NMFS will provide EFH conservation recommendations.

Fish and Wildlife Coordination Act

Federal action agencies must consult with NMFS and FWS if their action modifies a water body; NMFS and FWS provide recommendations to prevent adverse impacts on fish and wildlife.

National Environmental Policy Act

NMFS, other resource agencies, and other stakeholders may provide comments on FERC Environmental Assessments and Environmental Impact Statements prepared for hydroelectric project licensing decisions.

Administrative reforms

NMFS has been working with FERC and the other federal resource agencies to streamline and improve the hydroelectric facility licensing process. These efforts include participating in the Interagency Task Force to Improve Hydropower Licensing (ITF), developing a proposed Interagency Policy on Section 18 Fishway Prescriptions, and participating in the National Review Group of the Electrical Power Research Institute.

Interagency Task Force (ITF)

In March 1998, NMFS, other resource agencies, and FERC established the ITF in order to adminstratively reform the licensing process. The ITF efforts culminated in the development of seven reports containing recommendations to improve and streamline agency licensing practices. These reports can be viewed at http://www.doi.gov/hydro. The reports address such issues as: facilitating and streamlining noticing procedures; coordinating the NEPA review process; improving the process by which studies are identified and conducted; preparing trackable and enforceable license conditions pursuant to Section 401 of the Clean Water Act; and coordinating and streamlining FERC licensing with the Endangered Species Act Section 7 consultation process.

The ITF implemented a two-phased outreach strategy through interagency meetings in several locations across the country in order to ensure integration of the ITF work products into agency licensing practices nationwide. Phase I focused on making agency regional directors and administrators aware of our commitments. Phase II involved meetings throughout the country with regional and field level staff, and was completed in May, 2001.

Interagency Policy on Section 18 Fishway Prescriptions

On December 22, 2000, the Departments of the Interior and Commerce published for comment a proposed Fishway policy that provides a definition of fishways and agency guidance on developing fishway prescriptions. The proposed policy is currently undergoing revision based on comments received during the public comment period.

May, 2001 National Energy Policy, and Executive Orders 13211 and 13212

The new National Energy Policy provides recommendations to the White House and Congress and addresses numerous issues that relate to NMFS's trust resources, including hydropower licensing. Specifically, the policy states that "the President encourages the Federal Energy Regulatory Commission and directs federal resource agencies to make the licensing process more clear and efficient, while preserving environmental goals." Three specific recommendations were included: (1) support administrative and legislative reforms; (2) direct federal resource agencies to reach interagency agreement on conflicting mandatory license conditions before they are submitted to FERC; and (3) encourage FERC to adopt appropriate deadlines for its own actions. NMFS agrees that the process can be improved, and we have been working to address all of these issues in the administrative reform efforts described above.

On May 18, 2001, President Bush signed two Executive Orders that implement recommendations from the National Energy Policy. Executive Order 13211 requires federal agencies to evaluate if a new regulation will adversely impact the current energy supply, distribution, or use. It also requires agencies to include reasonable alternatives to the regulation if the regulation will adversely impact the current energy situation.

Executive Order 13212 requires all executive departments and agencies to take appropriate actions to expedite projects that will increase the production, transmission, or conservation of energy, to the extent consistent with applicable law. Actions should be taken to expedite energy-related projects while maintaining safety, public health, and environmental protections. An Energy Task Force with a DOC representative has been established to monitor and assist the agencies in implementing this Executive Order. The process is just getting underway, but NMFS is committed to working closely with the Energy Task Force to implement its objectives. NMFS is prioritizing available staff resources to the extent possible in order to improve interagency coordination in critical geographic areas.

For example, NMFS contacted the California Energy Commission (CEC) in order to explore ways to address the Governor of California's Executive Order D-26-01, which directed the California Energy Commission (CEC) to expedite the permitting of peaking and renewable powerplants. Through this developing partnership, NMFS and the CEC are crafting strategies for expediting environmental review. Measures discussed to date include: 1) packaging or bundling proposed projects to streamline cumulative impacts analysis and to reduce redundancy and paper work; 2) mitigation strategies for bundled projects, such as mitigation banking, conservation easements, and off-site habitat restoration; 3) improved information sharing procedures; 4) increased staffing, including assigning a single NMFS contact or liaison who would be available to the applicants, governmental agencies, NGOs, and the public; 5) making resources available to hire consultants to conduct specialized analyses such as computer modeling; and 6) measures to ensure an open and public process without impacting critical timelines. To accomplish these tasks NMFS has assembled an interdisciplinary task team and has jointly scheduled regular meetings with the CEC that include the U.S. Fish and Wildlife Service, U.S. Bureau of Land Management, Environmental Protection Agency, Western Area Power Administration, and the U.S. Forest Service. Public workshops have also been held.

Currently, the NMFS Southwest Region is consulting with the CEC concerning the Potrero, Huntington Beach, Morro Bay, and El Secundo thermal power plants. NMFS is also pursuing ongoing hydropower relicensing activities on the Upper American River, Oroville Project, Stanislaus multi-project collaborative, the Klamath Relicensing, the Big Creek Complex multi-project relicensing and the Poe relicensing.

In the Pacific Northwest, the NMFS Northwest Regional Administrator is working closely with her counterparts at the Bonneville Power Administration, Bureau of Reclamation, and U.S. Army Corps of Engineers to ensure that the Federal Columbia River Power System is operated in a manner that maximizes available energy while protecting threatened and endangered salmon species. The NMFS Northwest Region is also working closely with state and local energy suppliers, making real-time decisions that maximize energy production while minimizing environmental impacts for non-federal hydroelectric projects throughout the region during this year's historic drought.

Conclusion

NMFS is working to ensure that anadromous fish resources receive necessary protections, including those provided by the FPA. At the same time we are working to ensure a reliable energy supply and to improve administrative procedures.

The FPA requires FERC to make licensing decisions in the public interest, and to balance the Nation's need for hydropower with the need to protect important natural resources. We will continue our collaborative efforts with FERC, the hydropower industry, environmental organizations, tribes, and other stakeholders 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.

Thank you for the opportunity to provide testimony on these important issues. For the record, we are also providing a copy of our February 1, 2001 letter to FERC commenting on their report submitted to Congress pursuant to Section 603 of the Energy Act of 2000 (Public Law No. 106-469).