Bobby Rush

Mr. RUSH

Mr. RUSH. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I rise in strong opposition to H.R. 3043, the Hydropower Policy Modernization Act of 2017. Mr. Chairman, while Members on both sides of the aisle support hydropower, unfortunately, the bill before us today is deeply flawed and will not modernize or improve the hydropower licensing process. Instead, Mr. Chairman, H.R. 3043 would place private profits above the public interest by giving priority of our public waterways to industry in order to generate power and profits over and above the rights and the interests of Native Tribes or farmers or fishermen, boaters, and other stakeholders who also rely on these public rivers and streams. Mr. Chairman, it is very important for us to remember that hydroelectric licenses can span between 30 and 50 years, and, under existing law, a license holder can be granted automatic yearly extensions in perpetuity without even having to reapply. Mr. Chairman, this issue is far too important for us not to get it right this time. And what does H.R. 3043 actually do? This bill will make the Federal Energy Regulatory Commission, FERC, the lead agency over the licensing process and will require Native Tribes, the States, and other Federal resource agencies to pay deference to the Commission, even in areas where FERC has absolutely no expertise or statutory authority, including on issues regarding agricultural water use, drinking water protection, fisheries management, and recreational river use. How absurd, Mr. Chairman. Additionally, Mr. Chairman, H.R. 3043 would expand and alter the trial-type hearing provisions on the Federal Power Act, essentially rigging the process in favor of industry by providing multiple new entry points to challenge conditions designed by Federal resource agencies. Mr. Chairman, the threat of these timely and costly hearings may be used to coerce agencies to propose weaker conditions, and, at the same time, this bill also shifts the venue for these hearings to FERC, which is another very obvious handout and handover to industry. Mr. Chairman, in testimony before the Energy and Commerce Committee, we heard, repeatedly, that a major cause for licensing delays was due to incomplete applications that do not include all the pertinent information that is necessary to issue a decision. Mr. Chairman, H.R. 3043 does nothing, absolutely nothing, to address this very, very serious issue. In fact, this bill will implement strict timelines on Federal resource agencies, States, and Tribes, but does not require applicants to submit all of their information to these agencies before the clock actually starts ticking. Mr. Chairman, FERC, itself, the very agency that will be charged with implementing this grossly bad bill, FERC, itself, disputed claims that this bill would streamline the licensing process, noting that the legislation ``could increase the complexity and the length of the licensing process.'' These are FERC's words, FERC's words before the committee. Mr. Chairman, we cannot allow hydropower facilities to claim a monopoly over our public waterways without mitigating the negative impacts of these facilities on others who rely on these resources and without, at the same time, without complying with modern environmental laws. H.R. 3043, Mr. Chairman, is opposed by States, opposed by the Native Tribes, opposed by the outdoor recreation industry and by more than 150 national and local environmental organizations. Mr. Chairman, it is for all of these reasons that I, too, stand in concert and side by side with Native Tribes, the outdoor recreation industry, and the other 150 national and local environmental organizations. It is for these reasons that I, too, must oppose this bill, and I urge all of my colleagues to do the same. Mr. Chairman, I reserve the balance of my time.

Mr. RUSH. Mr. Chair, I yield such time as he may consume to the gentleman from New Jersey (Mr. Pallone), from the State that made such a significant and giant step last night to making our Nation a better nation, the ranking member of the full committee.

Mr. RUSH. Mr. Chairman, I yield 2 minutes to the gentleman from Maryland (Mr. Sarbanes), a very important member of the committee.

Mr. RUSH. Mr. Chairman, I yield 3 minutes to the gentleman from New York (Mr. Tonko).

Mr. RUSH. Mr. Chairman, I yield 2 minutes to the gentleman from California (Mr. Garamendi).

Mr. RUSH. Mr. Chairman, I yield 3 minutes to the gentleman from California (Mr. Ruiz).

Mr. RUSH. Mr. Chairman, I yield 2 minutes to the gentleman from California (Mr. Costa).

Mr. RUSH. Mr. Chair, may I inquire as to how much time is remaining on both sides.

Mr. RUSH. Mr. Chairman, I reserve the balance of my time.

Mr. RUSH. Mr. Chair, I yield myself such time as I may consume. Mr. Chair, I include in the Record letters from Confederated Tribes and Bands of the Yakama Nation, Puyallup Tribe of Indians, Snoqualmie Tribe, Skokomish Indian Tribe, and a copy of the resolution passed in October 2017 by The National Congress of American Indians opposing the proposed amendments to the Federal Power Act. Confederated Tribes and Bands of the Yakama Nation, Toppenish, WA, November 7, 2017. Re Hydro legislation still bad for Indian Tribes, States and Users of Public Waterways. Hon. Paul Ryan, Speaker, Hon. Nancy Pelosi, Minority Leader, Honorable Members of the House of Representatives, Washington, DC. Dear Speaker Ryan, Minority Leader Pelosi and Honorable Members of Congress: Yesterday, when the Rules Committee discussed HR 3043, the Hydropower Policy Modernization Act of 2017, a number of members of the committee including Chairman Sessions, Congressman Cole, Congressman Newhouse, Congressman McGovern, Congresswoman Cheney as well as the Chairman Walden and Ranking Subcommittee Member Rush (who were testifying), all stressed the importance of ensuring that Indian tribes have their treaty rights and natural resources protected by any actions of the Congress relative to hydropower reform. We greatly appreciate the concerns of these members and the amount of time they spent discussing tribes and dam relicensing. I think many of them were aware of the degree to which the placement of dams has negatively affected a number of reservations, flooding some and damaging salmon runs at others. While there was universal agreement that the rights of tribes and states must be protected, there was not agreement on whether HR 3043 accomplishes that laudable intent. I must tell you that the bill does not do so. First understand what the Federal Power Act (FPA) now says. Under provisions that have been in effect for decades, state governments, pursuant to the Clean Water Act, are able to set water quality standards at hydro dams. Such conditions are mandatory. Allowing states to establish water quality standards, a key aspect of Federalism that many in Congress have always fought for, was a lynchpin of the grand bargain reached when the Clean Water Act became law. While Federalism has not really benefitted Indian tribes, we are surprised that the Congress would weaken the ability of states to protect the public in this fashion. We hope you will read what many states have said in letters to the Committee, i.e., HR 3043 weakens their ability to ensure their standards are met during the licensing process. Letters of this nature have come from entities as varied as the Western Governors Association and the Southern States Energy Board. Also under the longstanding language of Section 4(e) of the FPA, Cabinet Secretaries with authority over ``federal reservations'' are directed to ensure that a proposed hydro project doesn't negatively affect a reservation or interfere with its congressionally designated use. These include all lands and marine reserves in the Federal estate from Indian reservations, to National Forests to Wildlife Refuges. Section 18 of the FPA deals with the establishment or modification of fishways to ensure fish can pass over these dams. The Secretaries of Commerce (for NMFS) and Interior (for USFWS) deal with fish passage and the Secretaries of Interior (for BIA, BLM, USFWS and NPS) and Agriculture (for USFS) deal with protecting federal reservations. They have the authority to propose mandatory conditions on hydro dams to ensure their operation protects these federal resources that belong to all Americans. The legislation weakens the conditioning authority for protecting state water quality, for fishways and for federal reservations by transferring significant decision-making authority to FERC. Under the bill, FERC and the license applicant can challenge the necessity of a condition and have that challenge heard via a trial-type hearing only at FERC before an Administrative Law Judge (ALJ) at that agency. Under present law, decisions such as these are heard by ALJs in the agency making the recommendation, where the expertise resides. This provision in the bill is legislating forum shopping and directing that the decision be made before an entity whose expertise is in areas such as energy markets and safety at power plants. FERC and its ALJs have no expertise relative to Indian treaty rights or the Federal Land Policy and Management Act among many bedrock laws and FERC testified before the Committee that they do not want to be given this newfound authority. While having trial-type hearings at FERC and authorizing FERC to set all manner of schedules in the permitting process will certainly create countless billable hours for attorneys representing license applicants, it will do nothing to protect the interest of Indian tribes or the public at large, and as stated above, is directly contrary to state authority under the Clean Water Act and Secretarial authority now found in the Federal Power Act. Yesterday we heard that this process will expedite licensing but if that is the goal then wouldn't it make sense to determine when an application for a license is complete? Tribes repeatedly asked the hydropower industry to clarify that matter in the bill but they refused. Why? Existing hydropower dam licenses were issued decades ago before any environmental statutes were on the books and many of those dams are fish killers. Under the present law, when a license expires the operator can automatically get annual extensions allowing it to operate under 30-50 year old standards. These extensions can go on for year after year with the operator not having to spend any money to mitigate the damage to fish or other resources. This is more than ironic considering that the hydropower industry is telling Congress that they need the legislation to ensure certainty and time frames in the relicensing process. Additionally, the bill is drafted in such a fashion that FERC can set schedules that are so abbreviated that Tribes, Cabinet Secretaries or States who wish to comment and perhaps undertake a fishery study when necessary may not have the time to properly prepare suggested or mandatory operating conditions. It is noteworthy that FERC told the Committee that they don't see the legislation actually streamlining the application process. Also, we checked today and could find no tribes in support of this bill. We believe the Amendment in the Nature of a Substitute (AINS) incorporates much of what the majority proposed in HR 3043 while incorporating many changes that are reflective of the input that the Committee received from states and tribes who took the time to relay views and concerns to the Committee. A key part is the requirement for a negotiated rule-making to improve and expedite the hydro licensing process by bringing in states, local governments, stakeholders and tribes to FERC to develop a process that will enable FERC to make decisions on license applications within a maximum of three years. We urge you to vote for the AINS. Without such changes it is highly unlikely that the bill will make it through the Senate. Thank you for considering our views. Sincerely, Jode L. Goudy, Tribal Council Chairman.

Mr. RUSH. Mr. Chair, the substitute amendment that we will consider shortly provides Indian Tribes with authority to speak for themselves with respect to the hydropower licensing process. Currently, Mr. Chair, the agencies of the Departments of the Interior and Commerce proposed conditions to protect Tribal reservations. If the substitute is enacted, Tribes that have sufficient capacity can assume responsibility for protecting their own reservations. The Tribal authority provision is absolutely very important and long overdue. As sovereign entities, Tribes have a status different from that of States and Federal agencies. They should be negotiating on their own behalf to protect their own interests. Mr. Chair, hydropower projects, a number of which were designed and built over the objections of Tribes, resulted in devastating losses of Tribal lands and fisheries. We can and must do better. Hydropower projects can be designed, upgraded, and operated in ways that lower the environmental costs and preserve other important uses of the river. Current law and current regulations already provide for consultation with Tribes. In fact, under the integrated license process, applicants are required to consult with Tribes 5 years before the current license expires if they plan to seek a renewed license. The integrated license process was designed specifically for the more complex, controversial hydropower projects, either new projects or relicensing of existing projects. Mr. Chair, many applicants, however, request and are allowed to pursue their license under the traditional license process that includes less opportunity for consultation. FERC should be denying some of these requests, but each and every one of them are granted by FERC. When this happens, controversial projects run into predictable problems that bog down the license process. This is an administrative change that FERC could make that would require no new legislation and would improve the license process. Mr. Chair, this bill does nothing--absolutely nothing--to speed up this problem or fix the process that we have been discussing. Mr. Chair, I yield back the balance of my time.

Mr. RUSH. Mr. Chair, I include in the Record letters from: Vermont Agency of Natural Resources, California State Water Resources Control Board, Western Governors' Association, State of Washington Department of Ecology, Environmental Council of the States, and Association of State Wetland Managers. State of Vermont, Agency of Natural Resources, Montpelier, VT, September 12, 2017. Re Comments in Opposition to Hydropower Policy Modernization Act of 2017, H.R. 3043. Hon. Paul Ryan, Speaker, House of Representatives, Washington, DC. Hon. Nancy Pelosi, Minority Leader, House of Representatives, Washington, DC. Dear Speaker Ryan and Minority Leader Pelosi: The Vermont Agency of Natural Resources (VTANR) would like to express strong concerns over the proposed Hydropower Policy Modernization Act of 2017, H.R. 3043. While VTANR supports efforts to improve and streamline current hydroelectric licensing processes, the Agency strongly opposes legislative efforts to diminish States' ability to protect water quality. Several provisions of H.R. 3043 would essential curtail the State authority under Section 401 of the federal Clean Water Act, effectively constraining State agencies' ability to use their independent authority to set license conditions, making it more difficult to protect natural resources. VTANR strenuously opposes provisions of H.R. 3043 that eliminate or reduce States' delegated authority under Section 401 of the federal Clean Water Act to develop mandatory licensing conditions protective of natural resources. State agencies serve an essential role in the Federal Energy Regulatory Commission (FERC) licensing process for hydroelectric facilities. H.R. 3043 would designate FERC as the lead agency over federal authorizations related to applications of hydroelectric projects for a license, license amendment, or exemptions. As the lead agency, FERC would establish and control the timeline for licensing review and process for hydroelectric projects. H.R. 3043 appears to give FERC the authority to create a schedule reducing the time a State would have to get necessary scientific studies completed and reviewed to determine specific conditions needed to protect water quality, as required under Section 401 of the federal Clean Water Act. This would effectively permit FERC to license a facility before a thorough review of the environmental impacts could be completed. Vermont uses its Section 401 authority to issue water quality certifications with conditions to ensure projects are built and operated in a manner consistent with State environmental laws and protective of the environment and public health. In addition, a provision of H.R. 3043 provides applicants with an opportunity to a trial-type hearing before a FERC Administrative Law Judge whenever there is a dispute of material fact. Under the provisions of H.R. 3043, the decision of the FERC Administrative Law Judge would be final and not subject to further administrative review. Currently, conditions included in a Section 401 water quality certification become mandatory license conditions and cannot be altered or modified by FERC. Further matters of material facts related to Section 401 water quality certifications for hydroelectric facilities are heard at the State level by courts or boards that are familiar with a State's water quality standards and other environmental laws. The allowance for the trial-type hearing before FERC could undermine the States' authority granted under Section 401, making it more challenging to protect water quality and natural resources. Through decades of decisions, federal courts have affirmed the authority of States to impose conditions in federal licenses issued to hydroelectric projects under Section 401 of the Clean Water Act. These decisions recognize that States have the primary responsibility to ensure State water quality standards and other environmental laws are met. H.R. 3043 would undermine this authority by including a provision that would allow FERC to seek resolution between it and States at the federal level, elevating the dispute to the secretary overseeing the federal statute. In the case of the federal Clean Water Act, H.R. 3043 appears to allow FERC to negotiate with the Administrator of the Environmental Protection Agency or Secretary of Army, who are responsible for Clean Water Act on the federal level, to settle a dispute with between it and a state, effectively cutting States out of the process. Vermont's interest in protecting natural resources is as important and relevant today as ever, particularly because a large number of hydroelectric facilities in Vermont are slated to begin the federal relicensing process over the next five years. FERC issues licenses to hydroelectric projects for a term of 30 to 50 years. As such, many of the projects scheduled for relicensing will likely need significant changes in operations to meet modern water quality standards and to restore State water resources from impacts of project operations. As drafted, H.R. 3043 would reduce VTANR delegated authority under Section 401 of the federal Clean Water Act, creating ways for project operators to circumvent state regulations during the licensing process to allow them to operate in a manner that would continue to degrade the environment and resources of the State. VTANR recognizes the importance of hydroelectric generation in meeting renewable energy goals. We urge you to consider how the federal process can be improved without undermining the very checks and balances that have helped hydroelectric generation be viewed as a sustainable and renewable energy source. We appreciate your consideration of these comments on H.R. 3043 and look forward to solutions that improve our energy security and infrastructure while protecting the environment. Sincerely, Julia S. Moore, P.E., Secretary.

Mr. RUSH. Mr. Chair, I include in the Record letters in opposition to H.R. 3043 from environmental, recreation, fisheries, and conservation groups from across the country along with the list of groups that have signed these letters. Environmental, Fisheries, Recreation, and Conservation Organizations in Opposition to H.R. 3043 Alabama Rivers Alliance; Alaska Survival; All Outdoors; Alliance for the Great Lakes; Alpine Lakes Protection Society; Altamaha Riverkeeper; American Packrafting Association; American Rivers; American Whitewater; Anacostia Watershed Society; Anglers of the Au Sable; Animal Welfare Institute; Apalachicola Riverkeeper; Appalachian Mountain Club; Association of Northwest Steelheaders; Atlantic Salmon Federation; Black Warrior Riverkeeper; California Hydropower Reform Coalition; California Outdoors; California River Watch; California Sportfishing Protection Alliance; California Trout; Cascadia Wildlands; Catawba Riverkeeper; Center for Biological Diversity. Center for Environmental Law and Policy; Central Sierra Environmental Resource Center; Clean Water Action; Coastal Conservation League; Colorado River Water keeper Network; Columbiana; Congaree Riverkeeper; Connecticut River Conservancy; Conservation Law Foundation; Conservation Northwest; Conservatives for Responsible Stewardship; Coosa Riverkeeper; Crab Apple Whitewater Defenders of Wildlife; Deschutes River Alliance; Downeast Salmon Federation; Earth Design; Earthjustice; Earthworks; Endangered Habitats League; Endangered Species Coalition; Environmental Protection Information Center (EPIC); Foothill Conservancy; Foothills Paddling Club; Foothills Water Network; Friends of Butte Creek. Friends of Cooper Landing; Friends of Grays Harbor; Friends of Kenai National Wildlife Refuge; Friends of the Kinni; Friends of Merrymeeting Bay; Friends of the Crooked River; Friends of the Eel River; Friends of the River; Friends of the White Salmon River; Golden West Women Flyfishers; Grand Canyon Trust; Grand Riverkeeper Labrador; Great Lakes Council Fly Fishers; Green Latinos; Hells Canyon Preservation Council; High Country Conservation Advocates; Holy Spirit Missionary Sisters; Huron River Watershed Council; Hydropower Reform Coalition; Idaho Rivers United; Illinois Council of Trout Unlimited; Institute for Fisheries Resources; James River Association; Kalmiopsis Audubon Society; Kenai River Watershed Foundation. Klamath Forest Alliance; Klamath Riverkeeper; Klamath- Siskiyou Wildlands Center; Kootenai Environmental Alliance; League of Conservation Voters; Lower Columbia Canoe Club; Lower Susquehanna Riverkeeper Association; Maine Rivers; Michigan Environmental Council; Michigan Hydro Relicensing Coalition; Middle Susquehanna Riverkeeper; Milwaukee Riverkeeper; Mono Lake Committee; Mousam and Kennebunk Rivers Alliance; National Heritage Institute; National Park Conservation Association; National Wildlife Federation; Native Fish Society; Natural Heritage Institute; Natural Resources Defense Council; Natural Resources Council of Maine; Naturaland Trust; Nature Abounds; Naugatuck River Revivial Group. New England FLOW; New Hampshire Rivers Council; North Cascades Conservation Council; Northwest Environmental Advocates; Northwest Guides and Anglers Association; Northwest Resources Information Center; Olympic Forest Coalition; Oregon Kayak and Canoe Club; Outdoor Alliance; Pacific Coast Federation of Fishermen's Associations; Pacific Rivers; Penobscot Paddle and Chowder Society; Planning and Conservation League; Potomac Riverkeeper; Prairie Rivers Network; Prince William Soundkeeper; Quartz Creek Homeowners' Association; Religious Coalition for the Great Lakes; River Alliance of Wisconsin; River Guardian Foundation; River Network; Riverkeeper Network. Rogue Riverkeeper; San Juan Citizens Alliance; Save Our Saluda; Save Our Wild Salmon; Save the Colorado; Selkirk Conservation Alliance; Smith River Alliance; Snake River Waterkeeper; South Carolina Native Plant Society; Southern Environmental Law Center; South Yuba River Citizens League; Spartanburg Area Conservancy; Spearfish Canyon Society; Spokane Riverkeeper; St. Mary's River Watershed Association; Tennessee Clean Water Network; The Lands Council; The Mountaineers. The Roanoke River Basin Association; The Sierra Club; Tributary Whitewater Tours, LLC; Trout Unlimited; Tuolumne River Trust; Upstate Forever; Washington Environmental Law Center (see Western Environmental Law Center); Washington Wild; Waterkeeper Alliance; Waterkeepers Chesapeake; WaterWatch of Oregon; WESPAC Foundation; West Michigan Hacklers; Western Environmental Law Center; Wild Earth Guardians; Wild Washington Rivers; Yadkin Riverkeeper; Zoar Valley Paddling Club.

Mr. RUSH. Will the gentleman yield?

Mr. RUSH. Mr. Chair, the minority side is prepared to accept this amendment.

Mr. RUSH. Will the gentleman yield?

Mr. RUSH. Mr. Chairman, the minority is prepared to accept this amendment.

Mr. RUSH. Will the gentleman yield?

Mr. RUSH. Mr. Chairman, the minority is prepared to support this amendment.

Mr. RUSH. Mr. Chairman, I have an amendment at the desk.

Mr. RUSH. Mr. Chairman, I include in the Record letters of opposition to H.R. 3043. Kalispel Tribe of Indians, Usk, WA, November 8, 2017. Re Opposition to H.R. 3043, the Hydropower Policy Modernization Acts. Hon. Greg Walden, Chairman, House Energy and Commerce Committee, Washington,

Mr. RUSH. Mr. Chairman, I rise in strong support of the Rush amendment in the nature of a substitute, and I urge all of my colleagues to support it as well. Mr. Chairman, hydropower is backed by Members on both sides of the aisle. We all support hydropower, but the process for how we license these projects is far too important for us to get it wrong. While many Members on the minority side have objections to the underlying bill, H.R. 3043, due to its negative impact on States' rights and States' prerogatives under the Clean Water Act, my substitute amendment addresses these issues in a more responsible way. Mr. Chairman, H.R. 3043 will not modernize or improve the hydropower licensing process, but, rather, it simply places private profits for industry over the public interest. Mr. Chairman, we certainly need a more balanced approach, such as the one provided in my substitute amendment, which contains bipartisan provisions that were included in the hydropower package that both sides agreed to in a fit of bipartisanship last December in committee. Mr. Chairman, my amendment contains several provisions to improve the licensing process while also offering incentives to the hydropower industry. This substitute contains a requirement to set up a new licensing process, but, unlike H.R. 3043, it protects the rights of Federal resource agencies, States, and Indian Tribes to impose conditions in accordance with modern environmental laws. My substitute also amends the definition of renewable energy to include all hydropower, just as H.R. 3043 does; however, it expands the goals for Federal purchasing of renewable power beyond the 15 percent included in H.R. 3043 as an objective, not a mandate. Mr. Chairman, my amendment also contains a ``reward for early action'' provision that authorizes FERC to take into account a licensee's investments made over the course of their license in order to improve the efficiency or environmental performance of their hydropower facility when setting the term of their new license. Mr. Chairman, in testimony before the Energy and Commerce Committee, we heard, repeatedly, that a major cause for licensing delays was due to incomplete applications that do not include all the pertinent information necessary to issue a decision. While H.R. 3043 does nothing to address this issue, my substitute does so by directing FERC and other Federal resource agencies to convene a negotiating rulemaking with all the stakeholders to develop a process in which a completed license application will be evaluated and issued or denied within a period of not more than 3 years. Mr. Chairman, my amendment preserves States' and Tribal authorities by directing FERC and the Secretary of the Interior to issue guidance on best practices for engagement with Indian Tribes in the hydropower licensing process. Mr. Chairman, we cannot allow industry profits to supersede the interests of Native Tribes, States, and other important stakeholders. Mr. Chair, I yield back the balance of my time.

Mr. RUSH. Mr. Chair, I demand a recorded vote.

Mr. RUSH

Mr. RUSH. Mr. Speaker, I demand a recorded vote.

Mr. RUSH

Mr. RUSH. Mr. Speaker, I ask unanimous consent to be removed from H.R. 620.