Organizing for Endangered and Threatened Species Habitat Draft

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CHAPTER SEVEN: NEBRASKA-THE STRUGGLE AT KINGSLEY DAM Given that FERC relicensing was required for all hydropower facilities as their original licenses expired, and given that licenses for Kingsley dam and its related facilities were originally granted in 1937, it was inevitable that discussion would emerge around the application process in the early 1980's. That process would provide a once-in-a-lifetime opportunity to re-examine options and redefine the terms under which the projects would operate. In 1984 CNPPID and NPPD began formally working on relicensing their projects with FERC (Gaul 1993: 224). In May of 1987, just prior to the expiration of the original licenses, the FWS required FERC to fully consult under Section 7 of the Endangered Species Act (LJ.S. Fish & Wildlife Service 1997: 6). The licensing procedure was of interest to the Department of the Interior, Wyoming, Colorado, the Environmental Protection Agency, environmental organizations, and over 50 other parties. Discussions between FWS, FERC, NPPD and CNPPID were extended, detailed, energy consuming, costly, and torturous. In February of 1996, FERC requested a final consultation with FWS on the proposed relicensing of the Districts' facilities, prompting issuance of a FWS Biological Opinion. That opinion concluded that relicensing of Kingsley dam facilities would jeopardize the continued existence of the endangered whooping crane, least tern, pallid sturgeon, and the threatened piping plover. Also, it would result in adverse modifications of Federally designated whooping crane critical habitat on the central Platte (U.S. Fish & Wildlife Service 1997). In July of 1997, the FWS presented two options for the Districts: 1) a stand alone option, in which the Districts would be individually responsible for their portion-as calculated by the FWS-of preservation of the critical habitat along the Platte; or, 2) to make the proposed re-licensing action an integral part of the Memorandum of Understanding initiating the Platte River Recovery Program. CNPPID and NPPD chose to integrate their re- licensing efforts with the basin-wide collaborative effort that had been launched in June of 1994, and that had produced an outline of a basin-wide solution by June, 1997. In July 1998, after 13 years and an expenditure of over $30,000,000, the Districts then received their renewed 40 year licenses from FERC. FERGKingsley Dam Operating Requirements While FERC has authority to deny a license, its focus is primarily on terms and conditions to be included in the new license. FERC insisted that the facilities be managed in a way that would trade away some drought protection and power production in order to improve the health of aquatic ecosystems. The changes would be modest, but required acknowledgment of a very different operating philosophy than that informing the original licenses (Gaul 1993: 224). The licenses issued to the Districts are a mix of conditions to follow in operation of facility, a general mandate to cooperate in implementation in the 1997 Cooperative Agreement, more demanding requirements that would go into effect if the Cooperative Agreement effort should fail, and a"re- opener" clause that reserved FERC's authority to modify licenses in the future based on changed conditions or any information (Echeverria, 2001: 576). The Districts and the U.S. Department of the Interior (DOn reached an agreement in principle for fulfilling license conditions for Kingsley dam. They obligate the Districts to take 40