WSP02490

• File Number: 8021
• Description: Section D General Correspondence - Western States Water Council
• State: CO
• Basin: Statewide
• Date: 1/14/1992
• Author: Western States Water
• Title: Western States Water 1992 - Issues 921-972
• Water Supply Pro - Doc Type: Publication

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WESTERN n;
STATES WATER

THE WEEKLY NEWSLETIER OF THE WESTERN STAlES WATER COUNCIL

editor - Tony Willardson

Creekview Plaza, Suite A-201 I 942 East 7145 So. I Hidvale, Utah 84047 I [phone] I FAX [phone]

chairman ~ Dave Kennedy

typist - carrie curvin

ENERGY

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National Energy Policy
On October 8, the Senate approved and cleared
for the President the Conference Report on H.R. 776.
The final bill includes several provisions related to
hydropower development and licensing procedures of
the Federal Energy Regulatory Commission (FERC),
Title XVII amends the Federal Power Act to authorize
annual charges to cover "any reasonable and
necessary costs incurred by federal and state fish
and wildlife agencies and other natural and cultural
resource agencies in connection with studies or other
reviews carried oul...for purposes of administering
their responsibilities...." This title also clarifies and
redefines the term "fishway," requiring FERC to
promulgate a new definition requiring the concurrence
of the Secretaries of Interior and Commerce, The bill
specifically states that fishways required at federally
licensed projects include facilities for the "safe and
timely upstream and downstream passage of fish."
and further clarifies that such "shall be limited to
physical structures, facilities, or devices..,in project
operations,..." During a colloquy on the Senate floor.
it was noted that the intent of the amendment is not
to include "regulated flows or assuming control over
the operation of project works...."

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An important remnant of the House "Miller
amendments" is included, amending Section 21 to
provide that "no licenses may use the right of eminent
domain under this section to acquire any lands or
other property that, prior to the date of enactment of
the Energy Policy Act of 1992, were owned by a state
or political subdivision thereof and were part of or
included within any public park, recreation area or
wildlife refuge established under state or local law,'
However, in the future, the right of eminent domain
may be used by licensees if there has been a public
hearing held in the affected community and FERC

executive director - Craig Bell

determines, after due consideration of expressed
public views and the recommend'ltions of the state or
political subdivision that owns the properly, that the
license will not interfere or be inconsistent with the
purposes for which such properly is owned.

Title XXIV relates to hydropower provisions not
related to the Federal Power Act Section 2401
amends the Federal Land and Policy Act to clarify
the respective jurisdiction ,between FERC and the
federal land management agencies, Any project
licensed prior to enactment of the bill cannot be
required to obtain any permit, right of way or other
approval 'for continued operation,' unless FERC
determines that the project involves the use of any
additional public lands or national forest lands not
reseNed under Section 24 of the Federal Power Act.
Section 2402 prohibits FERC from issuing an original
license for any "new hydroelectric power project
located within the boundaries of any un~ of the
national park system that would have a direct adverse
effect on federal lands..,." On the House floor Rep.
Bruce Vento (D-MN) noted that the language
overturns a Ninth Circuit court decision that misread
the FLPMA's plain language and returns to the Forest
Service and Bureau of Land Management authority
and responsibility for issuing rights of way or special
use permits for new FERC-Iicensed projects and
clarifies that FERC in the future cannot ignore
conditions imposed by the land managing agencies.

Other provisions of this title relate to authorization
for studies of opportunities to increase hydroelectric
generation at existing federal facilities (Section 2404);
feasibility studies of opportunities to increase
hydroelectric energy "from a reduction in the
consumptive use of such power for federal
reclamation project purposes or as a result of an
increase in the amount of water available for such
generation because of water conseNation efforts on