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Significant Hydro-Related Federal Legislation Pending by Elizabeth McCormick, Andrea Wortzel & Troutman Pepper JD Supra, March 31, 2021

On February 6, U.S. Rep. Mike Simpson (R-Idaho) introduced a proposal that would attempt to restore northwest salmon populations by breaching four dams managed by the Bonneville Power Administration (BPA) on the Lower Snake River in Idaho.

The four dams -- the Ice Harbor, Lower Monumental, Little Goose, and Lower Granite dams -- are part of the Federal Columbia River Power System. The dams are a significant source of renewable energy in the Northwest, provide irrigation for high-value farmland, and enable the transportation of large shipments of grain and other crops that are freighted along the Snake River. However, the dams have been controversial since their completion in the 1970s because of their impacts on salmon populations. Despite fish ladders and other mechanisms for fish passage, the dams have continued to inhibit the passage of salmon to and from the Pacific Ocean.

Simpson's $33.5 billion plan, which he stated is intended to end the long-running "salmon wars" between tribes, farmers, and electric utilities, would remove the four dams in an attempt to restore salmon populations in Idaho and invest $10 billion to replace the power produced by the dams, which together have over 2,600 megawatts (MW) of capacity. Simpson and proponents of his plan argue that the power generated by the dams is increasingly costly compared to other renewable sources of generation. Native American Tribes, for whom salmon is so culturally significant, also support Simpson's plan. Opponents of Simpson's plan, however, are concerned that the plan fails to provide details on how the power generated by the dams would be replaced. Farmers and ranchers also oppose the plan for the impact it would have on irrigation and transportation.

Other aspects of Simpson's proposal include:

• Providing 35-50-year license extensions for all FERC-licensed dams on the Columbia River greater than 5 MW; Implementing a 35-year litigation moratorium on issues related to anadromous fish under the Endangered Species Act (ESA),

• National Environmental Policy Act (NEPA), and the Clean Water Act (CWA) for the 14 federal dams on the Columbia River system, the 12 federal dams on the Upper Snake River, and all FERC-licensed dams greater than 5 MW within the Columbia River Basin;

• Implementing a 25-year exemption from lawsuits for agriculture and transportation entities that participate in voluntary watershed management partnerships;

• Guaranteeing economic adjustment protections for farmers and bargers that use the Snake River to irrigate and transport crops;

• Establishing a Center for Advanced Energy Storage at the Pacific Northwest National Laboratory; and

• Providing waterfront recreation, development funds, and tourism promotion for communities along the Snake River.

U.S. Rep. Cathy McMorris Rodgers (R-WA) released a statement opposing Simpson's plan and on March 3 introduced her own proposal, the Hydropower Clean Energy Future Act, H.R. 1588, to help the United States "develop the next-generation hydro technology needed to increase clean energy production, further decrease environmental impact, and allow America to lead on sustainability."

H.R. 1588 affirms the role of hydropower as an "essential renewable resource" and would require all Federal renewable purchase requirements to include hydropower. It also attempts to modernize and streamline the FERC licensing process by designating FERC as the lead agency for all Federal authorizations and for complying with any state or local environmental reviews and by clarifying responsibilities, setting schedules, and establishing mechanisms to resolve disputes among licensing parties. Additionally, H.R. 1588 provides exemptions from certain requirements of the Federal Power Act for small hydropower projects that are unlikely to jeopardize threatened or endangered species or critical habitat and establishes an expedited licensing process for "next-generation" hydropower projects that use certain technologies that protect or enhance environmental resources.

The full text of H.R. 1588 is available here.