Appendix F. Future hydropower electric development and licensing, and protected areas

The overarching sub-strategy and a summary of key provisions are in the main text of the program. Appendix F contains the substantive provisions of this portion of the program, in three parts; (a) future hydroelectric development and licensing standards and implementation; (b) protected areas and implementation; and (c) general implementation measures.

a) Future Hydroelectric Development and Licensing

Sub-strategy

Ensure that new hydroelectric development is carried out in a manner that protects the remaining fish and wildlife resources of the Columbia River Basin and the Pacific Northwest and does not add to the region’s and ratepayers’ mitigation obligation.

Rationale

New hydroelectric development has the potential to cause further damage to the Columbia River Basin’s fish and wildlife resources, as well as to negate ongoing efforts to protect against and mitigate for damage caused by the existing hydropower system. On that basis, the Council has adopted a set of standards for the Federal Energy Regulatory Commission, Bonneville and other federal agencies to apply to the development and licensing of new hydroelectric facilities in the Columbia River Basin. As part of this effort, the Council has designated certain river reaches as “protected areas.” The Council found that new hydroelectric development in a designated protected area would have unacceptable risks of loss to fish and wildlife species of concern, their productive capacity, or their habitat.

General Measures - Standards for new hydroelectric development and licensing:

  • Potential effects on fish
    • The Federal Energy Regulatory Commission, Corps of Engineers, Bureau of Reclamation and Bonneville shall not license, exempt from license, relicense, propose, recommend, agree to acquire or wheel power from, grant billing credits for, or otherwise support any hydroelectric development in the Columbia River Basin without specifically providing for these development conditions:
      • Consultation with the fish and wildlife agencies and tribes and the Council throughout study, design, construction, and operation of the project
      • Development of specific plans for flows and fish facilities prior to construction
      • Use of the best available means for aiding downstream and upstream passage of anadromous and resident fish
      • Provision of Columbia and Snake river flows and reservoir levels of sufficient quantity and quality to protect spawning, incubation, rearing, and migration
      • Full compensation for unavoidable fish losses or fish habitat losses through habitat restoration or replacement, appropriate production, or similar measures consistent with the provisions of this program
      • Assurance that the project will not inundate the usual and accustomed, traditional, or contemporary fishing places of any tribe without tribal approval
      • Assurance that the project will not degrade fish habitat or reduce numbers of fish in such a way that the exercise of treaty or executive-order tribal rights will be diminished
      • Assurance that all fish protection measures are fully operational at the time the project begins operation
      • Assurance that the project developer will collect data needed to monitor and evaluate the results of the fish protection efforts
      • Assurance that the project will not degrade water quality beyond the point necessary to sustain sensitive fish species (as designated in consultation with the fish and wildlife agencies and tribes)
  • Potential effects on wildlife
    • The Federal Energy Regulatory Commission, Corps of Engineers, Bureau of Reclamation and Bonneville shall not license, relicense, exempt from license, propose, recommend, agree to acquire or wheel power from, grant billing credits for, or otherwise support any hydroelectric development in the Columbia River Basin without specifically providing for these development conditions:
      • Consulting with fish and wildlife agencies and tribes and the Council throughout study, design, construction and operation of the project
      • Avoiding inundation of wildlife habitat, insofar as practical
      • Timing construction activities, insofar as practical, to reduce adverse effects on nesting and wintering grounds
      • Locating temporary access roads in areas to be inundated
      • Constructing sub-impoundments and using all suitable excavated material to create islands, if appropriate, before the reservoir is filled
      • Avoiding all unnecessary or premature clearing of land before filling the reservoir
      • Providing artificial nest structures when appropriate
      • Avoiding construction, insofar as practical, within 250 meters of active raptor nests
      • Avoiding critical riparian habitat (as designated in consultation with the fish and wildlife agencies and tribes) when clearing, rip-rapping, dredging, disposing of spoils and wastes, constructing diversions, and relocating structures and facilities
      • Replacing riparian vegetation if natural revegetation is inadequate
      • Creating sub-impoundments by diking backwater slough areas, creating islands and nesting areas
      • Regulating water levels to reduce adverse effects on wildlife during critical wildlife periods (as defined in consultation with the fish and wildlife agencies and tribes)
      • Improving the wildlife capacity of undisturbed portions of new project areas (through such activities as managing vegetation, reducing disturbance, and supplying food, cover and water) as compensation for otherwise unmitigated harm to wildlife and wildlife habitat in other parts of the project area
      • Acquiring land or management rights, such as conservation easements, where necessary to compensate for lost wildlife habitat at the same time other project land is acquired and including the associated costs in project cost estimates
      • Funding operation and management of the acquired wildlife land for the life of the project
      • Granting management easement rights on the acquired wildlife lands to appropriate management entities
      • Collecting data needed to monitor and evaluate the results of the wildlife protection efforts
      • Assuring that the project will not inundate the usual and accustomed, traditional or contemporary hunting places of any tribe without tribal approval
      • Assuring that the project will not degrade wildlife habitat or reduce numbers of wildlife in such a way that the exercise of treaty or executive order tribal rights will be diminished

Ensure that all licenses for hydroelectric projects or documents that propose, recommend, or otherwise support hydroelectric development explain in detail how the provisions of this section will be accomplished or the reasons why the provisions cannot be incorporated into the project.

b) Protected areas

Sub-strategy

The Council supports protecting some streams and wildlife habitats from hydroelectric development, where the Council believes such development would have major negative impacts that could not be reversed.

Protected Areas List

River reaches to be protected are those reaches or portions of reaches listed on the “Protected Areas List” adopted by the Council on August 10, 1988, and subsequently amended. For each river reach listed on the Protected Areas List, the fish and wildlife to be protected are those on the list. Information on protected areas may be accessed through the Council’s website. The Council will also supply a list of the protected areas to any party free of charge.

Rationale

Beginning in 1983, the Council directed extensive studies of existing habitat and has analyzed alternative means of protection. In 1988, the Council concluded that: (1) the studies had identified fish and wildlife resources of critical importance to the region; (2) mitigation techniques cannot assure that all adverse impacts of hydroelectric development on these fish and wildlife populations will be mitigated; (3) even small hydroelectric projects may have unacceptable individual and cumulative impacts on these resources; and (4) protecting these resources and habitats from hydroelectric development is consistent with an adequate, efficient, economical, and reliable power supply. The Council, relying on these studies, designated certain river reaches as “protected areas,” where the Council believes hydroelectric development would have unacceptable risks of loss to fish and wildlife species of concern, their productive capacity or their habitat.

Most of the river reaches designated as protected areas are in the Columbia River Basin. But the designations also include river reaches outside the Columbia River Basin but within the service territory of the Bonneville Power Administration and thus within the scope of the Pacific Northwest’s regional power system. The designations are intended as an expression of the Council’s authority under the Northwest Power Act to protect, mitigate and enhance fish and wildlife in the Columbia River Basin from the adverse effects of the development and operation of the region’s existing hydroelectric facilities and as an expression of the Council’s obligations under the same Act to give due consideration in the Council’s regional power plans to the effects of new energy resources (including new hydroelectric resources) on fish and wildlife resources and environmental quality and to internalize the environmental costs and benefits of such new resources to the greatest degree possible in deciding whether to recommend their addition to the region’s power supply.

General Measures - Implementing protected areas:

  • Bonneville Power Administration
    Shall not acquire power from hydroelectric projects located in protected areas. The Council believes that the Long-Term Intertie Access Policy’s reliance on protected areas is consistent with the Council’s power plan and Fish and Wildlife Program as they apply to fish and wildlife in the Columbia River Basin. The Council continues to recommend that Bonneville adopt a similar policy with respect to protected areas outside the Columbia River Basin.
  • Federal Energy Regulatory Commission
    Under the Northwest Power Act, the Federal Energy Regulatory Commission, and all other federal agencies responsible for managing, operating, or regulating federal or non-federal hydroelectric facilities located on the Columbia River or its tributaries are required to take protected area designations into account to the fullest extent practicable at all relevant stages of decision-making processes. The Council recognizes that the Federal Energy Regulatory Commission makes licensing and exemption decisions for nonfederal projects, and does not expect that the Commission will abandon its normal processes with regard to projects located in protected areas. Rather, consistent with Section 4(h)(11) of the Northwest Power Act, the Council expects that the Federal Energy Regulatory Commission will take the Council’s judgment into account, and implement that judgment in licensing and exemption decisions unless the Federal Energy Regulatory Commission’s legal responsibilities require otherwise.

Exemptions

  • The Council adopts conditions for exemptions to this policy.
    • The following are not affected by protected areas:
      • Any hydroelectric facility or its existing impoundment that as of August 10, 1988, had been licensed or exempted from licensing by the Federal Energy Regulatory Commission
      • The relicensing of such hydroelectric facility or its existing impoundment
      • Any modification of any existing hydroelectric facility or its existing impoundment, and
      • Any addition of hydroelectric generation facilities to a non-hydroelectric dam or diversion structure

Transition projects

The Council recognizes that there existed, as of August 10, 1988, applications for hydroelectric projects that were in various stages of completion before the Federal Energy Regulatory Commission. In many cases the applicants made substantial investments and had completed, or nearly completed, agreements with all interested parties, including state fish and wildlife agencies. The Council recognized that the Federal Energy Regulatory Commission may be obligated to complete its processes on these applications, but expects where possible that this measure will be taken into account to the fullest extent practicable.

The Council recognizes that there may exist preliminary permits or applications for licenses or exemptions for hydroelectric projects at sites that were not previously within protected areas, but which may be included within protected areas as a result of amendments approved by the Council. An important purpose of protected areas is to encourage developers to site projects outside protected areas. The Council recognizes that from time to time the designation of an unprotected area may be changed to protected. This is accomplished through a formal process under the Northwest Power Act to amend the program. If a project is moving ahead in an unprotected area -– a permit has been granted, or a license or exemption is pending — at the time the Council enters the formal process to change the designation to protected, that project is exempted from the protected areas rule. However, it is the Council’s intention that the Federal Energy Regulatory Commission gives full consideration to the protection of fish and wildlife resources located at these project sites and provide suitable protection and mitigation for such resources in the event that a license or exemption is approved.

Effect on water rights

This measure should not be interpreted to authorize the appropriation of water by any entity or individual, affect water rights or jurisdiction over water, or alter or establish any water or water-related right. The Council does not intend this measure to alter or affect any state or federal water quality classification or standards, or alter any management plan developed pursuant to the national Forest Management Act, 16 U.S.C. 1601, et seq., or the Federal Land Policy Management Act, 43 U.S.C. 1701, et seq., except to the extent planning decisions are directly related to hydropower licensing and development. Nor should this measure be interpreted to alter, amend, repeal, interpret, modify, or conflict with any interstate compact made by the states. If this measure is found by a court or other competent authority to conflict with any other interstate compact this measure will terminate with respect to the area involved, without further action of the Council.

Effect on riparian areas

This measure applies to river reaches, or portions of river reaches, and to river banks or surrounding areas only where such areas would be directly affected by a proposed hydroelectric project. In adopting this measure, the Council has not attempted to balance all the factors that may be relevant to land management determinations.

Amendment to protected area designation

  • Any party may recommend an amendment to the program to change the designation of a river reach as protected or unprotected or to change the reason for a protected area.
  • Before recommending a change in a protected area designation, the recommending party must notify the appropriate state and federal fish and wildlife agencies and Indian tribes and consult with those agencies and tribes regarding the proposed change in designation.
  • Recommendations for a change to a designation must contain the following:
    • The location of the affected river reach, including the reach number as listed in the Council’s protected areas data base
    • A statement of the facts supporting the proposed change
    • A summary of consultations the petitioner has had with relevant fish and wildlife agencies and Indian tribes regarding the petition, and the responses of the agencies and tribes
  • The Council will decide whether to change the designation as recommended following the procedures and standards for a program amendment process under the Northwest Power Act. The Council will not designate as protected a river reach that is not protected without the concurrence of the state in which the river reach is located.

Technical corrections to protected areas data base

The Council staff is authorized, on its own initiative or on the request of any party offering technically credible information, to make minor technical corrections in the protected areas data base. Minor technical corrections include the correction of typographical errors, the correction of information regarding lengths of river reaches, and the inclusion of additional information regarding species present on a particular river reach. No technical correction shall change the protected or unprotected status or the reason for protection of a river reach.

Petitions for an exception to the protected area designation for proposed projects that will provide exceptional benefits to fish and wildlife

  • Any party may file a petition with the Council for an exception to the effect of a protected area designation for a proposed project that will provide exceptional survival benefits as determined by the relevant fish and wildlife agencies and tribes for the fish, wildlife, or both that are the reason for the designation. Before filing a petition with the Council, the petitioner must notify the appropriate state and federal fish and wildlife agencies and Indian tribes and consult with those agencies and tribes regarding the petition for exception.
  • Petitions must contain the following:
    • The location of the affected river reach, including the reach number as listed in the Council’s protected areas data base
    • A statement of the facts showing the anticipated benefits and the anticipated detriments of the proposed project
    • An explanation of how the project will affect the Council’s power plan and fish and wildlife program, or, if outside the Columbia River Basin, how the project will affect the plan and relevant state and tribal comprehensive plans
    • An explanation of how the petitioner has determined that the project will achieve exceptional fish and wildlife benefits
    • A summary of consultations the petitioner has had with relevant fish and wildlife agencies and Indian tribes regarding the petition, and the responses of the agencies and tribes
  • The Council may seek independent scientific review of the petition.
  • After review, and after an opportunity for public review and comment, the Council will make a decision on the petition. The Council will approve the petition only if the Council determines the proposed project will provide exceptional benefits to fish and wildlife.

c)    General implementation measures

  • Federal project operators and regulators
    Shall review simultaneously all applications or proposals for hydroelectric development in a single river drainage, through consolidated hearings, environmental impact statements or assessments, or other appropriate methods. This review shall assess cumulative environmental effects of existing and proposed hydroelectric development on fish and wildlife.

Ensure consistency with this program

  • Federal Energy Regulatory Commission
    Shall require all applicants for licenses (including license renewals, amendments, and exemptions) and preliminary permits in the Columbia River Basin to demonstrate in their applications how the proposed project would take this program into account to the fullest extent practicable. FERC also shall provide the Council with copies of all applications for licenses (including license renewals, amendments, and exemptions) and preliminary permits in the Columbia River Basin so that the Council can comment in a timely manner on the consistency of the proposed project with this fish and wildlife program. This provision is not intended to supplant review of such applications by the fish and wildlife agencies and tribes.
  • Federal land managers, federal and state fish and wildlife agencies and other state agencies
    Federal and state fish and wildlife agencies and federal resource agencies shall incorporate pertinent elements of the fish and wildlife program in the terms and conditions they apply to projects exempted from licensing under Federal Energy Regulatory Commission exemption procedures. The Council also requests that federal land managers incorporate the development provisions of this program into their permit procedures related to hydroelectric development on lands they manage. And the Council requests that state agencies that grant permits for hydroelectric projects also apply these principles.
  • Corps of Engineers, Bureau of Reclamation, and any other federal agency studying or proposing hydroelectric development in the Columbia River Basin
    Shall provide opportunity for Council review and comment.

 

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