CSPA to FERC: The Standard License Reopener is Always Closed

Statement of Chris Shutes, California Sportfishing Protection Alliance, on the reality of standard reopeners in hydropower licenses

Before the Study Dispute Panel, Yuba River Development Project (P-2246,Yuba County Water Agency) relicensing proceeding before the Federal Energy Regulatory Commission, Sacramento, California, November 30, 2011. Study Dispute between National Marine Fisheries Service and FERC Office of Energy Projects

Mr. Mitchnick [senior FERC staff], I believe, said that the Commission seeks “to keep the door open.” He suggests that the standard reopener is the means to do that. However, a reopener is a completely discretionary action that FERC has almost never exercised in order to improve conditions for fish, at least in California. We have examples where there have been extreme situations where parties, including CSPA, have requested reopeners that have been denied by the Commission.

Mr. Lilly [attorney for  YCWA] expressed concern about a defined trigger absent details. The problem is that there is either a defined trigger or a purely discretionary threshold that never seems to be met. Part of that discretion involves concern over procedural and regulatory requirements, such as the ESA and 401 processes, that go along with starting from scratch. The overwhelming choice by FERC to date has been to simply push the question off till relicensing.

The reopener is a procedural category that ends up being a substitute for action. We don’t think that pushing out study to inform reintroduction of anadromous fish for 30 to 50 years is consistent with the overall Federal Power Act mandate that license decisions must be in the public interest.

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