The Federal Energy Regulatory Commission (FERC) on September 12, 2002 sent notice requesting comments and recommendations concerning the Interagency Hydropower Committee’s proposed hydropower licensing process.

The Haudenosaunee Environmental Task Force filed comments and recommendations electronically. The deadline for electronic filing was Friday, December 6, 2002 .

The Haudenosaunee Environmental Task Force are provided below.

United States of America
Federal Energy Regulatory Commission

Docket No. RM02-16-000     )           Comments of the Haudenosaunee
                                                    )                    Environmental Task Force
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The Haudenosaunee Environmental Task Force (HETF) is composed of delegates (Haudenosaunee leaders, environmental technicians and scientists) chosen by each of the Haudenosaunee Nations (Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora) who are committed to identifying environmental problems in their communities and working to find solutions to these problems.

The HETF presently administers a grant from the EPA to assist the Cayuga, Tuscarora, and Tonawanda Seneca Nations as they develop environmental protection programs. The HETF is also working to create a modern day culturally based environmental protection process to help the individual nations and communities of the Haudenosaunee protect and restore the natural world, while preserving our unique relationship with it, as sustainable societies.

The Haudenosaunee Environmental Task Force files these comments in response to FERC’s Notice Requesting Comments and Establishing Public Forums and Procedures and Schedule, dated September 12, 2002

COMMENTS

The Haudenosaunee Environmental Task Force commends the Commission for undertaking this rulemaking process. Hydropower projects under FERC jurisdiction have significant impacts on the natural environment and those seeking culturally sustainable societies.

The goals of reducing cost and time while maintaining environmental quality are praiseworthy. We support reforms to licensing that seek to reduce complexity and enhance public benefits. However, such reforms should not be at the detriment of the Indian Nations (Tribes) or stakeholders.

In essence, the reforms should make the process more efficient and better organized. The reforms should not trade a shortened time frame for the ability of Indian Nations (Tribes) and stakeholders to have adequate and meaningful participation at the embryonic stage of the project. Thus, the Haudenosaunee Environmental Task Force is not in favor of the Interagency Hydropower Committee’s proposed Hydropower Licensing process reform because it will not result in increased efficiency and will come at the ability of Indian Nations (Tribes) and stakeholders to meaningfully participate.

CONCERNS

We have identified two major problems with the Proposal. First, we disagree that the Proposal will facilitate earlier Stakeholder involvement. As it is structured, the Proposal has the potential to eliminate early meaningful involvement of Indian Nations (Tribes) and stakeholders by combining the Initial Consultation Document with the NEPA scoping process. This has the potential to cause more delays because it creates an adversarial relationship between the applicant and Indian Nations (Tribes) and stakeholders by taking away their opportunity for early meaningful involvement and replacing it with commenting after the Pre-Scoping Document is issued.

We have experience under the Alternative licensing process to support this conclusion. The Mohawk Nation has been involved in the licensing of the St. Lawrence – FDR Power Project (FERC Project No. 2000). The Nation participated immediately upon release of the Initial Consultation Package. This allowed the Mohawk Nation to help develop Mohawk issues related to licensing. These issues were then included as part of Scoping Document 1 that was released one year later.

The Proposal would eliminate this important step and replace it by having Tribes and stakeholders comment after the Pre-Scoping Document is distributed. Rather than streamlining the process, the Proposal has the potential to create additional delays as Tribes and stakeholders are put into a position of reacting to the document rather than contributing to its development.

Encouraging applicants to work with stakeholders and with the Commission staff to determine resource impacts and information needs before issuing its Pre-Scoping Document is a step in the right direction but does not go far enough. The applicant should be required to work with stakeholders and with the Commission staff to determine resource impacts and information needs before issuing its Pre-Scoping Document. If not, the Indian Nations and stakeholders are at a serious disadvantage if the applicant chooses not to consult with them prior to issuing its Pre-Scoping Document.

Second, shortening the time frame by requiring the licensee to distribute a Pre-Scoping Document 5 to 5 ½ years before the license expiration will not facilitate earlier stakeholder involvement or streamline the process. We believe it has the potential to make it more difficult to participate and sets unrealistic time frames for completion of important steps, especially for large-scale projects. The applicant for the St. Lawrence – FDR Power Project released their Initial Consultation Package 7 ½ years before the expiration of the license. Scoping Document 1 was released one year later. The 7 ½-year time period was necessary to allow for meaningful participation by the Mohawk Nation and stakeholders in the licensing process. Even with this extended time frame, participants felt pressure at the end of the process to still meet the regulatory deadlines. Shortening the time frame would have made it more difficult to reach a successful conclusion. We agree and strongly support efforts to involve Commission staff earlier in the process. Waiting until after the license application is filed is too late in the process to become formally involved. However, shortening the time frame for the process will not address this issue. Moving the point where the Commission staff is required to participate makes more sense. In the licensing of the St. Lawrence – FDR Power Project, Commission staff were present in the alternative licensing process as observers. They were committing personnel and financial resources in this observer role but it could have been better utilized if they were there in their official capacity, not just as observers.

Where this lateness in Commission staff involvement is clearly an issue is in regards to Commission staff meeting their Section 106 consultation requirements under the National Historic Preservation Act (NHPA). As has been mentioned, the licensing process for the St. Lawrence – FDR Power Project started 7 ½ years before the expiration of the license. The application for a license was filed one year before the expiration of the license. The initial consultation meeting for Section 106 of the NHPA took place 11 months before the expiration of the license and after FERC accepted the application.

Because Commission staff waited until after the license application was filed and accepted to fulfill their Section 106 consultation requirements, the creation of a Cultural Resources Management Plan (CRMP) will have to occur post-license. Six years of opportunity to cooperatively work on the CRMP were lost because of this FERC practice or requirement of waiting until after the license is accepted before initiating the Section 106 NHPA consultation. Had Commission staff been required to participate with the release of the Initial Consultation Package, then there would have been adequate time to meet their Section 106 consultation obligations before the issuance of a new license, not afterwards.

RECOMMENDATIONS

The Haudenosaunee Environmental Task Force supports improvements to the hydropower relicensing process to make it more efficient and better organized. Specifically, it should:

1. Support early meaningful involvement by Indian Nations and stakeholders;

The Haudenosaunee Environmental Task Force can support the combining of the license applicant’s pre-filing consultation with the Commission staff’s NEPA scoping process provided that the ability to participate meaningfully is protected for Indian Nations (Tribes) and stakeholders. Applicants should be required to involve affected Indian Nations (Tribes) and stakeholders in the development of the Pre-Scoping Document.

The Proposed process eliminates the crucial initial meetings with the applicant; secondly, eliminates the opportunity to create cooperative efforts between applicants, Indian Nations and stakeholders at the initial stage; and, thirdly, creates an atmosphere for adversarial relationships. Indian Nations and stakeholders are left to potentially respond to a Pre-scoping document that they had no input in and to identify issues of concern in a mere 60 days.

The Proposal should focus on building more effective and positive relationships and partnerships amongst all interested parties in the licensing process rather than trying to shorten time frames as the solution to streamlining.

2. Support earlier involvement of Commission staff in the licensing process;

The Haudenosaunee Environmental Task Force strongly supports the earlier involvement of Commission staff in the licensing process. The Commission staff can play an important role by fulfilling their federal responsibilities sooner in the licensing process. Of particular importance is fulfilling their Section 106 consultation requirements of the National Historic Preservation Act and promoting the development of Cultural Resource Management Plans in a timely fashion, before a new license is issued.

3. Support indigenous traditional knowledge, culture, and awareness;

Studies are at the heart of the licensing process. They tell us what resources are affected by project impacts, how they are affected, and what alternative measures may be available for mitigation. Studies are imperative for the completeness of the application. Studies are necessary for the Indian Nations (Tribes), State and Federal agencies to help them determine what measures will protect and enhance the resources under their jurisdiction.

Indian Nations (Tribes) are in a unique position to identify the cultural concerns that need to be included for study. They also have cultural knowledge of the measures needed to protect and enhance cultural practices and resources within their jurisdiction. As such, the new process should require, when the project impacts an Indian Nation, cultural awareness be mandatory and that studies include the involvement of traditional indigenous knowledge as a science.

4. Time Frames that are more flexible, based on the size of the project being licensed.

The Haudenosaunee Environmental Task Force supports applicants to distribute a Pre-Scoping Document by a specific date. However, we do not support a 5 to 5 ½ year time frame for this submission. Instead, it should be more flexible and factor in the size of the project being licensed as one of the criteria in establishing this date. For large-scale projects, the proposed time frame is unrealistic and counterproductive to the stated objectives of the Proposal.

CONCLUSION

The Haudenosaunee Environmental Task Force is not convinced that the streamlined process that is proposed will accomplish the goals it seeks. Furthermore, the HETF believes the proposed rule deters effective collaboration, consultation, and the protection of tribal cultural practices and resources. We emphasize the primary objectives above as important guidelines for strengthening this rulemaking. The Haudenosaunee Environmental Task Force appreciates the opportunity to comment on these proceedings.

Respectfully submitted,

James W. Ransom
Director

December 5, 2002

Haudenosaunee Environmental Task Force
P.O. Box 366
Rooseveltown, New York 13683
Phone: 518-358-3381
e-mail: jransom@westelcom.com

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