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FERC's LaFleur, Glick raise 'cooperative federalism' concerns

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FERC's LaFleur, Glick raise 'cooperative federalism' concerns

As a matter of "cooperative federalism," the Federal Energy Regulatory Commission should have included certain conditions in licenses for two West Virginia hydropower facilities even though a state agency missed the deadline for making those conditions mandatory, Commissioners Cheryl LaFleur and Richard Glick said in a partial dissent to a recent agency order.

The conditions, which include construction of public restrooms and installation of trash receptacles at recreational areas associated with the facilities, were requested by the West Virginia's Department of Environmental Protection, or DEP. LaFleur and Glick said some of them were modest and therefore should have been adopted.

"There have been a lot of jokes made on the floor this week, many of them made by me, that I am dissenting on the issue of porta-potties versus permanent toilets, which I actually think is a fine issue for dissent, but there ... is something a little more meaningful going on in this docket in my mind," LaFleur said during FERC's March 15 regular open meeting. "In this case, the records show that the conditions were unopposed, and I would have granted some ... of the West Virginia conditions as a matter of discretion."

The licenses at issue are for two facilities located on the Monongahela River — FFP New Hydro's 5-MW Morgantown Lock and Dam Hydroelectric Project (P-13762) and 6-MW Opekiska Lock and Dam Hydroelectric Project (P-13753) — and the problem before FERC stems from the DEP's failure to issue water quality certificates for the projects within a prescribed window. Under the Clean Water Act and FERC's regulations, missing the deadline for issuing those certificates effectively means the DEP waived its authority to do so, and any conditions included when those certificates ultimately were issued no longer are mandatory but instead are considered recommendations.

Although FERC has the discretion to adopt the DEP's recommendations anyway, the licensing orders it issued for the projects in September 2017 contained none of the suggested conditions. Commission staff considered adopting those recommendations that were not administrative in nature but ultimately concluded that other recreational amenities included in the license orders were sufficient.

FERC on March 15 denied rehearing of those licensing decisions, and LaFleur and Glick in their partial dissent said they agree with the majority's finding that the DEP waived its mandatory conditioning authority by missing the deadline for issuing the water quality certificates. But they said the agency still should have included the DEP's conditions in the license, especially given that the state agency "affirmatively asserted that the licensee does not object to these conditions, and there is no record evidence to the contrary."

"The commission has often included minor conditions requested by state authorities in such circumstances as long as they do not interfere with the licensee's safe and effective operation of the hydroelectric facility for electric generation," LaFleur and Glick said.