Commissioner James Danly Statement
January 20, 2022
Project No. 2883-009
I concur with the decision to issue Aquenergy Systems, LLC (Aquenergy) a new license to continue to operate and maintain the Fries Hydroelectric Project. I dissent in part because the Commission impermissibly dismisses recommendations filed by the U.S. Department of the Interior and Virginia Department of Wildlife Resources under section 10(j) of the Federal Power Act (FPA).[1]
FPA section 10(j) provides that “each license . . . shall include conditions for such protection, mitigation, and enhancement” of “fish and wildlife . . . affected by the development, operation, and management of the project . . . .”[2] The statute states those conditions “shall be based on recommendations received pursuant to the Fish and Wildlife Coordination Act [] from the National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies.”[3]
The statute explicitly defines the process by which the Commission may reject fish and wildlife recommendations filed under FPA section 10(j)—after “[a] finding that adoption of such recommendation is inconsistent with the purposes and requirements of [the Act] or with other applicable provisions of law”[4] and “[a] finding that the conditions selected by the Commission”[5] “adequately and equitably protect, mitigate damages to, and enhance fish and wildlife . . . affected by the development, operation, and management of the project . . . .”[6] This requirement is not ambiguous. Nowhere does the FPA state that the Commission may reject an agency’s recommendation because it includes a study that “could have been conducted during pre-licensing”[7] or merely because the recommendation did not provide “specific actions or protocols.”[8] And while I agree that we can likely dismiss recommendations that are not concerned with “fish and wildlife” as outside the scope of FPA section 10(j), I am far from certain that a recommendation to require a licensee to coordinate with a resource agency in the event that a species is documented at or near a project is not a “specific fish and wildlife measure[].”[9] The FPA’s mandate is simple: the Commission “is not required to adopt recommendations that are inconsistent with any other purpose of the Federal Power Act” but “[a]gency recommendations ‘cannot be lightly dismissed.’”[10]
In addition, I write separately to express my concern about Article 409, which reserves authority for the Commission to impose financial assurance mechanisms without any limiting principle.[11] As I have previously stated,[12] this reservation may have the unfortunate effect of reinforcing uncertainty and limiting licensees’ access to the very financing we should seek to encourage. I very much appreciate Chairman Glick’s announcement last month that Commission staff would be convening a technical workshop to discuss financial assurance mechanisms.[13] It is imperative that the Commission take a hard look at our financial assurance requirements and deliberately determine what, if any, changes or improvements should be adopted.
For these reasons, I respectfully concur in part and dissent in part.
[1] Aquenergy Systems, LLC, 178 FERC ¶ 61,025, at PP 45-46 (2022) (Aquenergy).
[2] 16 U.S.C. § 803(j)(1).
[3] Id. (citation omitted) (emphasis added).
[4] Id. § 803(j)(2)(A).
[5] Id. § 803(j)(2)(B).
[6] Id. § 803(j)(1).
[7] Aquenergy, 178 FERC ¶ 61,025 at P 45 & n.32 (citing 18 C.F.R. § 4.30(b)(9)(ii)).
[8] Id. P 46. I acknowledge that the Commission has precedent dating back to 1987 that states recommendations filed under FPA section 10(j) must provide “specific measures to protect fish and wildlife.” Idaho Nat. Energy, Inc., 39 FERC ¶ 62,038, at 63,065 (1987). However, that requirement is not in the statute. And while the Fish and Wildlife Coordination Act states that “[r]ecommendations of the Secretary of the Interior shall be as specific as is practicable with respect to features recommended for wildlife conservation and development,” 16 U.S.C. § 662(b) (emphasis added), I do not believe it wise for the Commission to interpret what “specific as is practicable” means.
[9] Aquenergy, 178 FERC ¶ 61,025 at P 46 n.34.
[10] Am. Rivers v. FERC, 201 F.3d 1186, 1204 (9th Cir. 1999) (quoting H.R. Conf. Rep. No. 99-934, at 23).
[11] See Aquenergy, 178 FERC ¶ 61,025 at Ordering Para. (E) (listing additional license articles, including Article 409 which provides: “The Commission reserves the right to require future measures to ensure that the licensee maintains sufficient financial reserves to carry out the terms of the license and Commission orders pertaining thereto.”) (emphasis added).
[12] See, e.g., Pub. Util. Dist. No. 1 of Pend Oreille Cnty., 177 FERC ¶ 61,183 (2021) (Danly, Comm’r, concurring at PP 1-3).
[13] See Transcript of the 1085th Meeting, FERC, at 51 (Dec. 16, 2021), https://www.ferc.gov/news-events/events/december-16-2021-virtual-open-meeting-12162021.