Hydropower projects impact public lands and water. Their impacts affect local and regional communities, as well as user groups who may travel long distances to use hydropower-related resources. Additionally, these projects may be located on lands utilized by Tribes or other indigenous populations that have relied on these lands for many generations for subsistence, transportation, and spiritual purposes.
While users may have different licensing goals and objectives, they are all part of a community interest. A licensing that involves and reflects the input of many involved community members usually leads to better outcomes for all.
The mission of the Federal Energy Regulatory Commission (FERC) is to “assist consumers in obtaining reliable, safe, secure, and economically efficient energy services at a reasonable cost through appropriate regulatory market means, and collaborative efforts.”
In addition, two of the Commission’s guiding principles are:
To be open and fair to all participants.
To ensure that stakeholders can contribute to the performance of the Commission’s responsibilities through “regular outreach.”
FERC’s Office of Public Participation (OPP) encourages community engagement in FERC hydropower licensing proceedings, including Tribal government consultation and engagement.
To ensure that all communities have the opportunity to participate in the licensing process:
Identify communities that are impacted or might have an interest in the project
Invite leaders of all potentially interested groups to participate in the project’s process and outcome.
Include the following as you reach out to various stakeholders:
Encourage their participation in decisions that may affect their recreation experiences, environment, and/or health.
Include input you receive that can be reflected in the regulatory agency’s decisions.
Ensure that decision-makers seek out and facilitate their involvement.
Hydropower projects may be located on the traditional lands of Indigenous peoples who have unique rights, and knowledge about the river, and they should know about opportunities for engagement in the licensing process. FERC, as well as other federal agencies, have Tribal trust and consultation responsibilities with Tribes interested in your project.
Identify Tribes that may have cultural significance on the land impacted by the project. The Tribal Directory Assessment Tool, developed by the US Department of Housing and Urban Development’s Office of Environment and Energy, can help you identify Tribes that may have an interest in the project location and provide contact information to help initiate tribal engagement.
To effectively engage with Tribes:
Reach out and build relationships with Tribal governments. All Tribes are different, and the issues that each Tribe cares about for each license will vary, depending on their interest and capacity, and how the project affects their space, culture, and traditions.
Encourage early and meaningful involvement opportunities for Tribes at all stages of the process. This engagement will help all practitioners understand definitions of human health and the environment from their perspective; allow for the integration of Traditional Ecological Knowledge into the science, policy, and decision-making of the process; and better appreciate cultural and communication differences of and between Tribes and Indigenous peoples.
Enhancing Access and Accessibility
The overall objective is to provide access to all communities, whether it be in the licensing process or to the site itself. Looking more at access and the physical component, it is critical to consider the community of people with disabilities. The guide below will cover how to navigate the FERC licensing process and implementation focusing on this specifically, but it can also apply to other areas as well.
Community Engagement Case Studies
Mohawk River, Cohoes, NY
The School Street hydroelectric plant is at the base of Cohoes Falls, the second largest falls in the eastern US after Niagara Falls. Online since 1915, the project incorporates elements of the original Erie Canal and the upper portions of an extensive six-level power canal system first developed during the 1830s. The entire project is within the boundaries of the Harmony Mills National Historic Landmark District, and the dam, headgate house, and power canal are listed as contributing elements to that district. It is also at the intersection of the Erie Canalway National Heritage Corridor (ERIE) and the Hudson River Valley National Heritage Area.
Starting in 2002, the Licensee, Brookfield Renewable Power, engaged in settlement negotiations with the NPS, USFWS, New York State Department of Environmental Conservation (NYSDEC), the New York Power Authority, the City of Cohoes, NY, the Adirondack Mountain Club, American Rivers, New York Rivers United, and the New York State Conservation Council. The parties signed the Settlement Agreement and submitted it to FERC in March 2005; FERC incorporated the agreement verbatim in the February 15, 2007, license order.
Cohoes Falls. Photo courtesy of the National Park Service.
The School Street Hydroelectric Plant is a great example of successful tribal engagement, just treatment, and meaningful involvement in a licensing process. Cohoes Falls is a sacred site to the six nations of the Haudenosaunee (Iroquois) Confederacy. During and after the licensing process, the Licensee and its partners worked with representatives of the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora nations to provide access to the falls for ceremonial activities while limiting conflicts with recreational users. Furthermore, in 2011 the Licensee donated 100 acres on the river's opposite bank to the Hiawatha Institute for Indigenous Knowledge.
The Settlement Agreement required the licensee to construct new facilities to enhance the downstream passage of American Eels and Blueback Herring; new recreational facilities including "Fallsview Park" at a previously inaccessible location above the lip of Cohoes Falls, stairs and trails leading to the base of the falls, tailrace fishing access, wheelchair-accessible fishing piers on the power canal, and wayside exhibits, all accessible by way of a new 192' pedestrian bridge spanning the power canal. Other enhancements included a new visitor parking area and tour bus pull-out spaces, and improvements to the existing Overlook Park. The settlement also required minimum flows in the mile-long bypass reach and over Cohoes Falls to improve aquatic habitat and return the falls to their pre-1915 grandeur.
The licensee asked for NPS assistance developing interpretive media required under the license order, contributing funds that allowed Erie Canal National Heritage Area to contract with Harpers Ferry Center to design and fabricate five upright and five low-profile panels that focused on the geology behind Cohoes Falls, fish, 19th century tourism and waterpower development, hydropower, and floodplain safety. The licensee installed the panels in 2008.
Kootenai River, Montana
In the Summer of 2017, six bands of the Kootenai (“Ktunaxa”) Nation gathered on the banks of the Kootenai Falls in northwest Montana to recognize the anniversary of a hard-won legal victory and to honor a powerful spiritual tradition. June of 2017 marked the 30-year anniversary of the tribes’ successful court battle to protect the spectacular and sacred Kootenai Falls.
Kootenai Falls is described as the last great waterfall in the Northern Rockies. The impressive Kootenai River drops 75 feet in less than a mile and thousands of cubic feet of water flow through every second. It was not surprising that in 1978, a group of western Montana electric cooperatives applied to the Federal Energy Regulatory Commission (FERC) for a construction license for a dam and hydroelectric facility at the Falls. The project was slated to flood some areas, to dewater about a mile of the river below the dam during low flows, and to create a four-mile reservoir that would swallow the Falls and several popular fishing and recreational spots. Expectedly, conservation groups in the area submitted an appeal to FERC to stop the project.
Kootenai Falls. Photo courtesy of Montana Fish Wildlife and Parks.
However, beyond the spectacular nature and energy potential of the falls, there was more to the area than many realized. The Kootenai Falls area serves as a sacred center for the Ktunaxa people, the region is sacrosanct, and the building of a dam would desecrate the sacred nature of the Falls and surrounding area. So, when the hydroelectric project applied for a license in 1978, Native American Rights Fund (NARF) Attorneys represented the Kootenai people of Montana, Idaho, and British Columbia and petitioned that the dam’s license application should be denied for two reasons: (1) the project would not serve the public interest under the Federal Power Act, and (2) it would impair free exercise of the Kootenai religion in violation of the First Amendment of the U.S. Constitution and the American Indian Religious Freedom Act of 1978.
NARF’s prime interest was in protecting Kootenai Indian religious worship in the Kootenai Falls area. The religious beliefs and practices of Native Americans, like all Americans, are supposedly protected by the First Amendment to the U.S. Constitution. Yet the unique qualities of many traditional Indian religions, such as the Kootenai, have made traditional First Amendment arguments ineffectual. Through enactment of the American Indian Religious Freedom Act in 1978, Congress found Indian religion to be an indispensable and irreplaceable part of the nation’s heritage and declared a national policy of preserving the free exercise of Indian religion.
In April 1984, following a 13-week trial, a FERC judge recommended denying the license. The applicants appealed the decision to the full Commission. Although, on June 25, 1987, almost ten years after the initial application, the Commission unanimously denied the construction license. The opinion held that the proposed area for construction would indeed infringe upon the religious customs and beliefs of the Ktunaxa people and that the development would change Kootenai Falls significantly and permanently.
Over thirty years later, we can only imagine what might have happened if the Kootenai and conservationists hadn’t fought the hydroelectric project.
Kootenai Falls. Photo courtesy of Montana Fish Wildlife and Parks.
