Low Impact Hydro Institute
1167 Massachusetts Avenue
Arlington, MA 02476
Submitted electronically to: email@example.com
Re: Recertification Proposal Comments
To Whom it May Concern:
The Connecticut River Conservancy (CRC), is a nonprofit watershed organization that was established in 1952 as a citizen group to advocate for the protection, restoration, and sustainable use of the Connecticut River and its four-state watershed. CRC has an interest in protecting environmental values that directly and indirectly support the state, regional, and local economies and quality of life of the Connecticut River. In that capacity, we routinely participate in the relicensing of the multiple hydro-electric facilities that exist in the Connecticut River watershed.
We will reiterate here, as we have commented previously, CRC strongly feels that LIHI take the time to evaluate how the changes to the handbook have affected the certification process and outcomes. It seems logical to understand how the new handbook is functioning before any changes to term lengths or other aspects of the current recertification process are made. Lengthening the certification term now, while LIHI continues to rebuild trust that had been eroded under the first handbook, will undermine the public’s perception of LIHI certification. CRC feels it would be prudent for LIHI to take the time to complete and publish an assessment of LIHI certifications under the new handbook using objective criteria before making additional changes.
The document provided indicates that, “Certification terms would be considered indefinite and active SO LONG AS annual compliance reports are filed in a timely manner and no violation to the LIHI
Criteria has occurred.” While CRC understands that a longer certificate period would be advantageous to the hydropower facilities, issuing a certificate that is “considered indefinite and active” seems imprudent. There should be some end time that triggers a complete review. CRC maintains that a longer certificate term would be amenable if triggers are in place to consider recertification immediately if problems were to occur. In other words, CRC could imagine a certificate term of 15 years, for example, AS LONG AS LIHI is completing transparent annual reviews and no triggers have caused a full recertification process to be conducted before that time. We are not supportive of removing a certificate term altogether and relying on triggers only to cause a recertification review.
Requesting stakeholder input on a cycle of 5, 8 or 10 years, when that input has no effect on the certificate is ingenuine. Stakeholders are motivated to provide input when there is a direct possible result from providing that information. There are currently stakeholders who feel it is a waste of time to comment to LIHI because they don’t feel that their comments are seriously considered. This action of separating the request for stakeholder feedback from a specific outcome (recertification or not) would further undermine public involvement. CRC would argue that this shift would in fact, not “maintain stakeholder involvement” but would instead undermine trust in the role of the public and resource agencies.
Similarly, CRC feels that small annual compliance reviews reduce the imperative for taking a close look at the overall claim of Low Impact and targeted reviews miss the consideration of the facility holistically.
It is difficult to consider the scope of a targeted review because there are no details in the proposal about which criteria would be reviewed, which trigger would cause that specific review, or the extent of review.
LIHI indicates that this process will improve transparency because LIHI will post “annual compliance status” on the LIHI project webpage. Transparency would be achieved if LIHI posted the actual annual compliance review so that all stakeholders have access to the details that support the compliance claim.
It is unclear how the flowchart would be used. Would this be applied to each facility during their annual compliance review? If there is a gradual deterioration in something like a recreation amenity required under a license or exemption, but not regularly checked by a resource agency, how and when would re-certification or a targeted review ever be triggered under the proposed framework?
We address the questions presented in the proposal announcement below individually:
1) Are there other triggers not listed in the flow chart below that should be added?
LIHI indicates that under this new proposal, full recertification reviews would be required under a limited number of circumstances such as receiving a new FERC license. CRC assumes that “receiving a new FERC license” is actually inclusive of several possible processes:
- the relicensing process of an existing facility,
- the transference of a license to an exemption
- FERC issues a license or exemption amendment
According to the FERC Compliance Guidebook, the Division of Hydropower Administration and Compliance (DHAC) will begin their compliance enforcement through education, verbal guidance, and warnings via phone calls. This indicates that if a facility has received an issuance of a warning or violation FERC has already been working with the facility to remedy the situation with little result. So, an issuance is not the beginning of enforcement action, it is near the end and should be treated with gravity on the part of LIHI as a signal of serious concerns. Given this, in addition to new FERC licenses, CRC feels that if a facility is out of compliance with their existing license requirements, either through the issuance of a warning or a violation letter from FERC, that should trigger a full recertification review immediately.
Additionally, under the proposed framework, CRC is concerned that any exempt license holders would never have to go through a recertification. For exempt license holders there would be no trigger from FERC relicensing and likely no trigger from other sources unless the facility was severely out of compliance. Here we reiterate the need for at least some end date that prompts a full review to revisit considerations of changing ecological and recreational use over time.
Essentially CRC contends that #1, #2 and #3 on the proposed flow chart all trigger a full recertification process.
2) Are there terms used in the flowchart that you consider too vague, confusing, or misleading?
In #2, what exactly does “regulatory status changed” mean? As CRC indicated, we feel that a facility applying for an exemption should go through the full recertification process. LIHI should clarify exactly what “regulatory status changes” would be included in considering this trigger and which of those might lead to a targeted review as opposed to a full review. Feedback on specific examples here would be easier to respond to.
In #3, as we indicated CRC feels that any formal compliance issues should trigger a complete recertification process. Additionally, there needs to be a framework for addressing compliance issues that are not formal. As we indicated above, many compliance issues are handled by FERC informally. Similarly, there may be compliance issues that have not been reported to FERC or LIHI. This process needs to account for how informal compliance issues would be documented and how LIHI would be made aware of these. LIHI can not simply rely on the facilities to self-report on compliance issues annually while requesting feedback from other stakeholders on a 5, 8, or 10 year cycle. This scenario might mean that LIHI learns of issues many years after the issue commenced. Additionally, compliance under this scenario only applies to resource agency concerns. For instance, there is no agency that is overseeing recreation compliance. Annual compliance reports need to show documentation of current conditions and that should be corroborated by stakeholders local to the project.
In #4, how would the public or LIHI know if the resource agency made a new formal recommendation under prior reserved authority? Typically, CRC has found that there can be much communication between hydro facility operators and resource agencies that the public (and likely LIHI) is not privy to. CRC is not sure exactly what a “formal” recommendation would mean. This puts the onus on the resource agencies to know if a facility is LIHI certified and also make a point of communicating their recommendations to LIHI. This creates additional burdens for agency staff and CRC doubts that this would consistently happen.
For #5, it is unclear what would be considered as a “substantive change” both to a watershed and state and regional regulations, policy, and plans. This trigger is attempting to cover a lot of ground and it needs much more definition. Additionally, LIHI would need to define “what is currently applicable to the facility.”
Additionally, in considering this trigger, it seems to CRC that relicensing or status changes occurring at either upstream or downstream adjacent facilities should be included as a trigger for review.
For #6, there may be material changes to a facility that would cause a full recertification. For instance, an increase in generation or some larger mechanical failure might cause significant changes that would merit a full recertification review.
3) Is six months sufficient time for a Certificate holder to prepare a full or partial application? Once submitted there would be the same 60-day public comment period.
CRC is not in the position to comment on the length of time needed to prepare a LIHI application. We agree that maintaining the 60-day comment period for both full and partial applications is appropriate.
4) Does the proposal adequately retain the ability for the public to comment on LIHI Certified facilities?
A full recertification process at an expected interval garners more comprehensive resource attention than an annual smaller review. CRC believes that this shift to a criteria specific review would likely require more diligence than a more predictable complete recertification process to engage the resource agencies and the public in that process. This proposal, which minimizes the thoroughness of the review by focusing on only one criterion, would as a result, reduce the attention paid to it.
5) Would posting annual compliance status improve your understanding of the Certified facility’s standing?
No. Posting of the content of the annual compliance reports would improve understanding of the facility’s standing. We have commented on LIHI re-certifications in which the project owner has reported that their recreation facilities are in compliance with their FERC license when in fact they are not. Posting a status with no other documentation would not demonstrate that the facility is in compliance.
6) For applicants, would this proposal make you more or less likely to seek LIHI Certification for the first time?
7) Would the proposal impact (positively or negatively) your confidence in the LIHI Certification program?
This proposal negatively impacts CRC’s (already questionable) confidence in the LIHI Certification program.
CRC would also take this opportunity to reiterate that while there are technical, policy and finance committees of the Board, as well as a Hydropower Industry Advisory Panel, a Renewable Markets Advisory Panel, and an Executive Advisory Panel that serve the board, there are no ecological, historical, outdoor recreation or science advisory teams or committees established to provide expert advice to the board. We would encourage LIHI to examine and rectify this imbalance in governance.
CRC is grateful for the opportunity to comment on this proposal. We object to the removal of firm certificate end dates and would support triggers for partial review as a way to support the argument for a longer certificate period than what is currently provided. We encourage LIHI to continue to pursue and strengthen its mission to reduce the impacts of hydropower dams.
River Steward, VT/NH
River Steward, MA