Dear APPA Environmental Committee and Environmental Listserver

July 8, 2005

Dear APPA Environmental Committee and Environmental Listserver:

Last week APPA members were invited to join a conference call with our colleagues at UWAG, EEI and NRECA regarding the move in some states to oppose the use of restoration measures in the EPA 316(b) Phase II rule. Some of you participated in this important call. (My apologies to those of you who only saw the second notice that mentioned the call would be on July 29th. The call was actually on June 29th).

One of the concerns was how to get support from Attorneys General in states which might be willing to support the compliance option of restoration measures in the final rule. We don’t believe that many of the Attorneys General who have said that they intend to sue in opposition to the use of restoration actually understand how environmentally beneficial restoration can be.

Six Northeastern States (New York, New Jersey, Delaware, Rhode Island, Massachusetts and Connecticut) have filed suit to challenge portions of the rule including the provisions that allow the use of restoration under 316(b). These states oppose the compliance option of restoration measures such as fish stocking endorsed by EPA and provided for in the rule. It would be very helpful if states that support restoration measures would be willing to say so by filing an amicus brief in support of EPA.

Who should we ask for support from?

Getting the states to support restoration could be from any or all of the following:

·  the DEP/DEQ,

·  the state’s natural resource department (if different from the regulatory agency),

·  the Governor’s office,

·  the state economic development agency,

·  the state’s fishing and recreational sporting liaison, and

·  the state’s Attorney General (AG).

This support of restoration would serve as a counterbalance to the petition of the six Northeastern states which may not realize how important and environmentally beneficial restoration can be. Short of filing an amicus brief, it would be beneficial if Attorneys General in states supporting restoration were made aware of the restoration issues and ready to remain neutral in the face of pressure from nongovernmental groups which are urging AGs to oppose

APPA Memo

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July 8, 2005

restoration in the implementation of the 316(b) rule. For more detail on the court proceeding and the reasons why industry and EPA support restoration in the 316(b) rule, please see the attached discussion paper.

Restoration measures could include:

·  Fish stocking

·  Habitat restoration

·  Installation of fish ladders

·  Removal of barriers (old dams, etc.) to fish migration

As you know, for Phase II facilities restoration measures could save a public power utility tens of thousands of dollars or perhaps even millions of dollars.

It also strikes me that APPA members often have fish stocking programs, habitat protection measures and other “restoration” activities unrelated to 316(b) that might be used to help make the case in support of restoration in the EPA final rule. Some APPA member utilities have had fish stocking, habitat restoration and dam barrier removal projects as conservation measures to support recreational fishing for decades. Conveying this history to your state officials would be very helpful.

Court actions are beginning now, so this issue is timely in your state now.

Enclosed (posted to the website) are:

·  APPA Memorandum to Environmental Listserver (for your use)

·  Survey of APPA members (Please respond by July 18)

·  Executive Summary (for your utility’s use only)

You can share these three papers with your state agencies.

·  White Paper

·  Description of 316 (b)

·  Sample Form for Amicus Brief in support of restoration.

Please respond to APPA by filling out this survey by July 18th if you can help us on this issue. Feel free to contact your state officials as early as next week—since the issue is timely now.

Please hit “reply” to me or fax the survey response back to me at 202/ 467-2992. Please do not submit your survey response to the listserver.

FAX BACK TO APPA: 202/467-2992 BY JULY 18, 2005

Your name:
Public Power Utility Name:
State:
Tel:
Fax:
E-mail:

1. Does your public power system have any “restoration” measures on-going at your utility? ____ Yes ____ No

If Yes, please describe your program:

2. Has your utility been contacted by your state Dept. of Environment, Natural Resource Protection Agency, Governor’s Office or State Economic Development Office about the restoration issue in Phase II rulemaking? ____ Yes ____ No

If Yes, please describe the context:

3. Would your utility be willing to attend a meeting of utilities (including IOUs, co-ops) on this issue in your state? If you respond yes, your name will be provided to UWAG.
____ Yes ____ No

If Yes, who should be contacted:

Name:
E mail:
Telephone:

4. Please provide below any information on your fish restoration measures in terms of number and type of fish stocked, nature of habitat protection, etc? Key facts are very helpful.

5. Are there local conservation groups or fishing organizations that you have a good relationship with that you would be willing to communicate with regarding their support for restoration measures in the Phase II rulemaking? ____ Yes ____ No

6. Would you be willing to send a letter to your DEP/DEQ or state Attorney General’s office if APPA provided you a draft letter? ____ Yes ____ No

Theresa Pugh
Director
Environmental Services
American Public Power Association (APPA)
2301 M Street, NW
Washington, D.C. 20037
(202) 467-2943 direct
(202) 467-2992 fax

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