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Senecas line up allies for Kinzua bid; Sierra Club supports tribe on hydro license

The Seneca Nation of Indians is building a broad group of supporters for its effort to win the right to run the hydropower project at the dam whose creation flooded the tribe's native lands a half-century ago.

The Sierra Club leads a list of several environmental organizations that have praised the tribe's bid to win the license to run the Kinzua Dam hydropower project south of the New York-Pennsylvania border.

And government entities ranging from the Bureau of Indian Affairs to New York State to leaders of the project's home county have signaled sympathy with the Senecas' efforts as well.

"We've done quite a bit of outreach in the last few months," said Seneca Nation President Robert Odawi Porter.

And it shows in the many letters of support that have been filed following the Senecas' pre-application for the license. The tribe is competing with FirstEnergy Corp., which currently operates the hydropower project. The Federal Energy Regulatory Commission (FERC) will decide who gets to operate the plant once the current license expires on Nov. 30, 2015.

"We hope that FERC and other U.S. government entities will take this opportunity to improve the dam and hydropower facilities and extend long-overdue recognition of the rights of the sovereign Seneca Nation of Indians," wrote Arthur E. Clark, public lands committee chairman for the Sierra Club's Pennsylvania chapter.

Meanwhile, "the Warren County commissioners maintain an opinion the Allegheny River is underutilized in its capacity to generate hydroelectric power," the leaders of the project's home county wrote. "Of the two proposals, only the one submitted by the Seneca Nation of Indians addresses our position."

Those comments are part of a long relicensing process, much like the one completed for the New York State Power Authority's Niagara Power Project in 2007.

While the Kinzua's Seneca Pumped Storage Project produces only a fifth of the electricity produced at the giant Niagara facility, the Senecas maintain that it can put out more.

"We have in our pre-application our intent to enhance the hydro facility," said Porter, who brought a team of tribal leaders to Washington this week to meet with federal officials about the Senecas' plans. "We are proposing to do something that FirstEnergy is not, which is to upgrade, to make improvements, to expand the energy capacity of the facility."

While it is too soon to say exactly how much more power the facility could produce, "there is a lot of anecdotal evidence that suggests the dam is being run very, very conservatively and that with modest changes the hydropower potential would be [more] commercially viable," said Thomas Jensen, a partner in SNR Denton, a Washington law firm the tribe has hired to help with the relicensing process.

And in expanding the facility's power output, it would be an economic boon to the tribe and the region, the tribe's supporters said.

"The Seneca Nation of Indians is best suited to hold the privilege of this federal license," said Crystal Abers, director of economic development, planning and tourism for Cattaraugus County. "FirstEnergy is not looking to improve the conditions of the environment affected by the project, nor does FirstEnergy propose to build the capacity for increased demands in renewable energy, regional development and more jobs."

Noting that Western New York has often served as "a colony for the economic interest of others," Porter said: "We're trying to bring this facility back to Western New York and Pennsylvania."

To do that, though, the Senecas will have to overcome some challenges.

For one thing, First Energy and its predecessor companies have operated the hydro facility since it opened in the 1960s.

And for another, the tribe's pre-application views the hydro project as one with a broad scope that encompasses the reservoir above the dam as well as the power lines connected to the project.

Getting the Federal Energy Regulatory Commission to do that could be difficult.

The Federal Power Act, which governs such projects, "does not provide the commission with any authority over any federal dam or reservoir," as the commission has ruled time and again, FirstEnergy said in its comments on the federal proposal.

And FERC said in a letter to the Senecas that their project was too broad and yet short on details about how much additional hydropower it might produce.

"The commission cannot license the Seneca Pumped Storage Facility to include the Kinzua Dam and Allegheny Reservoir," the agency said.

But the Senecas' supporters aim to persuade FERC to reverse course and take a broader view of the federal law, saying it only makes sense to consider the reservoir as part of the hydro project.

The hydro project "controls the daily water fluctuations in the reservoir," wrote Clinton Riley, field office supervisor for the U.S. Fish and Wildlife Service, in his comments on the Seneca plan. "Thus the reservoir is a key element of the Kinzua project and should be included within the project boundary regardless which applicant is ultimately granted a new license."

Meanwhile, the Army Corps of Engineers -- which runs the dam -- agreed with the Senecas' contention that reservoir water quality and its relation to the hydro project should be studied, as should the facility's impact on aquatic life.

William G. Little, associate counsel for the New York State Department of Environmental Conservation, complained that under FirstEnergy's proposal, "the waters and lands of New York State have been written out of the project."

From the Senecas' standpoint, the state's support is unusually significant, because it was only a half-century ago that the state pushed for the building of the Kinzua project partly in hopes that it would lead to the termination of the tribe and the removal of its people from the land.

In fact, the federal law authorizing the creation of the dam -- meant to protect Pittsburgh from flooding -- even mentions the termination of the Senecas, who fought vigorously and unsuccessfully to prevent the flooding of their ancestral home.

Back then, Porter said, the attitude of the state and federal governments was: "Not only are we going to take your land for flood control, we're also going to give a company a private license to make money off your land and waters."