Fish passage for hydrokinetic projects?

Fishways are often found at dams to allow fish to pass upstream or downstream - but what does fish passage mean for dam-less hydrokinetic projects?

Hydrokinetic energy projects are an innovative way to produce electricity from moving water without building dams.  Companies are developing a variety of technologies, many of which use water flowing in a river, ocean or tidal current to spin turbine-generator sets.  Most grid-connected hydrokinetic projects are regulated by the Federal Energy Regulatory Commission under its authority over hydropower.  This authority comes largely from the Federal Power Act, which requires the Commission to include certain terms in the hydropower project licenses it issues and gives it discretion to impose other conditions.  For example, Section 18 of the Federal Power Act provides that the Commission shall require the construction, maintenance, and operation by a licensee of such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce.

Hydrokinetic technologies are still fairly new, so only a handful of projects have received FERC licenses so far.  Given that hydrokinetic projects do not include the construction of a new dam, one might not expect fish passage to be an issue, particularly at tidal or ocean sites.  Indeed, it appears that for at least some hydrokinetic projects, fish passage may not be an issue.  For example, when FERC issued a pilot project license to Verdant Power, LLC for its Roosevelt Island Tidal Energy Project in New York City's East River, the Commission did not include a reservation of the right to require a fishway in the license.

The Commission did include such a fishway reservation in the pilot license it granted to Ocean Renewable Power Company's Cobscook Bay Tidal project in Maine waters.  In that case, the Secretary of the Interior cited important and highly valued populations of resident and migratory fish, including endangered Atlantic salmon.  Although the Secretary did not prescribe a fishway at the time, Interior requested that the Commission reserve its authority to prescribe fishways under Section 18.  When FERC granted ORPC's license, it included an article reserving the authority to require the licensee to construct, operate, and maintain, or to provide for the construction, operation, and maintenance of such fishways as may be prescribed by the Secretary of the Interior.

Although the project licensee later requested an exemption from this article because its project is not a dam and will not create any impoundment, the Commission declined to amend the license.  Explaining its reasoning, the Commission pointed to the policy it developed from its traditional hydropower licensing: if the Secretary of the Interior or Commerce so requests, the Commission will include an article reserving the Commission’s authority to require the construction and operation of fishways to preserve the requesting Secretary's future right to to prescribe fishways under Section 18.

What a possible fishway system for a tidal hydrokinetic project remains to be seen, as does whether FERC will impose such a requirement on any operating projects.  If the Secretary of the Interior or Commerce prescribes a fishway, FERC can assert its jurisdiction under Section 18 to require fishway installation.  Factors that could lead to such a decision may include the particular fish species and resources at each project's site, and a project's actual impacts on those fish.