At issue is the Hidden Falls Lake Project, located within the Tongass National Forest on Kasnyku Bay on the eastern shore of Baranof Island near Sitka, Alaska. The project is owned by the Alaska Department of Fish and Game, who installed a 250-kilowatt generator and related equipment in 1982 to power its Hidden Falls fish hatchery. (A nearby larger Kasnyku Lake project contemplated by the federal government in 1969 never came to fruition.)
Most non-federal hydropower projects in the U.S. must be licensed by the Federal Energy Regulatory Commission. Under section 23(b)(1) of the Federal Power Act, a non-federal hydroelectric project without a still-valid pre-1920 federal permit must be licensed if it:
(a) is located on a navigable water of the United States;Part of the Hidden Falls Lake project -- the intake, penstock, 250-kW hydroelectric generator, powerhouse, and distribution lines -- are located on U.S. Forest Service lands. The Forest Service’s documentation states that a minor license application for the Hidden Falls Lake Project was filed with the Commission in 1981, but the Commission said it did not have any records of this application or of any subsequent Commission jurisdictional determination for this project.
(b) occupies lands or reservations of the United States;
(c) utilizes surplus water or waterpower from a government dam; or
(d) is located on a stream over which Congress has Commerce Clause jurisdiction, is constructed or modified on or after August 26, 1935, and affects the interests of interstate or foreign commerce.
But FERC did apparently know about the project. In 1989, seven years after the project's generator was installed, the Commission initiated an investigation into the jurisdictional status of the project, suggesting it was "unlicensed" or "unauthorized." Yet that unlicensed hydropower project investigation docket then went dormant until 2015. Last year, the Forest Service informed the Commission that it had identified the project while conducting environmental reviews in support of a renewal of the Alaska agency's special use permit for the hatchery. Thus the investigation resumed.
The Commission issued its final order in the case on January 28, 2016. Because the project intake, penstock, hydroelectric generator, powerhouse, and distribution lines occupy public lands of the United States, the Commission concluded that the Alaska agency must obtain a license for construction, maintenance, and continued operation of the Hidden Falls Lake Project. The Commission ordered the Alaska agency to file within 90 days a schedule for submitting a license application within 36 months.
If a small hydropower project on a remote Alaskan island is subject to FERC licensure, how many other unlicensed hydropower projects might be out there? How many other unlicensed hydropower projects might there be on Forest Service or other federal lands? While FERC investigations of unlicensed hydropower projects are relatively rare, with most years seeing only a handful of public active investigations, could there be other existing projects like the Hidden Falls Lake Project?