FERC proposes revoking hydro license for noncompliance

Wednesday, February 28, 2018

U.S. hydropower regulators have proposed revoking a Michigan hydroelectric project's license under the Federal Power Act, following findings of violations of numerous license provisions, agency regulations and orders.

At issue is the Edenville Hydroelectric Project, No. 10808, located on the Tittabawassee and Tobacco Rivers by Wixom Lake in Michigan. The Federal Energy Regulatory Commission initially issued a license for the 4.8-megawatt Edenville project in 1998. That license was eventually transferred to a company named Boyce Hydro Power, LLC.

According to public records in the Commission docket for the license, "Boyce Hydro has a long history of non-compliance" with license terms and conditions and with related provisions in the Federal Power Act and Commission regulations and orders. Orders in the docket recite history including a 2017 Compliance Order finding noncompliance with respect to the adequacy of the project's spillway capacity and other matters. As noted in the docket, "The Commission’s primary concern has been the licensee’s longstanding failure to address the project’s inadequate spillway capacity, which currently is designed to pass only approximately 50 percent of the PMF. Failure of the Edenville dam could result in the loss of human life and the destruction of property and infrastructure."

The Commission has tools that it can use to compel compliance with its laws and regulations. For example, on November 20, 2017, Commission staff issued an order requiring the licensee to cease generating at the Edenville Project.

Beyond ordering the project to stop generating power, the Commission can revoke a license. Section 31(b) of the Federal Power Act allows the Commission to issue an order revoking a license, after providing notice and an opportunity for an evidentiary hearing, if it finds that a licensee knowingly violated a final compliance order and was given a reasonable time to comply with that order before the revocation proceeding was commenced. 

On February 15, 2018, the Commission issued an Order Proposing Revocation of License in the Edenville project's docket. In that order, the Commission noted that the licensee "has failed for many years to comply with significant license and safety requirements, notwithstanding having been given opportunities to come into compliance... The licensee failed to meet nearly all the obligations in the compliance order, even after Commission staff granted multiple extensions."

The Commission noted that public safety "would not be affected by revoking the license." It noted that if the Commission were to revoke the license, its jurisdiction would end, and authority over the site will pass to the State of Michigan’s dam regulatory authorities.

The Commission also noted that revocation of the project license "does not mandate removal or any modification of the dam," citing both its broad authority under the Federal Power Act and its general policy not to condition the effectiveness of a license revocation on a licensee that has shown its unwillingness to comply with other Commission orders.

The Commission set a 30-day deadline within which the licensee may request an evidentiary hearing before an Administrative Law Judge, after which the Commission will decide the matter.

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