A Maine sporting camp has proposed developing an off-grid micro-hydropower project to provide it electricity. Nicatous Lake Lodge and Cabins LLC proposes to develop the micro-hydro project at its remote property near Burlington, Maine. A filing made by the camp earlier this spring has triggered a federal review process to evaluate whether the project will require a license or exemption under the Federal Power Act.
Under federal law, most hydropower projects cannot be constructed, operated, or maintained without licensing under the Federal Power Act. But some projects -- typically off-grid or remote ones -- fall outside the Federal Power Act's jurisdiction. To reduce uncertainty about what regulations might apply, Section 23(b)(1) of the Federal Power Act requires an entity proposing a new project to file with the Federal Energy Regulatory
Commission either a hydropower license application, or a Declaration of Intention to determine if the proposed
project requires a license.
When a developer files a Declaration of Intention with the Commission, the Federal Power Act requires the Commission to investigate and determine if the project would affect the interests of interstate or foreign commerce. The Commission also determines whether or not the project: (1) would be located on a navigable waterway; (2) would occupy public lands or reservations of the United States; (3) would utilize surplus water or water power from a government dam; or (4) would be located on a non-navigable stream over which Congress has Commerce Clause jurisdiction and would be constructed or enlarged after 1935. Each of these evaluations supports a key jurisdictional finding under the Federal Power Act; collectively, they can determine whether or not licensing is required.
Other recently proposed micro-hydro projects illustrate how the
Commission evaluates whether or not a license or exemption will be
required. For example, the Commission found that licensing or exemption
was required for the Patton Colorado Hydropower Project, which would be grid-tied -- but that no license is required for the Egnaczak Net Zero Hydro Project in Massachusetts, which would have no connection to the interstate electric grid.
This jurisdictional determination is now underway for the Nicatous micro-hydro project. On March 15, 2016, the sporting camp owner submitted a Declaration of Intention to the Federal Energy Regulatory Commission. That Declaration of Intent describes the project site as about 15 miles away from the nearest electric utility grid, where Nicatous Stream leaves Nicatous Lake. The project does not rely on a dam, although the remains of a former dam are located nearby. Instead, an intake in the lake would supply water to a low head (60 inches or less) PowerPal micro-hydroelectric generator, rated at 1,000 watts power. Power from the generator would be fed into the lodge's electric system, not which is not connected to any utility grid.
On May 10, 2016, the Commission issued its notice of the filing, setting a 30-day deadline for filing comments, protests, and motions to intervene. Commission action on the filing could follow later this year.
Energy powers society; society's choices shape energy policy. A blog about our energy resources and the choices they present for society.
Showing posts with label declaration of intent. Show all posts
Showing posts with label declaration of intent. Show all posts
FERC and microhydro licensing
Wednesday, May 18, 2016
Federal energy regulators have ruled that a micro-hydroelectric project proposed in New York cannot be constructed or operated without a license.
The proposed Henson Micro Hydroelectric Project would be located on the West Branch of Onondaga Creek, near Onondaga, New York. It would include an existing 14-foot-high concrete dam, plus new construction including a penstock, a powerhouse, and a 10 kilowatt generating unit. The dam was rebuilt in 2002, and had previously been used to power a grist mill. The project developer, an individual, proposed to use the project power to provide electricity to his home and barn.
In his declaration of intention, the developer described himself and his approach to project development and compliance:
In the Henson project's case, the developer filed a Declaration of Intention on December 18, 2015. That declaration was supplemented; after the second supplement, FERC issued its public notice of the declaration. No protests, comments, or motions to intervene were filed.
On May 10, FERC issued its ruling on the declaration, finding that licensing is required. FERC easily found that the project would not occupy any public lands or reservations of the United States or use surplus water or waterpower from a Federal government dam. It found "insufficient evidence" to determine whether the West Branch of the Onondaga Creek is navigable.
However, FERC found that the West Branch of Onondaga Creek is a headwater or tributary of the Oswego River, a navigable water of the United States. As a result, FERC concluded the project would be located on a "Commerce Clause stream." FERC noted the project would be constructed after 1935.
FERC also concluded that the project would affect interstate commerce through its connection to the interstate grid, relying on precedent that "small hydroelectric projects that are connected to the interstate grid affect interstate commerce by displacing power from the grid, and the cumulative effect of the national class of these small projects is significant." Thus even though the Hanson project's developer proposed using project power for the onsite home and barn, the fact that those buildings were grid-tied drove FERC to conclude that licensing was required.
On this reasoning, FERC concluded that construction, operation, and maintenance would require a license. As an alternative, FERC suggested the developer consider applying for an exemption from licensing as a small hydroelectric power project.
By contrast, another recent FERC decision concluded that a micro-hydro system proposed in Massachusetts did not require licensing, because (among other reasons) neither the project nor the structures it would serve would be grid-tied. Thus whether or not the project and the facilities it serves are grid-tied or off-grid can be an important factor in whether a FERC hydropower license is required.
The proposed Henson Micro Hydroelectric Project would be located on the West Branch of Onondaga Creek, near Onondaga, New York. It would include an existing 14-foot-high concrete dam, plus new construction including a penstock, a powerhouse, and a 10 kilowatt generating unit. The dam was rebuilt in 2002, and had previously been used to power a grist mill. The project developer, an individual, proposed to use the project power to provide electricity to his home and barn.
In his declaration of intention, the developer described himself and his approach to project development and compliance:
Identifying what approvals are necessary is a core step in developing any project. Under section 23(b)(1) of the Federal Power Act, a non-federal hydroelectric project must be licensed by the Federal Energy Regulatory Commission (unless it has a still-valid pre-1920 federal permit) if it:I would like to point out that I am not a corporation, or a rich man just a simple middle class Joe. I am an hourly employee at AT&T. Although blessed beyond what I actually deserve, I do not have a bunch of money that I could spend. In fact I am using funds recently obtained from a loss of use settlement from the NYS Workers Compensation Board to fund this. I am trying to do the right thing for the environment and save some money on my power bill. I am hoping that we can work this out to everyone’s satisfaction based upon the material and information that I currently have available. Of course, if additional information is required by you folks I will do everything to comply.
(a) is located on a navigable water of the United States;To reduce uncertainty over whether a project will require licensing, a developer may file a Declaration of Intention with the FERC describing the project. Following public notice and an opportunity for protests, comments, and motions to intervene, FERC will rule on the jurisdictional questions raised by the declaration.
(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.
In the Henson project's case, the developer filed a Declaration of Intention on December 18, 2015. That declaration was supplemented; after the second supplement, FERC issued its public notice of the declaration. No protests, comments, or motions to intervene were filed.
On May 10, FERC issued its ruling on the declaration, finding that licensing is required. FERC easily found that the project would not occupy any public lands or reservations of the United States or use surplus water or waterpower from a Federal government dam. It found "insufficient evidence" to determine whether the West Branch of the Onondaga Creek is navigable.
However, FERC found that the West Branch of Onondaga Creek is a headwater or tributary of the Oswego River, a navigable water of the United States. As a result, FERC concluded the project would be located on a "Commerce Clause stream." FERC noted the project would be constructed after 1935.
FERC also concluded that the project would affect interstate commerce through its connection to the interstate grid, relying on precedent that "small hydroelectric projects that are connected to the interstate grid affect interstate commerce by displacing power from the grid, and the cumulative effect of the national class of these small projects is significant." Thus even though the Hanson project's developer proposed using project power for the onsite home and barn, the fact that those buildings were grid-tied drove FERC to conclude that licensing was required.
On this reasoning, FERC concluded that construction, operation, and maintenance would require a license. As an alternative, FERC suggested the developer consider applying for an exemption from licensing as a small hydroelectric power project.
By contrast, another recent FERC decision concluded that a micro-hydro system proposed in Massachusetts did not require licensing, because (among other reasons) neither the project nor the structures it would serve would be grid-tied. Thus whether or not the project and the facilities it serves are grid-tied or off-grid can be an important factor in whether a FERC hydropower license is required.
FERC holds CO microhydro needs license
Wednesday, February 24, 2016
In an order issued earlier this month, the Federal Energy Regulatory Commission found that the developer of a micro-hydropower project proposed in Colorado must obtain a license for the Patton Colorado Hydropower Project's construction, maintenance, and operation. The order illustrates one challenge facing small, distributed hydroelectric projects in the U.S.: a federal regulatory process that at times can treat microhydro projects much like traditional large dams, despite interest in a streamlined permitting process for small projects.
At issue is Section 23(b) of the Federal Power Act. It provides that any person intending to construct project works on a non-navigable commerce clause water must file a declaration of their intention to do so with the Commission. Section 23(b) further provides that upon the filing of a Declaration of Intent, the Commission will investigate the proposed project, and, if it finds that the “interests of interstate or foreign commerce would be affected” by the proposed project, then the person intending to construct the project must obtain a Commission license before starting construction.
Under section 23(b)(1) of the Federal Power Act, 16 U.S.C. § 817(1), a non-federal hydroelectric project must be licensed (unless it has a still-valid pre-1920 federal permit) if it:
In the case of the Patton Colorado Hydropower Project, the Commission found that licensure is required under the fourth prong of Section 23(b)(1) of the Federal Power Act, which itself has three components.
First, the Commission found that the Patton project would be located on a "Commerce Clause stream." Specifically, the Commission found that Colombine Creek is a headwater or tributary of the South Fork of the Rio Grande, which is a tributary of the Rio Grande River, a navigable water of the United States. Under a 1965 Supreme Court precedent, for purposes of FPA section 23(b)(1), the headwaters and tributaries of navigable rivers are Commerce Clause streams.
Second, the project would be constructed after August 26, 1935.
Third, citing a 1992 opinion from the 11th Circuit Court of Appeals, the Commission noted, "It is well settled that small hydroelectric projects that are connected to the interstate grid affect interstate commerce by displacing power from the grid, and the cumulative effect of the national class of these small projects is significant for purposes of the FPA section 23(b)(1)." Thus the Commission concluded that the Patton Colorado Hydropower Project would affect interstate commerce through its connection to the interstate grid.
Based on these conclusions, the Commission found that in accordance with section 23(b)(1) of the Federal Power Act, the applicant must obtain a license for the construction, maintenance, and operation of the Patton Colorado Hydropower Project. The Commission also ruled that no construction or operation of the project may commence until a license has been obtained.
Notably, the Commission was able to reach this conclusion without making a navigability finding for Colombine Creek itself. In particular, the order notes "insufficient evidence to determine whether Colombine Creek is navigable." But because the Commission found licensing to be required on other grounds -- grounds derived from the ultimate navigability of a downstream river -- it did not make a navigability finding for the river reach where the project would be located.
The Commission's order did suggest that an easier path may be available for the Patton Colorado Hydropower Project. In particular, the order notes that the project may be eligible for an exemption from licensing. It suggests that the applicant consider applying for a small hydroelectric power project exemption of 10 megawatts (MW) or less. This more limited approval could enable project development and operation through a more streamlined regulatory processes than that required for a full project license.
Incentives and policy support for microhydro projects are growing. But as the Patton Colorado Hydropower Project case before the FERC illustrates, even small hydropower projects may be subject to federal regulation. For some projects, an exemption may be available, but others may not be able to be developed without a FERC license. Even an exemption can take time and expense to secure, and it can be hard to preduct the outcome of an application for an exemption. How does this dynamic affect the rate of development of U.S. micro-hydropower projects?
At issue is Section 23(b) of the Federal Power Act. It provides that any person intending to construct project works on a non-navigable commerce clause water must file a declaration of their intention to do so with the Commission. Section 23(b) further provides that upon the filing of a Declaration of Intent, the Commission will investigate the proposed project, and, if it finds that the “interests of interstate or foreign commerce would be affected” by the proposed project, then the person intending to construct the project must obtain a Commission license before starting construction.
Under section 23(b)(1) of the Federal Power Act, 16 U.S.C. § 817(1), a non-federal hydroelectric project must be licensed (unless it has a still-valid pre-1920 federal permit) if it:
(a) is located on a navigable water of the United States;On May 11, 2015, as supplemented on November 10, 2015, Steve Patton filed a Declaration of Intention with the Commission concerning the proposed Patton Colorado Hydropower Project. The project would be located on Colombine Creek, a feeder stream to the South Fork of the Rio Grande, near the town of South Fork, Mineral County, Colorado. It would consist of an intake and pipes feeding a gravitation water vortex-type generating unit rated between 2 and 10 kilowatts with 2.5 feet of head, transmission line, and appurtenant facilities. The proposed project would be connected to the interstate electric grid.
(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.
In the case of the Patton Colorado Hydropower Project, the Commission found that licensure is required under the fourth prong of Section 23(b)(1) of the Federal Power Act, which itself has three components.
First, the Commission found that the Patton project would be located on a "Commerce Clause stream." Specifically, the Commission found that Colombine Creek is a headwater or tributary of the South Fork of the Rio Grande, which is a tributary of the Rio Grande River, a navigable water of the United States. Under a 1965 Supreme Court precedent, for purposes of FPA section 23(b)(1), the headwaters and tributaries of navigable rivers are Commerce Clause streams.
Second, the project would be constructed after August 26, 1935.
Third, citing a 1992 opinion from the 11th Circuit Court of Appeals, the Commission noted, "It is well settled that small hydroelectric projects that are connected to the interstate grid affect interstate commerce by displacing power from the grid, and the cumulative effect of the national class of these small projects is significant for purposes of the FPA section 23(b)(1)." Thus the Commission concluded that the Patton Colorado Hydropower Project would affect interstate commerce through its connection to the interstate grid.
Based on these conclusions, the Commission found that in accordance with section 23(b)(1) of the Federal Power Act, the applicant must obtain a license for the construction, maintenance, and operation of the Patton Colorado Hydropower Project. The Commission also ruled that no construction or operation of the project may commence until a license has been obtained.
Notably, the Commission was able to reach this conclusion without making a navigability finding for Colombine Creek itself. In particular, the order notes "insufficient evidence to determine whether Colombine Creek is navigable." But because the Commission found licensing to be required on other grounds -- grounds derived from the ultimate navigability of a downstream river -- it did not make a navigability finding for the river reach where the project would be located.
The Commission's order did suggest that an easier path may be available for the Patton Colorado Hydropower Project. In particular, the order notes that the project may be eligible for an exemption from licensing. It suggests that the applicant consider applying for a small hydroelectric power project exemption of 10 megawatts (MW) or less. This more limited approval could enable project development and operation through a more streamlined regulatory processes than that required for a full project license.
Incentives and policy support for microhydro projects are growing. But as the Patton Colorado Hydropower Project case before the FERC illustrates, even small hydropower projects may be subject to federal regulation. For some projects, an exemption may be available, but others may not be able to be developed without a FERC license. Even an exemption can take time and expense to secure, and it can be hard to preduct the outcome of an application for an exemption. How does this dynamic affect the rate of development of U.S. micro-hydropower projects?
Subscribe to:
Posts (Atom)
