FERC relicenses Poe hydro project

The Federal Energy Regulatory Commission has issued an order issuing a new hydropower license to utility Pacific Gas & Electric Company for its Poe Hydroelectric Project.

The 143-megawatt project is located on the North Fork Feather River in northern California, and includes land within the Plumas National Forest. Originally licensed in 1953, the project includes two dams impounding reservoirs, a 33,000-foot-long pressure tunnel bypassing about 7.6 miles of the river, and a powerhouse with two turbines.

The Commission issued a new 40-year license for the Poe project to PG&E on December 17, 2018. In relicensing proceedings, the Commission considers a number of public interest factors, including the economic benefits of project power. In general, the Commission evaluates the economics of a hydropower project by comparing the current costs of the project to likely alternative power, without considering forecasts concerning potential future inflation, escalation, or deflation beyond the license issuance date. The Commission says the basic purpose of its economic analysis is to provide a general estimate of the potential power benefits and the costs of a project, and of reasonable alternatives to project power.

In the Poe project's case, the Commission noted that after considering mandatory conditions and other measures suggested by Commission staff, PG&E's annual cost of operating the project would be about $9,590,000. Assuming that the project would generate an average of 498,113 megawatt-hours of energy annually, this works out to $19.3 per megawatt-hour. By comparison, the Commission found that the project's the corresponding alternative energy cost plus the value of its dependable capacity gave this power a value of $50,800,000, or $102 per megawatt-hour in the first year of operation, the project would cost $41,210,000 or $82.7 per megawatt-hour less than the likely alternative cost of power.

FERC issues license for Monongahela Locks and Dam 4 project

U.S. hydropower regulators have issued an original license for a proposed 12-megawatt hydropower project, to be located at the U.S. Army Corps of Engineers’ Monongahela Locks and Dam 4 facility on the Monongahela River, in Pennsylvania.

On February 27, 2014, FFP New Hydro, LLC subsidiary Solia 4 Hydroelectric, LLC filed, pursuant to Part I of the Federal Power Act, an application for a license to construct, operate, and maintain the Monongahela Locks and Dam 4 Hydroelectric Project No. 13767.  The company is affiliated with US Renewables Group.

The project would be located at one of the nine existing lock and dam sites on the Monongahela River, which the Army Corps operates for commercial and recreational navigation.  If developed, new facilities for the project would include an intake channel, spill gates, a powerhouse housing two equally sized Kaplan turbine-generator units with a combined capacity of 12 MW, a tailrace channel, a substation, a transmission line, and an access road.  The project will operate in a run-of-release mode, using flows made available by the Corps that would normally be released through the Corps’ spillway gates

Under the Federal Power Act, the Federal Energy Regulatory Commission is charged with regulating and reviewing applications for most non-federal hydropower projects.  Because the project uses the water power or surplus water of a government dam, occupies federal land, and is located on the Monongahela River, which is a navigable waterway of the United States, the Commission concluded that the project is required to be licensed pursuant to section 23(b)(1) of the Federal Power Act.

On July 21, 2017, the Commission issued its Order Issuing Original License for the Monongahela Locks and Dam 4 project.  The license authorizes the installation of 12 MW of new, renewable energy capacity, while requiring a number of measures to protect water quality, fish, wildlife, recreation, and cultural resources at the project.  It bears a 50-year term, the maximum allowable for an original license under Section 6 of the Federal Power Act.

According to the order, as licensed with mandatory conditions and staff-recommended measures, the levelized annual cost of constructing and operating the project will be about $3,563,340, or $72.88/MWh.  Its expected average annual generation will be 48,894 MW. 

The Commission noted that the project as licensed is best adapted to a comprehensive plan for improving or developing the Monongahela River, "because: (1) issuance of an original license will serve to provide a beneficial and dependable source of electric energy; (2) the required environmental measures will protect and enhance fish and wildlife resources, water quality, recreation resources, and historic properties; and (3) the 12 MW of electric capacity will come from a renewable resource that does not contribute to atmospheric pollution."

Whitestone hydrokinetic license surrendered

Despite efforts to offer a streamlined regulatory path for some demonstration hydropower projects, earlier this year the holder of a hydrokinetic pilot project license for a project proposed for the Tanana River in Alaska surrendered its license due to an inability to find financing. The case of the Whitestone Poncelet River-In-Stream-Energy-Conversion (RISEC) Pilot Project No. 13305 illustrates the Federal Energy Regulatory Commission’s hydrokinetic pilot project licensing process, the difficulties of testing and developing new hydropower technologies, and how the Commission handles pilot license surrender.

Whitestone Power and Communications, an assumed name of the Whitestone Community Association, had proposed the project as a 100-kilowatt demonstration of its proprietary hydrokinetic prototype technology. It was to be located on the Tanana River at its confluence with the Delta River, about 90 miles southeast of Fairbanks. A Poncelet undershot waterwheel and generator unit mounted on a floating platform, seasonally installed and moored to a cliff. Power produced would be supplied to the Golden Valley Electric Association grid.

The Federal Energy Regulatory Commission granted WPC a five-year pilot project license on October 19, 2012. In processing WPC’s application, the Commission used a hydrokinetic pilot project licensing process derived from from its Integrated Licensing Process. According to the Commission, the hydrokinetic pilot project licensing process was designed “to meet the needs of entities, such as Whitestone, who are interested in testing new hydropower technologies while minimizing the risk of adverse environmental impacts.” The Commission describes the goal of the pilot licensing process as “to allow developers to test new hydrokinetic technologies, to determine appropriate sites for these technologies, and to confirm the technology’s environmental and other effects without compromising the Commission’s oversight of the projects and limiting agency and stakeholder input.”

As outlined in a white paper prepared by Commission staff, a hydrokinetic pilot project should be: (1) small; (2) short term; (3) located in environmentally nonsensitive areas; (4) removable and able to be shut down on short notice; (5) removed, with the site restored, before the end of the license term (unless a new license is granted); and (6) initiated by a draft application in a form sufficient to support environmental analysis. After finding the WPC project met these standards, the Commission issued it a license in 2012. Article 301 of the license required the licensee to commence construction of the project works within two years from license issuance, i.e., by October 19, 2014.

Despite winning a license, the project was never built. In 2014, WPC asked for and received a two-year extension of the start-of-construction deadline, “due to unforeseen setbacks in obtaining the necessary financing to begin construction.” But in that order, the Commission reminded the licensee that, pursuant to section 13 of the Federal Power Act, the deadline for starting construction may only be extended once, for a period not exceeding two additional years. Therefore, the Commission noted its inability to grant any further extensions of time for the commencement of project construction.

But in September 2015 WPC applied to the Commission for surrender of its license. In its surrender application, WPC stated that it was unable to obtain the funding necessary to construct the project and had not constructed any project facilities.

In April 2016, the Commission granted WPC's surrender application without condition, citing the facts that the licensee had not commenced construction and that the project site remained unaltered.

The Whitestone project was among the first to use the Commission’s hydrokinetic pilot project licensing process. But despite receiving expedited regulatory treatment in licensing, financing challenges led the licensee to surrender its license before the project could be constructed. Some other proposed hydrokinetic projects have been canceled or put on hold, following licensure; earlier this year, the Commission accepted license surrender for a Washington tidal power project licensed as a 10-year pilot project, after the public utility district proposing it found it economically infeasible. Another project -- an ocean wave energy farm off the Oregon coast -- surrendered its pilot license
 in 2014.

Wisconsin municipal hydro project license extended

Federal energy regulators have granted a Wisconsin city's request to extend its hydropower project license for five years to allow time for comprehensive river corridor planning.  The March 17 order was the result of a rehearing following a denial by agency staff.  It relies on a finding of "relatively unique facts," which include a stakeholder process that will inform the licensee's upcoming decision whether to continue an effort to seek a new license for the project, or to surrender the license.

At issue is the Federal Energy Regulatory Commission license held by the City of River Falls, Wisconsin, for the 375-kilowatt River Falls Project on the Kinnickinnic River.  The municipal hydro project's current 30-year license expires on August 31, 2018, and a relicensing process is already underway -- but the city is also considering alternatives including surrendering the license.  As a result, last year the City filed a request to extend the expiration date of its license by five years, until August 31, 2023.  The City asked for more time to work with stakeholders and the community to complete a comprehensive river corridor plan, and determine whether to relicense the project or surrender the license.

But on December 9, 2015, Commission staff issued an order denying the City’s request. The order noted that the Commission has granted extensions of license terms only in a few specific instances and under limited circumstances.  For example, the Commission has extended license terms to amortize the cost of substantial new improvements or substantial new environmental measures, to coordinate the expiration dates of licenses in the same river basin, or because of unique circumstances or circumstances beyond a licensee’s control -- factors it did not originally find applicable to this proceeding. 

The City filed a timely request for rehearing of this denial, which the Commission recently granted.  In its March 17, 2016 order extending the license term five years, the Commission noted that it "generally does not favor actions that delay the completion of licensing proceedings," and historically "has extended license terms only in very narrow circumstances."  But "given the relatively unique facts of this case", the Commission found that an extension of the license term was in the public interest.

The Commission cited a list of specific factors making this proceeding unique:

We find that the unique circumstances of this proceeding – the combination of unanimous stakeholder support for the extension, the tying of the extension to the development of a comprehensive river plan, and the fact that the licensee is a small municipality – demonstrate that a five year extension of the project license is in the public interest. All resource agencies and stakeholders support the City’s proposal to extend the license term in order to complete the corridor plan and decide whether to seek a subsequent license or surrender the project. This strong support and lack of any adverse comments demonstrates that the City is not requesting an extension of the license term merely to delay the preparation of a relicense application and to continue generating under more favorable terms.

It also noted an efficiency benefit from extending the license term, given the pending question: whether to relicense the project, or surrender the license:

Last, allowing the City time to determine if it should relicense or surrender prior to having to file a relicensing application is the most efficient use of resources. As a small municipality, the City may incur significant costs in preparing and processing a relicensing application despite the fact that it may later surrender its license.

The Commission's order extended the license term for the River Falls Hydroelectric Project to August 31, 2023.  Meanwhile, the comprehensive Kinnickinnic River corridor planning process will continue.  That process may inform the City's decision whether to relicense the River Falls project, surrender its license, or pursue some other alternative.

Vanceboro Dam Storage Project relicensed

The Federal Energy Regulatory Commission has issued a new license to Woodland Pulp LLC to continue operating and maintaining the Vanceboro Dam Storage Project.  Located on the East Branch of the St. Croix River along the Canadian border in Washington County, Maine, the FERC-licensed project operates as a water storage facility that provides flood storage and flow releases for downstream hydroelectric generation.

The 469-foot-long, 16-foot-high Vanceboro Dam and 178,000 acre-foot project impoundment span the U.S.-Canada border.  The project is subject to the Boundary Waters Treaty of 1909 which established the International Joint Commission (IJC), a bi-national agency with the mission of preventing and resolving disputes between the United States and Canada over boundary waters.

The Vanceboro project is part of the larger St. Croix River headwater storage system.  This system also includes the Forest City Project, located about 24 miles upstream on the East Branch of the St. Croix, as well as the West Branch Project.  Water flows into the Vanceboro project’s impoundment from the Forest City Project. The project operates in a store-and-release mode whereby water is stored during periods of high flow to reduce downstream flooding, and then released during periods of lower flow to increase generation at the downstream hydroelectric projects.   Generation associated with these projects occurs at the unlicensed Grand Falls and Woodland hydroelectric projects located downstream on the St. Croix River.  Collectively, these storage projects provide flood storage and helps to regulate and augment flows, resulting in increased generation at Woodland Pulp’s downstream hydroelectric projects.

The Federal Energy Regulatory Commission issued an original license for the United States portion of the Vanceboro project on April 4, 1966.  The project is docketed as No. 2492.  That original license expired February 29, 2016, so two years earlier the licensee filed an application to the Commission for a new license to continue operating and maintaining the project.  In the interim, Woodland Pulp operated the project under an annual license pending resolution of its FERC relicensing process. 

On March 22, 2016, the FERC released an order issuing a new license for the Vanceboro Project. The new license authorizes no new capacity, and requires what the Commission characterized as "a moderate amount of new environmental mitigation measures."  These include a mandatory prescription issued under section 18 of the Federal Power Act, relating to new upstream fish passage facilities for American eel, river herring, and landlocked Atlantic salmon.

Given the fact that the Vanceboro Project is operated in coordination with the recently-relicensed West Branch Project No. 2618 and Forest City Project No. 2660 which each received 30-year license terms within the past 5 months, the Commission similarly relicensed the Vanceboro project for a 30-year license term to allow coordination of all three projects during any future relicensing.

Based on the large number of FERC-licensed hydropower projects whose licenses will expire in the near future, regulators expect to see an uptick in relicensing activity for hydroelectric projects and dams.

FERC holds CO microhydro needs license

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:

(a) is located on a navigable water of the United States;
(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.

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.

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?

Successive preliminary permit for Cave Run hydro project

Federal energy regulators have issued an order issuing a successive preliminary permit to Cave Run Energy, LLC for a proposed hydroelectric project to be located at a dam in Kentucky owned by the U.S. Army Corps of Engineers.

The Federal Power Act provides for federal regulation of most hydropower projects in the U.S. Under Section 4(f) of the Federal Power Act, 16 U.S.C. § 797(f), the Federal Energy Regulatory Commission is authorized to issue preliminary permits for the purpose of enabling prospective applicants for a hydropower license to secure data and prepare material supporting a license application as required by section 9 of the Federal Power Act.  As the Commission has said, "The purpose of a preliminary permit is to preserve the right of the permit holder to have the first priority in applying for a license for the project that is being studied."

In the Cave Run case, on March 23, 2012, Cave Run Energy, LLC filed an application to the Commission for a preliminary permit to study the Cave Run Dam Hydroelectric Project.  The project would be located at the U.S. Army Corps of Engineers’ Cave Run Dam on the Licking River in Rowan and Bath Counties, Kentucky.  As described in that application, it would include a bifurcation structure to be constructed at the end of the dam’s outlet conduit, a powerhouse containing two turbine/generating units with a total capacity of 6.0 megawatts, a penstock and a 12.7-kilovolt transmission line.  The proposed project would use surplus water released from the Cave Run dam by the Corps.

The Commission granted Cave Run Energy a preliminary permit by order dated July 13, 2012.  That order provided that the preliminary permit was effective "for a period effective the first day of the month in which this permit is issued, and ending either 36 months from the effective date or on the date that a development application submitted by the permittee has been accepted for filing, whichever occurs first."   In the ensuing months, the applicant conducted studies and outreach, and filed a pre-application document and notice of intent to file a license application for the project.

On August 13, 2015, Cave Run Energy filed an application for a successive preliminary permit for the project.  While many aspects of the project described in the 2015 application were similar to those described in 2012, the generators' total capacity was revised to 4.95 megawatts.

After a public notice period, on February 11, 2016, the Commission issued a successive preliminary permit to Cave Run Energy for two more years.  The order granting the successive preliminary permit notes the Commission's policy to "grant successive permits if it concludes that the applicant has diligently pursued the requirements of its prior permits."  The order cites information provided by the applicant demonstrating progress with the analysis of the project’s feasibility, and towards the development of its proposed project, including the filing of a notice of intent and preapplication document.

As in some previous orders, the order granting Cave Run Energy a successive preliminary permit explains the Commission's reasoning in setting a two-year term for the successive permit.  It notes that the Hydropower Regulatory Efficiency Act of 2013 authorizes the Commission to extend preliminary permit terms for not more than two additional years if the Commission finds that the permittee has carried out activities under the permit and with reasonable diligence.  The order observes that this legislation suggests that "five years is a sufficient maximum period to prepare a development application."  Accordingly, it granted Cave Run Energy a successive preliminary permit for a 24-month term.

Restoring old mill hydro sites and FERC licensure

Suppose you own an existing water powered mill complex whose hydromechanical facilities have not been operational for decades.  You would like to develop a hydropower project at the site, using the existing dam, headrace, and headgates, plus new equipment including two small generators, penstocks, and appurtenant facilities, to provide electricity to your home and workshop.  Do you need a license from the Federal Energy Regulatory Commission?

In the case of the Egnaczak Net Zero Hydro Project proposed for the outlet of the Hoosic River in Cheshire, Massachusetts, the FERC concluded that section 23(b)(1) of the Federal Power Act requires that project's owners to obtain a license for the project's construction, maintenance, and operation.  Proposed by Kenneth and Susan Egnaczak, the Egnaczak Net Zero Hydro Project would have a total generating capacity of 10.7 kilowatts.

Pursuant to section 23(b)(1) of the Federal Power Act, 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;
(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.

The fourth prong itself has three main elements: project located on a Commerce Clause stream, post-1935 construction or modification, affecting interstate commerce.  In this case, FERC concluded that the Egnaczak project satisfied the fourth prong.

First, FERC found that the Egnaczak project is located on a Commerce Clause stream.  Under a 1965 Supreme Court ruling, for purposes of Federal Power Act section 23(b)(1), Commerce Clause streams are the headwaters and tributaries of navigable waters of the United States.  While FERC declined to determine whether the Hoosic River is navigable at the site of the project, it concluded that downstream segments of the Hoosic are navigable, as is the Hudson River into which the Hoosic flows.

Second, FERC next found that installing new hydroelectric generating capacity constitutes post-1935 construction within the meaning of Federal Power Act section 23(b)(1). 

Third, FERC found that the project would offset both electrical and heating needs that would have been otherwise supplied by the interstate grid -- and thus that the project would affect the interests of interstate commerce.  A footnote notes, "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 FPA section 23(b)(1)."

FERC concluded that because the project would be located on a Commerce Clause stream, would be constructed after 1935, and would affect interstate commerce through its connection to the interstate grid, Section 23(b)(1) of the Federal Power Act requires Kenneth and Susan Egnaczak to obtain a license for the project's construction, maintenance, and operation.  The FERC order also suggests the project may be eligible to obtain an exemption from licensing as a small hydroelectric power project of 10 megawatts or less, and encourages the applicants to investigate the requirements for securing an exemption from licensure.

FERC hydro dam relicensing, timing and options

Under U.S. law, the Federal Energy Regulatory Commission has jurisdiction over most hydropower dams and projects.  The Federal Power Act directs the Commission to issue licenses for hydropower projects for a defined term of years, and provides the basis for the FERC hydro relicensing process.  The relicensing process can take years, and often must be started before a licensee has made final long-term plans for the project's fate.  For example, what if a FERC licensee is considering surrendering the license and removing the dam, at the same time that its existing license approaches expiration and a relicensing application is due?

A recent order by FERC staff under its delegated authority in City of River Falls, Wisconsin, P-10489-014, illustrates this dynamic.  The City of River Falls, Wisconsin, holds the license for the River Falls Project on the Kinnickinnic River, in Pierce County, Wisconsin.  When the license for the River Falls Project was issued, the Commission determined that a 30-year term was appropriate and in the public interest.  That current license expires on August 31, 2018.

Because the FERC hydropower relicensing process can take years -- or longer -- licensees who wish to retain licensure are required to start the planning, stakeholder, and application filing processes early.  In the River Falls case, a relicense application will be due by August 31, 2016.  To get the ball rolling, in 2013 the City filed a Notice of Intent (NOI) to relicense the project and Pre-Application Document (PAD) and elected the Commission’s Traditional Licensing Process (TLP).

Meanwhile, the City of River Falls is trying to evaluate the project's future.  The City is considering surrendering the license instead of continuing with relicensing, and to draft and adopt a Kinnickinnic River Corridor Planning Strategy to "reflect a single community vision for the river, with or without the hydroelectric project."

But the studies and deliberation required to evaluate dam relicensing, surrender, or alternatives take time.  Meanwhile, the clock ticks toward license expiration.  The City tried to buy 5 more years, by asking FERC to extend the termination date of its existing license, so that it expires on August 31, 2023.  As described by FERC:

The City states the additional time is needed so that it does not spend time and money relicensing the project only to determine through its Corridor Plan that the license should be surrendered and the project decommissioned. The City believes that a lengthy and expensive licensing process is the wrong process for making such a determination. The City explains that a decision about the future of the project would be made by the fall of 2017, and a notice of intent to relicense the project or a surrender application would be filed no later than August 31, 2018.

The City's request was supported by public commenters, mostly on the theory that an extension would allow time to explore license surrender and dam removal.

But as expressed in the order, the Commission saw "no reason why the City cannot evaluate both license surrender and relicensing in the remaining time it has to file a relicense application (due August 31, 2016). In fact, analysis of studies and feedback from agencies would help inform its decision of whether or not to continue to pursue the project."  In particular, the Commission did not view the simultaneous City's Corridor Plan process as "unique circumstances or circumstances beyond the City’s control that prevent it from making a determination by August 31, 2016... as to whether to relicense or to surrender the project."

The Commission also distinguished the River Falls case from precedent where it has extended other license terms, either to enable a licensee to amortize the cost of substantial improvements to project facilities or substantial new environmental measures, or to coordinate the license expiration date with the expiration dates of other licenses in the same river basin.

Ultimately, the Commission denied the City of River Falls, Wisconsin’s application to extend the license term for the River Falls Project from August 31, 2018, to August 31, 2023.  As noted in the Commission's order, the "City remains able to work on both a relicensing option and a surrender option while it develops its Corridor Plan should the City wish to do so."

The City has filed its Notice of Intent and Pre-Application Document, and has received Commission approval to use the Traditional Licensing Process.  Any relicense application will be due 2 years before the current license expires, or on August 31, 2016.  In the meantime, the City will presumably continue to explore its options, including license surrender and dam removal, or relicensing the project.

Merced River hydro relicensing Environmental Impact Statement released

Staff of the Federal Energy Regulatory Commission have released a final Environmental Impact Statement (EIS) evaluating proposals to relicense two hydroelectric power projects located on the Merced River in California.

The two projects are Merced Irrigation District’s existing 101.25 megawatt Merced River Project No. 2179-043, and Pacific Gas and Electric Company’s (PG&E) existing 3.4-MW Merced Falls Project No. 2467-020.  Prepared as part of the relicensing process for those projects, the Merced River EIS contains FERC staff evaluations of the applicants’ proposals and the alternatives for relicensing the Merced River and Merced Falls Hydroelectric Projects.  The staff’s recommendation is to relicense the project as proposed, with certain modifications, and additional measures recommended by the agencies.

The Federal Energy Regulatory Commission is authorized by the Federal Power Act to issue licenses for up to 50 years for the construction and operation of nonfederal hydroelectric development subject to its jurisdiction, on condition:

That the project adopted…shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes referred to in section 4(e)…

The Commission may also require such other conditions not inconsistent with the FPA as may be found necessary to provide for the various public interests to be served by the project.  To assist in this evaluation, and as required by the National Environmental Policy Act, FERC staff prepares the EIS.  It is designed to record the view of governmental agencies, non-governmental organizations, affected Indian tribes, the public, the license applicants, and FERC staff.

In the Merced River cases, the licensees used FERC's Integrated Licensing Process (ILP) and filed relicensing applications in February 2012.  FERC elected to process the applications for the two projects together "because they: (1) are located contiguously on the Merced River; (2) the Merced Falls Project’s operation depends entirely on flows released by the upstream Merced River Project; and (3) downstream of the Merced River Project, the environmental effects of both projects are interrelated."

Each applicant proposed some modified environmental measures in its license application, but no new capacity and no new construction at the project.  In the Merced projects' 840-page final EIS, Commission staff noted that the "primary issues associated with relicensing the projects are flow regimes in project-affected reaches for aquatic resources, project effects on physical habitat for aquatic resources, protection of wildlife resources, recreation enhancements, and protection of cultural resources." After consideration, Commission staff recommended the staff alternative, which consists of measures included in Merced ID’s and PG&E’s proposals, as well as some of the mandatory conditions and recommendations made by other state and federal agencies and non-governmental organizations, plus additional measures developed by FERC staff:

We chose the staff alternative as the preferred alternative because: (1) the projects would provide a dependable source of electrical energy for the region; (2) the generation comes from a renewable resource that does not contribute to atmospheric pollution, including greenhouse gases; and (3) the recommended environmental measures proposed by Merced ID and PG&E, as modified by staff, would adequately protect and enhance environmental resources affected by the projects. The overall benefits of the staff alternatives would be worth the cost of the environmental measures.

Ultimately, the Merced River hydropower relicensing project EIS concludes that "issuing new licenses for the Merced River and Merced Falls Projects, with the environmental measures we recommend, would not be major federal actions significantly affecting the quality of the human environment."

Texas small hydro project loses exemption

What happens to a proposed hydroelectric project takes longer than anticipated to be built, due to difficulties with project financing and severe flooding?  As the developer of a proposed project in Texas recently found out, federal regulators can be lenient up to a point -- but under some circumstances the developer can lose its federal authorization to develop and operate the project.

The A.H. Smith Dam on the San Marcos River in Martindale, Texas was originally constructed in about 1894 to provide mechanical power a cotton gin; later, electric generation was installed, but power production ceased in the 1940s when low wholesale energy prices made operation uneconomic.  Modern hydropower facilities rated at 150 kilowatts were installed in 1984, but were ultimately abandoned.

In 2005, developer Hydraco Power, Inc. applied to the Federal Energy Regulatory Commission for an exemption from the licensing requirements of Part I of the Federal Power Act for its proposed A.H. Smith Dam Project.  Hydraco's project included refurbishing and restoring the operation of the existing turbine located at the dam's powerhouse, installing a new buried transmission line and a water surface elevation gate in the headpond.

On June 2, 2006, the Commission granted Hydraco an exemption for the project.  As a standard condition of exemptions, the Commission retained the right to revoke the exemption if any term or condition was violated.  Among the terms was a requirement that Hydraco file within 120 days a
plan and schedule to install the new transmission line and restore the powerhouse, turbine, and trash racks to operating condition, as well as notice that the Commission could terminate the exemption if actual construction of any proposed or required facility had not begun within two years or had not been completed within four years of the date of issuance of the exemption.

Over the next 8 years, Hydraco filed a series of construction plans and schedules, but never completed the project despite obtaining repeated extensions of key deadlines.  After multiple prompts by Commission staff to file a revised plan and schedule for restoring project operation or an application to surrender the exemption, the Commission noted that Hydraco either failed to respond or responded by stating that it could not estimate a schedule for restoring project operation because project construction, including major component repairs, was on hold due to lack of funds.

After the Commission issued a public notice in August 2014 stating its intent to terminate the project exemption "due to Hydraco’s longstanding violation of exemption Article 10 and its failure to provide a timeframe for restoring project generation", on November 20, 2014, the Commission issued an Order Terminating Exemption. That order found that "Hydraco has only performed minimal work at the project since obtaining its exemption in 2006 and that it lacks the funding to proceed with the necessary component repairs, including construction of the powerhouse interior and generating unit."

Hydraco filed a request for rehearing of the Order Terminating Exemption.  On rehearing, Hydraco asserted that it had reached a financing agreement with a new investor and, consequently, it is ready to perform the work needed to comply with its exemption. Hydraco also objected to the findings that project construction was at a standstill and that Hydraco intended to abandon the project, noting that the Commission should excuse construction delays caused by severe flooding.

Last week, the Commission issued an Order Denying Rehearing in the case.  It first noted that Hydraco had not demonstrated that it now has the money needed to bring the project on line.  Not only did Hydraco not show evidence of a final financing agreement, but the documents showed a source of only half of the funding needed for project restoration.  Second, the Commission noted that Hydraco's recent activities -- regularly inspecting the dam and removing debris from its spillway, trashracks, and grates, securing the site against vandalism and installing lighting, and repairing damage caused by a flood -- are "either maintenance or repair, not project development."  Finally, the Commission articulated its "doctrine of implied surrender", which it applies where the entity responsible for the project has, by action or inaction, clearly indicated its intent to abandon the project, but has not filed a surrender application.

With the exemption terminated and Hydraco's request for rehearing denied, the A.H. Smith Dam project faces an uncertain future.  On the one hand, the site presumably still offers many of the same values that Hydraco hoped to capture -- use an existing dam, with existing generation facilities, to generate renewable electricity.  However, the loss of the FERC exemption means that Hydraco (or any other developer) will have to start the federal hydropower process over if it hopes to redevelop the dam as a hydroelectric generating site.

The case of the A.H. Smith Dam project illustrates a number of themes: interest in restoring existing hydropower infrastructure to generate renewable energy with relatively less environmental impact than newly-built dams, the challenge of securing financing for small hydropower projects -- and perhaps most importantly the value of compliance with FERC hydropower rules.

Hydrokinetic energy projects in 2014

Hydrokinetic energy projects generate electricity from moving water, capturing the power embodied in tides, waves, and currents without the use of dams.  Hydrokinetic energy resources are estimated to have a tremendous power potential -- according to one U.S. Department of Energy study, approximately 1,420 terawatt-hours per year, or approximately one-third of the nation's total annual electricity usage.  The technologies required are relatively new, do not have decades of operational experience, and remain relatively expensive.  Nevertheless, federal records show growth in hydrokinetic project development.

The Federal Energy Regulatory Commission regulates most hydrokinetic energy projects under its hydropower jurisdiction pursuant to the Federal Power Act.  Project developers may seek preliminary permits granting the right to study a particular site and priority to apply for a project license. 

Relatively few projects have received licenses to date.  In 2012, the Commission issued a pilot project license for the Roosevelt Island Tidal Energy project in the East River near New York City.  Last month, the Commission issued a pilot project license to the Public Utility District No. 1 of Snohomish County for a 600 kilowatt tidal project in Puget Sound, Washington.

As of last month, six projects have been issued preliminary permits that remain in effect:

• Ecosponsible, Inc.'s Niagara Community project, a 1.25 megawatt inland project proposed for the Niagara River in New York
• Ecosponsible, Inc.'s Niagara Community #2 project, a similar 1.25 megawatt inland project proposed for the Niagara River in New York
• Iguigig Village Council's Iguigig RISEC project, a 40 kilowatt inland project proposed for the Kvichak River in Alaska
• The Town of Edgartown, Massachusetts's Muskeget Channel Tidal Energy project, a 4.94 megawatt project proposed for the Muskeget Channel off the island of Martha's Vineyard
• Turnagain Arm Tidal Energy's Turnagain Arm Tidal project, a 240 megawatt tidal project proposed for Cook Inlet, Alaska
• Resolute Marine Energy, Inc.'s Yakutat project, a 750 kilowatt wave project proposed in the Gulf of Alaska

 As of March, another 15 applications for preliminary permits were pending before the Commission.

July 5, 2011 - ambitious Mississippi River hydrokinetic projects up close

Staking a claim to a site for a hydrokinetic energy project can feel a bit like the wild West.  A recent flap over rights to study and seek licenses for hydrokinetic projects in the lower Mississippi River illustrates the challenges of the race to get a permit, and the changing ways in which regulators evaluate permit applications.

A weathered boathouse on the rocky shore of Islesford, Maine.

I've already noted the significant interest in developing the hydrokinetic resources of the lower Mississippi River.  Developers have filed about 300 preliminary permit applications for Mississippi River hydrokinetic projects, with two developers -- Free Flow Power Corporation and Northland Power -- applying for the vast bulk of the sites.  As of April 2011, Free Flow Power had 24 active permits for the Mississippi River, with applications filed for another 105 river sites.  Northland has applied to the Federal Energy Regulatory Commission for preliminary permits at 40 sites along the same reach, 28 of which Free Flow Power is also pursuing.

This flood of interest in preliminary permits for hydrokinetic projects in the Mississippi River appears to have taken federal regulators by surprise.  Between the applications filed by these two developers, preliminary permits have been sought or awarded for 141 sites covering nearly all of this 850-mile reach of the Mississippi River.  On April 1, 2011, the director of FERC's Office of Energy Projects sent a letter to these two developers, expressing skepticism that two companies could actually develop and file license applications for more than a small fraction of the sites during the short term of the preliminary permit.  (Recall that a preliminary permit just stakes a temporary claim to a site; to build and operate a project, a full project license is generally required.)  The director's letter also expressed concern over letting two applicants tie up so much of the river.  Based on these concerns, the letter noted that Commission staff intended "to decline to issue additional permits on this stretch of the river, and instead allow potential developers to advance their projects through the Commission’s licensing process."

In response, Northland Power pointed out that a Commission policy to deny permits would prevent Northland from studying the sites enough to know if it wanted to file a license application, let alone from promoting competition and developers' reasonable rights to reserve sites.  Free Flow Power noted that the timing and standards of the Commission's Integrated Licensing Process make it "impossible" to file a complete license application within the 3-year term of a preliminary permit.  As a concession to FERC's interest in competition, Free Flow Power also trimmed back its request for permits, withdrawing 58 of the 60 new preliminary permit applications for the Mississippi (representing 419 river miles) and choosing not to seek successive permits for a handful of sites whose preliminary permits had expired. 

This twin-pronged message  -- supporting competition and offering compromise  -- apparently worked.  In letters to the developers dated June 9, 2011, FERC staff noted, "After reviewing all of the resulting filings, staff has determined that it is appropriate to continue processing permit applications on the lower Mississippi River at this time."  

(FERC accepted for processing 43 of Free Flow Power's applications for permits, and incidentally told Northland Power that 40 of its permit applications were deficient for failing to include geographic information about the project and adjacent communities, requesting additional information within 30 days.  As of July 4, 2011, FERC's eLibrary system did not yet show any follow-up from the developer.)

July 9, 2010 - Smelt Hill Dam

A peek at part of the New Meadows quahog fleet:



Today, I begin a look at Maine's first hydroelectric dam: the Smelt Hill dam on the Presumpscot River in Falmouth. Dammed in 1735 and with generating capacity installed in 1889, the Smelt Hill dam was the first hydro dam to be built in Maine.

In the early 1700s, the land around the Presumpscot River's mouth was owned by Thomas Westbrook, William Pepperell, and Samuel Waldo. Town records show that "a great dam" and sawmill were constructed on the lower falls in 1735. Resource conflicts began immediately, with upstream fish passage so impaired that Chief Polin, leader of the "Rockameecook" Tribe of Abenakis made the multi-day journey to Boston to ask Governor Shirley to require fish passage on all dams on the Presumpscot system. Accounts from the era describe “an acre of fish, mostly salmon” penned up below the impassable dam.

In 1726, George and Judith Knight settled on the Middle Road in Falmouth. Descendant Samuel Knight became known as the "Smelt King", famously claiming that if you laid his smelt catch end to end, it would reach all the way to Bangor. Perhaps thanks to his marketing pitches, the area came to be known as "Smelt Hill."

In 1889, the S.D. Warren Company erected a powerhouse (and new dam) at the site to supply electricity to its paper mill several miles upstream in Westbrook. The March 15, 1896 edition of the Electrical Journal gives a contemporary description of the power station:

The power plant of S. D. Warren & Co., at Smelt Hill, Maine, on the Presumpscot, has been started up for the first time. This plant was built some six years ago when the dam at the lower falls of the Presumpscot was constructed. The plant is arranged for twelve large turbine wheels. It has laid idle all this time, but recently the company has secured the right of way on the bank of the Presumpscot to Westbrook and has run a line of heavy copper wires whereon to convey the power from the new plant to the big paper mills. The distance is some five or six miles. The reason that this power has at last been transferred up the river and put into use is because of the lack of water at times to furnish sufficient power at the paper mills. They are now using only two of the turbine wheels at the Smelt Hill plant, but next week will use four of them.

It's interesting to see that even in the late 1800s, developers had a hard time getting easements to string transmission and distribution lines from distributed renewable resources to markets and loads.

By its end, Smelt Hill was the site of a 151-foot long, 31-foot wide and 15-foot high stone filled, timber crib dam, along with some associated structures. Smelt Hill Dam was not operational between 1943 and 1985. The Town of Falmouth's 2000 Comprehensive Plan documents the Smelt Hill dam as having been "damaged beyond repair in a 1996 flood." The 1996 flood -- almost 20 inches of rain in 3 days -- on the Presumpscot rendered the hydroelectric facilities and the fish lift at the dam inoperable and anadromous runs again ceased on the Presumpscot.

The dam was subsequently removed in October 2002. In a coming edition, I'll look at the issues that led to its removal.

Source note: much of the history of the area is drawn from the National Park Service's 1993 Historic American Engineering Report for the downstream Presumpscot Falls Bridge.



News: retired U.S. Navy Vice Adm. Dennis McGinn, vice chairman of the CNA Military Advisory Board, an retired-officer based energy and climate change think tank, visited Maine to call for greater energy independence.