[Federal Register: December 6, 2007 (Volume 72, Number 234)]
[Notices]
[Page 68877-68879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06de07-51]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. PL08-1-000; 121 FERC ] 61,221]
Policy Statement on Conditioned Licenses for Hydrokinetic
Projects
November 30, 2007.
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Policy Statement.
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SUMMARY: The Federal Energy Regulatory Commission is giving notice of a
new policy with respect to the issuance of licenses for hydrokinetic
projects. In the Policy Statement, the Commission concludes that, in
appropriate cases, where the Commission has completed its processing of
license applications for hydrokinetic projects, but where other
authorizations required under federal law have not yet been received,
it will issue conditioned licenses for hydrokinetic projects,
predicated on the licensee being precluded from commencing construction
until the necessary authorizations are received.
DATES: Effective Dates: This Policy Statement is effective November 30,
2007.
FOR FURTHER INFORMATION CONTACT:
Ann Miles, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502-6769;
John Katz, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502-8082.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly,
Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.
1. The Commission is issuing this Policy Statement as part of its
ongoing effort to establish a regulatory climate that supports the
development of
[[Page 68878]]
innovative hydropower projects that use the forces of currents, waves,
and tides (generally referred to herein as ``hydrokinetic projects') to
generate clean, renewable electric energy. In the Policy Statement, the
Commission sets forth a new policy, applicable only to hydrokinetic
projects, pursuant to which the Commission will, in appropriate cases,
issue licenses pending actions by other entities under federal law. The
goal of this action is to shorten the regulatory process and speed the
development of meritorious hydrokinetic projects.
I. Background
2. In recent years, the Commission has become aware of efforts by
the hydrokinetic industry to test and develop projects that harness the
nation's water resources to produce new supplies of much-needed
electric power. Estimates suggest that new hydrokinetic technologies,
if fully developed, could double the amount of hydropower production in
the United States, bringing it from just under 10 percent to close to
20 percent of the national electric energy supply. Given the potential
benefits of this new, clean power source, the Commission has taken
steps to lower regulatory barriers to its development.
3. On December 6, 2006, the Commission held a technical conference
on Hydroelectric Generation from Ocean Waves, Tides, and Currents and
from Free-Flowing Rivers.\1\ At the conference, the Commission heard
from state and federal regulators, developers, and other stakeholders
interested in hydrokinetic projects. Following the conference, the
Commission received public comments. A number of the comments focused
on issues relating to the issuance of preliminary permits for
hydrokinetic projects,\2\ while other comments discussed the licensing
process for such projects.
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\1\ Docket AD06-13-000.
\2\ Preliminary permits, issued for a term of up to three years
pursuant to section 4(f) of the Federal Power Act, 18 U.S.C. 797(f)
(2000), allow a potential applicant to develop sufficient
information to prepare a license application and give the permit
holder a priority with respect to filing a license application, but
confer no property rights in the project site and no authority to
conduct construction or other land-disturbing activity.
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4. On February 15, 2007, the Commission issued a notice of inquiry
and interim statement of policy with respect to preliminary permits for
hydrokinetic projects.\3\ The Commission explained that there had been
a surge in applications for preliminary permits to study potential
hydrokinetic projects, and noted the potential for new energy
production from those projects. In consequence, the Commission proposed
to implement a ``strict scrutiny'' approach to reviewing preliminary
permit applications, in order to respond to issues that had been raised
at the technical conference, and to encourage thoughtful permit
applications and promote competition.\4\ The Commission also sought
comment on this proposal, and the great majority of the commenters
supported the Commission's approach.
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\3\ The notice of inquiry and interim statement of policy is
published at FERC Stats. & Regs. ] 35,555.
\4\ Id. at ] 14, 16.
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5. On October 2, 2007, the Commission held a Commissioner-led
technical conference, in Portland, Oregon, to discuss a Commission
staff proposal for a pilot licensing process regarding hydrokinetic
projects. The staff proposal called for an expedited licensing process,
to be completed in as few as six months. Staff suggested that pilot
project licenses would be available only for proposed projects that are
small (five megawatts or less), are removable or able to be shut down
quickly, are not located in sensitive areas, and are for the purpose of
testing new technologies or locating appropriate sites.\5\ Staff
proposed that pilot project licenses (1) have a short term (five
years), (2) include a standard condition requiring project alteration
or shutdown in the event that there was an unacceptable level of
environmental effect, (3) provide the option of applying for a standard
30-50 year license, and (4) require decommissioning and site
restoration at license expiration, if a standard license is not sought.
The comments filed regarding the pilot project license proposal were
largely supportive of a more expedited, less burdensome process, and
included a number of specific suggestions as to how the process could
be implemented.
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\5\ See Notice of Technical Conference and Soliciting Comments,
Docket No. AD07-14-000 (issued July 19 2007).
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II. Discussion
6. Based on the Commission's experience, it has often been the case
that Commission staff has completed its processing of a hydropower
license application, including preparation of an environmental
document, but that authorizations required from other entities under
federal laws including the Clean Water Act, the Coastal Zone Management
Act, and the Endangered Species Act, have not yet been received.
Typically, the Commission has not acted in such instances, sometimes
resulting in substantial delays in developers' abilities to undertake
non-construction activities. This has a concomitant adverse impact on
developers' abilities to move quickly with project construction once
the pending authorizations are filed with the Commission.
7. The Commission has taken a different approach with respect to
authorizations issued under the Natural Gas Act. In those cases, the
Commission has issued pipeline certificates and authorizations to
construct liquefied natural gas facilities while action by other
entities is still pending, and included in the Commission order
provisos that construction may not commence until the necessary
authorizations have been received.\6\
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\6\ See, e.g., Crown Landing LLC, 117 FERC ] 61,209 at P 21 and
n. 19 and n. 36 (2006); Georgia Strait Crossing Pipeline LP, 108
FERC ] 61,053 at P 13-16 (2004); Millennium Pipeline Company, L.P.,
100 FERC ] 61,277 at P 225-231 (2002).
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8. In light of the nation's interest in the development of its
water power resources to meet the growing need for clean, renewable
energy, the Commission has decided to adopt the natural gas procedural
model with respect to new, hydrokinetic projects. Thus, for new
hydrokinetic projects only, we will, in appropriate cases, issue
project licenses where the Commission has completed processing an
application but other authorizations remain outstanding. In such cases,
the license will include conditions precluding the licensee from
commencing construction until it has obtained all necessary
authorizations.
9. There are a number of policy reasons to consider adopting the
gas pipeline practice rather than the conventional hydropower practice
with respect to conditioned licensing of hydrokinetic technologies.
First, issuing licenses as described will have no environmental
impacts. By the terms of the licenses, licensees will not be permitted
to commence construction until they have obtained all authorizations
required by federal law. When the authorizations are obtained,
licensees will be required to file them with the Commission, and the
Commission then will review them and incorporate their terms in the
licenses, as appropriate.
10. Second, issuing an appropriately conditioned license would in
no way diminish the authority of the states or other federal agencies.
Construction of a hydrokinetic project could not start without any
necessary state and federal authorizations under a conditioned license.
For that reason, states and federal agencies will fully retain their
authority to take action under relevant federal law.
[[Page 68879]]
11. Third, the new procedure is suitable for demonstration
projects. The Commission can issue licenses quickly, leaving state and
federal agencies that have not yet completed their actions the
opportunity to do so, ideally quickly, on their own timetable. While it
is not clear whether state and federal resource agencies will complete
their actions on hydrokinetic projects in a shortened timeframe, as
suggested in the pilot project license proposal drafted by Commission
staff, issuance of conditioned licenses would likely give the
Commission a greater ability to respond quickly to innovative project
proposals. Also, early issuance of a Commission license will improve
the ability of project developers to secure financing of demonstration
projects.
12. Issuance of a conditioned license will be a final Commission
action, as is the case with other licenses that contain reservations of
authority. Thus, these licenses will be subject to rehearing, and, once
accepted, their terms will be binding on licensees. Licensees will be
able, and required, to comply with all license terms that do not
involve construction, such as those which may require the development
of plans and consultation with stakeholders.
III. Comments
13. Interested persons may submit comments on this Policy
Statement. Comments are due on or before December 14, 2007. Comments
must refer to Docket No. PL08-1-000, and must include the commenter's
name, the organization they represent, if applicable, and their
address.
14. Commenters are requested to use appropriate headings and to
double space their comments.
15. Comments may be filed on paper or electronically via the
eFiling link on the Commission's Web site at http://www.ferc.gov. The
Commission accepts most standard word processing formats and commenters
may attach additional files with supporting information in certain
other file formats. Commenters filing electronically do not need to
make a paper filing. Commenters that are not able to file comments
electronically must send an original and 14 copies of their comments
to: Federal Energy Regulatory Commission, Office of the Secretary, 888
First Street, NE., Washington, DC 20426.
16. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters are not required to
serve copies of their comments on other commenters.
IV. Document Availability
17. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through the Commission's Home Page (http://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A,
Washington DC 20426.
18. From the Commission's Home Page on the Internet, this
information is available in the Commission's document management
system, eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number (excluding the last three digits of the docket number), in the
docket number field. User assistance is available for eLibrary and the
Commission's Web site during normal business hours. For assistance,
please contact FERC Online Support at (202) 502-6652 (toll-free at 1-
866-208-3676) or e-mail at ferconlinesupport@ferc.gov, or the Public
Reference Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public
Reference Room at public.referenceroom@ferc.gov.
By the Commission.
Kimberly D. Bose,
Secretary.
[FR Doc. E7-23615 Filed 12-5-07; 8:45 am]
BILLING CODE 6717-01-P