The Licensing of Small/Low-Impact Hydropower Projects

Jan Borchert, Current Hydro

Applying for a Small Hydropower Exemption

If a hydropower project falls under federal jurisdiction, a license for its construction and operation will need to be obtained from the Federal Energy Regulatory Commission (FERC). Instead of applying for a “standard” hydropower license, FERC offers an “exemption from licensing” for small / low-impact hydropower projects of 10 MW (10,000 kW installed power) or less that will be built at an existing dam, or utilize a natural water feature that creates an elevation drop sufficient for power generation. The term “exemption” in this context does not mean small projects are exempted from licensing all together, but rather that exempted projects are not subject to Part 1 of the Federal Power Act. That means getting an exemption can be a more simplified process than applying for a “standard” license; also, exemptions are issued in perpetuity while licenses have to go through a relicensing process every so many years.

The licensing / exemption process follows the Code of Federal Regulations, Title 18, chapter 1, subchapter B, part 4, subpart D.

Pre-Application / Consultation Requirements

Before filing an exemption application, a potential applicant must consult with relevant federal, state and interstate resource agencies and any Native American tribe that may be affected by the proposed project. The Code of Federal Regulations (CFR) requires a three-stage consultation process:

Some of the relevant Federal, State, and interstate resource agencies to be included in the consultation process are the National Marine Fisheries Service, the United States Fish and Wildlife Service, the National Park Service, the United States Environmental Protection Agency, the appropriate State fish and wildlife agencies, the appropriate State water resource management agencies, and any Native American tribe that may be affected by the proposed project.

1. First Stage of Consultation – Initial Consultation
   During the first stage of consultation, the applicant needs to identify relevant stakeholders (FERC Contact List Generator) and inform them about the project’s construction, operation and environmental implications so these entities can understand the proposed project, identify any environmental issues, identify any information needs or studies, and provide meaningful comments and recommendations on the proposed project. The information is shared via the Initial Consultation Document (FERC Template) and is the basis for joint agency / stakeholder meeting and site visit at the beginning of a 60-day comment period.^[1]
2. Second Stage of Consultation – Draft Application                           Based on the comments and information needs communicated during the first consultation stage, the applicant conducts studies to fill information gaps if determined to be reasonable by FERC. Depending on the implications of the requested information, these studies will need to be completed prior to filing (impact on feasibility, design or location of project), after filing (long-term studies) or even after the exemption is issued (e.g. post-construction monitoring studies, or project operation). The applicant then prepares a draft application document that contains all deficiency corrections, revisions, supplements, responses to additional information requests, and amendments. Each resource agency and Indian tribe (except those who have opted out) is to be provided with a copy, with the request for review and comments within a 90-day comment period. If at that stage resource agencies are disagreeing about aspects of the project a separate joint meeting is to be held with disagreeing resource agencies, within 60 days of comment. This meeting needs to conclude with a document embodying agreements and/or unresolved issues – which need to be explained in the final application.
3. Third Stage of Consultation – Application                                                   This stage is actually applying for the exemption with FERC and providing copies of all materials to all involved stakeholders. Applicants must provide public notice of the filing of the application no later than the filing date of the application in a daily or weekly newspaper in each county in which the project would be located.

Stakeholders are involved during all three steps and have the opportunity during public commenting periods to request additional information and studies, based on the initial consultation document and the draft application.

Application Requirements

FERC provides a (12-page) template for the 10-MW small / low-impact hydropower exemption application. All applications for a hydroelectric project require maps and drawings; FERC specifies the requirements for drawings and maps and even provides a guidelines document.

The application for exemption from licensing must contain an introductory statement stating the name and address of the applicant and authorized agents as well as the location of the project, and evidence showing the project’s real property interests. With an exemption application FERC requires the exhibits A, E, F and G: project description, environmental report, project drawings and project maps, described below. Versions of these exhibits had already been included in the ICD but now contain engineering stamps and updated information.

1. Exhibit A – Description of the small hydroelectric power project and its proposed mode of operation, containing the following information:
   1. Brief description of existing dam and impoundment and any other existing or proposed project works and appurtenant facilities (intake, diversion, powerhouse, transmission line, penstock, etc.) and their sizes, capacities and construction materials.
   2. Number of existing and proposed generating units.
   3. Type of each hydraulic turbine.
   4. Description of how the plant is to be operated: run-of-river or peaking.
   5. Graph showing flow duration curve and description of source or derivation of stream flow data.
   6. Estimations of energy generation, design head, design flow and impoundment size.
   7. Planned date of beginning and completing proposed construction.
   8. Description of planned repair/modification of dam associated with project development.
2. Exhibit E – Environmental Report about scope and impact of construction and operation, containing the following information:
   1. Description of the environmental setting of the project: vegetative cover, fish and wildlife resources, water quality and quantity, land and water uses, recreational uses, historical and archeological resources, and scenic and aesthetic resources. The report must list any endangered or threatened plant and animal species, any critical habitats, and any sites eligible for, or included on, the National Register of Historic Places.
   2. Description of expected environmental impacts from the proposed construction and operation of the project, including an explanation of the specific measures proposed by the applicant, the agencies consulted, and others to protect and enhance environmental resources and values and to mitigate adverse impacts of the project on such resources. The applicant is required under Exhibit E to show all efforts related to the consultation requirements [§4.38 (f)] including any disagreements with resource agencies, and:
      1. any resource agency’s or indian tribe’s letters containing comments, recommendations, and proposed terms and conditions;
      2. any letters from the public containing comments and recommendations;
      3. notice of any remaining disagreement with a resource agency or indian tribe on the need of additional study and information on any environmental protection, mitigation or enhancement measure, including the basis for the applicant’s disagreement;
      4. evidence of any waivers of compliance with consultation requirements;
      5. evidence of all attempts to consult with a resource agency or indian tribe, and the conclusion of the second stage of consultation;
      6. an explanation of how and why the project would, would not or should not comply with any relevant comprehensive plan and a description of any relevant stakeholders determination regarding the consistency of the project with any such comprehensive plan;
      7. a description of how the applicant’s proposal addresses the significant resource issues raised at the joint meeting;
      8. a list containing the name and address of every federal, state and interstate resource agency and indian tribe with which the applicant consulted
   3. Any additional information the applicant considers important.
3. Exhibit F – Drawings showing the structures and equipment of the facility conforming to FERC specifications, set in CFR Title 18 → Chapter I → Subchapter B → Part 4 → §§ 4.41 (g).
4. Exhibit G – Project Boundary Map conforming to FERC specifications, set in CFR Title 18 → Chapter I → Subchapter B → Part 4 → §§ 4.41 (h).

Filing the Application

Applications may be filed electronically via FERC’s eFiling website. Filing instructions can be found here. And although FERC strongly encourages eFiling of documents, documents may also be paper-filed: To paper-file, mail an original and 7 copies to:
          Kimberly D. Bose, Secretary
          Federal Energy Regulatory Commission
          888 First Street, NE
          Washington, DC 20426
For more information on preparing and filing the application visit the FERC website.

For the Annandale Project, we’ve document our permitting efforts in a series of blog posts, starting here.

^[1] Can be extended to in total 120 days if a resource agency or Indian tribe notifies the applicant and the Director of Energy Projects of its need for more time to provide written comments