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Legal

Saw Kill Project: State and Local Permitting – Part 3

Jan Borchert, Current Hydro

This post is about How the State agencies responded to our Joint Application Form that we’ve submitted on February 20th, 2020 to apply for 401 Water Quality Certification, a permit for Section 404 Clean Water Act, and Coastal Consistency Concurrence (see State and Local Permitting – Step 2 for details).

These three topics remain under State jurisdiction despite the rest of our 12 kW micro-hydropower project on the Saw Kill being regulated by the Federal Energy Regulatory Commission (FERC, see The Licensing of Small/Low-Impact Hydropower Projects to learn more).

We used the State agencies’ joint application form to apply for all three permits simultaneously and these are the three very different responses we’ve received.

Coastal Consistency Concurrence – Department of State

We’re very happy after all the work we’ve put in to minimize the project’s local environmental impact, that the New York State Department of State (NYSDOS) informed us on April 16, 2020 that it has completed the consistency certification review regarding …

“consistency with the enforceable coastal policies of the New York Coastal Management Program and the Red Hook Local Waterfront Revitalization Program. Pursuant to 15 CFR Part 930.62, and based upon the project information submitted, the Department of State concurs with the Applicant’s consistency certification for this activity.”

As part of our federal permitting process, we’ve shared the State’s response via the FERC eLibrary system on April 21, 2020, where the notice is publicly available, if you’re interested.

Section 404 Clean Water Act – U.S. Army Corps of Engineers

The process with the U.S. Army Corps of Engineers (USACE) was a little less satisfying, as we did not receive a “go ahead”. Instead April 10th (45 days since application) came without a response from the Corps which means authorization by default.

Specifically, this is in accordance with the current nationwide general permit regulations (Federal Register dated January 6, 2017, pages 1860 to 2008): if the Corps of Engineers district does not respond to a pre-construction notification within 45 days of receipt, then the applicant may proceed with the project as proposed.

How does this apply to our 404 Clean Water Act joint application? Our 404 Clean Water Act application is for a hydropower project that falls under the Nationwide Permit program. These permits generally allow certain activities to move forward if they fall under specific size and impact thresholds. Many of these Nationwide Permits require pre-construction notifications, meaning the applicant has to describe the project to the Corps before commencing any work. This is what we did in conjunction with our joint application.

The authorization by default helps the Corps to handle the work load associated with the sheer number of pre-construction notifications they receive and gives the public some degree of certainty (regarding time line). This makes sense in the self-assessment spirit of the nationwide permit program. So even though we didn’t receive a “go ahead” letter, we now would be ready to proceed, if it wasn’t for the …

Section 401 Clean Water Act – NYS Department of Environmental Conservation

While we were very happy to share the NYSDOS’s response with you, and a little less excited about the USACE’s authorization by default, we also want to let you know that there is not much to report on about our process with the Department of Environmental Conservation (NYSDEC).

The reason is that the application review process requires that a Notice of Complete Application (NOCA) must be issued to allow for public comment on the project before the Water Quality Certification can be issued. The regulations require that the environmental review for a project be complete before the NOCA is issued. For FERC hydropower projects the NYSDEC waits for the FERC to issue an environmental impact statement for a project in order to consider the application complete. 

In other words: Our application is considered incomplete until FERC shares their environmental impact statement for our project with the NYSDEC. Based on that impact statement, the NYSDEC will issue a public notice and allow for public comment. Following the review of comments received the Water Quality Certification will move forward.

So I guess, we’ll have to keep you posted on this one.


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