State & Local Regulatory Process

Joe O’Brien Applegate, Student, Bard Center for Environmental Policy

In most cases, the federal government regulates micro hydropower through the Federal Energy Regulatory Commission. However, if certain circumstances are met, FERC will not have jurisdiction over the project. One important circumstance is that the micro hydropower system does not connect to the grid in any way. When a notice of non-jurisdiction happens, the state and local levels of government become involved in the project.

Local

If the project receives a decision of non-jurisdiction from FERC, then a project will have to consider local government. The first step for engagement with local regulation is to review the local zoning code. Codes vary from municipality to municipality, with some providing little regulation over development with regards to streams, rivers, and dams, while other municipalities are quite strict. In some cases, a special use permit or a zoning amendment may need to be acquired for a project to receive approval. This can have a significant impact on a project and should be determined early in the project.

Click here to expand the diagram. Image courtesy of Current Hydro.

The project itself may need to be approved by the town or local planning board. If there are special use permits or zoning amendments necessary, it is easiest to file those concurrently with the planning board application so that the same review process can be used for both.

Even if the project is found to be FERC jurisdictional, it is recommended to include local stakeholders in the process where appropriate.

Read more about the Saw Kill Project’s local permitting process.

State

The State agency with the greatest involvement with a micro hydropower project will be the Department of Environmental Conservation (DEC). The DEC will have one of two roles depending on whether FERC has jurisdiction over the project. If the project is subject to the FERC permit the DEC will have to provide a permit under Section 401 of the Clean Water Act. If FERC finds the project out of their jurisdiction, it will require DEC permitting under the Protection of Waters Program established by Article 15 of Environmental Conservation Law. In either case, the project will be held to the same standards of installation and operation by the DEC.

The first point of engagement with the DEC should be to schedule a pre-application meeting with your regional office. The more information you have about your project the more they will be able to help guide you through the regulatory process and acquire the necessary permits. More information on filing permits and scheduling a pre-application meeting can be found here.

Click here to expand the diagram. Image courtesy of Current Hydro.

The DEC Division of Fish, Wildlife and Marine Resources deals with the protection of aquatic habitat under the protection of waters, either through Article 15 State regulation or 401 oversight of a FERC exemption. The Instream Habitat Protection program deals specifically with water withdrawals and stream flow primarily to address the environmental impact of dams and hydroelectric facilities. An ecologically appropriate amount of water must be left in the stream bed after water has been diverted for use with micro hydropower as determined by the Instream Habitat Protection Unit.

Installing micro hydropower on an existing dam may also necessitate bringing your dam into compliance with the DEC Office of Dam Safety. These safety guidelines also require dams to be maintained accordingly as a new construction project.

Many sites with existing dams will also be historic sites. As historic sites, they will need approval from the NY Office of Parks, Recreation and Historic Preservation’s Division for Historic Preservation (DHP). The Saw Kill Project is located on Bard College’s campus, which is listed on the National Historic Registry. Read more about the Saw Kill Project’s state permitting process.

By timing and coordinating across the different permitting processes effectively, your project can move forward faster and thus reduce efforts and cost.