Saw Kill Project: State and Local Permitting – Part 2

Jan Borchert, Current Hydro

This post is about How we used the Joint Application Form to apply for 401 Water Quality Certification, a permit for Section 404 Clean Water Act and Coastal Consistency Concurrence for our federally regulated 12 kW micro-hydropower project on the Saw Kill.

It’s been a while since we’ve posted about the State process. And the reason for this is simple, our project falls under jurisdiction of the Federal Energy Regulatory Commission (FERC), which means most of the state and local regulations are superseded by federal rules and regulations. To learn how this process kept us busy, check out our blog post about The Licensing of Small/Low-Impact Hydropower Projects from mid last year.

But let’s get to the state permitting. So far, we’ve come across three topics that remain under state regulation as part of the federal permitting process. These are:

• consistency with the state’s Coastal Zone Management Act (CZMA) program;
• State certification of water quality, under Clean Water Act Section 401; and
• Permitting of discharge of dredged or fill material into waters of the United States, under the Clean Water Act Section 404.

While the above Acts are administered on the federal level by the Office of Ocean and Coastal Resource Management (OCRM), which is part of the National Oceanic and Atmospheric Administration (NOAA), and the Environmental Protection Agency (EPA), in New York State, the NYS Department of State (DOS), the regional office of the US Army Corps of Engineers (USACE) and the Department of Environmental Conservation (DEC) oversee the respective permitting and certification on a State level.

For cases like ours, New York State agencies developed a “Joint Application Form“, streamlining the application process for applicants as well as allowing for better coordination between the state agencies.

As part of our permitting efforts, we sent out the Joint Application Form to the DEC, the USACE and the DOS applying for 401 Water Quality Certification, a permit for Section 404 Clean Water Act and Coastal Consistency Concurrence. Beyond this form, each agency requires additional information like site pictures, environmental questionnaires or the identification of abutting neighbors. To be precise, our application package consisted of:

• Joint Application Form;
• Photographs, also of the aquatic worksite, including photo key map;
• UASCE Environmental Questionnaire;
• Excerpt from Exhibit F, FERC Application Volume 2, including construction plan and project area plan, not intended to be public;
• Drawings in accordance with USACE requirements, excerpts from FERC Application Volume 2, not intended to be public;
• Federal Consistency Assessment Form (FCAF), as submitted to the DOS on December 23, 2019, contained in Appendix B of Volume 1 of the FERC Application.

Not attached to the application, but considered part of the application:

• FERC Application Volume 1, accessible via: https://www.currenthydro.com/annandale-exemption- application/. The document contains a detailed project description, environmental impact report, site pictures and drawings. You can also access the FERC application documents via the FERC eLibrary, Docket P-15021.
• Location Map, included in the figures of the FERC Application Volume 1 – Appendix C;
• Impoundment Bathymetry data, included in the figures of the FERC Application Volume 1 – Appendix C;
• Project Boundary Map in Exhibit G of Volume 1 of the FERC Application;
• Project Plans and detailed project description, also included in FERC Application Volume 1 (see below) and FERC Application Volume 2;
• Further Photographs, included in the figures of the FERC Application Volume 1 – Appendix C;
• Discussion of anticipated impacts and proposed mitigation contained in Exhibit E of Volume 1 of the FERC Application;

So despite working with a very convenient Joint Application Form, addressing all three agencies at once, the application package ended up having over 40 pages. Assuming, the application package now contains everything the agencies need to grant us their permits and certifications, we’re now waiting to hear back. They received our documents on Friday February 20th, 2020 and we will keep you posted in Step 3 of our State and Local Permitting.

Note: Those of you who took a deep look into the DEC’s permitting requirements will notice that our application did not contain a filled out Environmental Assessment Form, despite that fact that the DEC clearly states that “an application is not complete until a properly completed environmental assessment form has been submitted”.

The reason for this is that the FERC conducts environmental impact assessments for all aspects of a federal license application (see 42 United States Code §4321). The Federal Power Act (FPA) also contains internal provisions for review of the environmental impacts of the project, which include assurances that the project will adequately protect, mitigate, and enhance fish, wildlife, and recreation (see 16 United States Code §§797[e], 803[a], 803[j]). The FPA has given FERC exclusive authority over hydropower projects, and limits a state’s control to the issuance of the section 401 water quality certificate to ensure the projects meet the applicable water quality standards (16 United States Code §791 et seq.).

Analogously, a Structural / Archaeological Assessment Form (SAAF) as well as the Dams and Impoundment Structures addendum are not included in this application, even though the rehabilitation of the dam is a vital step of proposed project.

More on this topic, can be found here, an Issues Ruling on SEQRA and Federal Preemption by the New York State Court of Appeals.