Implementation of New Hydropower Legislation

Transcription

1 Implementation of New Hydropower Legislation Chuck Sensiba NWHA Fall Workshop Portland, Oregon October 17, 2013

2 Implication of Gov t Shutdown FERC is still open and has temporary reserves to stay open for now What happen when FERC closes: All 5 Commissioners, 48 employees, and 19 contractors Hydroelectric and LNG inspections will continue Monitoring of electric reliability and markets will continue Court required legal matters will continue FERC s internal infrastructure maintenance will continue Will not accept filings; no processing of applications, requests, extensions of time, etc. Other federal agencies are largely unavailable for consultation 2 Implementation of New Hydropower Legislation

3 Hydropower Regulatory Efficiency Act of 2013 Authorizes FERC to extend preliminary permit terms by two years Excludes qualified hydropower conduit facilities from licensing jurisdiction Increases the capacity limit from 15 MW to 40 MW of conduit exemptions Increases the capacity limit from 5 MW to 10 MW for small hydropower exemptions Requires FERC to investigate establishing a two-year licensing process for non-powered dams and closed-loop pumped storage 3 Implementation of New Hydropower Legislation

4 Preliminary Permit Extensions HREA authorizes FERC to extend permits by two years (total of five years) Standard for extension (additional two years) is good faith and with reasonable diligence No notice or opportunity for competing application, comment, or intervention Issued very quickly Must be filed not less than 30 days prior to the termination of the permit. 18 C.F.R Implementation of New Hydropower Legislation

5 Preliminary Permit Extensions Cont d FERC standard for subsequent permit good faith and due diligence Filed after expiration of existing permit Notice and opportunity for intervention and competing applications Appears as though FERC has applied same standard for extensions as its long-standing standard for subsequent permits: Case 1: In denying an extension, FERC found that the information in progress reports was similar and doubts over economic viability of project. Case 2: In granting an extension, FERC noted that the permittee had conducted economic and financial analysis and filed its NOI, PAD, and request to use the TLP. 5 Implementation of New Hydropower Legislation

6 Preliminary Permit Extensions Cont d Should a developer seek an extension or a subsequent preliminary permit? Will there be competition for a site at time of subsequent permit application? What stage is the permittee in development of the project; how many additional years are necessary to develop license application? Will FERC continue to grant subsequent permits? Does the identity of the developer, muni vs. non-muni, matter? Does getting an extension impact ability to get subsequent permit? 6 Implementation of New Hydropower Legislation

7 Qualified Hydropower Conduit Facilities FERC Process: Developer files Notice of Intent FERC has 15 days to make an initial determination whether facilities qualify If yes, FERC publishes NOI If no, FERC has rejected at least one NOI so far for lack of information After NOI is issued if no one contests after 45 days, facility qualifies one facility so far If someone contests within 45 days, FERC must issue a determination 7 Implementation of New Hydropower Legislation

8 Qualified Hydropower Conduit Facilities Qualifying criteria: Must use only the hydroelectric potential of a non-federally owned conduit Conduit must be operated for the distribution of water for agriculture, municipal, or industrial consumption and not primarily for the generation of electricity Installed capacity does not exceed 5 MW Facility is not licensed or exempted by FERC at time the law was enacted 8 Implementation of New Hydropower Legislation

9 Expands Existing Exemption Program Non-muni conduits increased from 15 to 40 MW Old standard: no exemption for facilities on federal lands New standard: no exemption for federally owned conduit Small hydropower exemption increased from 5 to 10 MW 9 Implementation of New Hydropower Legislation

10 2-Year Pilot Program FERC required to investigate a 2-year licensing process, including pre-filing, for closed-loop pumped-storage and development at existing dams Public meeting October 22, 2013 Public comments due November 21, 2013 FERC intends to cover: Feasibility of 2-year process Modifications to pre- and post-filing requirements FERC-State MOUs? Apply process to exemptions? Identify factors to identify pilot projects 10 Implementation of New Hydropower Legislation

11 Small Conduit Hydropower Development and Rural Jobs Act Arguably intends to give Reclamation exclusive jurisdiction to authorize small conduit hydropower projects (5 MW or less) on Reclamation facilities Unclear whether existing MOU between FERC and Reclamation covers new legislation; In practice, it appears that clarification between FERC and Reclamation is necessary For small conduit hydropower projects under Reclamation jurisdiction: Priority for leases of power privilege to the irrigation district or association operating the conduit, or to the district or association receiving water from the conduit Categorically exempts hydropower development on Reclamation facilities from NEPA review Reclamation s Power Resources Office is the lead office 11 Implementation of New Hydropower Legislation

12 Hydro 2.0 Possible Opportunities for Additional Federal Legislative Reform Licensing process? Mandatory conditioning authority? EPAct 2005? Additional reforms to encourage new project development? 12 Implementation of New Hydropower Legislation

13 For more information Chuck Sensiba NWHA Fall Workshop Portland, Oregon October 17, 2013