RAPID/Hydropower/California

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Regulatory and Permitting Information Desktop Toolkit

California Hydropower Permitting Process (CA)

The steps of the California hydropower permitting process are summarized in the chart below. Roll over each section for a summary of the regulations and permits it covers. Click a section to learn more about the required permits and regulations related to that topic.

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Project Development Timeline

Hydropower Development in California

Hydroelectric power is a major source of California’s electricity supply. In 2014, California’s 287 hydroelectric facilities, with an installed capacity of 13,844 MW, produced nearly 16,470 GWh of electricity. Produced hydroelectric generation accounted for 8.33% of the state’s total system power in 2014. California Energy Commission, Energy Almanac; California Energy Commission, Hydroelectric Power in California.

Hydroelectric facilities in California include run-of-river, dam, and pumped storage facilities. Facilities smaller than 30 MW capacity are generally considered an eligible renewable energy resource and are referred to as “small hydropower.” California requires that small hydropower facilities be certified for the net megawatt-hours to count according to renewable energy portfolio standards. There are a few cases in which some hydropower facilities larger than 30 MW may also be eligible under specific criteria. California considers all other hydropower facilities large hydropower. California Energy Commission, Hydroelectric Power in California.

Public and private utilities, electric co-ops, companies, and individuals own hydroelectric generation facilities distributed throughout the state. The Bureau of Reclamation and the California Department of Water Resources operate some of California’s larger hydropower facilities. Most of the hydroelectric generation facilities are located in the eastern mountain ranges and have a total dependable capacity of 21,000 MW. California Energy Commission, Hydroelectric Power in California.

In 2014, the Department of Energy (DOE) estimated nearly 7,000 MW of new resource potential at undeveloped sites and 195 MW of hydroelectric potential at non-powered dams in California. Department of Energy, New Stream-reach Development: A Comprehensive Assessment of Hydropower Energy Potential in the United States. The DOE also identified 15 non-powered dams (5 MW or less) with small-hydroelectric resource potential in California. Department of Energy, New Stream-reach Development: A Comprehensive Assessment of Hydropower Energy Potential in the United States. California state agencies play a role in a number of federal permitting and review processes for hydropower development. For instance, the California State Water Resources Control Board (SWRCB) and regional water quality control boards regulate water quality and issue Section 401 Water Quality Certifications (33 U.S.C. § 1251 et seq.) and permits for stormwater discharges (33 U.S.C. § 1342) pursuant to the Clean Water Act. In addition, Sections 10(j) and 30(c) of the Federal Power Act require FERC to consult with state agencies responsible for the oversight and protection of fish, wildlife, and botanical resources. 16 USC 803(j); 16 USC 823a(c). In California, the California Department of Fish & Wildlife (CDFW) oversees the protection of fish, wildlife, and botanical resources. Based upon review of the hydropower project and analysis of any study results, the CDFW develops Section 10(j) recommendations for FERC-licensed projects. 16 USC 803(j). The FPA also authorizes CDFW to issue mandatory terms and conditions for hydropower projects that are exempt from FERC licensing under Section 30(c). 16 USC 823a(c).

California agencies and local commissions work together to regulate state and coastal land, state highway access, water access and water rights, and lake beds. California municipalities and regional planning commissions regulate development through land use plans in accordance with statewide goals and policies. California Government Code § 65030.1. The California Coastal Commission works with local coastal authorities to implement the California Coastal Act regulating coastal zone development. Cal. Pub. Res. Code § 30330. The California Department of Transportation (CalTrans) works with cities and counties to regulate State Highway Right-of-Way encroachments. Cal. Sts. & High. Code § 676. The California State Lands Commission requires developers to obtain a right-of-way lease if any portion of the project—such as roads, powerlines, or pipelines—will cross over or occupy certain state land. Cal. Pub. Res. Code § 6224.3.

California has a hybrid surface water law system, containing elements of both riparian and prior appropriation water rights. In times of shortages, riparian rights are superior to appropriative rights, and later appropriators are subordinate to prior appropriators. The SWRCB regulates the appropriation of surface water and subterranean streams (23 CCR § 655), while CDFW protects stream and lakebeds pursuant to California Fish and Game Code Section 1602. The SWRCB also regulates groundwater pursuant to the Sustainable Management Act of 2014.

The California Environmental Quality Act (CEQA) governs the protection of environmental and natural resources. Unless exempted, CEQA applies to all “discretionary projects” proposed to be conducted or approved by a California public agency, including private projects requiring discretionary government approval. CPRC § 21080(a). For most hydropower projects, the application to the SWRCB for a Section 401 Water Quality Certification triggers CEQA review. The 2013 Memorandum of Understanding (MOU) established principles governing FERC and SWRCB coordination of hydropower pre-application activities. The MOU also established that SWRCB would be California’s lead agency to coordinate the environmental review for most hydropower projects. The CEQA environmental review process also requires consultation with California Native American tribes. Memorandum of Understanding 2013; 2015 Update for the CEQA Deskbook, at p. 6; Cal. Pub. Res. Code § 21080.3.1(d). California requires energy transmission projects to obtain either a Certificate of Public Convenience and Necessity or a Permit to Construct Powerlines from the California Public Utilities Commission for hydropower transmission extension projects. General Order No. 131-D. Unless exempted, transmission projects designed to operate between a voltage of 50 kW and 200 kW require a Permit to Construct Powerlines. For transmission lines with a voltage of 200 kV or more, a Certificate of Public Convenience and Necessity is required. General Order No. 131-D.

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Developing Qualifying Conduit Hydropower Facilities in California

A qualifying conduit hydropower facility does not require a license or exemption from the Federal Energy Regulatory Commission (FERC). To qualify as a qualifying conduit hydropower facility, the project must meet the following provisions:

  1. A conduit is any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption, and is not primarily for the generation of electricity;
  2. The facility generates electric power using only the hydroelectric potential of a non-federally owned conduit;
  3. The facility has an installed capacity that does not exceed 5 MW; and
  4. The facility was not licensed or exempted from licensing by FERC on or before August 9, 2013.

The developer may still need to obtain state, or local permits or authorizations in order to develop a qualifying conduit hydropower project in California. It is possible that the developer could meet federal regulatory requirements for a qualifying conduit hydropower project within as little as (60) sixty days.

FEDERAL AUTHORIZATIONS

Federal Notice of Intent to Construct a Qualifying Conduit Hydropower Facility

To initiate the process for a qualifying conduit hydropower facility, the developer must first file a Notice of Intent to Construct a Qualifying Conduit Hydropower Facility with FERC. For more information on FERC’s process for authorizing a Qualifying Conduit Hydropower Facility, see:

FERC Qualifying Conduit Hydropower Facility Authorization:
7-FD-f


Federal Right-of-Way

The developer may need to obtain a right-of-way or special use authorization from the appropriate federal land management agency to develop or access utility lines over federal lands.

Land Access:
3 (3)

Federal Environmental Review

A qualifying conduit hydropower facility is categorically exempt from preparing an environmental document under the federal National Environmental Policy Act and, therefore, is not subject to environmental review by FERC. Since qualifying conduit hydropower facilities are not subject to the FERC licensing or exemption process, qualifying projects are not subject to conditions and recommendations issued by the U.S. Fish and Wildlife Service or NOAA Fisheries under the Federal Power Act (FPA).

Federal Qualifying Facility Certification

The developer may apply for Certification as a Qualifying Facility under the Public Utility Regulatory Policies Act of 1978 (PURPA), which may enable the developer to sell energy to public utilities at the “avoided cost” rate.

PURPA Qualifying Facility Certification:
7-FD-c

STATE AUTHORIZATIONS

State Land Use Plan

The developer should evaluate preliminary site considerations and state land use restrictions for the project location early on in the planning process.

Land Use Planning:
1-CA-a

State Right-of-Way

The developer may need to obtain a right-of-way from the appropriate state agency in order to develop or access the qualifying conduit hydropower facility or utility lines across state lands. The developer may also need to obtain a property right from an individual land owner if the project or associated utility lines are located on privately-owned land.

State Land Right-of-Way:
3-CA-b

State Water Rights and Authorizations

The developer may need to apply to the California State Water Resources Control Board for a non-consumptive water use right. A developer does not need to obtain a Section 401 Water Quality Certification for a qualifying conduit hydropower project.

Water Access and Water Rights:
19-CA-a

State Environmental Review

The California Environmental Quality Act includes a “small hydroelectric categorical exemption” for projects at existing canals and pipelines that have generating capacities of 5 MW or less and do not affect instream flows or special-status species.

State Renewable Portfolio Standard Certification

A small hydropower project with a generating capacity of less than 40 MW may need a Renewable Portfolio Standard Certification from the California Energy Commission confirming that the hydropower project constitutes an eligible resource of renewable energy.

Renewable Portfolio Standard Certification Process:
7-CA-g

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Federal Regulations and Permits for Hydropower Development

The federal government, through the Bureau of Reclamation and the U.S. Army Corps of Engineers (USACE), operates 133 hydroelectric power plants—representing 8% of the country’s hydroelectric facilities. The private sector, public utilities, and state or local government operate the other 92% of U.S. hydroelectric facilities.

The Federal Energy Regulatory Commission regulates most non-federal hydropower projects. FERC has the authority to issue licenses to construct, operate, and maintain non-federal hydropower projects, pursuant to the Federal Power Act (16 U.S.C. 791 et seq.). Although developers of hydropower facilities located on non-federally owned conduits with installed capacities up to 5 MW are not required to be licensed or exempted by FERC, they must obtain an authorization from FERC to construct a Qualifying Conduit Facility. Small conduit hydroelectric facilities up to 40 MW (16 USC § 823a(b)) and small hydroelectric projects of 10 MW or less (16 USC § 2705) are eligible for an exemption from the FERC licensing process.

All developers may apply for a FERC license using the default Integrated Licensing Process (ILP) and under appropriate circumstances may apply for and receive authorization from FERC to use the Traditional Licensing Process (TLP) or the Alternative Licensing Process (ALP). The three licensing processes differ mainly in how they coordinate the applicant’s (developer’s) pre-filing activities (i.e., before filing the license application), especially the study plan development, National Environmental Policy Act (NEPA) review, and other federal and state agency processes. The goal of each licensing process is to develop a complete record of information to support FERC’s licensing decision, which must take into account protection, mitigation, and enhancement of cultural, fish, and wildlife resources.

The Federal Power Act (FPA) specifies extensive federal and state agency participation in the licensing process. When making a licensing decision, FERC considers the outcome of the consultation process mandated by Section 7 of the Endangered Species Act and project reviews required under Section 106 of the National Historic Preservation Act and the National Environmental Policy Act. The FPA requires license applications to contain a 401 Water Quality Certification. 18 CFR §4.34(b)(5). FERC also considers a number of other environmental, cultural, biological, water quality, land, geological, recreational, and aesthetic impacts of a hydropower project in making a licensing decision.

Federal agencies or Indian tribes have mandatory or optional authority to issue conditions and/or recommendations for the FERC license regarding developmental and non-developmental values and comprehensive plans to protect and mitigate damages to fish and wildlife resources:

  • Section 4(e) of the FPA authorizes federal land managers to impose mandatory conditions on a FERC license for hydropower projects located on federal reservations.
  • Section 10(a) of the FPA requires FERC to consider a project’s consistency with the federal and state comprehensive plans for improving, developing, or conserving a waterway. Whereas 4(e) conditions are mandatory, license conditions submitted under 10(a) are not mandatory, but recommendations.
  • Section 18 of the FPA authorizes the U.S. Fish and Wildlife Service and NOAA Fisheries to prescribe fishway passage requirements.
  • Sections 10(j) and 30(c) of the FPA require FERC to consult with state agencies, the U.S. Fish and Wildlife Service, and the National Oceanic Atmospheric Administration (NOAA Fisheries) who are responsible for the oversight and protection of fish, wildlife, and botanical resources. Based upon their review of the hydropower project and analysis of any study results, the agencies develop Section 10(j) recommendations for FERC-licensed projects. 16 USC 803(j). The FPA also authorizes the state and federal fish and wildlife agencies to issue mandatory terms and conditions for hydropower projects that are exempt from FERC licensing under Section 30(c). 16 USC 823a(c).

Role of other Federal Agencies

The U.S. Army Corps of Engineers (USACE), the Bureau of Reclamation (BOR), the Department of Defense (DOD), and federal land management agencies may require additional review and licensing processes for hydropower development. Under Section 404 of the Clean Water Act, USACE must authorize any discharge of dredge or fill material into waters of the U.S., including wetlands. Any proposed project that will affect navigable waters of the United States must obtain authorization from USACE under Section 10 of the Rivers and Harbors Act (33 USC 403). In addition, any proposed project that will alter or utilize a USACE structure must obtain authorization from USACE under Section 14 of the Rivers and Harbors Act (33 USC 408). All non-federal hydropower projects sited on BOR conduits and BOR dams authorized for federal power development, and not requiring a FERC license, require a BOR Lease of Power Privilege. 1992 Memorandum of Understanding between the Federal Energy Regulatory Commission and the Department of Interior, Bureau of Reclamation; (Section 9(c) of the Reclamation Project Act of 1939 (RPA, Section 9(c)) as amended by the Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act of 2013). All other sites (i.e., BOR dams not authorized for federal power development) require a FERC License/Exemption. In addition, before developing a hydropower project on federal land or a project that utilizes a federal resource, a right-of-way or use authorization may be required. Depending on location of the project, the relevant land management agency may be the BOR, the United States Forest Service, the DOD, the Bureau of Land Management or the National Park Service.


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