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Regulatory and Permitting Information Desktop Toolkit

Compare Hydropower Permitting and Regulations Across States

Compare aspects of the permitting process among states.

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Hydropower Facility, Licensing & Certification Comparison

The hydropower facility's location, size, type of customer the facility sells energy to, and whether the facility sells energy in "interstate commerce" will determine what state and federal permits the facility requires. A hydropower project may require state public utility commission approval. In general, if a facility sells its power to the public, the facility is considered a state "public utility" for the purposes of regulation by the state public utility regulatory body. This typically requires the regulatory body to issue a certificate for its construction, operation, or sell of electricity.


Some states may also require a certification for renewable portfolio standard (RPS) eligibility. These certified facilities must comply with state specific procurement and accounting requirements, and may count their generation towards the facility’s RPS goal or mandate. The state then may use the electric generation from these certified facilities to count towards the state’s RPS mandate or goal. Most states utilize renewable energy certificate (REC) tracking systems to account for renewable energy generation used towards the state’s RPS. Most states’ recognize hydropower, in some form, as a RPS eligible technology.

Small-low-impact projects may qualify for state run enhanced permitting assistance programs. Each state has its own unique small-low-impact hydropower program however most states have a pre-screening process to determine if the project meets the programs low-impact criteria, a coordinated resource agency review practice, and a single point of contract for applicants (developers). Most states also institute shorter comment periods for certain permits, conduct multi-agency site visits, and may submit a letter to FERC indicating that state agency requirements are satisfied or submit a FERC exemption application on the developer’s behalf, expediting the permitting timeline. Each state defines small hydropower differently, but all states require projects to meet specific cultural and natural resource criteria including minimum flows, water quality, fish passage, watershed protection, threatened and endangered species, recreation, and cultural resource protection. FERC Small/Low Impact Hydropower Program Website; Oregon Department of Energy Small, Low-Impact Hydropower Website; Colorado Energy Office: Colorado Small Hydropower Handbook; Small Hydropower Assistance Program.

More Information

Topic to Compare

Certificate of Public Good/Certificate of Public Convenience & Necessity
Certificate Regulatory Agency
Certificate Threshold
Public Utility/Electric Plant Definition for Certificate
Certificate Exemptions
Small Hydropower Program
Small Hydropower Program Regulatory Agency
Small Hydropower Definition
Renewable Portfolio Standard Process (RPS)
RPS Eligible Hydropower
RPS Regulatory Agency / Tracking System
AlabamaX
AlaskaX
A public utility may need to obtain a Certificate of Public Convenience and Necessity (CPCN) from the Regulatory Commission of Alaska before commencing with utility operations and receiving compensation for providing services to customers. The Federal Energy Regulatory Commission has jurisdiction over most hydroelectric projects, including primary transmission lines required for the project. However, a developer may need to obtain a CPCN from the Commission for transmission line extension projects.
Any public utilty before commencing with utility operations or receiving compensation for providing services to customers must obtain a CPCN.
A "public utility" or "utility" includes every corporation whether public, cooperative, or otherwise, company, individual, or association of individuals, their lessees, trustees, or receivers appointed by the court, that owns, operates, manages, or controls any plant, pipeline, or system for furnishing, by generation, transmission, or distribution, electrical service to the public for compensation.
A plant or facility that generates electricity entirely from renewable energy resources (i.e., wind, solar, geothermal, wasteheat recovery, hydrothermal, wave, tidal, river in-stream, or hydropower) is exempt from regulation if:
  • The plant or facility is first placed into commercial operation on or after the effective date of this subsection and before January 1, 2016 and does not generate more than 65 megawatts of electricity;
  • The electricity generated by the plant or facility is sold only to one or more electric utilities that are regulated by the Commission; and
  • The person that constructs, owns, acquires, or operates the plant or facility has not received from the state: (i) a grant that was used to generate the electricity from the renewable energy resources; or (ii) a tax credit related to the generation of electricity from the renewable energy resources.


The Commission may also exempt a utility, a class of utilities, or a utility service if the Commission determines that an exemption is in the public interest.
Alaska does not have a mandatory or a voluntary renewable portfolio standard.
ArizonaX
ArkansasX
CaliforniaX
California requires all electric utilities procure 50% of their retail sales from eligible renewable energy resources by 2030. The California Energy Commission is also required to certify certain electric generation facilities as eligible renewable resources for RPS purposes.
California defines renewable resources to include "small hydroelectric generation of 30 megawatts or less, ...ocean wave,... or tidal current, and any additions or enhancements to the facility using that technology." "A small hydroelectric generation facility is not an eligible renewable electrical generation facility if it will cause an adverse impact on instream beneficial uses or cause a change in the volume or timing of streamflow."
Western Renewable Energy Generation Information System; California Energy Commission
ColoradoX
“Public utilities” need a Certificate of Public Convenience and Necessity (CPCN), from the Colorado Public Utilities Commission, in order to construct or operate a facility or an extension of a facility. The Federal Energy Regulatory Commission has jurisdiction over most hydroelectric projects, including primary transmission lines required for the project. However, a developer may need to obtain a CPCN from the Commission for transmission line extension projects, interconnected group net-metered hydroelectric power systems, and conduit projects less than five megawatts.
Any public utilty before constructing or operating a transmission line extension project, interconnected group net-metered hydroelectric power systems, and conduit projects less than five megawatts may need to obtain a CPCN.
A public utility'...includes every...electrical corporation...operating for the purpose of supplying the public for domestic, mechanical, or public uses and every corporation, or person declared by law to be affected with a public interest, and each of the preceding is hereby declared to be a public utility and to be subject to the jurisdiction, control, and regulation of the commission..." In addition "[e]very cooperative electric association, or nonprofit electric corporation or association, and every other supplier of electric energy, whether supplying electric energy for the use of the public or for the use of its own members, is hereby declared to be affected with a public interest and to be a public utility and to be subject to the jurisdiction, control, and regulation of the commission and to the provisions of articles 1 to 7 of this title."
The utility does not need to apply to the Colorado Public Utilities Commission for approval of construction and operation of a facility or an extension of a facility, which is in the ordinary course of business. 4 CCR 723-3-3205(b). The ordinary course of business includes:
  • Facilities generating less than 10MW, and
  • A generating plant remodel, or installation of any equipment, or building space required for pollution control systems.
Small, low-impact hydroelectric projects may qualify for the Streamlined Small, Low Impact Hydropower Permitting Program (Program). The Program reduces the time it may take to undergo the state environmental review process, which in turn, may lead to quicker FERC processing of a license or exemption application.
Colorado Energy Office
To qualify as a “low-impact” project the project must meet the following criteria:
  • Utilize existing infrastructure;
  • No significant changes to current operation of infrastructure;
  • No new stream diversions (this also means the developer cannot draw a larger quantity of water, or more often from existing diversions);
  • Minimal or easily mitigated effects on water quality, fish passage, threatened or endangered species, and cultural or recreational resource;

And meet all requirements for a FERC Conduit Exemption or 10MW Exemption:

Conduit Exemption

  • Built on a conduit or other water infrastructure primarily for non-power purposes;
  • Issued in perpetuity;
  • 15 MW or less for non-municipal projects and 40 MW or less for municipal projects;
  • Power facility located entirely on non-federal lands;
  • Subject to mandatory fish and wildlife conditions (section 30(c) conditions);
  • Categorically exempt from National Environmental Protection Agency (NEPA) analysis, although Environmental Assessment needed in some circumstances; and
  • Boundary is only around power facility.

10 MW Exemption

  • Built at an existing dam or uses a natural water feature;
  • Issued in perpetuity;
  • 5 MW or less;
  • If the project exists, must add capacity;
  • Subject to mandatory fish and wildlife conditions (section 30(c) conditions);
  • Require National Environmental Protection Agency (NEPA) analysis
  • Project boundary is same as a licensed project (include dam and reservoir); and
  • The applicant (developer) must possess all real property rights at the time of the filing unless on federal land.
Colorado requires all investor-owned utilities procure 30% of their retail sales from eligible renewable energy resources by 2020.
New hydroelectricity with a nameplate capaicty of 10 MW or less and hydroelectricity in existing on January 1, 2005 with a nameplate rating of 30 MW or less. Note: Pumped storage hydro is excluded.
All renewable energy resources located in the region covered by the Western Electricity Coordinating Council (WECC) that generate RECs used for RPS compliance must register with the Western Renewable Energy Generation Information System (WREGIS) and record their RECs in WREGIS after August 11, 2010, with the exception of retail renewable distributed generation facilities less than 1 MW.
ConnecticutX
DelawareX
FederalX
FloridaX
GeorgiaX
HawaiiX
IdahoX
IllinoisX
IndianaX
IowaX
KansasX
KentuckyX
LouisianaX
MaineX
MarylandX
MassachusettsX
MichiganX
MinnesotaX
MississippiX
MissouriX
MontanaX
NebraskaX
NevadaX
New HampshireX
New JerseyX
New MexicoX
New YorkX
Electric corporations must obtain a Certificate of Public Convenience and Necessity from the New York Public Service Commission before beginning construction of an electric plant.
Electric corporations before beginning constructiion of an electric plant.
A “electric corporation includes every corporation, company, joint-stock association, partnership and person...who owns, operates, or manages a electric plant for generation for public use.”
New York requires all investor-owned utilities procure 50% of their retail sales from eligible renewable energy resources by 2030.
Hydroelectric upgrades with no new storage impoundments, with eligibility limited to the incremental production associated with the upgrade; new low-impact run-of-river hydroelectric facilities limited to 30 MW or less, with no new storage impoundment; and existing very small hydroelectric facilities within certain conditions (10MWs or less, in-state facilities, with expiring above-market energy contracts). In-State run-of-river hydroelectric facilities of 5MWs or less in commercial operation at any time prior to January 1, 2003 that demonstrate need to receive RPS financial support to operate.
New York Generation Attribute Tracking System
North CarolinaX
North DakotaX
OhioX
OklahomaX
OregonX
PennsylvaniaX
Rhode IslandX
South CarolinaX
South DakotaX
TennesseeX
TexasX
UtahX
VermontX
A developer may need to obtain a Certificate of Public Good (CPG) from the Vermont Public Service Board for a transmission line extension project, or an interconnected group net-metered hydroelectric power system. The Board will review the proposed project on a site-specific basis analyzing the environmental, economic and social impacts of the proposed project before issuing a CPG.
A developer before beginning construction of transmission line extension projects, outside of FERC's jurisdiction, interconnected group net-metered hydroelectric power systems, and project's that sell retail electricity within Vermont may need to obtain a CPG.
Vermont’s Small Hydropower Assistance Program is an optional program that provides enhanced assistance from the Vermont Agency of Natural Resources, the Vermont Public Service Department and the Vermont State Historic Preservation Office of the Vermont Agency of Commerce and Community Development, for small, low-impact projects. The Program is designed to provide an expedited review process for small-low-impact hydroelectric projects in accordance with the Small Hydropower Assistance Program.
Vermont Department of Public Service
Proposals for new hydroelectric projects, in Vermont, that meet the Small Hydropower Screening Criteria for limited resource impacts may be eligible for the Vermont Small Hydropower Assistance Program.

A developer must demonstrate that the project meets all of the following criteria to qualify for a multi-agency site visit:

  1. The project will not be located on Class A waters, Outstanding Resource Waters, or federal or state protected river reaches. A list of Class A and Outstanding Resource Waters is available on the Vermont Agency of Natural Resources Natural Resources Atlas;
  2. The project will be located at an existing dam, or the project will not require a dam or other impoundment;
  3. The project will be located on lands controlled by the applicant (developer) or will otherwise demonstrate support from adjoining landowners;
  4. The project will not increase the impoundment elevation;
  5. The project will be operated as a true run-of river project. “A true run-of-river project is one which does not operate out of storage and, therefore, does not artificially regulate streamflows below the project’s trailrace. Outflow from the project is equal to inflow to the project’s impoundment on an instantaneous basis.” Vermont Small Hydropower Assistance Program Screening Criteria Summary and Application Instructions;
  6. The project will have proposed bypass flows that will meet hydrologic standards as defined by the Vermont Agency of Natural Resources Procedure for Determining Acceptable Minimum Stream Flows and Questions and Answers on the New England Flow Policy. OR
  1. Where the project creates virtually no bypass (tailrace discharges at the dam or into plunge pool close to the dam such that adequate circulation is maintained) and will have a spillage proposal of at least 7Q10 drought flow. “7Q10 refers to the lowest average streamflow expected to occur for seven consecutive days with an average frequency of once in ten years. If the stream is a gaged stream, ANR can supply this statistic. If not, use 0.1 csm, the statewide value.”
Vermont requires all utilities procure 75% of their retail sales from eligible renewable energy resources by 2032.
Hydroelectric facilities with a generating capacity of 200 MW or less.
New England GIS
VirginiaX
WashingtonX
Washington requires all utilities procure 15% of their retail sales from eligible renewable energy resources by 2020.
Hydroelectric generation projects are eligible for compliance under RPS if incremental electricity produced as a result of efficiency improvements completed after March 31, 1999, are made to:

i) Hydroelectric projects owned by a utility subject to this standard and located in the Pacific Northwest; or to

ii) Hydroelectric generation in irrigation pipes and canals located in the Pacific Northwest, where the additional generation in either case does not result in new water diversions or impoundments.
Western Renewable Energy Generation Information System (WREGIS)
West VirginiaX
WisconsinX
WyomingX

Hydropower Transmission Comparison

The siting of a hydroelectric facility requires the developer to consider issues related to associated transmission lines and interconnection of the facility to the electric grid.


Pursuant to the Federal Power Act, the Federal Energy Regulatory Commission (FERC) has jurisdiction over interconnection of wholesale generators that need to connect their generation facilities to a transmission system. FERC has authority over “public utilities,” which under 16 USC 824a(e) includes any person who owns or operates facilities subject to jurisdiction of FERC.

Depending on the requirements of the particular state, the developer may need to obtain a Certificate of Public Good (CPG), a Certificate of Public Convenience and Necessity (CPCN), or other approval from a state utility regulatory authority such as a public utilities commission for transmission line extension projects outside of the FERC license boundary. In some cases, the CPCN process for interconnection may be combined with the CPCN process for the generation facility. Whether the transmission facility will require a CPCN differs by state, possible requirements include:

  • Whether the transmission facility is within the a specific kilovolt (kV) threshold requiring regulation; or
  • Whether the developer is regulated by the state utility regulatory authority (e.g., the developer falls under the definition of a “public utility” within the relevant state statute).
More Information

Topic to Compare

Certificate of Public Good/Certificate of Public Convenience & Necessity
Certificate Regulatory Agency
Certificate Threshold
Public Utility/Electric Transmission Facility Definition
Transmission Interconnection Request Process
Interconnection Request Regulatory Agency
Interconnection Request Threshold
AlabamaX
AlaskaX
The Federal Energy Regulatory Commission (FERC) has jurisdiction over the primary transmission lines for most hydroelectric projects. However, a developer may need to obtain a Certificate of Public Convenience and Necessity from the Regulatory Commission of Alaska for transmission line extension projects located outside of a FERC license boundary.
Regulatory Commission of Alaska
A public utility or developer before construction or opeation of a transmission line extension project located outside of a FERC license boundary.
A "public utility" or "utility" includes every corporation whether public, cooperative, or otherwise, company, individual, or association of individuals, their lessees, trustees, or receivers appointed by the court, that owns, operates, manages, or controls any plant, pipeline, or system for furnishing, by generation, transmission, or distribution, electrical service to the public for compensation.
ArizonaX
ArkansasX
CaliforniaX
"Public utilities" include an "electric corporation...where the service is performed for, or commodity is delivered to, the public or any portion thereof." An "electric corporation" includes "every corporation or person owning, controlling, operating, or managing any electric plant for compensation.."
An interconnection customer who wants to connect a generating facility to the California ISO grid must apply and meet the requirements set out by the California Independent System Operator.
All generating facilities seeking interconnection with the Distribution Providers Transmission System must apply with CAISO for interconnection and are subject to the CAISO tariff. Those generating facilities, subject to Federal Energy Regulatory Commission (FERC) jurisdiction must apply under a Distribution Provider’s Wholesale Distribution Tariff (WDT) regardless of whether they interconnect to a Distribution Provider’s Distribution or Transmission System.
ColoradoX
The Colorado Public Utilities Commission requires developers, which fall under the definition of “public utility” and “cooperative electrical associations” which choose not to be regulated as public utilities, to apply for a Certificate of Public Convenience and Necessity for new construction and extension of transmission facilities in the state.
Colorado Public Utilities Commission
Public utilities before construction and extension of transmission facilities in the state.
A “public utility” includes “every common carrier, pipeline corporation…electrical corporation,… person, or municipality operating for the purpose of supplying the public for domestic, mechanical, or public uses and every corporation, or person declared by law to be affected with a public interest” providing electric, steam, or associated services in the state of Colorado. “Electrical utilities” is defined, in part, as “…every…electrical corporation, person, or municipality operating for the purpose of supplying the public for domestic, mechanical or public uses.”
Both the state and local governments are involved in the transmission permitting process. A developer may need to comply with state and local permitting requirements.
Local governments
Local governments may regulate areas and activities of state interest. The statute defines “major facilities of a public utility” , in part, as “transmission lines, power plants and substations of electrical utilities.”
ConnecticutX
DelawareX
FederalX
FloridaX
GeorgiaX
HawaiiX
IdahoX
IllinoisX
IndianaX
IowaX
KansasX
KentuckyX
LouisianaX
MaineX
MarylandX
MassachusettsX
MichiganX
MinnesotaX
MississippiX
MissouriX
MontanaX
NebraskaX
NevadaX
New HampshireX
New JerseyX
New MexicoX
New YorkX
A hydropower developer may need to obtain a Certificate of Environmental Compatibility and Public Need from the New York State Public Service Commission for the construction and operation of transmission lines outside of a Federal Energy Regulatory Commission license boundary or for transmission lines associated with a qualifying conduit hydropower facility with a nameplate capacity of 5MW or less.
New York State Public Service Commission
A hydropower developer must file an Interconnection Request with the New York Independent System Operator (NYISO) in order to connect a new generating facility, or merchant transmission facility to the New York State (NYS) Transmission System. A developer may also need to file an Interconnection Request with NYISO for material modifications to an existing large facility or modifications to an existing Interconnection Request.
A “major utility transmission facility is:
  • An electric transmission line of a design capacity of one hundred twenty-five (125) kilovolts; or more extending a distance of one (1) mile or more, or;
  • A electric transmission line of one hundred (100) kilovolts or more and less than one hundred twenty-five (125) kilovolts or more, extending a distance of ten (10) miles or more, including associated equipment.”
A hydropower developer must file an Interconnection Request with the New York Independent System Operator (NYISO) in order to connect a new generating facility, or merchant transmission facility to the New York State (NYS) Transmission System. A developer may also need to file an Interconnection Request with NYISO for material modifications to an existing large facility or modifications to an existing Interconnection Request.
"Depending on whether the facility is a large facility or a small generating facility will determine which NYISO Open Access Transmission Tariff (OATT) provisions apply and which NYISO Interconnection Request procedures the developer should adhere to. A generating facility of 20 MW or More or a Merchant Transmission Facility the developer must file a Large Facility Interconnection Request. A small generator project falls under NYISO’s Small Generator Interconnection Procedures (SGIP) if:
  • The small generator proposes to interconnect to either the NYS Transmission System, or FERC-jurisdictional distribution, and
  • At least some of the small generator project’s output may be available to the wholesale market."
North CarolinaX
North DakotaX
OhioX
OklahomaX
OregonX
PennsylvaniaX
Rhode IslandX
South CarolinaX
South DakotaX
TennesseeX
TexasX
UtahX
VermontX
Energy transmission and generation projects in Vermont must go through a site-specific environmental, economic and social impacts review process. The Federal Energy Regulatory Commission has jurisdiction over most hydroelectric projects, including primary transmission lines required for the project. However, a developer may need to obtain a Certificate of Public Good, from the Vermont Public Service Board for transmission line extension projects, interconnected group net-metered hydroelectric power systems, and project’s that sell retail electricity within Vermont.
Vermont Public Service Board
Before construction or operation of tansmission line extension projects, or a group net-metered hydroelectric power system interconnections.
VirginiaX
WashingtonX
West VirginiaX
WisconsinX
WyomingX

Hydropower Environmental Review Comparison

Hydropower projects maybe subject to federal and state environmental review. Some states have developed state environmental review processes similar to the federal National Environmental Policy Act (NEPA).


A developer will be required to go through the NEPA process if the project involves a "major federal action." The level and scope of the NEPA review will vary depending on the nature of the project and to what degree the federal government will be involved. Some actions and projects will receive a categorical exclusion while others may require a full Environmental Impact Statement (EIS). NEPA review is handled by a "lead agency." A “lead agency" is the federal agency responsible for writing the main NEPA document(s) and coordinating with any other federal, state, or tribal agencies.

State environmental review processes vary between states, but are often similar to NEPA and designate a lead agency to conduct and coordinate the review.

Topic to Compare

Environmental Review Process
Environmental Review Regulatory Agency
Environmental Review Threshold
Applicable MOU with FERC
AlabamaX
AlaskaX
ArizonaX
ArkansasX
CaliforniaX
"The California Environmental Quality Act (CEQA) is California’s state legislation governing environmental protection issues.

The CEQA process runs concurrently to the permit process triggering CEQA. During pre-application, the developer is to identify the appropriate agencies with a stake in the permitting process as well as collect as much background information as possible.

During the application phase, the developer begins filing the necessary environmental permit applications with the appropriate permitting agencies. The lead agency is responsible for coordinating all the environmental permits and initiating the CEQA process.
Yes, the MOU establishes the principles governing the Federal Energy Regulatory Commission’s and the California State Water Resources Control Board’s coordination of pre-application activities.
ColoradoX
ConnecticutX
DelawareX
FederalX
FloridaX
GeorgiaX
HawaiiX
IdahoX
IllinoisX
IndianaX
IowaX
KansasX
KentuckyX
LouisianaX
MaineX
MarylandX
MassachusettsX
MichiganX
MinnesotaX
MississippiX
MissouriX
MontanaX
NebraskaX
NevadaX
New HampshireX
New JerseyX
New MexicoX
New YorkX
New York’s State Environmental Quality Review Act (SEQR) is New York’s legislation governing environmental protection issues within the state. The SEQR requires all state and local government agencies to consider the environmental impacts of their actions and to balance these environmental impacts with social and economic factors. State and local agencies must review projects early on in the planning stages, so that projects can be modified as needed to avoid adverse impacts to the environment.
New York State Department of Environmental Conservation
No.
North CarolinaX
North DakotaX
OhioX
OklahomaX
OregonX
PennsylvaniaX
Rhode IslandX
South CarolinaX
South DakotaX
TennesseeX
TexasX
UtahX
VermontX
VirginiaX
WashingtonX
The Washington State Environmental Policy Act (SEPA) requires all governmental agencies to consider the environmental impacts of a proposal before making decisions. Washington uses an Environmental Checklist and Environmental Review to provide information to help government agencies identify impacts from their proposals and determine whether an Environmental Impact Statement is necessary.
Washington Department of Ecology
No.
West VirginiaX
WisconsinX
WyomingX

Hydropower Water Quality Comparison

The Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires a Section 404 permit to discharge dredge or fill material into navigable waters of the United States and Section 401 compliance with state water quality standards through a Water Quality Certification process. Both a CWA Section 404 Dredge and Fill Discharge Permit and a Federal Energy Regulatory Commission (FERC) license require the developer to obtain a CWA 401 Water Quality Certification.


States have the primary responsibility in issuing 401 Water Quality Certifications. Under Section 401(a)(1) of the CWA (33 U.S.C. § 1341), states have the authority to review and approve, condition, waive, or deny a 401 WQC. See also 10 V.S.A. §1004. Some states also require a 401 WQC for FERC exemptions.

More Information

Topic to Compare

401 Water Quality Certification Process
401 Certification Regulatory Agency
401 Certification Threshold
AlabamaX
AlaskaX
The Alaska Department of Environmental Conservation (ADEC) reviews and issues 401 Water Quality Certifications (WQC). The ADEC reviews hydropower projects filed with the Federal Energy Regulatory Commission (FERC) in accordance with 18 AAC 15.180 and may issue a 401 WQC or waiver.
Alaska Department of Environmental Conservation
Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers, subject to a federal license or permit (e.g., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.), to obtain a WQC if the project may result in any discharge into navigable waters of the United States.
ArizonaX
ArkansasX
CaliforniaX
The developer must submit a Section 401 Water Quality Certification Application to the California State Water Resources Control Board (SWRCB) where there is an appropriation of water, a hydroelectric facility licensed or exempted by the Federal Energy Regulatory Commission (FERC), or any other diversion of water for domestic, irrigation, power, municipal, industrial or other beneficial use, if such activity may result in any discharge to a navigable water of the United States.
California State Water Resources Control Board
Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers subject to a federal license or permit to obtain a 401 Water Quality Certification (WQC) if the project may result in any discharge into the navigable waters of the United States.
ColoradoX
The Colorado Department of Public Health and Environment (CDPHE) Water Quality Control Division (WQCD) reviews and issues Water Quality Certifications pursuant to Colorado Code of Regulations 5 CCR 1002-82, 401 Water Quality Certification Regulationand Colorado – C.R.S. 25-8-302, Duties of Water Quality Control Division. Under Section 401(a)(1) of the CWA (33 U.S.C. § 1341), states have the authority to review and approve, condition, waive, or deny a 401 WQC . See, also Colorado Code of Regulations 5 CCR 1002-82, 401 Water Quality Certification Regulation and Colorado – C.R.S. 25-8-302, Duties of Water Quality Control Division.
Colorado Department of Public Health and Environment
Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers, subject to a federal license or permit (i.e., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.) to obtain a 401 Water Quality Certification (WQC) if the project may result in any discharge into navigable waters of the U.S. Water Qualification Certificates issued by the WQCD apply to both the construction and operation of the project for which a federal license or permit is required and apply to all water quality impacts associated with the project, including wetland impact.
ConnecticutX
DelawareX
FederalX
FloridaX
GeorgiaX
HawaiiX
IdahoX
IllinoisX
IndianaX
IowaX
KansasX
KentuckyX
LouisianaX
MaineX
MarylandX
MassachusettsX
MichiganX
MinnesotaX
MississippiX
MissouriX
MontanaX
NebraskaX
NevadaX
New HampshireX
New JerseyX
New MexicoX
New YorkX
The New York State Department of Environmental Conservation (DEC) Division of Water Resources reviews and issues 401 Water Quality Certifications (WQC). In addition to projects requiring a 401 WQC for a FERC license or exemption , a 401 WQC is required for projects triggered by a Clean Water Act Section 404 permit from the US Army Corps of Engineers.
New York State Department of Environmental Conservation
Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers, subject to a federal license or permit (e.g., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.), to obtain a 401 WQC if the project may result in any discharge into the navigable waters of the U.S.
North CarolinaX
North DakotaX
OhioX
OklahomaX
OregonX
PennsylvaniaX
Rhode IslandX
South CarolinaX
South DakotaX
TennesseeX
TexasX
UtahX
VermontX
The Department of Environmental Conservation, a department within the Agency of Natural Resources reviews and issues 401 Water Quality Certifications. Under Section 401(a)(1) of the CWA (33 U.S.C. § 1341), states have the authority to review and approve, condition, waive, or deny a 401 WQC.
Vermont Department of Environmental Conservation
Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers, subject to a federal license or permit, to obtain a 401 WQC if the project may result in any discharge into the navigable waters of the U.S. In Vermont, ANR also requires a 401 WQC for Federal Energy Regulatory Commission (FERC) exemptions.
VirginiaX
WashingtonX
The Washington State Department of Ecology reviews and issues 401 Water Quality Certifications (WQC). Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers subject to a federal license or permit (i.e., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.) to obtain a 401 WQC if the project may result in any discharge into the navigable waters of the United States. Under Section 401(a)(1) of the CWA (33 U.S.C. § 1341), states have the authority to review and approve, condition, waive, or deny a 401 WQC.
Washington Department of Ecology
Section 401 of the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.) requires developers subject to a federal license or permit (i.e., Clean Water Act Section 404 permit, Federal Energy Regulatory Commission license, etc.) to obtain a 401 Water Quality Certificate (WQC) if the project may result in any discharge into the navigable waters of the United States. Under Section 401(a)(1) of the CWA (33 U.S.C. § 1341), states have the authority to review and approve, condition, waive, or deny a 401 Water Quality Certificate. The developer must submit a 401 WQC application for any hydropower project requiring a FERC license, license amendment, or re-licensing. Washington may require a 401 WQC for FERC exempted hydropower projects.
West VirginiaX
WisconsinX
WyomingX

Hydropower Water Access & Rights Comparison

Water access and water rights are predominantly governed by state law. Based on the nature of the energy resource, hydropower projects require access to water, which in many instances will require a determination by the relevant state authority as to whether a water right is necessary. In addition, a developer may require water for, among other uses, dust suppression for roads and construction activities. Depending on the situation and demands of a project, a developer may seek water from a lease-holder, a municipality, or a permanent water right.


In the western United States, surface water rights are most often governed by a system of prior-appropriation, which allocates rights by priority based on the date of application to a beneficial use; first in time, first in right. While in the eastern United States, surface water rights are governed by a system of riparian rights, which allocates rights based on property ownership adjacent to a body of water. In addition, some states have a hybrid system, such as California, which integrates both the riparian and prior-appropriation doctrines.

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Topic to Compare

Water Right Agency
Water Right Classification
Is a Water Right Required for the Project?
Defined Terms
AlabamaX
AlaskaX
Alaska Division of Mining Land and Water
Prior Appropriation
A developer must obtain a water right from the DMLW for a hydropower project. In Alaska, a water right is required even for non-consumptive uses of water.
ArizonaX
ArkansasX
CaliforniaX
California State Water Resources Control Board
Prior Appropriation/Riparian Rights Hybrid
Based on the nature of the energy resource, hydropower projects require access to water, which in many instances will require a determination by the state authority as to whether a water right is necessary. Depending on the type of hydropower facility (dam, run-of-river, or pumped storage), the developer may rely upon surface water, groundwater, or municipal wastewater to meet the hydropower project’s water needs. The developer of a hydropower project may also require water for other purposes, such as dust suppression for roads and construction activities.
ColoradoX
Colorado Division of Water Resources, Colorado Ground Water Commission
Prior Appropriation
A developer needs a water right for consumptive surface or groundwater uses. A hydropower developer will need a water right for the construction of a reservoir to hold water or a canal that feeds a hydrpower plant or pump storage facility. All surface and groundwater in Colorado is a public resource and must be put to beneficial use. Colorado considers power generation a beneficial use, along with commercial, industrial, and water storage uses, instream flows, and dust suppression.
ConnecticutX
DelawareX
FederalX
FloridaX
GeorgiaX
HawaiiX
IdahoX
IllinoisX
IndianaX
IowaX
KansasX
KentuckyX
LouisianaX
MaineX
MarylandX
MassachusettsX
MichiganX
MinnesotaX
MississippiX
MissouriX
MontanaX
NebraskaX
NevadaX
New HampshireX
New JerseyX
New MexicoX
New YorkX
New York State Department of Environmental Conservation
Riparian Rights
No, but a developer may need to obtain a Protection of Waters Permit from the Department of Environmental Conservation if the project will modify or disturb the course, channel or bed of any stream or remove any sand, gravel or other material from the bed or banks of a stream.
North CarolinaX
North DakotaX
OhioX
OklahomaX
OregonX
PennsylvaniaX
Rhode IslandX
South CarolinaX
South DakotaX
TennesseeX
TexasX
UtahX
VermontX
Vermont Department of Environmental Conservation
Riparian Rights
No, but a developer may need to obtain a Lake Encroachment Permit or a Stream Alteration Permit from the Vermont Department of Environmental Conservation.
VirginiaX
WashingtonX
Washington Department of Ecology
Prior Appropriation
Yes, a hydropower developer must obtain a water right or other approval from the Washington Department of Ecology or a local conservancy board to withdraw or divert public surface or groundwater of the State for beneficial use. A developer may also need to obtain a Reservoir Permit from the Department of Ecology to construct an impoundment and store water, for beneficial use, in a reservoir. In addition, a developer may need to obtain a Hydraulic Project Approval for any project that diverts, obstructs, or changes the natural flow or bed of any State water.
West VirginiaX
WisconsinX
WyomingX