RAPID/Hydropower/Hawaii

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Regulatory and Permitting Information Desktop Toolkit

Hawaii Hydropower Permitting Process (HI)

The steps of the Hawaii 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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Hydropower Development in Hawaii

Currently, the RAPID Toolkit does not have Hawaii-specific content regarding the state’s rules and regulations for hydroelectric power development. However, state agencies, generally, play a lead role in a number of permitting and review processes. State agencies often authorize Section 401 Water Quality Certifications (33 U.S.C. § 1251 et seq.), permits for stormwater discharges (33 U.S.C § 1342) pursuant to the Clean Water Act, and perform state environmental reviews. These agencies also regulate state land access, state highway access, water access and water rights, lake encroachments, and implement state-specific requirements protecting wetlands, floodplains, and groundwater. In addition, states may require a certification from a state public utility regulatory authority. States may require a certification for transmission line extension projects, net-metered facilities, or the sale of retail electricity to ensure the project promotes the general good of the state.

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Most of the federal regulations outlined in the RAPID Toolkit apply to Hawaii. The Federal Energy Regulatory Commission regulates most non-federal hydropower projects. FERC generally 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.) However, Hawaii’s electrical generation and transmission system does not connect to the interstate grid. Therefore, the Federal Power Act (FPA) does not apply to Hawaii in the same manner as those states located in the contiguous United States. FERC Order Dismissing Preliminary Permit Applications, 137 FERC ¶ 61,057 (2011). As a result, many hydropower projects in Hawaii do not require a FERC license, and Hawaii has a long history of authorizing and regulating hydropower projects at the state level.

Unless a proposed hydropower project in Hawaii occupies public lands or reservations of the United States or uses surplus water or water power from a federal government dam, the determination of whether licensing is required turns on whether the project is located on “navigable waters of the United States.” 16 U.S.C. 791 § 23(b)(1); FERC Order Dismissing Preliminary Permit Applications (Oct. 20, 2011). FERC has determined that there is insufficient evidence of navigability or of impacts of commerce to find that proposed hydroelectric projects in Hawaii require a FERC license. See, e.g., Kauai Island Utility Coop., 117 FERC ¶ 62,073 (2006) (licensing is not required for the Upper and Lower Waiahi Hydroelectric Project because there was insufficient evidence to determine that the river and streams near Lihue, Kauai County, Hawaii are navigable waters); Island Power Co., 47 FERC ¶ 61,355 (1989); Island Power Co., 42 FERC ¶ 62,129 (1989). In addition, FERC has determined that the commission will not issue preliminary permits for projects in Hawaii that would be subject to FERC’s permissive licensing authority pursuant to section 4(e) of the FPA. As such, Hawaii state agencies regulate and authorize the majority of hydropower development in Hawaii. Note: Section 4(e) authorizes FERC to license hydroelectric projects located on commerce clause waters, i.e., any bodies of water over which Congress has jurisdiction under this authority to regulate commerce. Because most, if not all, of Hawaii’s rivers ultimately flow into the ocean, they would be considered commerce clause streams, which are a subset of section 4(e) commerce clause waters. Consequently, most hydropower project developers in Hawaii could seek a voluntary FERC license pursuant to 4(e). However, as previously stated, FERC has determined that the agency will not issue preliminary permits for project in Hawaii that would be subject to permissive section 4(e) licensing. FERC Order Dismissing Preliminary Permit Applications, 137 FERC ¶ 61,057 (2011). 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 an 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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