New York Hydropower Permitting Process (NY)
The steps of the New York 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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Environmental Review On Site Evaluation Cultural Resources Biological Resources Pre-Existing Land Use Water Quality Air Quality Geological Resources Aesthetic & Recreational Resources
Hydropower Development in New York
In 2015, New York produced more hydroelectric power than any other state east of the Rocky Mountains. U.S. Energy Information Administration – New York State Energy Profile. Typically, hydroelectric power generates 18 percent of New York’s electric generation. New York Department of Environmental Conservation – Hydropower in New York Webpage; New York Independent System Operator – Power Trends 2016, The Changing Energy Landscape. In 2015, New York’s more than 300 hydroelectric facilities, with an installed capacity of 4,673 MW, produced nearly 27,000 GWh of electricity. New York Independent System Operator – Power Trends 2016, The Changing Energy Landscape; U.S. Department of Energy – 2014 Hydropower Market Report.
Hydroelectric facilities in New York include run-of-river, dam, and pumped storage facilities. Public and private utilities, electric co-ops, companies and individuals own hydroelectric generation facilities distributed throughout the state. Many of the hydroelectric facilities are located in the western and northern borders of the state on the Hudson, Oswego, and Black Rivers. Federal Energy Regulatory Commission - Complete List of Active Licenses and Exemptions.
In 2014, the Department of Energy (DOE) estimated 1,900 MW of new hydroelectric resource potential at undeveloped sites and 295 MW of hydroelectric potential at non-powered dams in New York. Department of Energy, New Stream-reach Development: A Comprehensive Assessment of Hydropower Energy Potential in the United States; New York Department of Environmental Conservation – Hydropower in New York Webpage.
New York state agencies play a role in a number of federal permitting and review processes for hydropower development. For instances, the New York State Department of Environmental Conservation (DEC) Division of Water Resources regulates water quality and issues 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 requires 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 New York, DEC’s Division of Fish, Wildlife, and Marine Resources (DFWMR) oversees the protection of fish, wildlife, and botanical resources. Based upon review of the hydropower project and analysis of any study results, the DFWMR develops Section 10(j) recommendations for FERC-licensed projects. 16 USC 803(j). The FPA also authorizes DFWMR to issue mandatory terms and conditions for hydropower projects that are exempt from FERC licensing under Section 30(c). 16 USC 823a(c).
New York State agencies and local commissions work together to regulate state lands, state highway access, water access and water rights, coastal zones and wetlands. New York’s municipalities and regional planning commissions regulate development through land use plans in accordance with statewide goals and policies. N.Y. Gen. Muni. L. §§19-o and119-u; N.Y. Gen. City L. §20-g; N.Y. Twn. L. §284(1); N.Y. Village L. § 7-741(1). The New York Department of State regulates developments located within New York’s coastal areas to ensure compliance with the national Coastal Zone Management Act and the State Coastal Zone Management Program. 16 U.S.C. §§ 1451 et seq., Coastal Zone Management; 15 C.F.R. §§ 930 et seq., Federal Consistency with Approved Coastal Management Programs. The New York State Office of General Services requires a developer to obtain either a lease or right-of-way to access state-owned lands, including aquatic lands. New York Public Lands Law §2; 9 CRR-NY 271-1.1; New York State Office of General Services: Lands Underwater. The New York State Department of Transportation and the New York State Thruway Authority regulate State highway encroachments. N.Y. Highway L. § 52; New York State Thruway Authority - Occupancy and Work Permit Accommodation Guidelines.
In New York, the system of riparian rights governs all surface and groundwater. All surface waters, in the State, are held in public trust. Both riparian and littoral owners are subject to the rule of reasonable use. Bromberg v. Ellish, Inc., 64 A.D.2d 684, 685 (N.Y. App. Div. 1978); Barkley v. Wilcox, 86 N.Y. 140, 146-47 (N.Y. 1881). The DEC regulates New York’s lakes, rivers, streams, and ponds from potentially harmful development. N.Y. Env. Cons. L. § 15-0501 et seq.; New York – Protection of Waters Program.
New York’s State Environmental Quality Review Act (SEQR) governs the protection of environmental and natural resources. SEQR requires all state and local government agencies to consider the environmental impact of their actions and to balance these environmental impacts with social and economic factors. [New York - State Environmental Quality Review Act]].
In New York, a develper may need a Certificate of Public Convenience and Necessity from the New York Public Service Commission (Commission) for transmission line extension projects outside the Federal Energy Regulatory Commission (FERC) license boundary. N.Y. Pub. Serv. Law § 68, Certificate of Public Convenience and Necessity. New York also requires that a developer obtain a Certificate of Environmental Compatibility and Public Need from the Commission to construct or operate transmission lines outside of a FERC license boundary or for transmission lines associated with a qualifying conduit hydropower facility with a nameplate capacity of 5MW or less. N.Y. Pub. Serv. Law §121(1), Certificate of Environmental Compatibility and Public Need. A developer must also file an Interconnection Request with the New York Independent System Operator in order to connect a new generating facility, or merchant transmission facility to the New York State Transmission System. NYISO Transmission Expansion and Interconnection Manual, at § 3.1; NYISO Open Access Transmission Tariff (OATT) §§ 3.9, 4.5.8, 3.11, 4.5.9.
Developing Qualifying Conduit Hydropower Facilities in New York
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:
- 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;
- The facility generates electric power using only the hydroelectric potential of a non-federally owned conduit;
- The facility has as installed capacity that does not exceed 5 MW; and
- The facility was not licensed or exempted from licensing by FERC on or before August 9, 2013.
The developer may still need to obtain federal, state, or local permits or authorizations in order to develop a qualifying conduit hydropower project in Colorado. It is possible that the developer could meet the regulatory requirements for a qualifying conduit hydropower project within as little as (60) sixty days.
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.
Federal Land Use Plan
The developer should evaluate preliminary site considerations and federal land use restrictions for the project location early on in the planning process.
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 transmission lines over federal lands.
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 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.
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.
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 transmission lines across state lands. The developer may also need to obtain a property right from an individual land owner if the project or associated transmission lines are located on privately-owned land.
State Water Rights and Authorizations
The developer is not required to obtain a water right for a qualifying conduit hydropower project. The developer is also not required to obtain a Section 401 Water Quality Certification. However, a developer may need a to obtain a Protection of Waters Permit from the New York State 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.
State Environmental Review
‘’’’’State Facility Authorizations’’’’’ In New York, the developer may need to obtain a Certificate of Public Convenience and Necessity from the New York Department of Public Service before beginning construction of an electric facility.
State Transmission Authorizations
The developer of a qualifying conduit hydropower facility may need a Generator Interconnection Agreement from the New York Independent System Operator in order to connect the hydropower facility to the New York State Transmission System.
The 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 associated transmission lines.
The developer may need to obtain a State Highway Encroachment Permit from the New York State Department of Transportation for projects that encroach on, or require work within a State Highway right-of-way.
State Highway Encroachment Permits:
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.