RAPID/Hydropower/Vermont

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Regulatory and Permitting Information Desktop Toolkit

Vermont Hydropower Permitting Process (VT)

The steps of the Vermont 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 Vermont

In 2014, Vermont reported 105 electricity-generating hydroelectric sites (706,028 kW of installed capacity) that generate approximately 200 MW of in-state electricity per year. Vermont Renewable Energy Atlas Website. Out of the 105 electricity-generating hydroelectric sites reported, 86 are licensed by Federal Energy Regulatory Commission (FERC). These facilities power nearly 10% of Vermont’s electric load. Vermont Renewable Energy Atlas Website.

The majority of hydroelectric facilities in Vermont are small run-of-river projects generating less than 5 MW. Vermont Renewable Energy Atlas Website. Renewable Energy Vermont Website. Dams along the Connecticut River provide over 50% of Vermont’s hydroelectric generating capacity. Calendonia County alone accounts for 43% of all generating capacity installed. Vermont Renewable Energy Atlas Website.

In 2014, the U.S. Department of Energy (DOE) estimated 401 MW of new resource potential at undeveloped sites and 17 MW of hydroelectric potential at non-powered dams in Vermont. Department of Energy, New Stream-reach Development: A Comprehensive Assessment of Hydropower Energy Potential in the United States. The DOE also identified two non-powered dams (5 MW or less) with small-hydroelectric resource potential in Vermont. Department of Energy, New Stream-reach Development: A Comprehensive Assessment of Hydropower Energy Potential in the United States.

Vermont state agencies play a role in a number of federal permitting and review processes for hydropower development. For instance, the Vermont Department of Environmental Conservation (DEC), a department within the Vermont Agency of Natural Resources (ANR), 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 Vermont, ANR departments including the DEC and the Vermont Department of Fish and Wildlife (DFW) oversee the protection of fish, wildlife, and botanical resources. Based upon their review of the hydropower project and analysis of any study results, the DEC and DFW develop Section 10(j) recommendations for FERC-licensed projects. 16 USC 803(j). The FPA also authorizes the DEC and DFW to issue mandatory terms and conditions for hydropower projects that are exempt from FERC licensing under Section 30(c). 16 USC 823a(c).

Vermont agencies and local commissions work together to regulate state land access, state highway access, water access and water rights, and lake encroachments. Through a cooperative regulatory process, the Vermont Agency of Commerce and Community Development, municipalities, and regional planning commissions regulate development through land use plans. 24 V.S.A. §4302(a). The Vermont Agency of Transportation works with local area Agency of Transportation Maintenance Districts to regulate State Highway Right-of-Way access. 19 V.S.A. § 1101 et seq. ANR requires developers to secure a right-of-way for any utility line or lines crossing over lands owned by the state and managed or controlled by the Department of Forests, Parks and Recreation, the DEC, or the DFW. Agency of Natural Resources Policy: Use of State Lands.

Vermont holds state surface waters and groundwater in public trust. 10 V.S.A § 901; 10 V.S.A. § 1390. Governed by the system of riparian rights, ANR protects surface waters and promotes buffer management through Vermont’s flood hazard and river corridor, wetland, lake encroachment, and stream alteration permitting and review processes. ANR also manages groundwater pursuant to the Groundwater Protection Act, 10 V.S.A. §§ 1390-1410 and the Groundwater Withdrawal Reporting and Permitting Requirements, CVR 12-030-020 § 24-101-513.

Vermont requires energy transmission and generation projects go through a site-specific environmental, economic, and social impact review process. Although FERC has jurisdiction of most hydroelectric projects, including primary transmission lines, a developer may still need to obtain a Certificate of Public Good (CPG) from the Vermont Public Service Board. The developer may need a CPG for transmission line extension projects or interconnected group net-metered hydroelectric systems within Vermont. 30 V.S.A. § 248 et seq.

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Developing Qualifying Conduit Hydropower Facilities in Vermont

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 Vermont. 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 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 Small-Low Impact Hydropower Assistance Program

Small-low impact hydroelectric projects may qualify for the Small Hydropower Assistance Program, which is designed to provide an expedited review process for small-low impact hydroelectric projects in accordance with the Hydropower Regulatory Efficiency Act of 2013.

Small Hydropower Assistance Program:
7-VT-a


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-VT-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-VT-b

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.

State Environmental Review

In Vermont, a qualifying conduit project can be reviewed by state environmental agencies during the 45-day FERC public comment period.

For more information on FERC’s process for authorizing a Qualifying Conduit Hydropower Facility, see: FERC Qualifying Conduit Hydropower Facility Authorization:
7-FD-f

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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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