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Posts Tagged ‘FERC License’

Please Take Action By MONDAY, FEBRUARY 9, 2009 before 2:00 pm!

MendoCoastCurrent, January 29, 2009

ferc_seal1Just a couple of weeks ago, Ann Miles, Director of Hydropower Licensing at the Federal Energy Regulatory Commission visited the Mendocino coast.  The centerpiece of her presentation on January 13, 2009 at Fort Bragg Town Hall was to explain the FERC Hydokinetic Licensing process.

For all those present at the meeting, Ms. Miles informed the Mendocino community of the WRONG DATE to file citizen Motions to Intervene in the Green Wave LLC proposed FERC project on the Mendocino village coastline.

FERC has kindly updated the mis-information and has indicated they wish to have the correct date promoted.  This correct date to file Motions to Intervene (directions follow) is now Monday, February 9, 2009 no later than 2:00 P.M. PST.

* * * * * * * *

Here’s a novel and effective way for you, your company and your family to state your position to the Federal Government on Mendocino wave energy development. It’s pretty simple to do, it’s empowering and it’s effective in that each filing can make a difference. Interested? Read on.

This action relates to Green Wave Energy Solutions’ application for a wave energy Preliminary Permit that was recently accepted by the Federal Energy Regulatory Commission (FERC). Since early December 2008, FERC has enabled a process for the public and interested parties to share their views (intervene).  The best way to participate is go online to the FERC web site and use the guide below to share your views on the Green Wave FERC hydrokinetic application.

Click on this HERE for a step-by-step instruction guide authored by Elizabeth Mitchell, FERC Coordinator for Fishermen Interested in Safe Hydrokinetics, FISH.

More about the FERC and Green Wave Energy Solutions Mendocino Wave Energy Permit

An application for a wave energy project in the ocean off Mendocino, California has been filed by Green Wave Energy Solutions, LLC.  Green Wave has made an application to put 10 to 100 wave energy devices in 17 square miles of ocean, between 0.5 and 2.6 miles offshore, running roughly north and south between the Navarro River and Point Cabrillo on the North Coast of California.

On December 9, 2008, the Federal Energy Regulatory Commission (FERC) began the permit process for the project by issuing a “Notice of Preliminary Permit Applications Accepted for Filing and Soliciting Comment, Motions to Intervene, and Competing Applications.”  

The law provides that interested individuals and organizations may become parties to the permit process.  In order to become a party, you and/or your organization(s) must file a “Motion to Intervene.”  The deadline for intervening in the Green Wave Project is Monday, February 9, 2009 by 2:00 P.M. PST.

You may intervene no matter what your current views are on the merits of wave energy.  Intervention gives you a place at the table as a full party to the permit process.  It also enables you to appeal future FERC rulings with respect to the permit. 

Intervening is not difficult, and you do not have to be a lawyer to do it.  If you file your motion to intervene by the Monday, February 9, 2009 deadline, and no one opposes your intervention, you automatically become a party after 15 days.

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MendoCoastCurrent, January 17, 2009

Here’s the post from MendoCoastCurrent in the Citizen’s Briefing Book at President-elect Barack Obama’s change.gov site:

Renewable Energy Development (RED) federal task force

Immediately establish and staff a Renewable Energy Development (RED) federal task force chartered with exploring and fast-tracking the development, exploration and commercialization of environmentally-sensitive renewable energy solutions in solar, wind, wave, green-ag, et al.

At this ‘world-class incubator,’ federal energy policy development is created as cutting-edge technologies and science move swiftly from white boards and white papers to testing to refinement and implementation.

∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞

If you wish to support this, please vote up this post at :

Renewable Energy Development (RED) federal task force.

∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞

Mendocino Energy:

Renewable energy incubator and campus on the Mendocino coast exploring nascent and organic technology solutions in wind, wave, solar, green-ag, bioremediation and coastal energy, located on the 400+ acre waterfront G-P Mill site.

Mendocino Energy may be a Campus in Obama’s Renewable Energy Development (RED) federal task force.

Vision:

Mendocino Energy is located on the Mendocino coast, three plus hours north of San Francisco/Silicon Valley.  On the waterfront of Fort Bragg, a portion of the now-defunct Georgia-Pacific Mill Site shall be used for exploring best practices, cost-efficient, environmentally-sensitive renewable and sustainable energy development – wind, wave, solar, bioremediation, green-ag, among many others. The end goal is to identify and engineer optimum, commercial-scale, sustainable, renewable energy solutions.

Start-ups, universities (e.g., Stanford’s newly-funded energy institute), the federal government (RED) and the world’s greatest minds working together to create, collaborate, compete and participate in this fast-tracked exploration.

The campus is quickly constructed of green, temp-portable structures (also a green technology) on the healthiest areas of the Mill Site as in the past, this waterfront, 400+ acre created contaminated areas where mushroom bioremediation is currently being tested (one more sustainable technology requiring exploration). So, readying the site and determining best sites for solar thermal, wind turbines and mills, wave energy, etc.

To learn more about these technologies, especially wave energy, RSS MendoCoastCurrent.

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Excerpts from article by FRANK HARTZELL, The Mendocino Beacon, December 24, 2008

On January 13, 2009, from 5-7p.m. at Fort Bragg Town Hall, a “top official from the Federal Energy Regulatory Commission (FERC) will appear to explain the agency’s strategy on developing what it calls “hydrokinetic” power as an alterative energy source.

Ann F. Miles, FERC’s director of the Division of Hydropower Licensing, will meet with county and city officials before attending the public meeting in Fort Bragg.

“The FISH Committee is looking forward to FERC’s visit, and welcomes the opportunity to learn about the different FERC licensing processes for wave energy, and how fishermen and other affected people can participate and have their voices heard,” said attorney Elizabeth Mitchell, who represents the Fisherman Involved for Safe Hydrokinetics.

Ocean waters off the Mendocino Coast, from Little River to Cleone, are now claimed under exclusive study permits by two different wave energy developers. GreenWave LLC claims 17 square miles of waters from Little River to Point Cabrillo, while PG&E claims 68 square miles from Point Cabrillo to Cleone.

Preliminary permits granted by FERC give not only exclusive study rights to the claimants, but also licensing priority to develop wave energy upon successful completion of the three-year studies.

Fort Bragg has become ground-zero for wave energy regulation. The federal Minerals Management Service, which is involved in an open feud with FERC over wave energy regulation, has sought to make Fort Bragg its test case.

FERC drew local ire by denying local efforts to intervene in the study process. At one point, protesters carried signs targeting the obscure federal agency with messages such as “Don’t FERC with us.”

One FERC insider said commissioners had complained that more fuss had been made in tiny Fort Bragg than the entire rest of the nation.

FERC later relented and on appeal granted intervener status to Mendocino County, for the PG&E project. The period to intervene and comment on GreenWave’s permit closes Friday, Feb. 6. As yet, nobody has filed anything with FERC, according to its Website.

“The commission’s existing procedures are well-established and well-suited to address this expansion of conventional hydropower with new technologies,” Miles told Congress last year, “and we are prepared to learn from experience in this rapidly evolving area and to make whatever regulatory adjustments are appropriate in order to help realize the potential of this renewable energy resource.”

FERC expanded its domain into all tidal, wave, river flow and ocean current study and licensing with its novel concept of a unified “hydrokinetic” regulation.

From the Yukon River in Alaska to the ocean currents off the Florida Keys, FERC has grown its regulatory territory dramatically since the start of the Bush administration. The agency is now explaining how dam regulation and wave energy innovation can go together. FERC recently granted the first hydrokinetic plant permit for production of energy in the Mississippi River in the state of Minnesota.

The independent agency has moved quickly with Neo-Con era disdain for regulation, eschewing calls from fellow federal and state agencies for a conventional rulemaking process. Instead FERC has adjusted its process as it goes along.

In her presentation to Congress, Miles focused on wave energy, not the more prevalent river current energy plans. She said wave energy projects will likely occur close to shore, not far out in federal waters.

“The cumulative costs of development … make it advantageous to locate projects nearer to the shore,” Miles told Congress.

Locals have complained that FERC has no intelligible process for public input. Governments and critics of FERC have been frustrated in efforts to get details.

FERC is a uniquely independent federal agency. It is under the Department of Energy but does not report to DOE, a structure that was created during the Great Depression. The president appoints FERC commissioners.

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MendoCoastCurrent, October 16, 2008

The Federal Energy Regulatory Commission (FERC) claimed that it has jurisdiction over hydroelectric projects located on the Outer Continental Shelf (OCS), pointing to laws that define its role.

FERC addressed the jurisdictional question, raised by the U.S. Department of the Interior, Mineral Management Service (MMS), in the context of a rehearing order on two preliminary permits issued to PG&E to study the feasibility of developing wave energy projects in the OCS off the California coast. The projects are the Humboldt Project off the coast of the Samoa Peninsula in Humboldt County near Eureka, and the Mendocino Project off the coast of Fort Bragg in Mendocino County.

Commissioner Philip Moeller said the development of viable hydrokinetic resources needs a streamlined process like FERC’s. “It is indisputable that renewable energy is a valuable resource and hydrokinetic projects could harness a vast resource of new hydropower,” he said. “Instead of legal battles, my preference, and this Commission’s, has been to reach out to federal agencies and states to work in a cooperative manner to the same goal: timely development of a new renewable power resource in a responsible manner after input from all affected stakeholders.”

MMS has asserted that FERC only has jurisdiction to issue licenses and preliminary permits for projects within state waters, which for most states is defined as extending three miles offshore. Projects beyond state waters are considered to be located in the OCS.

But FERC says the Federal Power Act (FPA) gives it two bases of authority to issue preliminary permits and licensees for hydroelectric projects located on the OCS. First, the law expressly grants FERC jurisdiction to license in “navigable waters” without limitation as well as in “streams or other bodies of water over which Congress has jurisdiction.” 

The second authority is for those projects located on “reservations” of the United States. FERC concludes that the OCS is land owned by the United States, qualifying it to be a “reservation” under the FPA. “The Supreme Court of the United States has consistently held that the United States owns the submerged lands off its shores, beginning from the low-water mark,” FERC said.

Finally, FERC addressed comments by MMS about the meaning of the Federal Energy Policy Act of 2005 (EPAct 2005) as it relates to the jurisdiction question for hydroelectric projects located on the OCS. MMS asserted that EPAct 2005 intended for MMS to be the lead federal regulatory authority over wave and ocean current energy projects in the OCS.

In this order, FERC notes that EPAct 2005 does not limit the scope of its authority over hydroelectric power or withdraw FERC jurisdiction over projects in the OCS. “To the contrary, Congress expressly preserved the Commission’s comprehensive hydroelectric licensing authority under the FPA by including two saving clauses….,” FERC said.

FERC Chairman Kelliher stressed today that FERC recognizes the role of Interior, which through the Minerals Management Service (MMS) manages lands on the OCS. There is no conflict with FERC’s role as the licensing agency, he said.

“We have proposed a Memorandum of Understanding (MOU) with MMS that carefully delineates the roles of the two agencies in a manner that respects both our licensing, and Interior’s resource, roles,” Kelliher said. “We stand ready to enter into the MOU to clarify those roles.”

A preliminary permit gives the holder of a permit priority over the site for three years while the holder studies the feasibility of developing the site. It does not authorize construction of any kind. A license authorizes construction and operation of a hydroelectric facility.

FERC’s order also finds that although two local governments, the City of Fort Bragg and Mendocino County, asserted that they did not receive personal notification from FERC of the filing of the preliminary permit applications, only Mendocino County acted in a timely manner once it received actual notice of the application in order to preserve its right to intervene. As a result, Mendocino County’s request for late intervention is granted. However, the order finds that Mendocino has not provided grounds for the Commission to revoke the Mendocino Project permit or to reopen that proceeding. The order also denies motions for late intervention in both proceedings by FISH Committee.

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The Federal Energy Regulatory Commission (FERC) recently devised two additional licenses for hydrokinetic projects: 1) Conditioned License; and 2) Pilot Project License. Below you’ll find FAQ’s on the new FERC Conditioned License which also defines the role of the Pilot Project License.

What is a conditioned license?

A conditioned license authorizes the construction, operation, and maintenance of an original (i.e., unconstructed) hydrokinetic project with the proviso that the licensee may not begin on-site construction or installation until further Commission order after the licensee has received all other authorizations required by federal law.

What is the difference between a conditioned license and a pilot project license?

A pilot project license authorizes the construction, operation, and maintenance of an original (i.e., unconstructed) hydrokinetic project that is: (1)small (5 megawatts or less); (2) easily removed or shut down quickly; (3) located in a non-sensitive area; and (4) has the primary purpose of testing new technologies or locating suitable generation sites.

A conditioned license is different from a pilot project license in that a conditioned license could be issued for either a pilot or non-pilot hydrokinetic project, and a conditioned license contains the proviso that the licensee may not begin on-site construction or installation until further Commission action after the licensee has received all other authorizations required by federal law. Once the authorizations have been received, the formerly conditioned license will be just like any other license.

How is a conditioned license different from a preliminary permit in terms of providing a “first-in-time, first-in-right” benefit?

The purpose of a preliminary permit is to maintain priority of application for a license during the term of the permit while the permittee conducts investigations and gathers data necessary for it to determine the feasibility of the proposed project, and if the project is found to be feasible, while the permittee prepares an acceptable license application. The permit does not allow construction, operation, or maintenance of a project. A conditioned license, issued only after the Commission has developed a complete record regarding a license application, authorizes the construction, operation, and maintenance of a hydrokinetic project, thereby giving a licensee the exclusive right to develop the site for purposes of hydrokinetic generation in accordance with the terms of the license.

To what types of projects does a conditioned license apply?

A conditioned license could apply to any license application for a proposed hydrokinetic project using any of the Commission’s licensing processes.

Who will determine whether a project should be issued a conditioned license?

The Commission will determine whether it is appropriate to issue a conditioned license in a given case. In doing so, the Commission would consider any filed comments on the issue. Under Commission staff’s proposal, staff would expedite processing of license applications for hydrokinetic pilot projects that would meet the four criteria. A license issued for a hydrokinetic pilot project processed under the expedited procedures would be called a pilot project license.

Under what circumstances would the Commission deem a conditioned license to be “appropriate” (ref. paragraphs 1 and 8 of the Policy Statement)?

Commission staff interprets the use of the word “appropriate” in the Policy Statement to mean that the decision to issue a conditioned license will be made on a case-by-case basis after considering the specific circumstances of the case.

Would a prospective licensee’s need for a conditioned license for purposes of securing project financing qualify as an “appropriate” circumstance?

The decision to issue a conditioned license will be made on a case-by-case basis after considering the circumstances of the case. Project financing could be one of the factors that the Commission considers.

Would a prospective licensee for a hydrokinetic project have the option of requesting a non-conditioned license?

Yes. A license applicant may propose that the Commission issue a nonconditioned license; however, the final decision whether to issue a conditioned license would rest with the Commission after considering the circumstances of the case.

COORDINATION WITH FEDERAL AND STATE RESOURCE AGENCIES, INDIAN TRIBES, AND LICENSEES ON RECEIPT OF OTHER REQUIRED FEDERAL AND STATE AUTHORIZATIONS OR WAIVERS

How will the Commission ensure that it meets its obligations with respect to the requirements of the Endangered Species Act, Federal Power Act, National Marine Sanctuaries Act, Magnuson-Fishery Conservation and Management Act, and the National Environmental Policy Act?

Under a conditioned license, a licensee may not begin on-site construction and installation of a hydrokinetic project until the Commission has determined that the requirements of all applicable federal laws are satisfied.

How will the Commission ensure that the licensee has received the other required federal and state authorizations or waivers after issuance of the conditioned license? What should a licensee do after the Commission or licensee, as applicable, receives the other required federal and state authorizations or waivers?

A conditioned license will require that the licensee file with the Commission written notification along with copies of all applicable authorizations or waivers under federal law. Therefore, upon receiving the federal and state authorizations or waivers, the licensee should file with the Commission written notification and copies of the authorizations. The Commission will then review the filing and take action to authorize the commencement of on-site construction after making a finding that the licensee has satisfied the requirements of the applicable federal laws. Where appropriate, the Commission will incorporate additional conditions received with the federal and state authorizations into the license.

What steps will the Commission take to ensure that a prospective licensee, upon receiving a conditioned license, does not stall the process of obtaining the required federal and state authorizations with the express purpose of banking the licensed site until such time as the technology is either fully developed or the site is economically prime for development?

Upon receiving any license from the Commission, including a conditioned license, a licensee is required under section 13 of the Federal Power Act to begin on-site construction or installation of the project works within two years from the effective date of the license. With good reason, the Commission can extend the initial two-year period by up to an additional two years.

The Commission is required by section 13 to terminate a license if there is failure to begin actual construction of the project works within the time prescribed by the license, or as extended by the Commission.

How will the Commission secure the cooperation and encourage the expeditious action of the federal and state agencies and Indian tribes responsible for authorizations after issuance of a conditioned license?

As is currently Commission staff’s practice, staff will periodically contact the applicable federal and state agencies and Indian tribes to inquire on the agencies’ and tribes’ progress and, where appropriate, offer assistance to the agencies and tribes to help expedite the process.

NEPA ANALYSIS AND TREATMENT OF RESOURCE AGENCY RECOMMENDATIONS

Will the scope of the Commission’s NEPA analysis be different for a conditioned license as compared to a non-conditioned license?

No. The decision to issue a conditioned versus a non-conditioned license will have no bearing on the scope of Commission staff’s NEPA analysis. All prefiling (of the license application) and post-filing processes will remain the same, including pre-filing consultation; issue and study identification; solicitation of comments, recommendations, terms, conditions, and prescriptions; and NEPA review.

Will the Commission consider agency recommendations submitted pursuant to FPA sections 10(a) and 10(j) differently for a conditioned license as compared to a non-conditioned license?

No. The decision to issue a conditioned versus a non-conditioned license will have no bearing on the consideration of agency recommendations submitted pursuant to section 10(a) or section 10(j) of the FPA.

REHEARINGS, LICENSE TRANSFERS, AND OTHER POST-LICENSE ISSUANCE MATTERS

Would the Commission consider suspending or extending the period for rehearing or staying the effective date of the license at the request of a prospective licensee until some or all of the required federal and state authorizations have been completed or waived?

Commission staff does not anticipate the need for such actions.

Can a conditioned license be transferred prior to a licensee receiving all required federal and state authorizations, and if so, what steps will the Commission take to limit the ability of licensees to “flip” the licensed sites to other entities?

Yes. A licensee and transferee may jointly file an application to transfer the license at any time after a license has been issued by the Commission. The Commission’s decision to approve the transfer would be made on a case-by-case basis and would be contingent upon, among other things, the showing that such a transfer is in the public interest. Upon approval and acceptance of the transfer, the transferee would be subject to all of the conditions of the license and to all of the provisions and conditions of the FPA, as though the transferee were the original licensee.

Under a conditioned license, when does the “two-year-clock” for commencing construction begin – after all required federal and state authorizations or waivers have been received or on the effective date of the conditioned license?

The “clock” begins on the effective date of the conditioned license.

What are some examples of the types of non-construction activities that a licensee may conduct under a conditioned license prior to receiving all other authorizations? What are some examples of the types of activities that are prohibited?

Examples of activities that would be allowed by a conditioned license prior to obtaining all other authorizations required by federal law would be development of plans and drawings in consultation with the federal and state agencies, Indian tribes, and others pursuant to the terms of the license and fabrication of project related equipment (e.g., generation equipment). Examples of prohibited activities would be any actual on-site construction and installation activities, including construction and equipment staging.

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The World, Worldwide Ocean Energy News, April 12, 2008

Sport and commercial fishermen, members from related marine industries and Ocean Power Technologies representative Steve Kopf met again Wednesday — and made tentative progress on rebuilding trust.

A robust agenda that included discussing the difference between a traditional licensing process and an integrated licensing process — two different ways a wave energy company can apply to the Federal Energy Regulatory Commission for a full license — resulted in a three-hour meeting at Oregon International Port of Coos Bay offices.

Kopf proposed working with the recently formed Southern Oregon Ocean Resource Coalition on a road map to discuss issues relating to the 200-buoy proposed wave energy park off the North Spit.

In January, Kopf told fishermen in Charleston the company was proposing a 20-buoy installation. By March, that changed to 200. The switch shocked the fishing industry and put already tenuous relationships between the two entities in jeopardy. At the same time, it galvanized the fleet into forming SOORC.

SOORC participants touched on recent developments in the wave energy industry that included the Australian company, Energetech, withdrawing its permit request from FERC for a wave energy park off of Florence.

The “gold rush” is ending, Kopf said.

Various companies have applied for permits to study sites, largely in the hopes of locking up ocean territory from other companies. It’s also called “site banking.”

Kopf said companies can apply for a permit in an afternoon. To apply for a full license, such as what OPT is doing for its Reedsport project, takes millions of dollars and a lot of time. Some companies may not find it worth the expense.

“I kind of predicted that,” Kopf said.

“Will you file for that space?” Charleston troller Jeff Reeves asked.

Kopf sidestepped the question — and repeated questions from Port Deputy Director Mike Gaul, opting instead to suggest OPT send a formal, written response to SOORC.

Finavera, who received a preliminary permit to study a site off of Bandon, is under an April 26 deadline to submit its preliminary application document to FERC. Kopf said it doesn’t look promising that will happen, either.

The company still is working on its license for a project in Makah Bay.

Kopf noted that OPT already is working through settlement discussions with state and federal agencies for its Reedsport project.

Settlement discussions don’t necessarily mean that groups or agencies have approved a specific project. It simply means both entities have agreed to what further data will be collected and how the entities will cooperate.

For energy companies, it’s a risk-reduction measure, Kopf said, noting that so far, OPT is the company that has made the most progress, reaching settlement agreements with some groups and state agencies.

“We’re the lead project on this in the U.S., probably the world,” Kopf said.

Kopf said OPT plans to file a full draft license application to FERC next week, followed by a final, full application for the Reedsport project in May.

Both SOORC and OPT agreed to continue to work collaboratively in the coming months and that further discussion on the traditional licensing process vs. the integrated process will take place when the groups meet again in May.

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The World, April 10, 2008

The proposed Florence, Oregon wave energy park is no more.

At least, not on paper.

“Energetech America, under Oceanlinx Limited, respectfully requests to withdraw its preliminary permit application for the Florence Oregon Ocean Wave Energy Project …,” the company said in a letter to the Federal Energy Regulatory Commission on March 26.

Oceanlinx filed for a preliminary permit in April 2007 to study a site within Oregon’s territorial sea off of Florence. The project, as planned, would have consisted of 10 offshore floating steel frame structures, moored to the seafloor and comprising an oscillating water column, turbine and electric generator. Each structure would have weighed about 300 metric tons and the footprint for each, including mooring anchors, would have been about 300 feet by 300 feet. It was planned to have a peak capacity of 10 megawatts.

The company gave no reason for its withdrawal and a call to the company’s U.S. office in Connecticut resulted in a recording directing calls to its Australia headquarters.

So far, Ocean Power Technologies is the only company on the South Coast to have submitted preliminary application documents to FERC for a full license, after a preliminary permit is granted.

Finavera Renewables, which received preliminary permit approval from FERC to study a site off of Bandon, is scheduled to submit its preliminary license application this month.

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CAROLYN ELEFANT, Offshore Renewable Energy Law Blog, April 5, 2008

Ever since FERC announced that it would issue conditioned licenses for marine renewables projects, I’ve grappled with whether the policy makes sense for the industry. For those unfamiliar with the concept, a conditioned license is issued following a full environmental review by FERC as well as a finding that the project would serve the public interest. But in contrast to a full license where an applicant can begin development right away, a conditioned license makes project construction contigent on receipt of necessary authorizations from other state and federal agencies, such as a Section 401 water quality certificate or a CZMA certification. In FERC’s view, issuing a conditioned license would enable a developer to commence work on other requirements under the license (such as preparing various monitoring plans) and would facilitate financing. And many developers support the conditioned license for similar reasons.

So a conditioned license sounds great in theory. And yet, in practice, does the conditioned license will always speed up the licensing process or facilitate financing? I’m just not sure. For starters, some states don’t like the conditioned license, believing (incorrectly in my view) that conditioned licensing erodes states’ authority to issue certifications under Section 401 or CZMA. Thus, a state might challenge a conditioned license even if it doesn’t object to the underlying project. Case in point- two Washington state agencies
challenged FERC’s issuance of a conditioned license to Finavera, even though they ultimately issued the required certifications just a month later.

Moreover, a developer can receive a conditioned license only to find that months or years later, a state or federal agency declines to issue a needed certification. Indeed, that’s what happened in a case involving BP’s Crowne Point LNG (liquified natural gas) facility, which eceived a conditioned license from FERC in November 2006. Construction of the facility was conditioned on receipt of a CZMA certificate from the state of Delaware. Ultimately, Delaware denied the certificate, prompting a dispute between New Jersey and Delaware over whether Delaware had authority to veto a project that originated in New Jersey’s portion of the Delaware River. The dispute between the states went to the Supreme Court, which ruled last week that a 1905 Compact between the states gave Delaware the right to block the facility. In the absence of approval from Delaware, the November 2006 conditioned license was rendered meaningless.

In short, given recent events, it’s not clear to me that a conditioned license offers the kind of certainty needed to attract private capital. Indeed, given the recent New Jersey v. Delaware case and the state of Washington’s challenge to FERC’s authority, a conditioned license is just as uncertain as no license at all. While the conditioned license should remain available as an option, developers should realize that getting a conditioned license doesn’t necessarily guarantee that a project will go forward unless and until all of the agencies that issue needed authorizations are on board.

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Dear Ocean Guardians:

Now that corporations and Washington D.C. have started claiming our coast for wave energy development, we must take a stand. We are called on behalf of our beloved Mendocino coast and the organisms inhabiting the vast and mighty ocean, source of all life on our Earth.

We embrace a focused intention to protect our Coast from unwieldy, untested, potentially polluting and environmentally disasterous renewable energy development, including wave energy development — most importantly wave energy device deployment without best-practice and thorough environmental testing and/or appropriate consent of related government organizations (i.e. local, state, county, coastal commission, environmental overseeing groups, fishermen organizations, etc.).

Our goal in protecting the ocean demands an Immediate Moratorium on all deployment, permits, studies and reservations of wave energy development rights on the Coast of Mendocino, whether it be in state or federal waters. This moratorium is called in response to PG&E’s Preliminary Permit with FERC (Federal Energy Regulatory Committee) that gives PG&E (and their consultants) the right to “study” our coast without OUR participation, judgment or care!

We shall not be shut out of this process!

Let us come together to protect our coast and defend it now!

Sincerely,

Laurel Krause
Publisher, MendoCoastCurrent

To learn more about topics related to Wave Energy Development and the Mendocino coast, please go to MendoCoastCurrent at http://MendoCoastCurrent.wordpress.com; email laurelkrause “at” gmail.com.

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On April 7, 2008, the Federal Energy Regulatory Commission rejected the wave permit application of Sonoma County, California, and also the permit application of Lincoln County, Oregon, see attached letter relative to the Sonoma permit, below.

SonomaRejection

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Recently on April 3 & April 4, 2008, the County of Mendocino and the City of Fort Bragg respectively filed Motions for Rehearing to Intervene in the proposed FERC and PG&E hydrokinetic projects off the Fort Bragg coastline.

To read the Fort Bragg Motion for Rehearing, go here;

To read the County of Mendocino’s Motion for Rehearing, go here;

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April 1, 2008

Interesting reading…A Request for Rehearing has been filed related to FERC’s Denial of FISH’s Motions to Intervene in PG&E’s Mendocino and Humboldt Wave Energy Projects (read Filing : fish-request-for-rehearing.pdf).

FISH, Fishermen Interested in Safe Hydrokinetics, has become a steering committee led by Mendocino coast locals, John Innes and Jim Martin, as Co-Coordinators and Elizabeth Mitchell as FERC Coordinator.

FISH has polled the fishing community for much of the information in this Request for Rehearing, and it is clear that there is substantial, if not total, overlap between the fishing grounds and the proposed wave energy project areas.

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In Fort Bragg, California on the Mendocino Coast, March 29, 2008 from 11-NOON

Mendocino Wave Energy Moratorium March

THE FACTS:

PG&E’s Wave Energy Preliminary Permit was Approved & Issued by the Federal Energy Regulatory Commission (FERC) on March 13, 2008.

FERC DENIED The City of Fort Bragg, FISH and the County of Mendocino Motions to Intervene in Mendocino’s Wave Energy Development.

Both PG&E and FERC are NOW Swiftly Moving Forward to “TEST” Off the Mendocino Coast.

WHAT WE’RE SEEKING:

PUBLIC PARTICIPATION in FERC AND PG&E DECISION-MAKING about Wave Energy off the Mendocino Coast

HALT DEPLOYMENT of Wave Energy Test Buoys until further completion of non-deployment studies

PG&E — BE A REAL PARTNER. File Letters in Support of Fort Bragg’s, Mendocino’s and FISH’s re-hearings to Intervene at FERC.

MORATORIUM on MENDOCINO WAVE ENERGY DEVELOPMENT NOW!

NEXT STEPS:

FORMING a Mendocino Coast Wave Energy stakeholder group in early April 2008.

JOIN US for the First Meeting of he Mendocino Coast Wave Energy stakeholders group on TUESDAY, APRIL 8TH, 7PM in Fort Bragg at the FIRST PRESBYTERIAN CHURCH, 367 S. SANDERSON WAY near Dana Grey.

Thank you for your participation!

For more info, go to MendoCoastCurrent; http://MendoCoastCurrent.wordpress.com;

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News Release from FERC: March 27, 2008

The Federal Energy Regulatory Commission (FERC) and the state of Oregon have signed a Memorandum of Understanding (MOU) to coordinate procedures and schedules for review of wave energy projects in state waters off the coast of Oregon. This effort will be undertaken in an environmentally sensitive manner, while taking into account economic and cultural concerns.

“I commend the state of Oregon for being a leader in the development of this new source of emissions-free renewable energy,” FERC Chairman Joseph T. Kelliher said. “Their efforts, especially with today’s MOU, are critical to the successful development of hydrokinetic projects in this country. This agreement is a model of how federal and state governments can work together to promote the new energy technologies our country needs.”

“I am pleased but not surprised by the leadership and cooperation shown by the state of Oregon in fostering new hydrokinetic technologies,” Commissioner Philip Moeller said. “It was no coincidence that we held a well-attended meeting in Portland, Oregon, last October to explore modifying the FERC licensing process to encourage these new technologies. I look forward to working with the state and the region as the nation’s search continues for new sources of renewable and emission-free energy.”

The MOU establishes Oregon’s support of FERC’s procedures for a shorter-term, experimental pilot license that ensures environmental, economic and social protections.

With respect to wave energy projects, FERC and Oregon agree that:

* Each will notify the other when one becomes aware of a potential applicant for a preliminary permit, pilot project license or license. This will allow for the start of coordinated efforts to review the project.

* They will agree upon a schedule for processing applications as early as possible. The schedule will include specific milestones for FERC and Oregon to complete their respective processes. They also will encourage other federal agencies and stakeholders to comply with the schedules.

* They, along with the prospective applicant and other participants, will work together to identify potential issues, and to determine what information is needed and what studies must be conducted to permit the Commission and Oregon to undertake required reviews of proposed projects.

* Oregon intends to prepare a comprehensive plan for the siting of wave energy projects in state waters off the coast of Oregon. FERC agrees to consider, to what extent, proposed projects are consistent with the plan.

* Any pilot project license or other license issued by FERC must include conditions to protect and mitigate potential damage to fish and wildlife resource.

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The World, March 22, 2008

COOS BAY — Fishermen, port officials and other interests want potential wave energy companies to consider the “source.”

“Source” is the acronym pronunciation for the Southern Oregon Ocean Resource Coalition — SOORC — a group of about a dozen folks who gathered for the first time Friday to talk about wave energy.

That was one goal.

The other was to hear what Ocean Power Technologies representative Steve Kopf had to say.

It’s been a little more than two weeks since South Coast interests found out OPT, under the name of Oregon Wave Energy Partners I LLC, filed a preliminary application document with the Federal Energy Regulatory Commission for a 200-buoy wave energy facility off the North Spit — up from the 20 Kopf reported the company was planning in January.

Kopf’s words were like a mantra: “I’m sorry,” he said.

He said the same thing at a Wednesday meeting at the Port of Umpqua in Reedsport and reiterated the change was made on short notice at OPT’s headquarters in New Jersey.

It was made in three days’ time, he said. He was finally able to get the go-ahead to call folks out here, including Oregon Dungeness Crab Commission Executive Director Nick Furman, Oregon International Port of Coos Bay Deputy Director Mike Gaul and Coos County Commissioner John Griffith, on the day the application was filed with FERC.

“I knew when I made those calls, we’d have this meeting,” Kopf said, “and it wasn’t going to be pretty. … I know what you’re saying: I broke the trust.”

Gaul agreed.

“I have a highly disappointed port commission,” he said.

The process, in effect, has reverted back to where it was months ago, Gaul said.

“Here’s Day One again. It has to start with open, honest discussion from now on,” he said.

Kopf and the rest of the group discussed several more details of the project and brainstormed some ideas that should be talked about at future meetings. The meeting covered some issues that had been covered before but that, in the minds of many on SOORC, particularly fishermen, needed to be covered again.

“This is the political reality,” Sen. Joanne Verger, D-Coos Bay, said to Kopf, underscoring her seriousness by tapping a finger on the table. “Understand that the fishing industry has been here long before wave energy. It has tradition, support. There’s a lot of sensitivity to this industry from Brookings to Astoria.”

Part of the OPT preliminary application calls for use of the traditional licensing process, as opposed to an integrated licensing process, the FERC default, or an alternative licensing process (see sidebar). Interested parties have 30 days in which to respond to FERC.

That was one of the main topics for which SOORC hoped Kopf could help.

We need more time, Gaul said.

SOORC needs to consider carefully the ramifications of supporting any of the three processes and would Kopf support SOORC’s request to FERC for a 90-day extension?

Kopf agreed.

Several times, he was surprised at the level of thoughtfulness and concern evidenced by some of the fishermen’s comments.

“It’s good to have that,” Kopf said after the meeting at the Port of Coos Bay. “I thought it was productive. I’m looking forward to working with a professionally organized and thoughtful group.”

The fishermen and local community officials agreed that SOORC needs to do some things to become a nonprofit organization, but that will happen.

In the meantime, there still is wave energy work to do.

“One thing you did, you got us together,” salmon troller Paul Heikkila said.

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From the Law Offices of Carolyn Elefant, Offshore Energy Renewable Law Blog

When we last checked in on the status of the the first ever conditional license issued by FERC for a wave energy project (Finavera’s 1.4 MW, 4 buoy Makah Bay Offshore Wave Pilot), several parties had challenged FERC’s decision. Two Washington state agencies argued that FERC lacked the power to issue a license without a Section 401 water quality certificate (WQC) and a Coastal Zone Management Act (CZMA) certification from the state authorizing the project. And the Makah Tribe challenged FERC’s finding that the Olympia Coast Marine Sanctuary is a reservation which would give NOAA mandatory conditioning authority under Section 4(e) of the Federal Power Act.

Typically, FERC can take up to a year to resolve rehearing requests, but here, FERC resolved the parties’ challenges in just two months with the issuance of this order. Accounting for FERC’s quick action is the fact that the state agencies eventually issued a WQC and CZMA certification during the pendency of their appeal, thereby rendering their challenges moot.

By way of background, on December 21, 2007, FERC issued a conditional license for the Makah Pilot Wave Project. FERC stated that the license would become final only when Finavera, the licensee, received the required WQC and CZMA certifications from Washington State. On January 21, 2008, the state agencies sought rehearing of FERC’s order, arguing that FERC was precluded from taking any action on the license until the state certifications issued. But on February 28, 2008, the Department of Ecology issued a CZMA certification and a WQC. FERC amended the conditional license to incorporate the terms and conditions contained in the CZMA certification and the WQC. Because the necessary certifications were issued, FERC found that the state’s argument that the certifications are a prerequisite to license issuance were moot. Nevertheless, FERC maintained that its issuance of a conditioned license did not violate the CZMA or the CWA because FERC expressly provided that the license would not authorize any activity that would trigger the requirements of either of these statutes.

As to Makah’s objections, FERC agreed that the submerged lands within the marine sanctuary where the project would be sited were not a reservation within the meaning of the Federal Power Act. FERC concluded that the state of Washington held title to the submerged lands, while the definition of reservation under the FPA required a federal ownership interest. Because the sanctuary lands are not a reservation, NOAA did not have the power to proposed mandatory conditions in the license under Section 4(e) of the FPA. In any event, FERC decided to adopt all but two of NOAA’s measures, minimizing the impact of denying NOAA mandatory conditioning authority. However, now that FERC has concluded that the project lands are state owned, Finavera must obtain the right to use these state owned lands before it can construct the project.

FERC’s incorporation of the state certifications and all but two of NOAA’s proposed recommendations into the license makes it less likely that these entities will appeal the license. Still, even with a license issued (and assuming no appeals), it’s unlikely that we’ll see the project in the water anytime soon – in addition to obtaining authorization to use project lands, the license also requires Finavera to prepare and file a variety of plans for monitoring electronic magnetic fields (EMF) and water quality and preventing marine entanglement. And all of this will take time.

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Susan Chambers, The World Link, March 21, 2008

REEDSPORT — Fishermen and port officials talked of trust Wednesday night at the Port of Umpqua commission meeting.

The meeting was an impromptu first battleground over what fishermen see as a violation of trust and wave energy company Ocean Power Technologies see as a business decision.

OPT filed a preliminary application document for a 200-buoy wave energy park off the North Spit on March 7 — 180 buoys more than promised when OPT representative Steve Kopf met with the Charleston fishing fleet in January.

The 200-buoy concept is not new. It’s what OPT proposed when it filed its permit request with the Federal Energy Regulatory Commission in 2006. FERC granted the permit in early 2007.

“The bottom line is that as we started putting the PAD together, the CEO said fishermen are not worried so much about the small projects; they’re worried about the big things,” Kopf said on March 7. “So instead, (OPT) decided to face this head on.”

In February, Port of Umpqua commissioners considered sending a letter to federal lawmakers and agencies in support of OPT receiving federal energy funds to develop new technology. Commissioners postponed approval until they could talk with Kopf again to determine the status of ongoing talks with local commercial Dungeness crab fishermen.

The change in the number of buoys for North Spit wave facility — and the consternation it caused among the fleet — made discussions about the letter difficult. Kopf ultimately asked to have consideration of the letter postponed.

Kopf said Wednesday the number of buoys at the Reedsport wave park would remain the same, 10, enough for a test site to ensure the buoys work as planned and energy can be transmitted to the grid as planned. It also would give the company a chance to study the effects of the buoys on the environment and surrounding wildlife.

Still, the overriding concerns Wednesday were of trust and ongoing discussions that have not been resolved, namely the use of prime crabbing grounds for what fishermen say is unproven technology.

Unlike the 1/4- to 1/2-square-mile footprint at Reedsport, the North Spit site would encompass a roughly 300-yards-wide by 5-mile-long footprint, parallel to the beach. OPT also planned to try to place the buoys deeper, nearer 40 fathoms, than the depth in which it plans to place buoys at the Reedsport facility.

“That’s something we heard at the Reedsport meetings,” Kopf said.

The 200-buoy facility also would be broken into four sections — another result of what OPT representatives heard during Reedsport discussions — so as to benefit fishermen and OPT maintenance crews.

The North Spit park likely would not be developed for several years, Kopf said.

That didn’t sit well with fishermen.

“It shocked me that it happened so quickly,” Charleston fisherman Jeff Reeves said.

Winchester Bay crabber Stuart Schuttpelz put it even more bluntly: “This community doesn’t need to be lied to,” he said.

Kopf acknowledged their comments with aplomb.

“We definitely violated the trust with this group when we made that last-minute change,” Kopf said. “But from our perspective, we need to figure out technically, economically, if this works.”

Kopf also noted that the federal funding — part of a fiscal year 2009 budget request — would go to offset the costs of doing environmental studies. And sure, he said, funneling that money through independent Oregon universities or other businesses for the benefit of the wave energy industry overall is a viable option.

Mike Gaul, speaking on behalf of the Oregon Public Ports Association, suggested the neutral third-party option earlier in the evening, noting that he was uncomfortable with supporting federal funds going to a private company. Gaul, who’s the Oregon International Port of Coos Bay’s deputy director, also spoke Thursday night before the Coos Bay port commission. He told port commissioners he felt Kopf misled them by filing an application for a full-scale project.

“To date, OPT has not shown they are willing to work with the fishermen and Port of Coos Bay,” he said.

Kopf planned to meet with local officials today (Friday) in Coos Bay to continue to discuss the issue of moving ahead with 200 buoys — a project that could be granted a 50-year FERC license — instead of 20.

But fishermen and port officials warned more work must be done — still.

The 273-page PAD has some of the same errors in it that OPT made when it filed a preliminary application for the Reedsport site — errors Oregon Dungeness Crab Commission spokesman Hugh Link pointed out in earlier discussions with OPT.

“The Tri-state Commercial Crab Committee closely regulates harvest. The committee conducts annual reviews of crab populations and limits permits, timing and take in order to maintain the important Dungeness crab resource for both commercial and recreational take,” the application reads in one part.

But in reality, each state, Washington, Oregon and California, manages and regulates its own fleet and crab resource.

Kopf said there still is work to be done and planned to continue OPT’s commitment to working with fishermen.

“We’re committed to continuing the dialogue,” he said.

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PETER B. LORD & NATALIE GARCIA, The Providence Journal, March 5, 2008

The agency that regulates Rhode Island’s coastline has proposed a one-year moratorium on wind farms and wave generators in the state’s coastal waters so it can develop a special management plan that will determine where such projects will be allowed.

Governor Carcieri and two environmental groups are opposing the moratorium.

Yesterday, Jeff Neal, Carcieri’s spokesman, said he’s concerned the decision will slow the state’s progress toward developing renewable energy sources. A moratorium, he said, would also send the wrong signal and might scare off potential proposals.

“Governor Carcieri wants to remain out front developing wind and wave energy sources,” Neal said. “He doesn’t believe a moratorium will be helpful.”

The Rhode Island Coastal Resources Management Council, the agency proposing the temporary ban, disagrees. Even without a moratorium, it would take about two years to conduct research and collect wind-energy data needed to create an ocean zoning plan, according to the agency. No projects could go forward before that work is complete.

A spokesman for Allco Renewable Energy Group, which last September proposed erecting hundreds of wind turbines off Rhode Island’s coast, said his company does not oppose the moratorium as long as the CRMC develops a plan that will streamline the approval process.

“We believe a properly executed special-area management plan is a better road to go through than a full-blown environmental-impact statement process with the Army Corps of Engineers,” said Bill Fischer, Allco’s spokesman in Rhode Island.

The first major wind project in the region, Cape Wind’s proposal for Nantucket Sound, has been bogged down for years while work proceeded on a multi-million-dollar environmental-impact statement.

The moratorium was announced by the CRMC last month in a legal advertisement. The agency did not issue any press releases on the subject. Public comments could be submitted only until March 2, and only one was submitted, signed jointly by two environmental groups.The agency will have a public hearing at 6 p.m. Tuesday at the Narragansett Bay Commission offices in Providence.

Spokeswoman Laura Ricketson said the agency doesn’t routinely issue press releases when it proposes changes in its regulations. “This is how we do things,” she said. “It is advertised.”

The Conservation Law Foundation and Environment Rhode Island support CRMC’s goal of developing a special management plan for the coastal waters, but they are concerned about the proposed moratorium. In a letter sent Monday to CRMC director Grover Fugate, they outlined three concerns:

•The agency has not given enough details about the proposed management plan.

•It is not clear how Fugate plans to spend $6 million he reportedly said is needed to install a data gathering tower and to develop the management plan.

•The agency has not specified exactly what tower, experimental projects or other data collection will be needed.

“A well-crafted approach to ocean planning might justify a one-year moratorium,” wrote CLF’s director, Cynthia Giles, and Environment Rhode Island’s advocate, Matt Auten. “However, no information has yet been provided that would yet support that conclusion.”

Ricketson said CRMC plans to develop the management plan with experts at the University of Rhode Island. She said it will be a long, complicated process. The goal, she said, is to develop “permit-ready” sites with state and federal partners.

“To develop an ocean special-area management plan in a year would be putting it on the fast track,” Ricketson said. “That would be a huge success.”

Should URI create the state’s zoning plan, the total cost is estimated at $6.5 million, said URI ocean engineering Prof. Malcolm Spaulding, who heads the project.

Spaulding supports developing an ocean zoning map that will determine which areas should be reserved for shipping and boating navigation routes, aquaculture, wildlife habitat and unobstructed ocean views. That would simplify the process and eliminate sites where alternative energy projects, such as wind farms, would not be appropriate, he said.

“It will regularize the system and give strong incentives for developers,” Spaulding said. “It takes some of the risk out.”

Spaulding said more information should be collected before Carcieri promotes these projects. No measurements of offshore wind potential, for example, have been systematically collected in Rhode Island, he said. Optimistic accounts of wind resources have been based on model predictions.

The lack of data, Spaulding said, should not discourage investors and wind energy proponents. But it means that banks will want about two years of observable data before backing any offshore wind projects.

Who will pay for developing the CRMC management plan is still not clear.

The governor wants private businesses to pick up some of the costs, and CRMC and URI are talking about handling the project alone, relying on public money.

So far, at least one company has offered to help pay. Allco has said he will fund the tower that would be set up to gather meteorological data.

“I think the state should let the private sector bear the costs, especially with the state budget problems that exist now,” Fischer said.

Spaulding cautioned against allowing private companies to gather the data, warning that they might not be willing to disclose the information to the state and competing investors or guarantee the validity of the findings.

Spaulding said having the state generate the plan is worth the cost because it will offer clear guidelines for all offshore energy projects, so environmental impact work would not have to be evaluated on a case-by-case basis. The alternative, he said, would force companies to repeat the same research, increasing the cost of the projects and slowing them considerably.

The Office of Energy Resources Commissioner, Andrew Dzykewicz, Carcieri’s energy advisor, did not return calls for comment yesterday.

“What happens with these things, they can easily get bogged down in controversy,” Spaulding said. “This approach will avoid the cost and long delays experienced by Cape Wind. This would revolutionize the way these things are done in coastal waters.”

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FRANK HARTZELL, Contributor to The Christian Science Monitor, March 4, 2008

Fort Bragg, Calif. – From roadless villages in Alaska to remote bends in the Mississippi River, developers are staking claim to thousands of miles of America’s oceans and rivers to test devices that use waves and currents to produce electric power.

Their experiments are launching a new industry that has the potential to supply up to 10 percent of America’s electric needs. But critics say rapid federal approval of the exclusive right to conduct these experiments amounts to a private seizure of communities’ waterfronts.

“This process, especially in Oregon, feels like a new Klondike gold rush,” says environmentalist Richard Charter, a longtime leader in ocean-protection efforts. “There are people filing claims, people jumping claims, and nobody looking at the big picture. The most amazing part of this power gold rush is that it seems to be happening entirely under the national radar.”

Many state and federal agencies, as well as surprised local communities, argue that the permitting process under the Federal Energy Regulatory Commission (FERC) is too rapid and prevents local input.

In Fort Bragg, Calif., Mayor Doug Hammerstrom was surprised last year to find that waters off his town had been claimed by a major utility with a preliminary permit application. The city filed legal motions to participate in the novel process.

“We fear that FERC, as a distant agency, may not consider local concerns,” says Mr. Hammerstrom.

The fast-emerging technology, known as hydrokinetics, is vital to US renewable-energy efforts, supporters say.

“Hydrokinetic technologies, with their great promise and potential to harness abundant supplies of renewable power … fit that bill,” says FERC Commissioner Philip Moeller. He points to Oregon as an example of state and federal collaboration, where Gov. Theodore Kulongoski (D), as well as state and federal lawmakers, have invited researchers, entrepreneurs, and developers into state waters.

As of Feb. 4, FERC had granted 47 permits for ocean, wave, and tidal projects and another 41 were pending. FERC had issued 40 river permits and 55 more were pending.

Experts expect the process to continue to accelerate. Developers are rushing into hydrokinetics because recent innovations in wireless technology and robotics have improved communication between the devices and the shore and narrowed the price gap with wind and solar power. Although it costs an estimated 20 cents to produce a kilowatt hour with hydrokinetics – still about three times too expensive to be commercially viable, more research could lower the price, supporters say. An Idaho study for the US Department of Energy has estimated that hydrokinetics could double the output of conventional dams by using rivers, currents, and waves at some 130,000 sites in all 50 states.

Congress and the Bush administration have not weighed in directly on the process, which has received major government funding all over Europe.

Fifty miles off Vero Beach, Fla., a developer seeks a claim on 1,050 square miles of the Atlantic Ocean to try to harness the Gulf Stream. Tides are already powering hydrokinetic turbines in New York City.

Most of the permits now being sought and issued are for river projects, some of them massive and virtually unknown to local communities, On Jan. 31, for example, FERC issued a preliminary permit for a 3,100-turbine project in the Mississippi River near Cape Girardeau, Mo. On Feb. 1, it granted 15 similar permits for projects on the Mississippi, each featuring more than 1,000 generators to be sunk into the muddy water.

That move provoked criticism from Janet Sternburg, policy coordinator at the Missouri Department of Conservation. “We are very concerned with the potential adverse environmental impacts from this technology on the natural resources of the Mississippi River,” she wrote in a letter to FERC, noting that the applications on file would affect more than 70 miles of the river.

FERC is mulling a plan by a Houston start-up to harness the Yukon River to deliver power to the Alaskan villages of Nulato and Galena, which are not connected by any road to the outside world, much less an electrical grid. While FERC insists it merely issues permits and does not make policy, critics portray the independent entity as more maverick than bureaucrat.

“FERC has a John Wayne self-image, in which it talks only to itself and not to the public it is supposed to serve,” says Elizabeth Mitchell, a retired National Oceanic and Atmospheric Administration attorney, who has taken a lead in challenging FERC’s proposed hydrokinetic energy procedures. “As a result, FERC often shoots from the hip to the detriment of the resources it is meant to protect.”

Some fellow federal and state regulators and experts are calling for FERC to create an entirely new permitting process.

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Finavera Renewables, Vancouver, Canada, February 15, 2008

Finavera AquaBuoyFinavera Renewables is pleased to announce it has been issued a Preliminary Permit for its proposed 100MW Humboldt County, California wave energy project. The permit approval was granted by the United States Federal Energy Regulatory Commission (“FERC”).

The preliminary permit is valid for a period of three years, and allows Finavera Renewables to conduct various studies, including analyses of oceanographic conditions, commercial and recreational activities, and other impacts potentially associated with the planned project. The company will rely on the studies and stakeholder consultations in framing its application to FERC for a project operating license.

Finavera CEO Jason Bak said, “We believe the Humboldt County project could become the United States’ first commercial wave energy installation. This Preliminary Permit from FERC is a significant milestone that allows us to move forward on advanced planning for the project, and we look forward to working closely with the local community to ensure a successful project. We believe this project will illustrate how our innovative technology can contribute to the new energy economy through the creation of renewable electricity, jobs and ultimately, shareholder value. We are excited to be leaders in responding to the world’s need for clean energy.”

This permit continues the progress the Company has made over the last several months on its ocean energy activities. The Company signed a long term power purchase agreement with Pacific Gas & Electric for a 2 MW project in California. As well, FERC issued the first ever operating license for a wave energy project in the United States to Finavera Renewables for the Makah Bay Wave Pilot Project in Washington State.

The proposed Humboldt County project would use interconnected clusters of the company’s AquaBuOY wave energy devices. The project would have a generating capacity of 100MW, and total annual generation from the project is estimated to be approximately 175 gigawatt-hours per year. This is the company’s second Preliminary Permit on the west coast of the United States. The Coos County wave project in Oregon was granted a permit from FERC in 2007. Also, the Company holds an Investigative Use Permit for a wave energy project in Ucluelet, British Columbia.

To view the approved preliminary permit, please visit: HERE

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ALYSSA MOIR, Marten Law Group, January 30, 2008

The Washington Department of Ecology (Ecology) took the unusual step this month of challenging a decision by the Federal Energy Regulatory Commission (FERC) to issue a license for a wave energy project on the grounds that FERC had approved the project prior to having received certification from the State of Washington that the project complies with state environmental laws. The project, to be constructed in the Pacific Ocean just off Washington’s coast, appeared to clear a major hurdle in December, 2007 when FERC granted its first-ever wave project license to Finavera Renewables, Inc. of Vancouver, British Columbia. Ecology is now requesting reconsideration of that decision.

Background

The Finavera project consists of four large wave buoys anchored three miles from shore that would produce one megawatt of electricity (enough to supply about 150 homes each year), transmitted to land by an undersea transmission line. The aquatic portion of the project is within Washington State waters, the federal Olympic Coast National Marine Sanctuary and the Washington State Flattery Rocks National Wildlife Refuge. The land portion of the project is within the Makah Indian Nation’s reservation.

Under the federal Clean Water Act (“CWA”) and the Coastal Zone Management Act (CZMA), any FERC licensing decision must incorporate Ecology’s certification that the project is consistent with state environmental regulations. Specifically, Section 401 of the CWA requires that applicants seeking a license from a federal agency such as FERC, for any activity that may result in a discharge into navigable waters, must first receive a Section 401 water quality certification from the state that the proposed discharge will meet the state’s water quality standards and other aquatic protection regulations. The state may impose conditions on the certification of a project to assure compliance with various provisions of the CWA and with “any other appropriate requirement of State law.” Such conditions become mandatory conditions of the federal license, and cover both the construction and the operation of the proposed project. The state has one year to complete its certification review.

Similarly, under the CZMA, a federal agency cannot issue a license for a project within or affecting a state’s coastal zone without a determination that the project is consistent with the state’s coastal zone management program (CZMP). In Washington, the CZMP covers the state’s 15 coastal counties as well as activities outside those counties that may impact coastal resources. Any federal project within the CZMP must comply with six state laws: The Shoreline Management Act, the State Environmental Policy Act (“SEPA”), the Clean Water Act, the Clean Air Act, the Energy Facility Site Evaluation Council and the Ocean Resources Management Act. In order to receive federal consistency certification for federal licenses, including FERC licenses, a project applicant must prepare a statement that the activity is consistent with the six laws and submit that statement directly to Ecology. Ecology then has six months to approve or deny the certification.

Because the aquatic portion of the Makah Bay project is, in part, within Washington State waters, Finavera filed a Joint Aquatic Resources Permit Application (JARPA) seeking water quality certification from Ecology, and a statement of consistency with the CZMA, seeking Ecology’s agreement. Because the land portion of the project is within the Makah Indian Nation’s reservation, Finavera also requested a Section 401 water quality certification from the Makah Indian Tribe, which was issued in June of 2007. The need for the Makah’s certification arises under the CWA, which authorizes the Environmental Protection Agency (“EPA”) to treat a qualified Indian tribe as a state for purposes of certain sections of the CWA, including Section 401. The Makah Indian Tribe received its “Treatment as State” authorization and adopted surface water quality standards in 2006, which include a process for Section 401 Certification.

Under an agreement between Finavera and Ecology, Ecology’s CZMA decision was stayed until it issued its Section 401 Certification decision, which is due in mid-February 2008. However, before Ecology reached a decision on whether to issue the requested certifications, FERC issued its license to Finavera on December 21, 2007.

FERC’s Fast-Tracked License for the Makah Bay Project

Depending on one’s perspective, obtaining state approval prior to federal licensing is either a clear and efficient process or a burdensome barrier to realizing the potential of new technologies. FERC’s traditional procedure has ensured compliance with state laws designed to protect a state’s water quality and shorelines, but has also resulted in delays in project developers’ non-construction activities, such as obtaining financing or power purchase agreements with utilities. Citing the benefits of hydrokinetic power and the quickly increasing number of hydrokinetic permit applications, FERC is now acting on its announced intent to accelerate the development of the new technology while also monitoring its environmental impacts and collecting information for future projects.

FERC’s commitment to this policy is evidenced by its December 20, 2007 decision to conditionally license the Makah Bay project. Released on November 30, 2007, FERC’s new policy applies to new hydrokinetic projects only, and involves issuing project licenses where FERC has completed processing an application but other authorizations, including state certifications, remain outstanding. The pilot licenses include conditions precluding the licensee from beginning construction until it has received all of the necessary authorizations. This is similar to pilot licenses that FERC has issued under the Natural Gas Act (NGA), which fast-tracked the construction of liquefied natural gas facilities. However, this is the first time that FERC has applied this policy to a hydropower project.

The license for the Makah Bay project grants Finavera a conditional five-year license for the proposed project, and includes measures for monitoring the effects of the project on marine and ocean resources, and a requirement to remove the project at the end of the license term. The license is conditioned on Finavera obtaining all additional federal and state permits before construction may begin. Finavera had already signed a purchase power agreement with PG&E just prior to FERC’s licensing decision. While it finalizes its Section 401 Certification and CZMA consistency certification with Ecology, Finavera is now able to move forward with the portions of the license that do not require construction, such as environmental plans. If any adverse environmental impacts arise, the pilot license contains a provision to shut down or remove the project.

Ecology’s Response

In its request for a rehearing, Ecology argues that FERC ignored Congress’ intent to reserve to the states the responsibility for certifying compliance with water quality standards and coastal management regulations. Ecology’s Director, Jay Manning, has said that although the agency “fully supports renewable energy projects in Washington, especially those designed to reduce or eliminate greenhouse gases and other climate-changing pollutants,” FERC “does not have the authority – by statute or Congressional intent – to set aside existing environmental laws designed to protect our state’s water quality and shorelines.” Gordon White, manager for Ecology’s Shorelands and Environmental Assistance program, said that the agency was set to make a 401 Certification decision for Finavera by mid-February, and was also on course in its determinations that the project was consistent with the state CZMA.

Ecology also disagrees with FERC’s assertion that because it has fast-tracked licenses under the NGA, similar procedures can be used to issue hydrokinetic licenses. Ecology argues that “the fact that the Commission, on more than one occasion, elected to issue licenses under the NGA in advance of compliance with Section 401 of the CWA does not indicate that such an approach is consistent with the legal requirements of Section 401. Nor does it lend support in this case where the Commission is issuing a license under the FPA [Federal Power Act].” The agency also takes FERC to task by arguing that “the mere fact that it may take the applicant some time to obtain a water quality certification does not provide [FERC] with the authority to ignore the clear terms of Section 401(a)(1).” Instead, Ecology proposes, FERC could issue draft licenses notifying developers of the conditions that it intends to impose, or simply issue a license the day after an applicant receives its water quality certification.

In broader terms, Ecology has expressed concern that FERC’s issuance of a temporary license has created uncertainty for other developers and regulators as to whether a project has FERC’s approval. Because FERC has indicated that issuance of a conditioned license will constitute a final agency action, subject to rehearing, developers believing that they can move forward with non-construction elements of a project may still face delays as state agencies request rehearings as a means to clarify FERC’s new policy. Further, Ecology notes that pilot licenses do not give developers assurance that their project will indeed meet all environmental regulations as required, potentially creating difficulties in developing environmental plans or obtaining reliable funding.

Practical Implications

Over a dozen in-water renewable energy projects, in California, Oregon, and Washington, are either in the process of obtaining state environmental permits, or about to begin this process. While FERC’s pilot license policy may facilitate moving renewable energy projects forward more quickly, project developers are now caught between FERC’s policy and the State’s argument that the developer must first demonstrate compliance with state environmental laws. The issue of whether the developer needs to acquire state permits prior to receiving its FERC license has been brought to the forefront by Ecology’s request for reconsideration of FERC’s decision, and both developers and regulators have a substantial stake in the outcome.

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December 2007: Compelling documents — Approved FERC Order and official announcements related to Makah Bay wave energy project being undertaken by Finavera. -LKBlog

Thanks for Tom Schlosser at Morisett Schlosser for these docs: Here is the FERC announcement and the statements of commissioners Spitzer and Kelliher.

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STEVEN JONES, Marten Law Group, December 12, 2007

The Federal Energy Regulatory Commission (FERC) recently announced a new policy to promote “hydrokinetic” electricity generation projects — projects which produce electrical power from currents, waves and tides. Under the new policy, hydrokinetic projects may be granted conditional licenses from FERC prior to obtaining other necessary environmental permits. These “conditioned licenses” are expected to facilitate financing for wave and tidal energy projects. The new licensing process is a departure from FERC’s traditional process for hydropower projects, which mandated that approvals under the Clean Water Act, the Endangered Species Act and the Coastal Zone Management Act be obtained before FERC commenced its permit review. Notwithstanding this change in the order of review, construction on hydrokinetic projects cannot commence until all necessary environmental permits have been issued. FERC has already been using a similar system for natural gas pipelines and liquefied natural gas facilities.

The new policy is one of several steps FERC is taking to encourage the development of hydrokinetic projects. On February 15, 2007, FERC issued an interim statement of policy proposing to implement a “strict scrutiny” test in analyzing hydrokinetic preliminary permit applications to prevent site banking and to promote competition. In addition, FERC staff has issued a “White Paper” proposing a pilot program that would expedite the licensing process for hydrokinetic projects that could be completed in as few as six months. The pilot program would be available only for proposed kinetic projects that are small (five megawatts or less), are removable or able to be shut down quickly, are not located in sensitive areas, and are for the purpose of testing new technologies or locating appropriate sites.

Background of FERC’s New Policy

In recent years, there has been significant growth in efforts to test and develop projects that harness water resources to produce electric power. According to FERC, if fully developed, hydrokinetic projects could double the amount of hydropower production in the United States, bringing it from just under 10 percent to close to 20 percent of the national electric energy supply.

FERC’s traditional hydropower licensing procedure requires applicants to obtain necessary environmental permits prior to receiving a license from FERC. In such cases, FERC typically would not provide official authorization to begin pre-construction activities, let alone construction, until an applicant obtained these authorizations. This process often resulted in substantial delays in a developer’s commencement of non-construction activities. This permitting regime frequently had an adverse impact on a developer’s ability to move forward with construction since FERC would not commence its review and development of final license terms until after it had received the necessary authorizations from relevant state and federal agencies.

FERC has taken a different approach with respect to authorizations issued under the Natural Gas Act. In those cases, FERC has issued pipeline certificates and authorizations to construct liquefied natural gas facilities while action by other entities was still pending, though these authorizations were conditioned on the applicant obtaining the remaining authorizations before construction of any new pipeline could be commenced.

FERC’s Policy Statement

On November 30, 2007, FERC announced that it will take this same approach with respect to hydrokinetic projects. FERC summarized its new policy as follows:

[F]or new hydrokinetic projects only, [FERC] will … issue project licenses where the [FERC] has completed processing an application but other authorizations remain outstanding. In such cases, the license will include conditions precluding the licensee from commencing construction until it has obtained all necessary authorizations.

As its basis for issuing the policy, FERC stated its interest in “establishing a regulatory climate that supports the development of innovative hydropower projects that use the forces of currents, waves, and tides . . . . The goal of this action is to shorten the regulatory process and speed the development of meritorious hydrokinetic projects.”

FERC also provided several “policy reasons” for following “the gas pipeline practice rather than the conventional hydropower practice” in the context of hydrokinetic projects. These include:

  • There will be no new environmental impact from the new policy, since licensees will not be able to commence construction until all necessary additional authorizations have been obtained, filed with FERC, and incorporated into the FERC license.
  • The authority of state or federal agencies will not be diminished.
  • FERC’s increased ability to respond quickly to innovative project proposals should help encourage relevant state and federal agencies to do the same.
  • The prompt issuance of a conditioned license will facilitate project proponent’s securing financing and completing other non-construction elements of a project.

Finally, FERC noted that issuance of a conditioned license will constitute a final agency action, subject to rehearing. Accordingly, once finalized, the terms of a conditioned license will be binding on licensees.

Practical Considerations

Proponents of hydrokinetic energy hope this new FERC policy will further invigorate what is becoming a burgeoning electrical energy development industry. Hydrokinetic pilot projects are already underway in various parts of the United States, particularly along the northwestern coast. By streamlining what used to be a time-consuming licensing process, FERC’s new policy should facilitate moving projects out of the feasibility stages and into the formal, long-term licensing process, as well as generally encourage further hydrokinetic development. Increasing the number of wave and tidal energy projects obtaining licenses should also enhance competition in the industry. In addition to providing some certainty which should aid in financing, FERC’s new policy will allow applicants to commence “non-construction” activity upon the issuance of a conditional license, which previously would have had to await final license approval by FERC at the conclusion of the process.

Receiving a conditioned license, however, does not mean that a licensee does not have to satisfy FERC requirements ordinarily imposed in hydropower licenses. Accordingly, recipients of conditioned licenses need to be aware of their obligations to comply with all (non-construction) license terms contained in their authorizations while awaiting pending permits from other agencies. Such terms could include requirements to conduct stakeholder consultation and to develop certain pre-construction plans. Furthermore, as noted above, while the new policy allows FERC to proceed with issuance of conditioned licenses prior to an applicant obtaining other environmental authorizations, it does not alleviate the necessity of obtaining those permits prior to the commencement of construction.

In light of FERC’s new policy directive, utilities and other entities considering developing a wave or tidal energy project should evaluate whether this new policy provides incentive to enter into the FERC licensing process sooner than originally anticipated. In addition, those who have already filed applications should contact FERC to assure that their applications are being processed in a way that is consistent with this newly-announced policy.

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