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addressing 141 causes of water pollution on 86 waterbodies RIDEM 2011. The water quality activities of RIDEM are discussed in further detail in Section 0 of this report.
Section 401 of the CWA requires applicants seeking federal licenses for activities on water bodies to obtain certificates stating that discharges from the proposed activities will not
violate provisions of the Clean Water Act. Section 401 Certifications are issued by states; in Rhode Island, RIDEM is the agency responsible for approving Section 401 Certifications. States
have successfully used Section 401 to make hydropower dam owners comply with water flow, antidegradation, water quality, and fish passage requirements that the state deems necessary to
achieve water quality and habitat goals Baer 2007. Section 404 of the CWA, overseen by the USACE, regulates the discharge of dredged
and fill material into waters of the United States, including wetlands. A hydroelectric developer will likely need to obtain a CWA permit to modify an existing dam if the project involves adding
dredged or fill material to the river to make modifications necessary to produce hydroelectricity. Authority for implementing Section 404 is shared by the EPA and the USACE. USACE issues
individual permit decisions and jurisdictional determinations; develops policy and guidance; and enforces Section 404 provisions, while EPA develops and interprets environmental criteria used
in evaluating permit applications, enforces Section 404 provisions, and has authority to veto USACE permit decisions.
4.1.8 Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund 42 U.S.C. §§ 9601 et seq.
The Superfund Act of 1980 was enacted to create a mechanism obliging owners of sites contaminated with hazardous waste to perform or pay for a proper clean-up of these sites.
CERCLA may come into play during the renovation of existing dams for hydropower if these dams are located in or near a Superfund site. CERCLA operates through a fund designated for
use by the Environmental Protection Agency EPA to use for clean up of hazardous wastes sites. After EPA has cleaned up a site, CERCLA enables the EPA to sue the parties responsible for the
hazardous waste on the site for recuperation of the costs of cleaning it up. The Centredale Superfund Site, located on the Woonasquatucket River at Allendale Mill Pond and Lyman Mill
Pond, contains dioxin, PCBs, volatile organic compounds, and metals in sediments, wetlands and surface waters. A clean-up of this site is currently underway. The PetersonPuritan Superfund
Site, located on the Blackstone River, includes the Pratt Dam, which is currently non-operational and is not impounding water; any effort to restore such a dam for hydropower would have to
consider the effects of refilling the impoundment, and the legal responsibility for clean-up of such a site CLF 2010.
4.1.9 Coastal Zone Management Act 16 U.S.C. § 1451 et seq.
The Coastal Zone Management Act CZMA of 1972 enables states to develop federally approved Coastal Zone Management Plans to “preserve, protect, develop, and where possible,
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restore or enhance, the resources of the Nations coastal zone for this and succeeding generations”. Section 307c3 of the CZMA requires that all federally licensed and permitted
activities be consistent with a state’s Coastal Zone Management Program. FERC licenses are among the many federal actions that must be consistent with a state’s Coastal Zone Management
Program. The FPA requires FERC to consult with the relevant state CZMA agency when
evaluating a hydropower proposal. In Rhode Island, this agency is the Coastal Resources Management Council. The CRMC’s jurisdiction extends 200 feet inland of any coastal feature,
and includes all power-generating activities in the state with a capacity of greater than 40MW
Coastal Resources Management Program Sec. 320A. Thus, all hydropower proposals in Rhode Island must be found consistent with the state’s Coastal Zone Management Program.
More information on required approvals by the CRMC can be found in Section 4.2.7 of this
report.
4.1.10 National Historic Preservation Act 16 U.S.C. § 470
The National Historic Preservation Act NHPA was enacted in 1966 to assure that “the
historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people
16 U.S.C. 479b2.” The NHPA’s central accomplishment was the establishment of a National Register of Historic Places that lists “districts, sites, buildings, structures, and objects significant
in American history, architecture, archaeology, engineering, and culture 16 U.S.C. 470aa
.” In addition, NHPA provides for the establishment of a State Historic Preservation Officer
SHPO in each state. The role of a SHPO is to implement a State Historic Preservation Program, nominate eligible properties to the National Register, administer federal assistance for historic
preservation within the state, and to cooperate with federal agencies, local governments, organizations, and individuals to ensure that historic properties are taken into consideration at all
levels of planning and development. At the time of this writing, Rhode Island’s SHPO is Edward Sanderson at the Rhode Island Historic Preservation Heritage Commission NCSHPO 2012.
The RI Historic Preservation Act R.I. Gen. Laws 42-45 et seq. is the state authority under which the Rhode Island Historical Preservation and Heritage Commission administers its
programs including the review of state undertakings. The 1992 Amendments to the NHPA enabled tribal representatives to take on the role of a SHPO for their respective tribes by
designating a Tribal Historic Preservation Officer THPO; Section 101d2. At the time of this writing, the THPO Narragansett Indian Tribal Historic Preservation Officer NITHPO is John
Brown NATHPO 2012. Section 106 of the NHPA requires federal agencies such as FERC to evaluate the impacts
to eligible and listed historic places of the projects “undertakings” that they conduct, fund, or
approve. Section 106 also requires federal agencies to consult with the Advisory Council on Historic Preservation, a 23-member council made up of members of the public and private
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sectors, also established by the NHPA. The Advisory Council’s implementing regulations, “Protection of Historic Properties” 36 CFR Part 800, lay out the complete Section 106 process.
To begin the Section 106 process, the lead federal agency responsible for the undertaking must first identify all parties to a consultation
– relevant SHPO and THPO, local governments, the public, and additional parties with a special interest in the undertaking in question. Next, the
lead agency identifies the Area of Potential Effect APE affected by the proposed undertaking, and gathers information from consulting parties, other experts, and written sources to identify
historic properties in the APE. If the lead agency finds that there are historic sites in the APE, it assesses the anticipated effects of the proposed undertaking on these properties to determine
whether any of these effects are adverse. An adverse effect is one that “may alter, directly or
indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the propertys location,
desi gn, setting, materials, workmanship, feeling, or association 36 CFR Part 800.5.” If the lead
agency issues a finding of no adverse effect, it must give consulting parties 30 days to review the finding and contest it if they choose. If the lead agency finds that an undertaking may cause
adverse effects to historical properties, it engages consulting parties to develop alternatives or modifications to the proposed undertaking that could avoid, minimize, or mitigate these effects.
Following the consultation, the lead agency commits to a memorandum of agreement with SHPOTHPO.
FERC and the Advisory Council on Historic Preservation developed a set of “Guidelines for the Development of Historic Properties Management Plans for FERC Hydroelectric Projects
FERC an d Advisory Council on Historic Preservation 2002.” These guidelines encourage
hydropower license applicants to submit a Historic Properties Management Plan HPMP prior to, or along with, their FERC license application. An HPMP considers and plans to manage the
effects on historic properties of activities associated with construction, operation, and maintenance of hydropower projects. A complete HPMP should identify the nature and
significance of historic properties that may be affected by a project, any proposed improvements to project, goals for the preservation of historic properties, and plans for public access
http:www.ferc.govindustrieshydropowergen-infoguidelineshpmp.pdf . According to the
Council’s regulations, license applicants should consult with the relevant SHPO, THPO, and Indian tribes when developing their HPMPs, and should include in their HPMPs procedures for
consulting with these entities throughout the life cycle of the project.
4.1.11 Federal Hydropower Incentives
