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The Comprehensive Environmental Response, Compensation, and Liability Act also known as Superfund obligates owners of sites contaminated with hazardous
waste to perform or pay for a proper clean-up of these sites. Two Rhode Island dams are on or near Superfund sites.
The Coastal Zone Management Act requires federally licensed and permitted activities to be consistent wi
th a state’s Coastal Zone Management Program. In Rhode Island, FERC must consult with the Coastal Resources Management
Council when evaluating hydropower proposals. The National Historic Preservation Act NHPA established the National Register
of Historic Places, a list of districts, sites, buildings, structures, and objects significant in American history. Section 106 requires federal permitting agencies
to evaluate the impacts of proposed projects on eligible and listed historic places by consulting with the relevant State Historic Preservation Officer SHPO.
Several Federal incentives may be available to support hydropower projects on existing dams in Rhode Island. These include the Federal Hydropower Production
Incentive and Federal loans for Small Hydroelectric Power Projects.
4.1.1 Federal Power Act 16 U.S.C. § 12
The Federal Power Act is the federal legislation that establishes permitting procedures for hydroelectric facilities on navigable rivers. Originally enacted as the Federal Water Power Act in
1920, the Federal Power Act FPA has been amended many times since. Prior to enactment of the FPA, individual states had jurisdiction over hydroelectric projects on rivers, despite the fact
that the federal government had authority over navigable waters and a duty to maintain their navigability. The FPA resolved this tension by creating the Federal Power Commission now the
Federal Energy Regulatory Commission, or FERC as a federal licensing entity with authority over hydroelectric projects.
As specified in the FPA, FERC has licensing authority over all hydroelectric projects located in navigable waters, on federal lands, or connected to the interstate electrical grid. When
making licensing decisions about a proposed hydropower plan, FERC is required to give equal consideration to: power development; energy conservation; protection, mitigation of damage to,
and enhancement of, fish and wildlife including spawning grounds and habitat; protection of recreational opportunities, and preservation of other aspects of environmental quality 16 U.S.C.
797f. FERC may give approval to a hydroelectric facility by granting an exemption or by
issuing a license. Exemptions are available for two types of hydropower projects: conduit hydropower projects and projects that produce less than 5 MW. Conduit projects are those that
generate electricity by placing turbines within a pipeline, aqueduct, or other manmade water conduit. Projects qualifying for the conduit exemption must not be located on federal lands and
may produce up to 15 MW 18 C.F.R. 4.31b 2 2011. Projects qualifying for the 5 MW
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exemption must be sited on non-federal dams built before 1977 or on natural water features Handbook for Hydroelectric, 2004.
To obtain a FERC hydropower license, prospective hydropower project owners must follow a two-step process. First, they must obtain a preliminary permit, which is valid for three
years and reserves a project site for a prospective project owner while all necessary studies are completed. Second, the
y must apply for an “original,” or first-time, FERC license. An original FERC license covers the construction, operating, and maintenance activities of a hydropower
project, and is valid for fifty years from the date of issuance. To obtain an original license, an application may follow one of three procedures: the Integrated Licensing Process ILP, the
Traditional Licensing Process TLP, or the Alternative Licensing Process ALP. The ILP is FERC’s default licensing process; the TLP and the ALP require FERC’s approval and are
applicable only under certain circumstances.
Through its licensing process, FERC assures that approved projects are “best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit
of interstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife
including related spawning grounds and habitat, and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes 16 U.S.C. 803.”
FERC licenses include conditions applicable to protection, mitigation, and enhancement of fish
and wildlife affected by projects. Such conditions are based on recommendations issued by the National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish
and wildlife agencies pursuant to the Fish and Wildlife Coordination Act 16 U.S.C. 661 et seq. . FERC is obligated to grant preference to applications by States or municipalities when issuing
licenses 16 U.S.C. 800. Applicants seeking an original license begin the licensing process by filing a Notice of
Intent to File a License NOI to declare an interest in generating hydroelectric power at a proposed site and a Pre-Application Document PAD that catalogs existing information about a
proposed project and its surroundings. A PAD serves as the basis for determining what additional information is needed to support a license application, and must contain information
on: adverse impacts associated with the construction, operation or maintenance of a proposed hydropower project; geological and soil characteristics of the site; water resources at the site; fish
and aquatic resources in the project vicinity, including any essential fish habitat as defined under the Magnuson-Stevens Fishery Conservation and Management Act; wildlife and botanical
resources in the project vicinity; floodplain, wetlands, riparian, and littoral habitats in the project vicinity; rare, threatened and endangered, candidate, or special status species that may be present
in the project vicinity, as listed by the Endangered Species Act, and their habitats; existing recreational and land uses and opportunities within the project boundary; visual and aesthetic
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characteristics of the lands and waters affected by the project; known cultural or historical resources present at the proposed project site and in the surrounding area; socio-economic
conditions in the vicinity of the project, such as general land use patterns, population patterns, and sources of employment in the project vicinity; and Indian tribes, tribal lands, and interests
that may be affected by the project 18 CFR 5.6. The PAD must be submitted not only to FERC but to any state agency with responsibility
for managing fish, wildlife, and botanical resources, water quality, coastal zone management plan consistency certification, shoreline management, and water resources; the U.S. Fish and
Wildlife Service; the National Marine Fisheries Service; Environmental Protection Agency; State Historic Preservation Officer; Tribal Historic Preservation Officer; National Park Service; local,
state, and regional recreation agencies and planning commissions; local and state zoning agencies; and any other state or Federal agency or Indian tribe with managerial authority over
any part of project lands and waters 18 CFR 5.1d. By establishing contact with these agencies, the applicant can more readily identify information useful for further characterizing the site and
anticipating any impacts of the proposed project. Agencies and the public have 60 days to comment on a proposed project’s PAD.
Once an NOI and PAD have been filed, the application goes through a Pre-Filing Process, which lasts until the filing of the actual license application. During the pre-filing stage,
FERC conducts a scoping process and a site visit. Scoping includes seeking input from the public, nongovernmental organizations, Indian tribes, and local, state, and federal resource
agencies on potential environmental impacts related to the proposed project as well as additional studies that are needed to better understand these issues. Agencies and the public have 60 days to
comment on the FERC scoping document. FERC then works with the applicant and stakeholders to plan a study that will
characterize potential effects of the proposed project on environmental, cultural, and recreational resources. A 90-day comment period following submission of the proposed study plan gives the
public and relevant agencies an opportunity to recommend additional areas of study to make sure that all potential impacts have been taken into account. The pre-application study, which may
take between one and two years to complete, gives the applicant the necessary information to submit a formal license application.
A formal license application must contain a description of the project, along with a statement of environmental information pertinent to the project, called Exhibit E. The application
must contain: a description of the river basin where the project is to take place; a list of resources anticipated to experience cumulative effects from a proposed project; a request for a water
quality certification WQC, as required by Section 401 of the Clean Water Act; a description of the process used to address project effects on Federally listed or proposed endangered or
threatened species in the project vicinity in compliance with the Endangered Species Act; a
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document from the National Marine Fisheries Service NMFS andor the appropriate Regional Fishery Management Council describing any essential fish habitat EFH that may be affected by
the project in compliance with the Magnuson-Stevens Fishery Conservation and Management Act; a certification that the project is consistent with the state Coastal Zone Management
Program, if the project is located within a coastal zone; anticipated adverse effects on historic properties and a Historic Properties Management Plan HPMP to avoid or mitigate any such
effects developed through consultation with the Advisory Council, the State Historic Preservation Officer, Tribal Historic Preservation Officer, National Park Service, members of the
public, and affected Indian tribes, where applicable; areas within or in the vicinity of the proposed project boundary that are included in the National Wild and Scenic Rivers System or as
wilderness area under the Wilderness Act; all of the information presented in the PAD; and a discussion of environmental effects and unavoidable impacts of the proposed project, and
proposed mitigation measures. FERC then issues a public notice announcing that the application is ready for
environmental analysis and requesting comments, protests, and interventions. This “ready for
environmental analysis” statement is followed by a 60-day comment period. FERC subsequently judges whether the proposal requires an Environmental Assessment or a more detailed
Environmental Impact Statement, as described in NEPA. The public comment period for an Environmental Assessment lasts 30 or 45 days, as specified in the notice accompanying issuance
of the environmental assessment. For an Environmental Impact Statement, this period lasts 30 or 60 days.
As part of an environmental assessment or impact statement, FERC evaluates the comments of fish and wildlife agencies made pursuant to Federal Power Act Section 10j.
Section 10j requires that projects include conditions for protection, mitigation, and enhancement of fish and wildlife including related spawning grounds and habitat affected by
the development, operation, and management of the project. These conditions are based on recommendations received pursuant to the Fish and Wildlife Coordination Act 16 U.S.C. 661 et
seq. from the National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies.
When FERC awards a license, it specifies a set of environmental conditions, engineering conditions, and administrative compliance conditions that must be met throughout the life of the
project. FERC’s Division of Hydropower Administration and Compliance DHAC monitors activities at licensed hydropower sites during construction and operation to assure compliance
with the conditions laid out in the license. Part 12 of the Federal Power Act pertains to Safety of Water Power Projects and Project Works. Under this section, project owners are required to
submit regular Dam Safety Surveillance and Monitoring Reports as outlined in a Dam Safety
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Surveillance and Monitoring Plan Outlines DSSMP that FERC develops for each licensed project.
4.1.2 Rivers and Harbors Act 33 U.S.C. § 403
