Alaska Hydropower Permitting Process (AK)
The steps of the Alaska hydropower permitting process are summarized in the chart below. Roll over each section for a summary of the regulations and permits it covers. Click a section to learn more about the required permits and regulations related to that topic.
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Environmental Review On Site Evaluation Cultural Resources Biological Resources Pre-Existing Land Use Water Quality Air Quality Geological Resources Aesthetic & Recreational Resources
Hydropower Development in Alaska
In 2015, Alaska produced approximately 1,569 thousand megawatt hours (MWh) of utility-scale hydroelectric energy. Table 3.14 – Net Generation From Hydroelectric (Conventional) Power By State By Sector. Currently, Alaska has 30 hydroelectric facilities producing approximately 25 percent of the electricity generated in the state. U.S. Energy Information Administration - Annual Electric Generator Data, Form EIA-860 Detailed Data Generator Data (Operable Units Only); Table 3.14 – Utility Scale Net Generation From Hydroelectric (Conventional) Power By State By Sector; Table 3.7 – Utility Scale Facility Net Generation By State By Sector. The U.S. Department of Energy (DOE) has identified an additional 4,723 MW of potential at new stream-reaches in Alaska. Department of Energy, New Stream-reach Development: A Comprehensive Assessment of Hydropower Energy Potential in the United States.
Hydroelectric facilities in Alaska include run-of-river, dam, and pumped storage facilities. Public and private utilities, electric co-ops, companies and individuals own hydroelectric generation facilities distributed throughout the state. Many of the hydroelectric facilities are located in southeast Alaska and the Aleutian Islands. Alaska Energy Authority – Hydroelectric Power Webpage. In 2014, the Department of Energy estimated 4,723 MW of new hydroelectric resource potential at undeveloped sites in Alaska.
Alaska state agencies play a role in a number of federal permitting and review processes for hydropower development. The Alaska Department of Environmental Conservation reviews and issues Section 401 Water Quality Certifications (33 U.S.C. § 1251 et seq.) and permits for stormwater discharges (33 U.S.C. § 1342) pursuant to the Clean Water Act. In addition, Sections 10(j) and 30(c) of the Federal Power Act requires FERC to consult with state agencies responsible for the oversight and protection of fish, wildlife, and botanical resources. 16 USC 803(j); 16 USC 823a(c). In Alaska, the Alaska Department of Fish and Game (ADF&G) oversees the protection of fish, wildlife, and botanical resources. Based upon review of the hydropower project and analysis of any study results, the ADF&G develops Section 10(j) recommendations for FERC-licensed projects. 16 USC 803(j). The FPA also authorizes ADF&G to issue mandatory terms and conditions for hydropower projects that are exempt from FERC licensing under Section 30(c). 16 USC 823a(c). A developer may also need to obtain a number of permits from ADF&G if the project will affect fish passage, anadromous streams or if the project is located in a special area. Anadromous Fish Act; Fish Passage Act; AS 16.20.020.
Alaska agencies and local commissions work together to regulate state lands, coastal zones, state highway access, and water access and water rights. The Alaska Department of Natural Resources has the primary responsibility to regulate development through land use plans in accordance with statewide goals and policies. Alaska Statutes: Title 38; Alaska Administrative Code Chapter 55 Land Planning and Classification. The Alaska Division of Mining Land and Water (DMLW) requires a developer to obtain an easement, permit or right-of-way to access state-owned lands. AS 38.05.850. The Alaska Department of Transportation and Public Facilities works with local governments to regulate state highway encroachments. [[[Alaska Administrative Code - Title 17, Chapter 10 - Encroachments, Driveways and Road Permits]]; Title 19 Alaska Statutes Chapter 5 - Administration.
In Alaska, the system of prior appropriation governs surface and groundwater. A developer must obtain a water right from DMLW to divert, impound, or use a significant quantity of surface or groundwater. The developer must also put the water to beneficial use. Alaska Water Use Act.
In Alaska, public utilities may need to obtain a Certificate of Public Convenience and Necessity from the Regulatory Commission of Alaska before commencing with utility operations and receiving compensation for providing services to customers. Utility operations include transmission projects. Alaska Public Utilities Regulatory Act, AS 42.05; Alaska Administrative Code, Title 03, Chapter 48.
Developing Qualifying Conduit Hydropower Facilities in Alaska
A qualifying conduit hydropower facility does not require a license or exemption from the Federal Energy Regulatory Commission (FERC). To qualify as a qualifying conduit hydropower facility, the project must meet the following provisions:
- A conduit is any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption, and is not primarily for the generation of electricity;
- The facility generates electric power using only the hydroelectric potential of a non-federally owned conduit;
- The facility has as installed capacity that does not exceed 5 MW; and
- The facility was not licensed or exempted from licensing by FERC on or before August 9, 2013.
The developer may still need to obtain federal, state, or local permits or authorizations in order to develop a qualifying conduit hydropower project in Colorado. It is possible that the developer could meet the regulatory requirements for a qualifying conduit hydropower project within as little as (60) sixty days.
Federal Notice of Intent to Construct a Qualifying Conduit Hydropower Facility
To initiate the process for a qualifying conduit hydropower facility, the developer must first file a Notice of Intent to Construct a Qualifying Conduit Hydropower Facility with FERC.
Federal Land Use Plan
The developer should evaluate preliminary site considerations and federal land use restrictions for the project location early on in the planning process.
The developer may need to obtain a right-of-way or special use authorization from the appropriate federal land management agency to develop or access transmission lines over federal lands.
Federal Environmental Review
A qualifying conduit hydropower facility is categorically exempt from preparing an environmental document under the federal National Environmental Policy Act and, therefore, is not subject to environmental review by FERC. Since qualifying conduit hydropower facilities are not subject to the FERC licensing or exemption process, qualifying projects are not subject conditions and recommendations issued by the U.S. Fish and Wildlife Service or NOAA Fisheries under the Federal Power Act (FPA).
Federal Qualifying Facility Certification
The developer may apply for Certification as a Qualifying Facility under the Public Utility Regulatory Policies Act of 1978 (PURPA), which may enable the developer to sell energy to public utilities at the “avoided cost” rate.
State Land Use Plan
The developer should evaluate preliminary site considerations and state land use restrictions for the project location early on in the planning process.
The developer may need to obtain a right-of-way from the appropriate state agency in order to develop or access the qualifying conduit hydropower facility or transmission lines across state lands. The developer may also need to obtain a property right from an individual land owner if the project or associated transmission lines are located on privately-owned land.
State Water Rights and Authorizations
The developer may need to obtain a non-consumptive use water right to use surface water from the Alaska Division of Mining Land and Water. A developer does not need to obtain a Section 401 Water Quality Certification for a qualifying conduit hydropower project.
State Environmental Review
In Alaska, a qualifying conduit project is not subject to a state environmental review process.
State Facility Authorizations
The developer may need to obtain a Certificate of Public Convenience and Necessity from the Regulatory Commission of Alaska for transmission line projects or to receive compensation for providing services to customers.
State Transmission Authorizations
The developer may need to obtain a Certificate of Public Convenience and Necessity from the Regulatory Commission of Alaska for transmission line projects.
The developer may need to obtain a State Highway Right-of-Way Permit from the Alaska Department of Transportation and Public Facilities prior to performing any work within a State Highway right-of-way.
Federal Regulations and Permits for Hydropower Development
The federal government, through the Bureau of Reclamation and the U.S. Army Corps of Engineers (USACE), operates 133 hydroelectric power plants—representing 8% of the country’s hydroelectric facilities. The private sector, public utilities, and state or local government operate the other 92% of U.S. hydroelectric facilities.
The Federal Energy Regulatory Commission regulates most non-federal hydropower projects. FERC has the authority to issue licenses to construct, operate, and maintain non-federal hydropower projects, pursuant to the Federal Power Act (16 U.S.C. 791 et seq.). Although developers of hydropower facilities located on non-federally owned conduits with installed capacities up to 5 MW are not required to be licensed or exempted by FERC, they must obtain an authorization from FERC to construct a Qualifying Conduit Facility. Small conduit hydroelectric facilities up to 40 MW (16 USC § 823a(b)) and small hydroelectric projects of 10 MW or less (16 USC § 2705) are eligible for an exemption from the FERC licensing process.
All developers may apply for a FERC license using the default Integrated Licensing Process (ILP) and under appropriate circumstances may apply for and receive authorization from FERC to use the Traditional Licensing Process (TLP) or the Alternative Licensing Process (ALP). The three licensing processes differ mainly in how they coordinate the applicant’s (developer’s) pre-filing activities (i.e., before filing the license application), especially the study plan development, National Environmental Policy Act (NEPA) review, and other federal and state agency processes. The goal of each licensing process is to develop a complete record of information to support FERC’s licensing decision, which must take into account protection, mitigation, and enhancement of cultural, fish, and wildlife resources.
The Federal Power Act (FPA) specifies extensive federal and state agency participation in the licensing process. When making a licensing decision, FERC considers the outcome of the consultation process mandated by Section 7 of the Endangered Species Act and project reviews required under Section 106 of the National Historic Preservation Act and the National Environmental Policy Act. The FPA requires license applications to contain a 401 Water Quality Certification. 18 CFR §4.34(b)(5). FERC also considers a number of other environmental, cultural, biological, water quality, land, geological, recreational, and aesthetic impacts of a hydropower project in making a licensing decision.
Federal agencies or Indian tribes have mandatory or optional authority to issue conditions and/or recommendations for the FERC license regarding developmental and non-developmental values and comprehensive plans to protect and mitigate damages to fish and wildlife resources:
- Section 4(e) of the FPA authorizes federal land managers to impose mandatory conditions on a FERC license for hydropower projects located on federal reservations.
- Section 10(a) of the FPA requires FERC to consider a project’s consistency with the federal and state comprehensive plans for improving, developing, or conserving a waterway. Whereas 4(e) conditions are mandatory, license conditions submitted under 10(a) are not mandatory, but recommendations.
- Section 18 of the FPA authorizes the U.S. Fish and Wildlife Service and NOAA Fisheries to prescribe fishway passage requirements.
- Sections 10(j) and 30(c) of the FPA require FERC to consult with state agencies, the U.S. Fish and Wildlife Service, and the National Oceanic Atmospheric Administration (NOAA Fisheries) who are responsible for the oversight and protection of fish, wildlife, and botanical resources. Based upon their review of the hydropower project and analysis of any study results, the agencies develop Section 10(j) recommendations for FERC-licensed projects. 16 USC 803(j). The FPA also authorizes the state and federal fish and wildlife agencies to issue mandatory terms and conditions for hydropower projects that are exempt from FERC licensing under Section 30(c). 16 USC 823a(c).
Role of other Federal Agencies
The U.S. Army Corps of Engineers (USACE), the Bureau of Reclamation (BOR), the Department of Defense (DOD), and federal land management agencies may require additional review and licensing processes for hydropower development. Under Section 404 of the Clean Water Act, USACE must authorize any discharge of dredge or fill material into waters of the U.S., including wetlands. Any proposed project that will affect navigable waters of the United States must obtain authorization from USACE under Section 10 of the Rivers and Harbors Act (33 USC 403). In addition, any proposed project that will alter or utilize a USACE structure must obtain authorization from USACE under Section 14 of the Rivers and Harbors Act (33 USC 408). All non-federal hydropower projects sited on BOR conduits and BOR dams authorized for federal power development, and not requiring a FERC license, require a BOR Lease of Power Privilege. 1992 Memorandum of Understanding between the Federal Energy Regulatory Commission and the Department of Interior, Bureau of Reclamation; (Section 9(c) of the Reclamation Project Act of 1939 (RPA, Section 9(c)) as amended by the Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act of 2013). All other sites (i.e., BOR dams not authorized for federal power development) require a FERC License/Exemption. In addition, before developing a hydropower project on federal land or a project that utilizes a federal resource, a right-of-way or use authorization may be required. Depending on location of the project, the relevant land management agency may be the BOR, the United States Forest Service, the DOD, the Bureau of Land Management or the National Park Service.