Depending on the project type, scale, and location, a number of federal agencies may be involved in authorizing hydrokinetic development activities. As noted previously, the Federal Energy Regulatory Commission (FERC) has jurisdiction over hydrokinetic projects in state waters and on the OCS. Hydrokinetic facilities that produce, transmit and sell electric power require a Federal Hydroelectric License. In addition to a Hydroelectric License from FERC, hydrokinetic projects located wholly or partially on the OCS also require authorization from the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEM). Depending on the scale and type of activity, BOEM may authorize hydrokinetic activities on the OCS with a Hydrokinetic Lease or Project Easement.
Authorization from the U.S. Army Corps of Engineers (COE) is almost always required for hydrokinetic projects, regardless of whether or not the project requires authorization from FERC or BOEM. Any structure placed in navigable waters must be authorized by the COE with a Rivers and Harbors Act § 10 Permit.[1] Also, a Clean Water Act (CWA) § 404 Permit from the COE is required for dredging associated with installing hydrokinetic facility components, such as subsea transmission cables and device anchors. In addition, all obstructions to navigable waters must be marked to navigation aids, so hydrokinetic facilities will need a Private Aid to Navigation (PATON) Permit from the U.S. Coast Guard (USCG).
Comprehensive analysis and review are required before a license from FERC, a lease from BOEM, and/or a permit from the COE may be issued. In reviewing license and permit applications, federal action agencies like FERC, COE and BOEM must perform a National Environmental Policy Act (NEPA) analysis of the proposed project. A NEPA analysis is a comprehensive review process designed to assess the environmental impacts of a proposed action and to provide documentation of that assessment. Impacts to the human environment, which includes commercial and recreation activities, as well as cultural and historic resources, are also considered in the NEPA evaluation.
The NEPA process provides opportunities for agencies and stakeholders to review and comment on a proposed project and address environmental concerns and permitting issues. Environmental documentation, in the form of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), provides a record of the NEPA review to guide federal action agencies in their decision-making.
In addition to the NEPA process, certain federal environmental protection statutes must be considered in regards to siting hydrokinetic projects. For example, § 106 of the National Historic Preservation Act (NHPA) requires federal action agencies to identify and assess potential effects on historic resources. In addition, pursuant to the Magnuson-Stevens Fishery and Conservation Act (MSA), project proponents must consult with the National Marine Fisheries Service (NMFS) on actions that may adversely affect Essential Fish Habitat (EFH). Concurrent with the EFH consultations, projects that propose to alter a body of water are also required to undergo review by the Fish and Wildlife Service (FWS) regarding fish and wildlife impacts under the Fish and Wildlife Coordination Act (FWCA).
Under § 7 of the Endangered Species Act (ESA), project proponents must consult with NMFS and the FWS to evaluate impacts on endangered species and critical habitats. Similarly, the Marine Mammal Protection Act (MMPA) requires project proponents to consult with NMFS and the FWS regarding potential impacts to marine mammals, and the Migratory Bird Treaty Act (MBTA) calls for consultation with the FWS regarding potential impacts to migratory birds. Finally, hydrokinetic projects must comply with two federally delegated statutes. Pursuant to § 307 of the Coastal Zone Management Act (CZMA), federal actions (e.g., a FERC license) must be reviewed to ensure consistency with state coastal management policies. Additionally, § 401 of the Clean Water Act (CWA) requires that federally authorized activities be reviewed to ensure they will not violate state water quality standards.
With all authorizations, a high level of stakeholder involvement in the consultation process can be a key factor to successful project planning and siting. By collaboratively discussing and addressing the issues associated with a proposed project, effective studying, monitoring, mitigation, and adaptive management measures can be developed and implemented throughout the project life.
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