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Editor’s note:
What will be the Trump Administration’s impact on hydropower permits and project relicensing? The answer to that crucial question will substantially affect the hydropower industry for the next few years.
Anyone who believes federal permitting and relicensing will suddenly become easier to ignore is in for a rude awakening. The framework of these processes is laid down by federal law (Clean Water Act, Endangered Species Act, others) and a permit or licensing decision that doesn’t follow those rules is ripe to be stopped in court, leading to huge litigation costs and delays.
Adding to the complexity, the EPA and Army Corps of Engineers will issue new Waters of the US (WOTUS) rules that take into account the U.S. Supreme Court’s 2023 Sackett ruling.
So what should a company do when seeking a federal hydropower permit or license? Read on for some helpful suggestions from an expert with extensive experience on both sides of federal permit and licensing negotiations.
BACKGROUND
Below, Rob Vining, a former chief of civil works programs, management at the U.S. Army Corps of Engineers (USACE), and a senior advisor at Washington D.C. based permitting firm Dawson and Associates, taps into his experience to offer building blocks organizations can utilize when developing the foundation of an U.S. Army Corps of Engineers permit action plan.
Rob Vining, Senior Advisor at Dawson and Associates
The United States is home to nearly 1,500 individual hydropower generating facilities, including about 40 separate pumped-storage projects. Together, these projects account for 27% of the country’s renewable energy capacity and generate approximately 240 gigawatts (GW) of electricity, or about 6% of total U.S. energy output.
However, hydropower faces a significant near-term challenge due to federal relicensing and permitting requirements. Nearly 17 GW of capacity is at risk, as close to half of non-federal hydropower projects will require license renewals from the Federal Energy Regulatory Commission (FERC) by 2035.
Relicensing hydropower plants is a complex process that requires coordination with multiple agencies and adherence to strict legal procedures. There are no shortcuts.
Beyond FERC, an organization pursuing relicensing needs to engage with the Army Corps of Engineers, the Environmental Protection Agency (EPA), and the U.S. Fish and Wildlife Service to ensure compliance with the Clean Water Act and the Endangered Species Act.
Adding to this complexity, interpretations of the same law can vary significantly among regulators, political appointees, and members of Congress—even within the same political party.
Yet, with a proactive approach, hydropower project owners can better navigate the permitting landscape, both Federal and non-Federal, while helping secure the long-term viability of hydropower as an essential energy resource.
Grand Coulee Dam on the Columbia River in Washington
DETERMINING THE BEST APPROACH FOR PERMIT ACTION PLANS
During my tenure as Chief of Program Management for Civil Works at the U.S. Army Corps of Engineers Washington, D.C. Headquarters, I was often called into meetings with administration officials and congressional leaders. Despite shared party affiliations, I frequently encountered conflicting recommendations on how to implement laws and permitting rules.
This process might feel like solving a Rubik’s Cube—only more complex. So, what’s the best approach?
Based on my experience, the following actions should constitute the building blocks in any Corps of Engineers permit action plan:
• Establish credibility early: Reach out to local Corps of Engineers District officials responsible for permits and familiarize them with your project before a permit action is required. Show them how your project complies with existing federal rules and agreements. Explain specifically how your company plans to continue abiding by these rules. If you do this right, you establish credibility which can reduce permit delays.
• Understand requirements: Early in the permit or relicensing process, meet with local Corps personnel. Have them fully explain the necessary requirements for permit approval as well as potential hurdles. These officials are neither your advocates nor your opponents! They are neutral observes but having them explain legal issues you need to address is important and can reduce chances a court will overturn a licensing or permit approval.
• Build relationships: This is one of the most important and overlooked aspects of relicensing. You need to establish lines of communication with Corps regulatory personnel to facilitate discussions and resolve questions promptly.
• Plan adequate time: The Corps of Engineers will likely require two primary approvals: Section 404 (Clean Water Act and Endangered Species Act compliance) and Section 408 (a permit under the Rivers and Harbors Act of 1899 to ensure modifications to existing USACE Civil Works Projects do not adversely impact authorized purposes). You must include sufficient time for approval, as obtaining Section 404 and 408 permits can take up to two years.
• Ensure compliance: You must work to get it right the first time. There simply are no shortcuts to getting to a sustainable permit that will survive possible litigation. To accomplish this, then it is imperative to not only know the regulations and procedures associated with permit approval, but to develop the relationships with the regulators so one can understand the “why” associated with permit requirements.
Numerous critical energy projects including hydropower have failed to secure required state and local permits. For example, the Jordan Cove Energy Project in Oregon was terminated and the FERC approval was withdrawn because the natural gas pipeline project was unable to obtain a state Water Quality Permit that was required so that the Corps of Engineers could proceed with issuing its Section 404 permit.
Several pumped storage projects in the Pacific Northwest face similar challenges obtaining necessary federal approvals and permits. Their delays are also complicated by obtaining necessary State Water Quality Permits and addressing Native American interests.
Receiving permits on the most efficient timeline possible is the goal of any project owner or utility.
