On March 12, 2013, FERC and the United States Coast Guard (“USCG”) announced the signing of a Memorandum of Understanding (“MOU”) regarding applications to site, construct and operate hydrokinetic power generation projects in waters under the jurisdiction of the United States. The MOU defines hydrokinetic projects as those “designed to harness the power of waves, tides, currents, and the free-flow of rivers and streams.” The goal of the MOU is to increase cooperation and collaboration between FERC and the USCG while proposed hydrokinetic projects are being considered and reviewed by FERC.
The MOU details the current roles of FERC and the USCG with respect to hydrokinetic projects. FERC issues preliminary permits for hydrokinetic projects, which enable project developers to “preserve the priority” of an application for license while the developer performs feasibility studies and collects data regarding the proposed project. Prior to a license application, FERC also requires applicants to engage in a pre-filing process, during which FERC will analyze the environmental impact of proposed hydrokinetic projects under the National Environmental Policy Act. FERC also conducts inspections during and after construction to ensure compliance with the terms of the license. Meanwhile, the USCG is the subject matter expert on – and regulates matters related to – navigation safety, maritime safety and marine environmental stewardship. The USCG also has regulatory authority over hydropower projects which “may affect the safety and security of waters subject to the jurisdiction of the United States.”
The MOU provides for FERC and the USCG cooperation at each stage of the hydrokinetic licensing process. Pursuant to the MOU, FERC will require hydrokinetic permit applicants to send copies of their preliminary permit applications to the USCG so that the USCG may provide comments regarding the applications to FERC. Additionally, the MOU requires that during the pre-filing process, an applicant must notify all resource agencies that may have jurisdiction over some part of the proposed project, including the USCG. This will again allow the USCG to provide comments to FERC regarding the proposed hydrokinetic project. Furthermore, during review of the license application, the MOU states that FERC will notify the USCG concerning a hydrokinetic project “on, in or adjacent to navigable waters.” FERC and the USCG will work together to share information that they gather, consider, and rely upon during the licensing process. The MOU also states that the USCG and FERC will cooperate in assessing protection, mitigation and enhancement measures as conditions of the project license, and review studies the applicant undertakes to address the USCG interests and roles. During construction, FERC and the USCG agree to cooperate concerning inspection and review of licensed projects. Finally, FERC and the USCG will review the MOU at least every 5 years and revise it as necessary.
In a news release concerning the MOU, FERC Chairman Jon Wellinghoff stated that “Hydrokinetic development is an up and coming resource and this MOU provides valuable coordination between FERC and the Coast Guard to ensure an efficient process while protecting valuable environmental resources.”