On June 18, 2015, FERC staff (“Staff”) provided an update on its implementation of the Hydropower Regulatory Efficiency Act of 2013 (the “Act”).  Staff stated that since the Act was signed into law, FERC has approved 43 qualifying conduit facilities – small hydropower projects that are exempt from FERC licensing requirements – out of 58 proposed facilities, while also granting 15 out of 30 requested permit extensions.  During FERC’s open meeting Commissioner Philip Moeller stated that he requested the update to bring more attention to the “enormous potential of small hydropower projects throughout the country.”

On August 9, 2013, the Act was signed into law and affected hydropower development in four different areas.  First, the Act amended the Public Utilities Regulatory Policies Act of 1978 by increasing the maximum allowable capacity exemptions for existing hydropower facilities from 5 MW to 10 MW.  Second, the Act exempted 5 MW qualifying conduit facilities from FERC licensing requirements, and increased the existing conduit exemption from 15 MW to 40 MW for all qualifying facilities, including those facilities privately developed.  Third, the Act authorized FERC to grant preliminary permits for hydropower projects for an additional two years beyond the three-year term that was previously allowed.  Fourth, the Act directed FERC to review the possibility of developing a two-year licensing process for non-powered dams and closed-loop storage projects.

Staff stated that once the Act was passed, it updated FERC’s website to provide guidance on how to apply for exemptions and preliminary permit extensions, and passed Order No. 800 – which incorporated the Act’s requirements into FERC’s regulations.  As a result, Staff stated that FERC approved a majority of the 58 proposed qualifying conduit facilities, with eight being rejected because they didn’t meet the Act’s criteria and seven still pending.  Moreover, Staff also stated that the majority of the 30 requested preliminary permit extensions were granted, with 14 being rejected for lack of diligence, while one remains pending.

Finally, Staff provided an update on the Act’s requirement to explore the feasibility of a two-year licensing requirement for non-powered dams and closed-loop storage projects.  Staff stated that FERC previously held a workshop on the licensing requirement, and after receiving comments, Staff developed criteria for potential applicants.  Staff stated that two potential licensees filed to test the new project: Wildflower Water Pumped Storage Project (“Wildflower Water”) and Kentucky River Lock & Dam No. 11 (“Kentucky River”).  Staff noted that Wildflower Water project was rejected for not meeting the criteria, while a technical conference was held for Kentucky River.  Subsequently, FERC approved the project and is currently reviewing Kentucky River’s engineering and safety information.  Upon completion of the review, Staff stated that FERC will issue a notice requesting comments on the environmental analysis of the Kentucky River project.  Upon issuing an order after the comment period, FERC will then hold a final workshop and submit a report to Congress on its findings.

A copy of Staff’s update is available here.