Low Impact Hydropower Institute
34 Providence Street
Portland, Maine 04103
207-773-8190 • 207-773-8191 (fax)
www.lowimpacthydro.org
June 30, 2003
TO:
LIHI Governing Board
cc:
LIHI Advisory Panels
Land & Water Associates
FROM:
Fred J. Ayer, Executive Director
Gabriela Goldfarb, Interim Certification Administrator
SUBJECT:
Recommendation regarding the application for certification of the Beaver
River Project, Beaver River, New York
ISSUES
1. Should the Governing Board certify the Beaver River Project as a Low
Impact Hydropower Facility?
2. Should the Governing Board adopt the recommendation by the Application Reviewer that
certification be made contingent upon completion of the land transfers and easement provisions
of the Settlement Agreement?
RECOMMENDATIONS
1. The Governing Board should certify the Beaver River Project because it meets the Low
Impact Hydropower Certification Criteria.
2. The Governing Board should adopt the Application Reviewer’s recommendation to make
certification contingent upon completion of the land transfers and easement provisions of the
Settlement Agreement, specifically by making certification as of the date the transactions are
completed?
DISCUSSION
I have reviewed the application, and the Application Reviewer’s report. I concur with the
Application Reviewer’s determination that the Beaver River Project, located on the Beaver River
in New York, meets the Low Impact certification criteria. The following is a discussion of the
technical or policy issues raised by the application or the Application Reviewer’s report.
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River Flows Criterion
The Beaver River Project is in compliance with resource agency terms for flow releases
negotiated and included in the Settlement Agreement.
The Application Reviewer has pointed out that “... at least one party suggested that the flows
were too low, and the terms of a settlement agreement would not necessarily ensure low impact.”
In addition the reviewer states that it is not clear whether there is adequate analysis or basis for
the required flows, while acknowledging that that is not the point of their review. The question,
they correctly point out, is whether the project is in compliance with the flows set out in the
Settlement Agreement and the FERC License order, and whether any resource agency has
formally filed to amend the Settlement Agreement or the FERC License.
I concur with the Reviewer’s conclusion. However, seeing these issues raised in the Reviewer’s
report suggests that LIHI may need to develop guidelines for consistently treating projects that
have reached comprehensive all-party Settlement Agreements as part of the FERC relicensing
process. Honoring settlement agreements where all parties have accepted terms and conditions,
even though they are less than an ideal standard (ABF, IFIM, etc.) in some cases, is critically
important for the Institute’s continued credibility. I suspect we will see more of these instances.
We may also want to make sure our Reviewers receive adequate documentation from the
applicant so that they are able to verify the inclusiveness and transparency of the settlement
process.
Water Quality Criterion
I identified no unusual technical or policy issues in addressing these criteria.
Fish Passage Criterion
I identified no unusual technical or policy issues in addressing these criteria.
Watershed Criterion
Threatened and Endangered Species Criterion
Cultural Resources Criterion
The Beaver River Project is in compliance with FERC license requirements regarding protection,
mitigation or enhancement of project lands and watershed protection. These include limited
impoundment fluctuations for shoreline erosion control, erosion/sediment control plans for any
new construction, and management of project lands, through permits, used by the public,
municipalities, utilities, etc. However, part of the Settlement Agreement (not included in the
FERC license order), a transfer of lands and easements at the Moshier and Eagle Developments
has not been executed. Both the project owners and the state agencies share in the blame for the
delay, but recent developments, including a site visit by both parties, has elevated the importance
of resolving this transaction as quickly as possible. The owner has indicated that there may be
resolution very soon (perhaps even before our July 16 conference call). The Reviewer has
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recommended that LIHI make certification contingent on the implementation of the land transfer.
We recommend that the Board certify the Beaver River Project but make its effective date of
certification the date that the land transfer component of the settlement agreement is finalized.
Facilities Recommended for Removal
I identified no unusual technical or policy issues in addressing this criterion.
Public Comments and Appeal Period
There were no public comments.
Other Issues to Consider: Documentation of Compliance
The Project Reviewer for the Beaver River Project, Land & Water Associates, has articulated
several points regarding the documentation of project compliance with LIHI criteria which I
believe need a response and clarification. One is the statement that LIHI certification procedures
encourage but do not require applicants to submit documentation of facility compliance with
terms of the FERC license and Settlement Agreement. A related point is the assertion that it is
ultimately the Reviewer’s job to contact agencies to ascertain compliance. And finally, the
Reviewer notes the obstacle raised by FERC’s new Critical Energy Infrastructure Information
(CEII) policy of restricting access to information.
In regards to the responsibility for documenting compliance with FERC license or resource
agency requirements, our Certification Procedures seem to be quite clear. When describing what
the applicant should include for supporting information for each of the relevant questions in the
Low Impact Hydropower Certification Questionnaire, LIHI Certification Procedures say that this
information will consist of three elements for each question:
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a narrative description of how the facility meets the requirement;
documentation of a relevant standard (agency recommendation);
documentation that the facility meets that standard.
Furthermore our procedures describe what is optional as ISO 14000 certification or “letters of
support from resource agencies or other stakeholders.” I believe the Reviewer is responsible for
verifying the documentation submitted to LIHI by the applicant, but neither LIHI nor the
Reviewer should be responsible for creating that documentation. Documentation could, from
projects with a FERC license issued after 1986 (i.e., in the post Electric Consumer Protection Act
era), come from FERC annual compliance reports and I think this is also the responsibility of the
applicant to provide as part of their certification application.
With respect to the difficulty caused by the FERC’s rulemaking severely restricting public access
to licensee records deemed to be Critical Energy Infrastructure Information (CEII), this has the
potential to be an issue for LIHI. How this new policy, which went into effect in April, will
manifest itself in LIHI Project Reviews is not completely known. However, I think it’s safe to
say it will be more difficult for LIHI reviewers to access information from FERC either
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electronically or in-person. After talking with FERC staff earlier this month, the sense I get is
that they are being very cautious about what is CEII and what is not, meaning that they are erring
on the side of classifying everything as CEII.
In conclusion, I recommend that we discuss these three related project review issues at our
September meeting and consider how best to reinforce the position that it is the applicants’
responsibility to provide the LIHI Reviewer with documentation. This documentation will
typically consist of:
-
compliance statements from state and federal resource agencies; and,
annual compliance and operating reports filed with FERC
This information will facilitate the Reviewer’s task and allows us to verify that the candidate
Project is in compliance with terms and conditions of the FERC License, Settlement Agreement,
and other required regulatory approvals.
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