FERC declines to appeal order stalling 49.8-MW School Street relicense

The Federal Energy Regulatory Commission has declined to appeal a court order that overturned FERC relicensing of the 49.8-MW School Street hydroelectric project and ordered FERC to reconsider whether it should have entertained a rival proposal.

FERC issued a 40-year relicense in 2007 to Erie Boulevard Hydropower L.P. for the upgrade and continued operation of School Street (No. 2539), which diverts water from the Mohawk River upstream of Cohoes Falls, bypassing 4,500 feet of riverbed, including the falls, New York’s second tallest.

In relicensing the project, FERC rejected several attempts by Green Island Power Authority to propose development of the competing 100-MW Cohoes Falls project in lieu of renewing School Street. FERC rejected a preliminary permit application by Green Island (No. 12522), noting the Cohoes Falls project only could be developed if School Street — which has generated power since 1916 — were decommissioned and removed.

Responding to Green Island’s appeal of the relicense order, the 2nd U.S. Circuit Court of Appeals said FERC erred by failing to consider a new intervention by Green Island when FERC allowed Erie Boulevard to modify its relicense proposal based on terms of a settlement agreement. (HydroWorld 9/3/09) The court ordered FERC to reopen the relicense proceeding to determine whether the settlement agreement was a “material amendment” to the relicense application and, if so, whether Green Island is properly intervening with its Cohoes Falls proposal.

FERC spokeswoman Celeste Miller said FERC declined to appeal the 2nd Circuit ruling to the Supreme Court. She said the next step is for the commission to review the matter as directed by the 2nd Circuit and issue an order on remand. She said a schedule has not been set for that proceeding.

During the original proceeding, FERC rejected a 2004 motion by Green Island to intervene in the School Street relicensing, finding the motion was filed 13 years late in the proceeding, which began in 1991.

In 2005, Erie Boulevard filed the School Street relicensing settlement agreement that included installation of an 11-MW turbine, replacing a proposed 21-MW turbine addition. As a result, Green Island renewed its motion to intervene, saying the settlement constituted a “material amendment” to the relicense application, permitting new intervenors to offer alternative proposals such as the Cohoes Falls project.

FERC rejected that motion, saying it was an “attempt to place Green Island’s untimely competitive proposal before the Commission.” FERC said the settlement agreement was made to satisfy requests of resource agencies and did not constitute a material amendment requiring FERC to reopen the proceeding to new intervenors.

The 2nd Circuit disagreed with FERC, saying that in a relicense proceeding such a settlement agreement can be a material amendment and could warrant a call by FERC for comments and interventions.

The appeals court remanded the case to FERC to consider first whether the settlement agreement was a material amendment and, if so, to consider whether Green Island’s motion to intervene is proper and, if so, to consider the Cohoes Falls project proposal.

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