State challenges FERC license for 1-MW Makah Bay wave project

The Washington Department of Ecology is asking federal regulators to rescind their first license order granted to a hydrokinetic energy project, claiming it violates the Clean Water Act and Coastal Zone Management Act.

The Federal Energy Regulatory Commission granted the conditional license in December 2007 to Finavera Renewables Ocean Energy Ltd. for the 1-MW Makah Bay Offshore Wave Pilot project (No. 12751). (HNN 12/20/07) In a petition for rehearing filed Jan. 17, Ecology asked FERC to rescind the license for the project, proposed for the Pacific Ocean off the coast of Washington.

Ecology questioned whether FERC violated Clean Water Act Section 401 by issuing the license before Finavera obtained certification that the state has reasonable assurance the project would meet water quality standards and other state requirements. It also questioned whether FERC violated Coastal Zone Management Act Section 307 by issuing the license before Finavera obtained concurrence from Ecology that the project complies with Washington’s Coastal Zone Management Program.

Ecology said FERC chose to license the project even though the department had not issued Section 401 water quality certification or CZMA consistency concurrence, nor waived its authority to issue either approval.

�The commission’s failure to adhere to the limitations of the CWA and CZMA render its decision invalid,� Ecology said.

The license order followed a November 2007 policy statement in which FERC said it could issue conditioned licenses for hydrokinetic projects. However, Ecology maintains the conditional licenses are not supported by law.

Unlike its standard hydropower licenses, which cannot be issued until all terms and conditions are submitted by state and federal resource agencies, FERC said it plans to issue conditional hydrokinetic project licenses quickly, without waiting for authorizations from other agencies. However, the statement said, the hydrokinetic licenses would be conditioned to prevent a licensee from actually starting construction until it obtains all necessary authorizations.

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