FERC upholds Admiralty Inlet tidal project; developer might resume

The Federal Energy Regulatory Commission has rejected challenges to the pilot hydrokinetic license of the 600-kW Admiralty Inlet Pilot tidal project and said licensee Snohomish County Public Utility District does not intend to surrender the license.

Less than three months ago, Snohomish PUD said it would no longer pursue Admiralty Inlet because Department of Energy funding dried up, materials costs have increased, and various entities have mandated increasing amounts of studies and monitoring requirements for what was to be a pilot project in Washington’s Puget Sound.

“The district notes that the license does not require it to begin constructing the project until March 20, 2016, and explains that while it is exploring the possibility of additional funding, it is also defending the project in state administrative appeals and complying with the license, which it does not intend to surrender,” FERC said in a Dec. 5 order rejecting challenges to the license (No. 12690).

FERC said Snohomish rebutted challenges to the project’s economic viability by noting its focus is testing new hydrokinetic technology and not economic value for power generation.

“The district is pursuing the possibility of additional research partner funds and its license remains in effect,” the commission said. “We decline to speculate about whether additional funds might be available or whether the district might seek to surrender its license at some future point.”

FERC rejected rehearing requests from the Tualip Tribes of Washington, which said tribal fishing rights were threatened, and by Pacific Crossing, owner of PC-1, a subsea telecommunications cable linking the United States and Japan. Pacific Crossing disputed FERC’s conclusion that the tidal project would not pose a risk to the undersea fiber-optic communication cable, which is located 170 meters from the project site.

FERC issued a declaratory order in June that federal hydropower licensing of Admiralty Inlet pre-empted state regulation under the Coastal Zone Management Act in an instance in which the state of Washington unintentionally waived its CZMA permit authority.

In response, PC Landing had filed a Freedom of Information Act document request from FERC and was told FERC did not have documents to support the finding that Washington waived its CZMA authority. PC Landing contended FERC was wrong when it failed to consider “numerous irregularities in (Washington Department of) Ecology’s CZMA review process that culminated in Ecology’s decision” that it had waived its CZMA authority. FERC disagreed.

“…We do not find anything in these communications that would preclude us from relying on Ecology’s Jan. 30, 2014, letter,” FERC said. “The fact remains that, as stated in that letter, NOAA (National Oceanic and Atmospheric Administration) informed Ecology that the extension of the review period did not comply with federal regulations and Ecology concluded that its CZMA authority was therefore waived.”

Among other points rejected, FERC dismissed PC Landing’s argument that FERC could not issue a hydropower license under the Federal Power Act to a subdivision of a state, in this case Snohomish County Public Utility District, if it pre-empts the state’s law, in this case the Washington Shoreline Act.

“…In the FPA, the intent of Congress is clear that state laws that would license or regulate hydroelectric power are pre-empted, because they could veto a federal license or prevent the commission from providing for the comprehensive development of a waterway,” the commission said. “The fact the FPA includes specific provisions for licensing political subdivisions of a state as ‘municipalities’ provides further support for this view.”

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