HomeMy WebLinkAboutCopy of prelim FERC Permit 20210723-3005(14972413)176 FERC ¶ 62,049
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Turnagain Arm Tidal Energy Corp Project No.15109-000
ORDER ISSUING PRELIMINARY PERMIT
AND GRANTING PRIORITY TO FILE LICENSE APPLICATION
(Issued July 23, 2021)
On April 13, 2021, the Turnagain Arm Tidal Energy Corporation (TATEC)filed
an amended application for a preliminary permit, pursuant to section 4(f) of the Federal
Power Act (FPA),1 to study the feasibility of the proposed Turnagain Arm Tidal Electric
Generation Project No. 15109-000 (Turnagain Arm Project), to be located on the
Turnagain Arm waterway and adjacent lands of the Municipality of Anchorage, Alaska
and the Kenai Peninsula Borough.
I.Proposal
The proposed project would consist of the following new facilities: (1) six 0.5-
mile-long, 300-foot-wide tidal power stations,with five stations containing 40, 10-
megawatt (MW) tidal-to-electrical energy generating units and one station containing 42,
10-MW tidal-to-electrical energy generating units for a total installed capacity of 2,420
MW;(2) a transmission network consisting of 29.81 miles of undersea transmission lines
connecting the six power stations;(3) a 7.5-mile-long, aboveground transmission line
extending from Point Campbell, Alaska through South Anchorage to a control building
and step-up facility;(4) a 2.91-mile-long, 230-kilovolt (kV) aboveground transmission
line extending from the Anchorage control building to a 40,000-square-foot industrial
battery array with a storage capacity of 300 MW and then to the Chugach Electric
Association substation in Anchorage; (5) a 0.2-mile-long, 230-kV aboveground
transmission line extending from the control building to a 200,000-square-foot hydrogen
electrolysis plant and storage yard located in South Anchorage; (6) a 34.8-mile-long,
aboveground transmission line to a control building and step-up facility in Nikiski,
Alaska; (7) a 2.75-mile-long, 230-kV aboveground transmission line extending from the
Nikiski control building to the Homer Electric Association substation; and (8)
1 16 U.S.C. § 797(f).
Document Accession #: 20210723-3005 Filed Date: 07/23/2021
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appurtenant facilities.The proposed project would have an estimated average annual
generation of 10,599,500 MW-hours.
II.Notice, Interventions, and Comments
On April 28, 2021, the Commission issued a public notice of TATEC’s permit
application, establishing a deadline of June 28, 2021, for filing comments, motions to
intervene, and competing applications. Notice of the application was published in the
Federal Register on May 4, 2021.2
A timely motion to intervene was filed by the Center for Biological Diversity
(Center)on June 14, 2021.3 Timely comments were filed by the U.S. Department of the
Interior (Interior). The U.S. Environmental Protection Agency (EPA)filed untimely
comments,on June 30, 2021, which will be considered in this proceeding. No party
opposed issuance of the permit and no competing applications were filed.
III.Discussion
The Center expresses concern that the project is likely to harm Cook Inlet beluga
whales and degrade their habitat.
Interior states that the proposed project may cause impacts to a Land and Water
Conservation Fund (LWCF) area, known as the Tony Knowles Coastal Trail (trail).4
Interior notes that any property acquired or developed within the LWCF area cannot be
wholly or partly converted to purposes other than for public outdoor recreation uses
without the approval of the National Park Service (NPS).5
EPA raises issues related to the scope of effects from the proposed project and
recommends that the National Environmental Policy Act (NEPA)document address
water quality and aquatic resources, hazardous materials, protected species, air quality,
2 86 Fed. Reg. 23,711 (May 4, 2021).
3 Timely, unopposed motions to intervene are granted by operation of Rule 214 of
the Commission’s regulations. 18 C.F.R. § 385.214(c)(1) (2020).
4 The trail is a public park owned and maintained by the City of Anchorage that is
protected solely for public outdoor recreation purposes by the LWCF Act.
5 36 C.F.R. § 59.3 (2020). In its filing, Interior enclosed comments it previously
raised regarding LWCF and the trail in response to the public notice issued in Project No.
13509-002, another permit application located in the same area.
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geology, dredging, environmental justice, tribal consultation, public participation, climate
resilience, permitting, monitoring and adaptive management, and financial assurance.6
The concerns raised in the comments are premature at the preliminary permit stage
because they address the potential impacts of constructing and operating the proposed
project.7 The scope of this proceeding is limited to an application for a preliminary
permit, not a hydropower license. A preliminary permit does not authorize a permittee to
undertake any ground disturbance, enter onto any lands, or construct any project
facilities. The purpose of a preliminary permit is to secure the permit holder’s priority for
hydropower development while it studies the feasibility of the project, including studying
potential impacts. Should the permittee file a license application, these issues will be
addressed in the licensing process.
Interior recommends specific studies for any permit issued to identify measures to
avoid or mitigate impacts to or enhance resources in the project area.8 The Commission
6 EPA’s filing is styled as scoping comments and raises environmental concerns
that are premature at the preliminary permit stage. An agency is not required to prepare
an environmental impact statement (EIS) or environmental assessment (EA) if the
proposed actions do not normally have a significant impact on the human environment
and are covered by the agency’s existing categorical exclusions. Because the issuance of
a preliminary permit has been determined to be a categorical exclusion under section
380.4 of the Commission regulations, neither an EIS nor an EA is required at this time.
7 See, e.g., Green Energy Storage Corp, 150 FERC ¶ 61,042, at P 10 (2015)
(opposition to the construction of the project is outside the scope of the preliminary
permit proceeding);Tomlin Energy LLC, 169 FERC ¶ 61,037, at P 8 (2019) (explaining
that concerns about impacts of project operation are premature at the permit stage);
Alaska Power Co., Inc., 138 FERC ¶ 62,130, at P 7 (2012) (stating that concerns over the
project’s impact on fish and wildlife resources and the cumulative impacts of basin
development are premature at the permit stage ); SV Hydro, LLC, 173 FERC ¶62,047, at
P 5 (2020) (declining to address commenters claims that the upper reservoir could fail
and endanger residents and infrastructure downstream; that the initial fill water is subject
to private and public ownerships, and thus not readily available; and that the proposed
project could be an impediment to accessing iron ore deposits because they are
premature).
8 In its filing, Interior references enclosed comments, previously filed on behalf of
the NPS, in response to Scoping Document 1 in Project No. 13509-001, an unconstructed
marine hydrokinetic project located in the same area. The comments express the need for
the applicant to conduct additional studies on recreational and aesthetic resources.
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has not sought to place all relevant study requirements in preliminary permits.9 During
the licensing process, applicants are required to consult with appropriate state and federal
resource agencies and affected Indian tribes, conduct all reasonable studies requested by
the agencies, and solicit comments on the license applications before they are filed.10
IV.Permit Information
Section 4(f) of the FPA authorizes the Commission to issue preliminary permits
for the purpose of enabling prospective applicants for a hydropower license to secure the
data and perform the acts required by section 9 of the FPA,11 which in turn sets forth the
material that must accompany an application for license. The purpose of a preliminary
permit is to preserve the right of the permit holder to have the first priority in applying for
a license for the project that is being studied.12 Because a permit is issued only to allow
the permit holder to investigate the feasibility of a project while the permittee conducts
investigations and secures necessary data to determine the feasibility of the proposed
project and to prepare a license application, it grants no land-disturbing or other property
rights.13 Further, permit conditions have been framed to ensure that the permittee does
not tie up a site without pursuing in good faith a study of the project’s feasibility.14
Article 4 of this permit requires the permittee to submit a progress report no later
than the last day of each 12-month period from the effective date of this permit. The late
9 See, e.g.,Continental Lands Inc., 90 FERC ¶ 61,355, at 62,177 (2000).
10 18 C.F.R. § 4.38 (2020).
11 16 U.S.C. § 802.
12 See, e.g., Mt. Hope Waterpower Project LLP, 116 FERC ¶ 61,232,at P 4 (2006)
(“The purpose of a preliminary permit is to encourage hydroelectric development by
affording its holder priority of application (i.e., guaranteed first-to-file status) with
respect to the filing of development applications for the affected site.”).
13 Issuance of this preliminary permit is thus not a major federal action
significantly affecting the quality of the human environment. A permit holder can only
enter lands it does not own with the permission of the landholder, and is required to
obtain whatever environmental permits federal, state, and local authorities may require
before conducting any studies. See, e.g., Three Mile Falls Hydro, LLC,102 FERC
¶61,301,at P 6 (2003);see also Town of Summersville, W.Va. v. FERC,780 F.2d 1034
(D.C. Cir. 1986) (discussing the nature of preliminary permits).
14 See City of Richmond,Va., 53 FERC ¶ 61,342,at 62,247, reh’g denied,
53 FERC ¶ 61,342 (1990).
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filing of a report or the supplementation of an earlier report in response to a notice of
probable cancellation will not necessarily excuse the failure to comply with the
requirements of this article.
During the course of the permit, the Commission expects that the permittee will
carry out prefiling consultation and study development leading to the possible
development of a license application. The prefiling process begins with preparation of a
Notice of Intent (NOI) and Pre-Application Document (PAD) pursuant to sections 5.5
and 5.6 of the Commission’s regulations.15 The permittee must use the Integrated
Licensing Process unless the Commission grants a request to use an alternative process
(Alternative or Traditional Licensing Process). Such a request must accompany the NOI
and PAD and set forth specific information justifying the request.16 If the permittee files
a development application, notice of the application will be published, and those
interested may intervene and comment on the project and the effects of its construction
and operation.
A preliminary permit is not transferable. The named permittee is the only party
entitled to the priority of the application for license afforded by this preliminary permit.
In order to invoke permit-based priority in any subsequent licensing competition, the
named permittee must file an application for license as the sole applicant, thereby
evidencing its intent to be the sole licensee and to hold all proprietary rights necessary to
construct, operate, and maintain the proposed project. Should any other parties intend to
hold during the term of any license issued any of these proprietary rights necessary for
project purposes, they must be included as joint applicants in any application for license
filed. In such an instance, where parties other than the permittee are added as joint
applicants for license, the joint application will not be eligible for any permit-based
priority.17
The Director orders:
(A)A preliminary permit is issued for the Turnagain Arm Tidal Electric
Generation Project No. 15109 to Turnagain Arm Tidal Energy Corporation for a period
effective the first day of the month in which this permit is issued, and ending either 48
months from the effective date or on the date that a development application submitted by
the permittee has been accepted for filing, whichever occurs first.
15 18 C.F.R. §§ 5.5 and 5.6 (2020).
16 See id.§ 5.3 (2020).
17 See City of Fayetteville, 16 FERC ¶ 61,209 (1981).
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(B)This preliminary permit is subject to the terms and conditions of Part I of
the Federal Power Act and related regulations. The permit is also subject to Articles 1
through 4, set forth in the attached standard form P-1.
(C)This order constitutes final agency action. Any party may file a request for
rehearing of this order within 30 days of the date of its issuance, as provided in section
313(a) of the Federal Power Act, 16 U.S.C. § 825l, and section 385.713 of the
Commission’s regulations, 18 C.F.R. § 385.713.
for
David Turner, Chief
Northwest Branch
Division of Hydropower Licensing
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Form P-1 (Revised May 2021)
FEDERAL ENERGY REGULATORY COMMISSION
TERMS AND CONDITIONS OF
PRELIMINARY PERMIT
Article 1. The purpose of the permit is to maintain priority of application for a
license during the term of the permit while the permittee conducts investigations and
secures data necessary to determine the feasibility of the proposed project and, if the
project is found to be feasible, prepares an acceptable application for license. In the
course of whatever field studies the permittee undertakes, the permittee shall at all times
exercise appropriate measures to prevent irreparable damage to the environment of the
proposed project. This permit does not authorize the permittee to conduct any ground-
disturbing activities or grant a right of entry onto any lands. The permittee must obtain
any necessary authorizations and comply with any applicable laws and regulations to
conduct any field studies.
Article 2. The permit is not transferable and may, after notice and opportunity for
hearing, be canceled by order of the Commission upon failure of the permittee to
prosecute diligently the activities for which a permit is issued, or for any other good
cause shown.
Article 3. The priority granted under the permit shall be lost if the permit is
canceled pursuant to Article 2 of this permit, or if the permittee fails, on or before the
expiration date of the permit, to file with the Commission an application for license for
the proposed project in conformity with the Commission's rules and regulations then in
effect.
Article 4. No later than the last day of each 12-month period from the effective
date of this permit, the permittee shall file a progress report. Each progress report must
describe, for that reporting period, the nature and timing of what the permittee has done
under the pre-filing requirements of 18 C.F.R. sections 4.38 and 5.1-5.31 and other
applicable regulations; and, where studies require access to and use of land not owned by
the permittee, the status of the permittee's efforts to obtain permission to access and use
the land. The Commission strongly encourages that progress reports be filed
electronically via its eFiling system. Instructions for e-filing can be found on the
Commission’s website at https://www.ferc.gov/ferc-online/overview.For assistance,
please contact FERC Online Support at ferconlinesupport@ferc.gov; (866) 208-3676 (toll
free); or (202) 502-8659 (for TTY). If eFiling is not an option, you may submit one
paper copy.Submissions sent via the U.S. Postal Service (USPS) must be addressed
to:the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE, Room
1A, Washington, D.C. 20426.Submissions sent via any other carrier must be addressed
Document Accession #: 20210723-3005 Filed Date: 07/23/2021
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to:the Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue,
Rockville,Maryland 20852.
Document Accession #: 20210723-3005 Filed Date: 07/23/2021
Document Content(s)
P-15109-000 Preliminary Permit Order.DOCX ................................1Document Accession #: 20210723-3005 Filed Date: 07/23/2021