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Energy Law 1 – Hydro Power. Fall 2013 Sep 3, 2013 Alan Palmiter Brian Bowman. Topic roadmap. 1.Hydropower in energy mix Compared to other sources (including renewables ) History of hydropower Future of hydropower / hydrokinetic power 2.How hydropower works Look inside dam

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Energy Law 1 – Hydro Power

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Energy Law 1 – Hydro Power

Fall 2013

Sep 3, 2013

Alan Palmiter

Brian Bowman

Not for distribution- for study purposes only

Topic roadmap

1.Hydropower in energy mix

  • Compared to other sources (including renewables)

  • History of hydropower

  • Future of hydropower / hydrokinetic power

    2.How hydropower works

  • Look inside dam

  • Pros / cons of hydropower

    3.Regulation of hydropower

  • FERC licensing

  • Interested parties

    4.Future of hydropower

  • Types of hydrokinetic power

  • Regulation of hydrokinetic projects

Energy Flow, 2011 (Quadrillion Btu)


Energy Sources  Uses

Energy Sources

Energy production and use by state

2. How hydropower works

Click for video

Itaipú, Brazil – world’s largest hydroelectric power plant

  • In 2000, the power plant generated 93 MM MWHs

  • 20% of Brazil’s power supply in Brazil / 94%ofParaguay’s

  • 7,919 meters long, max height 196 meters (65-stories)

  • Generates more than the Three Gorges Dam (China).

Largest in the U.S. is the Grand Coulee Dam

  • Columbia River in Washington state.

  • Average power generation = 21 MM MWHs per year

  • Construction began in 1933, completed in 1942

Pros and cons


  • Reduce greenhouse gas emissions

  • Cheaper to operate (after initial costs; no fuel costs; low maintenance)

  • Stable generation source (compared to other renewables)

  • Ancillary benefits (i.e. flood control and irrigation)


  • Environmental impact: dams affect natural river systems, fish and wildlife

  • Dams affect/destroy communities

  • Interferes with navigation on water ways

  • GHG emissions: methane from vegetation, as well as CO2 from cement

“Let It Be” video on hydro dams

Prof Mark T Brown

Klamath River Restoration Project

3. How hydropower is regulated

True or false? Hydro power is the largest source of renewable energy in the United States, accounting for about 35% renewable energy and 8% of electric power generation.

Which is false –

Water power was a main source of energy in the US Industrial Revolution

States set up compensation schemes for property owners affected by dams

Common law remedies in water rights cases were uniformly displaced

Which is false --

Most hydropower projects are privately owned (though federally licensed)

The largest US dams are federally owned and operated

Federal agencies must get FERC license to operate hydro plant

FERC has post-license power to order removal of dam

4. True or false? States do not license hydropower projects; their only role is to provide financing to municipal hydro projects. See Iowa Hydro-Electric Coop v. FPC(US 1946).

Pop Quiz

Hydro Power

Answers: 1-T (2011) / 2-C (Fiske) / 3-C (Act) / 4-F

Federal hydro regulatory - timeline

Federal Energy Regulatory Comm’n & Dep’t of Energy (1977)

Udall v. FPC (US 1967)

Bonneville Power Administration (1937)

Tennessee Valley Authority (1933)

National Environmental Policy Act (1968)

Endangered Species Act / Clean Water Act (1973)

Electric Consumer Protection Act (1986)

FPA Amendments (1935)

Public Utility Regulatory Policy Act (1982)

Federal Power Comm’n (1920 / 1930)

Energy Security Act (1980)

Federal Power Act (1920)

National Power Policy (FDR 1934)

Hydropower Regulatory Efficiency Act (2013)






FERC hydro licensing



Preliminary permit?

State CWA certification?

  • Issue

  • license?

  • Comp Plan?

  • Water power?

  • EIS?

  • Public uses?

Retire hydro project?

PURPA exemption?

Judicial review?

Integrated licensing?


17 USC S 767

(e) Issue of licenses for construction, etc., of dams, conduits, reservoirs, etc. To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from, or in any of the streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands and reservations of the United States (including the Territories), or for the purpose of utilizing the surplus water or water power from any Government dam, except as herein provided: Provided, That licenses shall be issued within any reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be subject to and contain such conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservation: The license applicant and any party to the proceeding shall be entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, on any disputed issues of material fact with respect to such conditions. All disputed issues of material fact raised by any party shall be determined in a single trial-type hearing to be conducted by the relevant resource agency in accordance with the regulations promulgated under this subsection and within the time frame established by the Commission for each license proceeding. Within 90 days of August 8, 2005, the Secretaries of the Interior, Commerce, and Agriculture shall establish jointly, by rule, the procedures for such expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses, in consultation with the Federal Energy Regulatory Commission. Provided further, That no license affecting the navigable capacity of any navigable waters of the United States shall be issued until the plans of the dam or other structures affecting the navigation have been approved by the Chief of Engineers and the Secretary of the Army. Whenever the contemplated improvement is, in the judgment of the Commission, desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, a finding to that effect shall be made by the Commission and shall become a part of the records of the Commission: Provided further, That in case the Commission shall find that any Government dam may be advantageously used by the United States for public purposes in addition to navigation, no license therefor shall be issued until two years after it shall have reported to Congress the facts and conditions relating thereto, except that this provision shall not apply to any Government dam constructed prior to June 10, 1920: And provided further, That upon the filing of any application for a license which has not been preceded by a preliminary permit under subsection (f) of this section, notice shall be given and published as required by the proviso of said subsection. In deciding whether to issue any license under this subchapter for any project, the Commission, in addition to the power and development purposes for which licenses are issued, shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality.

Municipal Water has an old FPA hydro license for its dam on the Placid River that is about to expire. It applies to FERC for a new license.

Group #1: You represent Sierra Club, which wants the dam torn down

Group #2: You represent Development League, which wants the dam relicensed

Group #3: You represent State Conservation Dept, which wants new conditions added to license

Make your arguments …

4. Future of hydropower …

Click for video

Federal hydrokinetic regulation - timeline

Federal Energy Regulatory Comm’n & Dep’t of Energy (1977)

Udall v. FPC (US 1967)

Energy Policy Act (2005)

Dept of Interior Rule xxx (2009)

National Historic Preservation Act (1966)

Electric Consumer Protection Act (1986)

National Environmental Policy Act (1968)

Endangered Species Act / Clean Water Act (1973)

FPA Amendments (1935)

Public Utility Regulatory Policy Act (1982)

Federal Power Comm’n (1920 / 1930)

Energy Security Act (1980)

National Power Policy (FDR 1934)

Federal Power Act (1920)

Hydropower Regulatory Efficiency Act (2013)






True or false? Conventional hydro power relies on diverting water flows, while hydrokinetic power relies on natural water flows.

Which is true –

Hydrokinetic power, like wind power, is variable and far from population centers

FERC does not see a future for hydrokinetic power

Hydrokinetic projects are underway in Puget Sound

Hydrokinetic projects are underway in Europe

Which is false --

Hydrokinetic projects, like conventional hydro projects, must be licensed by FERC

FERC has jurisdiction over hydrokinetic projects on the OCS because on “navigable waters”

Hydrokinetic projects on the OCS must be licensed by the Department of the Interior

Hydrokinetic projects on the OCS must lease from the federal government (Dept of Interior)

4. True or false? States have licensing authority over hydrokinetic projects on their shores, before the OCS.

Pop Quiz

Hydrokinetic Power

Answers: 1-T / 2-D (Portugal) / 3-C (lease) / 4-F (FPA)

The end

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