DEP informs FERC of new agreements

The Dominion Post

May 13–W. Va. — The Federal Energy Regulatory Commission (FERC) recently denied rehearing requests from the state and from local entities regarding its orders approving hydroelectric projects at the Morgantown and Opekiska locks and dams.

In the wake of those denials, the state Department of Environmental Protection has worked out Memorandums of Agreement (MOAs) with the developer to satisfy state and stakeholder concerns about environmental issues and disruption of local recreational fishing.

FERC issued the licenses to Boston-based FFP Missouri, now called Rye Development but still referred to as FFP, in September. In October, the Department of Environmental Protection, the Division of Natural Resources, the city of Morgantown, the Mon River Trails Conservancy and the Upper Monongalia River Association all requested rehearing.

FERC rejected UMRA’s request in November, saying the association never moved to intervene in the case and therefore was not a party in the proceedings. FERC detailed its denial of the other requests in a 14-page order issued in March.

DEP informed FERC of the new agreements in a letter dated May 2.

Project background

The 5 megawatt (MW) Morgantown powerhouse would generate about 17.9 gigawatt hours (GWh) per year, FFP says on its project list. The 6 MW Opekiska powerhouse would generate at 23.9 GWh.

FFP estimates the two projects would power about 3,800 homes and expects to complete them during the first quarter of 2019.

FERC initially approved the licenses without required DEP water quality approval via what’s called a 401 Certification. In its orders, FERC says DEP misconstrued the deadline and filed its certification one month late, so FERC waived the requirement.

FERC reiterated the missed deadline issue in its March denial. As it explained, FFP filed its 401 Certification applications for the projects on Feb. 12, 2016. DEP deemed the applications complete on March 9, 2016, and said that according to state regulations, it had one year to act on the requests.

DEP approved the applications, with stipulations, on March 8, 2017, one day within the limit. But FERC asserted both times that the clock began when DEP received the applications, so it had only until Feb. 12, 2017, to act.

Because DEP missed the deadline, FERC said, it waived all 18 conditions DEP set forth in its March 8, 2017, certifications.

Commenting on not including the DEP’s conditions in its approval, FERC said its federal orders “are appropriately adapted to a comprehensive plan for the Morgantown and Opekiska dams, and balance waterpower development, the protection of fish and wildlife, and recreation.”

FERC adds, “FFP is free to work with West Virginia [DEP] to implement these measures which do not in any way interfere with the requirement of the licenses.”

DEP and the other stakeholders weren’t satisfied with ERC assurances about balance included in the March letter, so they took FERC up on its suggestion to work with FFP.

The agreements

The negotiated MOAs make binding the conditions contained in DEP’s March 8, 2017, letters to FFP. The 18 conditions in each are identical, except for a couple instances.

Among them:

* FFP must monitor water quality hourly upstream of the locks, entering the intakes and downstream, from May 1 through Oct. 31 each year.

* FFP will pay DNR annual financial mitigation for incidental fish takes due to project operations.

* After operations start, FFP will develop a fish-loss (called impingement and entrainment) monitoring study to submit to DEP and DNR for approval. Study findings will be used to determine future fish mortality costs.

* FFP will build and maintain heated, Americans with Disabilities Act-accessible 24-hour restrooms at both sites.

* At Morgantown FFP will build an ADA-compliant 24-hour fishing access platform on top of the powerhouse or on the three riverward sides, along with a 1,600-foot angler walkway (ADA compliant for the first 600 feet) that’s connected to the rail-trial.

* At Opekiska, a fishing pier will be built near the end of the outlet retaining wall, a 300-foot angler walkway and a boat slide.

DEP told FERC in its letter that it maintains its view of the deadline dates but reached the agreements to avoid spending taxpayer money on federal court litigation.

DEP provided The Dominion Post with its letter to FERC, the MOAs and the 2017 letters to FFP, but offered no comment.

Morgantown City Manager Paul Brake did comment. “I think overall this is a much more expeditious resolution. I consider it a win for the city.”

DEP was able to require FFP to adhere to its conditions, Brake said. The city was particularly concerned that FFP’s original plans lacked the amenities DEP secured and FERC’s approval didn’t address many impacts of the projects, including trail access and temporary trail relocation during construction.

Asked if the hydro projects might affect the trash that piles up behind the dams, he said FFP will have to go through permitting and it might be worthwhile having that discussion during the process. The trash might affect the plant operation and this might present the opportunity to find someone who could help with the problem.

Disclaimer: The opinions expressed within this article are the views of the writer and do not necessarily reflect the views and opinions of Waterways Council, Inc.