FERC Preliminary Permits

We got a lot of comments on the applications Grays Harbor Ocean Energy Company submitted to the Federal Energy Regulatory Commission (FERC) for preliminary permits. Many were submitted to the FERC on their website; others were posted to various community sites or other blogs. Many of these comments objected to the harm the commenters anticipated would occur from the building and operation of marine energy projects as described in the permit applications.

Most of these objecting comments reveal a lack of understanding of the FERC hydrokinetic process and especially the purpose and scope of a preliminary permit. The FERC outlines the process and notes a key facet of a preliminary permit:

These permits do not authorize construction. Rather, they give the developer priority to study a project at the specified site for the duration of the permit.

The preliminary permit is different from the license required to actually build and operate a project. A developer first obtains a preliminary permit to study a site; the permit is generally good for 36 months and requires reports to the FERC twice a year. A permit holder may subsequently apply for a pilot license, good for five years, which allows the construction and testing of a single demonstration unit to further assess project impacts and feasibility. A full license requires extensive studies, coordination with other permitting agencies, and intensive stakeholder engagement throughout the process.

The FERC has expanded on what comments are relevant to a preliminary permit application when ordering their issuance. For example [pdf]:

The majority of the comments filed addressed the construction of the project, including the cable to shore, and potential impacts the project might have on fish and wildlife, aesthetics, and navigation. As noted, a preliminary permit does not authorize a permittee to undertake any construction. Furthermore, the purpose of a preliminary permit is to study the feasibility of the project, including studying potential impacts. The issues raised in the comments are premature at the permit stage, but can properly be addressed in the licensing process.

The FERC also addressed in its Order of Rehearing on the Humboldt and Mendocino preliminary permits [pdf] how it generally does not consider environmental impacts in its decision to issue a preliminary permit:

By its terms, a preliminary permit gives the permit holder no land-disturbing or other property rights, nor does it authorize the placement of any test devices. This being the case, we generally do not consider environmental issues in issuing permits.

The FERC adds that because they result in "no environmental impacts" preliminary permits are only denied for a limited number of reasons:

Because the issuance of a permit can have no environmental impacts, there are few reasons for the Commission to deny a permit application. The Commission will deny a permit where it selects one competing permit application over another. As a matter of policy, the Commission has decided not to issue permits where there is a legal bar to issuing a license for the proposed project. We have also denied permits where we had completed an environmental analysis in a previous proceeding and decided that environmental considerations had made the site in question appropriate for hydropower development, and where a permit applicant was unfit to be a licensee.

Thus comments on potential threats to wildlife, views, quietude and the rest, while raising matters of legitimate concern, do so prematurely, as the preliminary permit is specifically designed to formally evaluate and investigate those concerns. That's what it is for.