The Federal Energy Regulatory Energy Commission has rebuffed efforts by the city of Fort Bragg and county of Mendocino to take an official role in Pacific Gas & Electric”s three-year wave energy study off Fort Bragg.
The commission rejected late motions to intervene in PG&E”s preliminary permit proposal by Fort Bragg, Mendocino County and FISH, a new non-profit composed of local fishers.
“Movants have failed to demonstrate good cause for granting their late interventions,” the March 5 ruling states.
The Mendocino County Board of Supervisors announced out of closed session Tuesday that county counsel has been authorized to pursue a petition for rehearing of the commission”s decision denying the county”s motion to intervene in the PG&E wave energy permit application and to file a motion to intervene in the GreenWave application, Supervisor Kendall Smith said.
Background
Locals first heard about the commission”s process to study and license power in the ocean shortly after PG&E”s filing on Feb. 27 of last year. It was clear the process was new and the commission had no mechanism to give local governments any official seat at the table.
FERC does not notify, much less consult with, local governments, a fact that has surprised local municipalities from Alaska to Kentucky to California. It explains in its ruling it does not feel local governments need an official role in the study process.
FERC”s process for studying and licensing “hydrokinetic energy,” created since the turn of the millennium in response to a wave energy proposal by the Makah Indian Nation in Washington, has swept the nation in the last six months.
The commission has defined the word hydrokinetic to mean any energy produced by moving waters that does not involve a dam. Preliminary permits are actually property claims similar to a mining claim, valid as long as it is worked (but only for three years in the case of the permits).
Thousands of square miles of oceans, rivers and tidal flats are being exclusively claimed for three-year study under preliminary permits. Tens of thousands of free-floating turbines have been proposed for placement in the Mississippi River alone. When this reporter has contacted local governments in those areas, many had not heard of the proposals.
There were 41 pending and 47 issued permits for ocean waves, ocean currents and tidal power as of Feb. 4. At that time there were 55 pending and 40 issued permits in rivers.
Although the commission wrote that it does grant late motions at times, it said the local agencies had no reason to be concerned about the three-year exclusive study permit the commission is considering granting to PG&E.
Intervener status
What would intervener status have meant?
“Any person or entity can make filings in any docket at any time. They are considered comments,” explained Celeste Miller, a Federal Energy Regulatory Energy Commission spokeswoman.
“If you have intervener status, you can appeal FERC decisions in the particular proceeding. In other words you have legal standing in a proceeding. If you filed for intervener status during the comment period (roughly April 6 to May 6 in this case) you are automatically given that status,” said Miller.
More specifically, if the commission liked one area for study, for example, and fishermen and the county did not, a hearing with FERC would have been held had local governments and fishermen been granted late status. The commission saw no reason to give fishermen or local governments an official role in issues such as where wave turbine arrays might be studied.
“Movants concerns lie with the actual project and not the permit, the issuance of which does not authorize the construction of the project,” the FERC ruling states.
“The issuance of a preliminary permit only allows the permittee the right to preserve the priority of application for a license while the permittee obtains data and performs feasibility studies. If PG&E files a license application for the project, then the movants” concerns can be addressed at that time,” the FERC ruling states.
A preliminary permit allows construction and deploying of wave energy devices, as long as those devices don”t plug into the grid, FERC officials and its rules, say. However, the preliminary permit does not give the holder the right to violate any local or state laws. Since there is no ocean zoning, just what that means is unclear.
Since FERC rejects the efforts of both local governments to be involved based on the fact there is no need to be involved at this stage, it is unclear why the intervener process exists at all.
Another factor is that the holder of a preliminary permit gets legal preference for a 30- to 50-year FERC conventional license. That means if PG&E completes its three-year preliminary permit study, the utility would be ahead of everybody else to develop Fort Bragg”s offshore waters for wave energy.
“If you have a preliminary permit, you have priority as long as the permit is in effect. Once the permit expires, you no longer have priority,” Miller said.
Miller responded to interrogation about the topic of how the commission could say a permit that leads to a license is irrelevant.
“I”m not sure what you are asking … The licensing process is an extremely open and public process,” Miller said.
Criticism and dispute
The Federal Energy Regulatory Commission has been criticized for awarding its permits and subsequently licenses, to the first company in line. In many areas, Limited Liability Companies, which are often used by speculators, have filed the claims. FERC has challenged many permits and has been rejecting some requests, but granting most.
The commission has also been criticized for rejecting widespread calls that it engage in a public process called rulemaking, which would define the rights of parties involved.
The federal Minerals Management Service, which has been engaged in an open feud with FERC over ocean hydrokinetic permitting, is now in the process of rulemaking. The MMS also seeks competitive bidding.
A memo of understanding has been created with the help of Congress. FERC is willing to sign the memoradum, FERC board member Philip Moeller told this reporter. However, the MMS told this reporter it would be inappropriate for the agency to sign until the legal process of rulemaking is complete.
The dispute reflects consistent criticism of FERC for being an agency that turns the environmental and pubic input process upside down — coming at the end, rather than the start of several processes.
PG&E spokesmen have said the public utility plans to fully involve local agencies and governments. But the ruling apparently means local people will have no official voice with FERC.
“PG&E respects and values the knowledge and expertise of the Mendocino County community,” said Ian Caliendo, local spokesman for the utility. “We wholeheartedly support continued dialogue with county and city officials, as well as local stakeholders, so that PG&E”s planning for the Mendocino WaveConnect Project can be best informed about environmental and stakeholder issues in order to minimize project impacts.”
Comment period timeline
The commission does explain its process in detail in the ruling, an explanation that local, state and even other federal officials have been seeking.
FERC explains that on April 6, 2007, the commission issued a public notice of the PG&E application and opened the 30-day comment period. However, the issuance was not sent to any local newspaper or local government. It was posted on the FERC Website. Later, legal ads were placed in the Ukiah Daily Journal, which has very little readership in the Fort Bragg-Mendocino area.
Late motions to intervene were filed by the county on Oct. 10 and the city of Fort Bragg on Dec. 5, 2007. Fishermen Interested in Safe Hydrokinetics (FISH Committee) filed their motion on Feb. 11, 2008.
Mendocino County argued good cause exists for its late intervention because it had no actual notice of PG&E”s application, FERC wrote.
“It only discovered the details of the application at the commission”s technical conference in Oregon on Oct. 2, 2007. It adds that it has an interest in the proceeding because the proposed project is located within the borders of its county and will potentially impact the county”s coastline, marine habitat, vistas, and economy,” the ruling states.
Similarly, Fort Bragg argued that it only recently became aware of the application because PG&E was not mandated to and did not contact Fort Bragg prior to filing its application. The city”s interest stems from the location of the proposed project, which would be immediately adjacent to Fort Bragg”s coastline, FERC”s ruling states.
FISH Committee, created in January 2008 with the purpose of representing and protecting the interests of the Mendocino County coastal fishing community, argued that it did not have an opportunity to intervene because it was created, as an unincorporated California entity, only after the filing deadline. It also argued that its members have specialized knowledge and experience with ocean conditions in the project area and have economic interests that are not adequately represented by other parties in the proceeding.
The commission says in response that it published notice in the Federal Register on April 12, 2007. In addition, the Ukiah Daily Journal published legal notices on April 16, 2007, April 23, 2007 and April 30, 2007, and May 7, 2007.
While FERC has issued many preliminary permits after considering them for only weeks, it has been mulling the PG&E application for nearly one year. The permits have been sitting for months without FERC action since the city and county filings were made.
“Allowing late intervention at this point in the proceeding would create prejudice and additional burdens on the Commission and the applicant,” the commission wrote.
