The Federal Energy Regulatory Commission last Friday (Oct. 6) rejected a preliminary permit for a large hydroelectric pumped storage project on the Susquehanna River near York, Pa. The commission said the application by York Energy Storage for a $2.1 billion project repeatedly failed to respond adequately to questions the FERC staff raised about the filing.
The project has been repeatedly proposed since the 1990s, and never advanced very far, largely because of fierce local opposition. The York Daily News reported, “It was first proposed in the 1990s with two separate companies filing proposals for the project with the Federal Energy Regulatory Commission. And then it was revived by yet another Boston-based company in 2011.” And each time, the Daily News noted, “the proposal did not get farther than being just on paper.”
The latest revival comes from a company York Energy Storage LLC founded in October 2021 near Reading, Pa., led William McMahon, an engineer who “was president of the company that had first proposed the project in the 1990s, when it was referred to as Cuffs Run.”
The 1,000-acre plan would create a 580-acre reservoir on top of a bluff known as Cuffs Run, 680 feet above the surface of a local lake fed by the Susquehanna River, with construction of a 225-foot dam and two small dikes. The developers claim it would generate up to 8,560 MWh over a 10-hour cycle. The new project first applied to FERC in February.
In July, FERC bounced the application requesting corrections to the filing, observing, “The letter noted that failure to correct the deficiencies may result in the application being rejected.” York Energy Storage filed its response in August. “However,” said FERC, “the preliminary permit application is still deficient” and the application was rejected. The deficiencies involved repeated problems with the maps the company submitted detailing the site. “For example,” FERC wrote, “the Attachment C-1 map does not appear to include the land area needed for the penstock, tailrace tunnels, intake/outlet structure, powerhouse, emergency spillway route, or the access road to the intake/outlet area and access tunnel.”
In other FERC hydro action, the commission staff has approved a final environmental impact statement for a relicense for Alabama Power’s Coosa River project, three separate hydro projects with a combined generating capacity of 970-MW. The final EIS is a step in a convoluted legal proceeding for the three-license combo, dating back 10 years.
In 2013, FERC issued a new license to combine the separate licenses for the Coosa River Project, Mitchell Dam Project, and the Jordan Dam Project. In April 2016, the commission ordered a rehearing to clarify some of the issues in the dam combination license. In September 2016, FERC reversed itself and denied rehearing.
Enter the courts. American Rivers and Alabama Rivers Alliance jointly asked the D.C. Court of Appeals to look at FERC’s 2013 order and both rehearing cases. In July 2018, the federal appeals court vacated the license and remanded the case to FERC. The court said the commission need to address issues related to dissolved oxygen; fish entrainment and turbine mortality; threatened and endangered species; and cumulative effects.
The staff EIS recommends issuing a new 30-year license with “measures proposed by the applicant, mandatory conditions included in Alabama Department of Environmental Management’s water quality certification, incidental take terms and conditions of the Biological Opinion submitted by the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act (ESA), recommendations made by state and federal agencies and non-governmental organizations, and additional staff-recommended measures.”
A federal appeals court Oct. 3 unanimously ruled that FERC is not subject to damages caused when a dam it has licensed failed and destroyed property in Michigan in May 2020. A three-judge panel of the Sixth U.S. Circuit Court of Appeals in the case of Allen v. United States ruled per curiam (“for the court”) found that FERC has sovereign immunity under the Federal Power Act.
The court opinion laid out the background. “When the elderly Edenville Dam near Midland, Mich., collapsed, it caused disastrous flooding. Daniel and Cathleen Allen lived downstream, and their home was among those destroyed. The Allens sued, alleging that the United States negligently entrusted operation of the Dam to an unfit operator. The district court dismissed the case for lack of subject-matter jurisdiction, holding that the government was entitled to sovereign immunity. We affirm.”
The earthen dam was built in 1924, forming a 2,600-acre lake, providing flood control and 4.8 MW of power. It operated without a license until 1998, when FERC issued a license to Wolverine Power Corp. to operate the dam. A year later, FERC ordered Wolverine to upgrade the dam’s spillway capacity. But Wolverine became insolvent and never made the spillway repairs.
In 2003, Synex LLC, which later became Boyce Hydro Power LLC, bought the license, promising to upgrade the spillway. The court wrote that Boyce “failed to deliver on that promise. Further, Boyce committed numerous other regulatory violations, including conducting unauthorized repairs, dredging, and land-clearing; failing to file a public safety plan; failing to construct proper recreation facilities; and failing to properly monitor water quality.”
FERC revoked the federal license in 2018 and jurisdiction passed to “Michigan’s Department of Environmental, Great Lakes, and Energy (EGLE), which regulates over 1,000 dams and is authorized to oversee their safe maintenance and construction.” EGLE inspected the dam, said it was in “fair” condition and could continue to operate.
On May 19, 2020, heavy rain cased the dam to collapse and many residents harmed sued Boyce, which went bankrupt in 2021. “The next day, the Allens brought this suit under the Federal Tort Claims Act for damages and restitution from the United States, arguing that FERC negligently entrusted Boyce with the Edenville Dam.” Sorry, said the district court, the Allens don’t have a federal case. The appeals court agreed. The licensees are responsible for damages, not FERC. In a footnote, the court observed, “The Allens never sued the State of Michigan.”
–Kennedy Maize
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