FERC denies rehearings, Admirality Inlet tidal project proceeds

The Federal Energy Regulatory Commission has denied the requests for rehearing of two Commission orders involving the Admiralty Inlet Pilot Tidal Project, an experimental tidal energy hydroelectric project.

In a March 20, 2014 order (the license order), the Commission issued a 10-year license for the project to the Public Utility District No. 1 of Snohomish County, Washington. The 600-kilowatt (kW) project will be located on the east side of Admiralty Inlet in Puget Sound, Washington, about 0.6 miles west of Whidbey Island in Island County, Washington.

PC Landing Corp. and the Tulalip Tribes of Washington, intervenors in the licensing proceeding, filed requests for rehearing of the license order, and the Tulalip Tribes also filed a motion for a stay of the license. PC Landing argues that the order violates National Environmental Policy Act (NEPA) by failing to analyze the significant inherent risks to the underwater cable from marine operations around the cable, geologic unknowns, and interference with cable maintenance and repair.

Tulalip Tribes state that they have treaty-reserved rights under the Treaty of Point Elliot, reserving their right to take fish in usual and accustomed fishing areas. They maintain that because Admiralty Inlet is an adjudicated usual and accustomed fishing area, the Tribes’ right of access to these fishing grounds may not be infringed.

After the license was issued, the District filed a petition asking the Commission to declare that the Federal Power Act (FPA) preempts Washington State’s regulatory authority under its Shoreline Management Act (Shoreline Act) and that, as a result, the District is not required to obtain the state’s approval in the form of a shoreline use permit. In the law of the United States, federal preemption is the invalidation of a U.S. state law that conflicts with Federal law.

In a June 19, 2014 order (the preemption order), the Commission granted the District’s petition and denied the Tulalip Tribes’ motion for a stay.

PC Landing and the Tulalip Tribes filed requests for rehearing of the preemption order, arguing that it is premature, unnecessary, and inconsistent with law and Commission policy.

The Federal Energy Regulatory Commission denied rehearing of both orders and affirmed that the Admiralty Inlet Project can proceed without posing a significant risk to PC Landing’s telecommunications system or adversely affecting the Tribes’ access to their traditional fishing grounds. We further affirm that, in this case, the FPA preempts Washington’s Shoreline Act authority and a state permit is not required.

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Source: FERC; Image: flickr/British High Commission, Ottawa