7. Protection Strategies and Adaptive Management

This chapter outlines potential strategies to protect, mitigate, and enhance recreational resources from hydrokinetic projects. It describes the relevant laws and regulations that can be applied. It also outlines the adaptive management framework and the need for flexible and sound decisions to preserve recreational resources while further developing hydrokinetic technology. 

There are numerous laws and regulations that apply to hydrokinetic projects; Siting Methodologies for Hydrokinetics: Navigating the Regulatory Framework Handbook (PVE, December 2009) provides a good review.  Significantly, the Federal Power Act, as amended, and the National Environmental Policy Act (NEPA) create the overarching framework for protecting and enhancing environmental and recreational resources (see Chapter 8).  The Federal Power Act and related FERC guidelines require “equal consideration” of the public’s interest in recreation and power generation; they also require that FERC judge the project which will best able to protect, mitigate, and enhance beneficial public uses, including recreation.  Since hydrokinetic projects require actions (i.e. permits, leases, license, etc.) by at least one federal agency, they also need to comply with NEPA.  Depending on the lands and waters where a project is located, there may also be other requirements.

Council on Environmental Quality (CEQ) regulations for implementing NEPA (40 C.F.R. § 1508.2.) define mitigation as:

  • Avoiding the impact altogether by not taking a certain action or parts of an action.
  • Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
  • Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
  • Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
  • Compensating for the impact by replacing or providing substitute resources or environments.

 

The FERC process provides a framework for developers and stakeholders to work together to develop protection, mitigation, and enhancement (PME) measures.  The parties use the information learned through studying potential impacts to develop PME measures.  The type and amount of PME measures is negotiated on a case-by-case basis depending on the extent of the impacts involved.  FERC is the ultimate decision maker on which measures will be carried forward in the license to operate the project.  If the negotiated PME measures do not fit within the scope of FERC’s jurisdiction, settlement agreements and side-agreements are effective tools for stakeholders and developers to use.