FERC Relicensing

• SCPSA issued notice of intent, preliminary application document, request to use Traditional License Process (TLP), and newspaper notice.
• Commission approved use of TLP.
• SCPSA conducted joint agency/public meeting and site visit.
• Resource agencies and tribes provided written comments.

• SCPSA completed reasonable and necessary studies.
• SCPSA provided draft application and study results to resource agencies and tribes.
• Resource agencies and tribes commented on draft application.
• SCPSA conducted meetings to resolve substantive disagreements.

• In March 2004, SCPSA filed final relicense application to FERC to relicense the Santee Cooper Project and sent copies to agencies and tribes.

• SCPSA’s 30-year FERC license expired.

• The project is operating under annual renewals issued by FERC until a new FERC license is issued.

• SCPSA, U.S. Fish and Wildlife Service (USFWS), and S.C. Department of Natural Resources reached a Relicensing Settlement Agreement to resolve Federal Power Act requirements. Under the Federal Power Act, FERC is required to include mandatory terms and conditions, prescribed under section 4(e), to ensure the protection and utilization of USFWS managed lands, and section 18, to include upstream and downstream passage of certain fish and aquatic species. FERC is also required to evaluate the inclusion of recommendations made under section 10(a), to ensure protection, mitigation and enhancement of USFWS managed resources and uses, and under section 10(j), to protect, mitigate damages to, and enhance fish and wildlife habitat.
• Key elements of the agreement:

1. 1. Increase minimum flows in the bypassed reach of the Santee River: The current minimum flow is 500 cubic feet per second (cfs). The new minimum should be 1,200 cfs part of the year and 2,400 cfs the rest of the year.
   2. Fish passage: Provide fish pass at the Santee Dam and assess existing fish passage effectiveness at the Pinopolis Dam.

• FERC issued the final environmental impact statement (dated October 2007) and requested National Marine Fisheries Service to initiate the formal consultation process required under section 7 of the Endangered Species Act. This section includes mitigating adverse impacts to fish habitat and developing a fishery management plan for endangered sturgeon.
• See FERC’s final Environmental Impact Statement document and figures.

• National Marine Fisheries Service issued a draft biological opinion stating the proposed action to relicense the Santee Cooper Project was likely to jeopardize the continued existence of shortnose sturgeon. SCPSA successfully disputed the determination that the continued existence of the Santee Cooper Project was likely to jeopardize the continued existence of sturgeon, or destroy or adversely modify its critical habitat.

• National Marine Fisheries Service and the U.S. Army Corps of Engineers agreed to address actions at St. Stephen Power Station directly and not through relicensing of the Santee Cooper Project #199.
• Santee Gateway Option identified and intended to focus on the historical passage and habitat for sturgeon that existed in the Santee River.

• Renewed discussions between SCPSA, National Marine Fisheries Service, S.C. Department of Natural Resources, and U.S. Fish and Wildlife Service regarding feasible measures to implement the Santee Gateway Option for sturgeon.

• National Marine Fisheries Service submitted drafts of the second modified prescription, or mandatory terms and conditions, and second biological opinion to FERC. SCPSA, FERC and S.C. Department of Natural Resources provided comments.

• FERC requested an update of the federally listed threatened and endangered species within the project boundary or potentially affected by the project. SCPSA responded in April 2020 with support from U.S. Fish and Wildlife Service and S.C. Department of Natural Resources.

• National Marine Fisheries Service (NMFS) issued the final second modified prescription, or mandatory terms and conditions, and the final second biological opinion to FERC. NMFS acknowledged the Cooper River and Lake Moultrie did not provide viable passage or habitat to sturgeon prior to the construction of the project. For this reason, the Santee Gateway Option is the preferred approach. The Santee Gateway Option is intended to focus on the historical passage and habitat for sturgeon that existed in the Santee River.
• See NMFS Second Modified Prescriptions and Second Biological Opinion.

• NMFS modified key elements of the original prescription:

(1) Upstream and downstream passage: Acknowledged it is premature to pass sturgeon from below both dams to above the dams because of significant uncertainty related to passage techniques for sturgeon and availability of suitable habitat in Lake Marion.                                                                 

(2) Reduce mortality and entrainment at Pinopolis Lock and Jefferies Hydro: Reduce the drain rate in the lock and relocate sturgeon from below Pinopolis Lock and Jefferies hydro to the bypassed reach of the Santee River.                                                              

(3) Provide adequate flows in the bypassed reach of the Santee River: Adaptive management may require increasing flows higher, up to 5,000 cfs, and for a longer duration than agreed to in the settlement agreement.

• SCPSA formed and leads the Resource Management Team, which includes National Marine Fisheries Service, S.C. Department of Natural Resources, U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers for coordination with St. Stephen project located within the Action Area, and S.C. Department of Health and Environmental Control for water quality review. The Action Area, as defined in the Endangered Species Act, means all areas that are affected directly or indirectly by the continued licensing of the Santee Cooper Project and not merely the immediate area within the project boundary.

• SCPSA submitted a request for Early Action Credit under Federal Power Act section 36(c) that specific project investments made over the term of the existing license should be considered by FERC when they establish the length of the next license term for the project. Based on the approximately $90 million investment in the project, SCPSA asked for a 50-year license term.

• SCPSA submitted a report (protected as Critical Energy Infrastructure Information) to assess conditions that will result if the minimum outflows at the Santee Dam are permanently increased.
• FERC approved the report and recommendations.

FERC issues new license order.

• The Adaptive Management Process is a type of natural resource management in which decisions are made as part of an ongoing, science-based process (source: Unified Federal Policy for a Watershed Approach to Federal Land and Resource Management). Adaptive Management is a cycle of Planning, Acting, Monitoring and Evaluating. Basic steps for Adaptive Management are:

1. Determine the goals for the resource.
2. Determine the method to test or evaluate if the goals are met.
3. Have the ability to change the action/activity based on the evaluation.

• Annually Aug. 1 to April 30 – Reduce the drain rate for Pinopolis Lock to not exceed 5 feet per second at the drain inlet.
• Estimate the number of sturgeon that enter the lock and are flushed through the drain ports with each lock operation.

• Study the effectiveness of upstream passage and annually estimate the number of American shad and blueback herring passing through the lock.
• Conduct eel sampling and develop an upstream passage plan.
• Assess sturgeon populations in the Cooper River.

• Study sturgeon habitat.
• Assess sturgeon populations.
• Conduct baseline population monitoring for shad and herring
• Test higher minimum flows and collect data.

• Only FERC may issue a license to construct, operate, and maintain a non-federal hydropower project. It has ultimate responsibility to decide whether to license a given project and, if so, under what conditions. As U.S. Congress intended in adopting the Federal Power Act (FPA) in 1935, this exclusive jurisdiction helps to ensure that non-federal hydropower projects are regulated in a consistent manner in and across river basins nationwide. However, state and other federal agencies have significant authorities to prescribe or recommend environmental measures such as minimum flows, not preempted by the FPA. In practice, FERC’s exclusive authority to issue a license is subject to checks and balances administered by other agencies. The community of agencies involved in licensing proceedings includes the following federal as well as state agencies:
  • U.S. Department of Commerce – National Marine Fisheries Service
  • U.S. Department of Interior – Fish and Wildlife Service
  • U.S. Department of Agriculture – Forest Service
  • U.S. Environmental Protection Agency
  • U.S. Army Corps of Engineers
  • State Agencies – S.C. Department of Health and Environmental Control and S.C. Department of Natural Resources
• FERC Electronic Library (Docket number P-199)
• U.S. Fish and Wildlife Service’s Hydropower Licensing Process 
• National Marine Fisheries Service role in relicensing hydropower projects
• FERC’s final Environmental Impact Statement
• NMFS Second Modified Prescriptions and Second Biological Opinion
• FERC Handbook and Guide to the Public for Hydropower Licensing