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Introduced by Representatives Klein of East Montpelier, Ancel of Calais, Cheney of Norwich, Clarkson of Woodstock, Edwards of Brattleboro, Fisher of Lincoln, Jewett of Ripton, Maier of Middlebury, Marcotte of Coventry, Marek of Newfane, Masland of Thetford, McCullough of Williston, Minter of Waterbury, Morley of Barton, Mrowicki of Putney, Nuovo of Middlebury, Pellett of Chester, Rodgers of Glover, Sharpe of Bristol, Spengler of Colchester, Stevens of Shoreham, Trombley of Grand Isle and Zuckerman of Burlington

Referred to Committee on


Subject:  Public service; streamlined permitting; small, renewable energy projects

Statement of purpose:  This bill proposes to establish a streamlined process for permitting small, renewable energy projects that is based upon the existing process for net metering.  The bill also requires the secretary of natural resources to revise agency procedures for determining minimum stream flow with regard to small hydropower facilities, and requires that those procedures allow for minimum flow determinations to be based upon all existing Section 401 water quality certificates previously issued by the agency of natural resources.


It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  30 V.S.A. § 235 is added to read:


(a)  The public service board shall establish by rule or order streamlined standards and procedures governing application for, and issuance or revocation of a certificate of public good for the development or redevelopment of small, in-state renewable energy facilities with a generation capacity that does not exceed five MW that are owned or leased in whole or part by one or more public entities; provided that redevelopment shall not be authorized if prevented by existing agreements.  The streamlined process shall be based upon the process established for net metering under section 219a of this title, as appropriately revised by the board, and shall be able to be implemented in a timely and predictable manner.

(b)  With regard to applications for hydropower facilities, the procedures developed shall be available to proposed facilities that meet the following requirements:

(1)  Existing dams may be involved, but no new dams shall be included in the proposal.

(2)  There is a responsible owner of any structure involved.

(3)  Any dam involved may have received public funds for either construction or maintenance.

(4)  Any dams involved are basically structurally sound.

(5)  If an existing dam is involved, the operation of the facility shall be run-of-river, and not store and release.

(6)  If a dam is involved, it shall serve an additional purpose, which may include one or more of the following:  flood control; fish and wildlife habitat; recreation; water supply; historic resource; structural grade control for infrastructure such as bridges, roads, and houses that are located immediately upstream of an instream dam.

(7)  The proposal shall not include the addition of flashboards that increase upstream flooding, unless all adjacent owners are notified and agree.

(8)  The proposal assures that all efforts will be made to keep fish from entering the turbines.

(9)  If a diversion is required:

(A)  the diversion cannot extend more than one‑half the width of the river or stream when it is filled to the banks;

(B)  the penstock of the diversion shall have a diameter that is not greater than 10 percent of the width of the river or stream when it is filled to the banks;

(C)  the diversion shall be designed to discourage fish from entering the penstock.

(10)  Bypass flows will meet the agency of natural resources’ procedures for determining minimum stream flows, as revised pursuant to 10 V.S.A. § 1004.

(c)  With regard to hydropower applications, aesthetic standards of the Vermont water quality standards will be considered to be met with a bypass flow of 7Q10.

(d)  Hydropower applications and submissions to the Federal Energy Regulatory Commission (FERC) that did not result in the project being built shall be considered without resubmission of data if the facility is run-of-river, and the bypass flows meet the in-stream flow procedure revised under 10 V.S.A. § 1004.  In those situations, a previous 401 certificate shall be entitled to a rebuttable presumption of current validity.

(e)  At existing dams, the responsibility for retrofit for upstream fish passage is not the responsibility of the hydro-developer.  Upstream fish passage may be constructed by any interested party at the party’s cost.  The plans for upstream fish passage must be submitted to the hydro-developer in a timely manner to allow the proposed upstream fish passage to be incorporated into the design.

Sec. 2.  10 V.S.A. § 1004 is amended to read:

§ 1004.  STATE’S AGENT

(a)  The secretary shall be the agent to coordinate the state interest before the Federal Energy Regulatory Commission or public service board in all matters involving water quality and regulation or control of natural stream flow through the use of dams situated on streams within the boundaries of the state, and it shall advise the Federal Energy Regulatory Commission or public service board of the amount of flow considered necessary in each stream under consideration.  The agency of natural resources shall be the certifying agency of the state for purposes of section 401 of the federal Clean Water Act, and the secretary’s determinations on these certifications shall be final action by the secretary appealable to the environmental court.  The secretary shall be the agent of the state and shall represent the state’s interest under the provisions of the Federal Power Act, including those that protect state-designated outstanding resource waters.  However, the secretary’s authority shall not infringe upon the powers and duties of the public service board or the relations of that board to the Federal Energy Regulatory Commission as set forth in the Federal Power Act respecting water used for the development of hydro-electric power or projects incident to the generation of electric energy for public use as part of a public utility system.

(b)  By January 1, 2008, the secretary shall revise the “Agency Procedure for Determining Minimum Stream Flows, July 14, 1993” to achieve 7Q10 flows in bypasses and minimum flows based on all 401 Water Quality Certificates issued by the agency since June 30, 1977, with particular emphasis on 401s issued for run-of-river plants.  There will be no seasonal requirements because run-of-river projects have mechanical and structural limitations, such as penstock size and turbine minimum flow requirements, that obviate the need for seasonal flow requirements. 

(1)  The revised procedures:

(A)  shall apply to bypass flows for run‑of‑river hydro projects at existing dams, damless diversions, and in-stream turbines.

(B)  shall allow the development of bypass turbines for all run‑of‑river projects.

(C)  shall not require monitoring of dissolved oxygen at run‑of‑river facilities.

(D)  shall not require seasonal flows in bypasses at run‑of‑river facilities when design flow of turbine and size of penstock place mechanical limits on the amount of flow required to run the turbine. 

(2)  The revised procedures shall consider the minimum design flow of the turbine (except in the case of bypass turbines).  The minimum flow required for operation of the turbine shall be equal to or greater than the 7Q10 flow.  The turbine shall be shut down when flows are below the 7Q10 flows.

(3)  If a previous operating regime is in effect, the production of hydropower will be considered as a secondary use.  The operating regime for dams with existing uses such as recreation, fish and wildlife, water supply, or flood control will take precedence to run‑of‑river flow standards.

(4)  No new fish or flow studies shall be required of the applicant.  Flow requirements will be based on United States Geological Survey (USGS) long‑term gauge data at unregulated rivers with similar watershed characteristics and all previously issued 401 water quality certificates.  Fish studies will be the responsibility of the agency of natural resources.

(c)  The secretary shall develop a simple, non-narrative application process for receiving a 401 water quality certificate.  The process shall be timely and predictable.  The secretary shall act upon an application within three months of receiving a completed 401 application.  Proposed generation that complies with the standards established under subsection (b) of this section shall receive a 401 certificate under this simplified review process.  Meeting the standards established in all previous 401s shall mean that there is no undue adverse effect and shall constitute a rebuttable presumption of compliance with 401 requirements.

Sec. 3.  3 V.S.A. § 2822(j)(29) is added to read:

(29)  For 401 certificates under 10 V.S.A. § 1004:

(A)  private developers $5,000.00.

(B)  community, net-metered, and public projects $500.00.

Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont