Subject: Hydroelectric License Regulations under the Federal
[Federal Register: September 18, 2002 (Volume 67, Number 181)]
[Proposed Rules]
[Page 58739-58751]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se02-19]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 4 and 16
[Docket No. RM02-16-000]
Hydroelectric License Regulations under the Federal Power Act;
Notice Requesting Comments and Establishing Public Forums and
Procedures and Schedule
September 12, 2002.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice requesting comments and establishing public forums and
procedures and schedule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) staff,
in conjunction with the United States Departments of Agriculture,
Commerce, and Interior, (jointly, the Federal Agencies), is providing
interested entities an opportunity to enter into discussions and make
comments and recommendations concerning adoption of a new hydropower
licensing process.
[[Page 58740]]
The Commission staff and Federal Agencies are also asking for
comments on: A proposal for a new licensing process developed by the
Interagency Hydropower Committee (IHC), consisting of staff from the
Commission and the Federal Agencies (Attachment A), and a proposal for
a new licensing process developed by the National Review Group (NRG), a
coalition of industry and non-governmental organizations (Attachment
B).
The two proposals share several common elements. Both the IHC and
NRG proposals are attached to this notice. The NRG proposal was filed
on September 10, 2002 in Docket No. AD02-5.
On November 7, 2002, the Commission will lead a public forum at the
Commission's headquarters in Washington, DC to discuss issues and
proposals associated with establishing a new licensing process. In
addition, the Commission staff and the Federal Agencies will co-sponsor
public and tribal forums for oral or written comments in locations
around the country.
The Commission staff and the Federal Agencies anticipate the
Commission will issue a Notice of Proposed Rulemaking proposing new
license application rules in February 2003. The comments and
recommendations made in response to this notice will form part of the
public record of that proceeding. The Commission is not, however,
proposing new regulations at this time.
Public and Tribal Forums: The forums to take oral and written
comments and recommendations will be held in various locations around
the country during October and November 2002, as further discussed in
Sections V and VI below.
DATES: Written comments are due on or before December 6, 2002. See
Section VI.
ADDRESSES: File written comments with the Office of the Secretary,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC, 20426. Comments should reference Docket No. RM02-16-
000. Comments may be filed electronically or by paper (an original and
eight (8) copies, with an accompanying computer diskette in the
prescribed format requested). See Section VI.
FOR FURTHER INFORMATION CONTACT: Federal Energy Regulatory Commission.
Timothy Welch, Office of Energy Projects, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
8760.
John Clements, Office of the General Counsel, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
8070.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Commission staff and Federal Agencies that have statutory
responsibilities under the Federal Power Act (FPA) (the Departments of
Agriculture, Commerce, and Interior, or Federal Agencies) are inviting
comments and recommendations concerning the need for the Commission to
establish a new hydropower licensing process.
Comments and recommendations are requested with respect to the need
for a new licensing process and regarding new licensing process
proposals. This notice explains the background of this issue, and
includes a list of questions and information on comment procedures. Two
attachments are also included describing new process proposals of the
Interagency Hydropower Committee (IHC), composed of staff from the
Commission and the Federal Agencies (Attachment A), and the National
Review Group (NRG), a coalition of industry and non-governmental
organizations (Attachment B).
II. Background
Statutory Framework
Sections 4, 10, 14, 15, and 18 of the Federal Power Act (FPA),\1\
as amended by the Electric Consumers Protection Act of 1986 (ECPA),\2\
provide the regulatory framework for the licensing of non-federal
hydroelectric projects.
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\1\ 16 U.S.C. 797, 803, 807, 808, and 811. Sections 4 and 10
apply to all licenses. Sections 14 and 15 are specific to the
issuance of a new license following the expiration of an initial
license.
\2\ Pub. L. No. 99-495, 100 Stat. 1243.
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Section 10(a)(1)\3\ provides that hydropower licenses issued must
be best adapted to a comprehensive plan for the affected waterways for
all beneficial public uses, and must include provisions for the
protection of fish and wildlife and other beneficial public uses, and
that the Commission must give fish and wildlife, recreation, and
environmental concerns equal consideration with power development.
Under Section 4(e),\4\ licenses for projects located within federal
reservations must also include conditions mandated by the department
which manages the reservation; in most cases the Departments of
Agriculture or Interior. Under Section 18, licenses must also include
fishways if they are prescribed by the Departments of Interior or
Commerce.
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\3\ 16 U.S.C. 803(a)(1).
\4\ 16 U.S.C. 797e.
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In addition, Section 401(a)(1) of the Clean Water Act \5\ requires
a license applicant to obtain from the state in which any project
discharge into navigable waters originates, certification that such
discharge will comply with applicable water quality standards, or
waiver of such certification. Section 401(a)(1) requires state water
quality certification conditions to be included in hydropower licenses.
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\5\ 33 U.S.C. 1341(a)(1).
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Other Federal statutes may also be applicable to a license
application. These include the Endangered Species Act,\6\ Coastal Zone
Management Act,\7\ and National Historic Preservation Act.\8\
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\6\ 16 U.S.C. 1531-1543.
\7\ 16 U.S.C. 1451-1465.
\8\ 16 U.S.C. 470-470w-6.
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Current Licensing Procedures
The Commission staff processes license applications in hearings
conducted by notice and comment procedures. Licensing procedures have
evolved over time in response to changes in the statutory framework,
increased public awareness of the need for increased environmental
protection, and as a result of the Commission efforts to make the
process more efficient and effective.
Under the existing ``traditional'' process, prior to filing an
application, applicants must consult with federal and state resource
agencies, affected land managing agencies, Indian tribes, and state
water quality agencies and must provide the consulted entities with
information describing the proposed project. The applicant must also
conduct studies necessary for the Commission staff to make an informed
decision on the application. Under the Commission's detailed
regulations concerning prefiling consultation and processing of filed
applications \9\ the formal proceeding before the Commission does not
begin until the application is filed. Accordingly, the Commission staff
do not generally participate in pre-filing consultation.
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\9\ See 18 CFR Parts 4 and 16.
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After an application is filed, the Federal Agencies with
responsibilities under the FPA and other statutes, the states, Indian
tribes, and other participants in the licensing process have
opportunities to request additional studies and provide comments and
recommendations. Federal Agencies with mandatory conditioning authority
also provide their conditions. The
[[Page 58741]]
Commission staff may also ask for additional information that it needs
for its environmental analysis. All of this information is incorporated
into the Commission staff's environmental review under the National
Environmental Policy Act (NEPA).\10\
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\10\ 42 U.S.C. 4321, et seq.
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The Commission's regulations also provide for an alternative
licensing process (ALP) which combines the pre-filing consultation
process under the FPA with the environmental review process under
NEPA.\11\ Under this process, the parties work collaboratively prior to
the filing of the application to develop the application and a
preliminary draft NEPA document, and generally anticipate efforts to
conclude a settlement agreement. The Commission staff also participate
to a greater extent than under the traditional process.
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\11\ 18 CFR 4.34(i).
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Reform Efforts
There is widespread agreement that additional improvements are
needed to further the goals of reducing the cost and time of licensing
without sacrificing environmental protection and the fulfillment of
other statutory responsibilities. The President's National Energy
Policy report included recommendations for hydropower reform to make
the licensing process more clear and efficient, while preserving
environmental goals. The Commission, the Federal Agencies, and
hydropower program stakeholders are engaged in many activities to
achieve this goal.
The Commission staff's ongoing efforts include an Outreach Program
in which interested persons meet with members of the licensing staff to
learn about the licensing process and related Commission laws and
regulations; various interagency training activities; encouragement of
settlements through the use of Alternative Dispute Resolution, and
issuance of guidance documents.\12\ In May 2001, the Commission staff
prepared a comprehensive report on hydro licensing, including
recommendations designed to reduce the time and cost of licensing.\13\
The Commission also held in December 2001, a Hydroelectric Licensing
Status Workshop to identify and focus attention on long-pending license
applications and find ways to bring these cases to closure.\14\ The
Commission staff also held regional workshops with states on how better
to integrate Commission licensing processes with the states' Clean
Water Act responsibilities.
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\12\ Staff guidance documents include the Licensing Handbook,
Environmental Analysis preparation, and ALP guidelines. All of these
are posted on the Commission's Web site (http://www.ferc.gov/hydro).
\13\ Report to Congress on Hydroelectric Licensing Policies,
Procedures, and Regulations--Comprehensive Review and
Recommendations Pursuant to Section 603 of the Energy Act of 2000,
Federal Energy Regulatory Commission, May 2001 (Section 603 Report).
The report can viewed at www.ferc.gov/hydro/docs/section603.htm.
\14\ The Commission staff established Docket No. AD02-05 for the
workshop proceeding. A number of entities have made filings in that
proceeding with recommendations for improvements to the licensing
process.
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Federal agencies have also worked cooperatively on a number of
efforts to improve the licensing process. For example, the Commission
staff, the Departments of Interior, Commerce, Agriculture, and Energy,
the Council on Environmental Quality, and the Environmental Protection
Agency formed an Interagency Task Force to Improve Hydroelectric
Licensing Processes (ITF). The ITF's efforts resulted in a series of
commitments and administrative actions intended to make the licensing
process more efficient, effective, and timely.\15\
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\15\ Reports issued by the ITF, which consists of the Federal
Agencies that also participated in the IHC, have been made public
and are posted on the Commission's Web site on the hydro page. See
www.ferc.gov/hydro/docs/interagency.htm.
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More recently, in July of 2001, senior managers from the Commission
staff and other Federal agencies formed the IHC to build on the
commitments developed by the ITF and to develop additional procedural
modifications that would further reduce the process time and cost of
licensing while maintaining environmental protections. The IHC
developed a proposal for an integrated licensing process. A detailed
description of the IHC proposal, which has not previously been made
public, is attached to this notice (Attachment A).
Another integrated licensing process proposal has also been
developed and circulated for comment by the NRG, a multi-stakeholder
forum consisting of representatives from industry and non-governmental
organizations. A detailed description of the NRG proposal is also
attached to this notice (Attachment B).
A common theme that underlies all of the efforts described above is
the need to reduce the time and the cost of the licensing process,
improve the quality of decision-making, and ensure early resolution of
disputes. One reform concept that shows particular promise is a
licensing process that integrates an applicant's prefiling consultation
with resource agencies, Indian tribes, and the public with the
Commission staff's NEPA scoping (integrated process). Such an approach
could differ from the ALP in several respects, such as ensuring the
Commission staff involvement at all stages, establishing deadlines for
all participants, providing a more effective vehicle for study dispute
resolution than currently exists, and better integrating the Commission
staff actions with the actions of other federal agencies with statutory
roles under the FPA.
III. Request for Comments
The Commission staff and the Federal Agencies request comments on
the need for a new licensing process.\16\ In particular, the Commission
staff and the Federal Agencies request that commenters address the
following questions, and provide any additional comments and
recommendations concerning the need for and appropriate structure and
content of new licensing procedures. Commenters are strongly urged to
make their responses as specific as possible and to offer tangible
solutions to any identified problems so as to maximize their
usefulness. Commenters are also requested to provide specific responses
to these questions in relation to the IHC proposal, the NRG proposal,
and any other proposals, and to clearly identify the question(s) to
which they are responding and the specific proposal, if any, they are
addressing.
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\16\ The U.S. Environmental Protection Agency participated in
the IHC deliberations and is also expected to participate in the
rulemaking proceeding.
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1. Need for New Licensing Process: (a) Is there a need for a new
licensing process? (b) If so, what key issues should a new process
address, and how might a new process be structured to resolve those key
issues?
2. Integrated Process: (a) Should the Commission adopt an
integrated process as referenced above in Section II? (b) How might an
integrated process be structured to save time and be more efficient?
(c) Are there issues unique to the processing of original license
applications or new license applications that need to be addressed in
an integrated process? If so, what are they and how should they be
addressed? (d) Would an integrated process improve the development and
timing of mandatory conditions?
3. Settlements: (a) Should a new licensing process include specific
provisions to accommodate settlement negotiations? (b) If so, what
might those provisions include?
4. Information Development (Studies): (a) What licensing process
changes, if any, are needed to ensure development
[[Page 58742]]
of information and studies in a timely and cost-effective manner? (b)
Do elements of the IHC and/or NRG proposals adequately address this
issue?
5. Study Dispute Resolution: (a) Do the existing Commission
regulations provide an adequate process for resolving study disputes?
(b) Do elements of the IHC and/or NRG proposals adequately address this
issue?
6. Time Periods: Do the specific time periods between steps in the
IHC and/or NRG proposals appear to be reasonable?
7. State Processes: How might a new licensing process better
accommodate the State certification process pursuant to Section 401 of
the Clean Water Act and/or a consistency determination under the
Coastal Zone Management Act?
8. Tribal Roles and Responsibilities: How best can a new licensing
process accommodate the authorities, roles and concerns of Indian
tribes?
9. Optional Processes: If the Commission adopts a new licensing
process, should it also retain the traditional and/or ALP processes?
IV. Process and Schedule for Rulemaking
The Commission staff and Federal Agencies anticipate a future
Commission rulemaking proceeding proposing to establish a new licensing
process. The comments and recommendations received in response to this
notice will form part of the record of that proceeding. A Notice of
Proposed Rulemaking (NOPR) is tentatively scheduled for February 2003.
The NOPR would be followed by an opportunity for further comments and
technical conferences in the Spring of 2003. A final rule would be
issued in the fall. It is further anticipated that the Federal Agencies
with statutory responsibilities under the FPA will work together with
the Commission staff and others to develop draft and final rules. The
Commission, however, is the sole decisional authority with respect to
any draft or final rule.
V. Public and Tribal Forums
On November 7, 2002, the Commission will lead a public forum at the
Commission's headquarters in Washington, DC to discuss issues and
proposals associated with establishing a new licensing process. In
addition, the Commission staff and the Federal Agencies will co-sponsor
public and tribal forums for oral or written comments in the cities and
on the dates established in the following table.\17\ Specific details
regarding meeting structure and procedures for providing oral comments
with respect to each forum will be posted on the Commission's web site.
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\17\ The tribal forums are intended to address tribal issues;
however, anyone may attend either forum.
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Location Date/Time
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Milwaukee, Wisconsin, Courtyard Milwaukee Public: October 16, 2002, 9 am-4 pm.
Downtown, 300 W. Michigan St. 414-291- Tribes: October 17, 2002, 9 am-4pm.
4122.
Atlanta, Georgia, Marriot Century Center, Tribes: October 23, 2002, 9 am-4 pm.
2000 Century Boulevard, 404-325-0000. Public: October 24, 2002, 9 am--4pm.
Commission-Sponsored Public Forum, November 7, 2002, 9 am-4 pm.
Commission Meeting Room, Commission
Headquarters, 888 First Street, NE,
Washington, DC.
Bedford, New Hampshire, Wayfarer Inn, 121 Tribes: November 13, 2002, 9 am-4 pm.
S. River Road, 603-622-3766. Public: November 14, 2002, 9 am-4pm.
Sacramento, California, Sheraton Grand Public: November 19, 2002, 9 am-4 pm.
Sacramento, 1230 J Street, 916-341-3600. Tribes: November 20, 2002, 9 am-4pm.
Tacoma, Washington, Sheraton Tacoma, 1320 Tribes: November 21, 2002, 9 am-4 pm.
Broadway Plaza, 253-572-3200. Public: November 22, 2002, 9 am-4pm.
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VI. Public Comment Procedures
The Commission staff and the Federal Agencies invite all interested
persons to submit comments in response to this notice and attend the
public forums.
Comments may be filed by paper or electronically via the Internet
and must be received by the Commission by December 6, 2002. Electronic
filing is strongly encouraged. Those filing electronically do not need
to make a paper filing. For paper filings, an original and 8 copies of
such comments (with an accompanying computer diskette in the prescribed
format requested) should be submitted to the Office of the Secretary,
Federal Energy Regulatory Commission, 888 First Street, NE, Washington,
DC 20426 and should refer to Docket No. RM02-16-000.
Comments filed via the Internet must be prepared in WordPerfect, MS
Word, Portable Document Format, or ASCII format. To file the document,
access the Commission's web site at www.ferc.gov and click on ``e-
Filing,'' then follow the instructions on each screen. First time users
will have to establish a user name and password. The Commission staff
will send an automatic acknowledgment to the sender's e-mail address
upon receipt of comments.
User assistance for electronic filing is available at 202-502-8258
or by e-mail to efiling@ferc.gov. Comments should not be submitted to
the e-mail address. All comments will be placed in the Commission's
public files and will be available for inspection in the Commission's
Public Reference Room at 888 First Street, NE, Washington, DC 20426,
during regular business hours. Additionally, all comments may be
viewed, printed, or downloaded remotely via the Internet through the
Commission's Homepage using the FERRIS link. User assistance for FERRIS
is available at 202-502-8222, or by e-mail to
public.referenceroom@ferc.gov.
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VII. Document Availability
In addition to publishing the full text of this document in the
Federal Register, the Commission staff provides all interested persons
an opportunity to view and/or print the contents of this document via
the Internet through the Commission's Home Page (http://www.ferc.gov)
and in the Commission's Public Reference Room during regular business
hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE,
Room 2A, Washington, DC 20426.
From the Commission's Home Page on the Internet, this information
is available in the Federal Energy Regulatory Records Information
System (FERRIS). The full text of this document is available on FERRIS
in PDF and WordPerfect format for viewing, printing, and/or
downloading. To access this document in FERRIS, type the docket number
excluding the last three digits of this document in the docket number
field.
User assistance is available for FERRIS and the Commission's
website during regular business hours from our Help line at (202) 502-
8222 or the Public Reference Room at (202) 502-8371, TTY (202) 502-
8659. Please e-mail the Public Reference Room at
public.referenceroom@ferc.gov.
List of Subjects
18 CFR Part 4
Licenses, Permits, Exemptions, and Determination of Project Costs.
18 CFR Part 16
Procedures Relating to Takeover and Relicensing of Licensed
Projects.
Magalie R. Salas,
Secretary.
Attachment A
Interagency Hydropower Committee Proposal for an Integrated
Licensing Process
1. Introduction
Hydropower projects licensed by the Federal Energy Regulatory
Commission (Commission) produce over five percent of all electric
power generated in the United States, making them an important part
of the nation's energy mix. Pursuant to Part I of the Federal Power
Act of 1935 (FPA),\18\ as amended by the Electric Consumers
Protection Act of 1986 (ECPA),\19\ the Commission is responsible for
determining whether and under what conditions to issue licenses for
the construction, maintenance and operation of non-federal
hydropower projects. The Departments of Agriculture, Commerce, and
Interior (hereafter ``federal resource agencies'') are responsible
for providing conditions and prescriptions (hereafter
``conditions''), and recommendations to protect and enhance natural,
cultural, recreational and tribal trust resources, including fish
and wildlife, and to ensure that hydropower projects on federal
lands are consistent with the management objectives for those lands.
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\18\ 16 U.S.C. 797, 803, 807, and 808.
\19\ Pub. L. 99-495, 100 Stat. 1243.
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Streamlining the licensing process while continuing to find
public interest solutions that balance power generation, natural and
cultural resource protection, recreation, irrigation, flood control,
and other public purposes is essential to ensuring the viability of
this energy source. The Commission and the federal resource agencies
recognize the need to exercise their respective authorities in a
manner that best serves the public interest and each supports
measures to improve coordination of their statutory
responsibilities.
Accordingly, last year, the Commission staff, the Departments of
Agriculture, Commerce and Interior, and the Environmental Protection
Agency formed a staff-level committee, the Interagency Hydropower
Committee (IHC), to assess procedures that currently govern the
hydropower licensing process.\20\ The IHC recognizes that improved
coordination will help to eliminate duplication and conflicts,
expedite implementation of agreed upon measures, and reduce the
overall time and cost of the licensing process while ensuring the
development and implementation of necessary environmental
protections. To help achieve these objectives, the IHC has developed
a proposal for an integrated licensing process.
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\20\ The IHC also received assistance from the Council on
Environmental Quality and the Advisory Council on Historic
Preservation.
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The proposal is intended to enable the early identification of
issues and objectives, reduce duplication of procedures and
analyses, improve environmental review and documentation, coordinate
discretionary authorities, and expedite post-application procedures.
The federal parties believe the proposal will help stimulate the
necessary public comment and input needed to produce a new licensing
process that can be supported by the Commission, license applicants,
state and federal agencies, Indian tribes, non-governmental
organizations (NGOs), and other stakeholders.
2. Benefits of the Proposal
The IHC proposal addresses aspects of the existing license
process that have: (1) Caused lengthy delays in processing license
applications, (2) interfered with the development of a single
consistent record from which each federal agency with statutory and
trust responsibilities can base its decisions, (3) affected the
quality and timeliness of information needed by the agencies to
carry out their responsibilities, and (4) resulted in litigation on
individual licensing actions. Addressing these problems should
streamline the licensing process, reduce costs, and add certainty
and predictability for the license applicant and all stakeholders.
Specifically, the proposal addresses the issues listed in sections
2.1 through 2.6.
2.1 Eliminates Duplication in the National Environmental Policy Act
(NEPA) Scoping and Information Development Processes
The Commission's traditional and alternative licensing processes
both require that the license applicant identify issues associated
with the project and propose measures to address those issues before
a license application is filed. The public, federal and state
agencies, NGOs, and Indian tribes currently assist the license
applicant to varying degrees in identifying and analyzing resource
issues associated with the project during this pre-application
period. However, the Commission staff generally does not engage in
formal NEPA scoping until after the license application is filed. At
that time the Commission staff scopes the issues, accepts additional
study and information requests by stakeholders, and develops its own
analysis of the potential project effects.
The proposal combines the license applicant's pre-filing
consultation with the Commission staff's NEPA scoping process to
improve efficiency, reduce duplication, and expedite the development
of necessary information to meet the needs of all parties. By
initiating the formal proceeding early in the pre-application stage,
scoping would occur one time, and agreement could be reached on
study and information needs by the Commission staff and the resource
agencies and Indian tribes before the studies are implemented.
The proposal further facilitates the Commission staff's scoping
process by replacing the applicant's existing Initial Consultation
Document with a ``Pre-Scoping Document,'' developed in the same
format as the Commission staff's NEPA scoping document. The Pre-
Scoping Document would identify information gaps and include project
information, documentation of previous consultations, a description
of project effects and issues, and an initial list of potential
stakeholders. The Commission staff, federal resource agencies, and
stakeholders would comment on the Pre-Scoping Document immediately
following the filing of the license applicant's Notice of Intent to
seek a new license. The applicant would then file a revised Pre-
Scoping Document with the Commission in light of the comments it
received. The Commission staff would use the applicant's Pre-Scoping
Document to develop its Scoping Document 1.
2.2 Resolves Disagreements Early in the Licensing Process and Ensures
an Adequate Evidentiary Record
The Commission and the federal resource agencies with
conditioning authority are required to support their decisions with
substantial evidence. Federal resource agencies may find that
studies required by the Commission staff are not sufficient to
support the substantial evidence requirement with respect to the
exercise of their own conditioning authorities. Study disputes
between resource agencies and applicants are often not resolved
during pre-filing consultation. This may lead to delays in the
filing of conditions and to requests for rehearing of licensing
orders, further delaying the ultimate conclusion of the proceeding.
[[Page 58744]]
The IHC proposal includes a dispute resolution process that
ensures study disputes will be resolved pursuant to clear criteria
and that studies will be conducted without unnecessary delay. The
intent of this process is to resolve issues before costly studies
are implemented, to help ensure that the licensing process continues
on schedule, and to help ensure that all agencies with statutory and
trust responsibilities have a record adequate to support their
decisions.
2.3 Includes Time Frames for All Participants
The existing licensing processes lack predictable time frames.
This affects the ability of all participants to efficiently utilize
their time and resources.
The proposal provides specific time frames for each step of the
process, including actions by the Commission staff, applicants,
Indian tribes, federal resource agencies, and other stakeholders.
The proposal, with its associated time frames, is expected to
significantly reduce the time required to conclude a licensing
proceeding.
2.4 Facilitates Earlier Stakeholder Involvement
The traditional licensing process emphasizes pre-filing
consultation with resource agencies and Indian tribes, but provides
limited opportunity for involvement by other potential stakeholders.
As a result, public involvement in the licensing process is often
delayed until after an application is filed. This can result in new
issues being raised after an application is filed, as well as
additional study requests, thereby lengthening the process.
The proposal would address this problem for new licenses by
requiring an existing licensee to broadly distribute a Pre-Scoping
Document to resource agencies, Indian tribes, and other potential
stakeholders at the time it files its Notice of Intent to seek a new
license, 5 to 5\1/2\ years before license expiration. The Commission
staff's public notice of the applicant's decision to seek a new
license would invite comment by all concerned entities on the Pre-
Scoping Document.
2.5 Enables Concurrent Filings of Federal Resource Agency Conditions
Under the existing licensing processes, the Departments of
Commerce and Interior file their modified conditions after the close
of the Commission staff's draft NEPA comment period and the
Department of Agriculture files its final conditions after the final
NEPA document has been completed. Non-concurrent filings by the
federal resource agencies could result in conflicting conditions and
may delay the licensing process.
The proposal provides for concurrent filing of agency conditions
prior to the completion of the Final NEPA document, which minimizes
the potential for conflicting conditions, and helps to avoid the
need for additional post-NEPA analysis.
2.6 Ensures the Development of Adequate Information in Support of Any
Settlement Discussions
The Commission's policy is to support settlement agreements that
are consistent with the law and Commission policies. The federal
resource agencies also support efforts to achieve settlement during
the licensing process. Settlement agreements are more likely to
result in the early implementation of environmental measures,
continued cooperation among the stakeholders, and a license that is
acceptable to all participants.
The proposal establishes a process by which licensing issues are
scoped and studies are agreed to within a time frame that will allow
the developed information to be used for settlement discussions.
This should ensure that agreements reached will be supported by
adequate information in the record.
3.0 IHC Proposal
The following discussions outline the specific steps and
associated time frames of the IHC proposal. The proposal would
provide for an advanced notice of license expiration; initiate the
formal Commission proceeding when a license applicant files its
Notice of Intent to seek a new license (NOI); allow for early NEPA
scoping and timely resolution of study disputes; implement studies
to ensure the development of complete information in support of a
license application; and provide for the concurrent submission of
the federal resource agencies' mandatory conditions.
Sections 3.1 through 3.7 describe the proposal in detail. A
step-by-step flowchart is provided at the end of the attachment and
is posted on the Commission's website (www.ferc.gov).
3.1 Advance Notice of License Expiration
In order to ensure that as much existing information as possible
is available for the Commission staff's scoping efforts, three years
prior to the NOI, the Commission staff would notify the licensee of
its pending license expiration and would provide a list of basic
information needs and resource agency and tribal contacts. The
licensee would be encouraged to contact the resource agencies and
Indian tribes regarding their upcoming licensing activities.
3.2 Pre-scoping, Initiation of Formal Commission Proceeding
Between 5 and 5\1/2\ years before the license expires, the
license applicant would file its Notice Of Intent to seek a new
license (NOI) with the Commission. In lieu of the Initial
Consultation Document required by the existing regulations, the
license applicant would distribute a Pre-Scoping Document (PSD) to
the Commission and other stakeholders (e.g., state and federal
resource agencies, Indian tribes, non-governmental organizations,
local communities, and the public). The PSD would include project
information, documentation of previous consultations, a description
of project effects and issues, and an initial list of potential
stakeholders. The license applicant would be encouraged to work with
stakeholders and with the Commission staff to determine resource
impacts and information needs before issuing its PSD. Within 15 days
of the NOI, the Commission staff would initiate the proceeding by
issuing public notice of the applicant's NOI and commencing NEPA
scoping.
Within 60 days of initiating the formal proceeding, stakeholders
and the Commission staff would provide comments on the PSD and have
the opportunity to submit study requests to the license applicant.
The license applicant would have 45 days to incorporate comments
into its PSD (including an explanation of why any comments were not
adopted) and to develop and include a detailed study plan (e.g.,
study proposals, methodologies, progress reports, and schedules)
that considers any study requests. The PSD would then be filed, and
the Commission staff and the license applicant would coordinate
scoping meetings and a site visit.
3.3 Scoping, Development of Final Study Plan
Within 45 days after the license applicant files its PSD, the
Commission staff would issue its Scoping Document 1 (SD-1) based on
the PSD provided by the applicant and notice the scoping meeting(s).
The Commission staff would include the license applicant's study
plan as an appendix to SD-1. The scoping meetings would be an
opportunity for discussion of project-related issues including the
applicant's study plan. Within 30 days of the scoping meetings, the
license applicant and stakeholders would file comments on SD-1 with
the Commission, and the Commission staff and stakeholders would
provide comments regarding the study plan to the license applicant.
The license applicant would then have an additional 30 days to
revise its study plan as necessary to reflect stakeholder comments
and file it with the Commission.
If a federal resource agency or Indian tribe disagreed with the
Commission staff's initial decision on the applicant's revised study
plan, it would request the Commission staff to initiate the study
dispute resolution process. The purpose of the study dispute
resolution process would be to resolve disagreements between the
resource agencies, Indian tribes, and the Commission staff regarding
the need for and technical aspects of a requested study prior to
implementation of the study phase of the process. By resolving
studies at that time, additional information and study requests
after the application has been filed should be rare.
If there were no disagreements on the study plan, the Commission
staff would complete Scoping Document 2 (SD-2) within 30 days and
studies would be implemented according to the final study plan and
schedule included in SD-2.
3.4 Study Dispute Resolution Process
The proposed study dispute resolution process would maintain the
Commission's ultimate authority to determine which studies were
required, based on objective criteria that account for the
information needs of the Commission staff and the federal resource
agencies with statutory responsibility for formulating
recommendations and conditions. The license applicant and all other
stakeholders would have the opportunity to provide input that would
be considered during the process. The study dispute resolution
process would be completed within 60 days from the date that the
final study plan was filed with the
[[Page 58745]]
Commission and the Commission staff would have an additional 30 days
to complete SD-2. See section 4 for a detailed description of the
study dispute resolution process.
3.5 Study Period, Development of Draft License Application
Studies included in the final study plan would be implemented
according to the schedule in SD-2. The study period would include an
ongoing evaluation and review process in which the applicant, the
Commission staff, and stakeholders, would ensure that studies were
being conducted as described in the study plan and would
periodically review the data being collected. This review could
result in proposed modifications to the study plan, which would be
subject to the study dispute resolution process. It is assumed that
in most cases two years would be required to conduct studies.
Following completion of the first year of studies, the license
applicant, the Commission staff, and stakeholders would review the
data and determine whether modifications to the study plan were
warranted based on the initial results. The study dispute resolution
process would be utilized to resolve any differences. The second
year of studies would then be conducted, and would include the
ongoing evaluation and review process.
At the conclusion of the second year of studies, the license
applicant, the Commission staff, and stakeholders would meet to
determine: (1) If the studies had or would yield information
necessary to complete the Commission staff's NEPA document, and (2)
if the information collected was sufficient for the federal resource
agencies to develop their recommendations and conditions.
Continuation or modification of the study plan may be requested and
dispute resolution would again be available.
Following the second year of studies, the applicant would file a
draft license application with the Commission, even though some
final study results may be pending. The environmental section in the
draft application would be in a similar format as the environmental
analysis section of the Commission staff's NEPA document. Within 60
days, stakeholders would file detailed comments on the draft
application, including preliminary input on the appropriate level of
NEPA analysis. The Commission staff comments would be filed 30 days
after stakeholder comments to ensure that the Commission staff had
all necessary information before providing its input.
If additional information were needed, the applicant, the
Commission staff, and stakeholders would develop a schedule allowing
such information to be obtained prior to the applicant filing its
draft application. If sufficient time was not available to develop
the information before filing the license application (two years
before the current license expired), then the Commission staff,
applicant, and stakeholders would develop a time line for providing
that information and the Commission staff would issue a revised
schedule for its post-application actions. The study dispute
resolution process would be available as needed.
3.6 Development of Final License Application
Within 60 days after receiving comments on the draft license
application, the applicant would file its final license application
(including applicable responses to comments and an application
summary) with the Commission. Within 15 days, the Commission staff
would issue a notice that the application was filed, which would
include a processing schedule.
Following the notice of application filed, the Commission staff
would have 45 days to: (1) Determine if the application met the
Commission's filing requirements (i.e., to determine if any
additional information was needed by the Commission staff to process
the license) and (2) to issue a notice accepting the application and
requesting interventions, recommendations, and conditions. The
notice would also request recommendations on the level of NEPA
analysis to be completed [Environmental Analysis (EA) or
Environmental Impact Statement (EIS)], and on whether issuance of a
draft is necessary should the Commission staff decide to develop an
EA. If the application did not meet the Commission staff's needs, it
would request additional information.
Stakeholders would have 60 days from the date of the Commission
staff's notice to file requests to intervene and to file comments,
recommendations, and conditions. If submitting preliminary
conditions, the federal resource agencies would also submit a
schedule for producing final conditions.
3.7 Post-Filing, NEPA Analysis, License Issuance
The IHC proposal includes separate tracks depending on whether
the Commission staff issues a draft NEPA document. Track A
anticipates draft and final NEPA documents and Track B anticipates a
final NEPA document with comments addressed in the licensing order.
3.7.1 Track A
Within 180 days after requesting comments and interventions, the
Commission staff would issue its draft EA or EIS and request
comments. Additionally, on behalf of the federal resource agencies,
the Commission staff would specifically request comments on agency
conditions. The license applicant and stakeholders would have up to
60 days to file comments on the draft NEPA document and on the
agencies' preliminary conditions. All comments would also be served
on the intervenors. The federal resource agencies would then file
their updated conditions within 30 to 60 days after close of the
draft NEPA comment period. The Commission staff would issue the
final NEPA document within 90 days of receiving the agencies'
updated conditions and the draft license order would be provided to
the Commission staff within an additional 30 to 90 days.
3.7.2 Track B
Within 90 to 120 days after requesting comments and
interventions, the Commission staff would issue its EA. The
stakeholders and the applicant would have 30 to 45 days to comment
on the EA and on the resource agencies' preliminary conditions. All
comments would be filed with the Commission and served on the
intervenors. Within 60 to 90 days after receiving comments, the
federal resource agencies would file their updated conditions. The
Commission staff would prepare a draft order for Commission issuance
within 15 to 60 days after receiving the federal resource agencies'
updated conditions.
4. Study Dispute Resolution Process
4.1 Background
The purpose of the proposed study dispute resolution process
would be to resolve disagreements between the federal resource
agencies, Indian tribes, and the Commission staff regarding the need
for and technical aspects of a requested study prior to
implementation of the study and during the study phase of the
process (as necessary). By resolving study disputes early, requests
for additional studies and information after the application has
been filed with the Commission should be rare.
The proposed study dispute resolution process maintains the
Commission's ultimate authority to determine which studies were
required, based on objective criteria that account for the
information needs of the Commission as final decision-maker, and for
the resource agencies with statutory responsibility to formulate
recommendations, terms, conditions or prescriptions. The applicant
and all other stakeholders would have an opportunity to provide
input during the process. The dispute resolution process would be
completed within 60 days and the Commission staff would have an
additional 30 days to complete SD-2.
4.2 Disputed Issues, Dispute Resolution Team
To facilitate the process, disputes would be limited to two
issues: (1) Whether a study was necessary for either the federal
agencies, Indian tribes or the Commission staff to develop their
recommendations, conditions, prescriptions, or license terms, and
(2) whether a specific study methodology was necessary to obtain the
information.\21\ Each dispute would be measured against
predetermined criteria by a dispute resolution team. The team would
review the available information and document findings in a report
filed with the Commission Secretary, to be forwarded to the Director
of the Office of Energy Projects for inclusion into the
administrative record. The Commission staff would then consider the
findings of the team when making its final determination on studies
to be required of the applicant. The entire process would take
approximately 60 days. Once the team filed its findings with the
Commission and the Commission staff made its decision, the issue
would be considered resolved for purposes of completing the final
study plan and proceeding with the study implementation phase of the
licensing process.
---------------------------------------------------------------------------
\21\ Studies not in dispute would proceed in accordance with the
study plan.
---------------------------------------------------------------------------
The team approach would help to ensure that the issue was
broadly considered and
[[Page 58746]]
potential compromises were discussed before a final Commission staff
decision. The team would include one person from the Commission
staff, one person from the federal agency or Indian tribe requesting
the study and an agreed-upon neutral party. If the team determined
that the study criteria were met based on the information provided,
then a finding that the study was needed would be provided to the
Commission staff. If the team determined that the criteria were not
met based on the information provided, then a finding that the study
was not needed would be provided to the Commission staff.
4.3 Study Request Criteria
All study requests subject to dispute resolution under this
process would include supporting information sufficient to satisfy
the following criteria:
(a) Whether the request describes available project-specific
information, and provides a nexus between project operations and
effects on the resource to be studied.
(b) Whether the request includes an explanation of the relevant
resource management goals of the agencies with jurisdiction over the
resource to be studied.
(c) Whether the study objectives are adequately explained in
terms of new information to be yielded by the study and its
significance relative to the performance of agency roles and
responsibilities in connection with the licensing proceeding.
(d) If a study methodology is recommended, whether the
methodology (including any preferred data collection and analysis
techniques) is consistent with generally accepted practice in the
scientific community.
(e) Whether the requester has considered cost and practicality,
and recommended a study or study design that would avoid unnecessary
costs while still fully achieving the stated study objectives.
(f) If the license applicant has provided a lower cost
alternative, whether the requester has considered this alternative,
and if not adopted, explained why the lower cost alternative would
not be sufficient to achieve the stated study objectives.
4.4 The Commission Staff's Consideration of Findings
Based on the team's findings, the Director of the Office of
Energy Projects or the Director's delegate would determine within 30
days whether the requester has adequately justified the need for the
study (including any technical aspects in dispute) according to the
criteria set forth above. Resource agency goals and objectives would
be considered valid if they were relevant to the proceeding,
expressly stated or referenced in the study request, and identified
by the resource agency with jurisdiction over the resource in
question. The decision maker would take into account the team's
findings, the views of the parties, the expertise of the resource
agencies, and any other relevant information in the administrative
record. If the team's findings were adopted, the decision would be
issued in writing under delegated authority. If not, the Director of
the Office of Energy Projects would be required to render a decision
in writing.\22\ The decision would be included in SD-2.
---------------------------------------------------------------------------
\22\ Requests for dispute resolution would be filed within 20
days of the issuance of the revised study plan. The team would
convene within 10 more days, and have 30 days to develop and file
its findings and recommendation with the Commission. A decision
would be rendered within an additional 30 days.
---------------------------------------------------------------------------
5. Other Issues
The IHC emphasizes that its proposal is in an early stage of
development. All stakeholders should have substantial opportunity to
participate in fully developing any new licensing process. The IHC
proposal has been sufficiently developed to ensure that the key
steps in the process have been identified, although significant
detail has yet to be determined. For example, the IHC is aware of
specific issues that have not yet been addressed, including those
relating to preparation of the NEPA document, consultation under the
Endangered Species Act, and inclusion of recommendations under
Section 10(j) of the Federal Power Act. The IHC is also aware that
other stakeholders may have additional or alternative ideas for
addressing the identified process issues or may have concerns and
issues not anticipated by the federal parties while drafting this
proposal.
Comments on the IHC proposal should be made according to the
instructions described in the Commission staff's accompanying
Federal Register notice. Any and all comments are solicited,
although specific responses to the questions contained in the notice
would be helpful.
6. Contact Information
For further information regarding the IHC proposal,
representatives of the IHC New Issues Subgroup may be contacted.
Specifically: Kathryn Conant, Office of Habitat Conservation,
National Marine Fisheries Service, telephone: (301) 713-2325 (e-
mail: kathryn.conant@noaa.gov).
Tom DeWitt, Office of Energy Projects, Federal Energy Regulatory
Commission, telephone: (202) 502-6070 (e-mail:
thomas.dewitt@ferc.gov).
Bob Dach, Division of Federal Program Activities, U.S. Fish and
Wildlife Service, telephone: (703) 358-2183 (e-mail: robert_
dach@fws.gov).
David Diamond, Office of Policy Analysis, Department of the
Interior, telephone: (202) 219-1136 (e-mail: david_m_
diamond@ios.doi.gov).
Mona Janopaul, Lands, U.S. Forest Service, telephone: (202) 205-
0880 (e-mail: mjanopaul@fs.fed.us).
BILLING CODE 6712-01-P
[[Page 58747]]
[GRAPHIC]
[TIFF OMITTED] TP18SE02.015
BILLING CODE 6712-01-C?
[[Page 58748]]
Attachment B
National Review Group; Summary of Proposal for a Coordinated
Environmental Review and Application Development in the Relicensing
Process
Introduction
The National Review Group (``NRG'') is a task force of
individual representatives from the hydropower industry and
conservation organizations who share a common interest in improving
the relicensing process for non-federal hydropower projects under
the Federal Power Act (``FPA''), Part I. These representatives are
listed below. The NRG originally convened in 1998 and published a
report on voluntary practices that may be implemented under existing
rules to serve this interest. [See http://www.ferc.gov/hydro/
hydro2.htm]
Since 2000 the NRG has worked to develop a proposal for
administrative reforms (including amendments to existing rules) to
reduce the time, costs, and complexity of the relicensing process.
The Federal Energy Regulatory Commission (``FERC''), the U.S.
Departments of Agriculture, Commerce, and Interior, and the U.S.
Environmental Protection Agency have participated in a limited
fashion to comment on the process.
The NRG now releases the attached proposal for administrative
reform. This proposal does not involve a statutory change and,
therefore, does not change any agencies' statutory authority or
responsibility. The proposal focuses on coordination through the
administrative process of license application development and
environmental review under the National Environmental Policy Act
(''NEPA'') and related laws, and further on resolving disputes
related to such review early in the process. While this proposal is
written in the context of the relicensing of an existing project, we
believe that the fundamental concepts may be applicable to the
licensing of a new project.
The attached proposal is stated in conceptual form and language.
The NRG has solicited and considered public comments submitted, and
based on comments received has revised this proposal to reflect
areas where commenters believed the intent of the NRG was not clear.
Comments received are summarized in a matrix to be attached to the
proposal when submitted to the FERC.
Key Elements
The proposal includes four key reforms of existing rules,
including 18 CFR Parts 4 and 16 as administered by FERC. These are:
• Before the start of a relicensing proceeding, a License
Applicant may undertake early consultation, to identify issues,
share available information, and obtain needed information. Such
early disclosure of issues should help a License Applicant develop
its application in a manner that meets the informational
requirements of all agencies and reduces the potential for
additional information requests.
• FERC and Cooperating Agencies will execute general
Memoranda of Understanding (``MOU'') and project-specific Memoranda
of Agreement (''MOA'') to establish procedures for cooperation,
including development of the record, dispute resolution, and
decision-making. These documents will provide for the License
Applicant's appropriate involvement. The MOU will help to define
which agency is generally responsible for assembling information and
substantive drafting within an area of expertise under NEPA. The MOA
will apply that general construct to a specific licensing
proceeding. This procedure is intended to reduce duplicative
requirements on the Licensee and provide for maximum cooperation
among the agencies and FERC. All agencies will be encouraged to
participate as Cooperating Agencies.
• Before publication of the draft NEPA document, FERC and
the Cooperating Agencies will use an advisory opinion procedure to
identify studies necessary for their respective decisions. They will
use a dispute resolution procedure when they disagree on the scope
of that advisory opinion. This procedure includes an inter-agency
advisory panel, and if necessary, a decision at the Chairman/
Secretary level to resolve disputes. Under this approach, the
License Applicant gains greater certainty that, if it complies with
study requests deemed reasonable at the beginning of the procedure
as set forth in the advisory (or revised advisory) opinion, there is
a strong presumption that no additional studies will be required by
FERC. Other stakeholders also gain certainty, since the procedure
will help define the study requirements early in the proceeding and
is intended to create an incentive for the License Applicant to
implement the study plan as described in the advisory opinion.
• FERC and the Cooperating Agencies will publish a single
informational (not decisional) NEPA document. This procedure is
intended to eliminate the need for FERC and these other agencies to
conduct separate and potentially duplicative or conflicting NEPA
reviews and may reduce the average period of time for a relicensing
proceeding. While the single NEPA document will be used as the basis
for decision-making, FERC will, and each Cooperating Agency may,
publish a separate record of decision stating each agency's
preferred alternative. This will minimize conflict over the
informational NEPA document that contains the scientific and
analytic basis for a decision and will allow agency preferences to
be represented in separate decisional documents. Conflicts may then
be limited to the outcome resulting from the separate decisional
documents rather than potentially divergent NEPA records, studies,
and background information.
Public Comments and Responses
Several themes emerged from the comments.
• Tribal rights: Commenters expressed concern that this
proposal would adversely affect Tribal rights. However, the NRG
proposal encourages at least the same if not greater Tribe
participation. The NRG recognizes the consultation requirements with
Tribes. The proposal encourages early and frequent discussions with
important stakeholders like the Tribes so that the full breadth of
their interests is addressed. Although not specific addressed in
detail, the proposal recognizes that the Tribes may exercise
independent regulatory authority in areas such as water quality and
cultural resources.
This proposal does not address the issue of Tribal sovereignty,
but it does include early consultation with all stakeholders (which
includes all persons, entities, etc.), and early issue
identification. Including Tribal issues in these early phases will
minimize the chances that Tribal issues will be overlooked or that
insufficient information will be gathered to adequately address the
issues.
• State role: The overlap of state and federal authorities
in FERC licensing proceedings can lead to uncoordinated efforts and
delay and can be especially acute in water resource management
issues, where FERC and federal agencies have broad ranging authority
and also the states have broad ranging authority over water quality
and quantity.
This proposal for administrative change can retains current
federal and state authorities. However, we suggest that the exercise
of these authorities can be rationalized so as to make the process
more efficient and to encourage better licensing outcomes. While the
NRG proposal does not directly address state authorities,
integration of the states into the process is a critical next step.
• Public participation: The public must have an
opportunity for meaningful participation in the licensing process.
The NRG proposal would not diminish opportunities for public
involvement. Although the proposal is not specific as to all points
at which the public would be actively involved in the process, there
is a clear intent to have substantial opportunities for all
stakeholders to participate in the process. In its current state, it
does not address the role of collaborative processes, which are
often the most effective forums for public participation. We do not
believe, however, that collaboration is foreclosed by a consolidated
environmental review process.
• Licensee roles and responsibilities: Any process for
relicensing a hydro project must provide an appropriate role for the
current licensee. As the party responsible for funding and executing
the required studies, and implementing any license conditions,
licensees must be intimately involved in all phases of the process.
• The NRG proposal actively involves the licensee in
information gathering, scoping, study development, proposed
licensing alternatives and environmental analysis. However, refining
and clarifying the role of the licensee throughout the process will
be an important task in the development of a functional and
supportable rule.
• Time frames: Many parties believe that, as a matter of
principle, relicensing a hydro project should not take as long as it
does. However, there is a great deal of work that must be
accomplished within the available 5-year window. The desire to move
expeditiously must be weighed against the need for adequate study
seasons, appropriate consultation and dispute resolution timelines
and sufficient time for document preparation. The NRG proposal
attempts to balance those considerations.
Some commenters have indicated that they believe the timelines
suggested in the NRG
[[Page 58749]]
proposal are tight. The time line in the proposal can be evaluated
further to determine if it is unrealistic. Other commenters
expressed concern that the dispute resolution process could cause
substantial delay. If a dispute arises over necessary studies, steps
to keep the rest of the process on track and resolve the dispute(s)
expeditiously will be in the interests of all participants.
• Integration of other processes (CWA, ESA): Not all
authorities affecting relicensing arise from the Federal Power Act.
Integration of these parallel authorities such as the Clean Water
Act, Endangered Species Act, and the National Historic Preservation
Act is difficult. Nonetheless, integration of these authorities and
their attendant processes is critical to development of a process
that minimizes duplication and uses available agency resources
wisely.
• Consideration of additional studies: The NRG proposal is
based on the concept that information be gathered and studies
executed once, early in the process of relicensing. However,
commenters have pointed out that long-term resource management
decisions demand appropriately rigorous development of information.
If unusual circumstances require additional studies to be performed,
the process should allow this to happen.
• Role of non-cooperating agencies: Commenters expressed
concern that the proposal addresses the role of non-cooperating
agencies in some, but not all, elements. The NRG proposal does not
diminish the role of non-cooperating agencies as currently exercised
in the FERC process; however, the proposal encourages agencies to
accept cooperating agency status to make the process more efficient.
To the extent that the role of non-cooperating agencies needs to be
more fully developed, that development can occur in the context of
the FERC's rulemaking proceeding.
Members of the NRG
Utility and NGO Members:
• American Rivers
• American Whitewater
• Chelan County Public Utility District
• EPRI
• Grant County Public Utility District
• Kearns & West (Facilitator)
• Kleinschmidt & Associates
• Law Offices of GKRSE
• Natural Heritage Institute
• New York Power Authority
• Pacific Gas and Electric
• PacifiCorp
• Portland General Electric
• Reliant Energy
• Southern California Edison
• Southern Company
• Troutman Sanders
Agency Advisors:
• US Department of the Interior/Bureau of Indian Affairs/US
Fish and Wildlife Service
• Energy Information Administration
• US Environmental Protection Agency
• Federal Energy Regulatory Commission
• National Marine Fisheries Service/US Department of Commerce
• USDA Forest Service
National Review Group; Detailed Proposal for Coordinated
Environmental Review and Application Development in the Relicensing
Process
1. Definitions
1.1. ``Cooperating Agency'' means: a federal, interstate, state,
local, or tribal agency that cooperates with FERC in the NEPA review
in a proceeding.
1.2. ``Tribal agency'' means: a tribal entity which (A) is
recognized by the federal government, and (B) performs a
governmental function, such as the Tribal Historic Preservation
Officer or an agency that has been delegated the authority to
develop and administer a water quality standards program, including
Clean Water Act section 401 certifications.
1.3. ``License Applicant'' means: an applicant for a license,
whether or not the existing licensee.
1.4. ``License Articles'' means: articles adopted by FERC in a
license.
1.5. ``Licensee'' means: the existing licensee.
1.6. ``Resource Agencies'' means: a Federal, interstate, State,
local, or tribal agency exercising administration over the areas of
flood control, navigation, irrigation, recreation, fish and
wildlife, water resource management, or cultural or other relevant
resources of the area affected by a project.
1.7. ``Stakeholder'' means: a person or entity interested in a
project, including an agency, non-governmental or other
organization, or individual.
1.8. ``Terms and Conditions'' means: conditions submitted by a
Resource Agency for inclusion in the License under any claim of
authority, including FPA sections 4(e), 18, 10(a), and 10(j) and
Clean Water Act section 401(a).
2. Optional Pre-NOI/Pre-Application Initial Meetings and Consultation
This step provides an informal opportunity to identify available
and needed information and begin identification of issues, before
the formal licensing proceeding commences on the filing of the
Notice of Intent (``NOI'') for a new license.
2.1. Licensee is encouraged to meet with FERC and Resource
Agencies before the filing of the NOI, as appropriate, to begin
identification of issues and collection of data to compose a record
necessary for the licensing proceeding. In any such meeting, each
agency will describe relevant existing information, procedures for
Licensee's access to it, current expectations for study plans, known
and relevant agency goals and objectives, and published plans
relevant to the project. Licensee will provide a description of the
existing project and supporting information. Licensee and Resource
Agencies will attempt to define potential issues that may arise in
the study plan or otherwise in the licensing proceeding.
2.2. Licensee is encouraged to informally consult with
Stakeholders including FERC using a Project Report or Project
Description, which in summary form describes the existing project,
environmental information, and Licensee plans for any upgrades and
changes. The purpose of such consultation will be to obtain
information for the IIP/ICD as described in paragraph 3.
3. Notice of Intent and Initial Information Package/Initial
Consultation Document (``IIP/ICD'')
3.1. The FERC proceeding will begin with the filing by the
Licensee of the NOI with the FERC.
3.2. IIP/ICD will be issued by the Licensee no less than 5 years
and no more than 5.5 years before license expiration for existing
licensees and 4.5 years for competitors. Expanded contents (roughly
mirroring the current draft application) will include the following:
A. Exhibits A and B, modified Exhibits D and E (sections on
existing environment), existing Exhibits F and G, and modified
exhibit H;
B. Record of consultations to date, including information
developed under paragraph 2 above.
C. Issues identified in any preliminary consultation and a
preliminary list of information needed to address those issues, and
any other issues identified by the Licensee as relevant;
D. Licensee's opening study proposals including scope, method,
and schedule in outline format;
E. List and description of any study requests made to date; and
F. A draft Scoping Document (``SD'') to be in the IIP/ICD
(including the Licensee's preferred alternative).
3.3. IIP/ICD will be sent out by the Licensee for a 60-Day
comment period to Resource Agencies, FERC, and other Stakeholders.
4. Development of Cooperating Agency Agreements or Relationship
4.1. A general MOU (which provides the framework for subsequent
project-specific agreements) will be developed between FERC and each
Resource Agency which participates in licensing proceedings on a
regular basis. The general MOU will be consistent with and reflect
the process laid out here.
4.2. Following the issuance of the IIP/ICD by the Licensee and
before FERC issues the Scoping Document (``SD''), FERC will request
that each Resource Agency participate as a Cooperating Agency,
pursuant to a written agreement specific to that proceeding
(``MOA'').
4.3. The MOA in a given proceeding will provide for maximum
cooperation consistent with FERC's responsibility as lead agency
under NEPA. It will establish procedures for cooperation, including
preparation of NEPA documents [i.e., draft and final Environmental
Assessment (``EA'')/Environmental Impact Statement (``EIS'')],
dispute resolution, and decision-making.
A. As provided in such agreement, such cooperating agency
procedures will require time and resources by those involved. Each
Cooperating Agency will be responsible for collecting and compiling
information in its possession relevant to the NEPA review, and for
substantive drafting in the agreed-to area of NEPA drafting
responsibility. As a general matter, such responsibility will be
roughly proportionate to the Cooperating Agency's
[[Page 58750]]
regulatory responsibilities in assessing a given resource impact.
B. As lead agency, FERC will retain the final responsibility for
the content of the jointly prepared NEPA documents. FERC and the
Cooperating Agencies will attempt to resolve any conflicts regarding
an alternative or impact in findings prior to issuance of NEPA
documents through the dispute resolution procedure in section 6
hereof. However, if all disputes are not so resolved, the NEPA
document will state any unresolved dispute between FERC and a
Cooperating Agency regarding an alternative or impact, including the
separate findings of each agency, except as limited in this
paragraph 4.3.
C. NEPA documents in licensing proceedings will be factual and
analytical, not decisional. The EA/EIS (whether draft or final) will
include the project description, project alternatives, the impacts
(beneficial and adverse, environmental and economic) of such
alternatives, and protection, mitigation, and enhancement measures
(``PM&E''). Each document will conform to this scope.
D. The EA/EIS will not include a decision on License Articles or
Terms and Conditions. Instead, in a given proceeding, FERC will, and
each Cooperating Agency (or non-cooperating Resource Agency) may,
publish a record of decision separate from the informational final
NEPA document which so states that agency's preferred alternative,
the basis thereof (which should expressly reference the portions of
the final NEPA document described in the above paragraph).
E. To encourage resolution of issues informally and to reduce
time should an advisory panel need to be convened pursuant to
paragraph 6.3 below, FERC and Cooperating Agencies, and, if
possible, involved Resource Agencies will attempt to identify at the
onset of the licensing proceeding senior policy staff in each
respective organization. These designated staff members will be
available to advise and resolve issues informally throughout the
licensing process. They also will serve as the members of the
dispute resolution panel if convened under paragraph 6. The neutral
third party panelist(s) described in paragraph 6.3.A. will not be
identified and enlisted until it is determined that a panel is
necessary.
4.4. A Cooperating Agency will not be considered a party to the
relicensing proceeding for the term of its cooperating relationship.
Any communication between FERC and a Cooperating Agency that
involves the cooperating relationship and relates to the NEPA
documents will be exempt from disclosure consistent with the FERC ex
parte regulations in 18 CFR Section 385.2201(e); except that any
communication necessary for the completeness of the record,
including any communication necessary to preserve a Cooperating
Agency's right pursuant to paragraph 4.5 hereof, will be on the
record. Any communication between FERC and a Cooperating Agency that
relates to the merits of the decision on the License Articles or
Terms and Conditions will be on the record.
4.5. Regardless of whether or not it is a Cooperating Agency in
a given proceeding, a Resource Agency has the same rights and duties
to participate in the development of the public record in that
proceeding as provided in 18 CFR Parts 4 and 16.
4.6. A Cooperating Agency may elect to terminate its cooperating
status as a non-party and become a party at any time prior to the
deadline for rehearing of the final licensing decision by filing an
intervention with FERC. However, a Cooperating Agency which
terminates its status may seek rehearing or judicial review on the
ground that the document is inadequate only as follows:
A. The document omits an alternative or finding of impact timely
proposed by the Cooperating Agency pursuant to paragraph 4.3;
B. It does not conform to the scope stated in paragraph 4.3.C
and 4.3.D; or
C. The Cooperating Agency disagrees with the ultimate finding of
FERC as lead agency regarding an alternative or impact; provided
that the Cooperating Agency had previously stated its specific
objection to that finding on the record, including detailed basis
both in law and fact, and had proposed an alternative finding in an
appropriate form, in a timely communication consistent with
paragraph 4.3; and provided further that the Cooperating Agency had
diligently pursued a remedy for that objection, including the
dispute resolution procedure stated in paragraph 6.
5. Scoping and Issuance of Scoping Document
5.1. FERC and Cooperating Agencies, with input from the Licensee
and Stakeholders, will issue Scoping Document 1 (``SD1'') 90 days
following IIP/ICD issuance. SD1 will include:
A. Identification of resource goals and objectives, issues and
information needed (basic methodology, geographic and temporal
scope), including consideration of the need by FERC and Resource
Agencies to compile a complete administrative record.
B. Preliminary alternatives, including the No Action
alternative, the Licensee's alternative, and others as appropriate.
C. A schedule (conforming to applicable rules, as amended by
this proposal) for all subsequent actions by the Licensee, FERC,
Cooperating Agencies, and others leading to timely licensing
decision. The schedule will be kept current and periodically revised
as necessary based on developments.
D. A description of unresolved disagreements between FERC and
Cooperating Agencies on each of the above. The description will
state each side of the dispute.
5.2. FERC and Cooperating Agencies in cooperation with the
Licensee will hold a Scoping Meeting within 30 days of the issuance
of SD1 and a Site Visit. The site visit may occur prior to the
issuance of SD1 or soon after the comment period to accommodate
weather or seasonal needs.
5.3. Comments to SD1, which may include requests for studies,
will be due 30 days after the Scoping Meeting.
5.4. Licensee will develop a study plan outline and send it to
FERC and Resource Agencies within 30 days after the public comment
period under section 5.3 ends.
6. Dispute Resolution
6.1. This dispute resolution process can be used to resolve
disputes between FERC, Cooperating Agencies and other Resource
Agencies.
6.2. FERC and Cooperating Agencies will issue an advisory
opinion 60 days after the Licensee issues its study plans on the
extent to which the data to be provided and the study plan outline
as developed by the Applicant is sufficient. That advisory opinion
will also discuss and determine study topics to be addressed,
methodology to be used, geographic and temporal scope of the
analysis, and the foreseeable project-related impacts on target
resources that the study plan is to address consistent with
previously established resource goals and objectives. The advisory
opinion will be joint, including a statement of any unresolved
dispute between FERC and a Cooperating Agency related to the
advisory opinion and will be distributed to both the Licensee and
the Stakeholders.
6.3. FERC and a disputing Cooperating Agency will make best
efforts to resolve disputes prior to issuance of the joint advisory
opinion. However, if the dispute between FERC and a Cooperating
Agency is not resolved pursuant to paragraph 6.2, then an advisory
panel will be convened as stated below. Studies discussed in the
advisory opinion which are not subject to a dispute between FERC and
a Cooperating Agency shall proceed while the dispute resolution
process is conducted on the specific disputed studies.
A. The panel will be comprised of a senior policy staff member
from FERC and from the disputing agency, and such neutral third
parties (as necessary to ensure that there is an odd number in
total). FERC and the disputing agency will choose (with disclosure
of any potential conflict of interest) the neutrals, after
consultation with the Licensee and participating Stakeholders.
B. At the time of issuance of the advisory opinion under
paragraph 6.2, FERC will notify Licensee and other Stakeholders that
the panel will be convened (specifying a date more than 30 days but
no more than 60 days after issuance of the advisory opinion), and
Licensee and other Stakeholders will have 30 days to submit
information for the panel's consideration.
C. The panel will issue a recommendation within 90 days after
being convened, subject to adjustment in extraordinary
circumstances.
D. FERC and Cooperating Agencies will issue a revised advisory
opinion 30 days following the panel recommendation, which
incorporates and responds to the recommendations of the advisory
panel.
6.4. A Resource Agency which declines to become a Cooperating
Agency will use the procedure established in paragraph 6.3 to
resolve an otherwise unresolved dispute related to study requests in
the NEPA review.
6.5. If a dispute regarding a matter addressed by the advisory
opinion issued under paragraph 6.2 has not been timely resolved at
the staff level or through the panel procedure in paragraph 6.3, the
dispute will be elevated to a meeting at the level of the disputing
agencies' Chairman or
[[Page 58751]]
Secretary within 60 days after the deadline of 120 days represented
by steps 6.3 (B) and 6.3 (C) above.
6.6. FERC will inform the Licensee and Stakeholders of the
outcomes of the dispute resolution procedure within 15 days of the
decision(s) reached pursuant to paragraphs 6.3 through 6.5.
6.7. In addition, or as an alternative, to the dispute
resolution procedure provided in paragraphs 6.2-6.6 above, Licensee
and Stakeholders may develop an alternative procedure to resolve
disputes on the content of the advisory opinion. Such an alternative
procedure will be developed prior to the due date for the advisory
opinion as stated in paragraph 6.2 above.
7. Study Development
7.1. After consideration of Stakeholders' comments and the
advisory opinions (as revised pursuant to paragraphs 6.2 through
6.7), Licensee will adopt a study plan within 60 days after notice
from FERC of the advisory opinion (as revised) which plan will
provide for conducting studies and collecting data.
7.2. Any Stakeholder will follow 18 C.F.R. Section 16.8(b)(4),
(c)(2), or (d)(2), and the schedule established in paragraph 5.3 to
make any Additional Information/Study Requests (``AI/SR'').
7.3. The Licensee will be deemed to have discharged its
responsibility to conduct studies or gather information if its study
plan is executed in a manner consistent with the advisory opinion
issued pursuant to paragraphs 6.2 to 6.7. This presumption may be
rebutted by the objecting stakeholder only if (A) an unexpected
study result is found, (B) there is a change in applicable law, or
(C) there is a dispute regarding implementation of the study plan,
relative to the AI/SR that the Licensee did not undertake.
A. ``Unexpected study result'' means that there is a potentially
significant impact that was previously not foreseen to occur, or
that the intensity of a significant impact is so different than
foreseen that additional study is appropriate for the development of
protection, mitigation, or enhancement measures. This contemplates a
clear demonstration of an anomalous result \23\.
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\23\ This is not intended to repeat studies because the results
obtained were unexpected. However, it would apply to new issues
identified either through the studies or outside activities.
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B. ``Change in applicable law'' is a change in statute or rule,
that may materially affect the appropriate level of protection,
mitigation, or enhancement of resources affected by the project. An
example is a new ESA listing applicable to the project reach.
C. ``Dispute regarding implementation of study plan'' means that
an objecting stakeholder has a reasonable basis to dispute that the
Licensee followed generally accepted scientific methods in the
implementation of the study plan. This excludes the choice of any
scientific method specifically identified in the advisory opinion,
although it may include a dispute regarding the implementation of
the method.
8. Preliminary Draft Environmental Document and Preliminary Conditions
8.1. Prior to the release of Preliminary Draft Environmental
Document (``PDED''), the Licensee will release a summary of which
studies have been completed to date and will disclose which
additional studies the Licensee intends to conduct.
8.2. Licensee will issue its PDED after consulting with FERC and
Cooperating Agencies, and no later than 3 years prior to license
expiration. There will be a 60-day comment period on the PDED. The
PDED document, which functionally will replace the environmentally
related sections of the draft application, will include:
A. Refined issues based on completed studies;
B. Review of comments on study results.
C. A description of additional studies planned.
D. A refined set of alternatives.
8.3. Concurrent with issuance of the PDED, the Licensee will
commit to provide the additional information identified as to be
done in the PDED, on a schedule acceptable to itself, FERC and
Cooperating Agencies.
8.4. Licensee will convene a public meeting within 30 days after
PDED publication. FERC and Cooperating Agencies will participate.
FERC will issue notice of the publication within ten days of
receiving the PDED, at least 15 days prior to the meeting.
8.5. Each Resource Agency will provide preliminary draft Terms
and Conditions during the 60-day comment period on the PDED.
9. Application Filed
9.1. Application will be filed 2 years before license expiration
date (same as existing practice). The application will include all
results from studies completed, a listing of studies in progress,
and proposed protection, mitigation and enhancement measures.
10. FERC Tender and Procedural Notice/Ready for Environmental Decision
(``Red'') Notice/Revised Agency Draft Terms and Conditions
10.1. FERC will issue a tender notice within 14 days of filing
and will issue a procedural notice within 60 days of filing of
application. On publication of such tender notice, Stakeholders
become subject to ex parte rules.
10.2. Within 60 days of filing of the application, FERC and
Cooperating Agencies will issue notice that the application is ready
for environmental decision (``RED''), or if the application is not
ready for environmental decision FERC and Cooperating Agencies will
identify additional information needed as listed in the joint
advisory opinion (as revised to handle resolution of any disputes
pursuant to paragraph 6 above) to make it ready.
10.3. Each Resource Agency will issue revised preliminary draft
Terms and Conditions within 60 days after RED notice.
11. Draft Environmental Assessment/Environmental Impact Statement;
Draft Terms and Conditions; and Draft License Articles
11.1. Within 180 days after the RED notice, FERC and Cooperating
Agencies will issue draft EA/EIS (as an informational document, not
decisional, as set forth in paragraph 4.3 above) for public review
and comment. Also within 180 days after the RED, FERC and any other
agency that plans to submit Terms and Conditions to FERC will
separately issue draft License Articles and draft Terms and
Conditions. The draft EA/EIS will state any dispute between FERC and
Cooperating Agencies with respect to environmental impact analysis
(consistent with paragraph 4.3 above).
11.2. There will be a 60-day public comment period on the draft
EA/EIS, draft License Articles, and draft Terms and Conditions.
11.3. Each Resource Agency will submit final or final draft
Terms and Conditions, within 45 days following the close of the
public comment period on the draft EA/EIS. A Resource Agency may
require publication of a final NEPA document before issuance of
final Terms and Conditions, in which case the agency may issue final
draft Terms and Conditions at this time. In the alternative the
agency may issue final Terms and Conditions at this time, subject to
reopener if the final EA/EIS document contains new information not
contained in the draft.
11.4. To encourage resolution of issues informally and to reduce
time regarding disputes related to final (and draft) Terms and
Conditions, FERC and the Agencies may use the dispute resolution
process described in section 6 above.
12. Final Environmental Document and License Issuance
12.1. The final EA/EIS (as an informational document, consistent
with paragraph 4.3 above) will be published separately from the
License. The License will be issued by FERC and will include final
Terms and Conditions. The final EA/EIS will describe any remaining
dispute between FERC and a Cooperating Agency regarding
environmental impacts analysis.
[FR Doc. 02-23655 Filed 9-17-02; 8:45 am]
BILLING CODE 6717-01-P