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FERC Traditional Licensing Process (7-FD-i)

Information current as of 2019
Any person (developer) may submit a request to use the Traditional Licensing Process (TLP) from the Federal Energy Regulatory Commission (FERC) for an application for an original or new license (relicense) to construct, operate, or maintain a non-federally owned hydropower project. Use of the TLP is voluntary. Although the Integrated Licensing Process (ILP) is the default licensing procedure, a developer may request permission from FERC to use the TLP if it is appropriate under the circumstances. FERC oversees the TLP pursuant to its authority to process hydropower license applications under the Federal Power Act, 16 U.S.C. § 797(e) (FPA).


The TLP is a paper-driven process that is available for a developer’s use with FERC’s approval. The TLP is appropriate for projects that are not complex or controversial and require few environmental studies. The TLP has a three-stage pre-filing consultation process. In the first stage of the pre-filing consultation process, the developer, federal and state resource agencies, affected Indian tribes and the public (Interested Entities) (e.g. Participants, Stakeholder Work Group, Working Group, Collaborative Group) convene and have a series of interactions and meetings to develop a Study Plan. In the second stage of the pre-filing consultation process, the developer implements the Study Plan, and prepares and distributes a draft License Application to the Interested Entities. In the third stage of the pre-filing consultation process, the developer files a License Application with FERC, which initiates the environmental review process required pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m (NEPA). FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-1.

Although the TLP requires pre-filing consultations and coordination with the developer and Interested Entities, FERC is not typically involved in the pre-filing consultation process. In addition, the TLP has no set timelines for the pre-filing consultation process, except that final license applications for relicenses must be filed no later than 2 years prior to the expiration date of the existing license. FERC – Hydropower Primer: A Handbook of Hydropower Basics, 33.



FERC Traditional Licensing Process


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7-FD-i.1 – Notice of Intent (NOI), Pre-Application Document (PAD) and Request for Traditional Licensing Process (TLP Request)

A developer must file a Notice of Intent (NOI), Pre-Application Document (PAD) and Request for authorization to use the Traditional Licensing Process (TLP Request) with FERC. 18 C.F.R. § 5.3(b); Federal Energy Regulatory Commission – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-3.

Notice of Intent

The NOI must include, at a minimum, the following information:

  • The developer’s name and address;
  • The project number, if any;
  • The license expiration date, if any;
  • An unequivocal statement of the developer’s intention to file an application for an original license, or, in the case of an existing license, to file or not to file an application for a new (relicense);
  • The type of principal project works licensed, if any, such as dam and reservoir, powerhouse, or transmission lines;
  • The location of the project by state, county, and stream, and when appropriate, by city or nearby city;
  • The installed plant capacity, if any;
  • The names and addresses of every county in which any part of the project is located, and in which any Federal facility that is used or to be used by the project is located, and
  • The names and address of every city, town, or similar political subdivision in which any part of the project is or is to be located and any federal facility that is or is to be used by the project is located; or that owns, operates, maintains, or uses any project facility or any federal facility that is or is proposed to be used by the project;
  • The names and addresses of every other political subdivision in the general area of the project or proposed project that there is reason to believe would be likely to be interested in, or affected by, the notification; and
  • The names and addresses of all affected Indian tribes.

18 C.F.R. § 5.5(b).

The PAD must describe the existing and proposed (if any) project facilities and operations, provide information on the existing environment, and existing data or studies relevant to the existing environment, and any known and potential impacts of the proposed project on the specified resources. 18 C.F.R. § 5.6(c). Specifically, the PAD must include the following:

Process Plan and Schedule

  • A plan and schedule for all pre-application activity that incorporates the timeframes for pre-filing consultation, information gathering, and studies. The plan and schedule must include a proposed location and date for the scoping meeting and site visit; 18 C.F.R. § 5.6(d)(1).

Description of the Project Location, Facilities and Operations

  • A description of the project location, facilities and operations including:
    • the exact name and business address, and telephone number of each person authorized to act as agent for the applicant;
    • detailed maps showing lands and waters within the project boundary by township, range, and section, as well as by state, county, river, river mile, and closest town, and also showing the specific location of any federal and tribal lands, and the location of proposed project facilities, including roads, transmission lines, and any other appurtenant facilities;
    • a detailed description of all existing and proposed project facilities and components;
    • a description of the current (if applicable) and proposed operation of the project, including any daily or seasonal ramping rates, flushing flows, reservoir operations, and flood control operations; and
    • a description of any new facilities or components to be constructed, plans for future development or rehabilitation of the project, and changes in project operation. 18 C.F.R. § 5.6(d)(2).

Description of Existing Environment and Resource Impacts

  • A description of existing environment and resource impacts, based on the existing, relevant, and reasonably available information. Specifically, the description should include:
    • a description of the existing environment;
    • summaries (with references to sources of information or studies) of existing data or studies regarding the resource;
    • a description of any known or potential adverse impacts and issues associated with the construction, operation, or maintenance of the proposed project, including continuing and cumulative impacts; and
    • a description of any existing or proposed project facilities or operations, and management activities undertaken for the purpose of protecting, mitigating impacts to, or enhancing resources affected by the project, including a statement of whether such measures are required by the project license, or were undertaken for other reasons.
    • all reasonably available information with respect to each of the following resources:
  1. Geology and soils;
  2. Water resources;
  3. Fish and aquatic resources;
  4. Wildlife and botanical resources;
  5. Wetlands, riparian, and littoral habitat;
  6. Rare, threatened and endangered species;
  7. Recreation and land use;
  8. Aesthetic resources;
  9. Cultural resources;
  10. Socio-economic resources;
  11. Tribal resources; and
  12. River basin description.

For further information on what must be included in the PAD under each resource, see 18 C.F.R. § 5.6(d)(3).

Preliminary Issues and Studies List

Based on the resource description and impacts discussion, the PAD must include with respect to each resource area identified above, a list of:

  • Issues pertaining to the identified resources;
  • Potential studies or information gathering requirements associated with the identified issues;
  • Relevant qualifying federal and state or tribal comprehensive waterway plans; and
  • Relevant resource management plans.

18 C.F.R. § 5.6(d)(4).

Summary of Contacts

The developer must also include an appendix summarizing contacts with federal, state, and interstate resource agencies, Indian tribes, non-governmental organizations, or other members of the public made in connection with preparing the PAD sufficient to enable FERC to determine if due diligence has been exercised in obtaining relevant information. 18 C.F.R. § 5.6(d)(5).

The TLP Request must include justification for the request and any existing written comments on the developer’s proposal and responses provided. The TLP Request should address the following considerations:

  • Likelihood of timely license issuance;
  • Complexity of the resource issues;
  • Level of anticipated controversy;
  • Relative cost of the traditional process compared to the integrated process;
  • The amount of available information and potential for significant disputes over studies; and
  • Other factors believed by the developer to be pertinent. 18 C.F.R. § 5.3(c)(1)(ii).

7-FD-i.2 – Provide Copy of TLP Request

The developer must provide a copy of the TLP Request to the Interested Entities. 18 C.F.R. § 5.3(d)(1).

7-FD-i.3 – Publish Public Notice

The developer must publish notice of the filing of the NOI, PAD and TLP Request no later than the filing date of the NOI in a daily or weekly newspaper of general circulation in each county in which the project is located. The notice must:

  • Disclose the filing date of the TLP Request, NOI and PAD;
  • Briefly summarize the NOI and PAD and the basis of the TLP Request;
  • Include the developer’s name, address, telephone number, type of facility proposed to be applied, the facility’s proposed location and the places the PAD is available for inspection and reproduction;
  • Include a statement that comments on the TLP Request are due to FERC and the developer no later than 30 days following the filing date of the TLP Request and, if there is no project number, that responses must reference the developer’s name and address;
  • Include a statement that comments on the TLP Request should address:
    • likelihood of timely license issuance;
    • complexity of the resource issues;
    • level of anticipated controversy;
    • relative cost of the TLP compared to the Integrated Licensing Process (ILP);
    • the amount of available information and potential for significant disputes over environmental studies; and
    • other factors believed by the commentator to be pertinent; and
  • A statement that respondents must submit comments to FERC in accordance with filing procedures posted on FERC’s website.

18 C.F.R. § 5.3(d)(2).

7-FD-i.4 to 7-FD-i.5 – Review TLP Request for Completeness

FERC reviews the TLP Request for administrative and technical completeness.

7-FD-i.6 – Comment on TLP Request

Interested Entities may file comments on the TLP Request with FERC within 30 days following the filing date of the TLP request. 18 C.F.R. § 5.3(d)(1).

7-FD-i.7 – Review TLP Request for Approval

FERC reviews the TLP Request for approval. In making a determination on whether to grant or deny the TLP Request, FERC considers comments on the request. 18 C.F.R. §§ 5.3(d)(1), 5.8(a).

7-FD-i.8 to 7-FD-i.10 – Provide Notice of Decision on TLP Request

FERC provides a notice of decision approving or denying the TLP Request within 60 days of the filing of the NOI, PAD and TLP Request. FERC’s decision to approve or deny the TLP Request is final and not subject to appeal. 18 C.F.R. §§ 5.3(d)(1), 5.8(a).

7-FD-i.11 – Schedule Joint Meeting

The developer must schedule a Joint Meeting with all Interested Entities between 30 to 60 days after FERC approves the developer’s TLP Request. 18 C.F.R. § 4.38(b)(3)(i)(A)(1). The Joint Meeting should be held at a convenient place and time, and the developer should notify all Interested Entities, including members of the public.

The objectives of the Joint Meeting are to:

  • Explain the developer’s proposal and develop a common understanding of the proposed project;
  • Discuss current and potential resource needs and management objectives for the project area;
  • Decide what information is needed and what studies are to be done; and
  • Agree on a time frame and format for discussion of study results.

18 C.F.R. § 4.38(b)(3)(iii); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-4.

7-FD-i.12 – Develop Agenda for Joint Meeting

The developer must develop an agenda for the Joint Meeting that includes the issues to be discussed and an opportunity for a site visit. 18 C.F.R. § 4.38(b)(3)(i)(A)(3).

7-FD-i.13 – Publish Notice of Joint Meeting

The developer must publish notice of the Joint Meeting at least 14 days in advance in a daily or weekly newspaper published in each county in which the proposed project or any part of the project is situated. The notice must include:

  • The purpose, location and timing of the Joint Meeting; and
  • A summary of the major issues to be discussed at the Joint Meeting.

18 C.F.R. § 4.38(g)(1).

7-FD-i.14 – Make PAD Available for Public Inspection

The developer must make the information contained in the PAD available to the public for inspection and copying from the date the developer publishes notice of the Joint Meeting until a final order is issued on the License Application. 18 C.F.R. § 4.38(g)(2)(i); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-4.

7-FD-i.15 – Provide Written Notice of Joint Meeting to FERC

The developer must provide FERC with written notice of the Joint Meeting’s including time and place and a written agenda of the issues to be discussed at the meeting at least 15 days in advance. 18 C.F.R. § 4.38(b)(3)(i)(A)(3).

7-FD-i.16 – Hold Joint Meeting

The developer and Interested Entities must hold the Joint Meeting. Members of the public attending the meeting are entitled to participate and express their views regarding resource issues that should be addressed in any License Application. Attendance of the public at any site visit will be at the discretion of the developer. The developer must record the Joint Meeting using either audio recordings or written transcripts. 18 C.F.R. § 4.38(b)(4).

7-FD-i.17 – Provide Recordings of Joint Meeting

The developer must promptly provide audio recordings or written transcripts of the Joint Meeting to FERC and, upon request, to any resource agency, Indian tribe or member of the public. 18 C.F.R. § 4.38(b)(4).

7-FD-i.18 – Provide Written Comments and Study Requests

Interested Entities must provide the developer with comments on the project no later than 60 days following the Joint Meeting. The written comments must:

  • Identify necessary studies to be performed or information to be provided by the developer;
  • Identify the Interested Entity’s basis of determination regarding which studies are necessary;
  • Discuss the Interested Entity’s understanding of the resource issues involved, and its goals and objectives for these resources;
  • Provide justification of the recommended study methodology selected, including why the selected methodology is more appropriate than an alternative;
  • Provide documentation showing that the use of each selected study methodology is a generally accepted practice; and
  • Explain how the studies and information requested will be useful to the Interested Entity in furthering its resource goals and objectives that are affected by the proposed project.

18 C.F.R. § 4.38(b)(5).

Note: An Interested Entity may request to extend the public comment period for an additional 60 days by sending written notice to the developer and FERC within the first 60-day comment period with an explanation of the basis of the extension. 18 C.F.R. § 4.38(b)(5).

7-FD-i.19 – Develop Study Plan

The developer must develop a study plan after receiving written comments and study requests. The study plan should include all agreements on study designs, steps towards dispute resolution, and a summary of reasons why the developer elected not to do certain requested studies. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-7.

The developer’s Study Plan should include with respect to each proposed study:

  • A detailed description of the study and the methodology to be used;
  • A schedule for conducting the study;
  • Provisions for periodic progress reports, including the manner and extent to which information will be shared; and sufficient time for technical review of the analysis and results; and
  • If the potential developer does not adopt a requested study, an explanation of why the request was not adopted.

The Study Plan should also include:

  • The goals and objectives of each study and the information to be obtained;
  • Any known resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
  • A description of existing information and need for additional information;
  • An explanation of the nexus between project operations and effects on the resource;
  • An explanation of how the study methods are consistent with generally accepted practice in the scientific community; and
  • A description of the level of effort and cost, as applicable.

18 C.F.R. § 5.11.

7-FD-i.20 – Is There a Dispute Over Study Requests?

If the developer and Interested Entities disagree on the need to do a study or gather information, the developer and Interested Entity may refer the dispute in writing to FERC for resolution (Study Dispute Resolution Request). Referring a dispute over a study request to FERC is discretionary. 18 C.F.R. § 4.38(b)(6).

7-FD-i.21 – Serve Study Dispute Resolution Request

The developer or Interested Entity referring the dispute must serve a copy of the Resolution Request on FERC, the disagreeing party, and any affected resource agency or Indian tribe. 18 C.F.R. § 4.38(b)(6); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-6.

7-FD-i.22 – Submit Written Response to Study Dispute Resolution Request

The disagreeing party and any affected federal or state resource agency, Indian tribe, and member of the public may submit a written response on the dispute within 15 days of the submittal of the Resolution Request. 18 C.F.R. § 4.38(b)(6); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-6.

7-FD-i.23 – Issue Resolution on Study Dispute

FERC must resolve disputes by letter provided to the developer and all affected federal and state resource agencies and Indian tribes. Any decision by FERC on disputed studies will be made based on:

  • Whether the requested study is reasonable and necessary in relation to the resource goals and management objectives of the resource agencies; and
  • Whether it is generally accepted practice to use the study method requested by the federal or state resource agency or Indian tribe.

If FERC determines that a study or information request is not necessary or that the use of a requested study method is not a generally accepted practice, then the absence of the study or information will not cause a deficiency or delay in a License Application.

Note: If an Interested Entity believes that a study should be done even after FERC finds it unnecessary, then the Interested Entity may conduct the study. If the developer disregards FERC’s decision to authorize a disputed study request, the developer must explain the basis for its disagreement and fully justify the course pursued in the License Application. The risk of proceeding without agreement is the potential rejection of the application if FERC decides that the application lacks essential information. 18 C.F.R. § 4.38(b)(6)(v); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-6.

7-FD-i.24 – Implement Study Plans

The developer must implement the approved study plans once all disputes have been resolved. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-6.

7-FD-i.25 – Initiate 401 Water Quality Certification

The developer should request a 401 Water Quality Certification from the appropriate state agency. Under Section 401 of the Clean Water Act, 33 U.S.C. §§ 1251-1387 (CWA), a federal agency may not issue a license authorizing the construction or operation of a project, which may result in any discharge into navigable waters unless the appropriate state agency issues a Water Quality Certification for the project or waives Water Quality Certification by failing or refusing to act on a request within a reasonable period of time, which cannot exceed one year. Clean Water Act, 33 U.S.C. § 1341(a)(1). To allow the state agency sufficient time to analyze the request, the developer should request Water Quality Certification early on in the FERC licensing process.

Alaska

In Alaska, a hydropower developer needs a 401 Water Quality Certification or waiver from the Alaska Department of Environmental Conservation for projects that require a FERC License. For more information, see: For more information, see: 401 Water Quality Certification:
14-AK-d


Arkansas

In Arkansas, a hydropower developer needs a 401 Water Quality Certification or waiver from the Arkansas Department of Environmental Quality for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-AR-d


California

In California, a hydropower developer needs a 401 Water Quality Certification or waiver from the California State Water Resources Control Board and/or the regional water quality control for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-CA-d


Colorado

In Colorado, a hydropower developer needs a 401 Water Quality Certification or waiver from the Colorado Department of Public Health and Environment Water Quality Control Division for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-CO-d


Illinois

In Illinois, a hydropower developer needs a 401 Water Quality Certification or waiver from the Illinois Environmental Protection Agency and/or the regional water quality control for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-IL-d


Indiana

In Indiana, a hydropower developer needs a 401 Water Quality Certification or waiver from the Indiana Department of Environmental Management for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-IN-d


Iowa

In Iowa, a hydropower developer needs a 401 Water Quality Certification or waiver from the Iowa Department of Natural Resources for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-IA-d


Kentucky

In Kentucky, a hydropower developer needs a 401 Water Quality Certification or waiver from the Kentucky Department of Environmental Protection for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-KY-d


Louisiana

In Louisiana, a hydropower developer needs a 401 Water Quality Certification or waiver from the Louisiana Department of Environmental Quality Water Permits Division for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-LA-d


Minnesota

In Minnesota, a hydropower developer needs a 401 Water Quality Certification or waiver from the Minnesota Pollution Control Agency for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-MN-d


Mississippi

In Mississippi, a hydropower developer needs a 401 Water Quality Certification or waiver from the Mississippi Department of Environmental Quality for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-MS-d


Missouri

In Missouri, a hydropower developer needs a 401 Water Quality Certification or waiver from the Missouri Department of Natural Resources for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-MO-d

New York

In New York, a hydropower developer needs a 401 Water Quality Certification or waiver from the New York State Department of Environmental Conservation Division of Water Resources for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-NY-d


North Dakota

In North Dakota, a hydropower developer needs a 401 Water Quality Certification or waiver from the North Dakota Department of Health for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-ND-d


Ohio

In Ohio, a hydropower developer needs a 401 Water Quality Certification or waiver from the Ohio Environmental Protection Agency for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-OH-d

Pennsylvania

In Pennsylvania, a hydropower developer needs a 401 Water Quality Certification or waiver from the Pennsylvania Department of Environmental Protection for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-PA-d


Tennessee

In Tennessee, a hydropower developer needs a 401 Water Quality Certification or waiver from the Tennessee Department of Environment and Conservation for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-TN-d

Vermont

In Vermont, a hydropower developer needs a 401 Water Quality Certification or waiver from the Vermont Department of Environmental Conservation for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-VT-d

Washington

In Washington, a hydropower developer needs a 401 Water Quality Certification or waiver from the Washington State Department of Ecology for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-WA-d

West Virginia

In West Virginia, a hydropower developer needs a 401 Water Quality Certification or waiver from the West Virginia Department of Environmental Protection for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-WV-d

Wisconsin

In Wisconsin, a hydropower developer needs a 401 Water Quality Certification or waiver from the Wisconsin Department of Natural Resources for projects that require a FERC License. For more information, see:

401 Water Quality Certification:
14-WI-d

7-FD-i.26 – Initiate Endangered Species Act Section 7 Consultation

FERC must consult with the developer, United States Fish and Wildlife Service (USFWS) and NOAA Fisheries (NOAA) to ensure that the project is not likely to jeopardize any listed species or result in the destruction or adverse modification of critical habitat. If the project will adversely affect a threatened or endangered species of fish, wildlife, or plant, then the USFWS or NOAA Fisheries may establish reasonable and prudent alternatives (RPA) or measures (RPM). FERC is not required to include the measures in a license, but FERC and the developer may be held liable for any damage to a listed species that results from the license. Accordingly, FERC treats RPA or RPM as mandatory conditions included in the license. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, B-2. For more information regarding Section 7 consultation requirements, see: Endangered Species Act Section 7 Consultation Process:
12-FD-c

7-FD-i.27 – Initiate Essential Fish Habitat Assessment

FERC must consult with the developer and the National Oceanic and Atmospheric Administration (NOAA) on all “federal actions” including all actions proposed, authorized, funded, or undertaken, that may adversely affect Essential Fish Habitat (EFH) for species regulated under a Fisheries Management Plan (FMP) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act 16 U.S.C. § 1855 (Magnuson-Stevens Act). For more information regarding essential fish habitat requirements, see:

Essential Fish Habitat Assessment:
12-FD-i

7-FD-i.28 – Initiate Coastal Zone Management Act (CZMA) Consultation (If Applicable)

The developer must certify that the project is consistent with any applicable state Coastal Zone Management Program if the project is located within a coastal zone boundary or if the project affects a resource located in the boundaries of a designated coastal zone pursuant to the Coastal Zone Management Act, 16 U.S.C. 33 §§ 1451-1466. For more information regarding the coastal zone consultation requirements, see:

Pre-Existing Land Use Assessment Overview:
13_(1)

7-FD-i.29 – Conduct All Reasonable Studies

The developer must diligently conduct all reasonable studies and obtain all reasonable information requested by Interested Entities that are necessary for FERC to make a decision on the merits of the License Application. These studies must be completed:

  • Prior to filing the License Application if the results
    • would influence the financial or technical feasibility of the project; or
    • are needed to determine the design or location of project features, reasonable alternatives to the project, the impact of the project on important natural or cultural resources, or suitable mitigation or enhancement measures, or to minimize impact on significant resources.

18 C.F.R. § 4.38(c)(1)(i).

Note: Studies may be completed after application filing but before license issuance if:

  • The developer initiates formal consultation not later than 4 years prior to the expiration date of the license;
  • The study would take longer to conduct and evaluate than the time available between first stage consultation completion and the application filing deadline; and
  • The nature of the study does not dictate it being conducted after license issuance.

18 C.F.R. § 4.38(c)(1)(ii).

Note: A study may have to be postponed until after license issuance if the study:

  • Must be performed after construction of new project facilities or change in operation of the proposed project;
  • Is designed to determine the success of implemented mitigation measures; or
  • Would be used to refine project operation or modify project facilities.

18 C.F.R. § 4.38(c)(1)(iii).

7-FD-i.30 to 7-FD-i.31 – Are Additional Studies Requested?

If an Interested Entity requests an additional necessary and appropriate study after all studies have been conducted, the developer should promptly initiate the study, or gather the information. The results of such a study will be treated as additional information, and will not delay the filing and acceptance of the License Application, even if the study is incomplete at the time the License Application is filed. FERC may not take final action on the License Application until the results of the study are submitted and evaluated.

Note: The developer may refer the request to FERC for dispute resolution if the study or information is unreasonable or unnecessary or the use of the methodology is not a generally accepted practice. 18 C.F.R. § 4.38(c)(2).

7-FD-i.32 – Draft License Application

The developer must draft the License Application. The draft License Application must:

7-FD-i.33 – Provide Copy of Draft License Application

The developer must provide a copy of the draft License Application to all Interested Entities. 18 C.F.R. §4.38(c)(4).

7-FD-i.34 – Provide Comments

Interested Entities must provide written comments on the draft License Application within 90 days from the date the developer provides copies of the draft License Application. 18 C.F.R. §4.38(c)(5).

7-FD-i.35 – Request Preliminary Conditions and Recommendations

FERC may require any agency responsible for developing mandatory terms, conditions or prescriptions for a hydropower license, or issuing recommendations to FERC for a hydropower license to provide these terms, conditions, prescriptions or recommendations during the pre-filing consultation process. These terms, conditions, prescriptions or recommendations must be submitted in final form as part of the final license application.

The Federal Power Act, 16 U.S.C. §§ 791-828c (FPA) requires that in issuing a license, FERC must consider power and development purposes and also give equal consideration to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of fish and wildlife (including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality. Federal Power Act, 16 U.S.C. § 797(e). Accordingly, the FPA requires that FERC solicit recommendations and conditions from the appropriate federal, state and tribal entities for proposed terms and conditions for inclusion in a hydropower license. Federal Power Act, 16 U.S.C. § 803(a).

The following provisions of the FPA govern hydropower license recommendations and conditions:

FPA Section 4(e)

Federal land management agencies may issue mandatory conditions for inclusion in a FERC license to ensure that the project will not interfere or be inconsistent with the purpose of any reservation. Federal Power Act, 16 U.S.C. § 797(e). Reservation means “national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interest in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but that do not include national monuments or national parks Federal Power Act, 16 U.S.C. § 796(2).

FPA Section 10(a)

Federal and state resource agencies exercising administration over flood control, navigation, irrigation recreation, cultural and other relevant resources of the state in which the project is located and Indian Tribes affected by the project may provide license recommendations for inclusion as a condition to the FERC license to ensure the protection, mitigation, and enhancement of fish and wildlife and other beneficial public uses. Federal Power Act, 16 U.S.C. § 803(a)(1) and (2)(B). FERC must consider any Federal or state comprehensive plan (where one exists) and Federal and state resource agency, and Indian Tribe recommendations for inclusion in a FERC license. Federal Power Act, 16 U.S.C. § 803(a)(1)).

FPA Section 10(j)

The United States Fish and Wildlife Service (USFWS), NOAA Fisheries and state fish and wildlife agencies may provide recommendations for inclusion as a mandatory condition to the FERC license to adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (including related spawning grounds and habitat) affected by the development, operation or management of the project. Federal Power Act, 16 U.S.C. § 803(j)(1)).

FPA Section 18 Fishway Prescriptions

The United States Fish and Wildlife Service and NOAA Fisheries may prescribe mandatory fishway prescriptions for inclusion as a condition to the FERC license to ensure upstream and downstream passage of diadromous or riverine fish and aquatic species during the operation and maintenance of the project. Federal Power Act, 16 U.S.C. § 811. The following federal agencies have the authority to issue recommendations and conditions under the FPA:

United States Fish and Wildlife Service

The United States Fish and Wildlife Service (USFWS) may:

  • Prescribe mandatory conditions pursuant to FPA Section 4(e) for inclusion in a FERC hydropower license if the hydropower project is located in a National Fish Hatcheries area, National Waterfowl Management area or lands located within the National Wildlife Refuge System. Federal Power Act, 16 U.S.C. § 797(e).
  • Provide recommendations pursuant to FPA Section 10(a) for inclusion in a FERC license to ensure the protection, mitigation and enhancement of USFWS managed resources or uses. 16 U.S.C. § 803(a)(2)(B).
  • Provide license recommendations pursuant to FPA Section 10(j) for inclusion as a condition to a FERC license to protect, mitigate and enhance fish and life affected by the development, operation or management of the project. 16 U.S.C. § 803(j)(1).
  • Prescribe mandatory fishway prescriptions pursuant to FPA Section 18 for inclusion as a condition to a FERC license to ensure upstream and downstream passage of diadromous or riverine fish during the operations and maintenance of the project. 16 U.S.C. § 811.

For more information see:

U.S. Fish and Wildlife Service - License Conditions and Recommendations
7-FD-o

NOAA Fisheries

NOAA Fisheries may:

  • Provide recommendations pursuant to FPA Section 10(a) for inclusion in a FERC license to ensure the protection, mitigation and enhancement of NOAA Fisheries managed resources or uses (e.g. ocean resources and their habitats; fisheries). Federal Power Act, 16 U.S.C. § 803(a)(2)(B).
  • Provide license recommendations pursuant to FPA Section 10(j) for inclusion as a condition to a FERC license to protect, mitigation and enhance fish and life affected by the development, operation or management of the project. 16 U.S.C. § 803(j)(1).
  • Prescribe mandatory fishway prescriptions pursuant to FPA Section 18 for inclusion as a condition to a FERC license to ensure upstream and downstream passage of diadromous or riverine fish during the operation and maintenance of the project. 16 U.S.C. § 811.

For more information see:

NOAA Fisheries - License Conditions and Recommendations
7-FD-p

Bureau of Indian Affairs

The Bureau of Indian Affairs (BIA) may:

  • Prescribe mandatory conditions pursuant to FPA Section 4(e) for inclusion in a FERC license if the hydropower project is located on tribal land within a reservation in order to ensure the adequate protection and utilization of tribal lands and resources. Federal Power Act, 16 U.S.C. § 797(e); 25 C.F.R. § 169.1(c)(1).
  • Provide license recommendations pursuant to FPA Section 10(a) for inclusion in a FERC license to ensure the protection, mitigation and enhancement of Indian reservations and trust assets. 16 U.S.C. § 803(a)(2)(B).

For more information see: Bureau of Indian Affairs - FERC License Conditions and Recommendations
7-FD-l

Bureau of Reclamation

The Bureau of Reclamation (BOR) may:

  • Prescribe mandatory conditions pursuant to FPA Section 4(e) for inclusion in a FERC license if the hydropower project will be located at a BOR facility (i.e., dam or conduit) to ensure the project is consistent with BOR project purposes Federal Power Act, 16 U.S.C. § 797(e).
  • Provide recommendations pursuant to FPA Section 10(a) for inclusion in a FERC license to ensure the protection, mitigation and enhancement of BOR managed resources or use (e.g. BOR dam or conduit, water supply and irrigation). 16 U.S.C. § 803(a)(2)(B).

For more information see: Bureau of Reclamation - FERC License Conditions and Recommendations
7-FD-n

National Park Service

The National Park Service (NPS) may:

  • Prescribe mandatory conditions pursuant to FPA Section 4(e) for inclusion in a FERC license if the hydropower project may affect any NPS managed federal lands. Federal Power Act, 16 U.S.C. § 797(e).
  • Provide recommendations pursuant to FPA Section 10(a) for inclusion in a FERC license to ensure the protection, mitigation and enhancement of NPS managed resources or uses. 16 U.S.C. § 803(a)(2)(B).

For more information see:

National Park Service - FERC License Conditions and Recommendations
7-FD-q

United States Forest Service

The United States Forest Service (USFS) may:

  • Prescribe mandatory conditions pursuant to FPA Section 4(e) for inclusion in a FERC license if the project will be located on national forest lands to ensure the protection of national forest resources and the wise development of energy resources. Federal Power Act, 16 U.S.C. § 797(e).
  • Provide recommendations pursuant to FPA Section 10(a) for inclusion in a FERC license to ensure the protection, mitigation and enhancement of USFS managed resources or uses. 16 U.S.C. § 803(a)(2)(B).

For more information see:

U.S. Forest Service- FERC License Conditions and Recommendations
7-FD-s

United States Army Corps of Engineers

The United States Army Corps of Engineers (USACE) may:

  • Prescribe mandatory conditions pursuant to FPA Section 4(e) for inclusion in a FERC license for both non-federal hydropower development on a USACE operated facility and for non-federal hydropower development that could affect the structural integrity or operation of a USACE operated facility to ensure adequate protection and utilization of those facilities. Federal Power Act, 16 U.S.C. § 797(e).

Provide recommendations pursuant to FPA Section 10(a) for inclusion in a FERC license to ensure the protection, mitigation and enhancement of USACE managed resources or uses (e.g. USACE dams, flood control). 16 U.S.C. § 803(a)(2)(B).

For more information see:

U.S. Army Corps of Engineers - License Conditions and Recommendations
7-FD-r

State Fish and Wildlife Agencies

Under section 10(j) of the FPA, state fish and wildlife agencies may also issue recommendations for inclusion in a FERC license, which FERC must consider, for the protection, mitigation, and enhancement of fish and wildlife that might be affected by a hydropower project. Federal Power Act, 16 U.S.C. § 803(j).

Alaska

In Alaska, the Alaska Department of Fish and Game may issue recommendations for inclusion in a FERC license to protect, maintain, and improve the fish, game, and aquatic plant resources of the state. AS 16.05.020. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-AK-a(1)

Arkansas

In Arkansas, the Arkansas Game and Fish Commission may issue recommendations for inclusion in a FERC license to “control, manage, restore, conserve and regulate birds, fish, game and wildlife resources of the state.” Const. of Arkansas Amend. 35 §1. For more information, see:

State Fish and Wildlife License Recommendations:
12-AR-a

California

In California, the California Department of Fish & Wildlife and the California Department of Fish & Wildlife may issue recommendations for inclusion in a FERC license to conserve, protect, and manage fish, wildlife, and native plant species, and the habitat of the state. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-CA-a (1)

Colorado

In Colorado, the Colorado Parks and Wildlife may issue recommendations for inclusion in a FERC license to manage wildlife, improve wildlife habitat and ensure the health and future of Colorado’s natural areas. For more information, see: State Fish and Wildlife License Conditions and Recommendations:
12-CO-a (2)

Illinois

In Illinois, the Illinois Department of Natural Resources may issue recommendations for inclusion in a FERC license to manage, conserve and protect Illinois’ natural resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-IL-a

Indiana

In Indiana, the Indiana Department of Natural Resources may issue recommendations for inclusion in a FERC license to protect, enhance, manage and preserve habitat, and fish and wildlife resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-IN-a

Iowa

In Iowa, the Iowa Department of Natural Resources may issue recommendations for inclusion in a FERC license to protect the environment and manage fish, wildlife and natural resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-IA-a

Kentucky

In Kentucky, the Kentucky Department of Fish & Wildlife Resources may issue recommendations for inclusion in a FERC license to conserve and enhance fish and wildlife resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-KY-a

Louisiana

In Louisiana, the Louisiana Department of Wildlife and Fisheries may issue recommendations for inclusion in a FERC license to protect, conserve, and replenish fish and wildlife resources and their supporting habitats. For more information, see:

State Fish and Wildlife License Recommendations:
12-LA-a

Minnesota

In Minnesota, the Minnesota Department of Natural Resources may issue recommendations for inclusion in a FERC license to conserve the diversity of natural lands, fish and wildlife and manage water resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-MN-a

Mississippi

In Mississippi, the Mississippi Department of Wildlife, Fisheries and Parks may issue recommendations for inclusion in a FERC license to conserve and enhance wildlife, fisheries and natural resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-MS-a

Missouri

In Missouri, the Missouri Department of Conservation may issue recommendations for inclusion in a FERC license to manage, control, conserve and regulate wildlife resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-MO-a

New York

In New York, the New York State Department of Environmental Conservation may issue recommendations for inclusion in a FERC license to conserve, improve and protect wildlife and natural resources. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-NY-a

North Dakota

In North Dakota, the North Dakota Game and Fish Department may issue recommendations for inclusion in a FERC license to protect, conserve and enhance fish and wildlife populations and their habitat. For more information, see:

State Fish and Wildlife License Recommendations:
12-ND-a

Ohio

In Ohio, the Ohio Division of Wildlife within the Ohio Department of Natural Resources may issue recommendations for inclusion in a FERC license to protect, preserve and manage wildlife and natural resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-OH-a

Pennsylvania

In Pennsylvania, the Pennsylvania Fish and Boat Commission may issue recommendations for inclusion in a FERC license to protect, conserve and enhance aquatic resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-PA-a

Tennessee

In Tennessee, the Tennessee Wildlife Resources Agency may issue recommendations for inclusion in a FERC license to preserve, conserve, manage, protect and enhance fish and wildlife populations and their habitat. For more information, see:

State Fish and Wildlife License Recommendations:
12-TN-a

Vermont

In Vermont, the Vermont Agency of Natural Resources may issue recommendations for inclusion in a FERC license to preserve, enhance, restore and conserve, fish, wildlife, plants and their habitats. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-VT-a

Washington

In Washington, the Washington State Department of Fish and Wildlife may issue recommendations for inclusion in a hydropower license to preserve, protect and perpetuate fish, wildlife and ecosystems. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-WA-a(1)

West Virginia

In West Virginia, the West Virginia Division of Natural Resources may issue recommendations for inclusion in a FERC license to protect, conserve and enhance aquatic resources. For more information, see:

State Fish and Wildlife License Recommendations:
12-WV-a

Wisconsin

In Wisconsin, the Wisconsin Department of Natural Resources may issue recommendations for inclusion in a FERC license to protect and enhance natural resources, fish and wildlife. For more information, see:

State Fish and Wildlife License Recommendations:
12-WI-a

7-FD-i.36 to 7-FD-i.37 – Are There Any Substantive Disagreements?

The developer must schedule and hold a Joint Meeting with FERC and the Interested Entities within 60 days if any comments state a substantive disagreement with the factual findings regarding project impacts or the proposed environmental measures, to attempt to resolve the disagreement. 18 C.F.R. §4.38(c)(6).

7-FD-i.38 – Provide Notice of Joint Meeting

The developer must provide written notice of the meeting to FERC at least 15 days prior to the meeting. The notice must indicate the time, place, and agenda of the issues to be discussed at the meeting. 18 C.F.R. §4.38(c)(6)(iii). The developer and any disagreeing agency or Indian tribe may conclude a joint meeting with a document embodying any agreement among them regarding environmental protection, mitigation, or enhancement measures and any issues that are unresolved. 18 C.F.R. §4.38(c)(6).

7-FD-i.39 – Hold Joint Meeting

The developer and Interested Entities must hold the Joint Meeting with the disagreeing entity and any resource agencies with related areas of expertise and responsibility to discuss and attempt to reach an agreement on its plan for environmental protection, mitigation, or enhancement measures. 18 C.F.R. §4.38(c)(6.

7-FD-i.40 – Prepare Meeting Report

The developer will prepare a meeting report, which states whether the disagreement was resolved. 18 C.F.R. §4.38(c)(6).

7-FD-i.41 – FERC License Application and Associated Documents

Each application for a license must identify every person, citizen, association of citizens, domestic corporation, municipality, or state that has or intends to obtain and will maintain any proprietary right necessary to construct, operate, or maintain the project. 18 C.F.R. § 4.32(a)(1).

Each application for a license must:

  • Identify every county in which any part of the project, and any federal facilities that would be used by the project, would be located;
  • Identify every city, town, or similar local political subdivision: in which any part of the project, and any federal facilities that would be used by the project, would be located; or that has a population of 5,000 or more people and is located within 15 miles of the project dam;
  • Identify every irrigation district, drainage district, or similar special purpose political subdivision: In which any part of the project, and any federal facilities that would be used by the project, would be located; or that owns, operates, maintains, or uses any project facilities or any federal facilities that would be used by the project;
  • Every other political subdivision in the general area of the project that there is reason to believe would likely be interested in, or affected by, the application; and
  • All Indian tribes that may be affected by the project.

18 C.F.R. § 4.32(a)(2).

Exhibit E – Environmental Exhibit

FERC has outlined specific format and content requirements for developers to include in Exhibit E in the application. 18 C.F.R. § 5.18(b). Exhibit E must include a general description of the river system, including relevant tributaries; give measurements of the area of the basin and length of the stream. Exhibit E must also identify the project’s river mile designation or other reference point, describe the topography and climate, and discuss major land uses and economic activities. 18 C.F.R. § 5.18(b)(1). Exhibit E must list cumulatively affected resources based on FERC’s Scoping Document, consultation, and study results. It must discuss the geographic and temporal scope of analysis for those resources. 18 C.F.R. § 5.18(b)(2).

The developer’s Exhibit E must include a discussion of the status of compliance with or consultation under the following laws:

Section 401 of the Clean Water Act

Section 401 of the Clean Water Act (CWA) (33 U.S.C § 1251 et seq.) requires developers to demonstrate compliance with the CWA’s water quality certification requirements if the project may result in any discharge into the navigable waters of the U.S.

Endangered Species Act (ESA)

The developer must briefly describe the process used to address project effects on federally listed or proposed species in the project vicinity. Exhibit E must also contain a summary of any anticipated environmental effects on federally listed or proposed species and provide the status of the consultation process. If the developer is FERC’s non-federal designee for informal consultation under the ESA, the developer’s draft biological assessment must be included. 18 C.F.R. § 5.18(b)(3)(ii).

Magnuson-Stevens Fishery Conservation and Management Act

Exhibit E must include a document from the National Marine Fisheries Service and/or the appropriate Regional Fishery Management Council outlining any essential fish habitat that may be affected by the project. 18 C.F.R. § 5.18(b)(3)(iii).

Coastal Zone Management Act (CZMA)

If the developer’s project is located within a coastal zone boundary or if the project affects a resource located in the boundaries of a designated coastal zone, then the developer must certify that the project is consistent with the state Coastal Zone Management Program. 18 C.F.R. § 5.18(b)(3)(iv).

National Historic Preservation Act (NHPA)

Section 106 of NHPA requires FERC to take into account the effect of licensing a hydropower project on any historic properties, and allow the Advisory Council on Historic Preservation a reasonable opportunity to comment on the proposed action. The developer must include documentation of consultation with the Advisory Council, the State Historic Preservation Officer, Tribal Historic Preservation Officer, National Park Service, members of the public, and affected Indian tribes, where applicable. 18 C.F.R. § 5.18(b)(3)(v).

Pacific Northwest Power Planning and Conservation Act (Act)

If the developer’s project is within the Columbia River Basin, then the Act will apply. The Columbia River Basin Fish and Wildlife Program developed under the Act requires agencies to consult with federal and state fish and wildlife agencies, appropriate Indian tribes, and the Northwest Power Planning Council during the study, design, construction, and operation of any hydroelectric development in the basin. 18 C.F.R. § 5.18(b)(3)(vi).

Wild and Scenic Rivers and Wilderness Acts

The developer must include a description of any areas within or in the vicinity of the proposed project boundary that are included in, or have been designated for study for inclusion in, the National Wild and Scenic Rivers System, or that have been designated as wilderness area, recommended for such designation, or designated as a wilderness study area under the Wilderness Act. 18 C.F.R. § 5.18(b)(3)(vii).

The developer must also include in Exhibit E a description of the project’s facilities and operations. The project description must include the following:

  • Maps showing existing and proposed project facilities, lands, and waters within the project boundary;
  • The configuration of any dams, spillways, penstocks, canals, powerhouses, tailraces, and other structures;
  • The normal maximum water surface area and normal maximum water surface elevation (mean sea level), gross storage capacity of any impoundments;
  • The number, type, and minimum and maximum hydraulic capacity and installed (rated) capacity of existing and proposed turbines or generators to be included as part of the project;
  • An estimate of the dependable capacity, and average annual energy production in kilowatt hours (or mechanical equivalent);
  • A description of the current (if applicable) and proposed operation of the project, including any daily or seasonal ramping rates, flushing flows, reservoir operations, and flood control operations.

18 C.F.R. § 5.18(b)(4).

For further information on what must be included in Exhibit E, see 18 C.F.R. § 5.18(b)(5).

7-FD-i.42 to 7-FD-i.43 – Does the Developer Seek to Use the Expedited Licensing Process?

A developer may request to use the Expedited Licensing Process (ELP) from FERC on applications for original licenses to operate hydroelectric projects at nonpowered dams and closed-loop pumped storage projects that meet qualifying criteria established by FERC. 18 C.F.R. §§ 7.1-7.9. Any citizen, association of citizens, domestic corporation, municipality, or state that develops and files an application for an original license for a qualifying facility under the ILP may request to use the ELP procedure by submitting an ELP Application and associated documents at the time they file their final Original License Application and required associated documents. 18 C.F.R. §§ 7(c)(d)-(e) and 7.2(a)-(b).

For more information on the ELP see:

FERC - Expedited Licensing Process:
7-FD-m

7-FD-i.44 – Provide Notice of Application

FERC issues a tendering notice within 14 days of the filing of the License Application. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-11.

7-FD-i.45 – Initiate FERC Environmental Review and Scoping

FERC, with the assistance of the developer initiates environmental review under the National Environmental Policy Act. For more information see:

FERC - NEPA Review:
9-FD-i

7-FD-i.46 – Initiate National Historic Preservation Act Section 106 Consultation

Prior to issuing a hydropower license, FERC must consult with the appropriate state and local officials, Indian tribes, applicants for federal assistance and members of the public regarding the effects of the project on historic properties which are listed or are eligible for listing on the National Register of Historic Places. National Historic Preservation Act, 54 U.S.C. §§ 300101-307108 (NHPA).

For more information regarding the NHPA requirements, see:

National Historic Preservation Act Section 106 – Resource Survey:
11-FD-a

7-FD-i.47 – Provide any Necessary Additional Information

The developer must provide to the Interested Entities any:

7-FD-i.48 to 7-FD-i.51 – Review FERC License Application for Completeness

FERC reviews the License Application for completeness. FERC may request additional information or documents it considers relevant for an informed decision on the application. If FERC determines that a License Application is inadequate, it will issue a deficiency letter notifying the developer of the deficiencies and affording the developer an appropriate period of time, not exceed 90 days to correct the deficiencies. 18 C.F.R. § 4.32(b) and (e)(1); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 5-7, 5-8.

7-FD-i.53 – Is the License Application Patently Deficient?

FERC must determine whether the License Application is patently deficient within 90 days of the filing date of the License Application. A License Application is patently deficient if it:

  • Fails to substantially comply with content requirements and pre-filing consultation process; or
  • Is precluded by law.

If FERC determines that the License Application is patently deficient, it may reject it. If FERC rejects or dismisses a License Application because it is patently deficient the developer cannot refile its application if the 24-month filing deadline has passed. 18 C.F.R. § 4.32(e)(2); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 5-7, 5-8.

7-FD-i.54 – Make License Application Available to the Public

The developer must make the License Application and all associated documents reasonably available to the public for inspection and reproduction from the date on which the developer files its License Application with FERC. The developer must delete any information, specific site or property locations which would create a risk of harm, theft, or destruction of archaeological or Native American cultural resources. 18 C.F.R. § 4.32(b)(3)(i)-(ii).

7-FD-i.55 – Publish Notice of License Application

The developer must publish notice of the License Application twice within 14 days after filing the License Application with FERC in a daily or weekly newspaper of general circulation in each county in which the project is located. The developer must promptly provide FERC with proof of the publication of the notice. The notice must disclose:

  • The filing date of the License Application;
  • A brief summary of the License Application;
  • The Applicant’s name and address;
  • The type of facility applied for and its proposed location;
  • The places where the License Application and associated documents are available for public inspection and reproduction;
  • The date by which any requests for additional scientific studies are due;
  • A statement that FERC will publish subsequent notice soliciting public participation if the License Application is accepted.

18 C.F.R. § 4.32(b)(6).

7-FD-i.56 to 7-FD-i.58 – Review License Application for Acceptance

FERC reviews the License Application for Acceptance. If the License Application is acceptable, FERC issues the developer a Letter of Acceptance of the License Application. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-11.

7-FD-i.59 – Provide Notice of Acceptance of License Application for Substantive Review

FERC provides public notice in the Federal Register, local newspapers, and directly to resource agencies and Indian tribes of the acceptance. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 5-7, 5-8.

7-FD-i.60 – Provide Comment on License Application

Federal and state resource agencies, Indian tribes and members of the public must file comments on the License Application within 60 days after FERC provides notice that the License Application is accepted. All reply comments must be filed within 105 days of the notice of acceptance. 18 C.F.R. § 4.34(b).

7-FD-i.61 – Issue Scoping Document (Optional)

FERC may issue a scoping document depending on the nature and extent of comments received in response to the notice of application accepted for filing. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-13.

7-FD-i.62 – Comment on Scoping Document (Optional)

Interested Entities must provide comments within 30 days of the issuance of the scoping document. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-13.

7-FD-i.63 – Issue Ready for Environmental Analysis (REA)

FERC issues the Ready for Environmental Analysis notice soliciting final comments, and federal and state resource recommendations, terms and conditions, and prescriptions pursuant to the FPA. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-13.

7-FD-i.64 – Comment on REA

Interested Entities must provide comments, and license recommendations, terms, conditions and prescriptions within 60 days. Responses to comments are due in 45 days. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-13.

7-FD-i.65 – Draft Environmental Assessment (EA) or Environmental Impact Statement (EIS)

FERC prepares a draft EA or EIS. The draft EA or EIS will include:

  • Draft license articles;
  • A preliminary determination of whether each condition recommended under FPA Section 10(j) is consistent with the FPA;
  • Any preliminary mandatory conditions submitted by federal and state resource agencies.

FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 4-13.

7-FD-i.66 – Publish Notice of Draft EA or EIS

FERC must provide public notice of the draft EA or EIS. The draft EA will set the time frame required for notice and comment. 18 C.F.R. § 5.25(c).

7-FD-i.67 to 7-FD-i.68 – Final EA or EIS

FERC issues a final EA or EIS. 18 C.F.R. § 5.25(e).

The Collaborative Group and members of the public may submit comments on the final EA or EIS no later than 30 or 45 days after issuance of the final environmental document. 18 C.F.R. § 5.24(c).

7-FD-i.69 – Does FERC Approve the License Request?

FERC may approve or deny a License Application based on all the information gathered during the licensing process. Pursuant to FPA Section 4(e), FERC must give equal consideration to developmental and environmental values when deciding whether or not to issue a license. Environmental values include the following:

  • Fish and wildlife resources;
  • Visual resources;
  • Cultural resources;
  • Recreational opportunities; and
  • Other aspects of environmental quality.

Developmental values include the following:

  • Power generation;
  • Irrigation;
  • Flood control; and
  • Water supply.

7-FD-i.70 – Licensing Order

FERC issues a Licensing Order if it determines to approve the License Application and issues a FERC License. The Licensing Order outlines all approved conditions. The Licensing Order becomes final 30 days after issuance, unless the developer or other party timely seeks a rehearing. 16 USC 825l(a). Note, seeking a rehearing does not stay the requirements of the Licensing Order. FERC Licensing Orders contain an extensive overview of the project, licensing requirements and information regarding compliance with federal law, generally containing content in the following form:

  • Introduction, describing application date, type, and project capacity.
  • Background, describing licensing history and current application history.
  • Project Description, describing the following about the project;
    • Area.
    • Facilities.
    • Recreation sites.
    • Boundary.
    • Current operation.
    • Proposed operation and environmental measures.
  • Summary of License Requirements, describing the license authorizations and requirements.
  • Water Quality Certification, describing water quality certification and conditions.
  • Coastal Zone Management, describing CZMA consistency certification.
  • Section 18 Fishway Prescription, describing required fishways.
  • Threatened and Endangered Species, describing Endangered Species Act compliance.
  • National Historic Preservation Act, describing National Historic Preservation Act compliance.
  • FPA Section 10(a)(1), describing adaptation to conform with comprehensive plan.
  • FPA Section 10(j) Recommendations, describing conditions submitted by federal and state fish and wildlife agencies.
  • Administrative Provisions, describing required administrative provisions.
  • State and Federal Comprehensive Plans, describing consistency with state and federal comprehensive plans.
  • Applicant’s Plans and Capabilities, describing FERC’s analysis of the licensee’s record as a licensee.
  • Project Economics, describing FERC’s analysis of the economic benefits of the project.
  • Comprehensive Development, describing FERC’s analysis of the impact of the development.
  • License Term, describing the license term, requirements, and project detail.
  • Terms and Conditions, describing all the terms and conditions attached to the license.
  • Appendix A, Water Quality Certification Conditions, containing an additional description of the conditions of water quality certification.

See FERC Online eLibrary.

7-FD-i.71 – Provide Notice of Denial

If FERC determines that a License should not be granted for the developer’s project, then it will issue a notice of denial. 18 C.F.R. § 385.713(f).

7-FD-i.72 to 7-FD-i.73 – Submit Request for Rehearing (Optional)

The developer may request rehearing on any FERC decision. The developer must submit the request no later than 30 days after issuance of the licensing denial. 18 CFR 385.713(b). The request should outline the alleged error in the final decision or final order. FERC may approve or deny any rehearing request. 18 CFR 385.713(c)(1).

7-FD-i.74 – Conduct Rehearing on Denial of Licensing

If the request for rehearing is approved, then FERC reviews the decision to deny a License. 18 C.F.R. § 385.713(f).

7-FD-i.75 – Final Rehearing Order

Following review of the rehearing request, FERC issues a final rehearing order on the licensing. 18 C.F.R. § 385.713(f).

7-FD-i.76 to 7-FD-i.77– Is the License Approved?

FERC may approve or deny any request for a license. If the license is approved, then FERC will issue a Licensing Order. If the license is denied, then FERC will issue an order denying the license application. The developer may seek rehearing of the order denying the license application with FERC. FERC may either issue an order either granting or denying rehearing of the license order. If FERC issues an order denying rehearing of the license order then the developer may obtain review of the order denying rehearing in the United States Court of Appeals for the District of Columbia, or any circuit in which the developer is located or where the developer has its principal place of business. The developer may obtain review through filing a written petition requesting that the rehearing order be modified or set aside in whole within 60 days after the final action of FERC. 16 U.S.C. § 825(b).

Following issuance of a final FERC License, FERC must monitor the developer’s compliance with all the conditions contained within the license. Failure to comply with outlined conditions would subject the developer to civil penalties or rescission of the license. FPA Section 31(a) and FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 1-4.


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