Difference between revisions of "RAPID/Roadmap/7-FD-k"

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<span class="btn btn-rapid btn-fed">[[RAPID/Roadmap/7-FD-m|FERC Expedited Licensing Process: <br>7-FD-m]]</span>
 
<span class="btn btn-rapid btn-fed">[[RAPID/Roadmap/7-FD-m|FERC Expedited Licensing Process: <br>7-FD-m]]</span>
 
==7-FD-k.45 – Make License Application Available to the Public==
 
The developer must make the license application and all associated documents reasonably available to the public following submission. The developer may make a copy available at their principal place of business or another location more accessible to the public. [[Title 18 CFR 5 Integrated License Application Process | 18 C.F.R. § 5.2(b)(1)]].
 
 
==7-FD-k.46 – Provide Notice of Application Tendered for Filing==
 
 
FERC must provide public notice of the tendering for filing of the application within 14 days of the filing date of the application. [[Title 18 CFR 5 Integrated License Application Process | 18 C.F.R. § 5.19(a)]]. The tendering notice must include a preliminary schedule for expeditious processing of the application, including dates for the following:
 
*Issuance of the acceptance for filing and ready for environmental analysis notice;
 
*Filing of recommendations, preliminary terms and conditions, and fishway prescriptions;
 
*Issuance of a draft EA or EIS, or an EA not preceded by a draft;
 
*Filing of comments on the draft EA or EIS;
 
*Filing of modified recommendations, mandatory terms and conditions, and fishway prescriptions in response to a draft NEPA document or environmental analysis, if no draft NEPA document is issued;
 
*Issuance of a final NEPA document, if any;
 
*In the case of a new or subsequent license application, a deadline for submission of final amendments, if any, to the application; and
 
*Readiness of the application for FERC’s decision.
 
 
[[Title 18 CFR 5 Integrated License Application Process | 18 C.F.R. § 5.19(a)]].
 
 
==7-FD-k.47 – Review Application for Completeness==
 
 
FERC will review the application documents to ensure that all the required information is present. The developer may be required to submit any additional information or documents that FERC considers relevant for an informed decision on the application. The information or documents requested must take the form, and must be submitted within the time, that FERC prescribes. [[Title 18 CFR 5 Integrated License Application Process | 18 C.F.R. § 5.21]].
 
 
==7-FD-k.48 – Is the Application Complete?==
 
 
FERC will notify the developer whether the application is complete within 30 days of the filing date of the application.
 
 
==7-FD-k.49 to 7-FD-k.50 – Provide Notice of Deficiency of Application ==
 
 
If the developer’s application is deficient, then FERC will provide a notice specifying the deficiencies. The developer will be afforded up to 90 days time to correct the deficiencies. [[Title 18 CFR 5 Integrated License Application Process | 18 C.F.R. § 5.20(a)(2)]].
 
 
==7-FD-k.51 – Conduct Substantive Review of Application==
 
 
FERC must conduct a substantive review of all application materials before the application can be accepted.
 
 
==7-FD-k.52 – Is the Application Accepted?==
 
 
FERC may accept an application or may request further information from the developer. A revised application will be accepted so long as the deficiencies in the application have been corrected.
 
 
==7-FD-k.53 – Provide Additional Information and Conduct Further Studies (If Necessary==
 
 
FERC may require the developer to submit additional information or documents that FERC considers relevant for an informed decision on the application. If the developer fails to supply information or documents requested by FERC in the allotted time, then FERC may dismiss the application. [[Title 18 CFR 4 Licenses, Permits, Exemptions, and Determination of Project Costs | 18 C.F.R. § 4.32(g)]].
 
 
==7-FD-k.54 – Provide Notice of Acceptance and Readiness for Environmental Analysis==
 
 
FERC must issue a Notice of Acceptance and Readiness for Environmental Analysis once it determines that the application meets all filing requirements, the studies have been completed, any deficiencies have been resolved, and no additional information is required. [[FERC Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing | FERC Handbook, page 3-13]]. This notice solicits comments, protests and interventions, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions. [[FERC Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing | FERC Handbook, page 3-13]].
 
  
 
==7-FD-k.45 – Make License Application Available to the Public==  
 
==7-FD-k.45 – Make License Application Available to the Public==  

Revision as of 10:13, 8 November 2019

RAPIDRegulatory and Permitting Information Desktop Toolkit
My Projects

FERC Integrated Licensing Process (7-FD-k)

Information current as of 2019
A person (developer) must use the Integrated Licensing Process (ILP) for an application for an original or new license (relicense) to construct, operate, or maintain a non-federally owned hydropower project unless Federal Energy Regulatory Commission (FERC) grants permission to use the Alternative Licensing Process (ALP) or Traditional Licensing Process (TLP). FERC oversees the ILP pursuant to its authority to process hydropower license applications under the 16 U.S.C. § 797(e) (FPA). 18 C.F.R. § 5.1(f).


The ILP is the default process for hydropower license applications. The ILP is appropriate for projects with complex issues and study needs that require close coordination and cooperation between the applicant, resource agencies, Indian tribes, FERC staff and the public during the pre-filing stage of the licensing process. The ILP was designed to provide for:

  • Early issue identification and resolution of studies necessary to fill information gaps and avoid the need for additional studies post-filing;
  • Integration of the needs of Interested Entities in the permitting process;
  • Establishment of time frames to complete the process steps for all Interested Entities.
Federal Energy Regulatory Commission – Hydropower Primer: A Handbook of Hydropower Basics, 32; 18 C.F.R. § 5.1(f).



FERC Integrated Licensing Process


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7-FD-k.1 – Notice of Intent and Pre-Application Documents

The developer must file a Notice of Intent with Pre-Application Document to FERC for review. 18 CFR 5.5(a). These documents compile existing information about project impacts on hydrology and other natural resources.

Notice of Intent

The Notice of Intent must contain 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 a new or subsequent license;
  • The type of principal project works licensed, if any, such as dam or 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.

18 C.F.R. § 5.5(b).

The notice of intent must also include the names and addresses of the following:

  • Every county in which any part of the project is located, and in which any federal facility that is or is to be used by the project is located;
  • 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 has a population of 5,000 or more people and is located within 15 miles of the existing or proposed project dam;
  • Every irrigation district, drainage district, or similar special purpose political subdivision in which any part of the project is located and any federal facility that is to be 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;
  • 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
  • Affected Indian tribes.

18 C.F.R. § 5.5(b)(8).

For additional information on the Notice of Intent, including an adequacy review checklist, see the FERC Guidelines webpage.

Pre-Application Document

The Pre-Application Document 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 Pre-Application Document must include the following:

Process plan and schedule

The developer must include a plan and schedule for all pre-application activities that incorporates the time frames 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).

Project location, facilities, and operations

The developer must include in the Pre-Application Document:

  • 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

The developer must, based on the existing, relevant, and reasonably available information, include a discussion with respect to each resource that includes:

  • 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.

18 C.F.R. § 5.6(d)(3).

The developer must provide all reasonably available information with respect to each of the following resources:

  • Geology and soils;
  • Water resources;
  • Fish and aquatic resources;
  • Wildlife and botanical resources;
  • Wetlands, riparian, and littoral habitat;
  • Rare, threatened and endangered species;
  • Recreation and land use;
  • Aesthetic resources;
  • Cultural resources;
  • Socio-economic resources;
  • Tribal resources; and
  • River basin description.

For further information on what must be included in the Pre-Application document under each resource, see 18 CFR 5.6(d)(3) and the adequacy review checklist on the FERC Guidelines webpage.

Preliminary issues and studies list

Based on the resource description and impacts discussion, the Pre-Application Document 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 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 Pre-Application Document sufficient to enable FERC to determine if due diligence has been exercised in obtaining relevant information. 18 C.F.R. § 5.6(d)(5).

Statement of whether developer is seeking PURPA benefits

The developer must provide a statement of whether or not they will seek benefits under section 210 of Public Utilities Regulatory Policy Act (PURPA). 18 C.F.R. § 5.6(e). Under PURPA, the developer of a Qualifying Facility may enjoy certain benefits under federal law including:

  • The right to sell energy or capacity to a utility;

The right to purchase certain services from utilities; and

  • Relief from certain regulatory burdens.

For more information on PURPA, see:

PURPA Qualifying Facility Certification:
7-FD-c

The filing of the Notice of Intent and the Pre-Application Document begins pre-filing consultations, and initiates FERC’s scoping and tribal consultation efforts. FERC Handbook, page 3-3.

7-FD-k.2 – Initiate Pre-Filing Consultation

The developer initiates pre-filing consultation with federal and state resource agencies, Indian tribes and members of the public. The developer’s pre-filing consultation is conducted concurrently with FERC’s environmental scoping process pursuant to the National Environmental Policy Act. FERC Handbook, page 3-3.

7-FD-k.3 – Initiate Environmental Scoping

FERC initiates environmental scoping pursuant to the National Environmental Policy Act (NEPA). The environmental scoping process is conducted concurrently with the developer’s pre-filing consultation. FERC Handbook, page 3-3. For more information on the NEPA environmental scoping process, see:

FERC – NEPA Review:
9-FD-i

7-FD-k.4 – 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-k.5 – Conduct Necessary Consultations

The developer must consult with the relevant federal, state, and interstate resource agencies. The developer may request from FERC a list of known appropriate federal, state, and interstate agencies, Indian tribes, and local, regional, or national non-governmental organizations likely to be interested in the license application proceeding. 18 C.F.R. § 5.1(d)(2). These agencies may include the following:

18 C.F.R. § 5.1(d).

7-FD-k.6 – Initiate National Historic Preservation Act Section 106 - Resource Survey

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-k.7 – Initiate Endangered Species Act Section 7 Consultation

FERC must consult with the developer, United States Fish and Wildlife Service (FWS) 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 pursuant to the Endangered Species Act (ESA) section 7(a)(2). If the project will adversely affect a threatened or endangered species of fish, wildlife, or plant, then the FWS 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:
12-FD-c

7-FD-k.8 – 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:

Fish Habitat Assessment:
12-FD-i

7-FD-k.9 – 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-k.10 – Provide Notice of Commencement of Proceeding

FERC must provide notice of commencement of proceeding and scoping document within 60 days of the NOI and Pre-Application documents. 18 C.F.R. § 5.8(a).

7-FD-k.11 – Scoping Document 1 and Process Plan

FERC issues Scoping Document 1 at the same time as the Notice of Commencement and Notice of Scoping Document 1. 18 CFR 5.8(c). Scoping Document 1 will include:

  • An introductory section describing the purpose of the scoping document, the date and time of the scoping meeting, procedures for submitting written comments, and a request for information or study requests from state and federal resource agencies, Indian tribes, non-governmental organizations, and individuals;
  • Identification of the proposed action, including a description of the project’s location, facilities, and operation, and any proposed protection and enhancement measures, and other alternatives to the proposed action, including alternatives considered but eliminated from further study, and the no action alternative;
  • Identification of resource issues to be analyzed in the environmental document, including those that would be cumulatively affected along with a description of the geographic and temporal scope of the cumulatively affected resources;
  • A list of qualifying federal and state comprehensive waterway plans;
  • A list of qualifying tribal comprehensive waterway plans;
  • A process plan and schedule and a draft outline of the environmental document; and
  • A list of recipients.

18 C.F.R. § 5.8(c).

The Process Plan incorporates and maximizes coordination of federal, state, and tribal permitting and certification processes with FERC’s licensing process to ensure efficiency. FERC Handbook, page 3-4.

7-FD-k.12 – Provide Notice of Scoping Document 1 and Process Plan

FERC must provide notice of Scoping Document 1 within 60 days of the NOI and Pre-Application documents. 18 C.F.R. § 5.8(a).

7-FD-k.13 – Comment on Pre-Application Document, Scoping Document 1, and Process Plan

Any participant may file comments on the Pre-Application Document and Scoping Document 1 within 60 days of the Notice of Commencement. 18 C.F.R. § 5.9(a).

Written comments must be accompanied by information needs and study requests, and must include any information and studies needed for consultation under Section 7 of the ESA and 401 water quality certification under the Clean Water Act. Study requests must be based on the following criteria and include an explanation for each:

  • Describe the goals and objectives of each study proposal and the information to be obtained;
  • If applicable, explain the relevant resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
  • If the requester is not a resource agency, explain any relevant public interest considerations in regard to the proposed study;
  • Describe existing information concerning the subject of the study proposal, and the need for additional information;
  • Explain any nexus between project operations and effects on the resource to be studied, and how the study results would inform the development of license requirements;
  • Explain how any proposed study methodology is consistent with generally accepted practice within the scientific community or, as appropriate, considers relevant tribal values and knowledge; and
  • Describe considerations of level of effort and cost, as applicable, and why any proposed alternative studies would not be sufficient to meet the stated information needs.

18 C.F.R. § 5.9(b)

Any comments must state any concerns about the Pre-Application Document’s treatment of existing information about project impacts. Comments must also explain any scheduling concerns in the developer’s Process Plan and recommend appropriate modifications. 18 CFR 5.9(a). Comments on the Pre-Application Document may also include study or information requests. Study requests must include any study which the commenter feels is necessary for the licensing decision. 18 CFR 5.9(a). Comments on Scoping Document 1 must state any concerns about the description and impacts of the project or the alternatives outlined. 18 C.F.R. § 5.9(a).

7-FD-k.14 – Provide Notice of Scoping Meeting and Site Visit

FERC must provide public notice of the scoping meeting and site visit. The notice must be published in the Federal Register. The notice must also be published in a daily or weekly newspaper published in the county or counties in which the project or any part of the project is located, or the lands affected by the project are situated, and, as appropriate, tribal newspapers. 18 C.F.R. § 5.8(e). FERC must also notify appropriate federal, state, and interstate resource agencies, state water quality and coastal zone management plan consistency certification agencies, Indian tribes, and non-governmental organizations, by electronic means if practical, otherwise by mail. 18 C.F.R. § 5.8(e)(3).

7-FD-k.15 – Conduct Scoping Meeting and Site Visit

FERC must conduct a public scoping meeting and site visit of the proposed project site. The purpose of the meeting and visit is to:

  • Initiate issues scoping pursuant to NEPA requirements;
  • Review and discuss existing conditions and resource management objectives;
  • Review and discuss existing information and make preliminary identification of information and study needs;
  • Review, discuss, and finalize the process plan and schedule for pre-filing activity that incorporates the time periods provided for and maximize coordination of federal, state, and tribal permitting and certification processes, including consultation under section 7 of the Endangered Species Act and water quality certification or waiver thereof under section 401 of the Clean Water Act; and
  • Discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document pursuant to NEPA.

18 C.F.R. § 5.8(d).

7-FD-k.16 – Proposed Study Plan

The developer is required to file a Proposed Study Plan with FERC within 45 following the deadline for filing comments on the Pre-Application Document, study requests, and requests for information. 18 C.F.R. § 5.11(a).

The developer’s Study Plan must 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.

18 C.F.R. § 5.11(b).

The Study Plan must also include provisions for the initial and updated study reports and meetings. 18 C.F.R. § 5.11(c). The developer’s proposed Study Plan must also:

  • Describe the goals and objectives of each study proposal and the information to be obtained;
  • Address any known resources management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
  • Describe existing information concerning the subject of the study proposal, and the need for additional information;
  • Explain any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied;
  • Explain how any proposed study methodology (including any preferred data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate field seasons and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate, considers any known tribal interests; and
  • Describe considerations of level of effort and cost, as applicable.

18 C.F.R. § 5.11(d).

7-FD-k.17 – Scoping Document 2 (If Applicable)

FERC may at its discretion publish a Scoping Document 2 within 45 days of the deadline for comments on the Pre-Application Document and Scoping Document 1. Scoping Document 2 is designed to address any timely comments made on Scoping Document 1. 18 C.F.R. § 5.10.

7-FD-k.18 – Comment on Proposed Study Plan

Comments on the proposed Study Plan will be accepted for 90 days following issuance of the proposed Study Plan. 18 CFR 5.12. Any comments must include an explanation of any study plan concerns and any accommodations reached with the potential developer regarding those concerns. 18 C.F.R. § 5.12. For example, the FWS may recommend new studies necessary to identify potential impacts of the project on fish and wildlife related habitats.

Any request for a new study must be accompanied by a showing of good cause and include statements explaining:

  • Any material changes in the law or regulations applicable to the information request;
  • Why the goals and objectives of any approved study could not be met with the approved study methodology;
  • Why the request was not made earlier;
  • Significant changes in the project proposal or that significant new information material to the study objectives has become available; and
  • Why the new study request satisfies the following study criteria:
  • Describes the goals and objectives of each study proposal and the information to be obtained;
  • If applicable, explain the relevant resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied;
  • If the requester is not a resource agency, explain any relevant public interest considerations in regard to the proposed study;
  • Describes existing information concerning the subject of the study proposal, and the need for additional information;
  • Explains any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied, and how the study results would inform the development of license requirements;
  • Explains how any proposed study methodology is consistent with generally accepted practice in the scientific community or, as appropriate, considers relevant tribal values and knowledge; and
  • Describes considerations of level of effort and cost, as applicable, and why any proposed alternative studies would not be sufficient to meet the stated information needs. 18 C.F.R. § 5.9(b).

18 C.F.R. § 5.15.

7-FD-k.19 – Revised Study Plan

The developer must file a revised Study Plan with FERC within 30 days following the deadline for filing comments on the proposed Study Plan. 18 CFR 5.13(a). The revised Study Plan must include the comments on the proposed Study Plan and a description of the efforts made to resolve differences over study requests. If the developer does not adopt a requested study, then the revised Study Plan must explain why the request was not adopted. 18 C.F.R. § 5.13(a).

7-FD-k.20 – Comment on Revised Study Plan

Participants may file comments on the revised Study Plan within 15 days following filing of the revised Study Plan. 18 C.F.R. § 5.13(b).

7-FD-k.21 – Study Plan Determination

FERC will issue a Study Plan Determination within 30 days following the filing of the revised Study Plan. 18 C.F.R. § 5.13(c). The Study Plan Determination includes any modifications of the revised Study Plan FERC deems necessary in light of the record. 18 C.F.R. § 5.13(c).

7-FD-k.22 to 7-FD-k.23 – Is there a Study Dispute?

Any federal agency or Indian tribe with authority may file a study dispute within 20 days of the Study Plan Determination. In order for an agency to file a study dispute, it must have authority to provide mandatory conditions on a license pursuant to Federal Power Act Section 18, or any agency or Indian tribe with authority to issue a water quality certification for the project license under section 401 of the Clean Water Act. The study disputes filed must be with respect to studies pertaining directly to the exercise of their authorities under section 4(e) and 18 of the Federal Power Act or section 401 of the Clean Water Act. 18 C.F.R. § 5.14(a).

7-FD-k.24 – Provide Notice of Study Dispute

The disputing agency or tribe’s notice of study dispute must explain how their study request satisfies all criteria for study requests outlined in 18 C.F.R. § 5.9(b), and must identify and provide contact information for the panel member designated by the disputing agency or tribe. 18 C.F.R. § 5.14(b).

7-FD-k.25 – Convene Dispute Resolution Panels as Necessary

FERC must convene one or more three-person Dispute Resolution Panels within 20 days of a notice of study dispute. 18 C.F.R. § 5.14(a). Each panel must consist of:

  • A person from FERC staff who is not otherwise involved in the proceeding, and who will serve as the panel chair;
  • One person designated by the federal or state agency or Indian tribe that filed the notice of dispute who is not otherwise involved in the proceeding; and
  • A third person selected by the other two panelists from a pre-established list of persons with expertise in the resource area.

18 C.F.R. § 5.14(d).

7-FD-k.26 – Comment on Study Dispute

The developer may file comments and information regarding the dispute within 25 days following the notice of study dispute. 18 C.F.R. § 5.14(i).

7-FD-k.27 – Review Comments and Information Provided by the Panel

FERC will review all the information provided to them by the panel and consider all comments submitted by the developer with respect to the study dispute. 18 C.F.R. § 5.14(l).

7-FD-k.28 – Study Dispute Determination

FERC must review and consider the recommendations made by the Dispute Resolution Panels, and must issue a written Study Dispute Determination no later than 70 days from the date of the filing of the notice of study dispute. 18 C.F.R. § 5.14(l). The Study Dispute Determination will be considered an amendment to the approved Study Plan. 18 C.F.R. § 5.14(l).

7-FD-k.29 – Implement Finalized Study Plan

The potential developer must gather information and conduct studies as provided in the approved Study Plan and schedule. 18 C.F.R. § 5.15(a).

7-FD-k.30 – Initial Study Report

The developer must prepare and file with FERC an initial study report describing its overall progress in implementing the study plan and schedule and the data collected, including an explanation of any variance from the study plan and schedule. The report must also include any modifications to ongoing studies or new studies proposed by the developer. 18 C.F.R. § 5.15(c). The initial study report must be filed either pursuant to the OEP-approved study schedule or no later than 1 year after FERC approval of the study plan, whichever comes first. 18 C.F.R. § 5.15(c).

7-FD-k.31 – Conduct Study Report Meeting

The developer must hold a meeting with the participants and FERC staff to discuss the study results and the developer’s and/or other participant’s proposals to modify the study plan within 15 days following the filing of the initial Study Report. 18 C.F.R. § 5.15(c)(2).

7-FD-k.32 – File Meeting Summary

The developer must file a Meeting Summary within 15 days following the meeting. The Meeting Summary must include any modifications to ongoing studies or new studies proposed by the developer. 18 C.F.R. § 5.15(c)(3).

7-FD-k.33 to 7-FD-k.34 – Is a Disagreement with the Meeting Summary Filed?

Any participant or the FERC staff may file a disagreement concerning the developer’s Meeting Summary within 30 days. The document must outline the basis for the disagreement and include any modifications to ongoing studies or new studies proposed by FERC staff or other participant. 18 C.F.R. § 5.15(c)(4).

If a disagreement is not filed within 30 days, then any proposed amendment must be deemed to be approved. 18 C.F.R. § 5.15(c)(7).

7-FD-k.35 – Comment on Disagreement

The developer and other participating agencies may file responses to any disagreement with the Meeting Summary within 30 days of the filing of the disagreement. 18 C.F.R. § 5.15(c)(5).

7-FD-k.36 – Resolve Disagreement and Amend Study Plan if Necessary

FERC will resolve the disagreement and amend the Study Plan as necessary no later than 30 days following the due date for responses to the disagreement. 18 C.F.R. § 5.15(c)(6).

7-FD-k.37 – Is there an Additional Study Request?

Any participant may request a modified or a new study. A proposed modified study must comply with the study criteria and must also show that approved studies were not conducted as provided for in this approved study plan, or the study was conducted under anomalous environmental conditions or that environmental conditions have changed in a material way. 18 C.F.R. § 5.15(d).

Any proposal for a new study must be accompanied by a showing of good cause why the proposal should be approved, and must include a statement explaining:

  • Any material changes in the law or regulations applicable to the information request;
  • Why the goals and objectives of any approved study could not be met with the approved study methodology;
  • Why the request was not made earlier;
  • Significant changes in the project proposal or that significant new information material to the study objectives has become available; and
  • Why the new study request satisfies the study criteria.

18 C.F.R. § 5.15(e).

7-FD-k.38 – Conduct New Study (If Necessary)

If FERC determines that a new study should be conducted, or approves a modification to a current study, then the developer must comply with that determination.

7-FD-k.39 – Does the Developer Obtain a Waiver of the Preliminary Proposal Requirement?

The developer may request a waiver of the requirement to file the preliminary license proposal or draft license application. Any decision to issue a waiver will be based on a consensus of the participants in favor of such a waiver. 18 C.F.R. § 5.16(f).

7-FD-k.40 – Preliminary License Proposal or Draft License Application

The developer must file for comment a preliminary licensing proposal no later than 150 days prior to the deadline for filing a new or subsequent license application. 18 C.F.R. § 5.16(a). The preliminary licensing proposal must:

  • Clearly describe, as applicable, the existing and proposed project facilities, including project lands and waters;
  • Clearly describe, as applicable, the existing and proposed project operation and maintenance plan, to include measures for protection, mitigation, and enhancement measures with respect to each resource affected by the project proposal; and
  • Include the developer’s draft environmental analysis by resource area of the continuing and incremental impacts, if any, of its preliminary licensing proposal, including the results of its studies conducted under the approved study plan.

18 C.F.R. § 5.16(b).

Proposed project operation and maintenance plans will include measures and plans to protect, mitigate, or enhance environmental resources such as a Draft Biological Assessment, Essential Fish Habitat Assessment, Historic Properties Management Plan, and a Recreation Management Plan.

The developer may choose to file a draft license application, which includes all the requirements of a license application, in lieu of submitting a preliminary licensing proposal. The developer must notify FERC of their intent to file a draft license application in the updated Study Plan. 18 C.F.R. § 5.16(c).

7-FD-k.41 – Comment on License Proposal

Participants and FERC staff may comment on the preliminary licensing proposal or draft license application within 90 days of the date of its filing. 18 CFR 5.16(e). The comments submitted at this stage may include recommendations on whether FERC should prepare and Environmental Assessment (with or without a draft Environmental Assessment) or an Environmental Impact Statement. Any request for new information, studies, or other amendments to the approved study plan must include a demonstration of extraordinary circumstances. 18 C.F.R. § 5.16(e).

U.S. Fish and Wildlife Service

FWS will comment on the license proposal to identify potential impacts of the project on fish and wildlife and related habitats. FWS may also comment on the license proposal based on the Endangered Species Act if listed species are likely to be affected by the project. US FWS Hydropower Service Involvement.

For further information on FWS involvement in hydropower licensing see the FWS Hydropower Licensing webpage.

7-FD-k.42 – FERC License Application and Associated Documents

The applicant (developer) must file a FERC License Application (Application) and associated documents with FERC. 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 CFR 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 CFR 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 CFR 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-k.43 to 7-FD-k.44 – 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 non-powered 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-k.45 – Make License Application Available to the Public

The developer must make the license application and all associated documents reasonably available to the public following submission. The developer may make a copy available at their principal place of business or another location more accessible to the public. 18 C.F.R. § 5.2(b)(1).

7-FD-k.46 – Provide Notice of Application Tendered for Filing

FERC must provide public notice of the tendering for filing of the application within 14 days of the filing date of the application. 18 C.F.R. § 5.19(a). The tendering notice must include a preliminary schedule for expeditious processing of the application, including dates for the following:

  • Issuance of the acceptance for filing and ready for environmental analysis notice;
  • Filing of recommendations, preliminary terms and conditions, and fishway prescriptions;
  • Issuance of a draft EA or EIS, or an EA not preceded by a draft;
  • Filing of comments on the draft EA or EIS;
  • Filing of modified recommendations, mandatory terms and conditions, and fishway prescriptions in response to a draft NEPA document or environmental analysis, if no draft NEPA document is issued;
  • Issuance of a final NEPA document, if any;
  • In the case of a new or subsequent license application, a deadline for submission of final amendments, if any, to the application; and
  • Readiness of the application for FERC’s decision.

18 C.F.R. § 5.19(a).

7-FD-k.47 – Review Application for Completeness

FERC will review the application documents to ensure that all the required information is present. The developer may be required to submit any additional information or documents that FERC considers relevant for an informed decision on the application. The information or documents requested must take the form, and must be submitted within the time, that FERC prescribes. 18 C.F.R. § 5.21.

7-FD-k.48 – Is the Application Complete?

FERC will notify the developer whether the application is complete within 30 days of the filing date of the application.

7-FD-k.49 to 7-FD-k.50 – Provide Notice of Deficiency of Application

If the developer’s application is deficient, then FERC will provide a notice specifying the deficiencies. The developer will be afforded up to 90 days time to correct the deficiencies. 18 C.F.R. § 5.20(a)(2).

7-FD-k.51 – Conduct Substantive Review of Application

FERC must conduct a substantive review of all application materials before the application can be accepted.

7-FD-k.52 – Is the Application Accepted?

FERC may accept an application or may request further information from the developer. A revised application will be accepted so long as the deficiencies in the application have been corrected.

7-FD-k.53 – Provide Additional Information and Conduct Further Studies (If Necessary)

FERC may require the developer to submit additional information or documents that FERC considers relevant for an informed decision on the application. If the developer fails to supply information or documents requested by FERC in the allotted time, then FERC may dismiss the application. 18 C.F.R. § 4.32(g).

7-FD-k.54 – Provide Notice of Acceptance and Readiness for Environmental Analysis

FERC must issue a Notice of Acceptance and Readiness for Environmental Analysis once it determines that the application meets all filing requirements, the studies have been completed, any deficiencies have been resolved, and no additional information is required. FERC Handbook, page 3-13. This notice solicits comments, protests and interventions, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions. FERC Handbook, page 3-13.

7-FD-k.55 – Comment on Notice of Acceptance and Readiness for Environmental Analysis

Participants may file comments, protests, interventions, and recommendations no later than 60 days after the notice of acceptance and readiness for environmental analysis. 18 C.F.R. § 5.23(a).

7-FD-k.56 – Initiate Preliminary Recommendations and Conditions

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
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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
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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
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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
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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
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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
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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
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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:
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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:
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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:
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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:
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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:
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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-k.57 – Submit Preliminary Conditions and Prescriptions

The appropriate federal, state, and tribal entities may submit preliminary conditions and fishway prescription to FERC for inclusion in a hydropower license. Federal Power Act, 16 U.S.C. § 803(a).

7-FD-k.58 – Demonstrate Compliance with 401 Water Quality Certification

The developer must demonstrate compliance with the CWA’s water quality certification requirements. Within 60 days from the date FERC issues the notice of readiness for environmental analysis, the developer must file:

  • A copy of the water quality certification;
  • A copy of the request for certification, including proof of the date on which the certifying agency received the request; or
  • Evidence of waiver of water quality certification. 18 C.F.R. § 4.34(b)(5)(i).

7-FD-k.59 – Is an Environmental Assessment (EA) or Environmental Impact Statement (EIS) Required Required by FERC?

Pursuant to the National Environmental Policy Act (NEPA), FERC must publish an environmental document outlining the environmental impacts that will result from their licensing decision that may have a significant impact on environmental quality. FERC will, based on all information gathered through the licensing process, determine whether an Environmental Impact Statement or an Environmental Assessment is necessary.

7-FD-k.60 – Draft EA or EIS

FERC must issue the draft EA or EIS for comment no later than 180 days from the date responses are due to the Notice of Acceptance and Readiness for Environmental Analysis. 18 CFR 5.25(a). The draft EA must include the following:

  • Draft license articles;
  • A preliminary determination of the consistency of each fish and wildlife agency recommendation made pursuant to section 10(j) of the FPA with the purposes and requirements of the FPA and other applicable law; and
  • Any preliminary mandatory terms and conditions and fishway prescriptions.

18 C.F.R. § 5.25(b).

7-FD-k.61 to 7-FD-k.62 – 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-k.63 to 7-FD-k.64 – Modify or Develop New Mandatory Prescriptions or Terms and Conditions (Optional)

Participating agencies may submit modify or develop new recommendations and conditions based on the analysis in the environmental document. Agencies must file any modified or new prescriptions or terms and conditions within 60 days from the date for filing comments on the Draft EA or EIS. 18 C.F.R. §§ 5.24(4) and 5.25(4). These modified conditions are addressed either in the final NEPA document (if a draft was issued) or license order (if non-draft was issued).

7-FD-k.65 to 7-FD-k.66 — Final EA or EIS

FERC must issue a final EIS within 90 days following the date for filing of modified mandatory prescriptions or terms and conditions. 18 C.F.R. § 5.25(e).

FERC must issue a final EA within 225 days of the notice for readiness for environmental analysis if it determines that a draft EA is not required. 18 C.F.R. § 5.25(a). The final EA published by FERC must include the following:

  • Draft license articles prepared by FERC;
  • A preliminary determination of whether each condition recommended under FPA section 10(j) is consistent with the FPA; and
  • Any preliminary mandatory conditions submitted by other agencies. 18 C.F.R. § 5.24(b).

Any participant 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-k.67 – Does FERC Approve the License Request?

FERC may approve or deny a request for a license 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-k.68 – Licensing Order

FERC issues a Licensing Order if it determines that a license should be granted. The Licensing Order will outline all approved conditions. The Licensing Order becomes final 30 days after issuance, unless the developer or other party timely seeks a rehearing. 16 U.S.C. § 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-k.69 – 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.

7-FD-k.70 to 7-FD-k.71 – Submit a Request for Rehearing

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 C.F.R. § 385.713(b). The request should outline the alleged error in the final decision or final order. 18 C.F.R. § 385.713(c)(1). FERC may approve or deny any rehearing request.

If FERC rejects or dismisses an application because it is patently deficient or because the developer fails to correct deficiencies, then the developer cannot refile its application if the 24-month filing deadline has passed. FERC Handbook, page 4-12.

7-FD-k.72 – Conduct Rehearing on Denial of Licensing

If the request for rehearing is approved, then FERC will review the decision to deny a license.

7-FD-k.73 – Final Order

Following review of the rehearing request, FERC will issue a final rehearing order on the licensing.

7-FD-k.74 to 7-FD-k.75 – 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, page 1-4.


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