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FERC Alternative Licensing Process (7-FD-j)

Information current as of 2019
Any person (developer) may submit a request to the Federal Energy Regulatory Commission (FERC) to use the Alternative Licensing Process (ALP) for an application for an original or new license (relicense) to construct, operate, or maintain a non-federally owned hydropower project. FERC oversees the ALP pursuant to its authority to process hydropower license applications under the Federal Power Act, 16 U.S.C. § 797(e) (FPA).


Use of the ALP is voluntary and a developer must request permission from FERC to use the ALP. 18 C.F.R. § 4.34(i); Interagency Task Force on Improving Hydroelectric Licensing Processes – Guidelines to Consider for Participating in the Alternative Licensing Process, 1-2.

FERC designed the ALP to utilize a collaborative approach by involving a wider range of participants at an early stage in the licensing process and by encouraging participants to reconcile interests and concerns in a flexible manner. The goals of the ALP are:

  • To facilitate greater participation and improve communication among a wider range of participants including the applicant, resource agencies, Indian tribes, the public and FERC at an early stage of the licensing process;
  • Improve and accelerate environmental review processes by federal and state resource agencies;
  • Coordinate state and federal resource agency review processes; and
  • Expedite the resolution of disputed issues.

Interagency Task Force on Improving Hydroelectric Licensing Processes – Guidelines to Consider for Participating in the Alternative Licensing Process, 1.

The ALP combines four processes into one collaborative process. These four processes include:

  1. The prefiling consultation process, which requires that a developer consult with a variety of entities before preparing and filing a license application with FERC;
  2. The evaluation of project impacts under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m (NEPA);
  3. The evaluation and environmental review processes of project impacts by federal and state agencies required by the FPA, the Clean Water Act, 33 U.S.C. § 1341 (CWA), the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (ESA), the National Historic Preservation Act, 54 U.S.C. § 306108 (NHPA) and other federal statutes; and
  4. Where desired, the negotiation process for a filing an agreement or offer of settlement with FERC.
Interagency Task Force on Improving Hydroelectric Licensing Processes – Guidelines to Consider for Participating in the Alternative Licensing Process, 1.



FERC Alternative Licensing Process


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7-FD-j.1 to 7-FD-j.2 – Develop Comprehensive Outreach Program

The developer should develop a comprehensive outreach program to identify all stakeholders interested in the licensing of the hydropower project. The developer may request that FERC assist in the development of the outreach program and the identification of interested stakeholders. The outreach program may use letters, newspaper notices, advertisements, e-mail, radio and websites to identify interested parties. Identified parties form a Collaborative Group that typically includes the developer, state and federal resource agencies, Indian tribes, non-governmental organizations (NGOs), local communities and citizen groups. 18 C.F.R. § 4.34(i)(3); Interagency Task Force on Improving Hydroelectric Licensing Processes – Guidelines to Consider for Participating in the Alternative Licensing Process, 2,3.

The list of relevant Federal, state and interstate resource agencies that typically form the Collaborative Group include:

18 C.F.R. § 4.38.

7-FD-j.3 – Convene Collaborative Group

The developer convenes the Collaborative Group to determine whether a consensus can be developed among interested stakeholders in favor of using the ALP. 18 C.F.R. § 4.34(i)(3); Interagency Task Force on Improving Hydroelectric Licensing Processes – Guidelines to Consider for Participating in the Alternative Licensing Process, 2,3.

7-FD-j.4 – Develop a Communications Protocol

Together, the Collaborative Group must develop a Communications Protocol (CP), which governs how the developer and other participants in the pre-filing consultation process, including FERC staff, will communicate with each other on the merits of the developer’s project proposal and the recommendations of interested stakeholders. At a minimum, the CP should document the types of communications that need to be recorded and prescribe a method for recording communications. 18 C.F.R. § 4.34(i)(3)(ii); Interagency Task Force on Improving Hydroelectric Licensing Processes – Guidelines to Consider for Participating in the Alternative Licensing Process, 5.

7-FD-j.5 to 7-FD-j.8 – Is There a Consensus that the Alternative Licensing Process (ALP) is Appropriate?

The Collaborative Group must reach a consensus determining whether the ALP is an appropriate licensing process for the project. To demonstrate consensus, the developer must show that the majority of the Collaborative Group believes that using the ALP will be productive. Evidence of consensus can be shown through recorded opinions, comments and communications expressed by members of the Collaborative Group at meetings, conferences or through other interactions. A mere exchange of letters or a lack of objections to the ALP process is not enough to demonstrate that the Collaborative Group has reached a consensus to use the ALP process. 18 C.F.R. § 4.34(i)(3); Interagency Task Force on Improving Hydroelectric Licensing Processes – Guidelines to Consider for Participating in the Alternative Licensing Process, 3,4.

Note: If the developer or any resource agency, Indian tribe, citizen group, or other interested stakeholder can show that it has cooperated in the pre-filing consultation process, but a consensus to use the ALP no longer exists or use of the ALP is no longer productive, the developer or stakeholder may petition FERC for an order terminating use of the ALP and directing the use of appropriate procedures to complete the application. The petition must be served on all other participants and recommend procedures appropriate under the circumstance. 18 C.F.R. § 4.34(i)(7).

7-FD-j.9 – ALP Request

The developer must submit an ALP Request to FERC for approval. As part of the ALP Request the developer must:

  • Demonstrate that a reasonable effort has been made to contact all resource agencies, Indian tribes, citizens’ groups, and others affected by the project proposal;
  • Demonstrate that the Collaborative Group has reached a consensus that use of the ALP process is appropriate;
  • Include the Communications Protocol (CP) developed by the Collaborative Group;
  • Provide notice that comments must be filed with FERC within 30 days of the filing date of the ALP Request and that if there is no project number, responses must reference the developer’s name and address.

18 C.F.R. § 4.34(i)(3)(i)-(iii).

As appropriate under the circumstances of the case, the ALP process should include provisions for:

  • Distribution of an initial information package (IIP) or pre-application document (PAD) and conduct of an initial information meeting open to the public;
  • The cooperative scoping of environmental issues (including necessary scientific studies), the analysis of completed studies, and any further scoping; and
  • The preparation of a preliminary draft Environmental Assessment (EA) or preliminary draft Environmental Impact Statement (EIS) prepared by a third-party contractor, and related application.

18 C.F.R. § 4.34(i)(4)(i)-(iii).

7-FD-j.10 – Serve Notice of the ALP Request

The developer must serve a copy of the ALP Request on all affected resource agencies, Indian tribes and all entities contacted by the developer who have expressed an interest in the ALP pre-filing consultation process. 18 C.F.R. § 4.34(i)(3)(i)-(iii).

7-FD-j.11 – Notice of Intent (NOI) and Pre-Application Document (PAD)

The developer must submit a Notice of Intent (NOI) and a Pre-Application Document (PAD) to FERC. The developer may choose to submit their ALP Request, NOI and PAD together. The developer may submit an ALP Request prior to the deadline for filing an NOI; however, early filing of the ALP Request does not waive the developer’s obligation to file the NOI and PAD with FERC.

Notice of Intent (NOI)

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).

Pre-Application Document (PAD)

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).

7-FD-j.12 to 7-FD-j.13 – Review ALP Request, NOI and PAD for Completeness

FERC reviews the ALP Request, NOI and PAD for administrative and technical completeness.

7-FD-j.14 – Publish Public Notice

The developer must publish notice of the NOI, PAD and ALP 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 ALP Request, the NOI and the PAD;
  • Briefly summarize these documents and the basis of the ALP Request;
  • Include the developer’s name, address, telephone number, the type of facility proposed to be applied for, its proposed location, the places where the pre-application document is available for inspection and reproduction; and
  • Include a statement that comments on the ALP Request are due to FERC and the developer no later than 30 days following the filing date of the ALP Request and, if there is no project number, that responses must reference the developer’s name and address. 18 C.F.R. § 4.34(i)(5)(iii); 18 C.F.R. § 5.3(d)(1)-(2)(iv).

7-FD-j.15 – Comment on ALP Request

Participating agencies, Indian tribes and the public may comment on the ALP Request within 30 days following the filing date of the ALP Request. 18 C.F.R. § 5.3(d).

7-FD-j.16 to 7-FD-j.19 – Review ALP Request for Approval

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

FERC provides a notice of decision approving or denying the ALP Request within 60 days of the filing of the NOI, PAD and ALP Request. FERC’s decision to approve or deny the ALP Request is final and not subject to appeal. 18 C.F.R. § 5.8(a); 18 C.F.R. § 4.34(i)(5).

7-FD-j.20 – Prepare Scoping Document(s)

The developer and Collaborative Group must prepare scoping document(s) to submit to FERC for the environmental review required under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m. The scoping document(s) should 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. § 4.34(i)(6)(ii); 18 C.F.R. § 5.8(c).

7-FD-j.21 – Develop Study Plan to Undertake Scoping

The developer and Collaborative Group must develop a Study Plan to undertake cooperative scoping of environmental issues required pursuant to NEPA. During the scoping process, the developer and Collaborative Group review and discuss existing information regarding environmental issues and identify the need for additional scientific studies. The Collaborative Group sets reasonable deadlines requiring all resource agencies, Indian tribes, citizens’ groups and interested persons to submit requests for scientific studies to the developer. 18 C.F.R. § 4.34(i)(6)(v).

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-j.22 – Publish Public Notice of Initial Information Meeting

To the extent feasible, FERC publishes notice of an initial information meeting and the scoping of environmental issues in the Federal Register. The developer should give notice of the same in a local newspaper of general circulation in the county or counties in which the project is located and send a notice to a mailing list approved by FERC. 18 C.F.R. § 4.34(i)(6).

7-FD-j.23 – Hold Initial Information Meeting

The developer and FERC must hold an initial information meeting about the project. At the meeting, the developer distributes the PAD and initial information package to the Collaborative Group and other interested parties. The primary focus of the initial information meeting should be on the PAD and should solicit comments from resource agencies, Indian tribes and other interested parties on:

  • Resource values and their relative importance in the region and the in the project’s immediate locale;
  • Resource goals and management objectives; and
  • The project’s plan for satisfying those goals and objectives.

FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 5-6.

7-FD-j.24 – Initiate Pre-Filing Consultation Process and Scoping of Environmental Issues

Before filing any application for a license, the developer must consult with the Collaborative Group (including all relevant Federal, state and interstate resource agencies) and conduct scoping for the environmental review required under NEPA. 18 C.F.R. § 4.34(i)(4)(ii); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 3-5.

7-FD-j.25 – Pre-Filing Consultation Progress Report(s)

The developer must file a report with FERC every 6 months containing:

  • A report summarizing progress made in the ALP pre-filing consultation process; or,
  • Summaries or minutes of meetings held during the ALP pre-filing consultation process.

In addition, the developer must maintain a public file of all relevant documents, including scientific studies, correspondence, and minutes or summaries of meetings, compiled during the ALP pre-filing consultation process. 18 C.F.R. § 4.34(i)(4)(ii); FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 3-5.

7-FD-j.26 – Conduct Necessary Studies

The developer must conduct any studies deemed necessary for the process as provided in the Study Plan. 18 C.F.R. § 5.15(a).

7-FD-j.27 – 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: 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-j.28 – 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-j.29 – 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 pursuant to the Endangered Species Act, 16 U.S.C. § 1536. 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-j.30 – 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-j.31 – 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. §§ 1451-1466. For more information regarding the coastal zone consultation requirements, see:

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

7-FD-j.32 – 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. 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. 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-j.33 – Preliminary Draft Environmental Assessment (PDEA)

The developer must prepare a Preliminary Draft Environmental Assessment (PDEA) after all necessary studies are completed in consultation with the Collaborative Group. A PDEA must comply with requirements of 40 C.F.R. § 1508.9 and, at a minimum, include the following information:

  • Brief discussions of the need for the proposal;
  • Brief discussions of project alternatives;
  • Brief discussion of the environmental impacts of the proposed action and alternatives; and
  • A listing of agencies and persons consulted.

The PDEA should incorporate any preliminary comments, recommendations, terms and conditions, and prescriptions filed by federal and state fish and wildlife resource agencies. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 5-7, 5-8.

The developer may submit the PDEA instead of an Environmental Report (Exhibit E) with the application for a hydropower license. If the developer submits the draft preliminary EA instead of Exhibit E, the draft preliminary EA must include a status of compliance with or consultation under the following laws:

  • Clean Water Act (CWA) Section 401 Water Quality Certification or Waiver;
  • Endangered Species Act Section 7 Consultation;
  • Essential Fish Habitat Consultation;
  • Coastal Zone Management Act (CZMA) Consultation; and
  • National Historic Preservation Act (NHPA) Consultation.

18 C.F.R. § 5.18(b).

For more information on NEPA review requirements see:

FERC – NEPA Review-
9-FD-i

7-FD-j.34 – Serve Copies of License Application

The developer must serve copies one copy of the License Application on each resource agency, Indian tribe and member of the public (Collaborative Group) consulted during the pre-filing consultation process. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 5-7, 5-8.

7-FD-j.35 – FERC License Application and Associated Documents

The developer must file a License Application with FERC accompanied by transmittal letter certifying that copies of the License Application are being mailed to the resource agencies, Indian tribes, other government offices, and consulted members of the public. The License Application must include:

  • Complete protection, mitigation and enhancement proposals;
  • Evidence of completion of pre-filing consultation process;
  • Coastal Zone Management Act (CZMA) compliance; and
  • Documentation satisfying 401 Water Quality Certification or Waiver requirements;
  • Preliminary Draft Environmental Assessment.

FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 5-7, 5-8.

The License Application must also:

  • 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).

7-FD-j.36 to 7-FD-j.37 – 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-j.38 – Request Additional Studies (Optional)

Resource agencies, Indian tribes, citizen’s groups and interested parties may make additional requests to FERC after the filing of the application only for good cause shown. 18 C.F.R. § 4.34(i)(6)(v).

7-FD-j.39 to 7-FD-j.42 – 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-j.43 to 7-FD-j.44 – 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-j.45 – 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-j.46 – 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-j.47 to 7-FD-j.49 – 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.

7-FD-j.50 – 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-j.51 – 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-j.52 – Request Final Recommendations and Conditions

FERC requests final fish and wildlife recommendations, prescriptions, mandatory conditions and comments from resource agencies and Indian tribes pursuant to FPA Sections 4(e), 10(a), 10(j) and 18. All recommendations, prescriptions and conditions must be submitted within 60 days of FERC’s public notice of acceptance of the License Application. 18 C.F.R. § 4.34(b).

7-FD-j.53 – Review PDEA

FERC reviews the developer’s PDEA to ensure that it is consistent with FERC requirements. FERC does not issue a notice that the License Application is ready for environmental analysis. FERC – Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, 5-9;

7-FD-j.54 – Draft EA or EIS (If Applicable)

FERC may issue a draft EA or EIS for comment no later than 225 days from the date responses are due to the notice of the acceptance of the License Application. 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.

18 C.F.R. § 5.24(a).

7-FD-j.55 – 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-j.56 to 7-FD-j.57 – Final EA or EIS

FERC issues a final EA or EIS within 90 days following the deadline for public notice and comment. 18 C.F.R. § 5.25(e).

FERC must issue a final EA within 225 days of the from the date responses are due 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 agencies18 C.F.R. § 5.24(b).

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-j.58 – 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-j.59 – 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-j.60 – 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-j.61 to 7-FD-j.62 – 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-j.63 – 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-j.64 – 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-j.65 to 7-FD-j.66 – 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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