FERC – Expedited Licensing Process (7-FD-m)
In 2019, FERC established the ELP procedure for issuing original licenses for qualifying facilities at existing nonpowered dams and for closed-loop pumped storage projects (qualifying facilities). 18 C.F.R. §§ 7.1-7.9. The goal of the ELP is to ensure that a final licensing decision on qualifying facilities is issued no later than two years after FERC receives a completed license application.
A qualified nonpowered dam is “any dam, dike, embankment, or other barrier the construction of which was completed on or before October 23, 2018 [and] that is or was operated for the control, release, or distribution of water for agricultural, municipal, navigational, industrial, commercial, environmental, recreational, aesthetic, drinking water, or flood control purposes; and . . . was not generating electricity with hydropower generating works” licensed under or exempted under the FPA as of October 23, 2018. 18 C.F.R. § 7.1(c)(1). To meet the criteria to qualify for the ELP, closed-loop pumped storage projects must: 1) cause little or no change to existing surface and groundwater flows and uses; 2) be unlikely to adversely affect listed threatened species or endangered species, or designated critical habitat of such species under the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (ESA); 3) utilize only reservoirs situated at locations other than natural waterway, lakes, wetlands, and other natural surface water features; and 4) rely only on temporary withdrawals from surface waters or groundwater for the sole purposes of initial fill and periodic recharge needed for the operation of the project. 18 C.F.R. § 7.1(c)(3).Use of the ELP procedure is voluntary. The ELP procedure may only be requested for Original License Applications for qualifying facilities and does not apply to applications for new or subsequent licenses. 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 Integrated Licensing Process (ILP), Traditional Licensing Process (TLP), or Alternative Licensing Process (ALP) (Standard Licensing Processes) may request to use the ELP procedure. Prior to requesting the ELP procedure, a developer must complete all pre-filing and consultation licensing activities and gather all required associated documents for the Original License Application pursuant to the selected Standard Licensing Process. 18 C.F.R. §§ 7(c)(d)-(e) and 7.2(a).
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FERC – Expedited Licensing Process
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7-FD-m.1 –Expedited Licensing Process (ELP) Application and Associated Documents
A developer may request authorization from FERC to use the ELP procedure by submitting an ELP Application and associated documents at the time they file their final License Application and required associated documents pursuant to the Standard Licensing Process selected by the developer. 18 C.F.R. §§ 7.1(d), 7.2(a)-(b). A License Application that accompanies a request for authorization to use the ELP procedure (ELP Application) must include proof of the following information:
- That as of October 23, 2018, the proposed hydropower facility was not licensed or exempt from licensing requirements under the FPA;
- The facility will be associated with a qualifying nonpowered dam;
- The facility will be constructed, operated, and maintained for the generation of electric power;
- The facility will use any withdrawals, diversions, releases, or flows from the associated qualifying nonpowered damn, including its associated impoundment or other infrastructure for the generation of electric power;
- The operation of the facility will not result in any material change to the storage, release, or flow operations of the associated qualifying nonpowered dam;
- Dam Owner Documentation including:
- documentation of consultation with any nonfederal owner of an existing nonpowered dam if the developer is not the owner and confirmation that the owner is not opposed to hydropower development; or
- documentation from the federal entity that non-federal hydropower development is not precluded at the proposed location and confirmation that the federal entity is not opposed to a hydropower development at the location.
Closed-Loop Pumped Storage Projects:
- The project will cause little to no change to existing surface and groundwater flows and uses; and
- The project is unlikely to adversely affect species listed as a threatened species or endangered species, or designated critical habitat of such species, under the ESA.
In addition, ELP Applications for all qualifying facilities should include:
- A copy of a request for certification under section 401(a)(1) of the Clean Water Act, 33 U.S.C. § 1341 (CWA), including:
- proof of the date on which the certifying agency received the request; or
- a copy of the water quality certification; or
- evidence of waiver of water quality
- A no-effect determination including documentation that no listed species or critical habitat are present in the area; and
- documentation of concurrence from the U.S. Fish and Wildlife Service and NOAA Fisheries (the Services) as necessary that the action is not likely to adversely affect ESA-listed species or critical habitat; or
- a draft Biological Assessment that includes documentation of consultation with the Services
- Documentation that section 106 of the National Historic Preservation Act, 54 U.S.C. §§ 300101-307108 consultation has been initiated with the state historic preservation officer(s) and any Indian Tribes identified as having an interest in the project; and
- Documentation from the managing entity of any public park, recreation area, or wildlife refuge established under state or local law indicating that it is not opposed to the site’s use for hydropower development (if applicable).
7-FD-m.2 to 7-FD-m.4 – Review Original License Application for Completeness
FERC reviews the Original License Application and associated documents to ensure that it has all required information. The developer may be required to submit any additional information or documents that FERC considers relevant for an informed decision on the Original License Application. The information or documents requested must take the form and must be submitted within the time that FERC prescribes. 18 C.F.R. § 7.3.
If FERC determines that the Original License Application is incomplete within 180 days of filing, it will deny the request to use the ELP procedure. If FERC denies the request to use the ELP procedure, FERC reviews the Original License Application according to the Standard Licensing Process selected by the developer. 18 C.F.R. § 7.5.
For more information on the FERC licensing processes see:
7-FD-m.5 to 7-FD-m.7 – Review Request to Use ELP Procedure
If the Original License Application is complete, FERC reviews the developer’s request to use the ELP procedure. FERC decides whether to authorize the request to use the ELP procedure no later than 180 days after receipt of the request. The 180 days counts towards the two-year license processing goal. 18 C.F.R. § 7.5.
7-FD-m.8 – Issue Public Notice of Acceptance and Ready for Environmental Analysis
FERC issues a public notice accepting the Original License Application and approving the request to use the ELP procedure no later than 180 days after the Original License Application is filed.
The public notice will:
- Accept the Original License Application for filing and specify the date upon which the Original License Application was accepted for filing;
- Find the Original License Application ready for environmental analysis;
- Request comments, protests, and interventions;
- Request recommendations, preliminary terms and conditions, and preliminary fishway prescriptions, including all supporting documentation from the Services; and
- Establish an expedited licensing process schedule, including estimated dates for:
- filing of recommendations, preliminary terms and conditions, and fishway prescriptions from the Services;
- issuance of a draft National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m (NEPA) document, or an Environmental Assessment not preceded by a draft;
- filing of a response, as applicable, to FERC staff’s request for ESA concurrence or request for formal consultation under the ESA, or responding to other FERC staff requests to federal and state agencies or Indian Tribes required under applicable federal law;
- filing of comments on the draft NEPA document, as applicable;
- filing of modified recommendations, mandatory terms and conditions, and fishway prescriptions in response to a draft NEPA document or Environmental Assessment, if no draft NEPA document is issued; and
- issuance of a final NEPA document, if any.
7-FD-m.9 to 7-FD-m.10 – Are There Late-Filed Recommendations, Terms and Conditions or Prescriptions That May Delay A Licensing Decision?
Late-filed recommendations, terms and conditions or prescriptions from the Services may cause FERC to remove an Original License Application from the ELP procedure. If FERC determines that recommendations, terms and conditions, or prescriptions are likely to prevent FERC from application will no longer be processed under the ELP procedure and will instead proceed under one of the Standard Licensing Processes. 18 C.F.R. § 7.8(b).
For more information on the FERC licensing processes see:
7-FD-m.11 to 7-FD-m.13 – Are there any Proposed Amendments that Significantly Amend the Original License Application
Any proposed amendments to a pending Original License Application after issuance of the notice of acceptance and ready for environmental analysis must include:
- An amended or new CWA section 401 water quality certification if the amendment would have an adverse material impact on water quality from the proposed project; and
- Updates to all other associated documents required to submit an ELP Application.
If FERC determines that a proposed amendment to an Original License Application no longer meets the requirements for the ELP procedure or the proposed amendment significantly amends the license application, FERC notifies the developer that the Original License Application will no longer be processed under the ELP procedure and will instead proceed under one of the Standard Licensing Processes. 18 C.F.R. § 7.7.
For more information on the FERC licensing processes see:
7-FD-m.14 – Is the Proposed Amendment Approved?
If FERC determines that the proposed amendment meets the requirements of the ELP procedure, it approves the amended application and use of the ELP procedure. 18 C.F.R. § 7.7.
7-FD-m.15 to 7-FD-m.16 – Does An Approved Amendment Materially Change the Project?
If an approved amendment to an application would materially change the project’s proposed plans of development, an agency, Indian Tribe, or member of the public may modify the recommendations or terms and conditions or prescriptions it previously submitted to FERC. Any modified recommendations, terms and conditions, or prescriptions must be filed no later than the due date specified by FERC for comments on the amendment. 18 C.F.R. § 7.7.
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- Federal Power Act, 16 U.S.C. §§ 791a-828c
- Endangered Species Act, 16 U.S.C. §§ 1531-1544
- Clean Water Act, 33 U.S.C. §§ 1251-1387
- National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m
- National Historic Preservation Act, 54 U.S.C. §§ 300101-307108
- 18 C.F.R. §§ 7.1-7.9, Expedited Licensing Process
- 18 C.F.R. §§ 5.1-5.31, Integrated Licensing Process
- 18 C.F.R. §§ 4.1 -4.401, Licenses, Permits, Exemptions, and Determination of Project Costs