The Hydropower Reform Coalition (HRC) publishes this Toolkit to encourage effective citizen participation in the licensing of non-federal hydropower projects. The Federal Energy Regulatory Commission (FERC) decides, through licenses, how such projects will be constructed, operated and maintained. Licenses determine how to allocate river flows between energy generation and other beneficial uses recognized by the Federal Power Act (FPA) and other applicable laws. Effective citizen participation helps assure that licenses protect and restore fish and wildlife resources, recreation, and water quality of the rivers affected by these projects, which are located in 47 states.1 This Toolkit is a public document available to licensees, property owners, public agencies, and all other participants who share our interest in assuring that licenses achieve the best balance of beneficial uses in the public interest. This toolkit is available to review or download at the HRC website.
Between 1993 and 2005, FERC issued nearly 350 licenses. Most activity in hydropower regulation relates to the relicensing of existing projects. A total of 1,011 licenses are in effect.2
A license for a given project has a term of 30 to 50 years, subject to renewal. Five years before the current license expires, the licensee must start a relicensing proceeding. It formally notifies FERC of its intent to seek a new license, then develops and implements a plan of study of project impacts on the resources of the affected river. Using study results, it files an application for a new license. Meanwhile, active participants have meaningful opportunities to influence the study plan and application. They may assist the licensee to pick the study methods, cooperate in fieldwork, interpret study results, and even draft the new license application. Most importantly, they may negotiate a settlement with the licensee that, if approved by FERC, will be the basis of the new license. Such a settlement is river democracy in action.
We publish this Toolkit to further the HRC's objectives to achieve restoration of environmental quality and recreational values of rivers affected by licensed projects, consistent with reliable and economical energy supply. The Toolkit restates the laws, rules, procedures and substantive requirements that apply to licenses. This restatement is intended to help you understand the fundamental structure of a licensing proceeding, notwithstanding the complexity (running to many thousands of pages) of the actual legal authorities. We have attempted to describe these requirements in a neutral manner and, for that reason, have solicited the peer review and welcome the further comments of FERC, the National Hydropower Association, EPRI, and other non-HRC participants listed in the Acknowledgements.
We also state our recommended strategies for effective participation in a licensing proceeding, which spans five years or more. Effectiveness means that you add value to the evidentiary record that the licensee will compile regarding project impacts, and that you persuade FERC and other regulatory agencies to adopt license conditions which further the public interest as you understand it. Since the evidentiary record in each licensing proceeding is two to twenty linear feet of filing space, and since the licensee and other participants represent many different interests, you participate to assure a fair hearing for that balance which you believe best serves the public interest. Our recommendations are highlighted in italicized text in text boxes.
Fundamentally, what is necessary for effective participation is curiosity about the project and its impacts, along with the patience or at least the stamina to keep current on the evidentiary record, attend relevant meetings - many dozens in the course of a proceeding involving collaboration between the licensee and participants - and otherwise represent your interest in that crowd. In exchange for your efforts, you have an extraordinary opportunity to use the leverage provided by the FPA and other applicable laws to protect and restore a river controlled by a hydropower project. The law provides that all participants with an interest in the decision have equal standing to participate. With few exceptions, the groups and individuals who make this commitment view it as one of the better decisions they have made to improve the future of our rivers.
This Hydropower Toolkit is intended to complement two other public documents. The first is FERC's Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing (April 2004) (hereafter, Licensing Handbook).3 The Licensing Handbook describes the mechanics of the licensing processes. The second reference document is the Interagency Task Force's Report to Improve the Hydropower Licensing Processes (December 2000).4
This Toolkit replaces the HRC's first edition, published in 1997. It reflects new directions in hydropower regulation, including the Integrated Licensing Process (ILP) (July 2003) as well as FERC's increasing reliance on settlement as the basis of a license. HRC will keep this Toolkit current through periodic updates.
FERC, Projects (Aug. 9, 2004) available at www.ferc.gov/.../SearchProjects.aspx.
See FERC, “Hydroelectric Projects Under Commission License” (Jan. 2005), available at http://www.ferc.gov/industries/hydropower/gen-info/licensing.asp.
This Toolkit does not address federal hydropower projects operated by the U.S. Bureau of Reclamation, Army Corps of Engineers, Tennessee Valley Authority, or Bonneville Power Administration. Those projects, which total half of the nation's hydropower generation, are not under FERC's jurisdiction, since Congress authorized them under statutes other than the Federal Power Act. See American River's Page on Citizen's Guide for guidance on citizen participation in the operation of such projects. Further, 68,000 of the nation's 70,000 dams (97%) do not include any hydropower capacity and are not under FERC's jurisdiction for that reason.
Available at http://ferc.gov/industries/hydropower/gen-info/handbooks/licensing_handbook.pdf
Available at http://www.ferc.gov/industries/hydropower/indus-act/itf/itf-reports.asp . This report includes sections entitled: “National Environmental Policy Act Procedures,” “Improving the Studies Process,” “Improving Coordination of Endangered Species Act Section 7 Consultation,” “Agency Recommendations, Conditions, and Prescriptions under Part I of the Federal Power Act,” “FERC Noticing Procedures,” “Guidelines to Consider for Participation in the Alternative Licensing Process,” and “Anatomy of Trackable and Enforceable License Conditions.” While the report predates the adoption of the Integrated Licensing Process, it is still helpful guidance on federal agencies' conduct in recommending or prescribing conditions.
The Hydropower Reform Coalition (HRC) is an association of over 130 national, regional, and local membership groups dedicated to enhance the quality of rivers controlled by hydropower projects, ensure public access to these lands and waters, and reform the licensing process to ensure public participation and to improve the quality of the resulting decisions. These groups represent more than 1.5 million people across the country.
The HRC was formed in April 1992. Our member groups have subsequently intervened in over 75% of licensing proceedings. These groups are signatories to more than 200 comprehensive settlement agreements which, as the basis for new licenses, have restored water quality, fisheries, and recreational access to thousands of miles of rivers and streams. The HRC negotiated with the National Hydropower Association, federal and state agencies, and other opinion leaders in hydropower regulation to develop the concepts FERC adopted as the Integrated Licensing Process (ILP) in 2003. The ILP, which will become the standard process in July 2005, is designed to ban the black box approach customary in so many other federal and state regulatory programs. The ILP requires effective coordination between FERC and other regulatory agencies in each licensing proceeding (“the right hand will know what the left is doing”), and it provides for transparency and reliability in the schedule (“the train will run on time”), for the first time in the 70-year history of the Federal Power Act.
The HRC is governed by a Steering Committee of fourteen groups. Our policies for hydropower regulation, press releases on significant developments, and information on our member groups, are published at http://www.hydroreform.org/.
The Toolkit consists of five parts - the main text and four appendices.
The main text is a comprehensive description of the procedures and other requirements for any licensing proceeding. Section 1 is this introduction. Section 2 is an overview of hydropower regulation. It explains how FERC and other agencies relate in a licensing proceeding, describes the basic structure and content of a license, and explains how a license is enforced or amended.
Section 3 describes the fundamental elements of the licensing process, as required by FPA section 15.1 Since a project uses public resources, FERC makes a licensing decision only after notice, public comment, and other opportunities for affected persons to influence that decision. Among other things, the licensee conducts field studies of baseline (or current) conditions, prepares its license application to describe proposed operation and impacts, and consults with agencies and other participants in these efforts. You, in turn, may submit further information to the record, negotiate with the licensee and other participants, intervene as a formal party in the proceeding, and seek rehearing or judicial review of a licensing decision that you believe does not comply with applicable laws.
FERC uses three licensing processes - the Traditional, Alternative, and Integrated Licensing Processes. They include fundamental elements discussed in Section 3 but differ in timing, sequencing, and even the substance of the steps. Section 4 discusses the Integrated Licensing Process (ILP), which will be the required process as of July 2005 unless a licensee obtains FERC's permission to use another; Section 5, Traditional Licensing Process (TLP); and Section 6, the Alternative Licensing Process (ALP). Finally, Section 7 discusses how a licensee and other participants may negotiate a settlement which, if approved by FERC, will serve as the basis for the license. Settlement negotiation is permitted and indeed encouraged in each of the licensing processes.
Appendix A compiles leading court cases that interpret the FPA and other laws applicable to licensing decisions. Appendix B compiles pleadings, such as a motion to intervene, an additional information request, or a request for rehearing, which parties filed to advance their individual positions in proceedings. This appendix is intended to illustrate the choices (both in form and substance) that you should make as you draft such pleadings. Appendix C compiles process documents that were jointly developed by the licensee and other parties. These include: a communications protocol used in settlement negotiations, a memorandum of understanding between FERC and a cooperating agency, as well as others. Unlike pleadings, these process documents are not intended to effect any one party's position but instead to structure the process in some way so as to increase the likelihood of a timely, non-disputed licensing decision. Finally, Appendix D compiles settlements between licensees and other participants, including HRC members, which FERC has approved as the basis for new licenses. It also includes explanatory statements required to justify settlements when offered. Since there are now several hundred such settlements, this appendix illustrates the reasonable range of choices available for the structure and substance of such documents.
16 U.S.C. § 808.
You may obtain all documents filed in any licensing proceeding through FERC's eLibrary, discussed in Section 3.2.2(G). You may obtain court cases through a fee service like Westlaw or LEXIS, for free at http://www.findlaw.com/, or in your public library. You may access statutes and rules in the same manner, or through http://www.loc.gov/, which is the Library of Congress' website.