With very few exceptions, FERC regulates all operating non-federal dams that generate electrical energy anywhere in the U.S. Its jurisdiction extends to each dam that meets at least one of the following tests: (1) occupancy of federal public land, (2) regulation of a navigable stream, (3) use of surplus water or water power from a federal dam, or (4) if constructed after August 26, 1935, any effect on interstate commerce, including linkage of the project to the grid.1 This jurisdiction includes any dam that, in addition to electrical generation, also serves other functions, such as water supply or flood control.
See 16 U.S.C. § 797.
In 1935 Congress enacted the Federal Power Act (FPA) Part I to regulate non-federal hydropower projects in order to contribute to the comprehensive development of our rivers for energy generation and other beneficial uses .1 The Federal Power Commission (FPC) administered the FPA for the next 42 years. As a result of agency reorganization, in 1977 the FPC was renamed Federal Energy Regulatory Commission (FERC), which is now an independent agency within the Department of Energy. FERC consists of five Commissioners (including a Chair) who, having been nominated by the President and approved by the Senate, are appointed for a term of five years. The Commissioners vote on each licensing decision, unless uncontested. FERC's Office of Energy Projects (OEP) is the staff office responsible for the management of each licensing proceeding until the Commissioners' vote, and for the supervision of each licensed project thereafter to assure compliance with the license.
Under FPA section 10(a), the fundamental purpose of each license is to assure that a project is “best adapted to a comprehensive plan of development” of the affected river basin for the beneficial uses of energy generation, water supply, flood control, recreation, and fish and wildlife.2 Under FPA section 4(e), which resulted from the 1986 amendments to the FPA, FERC must now give “equal consideration to 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.”3 Under FPA section 18, a license will require a structure or operation to permit the passage of fish through a project, as prescribed by FWS or NMFS.4 In sum, when making a licensing decision, FERC must assure that the project achieves a balance of beneficial uses of the affected waters and lands, as required by the FPA.
See 16 U.S.C. §§ 791a - 823c.
See 16 U.S.C. § 803(a).
See 16 U.S.C. § 797(e).
Id., citing 16 U. S. C. § 1531(c), 1532(3) (emphasis added).
Only FERC may issue a license to construct, operate, and maintain a non-federal hydropower project. It is ultimately responsible for deciding whether to license a given project, and if so, under what conditions. As Congress intended in adopting the FPA in 1935, this exclusive jurisdiction helps to ensure that such projects are regulated in a consistent manner in and across our river basins. However, State and other federal agencies have significant authorities to prescribe or recommend environmental conditions,1 not preempted by the FPA.2 In practice, FERC's exclusive authority to issue a license is subject to checks and balances administered by other agencies. The community of agencies involved in licensing proceedings includes the following federal as well as state agencies.
As discussed below in Section 2.3.4, each license includes duties for project operation, such as release of a minimum flow, for the protection, mitigation, and enhancement of the affected river. We use the shorthand “environmental condition” or “environmental measure” to describe any such duty in a license.
See First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 181 (“The detailed provisions of the Act providing for the federal plan of regulation leave no room or need for conflicting state controls.”). FERC and the State where a project is located generally do not share the final decision of any issue in a licensing proceeding. Id. at 168. Under the Commerce and Supremacy Clauses of the U.S. Constitution, FPA preempts State law that otherwise would apply to the project, except where it reserves State authority over a specific issue. Id.; Sayles Hydro Association v. Maughn, 985 F.2d 451, 455 (9th Cir. 1993) (Sayles Hydro). The primary exceptions are: (A) water quality certification issued under Clean Water Act (CWA) section 401(a); (B) issuance and regulation of water rights necessary for project operation and to prevent injury to prior water rights (FPA section 27, 16 U.S.C. § 821; see Sayles Hydro, 985 F.2d at 455); (C) regulation of retail rates for electrical service (FPA § 19, 16 U.S.C. § 812); and (D) authorization for a State or municipal agency to take over any licensed project, through a condemnation proceeding and on payment of fair market value (FPA § 14(a), 16 U.S.C. § 807(a)).
The National Marine Fisheries Service1 (NMFS), an agency within National Oceanic and Atmospheric Administration of the U.S. Department of Commerce, manages, conserves, and protects living marine resources that spend at least part of their life cycle within the U.S. Exclusive Economic Zone.2 NMFS administers several statutes that bear on licensing decisions. Under the Endangered Species Act (ESA), NMFS may establish Reasonable and Prudent Alternatives or Measures to prevent project take of marine animals or diadromous fish listed under the ESA. Under the Magnuson-Stevens Fishery Conservation and Management Act,3 NMFS consults with FERC on any licensing action that may adversely affect essential fish habitat (EFH) for diadromous fish. Under FPA section 18,4 NMFS may prescribe a fishway as a mandatory license condition to protect diadromous fish. Under the Coastal Zone Management Act (CZMA),5 a license for a project in the coastal zone may issue only if the State certifies the license as consistent with the CZMA Program as approved by the U.S. Department of Commerce. Under the Fish and Wildlife Coordination Act (FWCA)6 and FPA section 10(j),7 NMFS recommends conditions to protect, mitigate damages to, and enhance fish and wildlife, including related spawning grounds and habitat. Under FPA section 10(a), NMFS recommends other conditions to ensure that a project is best adapted to comprehensive plans for developmental and non-developmental resources.
See the NMFS website, at http://www.nmfs.noaa.gov/.
See Reorganization Plan No. 4 of 1970, section 1, codified at 5 U.S.C. app. 1.
16 U.S.C. § 1801 et seq.
16 U.S.C. § 811.
16 U.S.C. § 1451 et seq.
16 U.S.C. § 661 et seq.
16 U.S.C. § 803(j).
The Department of Interior1 protects and provides access to the nation's natural and cultural resources and honors our trust responsibilities to the Indian Tribes.2 It includes several agencies that routinely participate in licensing proceedings.
Fish and Wildlife Service3 (FWS) conserves, protects, and enhances fish, wildlife, and plant resources which do not use marine habitat or otherwise are not under NMFS' jurisdiction.4 FWS may submit a mandatory fishway prescription for riverine fish under FPA section 18; adopt Reasonable and Prudent Alternatives or Measures for non-marine species listed under ESA; and may recommend other conditions under FPA sections 10(j) and 10(a) and the Fish and Wildlife Coordination Act.
National Park Service5 (NPS) is responsible for preserving unimpaired natural and cultural resources and values of the National Park System6 and implementing technical assistance provisions of the Wild and Scenic Rivers Act of 19687 and the Outdoor Recreation Act of 1963.8 The NPS is actively involved in hydropower regulation on both Park and non-park lands. In most proceedings where the NPS participates, hydropower operations do not directly affect a National Park. In this circumstance, the NPS' primary function is to advise FERC under FPA Section 10(a) and represent public interests in recreational and river conservation opportunities. In proceedings where hydropower operations directly affect a National Park,9 the NPS also advocates for protection and enhancement of park resources. Although the FPA specifically excludes the use of Section 4(e) authority if the affected reservation is a National Park or Monument, NPS has such authority for other reservations, such as National Recreation Areas.
Bureau of Land Management (BLM)10 administers federal lands not included in National Parks, National Fish and Wildlife Refuges, or National Forests.11 Under FPA section 4(e), it may prescribe mandatory conditions for any such lands set aside as a federal reservation. Under FPA section 10(a), BLM may also recommend conditions for a project's use of other lands and associated waters.
Bureau of Indian Affairs12 (BIA) seeks to enhance the quality of life, promote economic opportunity, and carry out the responsibility to protect and improve the trust assets of Indian Tribes. Under FPA section 4(e), the BIA may prescribe mandatory conditions for the protection and use of Tribal reservations occupied by a project. BIA may recommend other conditions under FPA section 10(a) to protect Indian reservations and trust assets from any adverse effects of other projects.
Bureau of Reclamation13 (BOR) constructs and operates federal dams (and related facilities) for water supply, hydropower generation, and other beneficial uses under the Reclamation Act.14 It participates in a licensing proceeding if a powerplant that a non-federal licensee proposes or owns is located at a federal dam, or if a licensed project may otherwise affect the operation of such a dam.
United States Geological Survey15 (USGS) collects and publishes scientific data on our natural biological and physical resources, including rivers. USGS operates flow gages and undertakes other research and monitoring programs that collect scientific data regarding the resources affected by licensed projects. A licensee or other agency may contract with the USGS for the collection of scientific data or for the design of a hydrologic or biologic monitoring program or fish passage facility.
See the DOI website, athttp://www.doi.gov/.
See The Act of March 3, 1849, 43 U.S.C. § 1451.
See the FWS website, athttp://www.fws.gov/.
See Reorganization Plan No. 2 of 1939, section 401, codified at 5 U.S.C.app. 1; Reorganization Plan No. 3 of 1940, section 3, codified at 5 U.S.C.app. 1.
See the NPS website, at http://www.nps.gov/.
See The National Park Service Organic Act, 16 U.S.C. § 1. The National Park System includes units in 17 different classifications besides National Parks and National Monuments, such as National Recreation Areas, National Rivers, and National Historic Sites.
See 16 U.S.C., Ch.28, §1282(b)(1). NPS is authorized to assist, advise, and cooperate with governments, landowners, or individuals to plan, protect, and manage river resources.
See 16 U.S.C., Ch.I, Subchapter LXIX, Part A, §4601-1(d) and (g). NPS provides technical assistance and promotes coordination of activities generally relating to outdoor recreation resources including rivers and associated trails.
A new hydropower project may not be built in a national park without a specific Congressional authorization (16 U.S.C. § 797a and 16 U.S.C. § 797c). Several licensed projects operate within National Parks, either because they predate that prohibition or are permitted through special legislation. Others are located upstream of National Parks but affect flows through park lands.
See the BLM website, athttp://www.blm.gov/.
See Reorganization Plan No. 3 of 1946, section 403, codified at 5 U.S.C.app. 1.
See the BIA website, at www.doi.gov/bureau-indian-affairs.html.
See the BOR website, athttp://www.usbr.gov/.
43 U.S.C. §§ 372, 373, 383, 391, 392, 411, 416, 419, 421, 431, 432, 434, 439, 461, 491, 498.
See the USGS website, at http://www.usgs.gov/.
The Forest Service,1 an agency within the U.S. Department of Agriculture, administers National Forests and Grasslands.2 Under FPA section 4(e), the Forest Service may require that a license for a project occupying lands or waters of a National Forest include those conditions necessary to assure the protection and use of the affected resources. Such conditions assure the high productivity of renewable resources as provided by the Multiple Use-Sustained Yield Act and National Forest Management Act.3 The Forest Service requires a Special Use Permit for any new project not licensed as of the enactment of ECPA.4 Under FPA section 10(a), it may recommend environmental conditions for a project that affects a National Forest without occupying it.
See the Forest Service website, at http://www.fs.fed.us.
See Organic Act of 1897, 16 U.S.C. § 475.
16 U.S.C. §§ 472a, 521b, 1600, 1611 - 1614.
16 U.S.C. 797b, 823b.
The Environmental Protection Agency1 (EPA) administers various permitting programs to protect life and property against the adverse impacts of various forms of pollution.2 It administers the Clean Water Act (CWA), under which it approves the water quality standards that a State then applies in a water quality certification for an individual project.3 Under the Clean Air Act, it has general authority to review all environmental documents issued by federal agencies, including those issued by FERC.4
See the EPA website, at http://www.epa.gov.
See Reorganization Plan No. 3 of 1970, section 1, codified at 5 U.S.C.app. 1.
See CWA § 101, 33 U.S.C. § 1251(d).
See CAA § 309, 42 U.S.C. § 7609.
The Army Corps of Engineers1 (Corps) has built and operates 75 dams and other facilities that, in addition to their primary purposes of flood control and navigation, 2 generate 25% of the nation's hydroelectricity incident to flood control and navigation. 3 These dams are not regulated by FERC, whose jurisdiction is limited to non-federal facilities. However, a license may require that a project coordinate operations with any Corps' dam located in the same watershed. Finally, the Corps may establish protocols for the flood control operations of any licensed project 4 and may require any measure necessary for commercial navigation.5
See the Corps website, at http://www.usace.army.mil/.
The Army Corps of Engineers was established by the Act of March 16, 1802, “An Act fixing the military peace establishment of the United States.” See 2 Stat. 132 (1845).
SeeFlood Control Act of 1936,ch. 688, Sec. 1, 49 Stat. 1570 (June 22, 1936).
See 33 U.S.C. § 1.
Under CWA section 401(a), states must issue a certification that a license will comply with all applicable water quality standards. FERC may not issue a license if the State denies such certification. The State also administers property rights both in land and waters occupied by a project.1 Through its public utilities commission, the State regulates the rates for any retail service of electricity generated by a project.2 Through its department of fish and game, the State may recommend conditions, under FPA sections 10(a) or (j) (see Sections 2.3.4(B) and (C)), for the protection, mitigation, and enhancement of fish and wildlife resources and recreation. The State also must assure protection of coastal waters affected by a project, in compliance with the Coastal Zone Management Act (see Section 2.3.4(G)).
Agencies are significant allies to citizen groups and other participants in licensing proceedings. They have unique technical expertise in addition to their regulatory authorities. While you have standing to intervene and otherwise participate in any licensing proceeding, you should never view yourself as an island. You should try to persuade the agencies to use their respective authorities to further the public interest in a manner that includes your interest in the affected lands and waters. FERC must provide deference to their recommendations, and it must adopt their mandatory conditions, while it has more leeway with citizen groups.
To that end, you should establish a working relationship with the assigned agency staff. You should offer to help them as appropriate, by providing needed information, supporting their additional study requests to the licensee, and even co-drafting documents. By the time settlement negotiations start, or, when the agencies are drafting their final conditions for submittal in a disputed proceeding, the agencies hopefully will consider you as their ally or at least as a trusted source of information, and they will give weight to your recommendations. Bear in mind that, by law, any agency is required to give the same opportunities to other participants whose interests may be conflicting. Your power of persuasion turns on your trustworthiness.
FPA § 27, 16 U.S.C. § 821.
FPA § 19, 16 U.S.C. § 812.
A license is a regulatory document that permits the dam owner to use public waters for energy generation. It specifies the conditions for construction, operation, and maintenance of the project. When final, a license is enforceable by FERC or the U.S. District Court through fines or injunction. FERC may revoke a license in the event of systematic non-compliance.
Depending on the generating capacity and other relevant features of a project, FERC may issue a license or an exemption for a given project. It may also issue a preliminary permit for the purpose of site study preparatory to a license application.
This Toolkit focuses on licenses, which cover 99% of the generation capacity under FERC's jurisdiction. There are different forms of license for a constructed or an unconstructed project, and for major or minor generation capacity.1 A list of current licenses, sortable by state, river, utility, and project name, is available at http://www.ferc.gov/industries/hydropower/gen-info/licensing/licenses.xls.
See 18 C.F.R. § 4.30.
An exemption applies only in the limited circumstances where a project is located on an existing water supply conduit (such as an irrigation canal) on non-federal lands and where the project has a generation capacity of 15 MW or less or, if operated by a state or local government solely for municipal water supply, 40 MW or less;1 or uses a natural stream feature (such as a waterfall) without a dam or other storage capacity and has a generation capacity of 5 MW or less.2 An exemption is perpetual, unlike a license, which has a term of years as discussed below in Section 2.3.5. It includes whatever environmental conditions are submitted by fish and wildlife agencies, not subject to the normal limitations on scope, in order to prevent loss or damage to fish and wildlife resources.3 FERC may include any additional conditions necessary to insure the facility continues to comply with these conditions.4 A list of exempted projects is available at http://www.ferc.gov/industries/hydropower/gen-info/licensing/exemptions.xls.
FERC has only granted 66 exemptions in the past 10 years. As a result, this form of license is a not a focus of the Toolkit. For further information about the exemption process, and for standard conditions of exemptions, see http://www.ferc.gov/industries/hydropower/gen-info/licensing/exemptions.asp.
See 16 U.S.C. § 823a. See also 18 C.F.R. §§ 4.30(b)(28), 4.90-4.96.
See 18 C.F.R. §§ 4.30(b)(29), 4.101-4.107.
See 16 U.S.C. § 823a; 18 C.F.R. § 4.106(b).
See id.
A developer interested in a potential site for a new hydropower project may first apply for a preliminary permit.1 A permit is an exclusive right to study that site and to file a license application during the permit term, which is three years2 subject to renewal3 and periodic reporting. FERC will grant a permit application unless a legal barrier precludes it from licensing any subsequent project.4nless a permanent legal barrier precludes FERC from licensing the project, FERC will issue a preliminary permit." City of Summersville, W.Va. v. FERC, 780 F.2d 1038 (D.C. Cir. 1986).
] FERC may also decline to issue a permit where it has rejected a license application for the same site and development.5 If competing permit applications are filed for the same site, FERC grants the permit to the applicant which: is a state or municipal utility, will “best serve the public interest,” or was filed first in time.6 A list of current preliminary permits is available at http://www.ferc.gov/industries/hydropower/gen-info/licensing/pre-permits.xls .
A preliminary permit is like staking a claim. It gives the permittee the exclusive right to apply for a license for a period of 36 months and conduct studies to determine whether to proceed with a license application. A preliminary permit, which authorizes such field studies, does not authorize any construction or guarantee the issuance of a project license in the event the permittee files a license application.
A preliminary permit is subject to conditions. The standard conditions are stated in FERC Form P-1, available at www.ferc.gov/hydropower/gen-info/l-forms.asp. FERC will also impose additional conditions on the permittee if circumstances warrant. Your comments may influence FERC to include conditions to protect sensitive resources against the adverse impacts of any studies. FERC will not deny a preliminary permit application on the basis of your objections to a future license application. FERC will only deny an application if (1) a legal barrier exists that would absolutely prohibit the licensing of the proposed project, or (2) the application is truly speculative.
We recommend intervention in a permit proceeding, in part because you will receive the required 6-month progress reports from the permittee and also notices of proposed amendments to, extension of, or cancellation of the permit.
For more information, see http://www.ferc.gov/industries/hydropower/gen-info/licensing/pre-permits.asp .
See 18 C.F.R. § 4.31(a).
See 16 U.S.C. § 798.
See In re City of Redding, 33 FERC ¶ 61,109 (Oct. 15, 1985). A permittee may apply for a second preliminary permit if (1) it has proceeded with the project study diligently and in good faith, (2) there is opportunity for public comment, and (3) other potential developers may compete for the new permit.
Since the early 1980s, FERC's policy has been that " [u
See Symbiotics, LLC, 99 F.E.R.C. ¶ 61,099 (2002). Thus, FERC will deny a permit application for a site if it had previously denied a license application on the ground that unmitigable adverse impacts would outweigh energy and other developmental benefits, and circumstances have not changed since. Id.
See 16 U.S.C. § 800(a).
FERC licenses a “complete unit of development.”1 This consists of all dams, reservoirs, other engineered structures, as well as property rights in lands and waters as necessary for construction, operation, and maintenance of a project. Consequently, a licensee must acquire and retain title in fee to, or the right to use in perpetuity, of such lands and waters.2 The license establishes a project boundary which includes all such structures, lands, and waters. Under FPA section 9,3 a license incorporates the approved “maps, plans, and specifications” which establish that boundary.
The project boundary is an essential element of the project definition. At a minimum, the boundary includes any dam, powerplant, or other structure used for generation of electricity. However, the selection of which lands and waters to include is somewhat discretionary, as a function of FERC's determination of which are necessary for mitigation of project impacts. FERC's policy is that its jurisdiction and thus enforcement capability extend only over those lands and waters within the project boundary. This policy means that the selection of lands and waters determines the scope of the licensee's mitigation duty. Thus, it effectively means that a license does not include off-site mitigation measures even if the project's adverse impacts may not be fully mitigated within the project boundary.4
As a matter of policy, the HRC believes that the project boundary should include: (i) any bypass river reach between a dam and powerhouse; (ii) reservoir shoreline up to the high water mark; (iii) all other lands needed for protection, mitigation and enhancement of resources adversely affected by the project.5
In some proceedings, FERC has allowed a bypass river reach to be removed from a project boundary, on the ground that the dry channel is not a project work.6 The HRC disagrees with this position, since the bypass reach is plainly integral to a plan of development which separates the dam and powerhouse. We have defeated other such amendment applications attempted late in the license term, on the ground that the project boundary is a relicensing issue.7
In other instances, FERC has approved applications to remove transmission lines from a project boundary when the character of the line changes from primary to secondary8 licensed projects to load centers,” and if, without it " there would be no way to market the full capacity of the project,” then that line is a primary to the project.” See Pacific Gas and Electric Company, 85 FERC ¶ 61,411 (1998); Portland General Electric Company, 100 FERC ¶ 62,147 (2002).
] - even though that reclassification may affect jurisdiction over the project as a whole (e.g., where the only basis for jurisdiction is the occupancy of federal lands by the transmission line).9 The HRC has opposed such reclassification where apparently motivated to eliminate jurisdiction over the project as a whole.
In sum, project boundary is not a legal nicety - instead, it is an essential element of the license which directly affects non-power benefits. Consider specifying the project boundary in any settlement agreement.
This project description results from a daisy-chain of legal authorities. Under FPA section 4(e), FERC licenses “project works.” Under FPA section 3(12), 16 U.S.C. § 796(12), such works are defined as the physical structures of a “project.” Under FPA section 3(11), 16 U.S.C. § 796(11), a project is a “complete unit of improvement or development” consisting of, among other things,
“a power house, all dams and appurtenant works and structures (including navigation structures) ... and all storage, diverting or forebay reservoirs ... all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit ....”
16 U.S.C. §§ 796(11)-(12), 797(e).
Standard Article 5 requires a licensee to acquire and retain title in fee to, or the right to use in perpetuity, project properties sufficient to accomplish all project purposes. Under the article, the licensee has five years from the issuance of the license to obtain these properties. See Standard Article 5, Forms L-1 through L-21, 54 FPC 1799-1923 (October 1975), supra. Such rights in land and water must be adequate for the performance of all duties under the license. From a legal perspective, the rights must enable FERC, through the licensee, to protect the public interest affected by a project. Any non-licensee who owns or controls rights necessary for project operation must become a co- licensee or must transfer such rights to the licensee. For example, FERC required the Hudson River-Black River Regulating District (HRBRRD) to obtain a license for the Great Sacandaga Reservoir, which had been constructed for flood control and recreation, since the downstream licensee of the E.J. West Project had a contractual right to draw on lake storage for energy generation. See letter to Jerry L. Sabattis, Niagara Mohawk Power Corporation, from Dean L. Shumway, FERC re Project No. 2318-002 (Aug. 27, 1992) (eLibrary 19920909-0285).
16 U.S.C. § 802.
See, e.g., PacifiCorp, 80 FERC ¶ 61,334 (1997); Indiana Michigan Power Company, 103 FERC ¶ 61,286 (2003).
This position is restated in the HRC April 21, 2003 comments on FERC's “Notice of Proposed Rulemaking for the Integrated Licensing Process (ILP)” (Docket No. RM02-16).
See, e.g., Duke Power, 100 FERC ¶ 61, 294 (2002).
See “Letter Order Dismissing Duke Power Co's Application To Amend The License For The Catawba-Wateree Project, & Advises That Duke Power Pursue The Amendment Proposal As Part Of The Licensing Proceeding Under P-2232” (April 18, 2003) (eLibrary 20030424-0331).
Primary lines are “those necessary to ensure the “viability” of the project in the event of Federal takeover. If a line is “used solely to transmit power from [Commission
See Puget Sound Hydro, 109 FERC ¶ 61,039 (2004).
A license identifies the agency, corporation, or individual that is legally responsible for compliance with license articles. The licensee thus is responsible for the adequacy of construction, operation, and maintenance of the project as so required. There may be co-licensees.1
The Pelton-Round Butte Project (P-2030) is the only project co-owned by a utility and a Tribe. The co-licensees are Portland General Electric and the Confederated Tribes of the Warm Springs Reservation, who owns one-third of the project.
The license establishes the legal responsibilities of a licensee for construction, operation, and maintenance of the project.
Generally, for any unconstructed project, the license specifies the plan (including schedule) for design and construction. Once constructed, license articles relate to operation typically specifying a range of reservoir levels, a schedule (varying by year-type or season) for flow release from the dam or powerhouse, and a ramping rate that may limit the rate of change in the powerhouse discharge or other release. For example, the licensee has discretion how to operate the project after compliance with these license articles. Thus, if a license requires a minimum flow release of X cubic feet per second (cfs), the licensee may release more than X cfs at any given time. A licensee may not modify project operations or works prescribed by the license without FERC's prior approval.1
A typical license also requires recreational facilities on any reservoir or river reach within the project boundary, such as boat launches. It specifies measures for fish passage and meeting water quality standards as well as monitoring methods and schedules for measures such as the minimum flow schedule to assure compliance and (in some recent licenses) to evaluate whether the measures have the intended results. Finally, it requires periodic reports of the monitoring results and also standard reports of recreational use and safety as specified in FERC's general rules.2
The format of a license is spelled out in numbered articles establishing duties for construction, operation, and maintenance of the project. A license consists of Standard Articles (see Section 2.3.4(A) below) that are generally applicable.
In addition to the Standard Articles, FERC adopts numbered articles that establish conditions for construction, operation, and maintenance of the specific project. These are specific to the project circumstances and specify how, when, and where a given measure (such as release of a minimum flow, or a recreational facility) will be implemented. At its own discretion, FERC may establish mandatory conditions for protection of environmental quality under FPA sections 10(a) and 10(j), discussed sequentially in Sections 2.3.4(B) and (C) below.
A license incorporates those articles or conditions submitted by agencies other than FERC prescribed under various authorities, including FPA section 4(e) or 18, ESA section 7, CWA section 401(a), and CZMA.When timely submitted in the course of a licensing proceeding, FERC incorporates these conditions verbatim into the license, even if it might have established a different condition if left to its own discretion. In other words, a community of regulatory agencies shares the licensing decision (see Section 2.2 above).
In recent years, some industry representatives have complained that FERC has been reduced into a word processor, compiling other agencies' submittals of mandatory conditions into a license. While overstated, that beef is not bad news for the conservation community. Before these agencies began to systematically use these authorities in the 1990's, FERC tended to give short shrift to non-power uses of lands and waters. Now, it has substantial incentives to cooperate with these agencies as they develop their mandatory conditions. This is not criticism of FERC - it just acknowledges the fundamental value and effect of checks and balances.
While you should encourage each such agency to use its authority deliberately (e.g., a measure may be overturned on appeal if outside of the scope of the agency's authority or not supported in the record), you should also support the result of affirmative protection or restoration as promised in the environmental statutes. In the face of political pressure from FERC (whose primary mission is energy) or the licensee (which reasonably seeks to minimize new capital costs), your support helps give agency staffs the necessary basis for such conditions.
See 16 U.S.C. § 803(b).
See 18 C.F.R. § 8.11.
All licenses issued since 1953 and many issued previously, include Standard Articles, which are incorporated by reference. While these vary slightly between license categories (for example, existing versus unconstructed status, or minor versus major generation capacity), they establish general duties for the protection of the public interest, including coordination of water regulation in a river basin. One of these Standard Articles reserves FERC's authority to require additional or different environmental conditions in advance of relicensing, either on the motion of a regulatory agency or other person or its own initiative. This article balances the licensee's need for investment security over the license term, with the countervailing need to adjust project design or operation if circumstances relevant to the public interest change significantly after license issuance.1 Thus, Standard Article 15 for a major project (over 5 MW) provides:
“The licensee shall, for the conservation and development of fish and wildlife resources, construct, maintain, and operate, or arrange for the construction, maintenance, and operation of such reasonable facilities, and comply with such reasonable modifications of the project structures and operation, as may be ordered by the Commission upon its own motion or upon the recommendation of the Secretary of the Interior or the fish and wildlife agency or agencies of the State in which the project or a part thereof is located, after notice and opportunity for hearing.”2
Other Standard Articles permit reopening a license (a reopener) for modification of recreational facilities, coordination of energy operations in a watershed, and other purposes.3 Mandatory conditions submitted under FPA section 4(e) or 18 or CWA section 401(a) may include reopener at the initiative of the prescribing agency.4
FERC rarely reopens a license under the reservation of authority contained in a Standard Article or the numbered articles that require specific measures for protection, mitigation, and enhancement of environmental quality. It probably denies90% or more of the motions for reopener filed by agencies or other participants. Its view is that a license must provide financial and legal security to the licensee in order to assure recovery of the costs of construction, operation, and maintenance; and that the environmental measures required by numbered articles should not be changed unless the law or circumstances that existed when the license issued have materially changed.
The HRC differs as to what constitutes a material change in circumstances. You have greater leverage to reopen the license if it contains specific benchmarks regarding the circumstances that are the basis for the environmental measures. We recommend that you seek specific findings in a license to describe the expected impacts of such measures. “E.g., if this flow schedule is adopted, then the project discharge will also have a dissolved oxygen context of X ppm or more.” That way, if the expected impacts are not achieved, FERC will have a rational basis for reopening the license.
The ESA is a primary driver for reopening a license mid-term. FERC may be compelled to reopen a license by initiating formal consultation with FWS/NMFS, if one of those agencies finds that continued operation may adversely affect a species listed after license issuance and petitions for such reopener. See In re American Rivers and Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004).
Another primary driver for reopener is a change to water quality standards or new monitoring data that demonstrate that the project does not comply with existing standards. If the certification includes a reopener provision, the administering State agency may reopen the certification (and thus, by necessary effect, the license) to achieve such compliance.
See 18 C.F.R. § 2.9 (incorporating “Standardized Conditions for Inclusion in Preliminary Permits and Licenses Issued Pursuant under Part I of the Federal Power Act,” 54 FPC ¶ 1792 (1975). These Standard Articles, collected in forms by type of license, are available at www.ferc.gov/industries/hydropower/gen-info/l-forms.asp.
Id., Form L-5.
See id. at L-03, Articles 10, 13, 17, and 18. FERC has also developed a policy statement to make explicit its preference to evaluate project impacts cumulatively, where practical, and if necessary, through reopener. See “Use of Reserved Authority in Hydropower Licenses to Ameliorate Cumulative Impacts: Policy Statement,” FERC Stats. & Regs. Preambles ¶ 31,010 (December 14, 1994), 59 Fed. Reg. 66,718 (December 28, 1994).
See American Rivers v. FERC, 129 F.3d 99 (2nd Cir. 1997) (American Rivers I); American Rivers v. FERC, 187 F.3d 1007 (9th Cir. 1999), as amended 201 F.3d 1186 (9th Cir. 2000) (American Rivers II).
Under FPA section 10(a)(1), a project must serve the public interest in a river basin, not just the licensee's interest in power generation. A license must ensure that the project adopted “shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes....”1
The record compiled in the proceeding is a comprehensive plan.2 In addition, FERC will give consideration to a plan which a federal or state agency has adopted under its own authority, if the plan (1) is a comprehensive study of one or more of the beneficial uses of the river; (2) specifies the standards, the data, and the methodology used; and (3) is filed with FERC's Secretary before Section 10(a) conditions are established for a given project.3 An agency or other participant may submit a plan for acceptance as comprehensive in the course of a proceeding, or even outside of any proceeding. The Secretary maintains a list of comprehensive plans approved by FERC.4
Under FPA section 10(a)(2), FERC must consider whether a license or license condition is consistent with applicable comprehensive plans. For example, FERC must determine whether a flow objective, as established in a State's recognized “comprehensive plan” for river management, is consistent with the conditions in a proposed license. FERC has occasionally denied and frequently conditioned license applications in order to ensure consistency with the general tendency of such plans. Inconsistency with a management objective in any one comprehensive plan, however, is not controlling.5
Project revenues are a relevant factor under Section 10(a)(2). FERC evaluates the fiscal impact of each alternative, assuming existing conditions in the electricity market served by the licensee. It does not attempt to forecast changes in market conditions, nor will FERC grant or deny a license based on a prediction of economic viability. Rather, the licensee makes a choice whether to accept a license, and if it does, it is obliged to comply, regardless of whether project revenues are different than predicted.6
Early in the proceeding, you should determine which comprehensive plans accepted by FERC apply to the proposed project. State and federal agencies may have adopted other management plans which appear to meet the requirements for a comprehensive plan, but which have not been submitted to FERC for acceptance under FPA Section 10(a)(2). If so, you should encourage the agencies to submit the plans, or do so yourself. Even if FERC determines that a plan does not meet the required definition, you should notify FERC and the licensee and request that the plan be included in the Pre-Application Document(PAD) (see Section 3.2.2(A)).
As the proceeding goes forward, your comments should address any conflicts between the project and the management objectives of relevant plans. For example: “The license application does not propose sufficient minimum flow to support the fishery below the dam, an identified goal of the following comprehensive plan ....” You should request that the licensing decision address the specific objectives of these plans. FERC has a tendency to make a conclusory finding (expressed in a single paragraph) that a decision is consistent with all applicable plans, and not address specific objectives. Thus, a license may not be consistent with a specific objective in a given comprehensive plan.
16 U.S.C. § 803(a)(1); see also Udall v. Federal Power Commission, 387 U.S. 428 (1967) (emphasis added).
See LaFlamme v. FERC, 945 F.2d 1124 (9th Cir. 1991).
See 18 C.F.R. § 2.19; or Order 481-A, 53 FR 15804 (May 4, 1988).
A bibliography of these plans is available at http://www.ferc.gov/industries/hydropower/gen-info/licensing/complan.pdf.
See Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1554 (2nd Cir. 1992) (“Although FERC must 'consider' inconsistencies with state plans, a license need not be denied merely because a state agency opposes a particular project.”).
See Mead Paper, 72 FERC ¶ 61,027, *61,068 (1995).
Unlike FPA section 10(a), which balances energy generation and all other beneficial uses of the affected river, FPA section 10(j) requires that a license “adequately and equitably protect, mitigate damages to, and enhance, fish and wildlife (including related spawning grounds and habitat) affected by the development, operation, and management of the project....”1 NMFS, FWS, or a state fish and wildlife department may recommend such conditions. If timely submitted,2 all such conditions must be included in the license, unless FERC makes written findings that: (1) a given condition is inconsistent with the purposes of the FPA Part I; and (2) the alternative condition adopted by FERC provides the protection, mitigation, and enhancement required by FPA section 10(j)(1).3
Because Section 10(j) submittals are recommendations, FERC may reject many on the basis of the above findings.
To increase the chances of acceptance, you should encourage each resource agency to analyze the consistency of its Section 10(j) conditions with the purposes of the FPA, specifically electricity generation. Its submittal should state why it believes the conditions are consistent. Typically, when FERC finds that a condition is inconsistent, it relies on the adverse impacts on generation, capacity, or revenues. This is often simplified by stating that the “project is inconsistent with a comprehensive plan for development.” For that reason, as discussed in Section 3.2.2(B), you should assure that the agencies have access to a model which predicts such impacts, and demonstrate that in relative terms, the costs are not as great. For instance, while the costs of a mitigation measure may appear high, they may be modest as a fraction of the net project revenues or when distributed among ratepayers. You may prepare such a model if you have the means. The HRC has developed such models and may be willing to share them and assist participants in finding consultants who can help.
Establish alliances with organizations that would benefit from acceptance of Section 10(j) recommendations. Work with hunting and fishing clubs and similar interests to build support for fish and wildlife measures, on the ground of local financial benefits. Use the media to share your vision for the restoration of natural resource values.
16 U.S.C. § 803(j)(1).
FPA Section 10(j)(1) conditions must be submitted within 60 days after the Notice of Readiness for Environmental Analysis. See Section 4.5.1 below. Any condition filed after that deadline will be treated as a Section 10(a) recommendation, not entitled to deference. See 18 C.F.R.4.34(b).
16 U.S.C. § 803(j)(2)(A)-(B).
If a project is located within a federal reservation such as a National Forest or tribal land1 FPA Section 4(e) applies. FPA Section 4(e) establishes two substantive requirements. First, FERC must find the license will not interfere or be inconsistent with the original purposes of such reservation.”2 Second, the federal agency managing the reservation may require whatever conditions it finds are necessary for the reservation's protection and use,3 although such conditions may not expressly veto the license.4 FERC must incorporate these conditions into the license.5 FERC may reject or condition a license if it believes a condition exceeds the scope of FPA section 4(e). In this event, FERC may issue the license under protest after which it may join in judicial review of that condition. FERC, however, may not amend or delete the condition on its own authority.6 impose conditions on projects or portions of projects that are not located on reservations under its supervision.”
]
An agency with Section 4(e) authority for a given project may prescribe any conditions necessary to protect the lands and waters of the reservation. These conditions range from flow schedule to recreational improvements such as improved river access. To understand the “original purposes of the reservation,” as defined by Section 4(e), you should review the original legislation that created the reservation as well as the plans and policies adopted by the federal agency for management of the reservation. Meet with the agency to understand how its staff views their obligations in the licensing process.
Early in the proceeding, you should identify the specific management requirements in the plans applicable to the project. Analyze whether and how the license application and alternatives appear to be consistent with those requirements. Some management requirements may be vague or general so work to convince the agency to make interpretations of those requirements early in the process.
File a written request that the agency include you in its mailing list for the Section 4(e) conditions. This should be done early in the proceeding, and not later than when FERC publishes notice that a license application is complete. You should insist on the ability to participate in any negotiations the agency undertakes with the licensee.
Like FERC in its treatment of comprehensive plans, agencies with Section 4(e) authorities sometimes do not articulate the nexus between the conditions they adopt and the specific management requirements in applicable plans for the reservation. In your comments on the preliminary or final Section 4(e) conditions, focus on those specific management requirements. Articulate a clear and rational nexus between the conditions and requirements if the agency does not otherwise provide it. Acknowledge any ambiguities and conflicts between the requirements, and explain how best to resolve such conflicts.
You should address your correspondence on Section 4(e) issues directly to the agency. You should also file any such correspondence, including your written comments on the Section 4(e) conditions, with FERC. Your standing to appeal such conditions, through rehearing or judicial review, depends on your timeliness and specificity in such comments.
It may be helpful to reach out to other constituencies who concentrate their work on public lands and have experience working with specific land managers. Request that members of Congress, State legislators, or County supervisors file letters urging protection and restoration of natural resource values.
A reservation is federal land which is withdrawn from public entry, such as a homesteading or mining claim. For this purpose, it includes: National Forests managed by the Forest Service, National Wildlife Refuge managed by the FWS, Tribal reservations managed by DOI, other lands reserved by BLM and NPS. A reservation is defined, for the purpose of Section 4(e), to exclude National Parks and Monuments. This exclusion functions as a prohibition on any such development. 16 U.S.C.§ 797(c). Further, a project may not be licensed on any river included or designated for inclusion in the National Wild and Scenic River System, if it would have a “direct and adverse effect on the values for which a river was designated.” 16 U.S.C. §§ 1278(a)-(b).
16 U.S.C. § 797(e). See also Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 788 (1984) (Escondido Mutual); Keating v. FERC, 114 F.3d 1265, 1269 (D.C. Cir. 1997).
See Escondido Mutual, 466 U.S. at 777-778.
See id.
See Escondido Mutual, 466 U.S. at 776.
See id. at 781. However, FERC has recently affirmed its authority to delete a Section 4(e) condition which relates to a project work not with a reservation. See Upper Peninsula Power Company, 110 FERC ¶61,141 (2005), which holds that FERC is “not required to include in licenses conditions pertaining to reservations that are affected by a project, but contain no project works. Nor may the [Agency
Under FPA section 18, FWS or NMFS may prescribe a facility for fish passage (such as a fish ladder or a trapping site), operation and maintenance of the facility, and any other conditions necessary to ensure effective passage.1 A Section 18 prescription applies to upstream or downstream passage, and diadromous or riverine fish and aquatic species such as eels and mussels. The agency may also reserve its authority to adopt or amend a prescription after license issuance.2 This authority may not directly address the impact of fish entrainment unrelated to passage facility, since that impact is instead within the scope of FPA section 10(j) or (a).3 A Section 18 prescription may address entrainment indirectly, by trying to maximize the efficiency and safety of a downstream fishway. Further, the agency may not use this authority to veto the license in the event that passage is infeasible.
As with FPA section 4(e), FERC must incorporate a Section 18 prescription timely submitted by FWS or NMFS. If it finds that the condition exceeds the permissible scope (e.g., by addressing fish entrainment directly), it may refuse to issue the license, or it may issue the license “under protest” with the objectionable condition subject to judicial review.4 position-substantially or procedurally.'”).
]
Work closely with FWS/NMFS in the development of their Section 18 prescriptions. FERC's ex parte rule (see Section 3.2.2(F)) does not apply to such discussions.
Early in the proceeding, make a written request that FWS/NMFS add you to its mailing lists. Ask to be included in any negotiations it undertakes with the licensee.
Review any management plan relevant to the prescription, whether adopted byFWS/NMFS or the State fish and game department and confirm that the plan is filed with FERC. If it is not, ask the agency to do so. Identify each fish species subject to the plan and any specific management requirement that may apply to the Section 18 prescription.
File written comments on the draft prescription with the prescribing agency and FERC. Although FWS/NMFS may establish a deadline for such comment independent of FERC's schedule, the draft prescription is usually released within 60 days of the Notice of Readiness for Environmental Analysis. Ask that FWS/NMFS include in their prescription a specific nexus between the prescription and any relevant management plan, and more specifically, anticipated benefits of the proposed fish passage.
Work with other constituencies such as angling groups, tribes, or commercial fishermen. Undertake historical research to describe the condition of the river and its fishery. This information can be helpful in identifying goals for fish restoration or simply proving the geographic range of a given species.
Invite reporters or political decision-makers out to the river during fish migration or spawning season to help them understand your proposed restoration goals. Have a stock of current or historic photos to use in media or lobbying.
16 U.S.C. § 811.
See Wisconsin Public Service v. FERC, 32 F.3d 1165 (7th Cir. 1994). To date, NMFS and FWS have not exercised their reserved authority to reopen a license and prescribe a fishway following relicensing.
See, e.g., City of New Martinsville v. FERC, 322 U.S. App. D.C. 169 (1996).
See American Rivers II, 201 F.3d 1186, 1210 (“Where the Commission disagrees with the scope of a fishway prescription, it may withhold a license altogether or voice its concerns in the court of appeals, but at the administrative stages, 'it is not the Commission's role to judge the validity of [the Secretary's
Where a project adversely affects a species of fish, wildlife, or plant listed as threatened or endangered under the Endangered Species Act, the FWS or NMFS may establish reasonable and prudent alternatives (RPA) or measures (RPM).1 While FERC is not required to include such measures in the license,2 FERC and the licensee may be liable for damages if the license results in death, injury, or other harm to the listed species.3 As a practical matter, FERC treats RPA or RPM as mandatory conditions.
Under ESA section 7(a)(1), FERC, like any other federal agency, must protect and contribute to the recovery of all threatened and endangered species affected by their actions.4 Under ESA Section 3(3), FERC must “use ... all methods and procedures which are necessary” for this purpose.5 Under ESA section 7(a)(2), FERC must, in consultation with FWS/NMFS, ensure that any action it authorizes, funds, or implements is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of designated critical habitat. In fulfilling this requirement, each agency must use the best scientific and commercial data available.
The ESA specifies special procedures for compliance with these mandates. Early in the licensing proceeding, FERC must determine whether its licensing action may affect listed species or critical habitat. Typically, the licensee will be designated as the non-federal representative for consultation and will prepare a Biological Assessment (BA) under FERC's supervision. If, on receipt of the BA, FERC finds that the licensing action will not affect such species or habitat in the project area, and if NMFS/FWS concurs (in what is called a “concurrence letter”), then informal consultation ends. 6, that the proposed action is not likely to adversely affect any listed species or critical habitat.” 50 C.F.R. § 402.14(b)(1).
] Otherwise, FERC must initiate formal consultation - with NMFS with respect to marine wildlife or diadromous fish such as salmon, or the FWS regarding freshwater and terrestrial species such as bass or frogs.7 FWS/NMFS will review the information provided by FERC (including the BA), evaluate the status of the affected species, evaluate the possible direct, indirect, and cumulative impacts of the licensing action; and then prepare a Biological Opinion (BO) and Incidental Take Statement (ITS).8 The opinion must include: (1) supporting documentation, (2) discussion of the impacts of the action on listed species or critical habitat; and (3) FWS/NMFS' opinion as to whether the action is likely to jeopardize the continued existence of a listed species.
If the FWS or NMFS, as appropriate, finds that the project may cause jeopardy to the listed species or adversely affect critical habitat,9 then the BO includes Reasonable and Prudent Alternatives (RPAs). These are alternatives that avoid jeopardy or adverse modification of critical habitat in a manner consistent with the intended purpose of the project, within the scope of FERC's legal authority, and are economically and technologically feasible.10 If the agency finds that the project will not cause jeopardy or adverse modification to critical habitat, then the BO includes RPMs which minimize the impact of incidental take11 but do not modify the basic design, location, scope, duration, or timing of the Proposed Action.12 Finally, regardless of the type of BO, the ITS specifies the permissible level of take of the listed species.13
Early in the proceeding, contact FWS/NMFS to learn whether federally listed species or critical habitat may exist in the project area.
If a species is threatened as a matter of fact but not yet listed for protection under the ESA, you should consider a corollary strategy of filing a petition to list the species. Such a petition should be filed in advance of the relicensing proceeding. See 16 U.S.C. § 1533(b); 50 C.F.R. § 424.14.
If the project may affect an already listed species, make a written request that FWS/NMFS include you in any discussions with the licensee regarding the conditions of the Biological Assessment or Opinion.
File comments on the Biological Assessment/Opinion both with that agency and FERC. As discussed above, you should ask the agency to include in the BO specific findings regarding the incidental take of listed species and impacts on critical habitat, to establish accountability in the RPAs or RPMs. Thus, the agency may request that FERC reopen the license, by reinitiating consultation, if these measures do not achieve the required level of protection.
The ESA uses a different baseline for analysis of alternatives to protect and recover a listed species. The baseline is historic condition. See 50 C.F.R. § 424.10.
See 16 U.S.C. § 1536(b)(4), 50 C.F.R. §§ 402.02, 402.14(i)(1).
16 U.S.C. § 1538.
See 16 U.S.C. § 1538(a)(1)(B). Any person who knowingly violates ESA section 9 may be assessed a civil penalty by FWS/NMFS of not more than $25,000 for each violation. See 16 U.S.C 1540(a)(1).
See Tennessee Valley Authority v. Hill, 437 U.S. 153, 185 (1978). “One would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies 'to insure that actions authorized funded, or carried out by them do not jeopardize the continued existence' of an endangered species or 'result in the destruction or modification of habitat of such species ....'” This language admits of no exception.” Id. at 173.
Id., citing 16 U. S. C. § 1531(c), 1532(3) (emphasis added).
“A Federal agency need not initiate formal consultation if, as a result of a biological assessment under § 402.12 . . . the Federal agency determines, with the written concurrence of [FWS or NMFS
See 50 C.F.R. § 402.01(b).
See 50 C.F.R. § 402.14(i).
To place a listed species in jeopardy is to “engage in an action that reasonable would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” U.S. Fish and Wildlife Service, Endangered Species Glossary (2004), p. 3. Critical habitat is defined as:
“(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; or
(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.”
16 U.S.C. § 1532(5)(A).
See 50 C.F.R. § 402.02.
See id.
See id.
See id.
The Wild and Scenic Rivers Act (WSRA)1 provides for the protection and preservation of certain rivers and their riparian lands. A river may be included in this system by Congress or, if protected by an act of the State legislature, the Secretary of the Interior. Sections 7, 5, and 11 have special relevance for hydropower licensing.
Under Section 7,2 the agency administering the WSRA on a river (BLM, NPS, USFWS, or USFS) reviews any license application for a project on or affecting that river. Section 7 prohibits an original license for any project that is proposed to be located within the boundaries of a designated river or a Congressionally authorized study area.3 Section 7 strictly prohibits FERC from issuing a new license for any project works that lie within a designated river reach.4he Federal Energy Regulatory Commission shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, as amended, on or directly affecting any river which is designated in section 1274 of this title as a component of the national wild and scenic river system or which is hereafter designated for inclusion in that system....”
] FERC has established a policy of dismissing license or preliminary permit applications where the proposed development is barred by the WSRA.5
For any project (including all works) located wholly outside designated boundaries, the administering agency determines whether the project would invade the designated area (e.g. through the backwater effect of an impoundment) or unreasonably diminish the scenic, recreational, and fish and wildlife values present at the date of designation, also called “outstandingly remarkable values” (ORVs). The standard for a Congressionally authorized study river is similar.6
WSRA section 5(d) states: “In all planning for the use and development of water and related land resources, consideration shall be given by all Federal agencies involved to potential national wild, scenic, and recreational river areas.” It further requires that “the Secretary of the Interior shall make specific studies and investigations to determine which additional wild, scenic and recreational river areas ... shall be evaluated in planning reports by all Federal agencies as potential alternative uses of water and related land resources involved.”7 In partial fulfillment of the Section 5(d) requirements, the National Park Service has compiled and maintains a Nationwide Rivers Inventory (NRI), a register of river segments that potentially qualify as national wild, scenic or recreational river areas. The NRI is a comprehensive plan under Section 10(a)(2)(A) of the Federal Power Act.
Under WSRA Section 11(b), NPS is authorized to assist, advise, and cooperate with governments, landowners, or individuals to plan, protect, and manage river resources.8
16 U.S.C. § 1271 et seq.
16 U.S.C. § 1278.
See id.
See id. The Act provides: “[t
See Symbiotics, LLC, 110 FERC ¶ 61, 235, (2005).
See id.
16 U.S.C. § 1276(d).
16 U.S.C. § 1282(b).
Under Clean Water Act (CWA) Section 401, FERC may license a hydropower project only if the State where the project discharges certifies that the project will comply with applicable water quality standards.1 FERC must include in the license any conditions the state requires in order to certify the project.
The state where the project is located must assure compliance with the Clean Water Act water quality standards before issuing a water quality certification. Each state's water quality standards are made up of beneficial uses, narrative and numeric criteria, and the anti-degradation policy.2 If the state finds that a project would violate water quality standards and cannot be reasonably expected to meet water quality standards through remedial actions, the state must deny certification, and FERC must also deny the license.3 A state, however, can include limitations on discharge of pollutants (such as construction debris or erosion) and “any other appropriate requirement of State law” to assure compliance with water quality standards.4
Depending on water quality standards in individual states, the water quality certification can establish a variety of different types of conditions. For example, a certification may establish a minimum flow schedule or flow storage,5 require fish passage or creation of a recreational facility for enhanced access.6 A certification may also reserve the State's authority to reopen the certification, if the State determines any such condition to be necessary for such compliance. A certification can also be issued with an adaptive management plan to meet water quality targets in the future. As with Section 4(e) or 18 conditions, FERC may not amend or delete a certification condition. A licensee (or other participant) may challenge an objectionable certification only in State court.7
Water quality certification may provide the greatest leverage for environmental restoration at a typical hydropower project. Early in the licensing proceeding, familiarize yourself with your State's water quality standards and its own administrative procedures for issuing water quality certification. To learn more about Section 401 of the Clean Water Act and water quality standards, go to EPA's website at www.epa.gov/waterscience/standards, http://www.instreamflowcouncil.org/ and http://www.rivernetwork.org/.
Make a written request that the State agency put you on its mailing list for the certification proceeding and include you in any negotiations the agency undertakes with the applicant. Send a copy of your request to FERC for inclusion in the record.
Encourage the State to adopt written findings as the basis for its certification, to describe the expected impacts on water quality. (Many states do not.) Such findings serve as the basis for accountability that the certification actually complies with such standards over the term of the license.
Encourage the State, in its certification decision, to address project operation and all other project impacts on water quality, not just the discharge of waste. It may be useful to coordinate with organizations that have experience dealing with the state about administration of water quality standards. For larger, more controversial projects, it may be helpful to involve the governor's office or members of the state legislature.
Any administrative rehearing of the certification occurs before the State, not FERC. Any judicial appeal lies to State court, not the U.S. Court of Appeals that has jurisdiction to hear an appeal of the license itself. You should be prepared to use these procedures if a certification, in your judgment, fails to attain water quality standards as required by CWA and the counterpart state law.
33 U.S.C. § 1341(a)(1).
See www.epa.gov/waterscience/standards/handbook for examples of such standards.
33 U.S.C. § 1341(a)(1); 33 U.S.C. § 1341(a)(3).
33 U.S.C. § 1341(d).
See PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 723 (1994).
See American Rivers I 129 F.3d 99, 105.
See id. at 102.
Under Coastal Zone Management Act (CZMA) section 307, a license must include a valid certification approved by the State to assure that project construction and operation will be consistent with the State's coastal zone management program.1 FERC may not issue a license if the State, subject to approval by NOAA, determines that the project is inconsistent with that program.2
Strategies for effective participation in a CZMA proceeding are the same as for a water quality certification.
See 16 U.S.C. § 1456.
Id.
Under FPA section 6,1 each license must have a stated term of years. Starting on license issuance, the term runs between 30 and 50 years.2 At the end of the stated term, the licensee must undertake the relicensing process described in Section 3.2.
As a rule of thumb, FERC generally grants a term of 30 years in a new license which includes few operational or capital improvements, 40 years for some operational but no capital improvements, and 50 years for operational and capital improvements. 3
License term is an important issue in settlement negotiations. Because of the value of a longer license term, a licensee may be willing to negotiate more costly environmental conditions in exchange for a longer license term.
16 U.S.C. § 799.
See id. (“Licenses under this subchapter shall be issued for a period not exceeding fifty years.”). See also 16 U.S.C. § 808(e).
See, e.g., Ford Motor Company, 110 FERC ¶ 61, 236, (March 4, 2005).
A licensee must construct, operate, and maintain the project in conformity with the license.1 Any proposed amendment to that plan must be approved by FERC before implementation.2 The licensee must submit an application for license amendment to change any facility (such as the height of the dam or the capacity of the powerhouse), operation (such as the minimum flow release), or schedule for construction or operation, as prescribed in the license.3 Temporary deviation is permitted without formal amendment, if necessary for protection of life and property or if caused by an event beyond the licensee's control.4
The application for license amendment varies by category of amendment. As a general rule, an application must contain: a description of the proposed change in facility, operation, or schedule, and supporting exhibits which document the environmental and other impacts of the amendment to the extent they differ from the impacts of the underlying license.5 FERC will publish public notice and take comment if the application proposes a material change in the plan of development.6 In that circumstance, the federal agencies with mandatory authorities may also change their prescriptions as appropriate to address the expected impacts of the amendment, and other persons may intervene and comment.7 Further, an amendment that involves a new or materially changed flow discharge is subject to new or amended certification.8
In the Standard Articles discussed in Section 2.3.4(A), FERC reserves its authority to reopen the license on its own initiative, or on the motion of a regulatory agency or other interested person.9 This reserved authority permits FERC to compel the licensee to amend the license even if the licensee does not desire to do so. FERC sparingly uses this authority, which it considers to unsettle the licensee's expectation that the license will remain fixed for its term. However, FERC may amend an environmental condition if the project impact is substantially worse than predicted when the license issued, or if the required level of protection for an affected resource has substantially changed. For example, FWS or NMFS may request that FERC initiate formal consultation and thus an amendment proceeding if: (A) a fish or wildlife species in the project vicinity is listed as threatened or endangered under the federal Endangered Species Act post-licensing, and (B) there is a risk that the project will take (kill or harm) members of that species in the absence of an amendment.10
Amendments, while often necessary to address changed circumstances may also be used to reopen a resolved issue without the public scrutiny which occurs in relicensing.
A licensee may, after relicensing, seek to amend the project boundary to remove project works or lands.11 Or, before relicensing, it may seek such an amendment of the original license in order to narrow the jurisdiction of regulatory agencies.12
You may track the submittal of any amendment application through eSubscription, which is described in Section 3.2.2 (G) below. You may intervene in the proceeding if it materially affects the plan of development. You may argue against approval of such an application late in the term of an original license, on the ground that the amendment is more properly an element of a new license application.13
See id.
See 16 U.S.C. §§ 799, 803(b).
See 18 C.F.R. § 385.204.
See 16 U.S.C. § 803(b).
See 16 U.S.C. § 802; 18 C.F.R. §§ 4.41, 4.51, 5.18.
See 18 C.F.R. § 4.202.
See 16 U.S.C. §§ 797(e); 803; 18 C.F.R. §§ 4.38(a)(6), 380.10.
See Alabama River Alliance v. FERC, 325 F.3d 290, 300 (2003) (Alabama Rivers). However, FERC's rules limit the requirement for certification to a license amendment which would have a “material adverse impact on water quality.” 18 C.F.R. § 4.38(a)(6)(iii). Although it did not reach the issue, the U.S. Court of Appeals (D.C. Circuit) has expressed “serious reservations concerning FERC's attempt to redefine the statutory phrase 'any discharge,' 33 U.S.C. 1341(a)(1), to mean only those discharges that are “material.” See North Carolina v. FERC, 112 F.3d 1175, 1186 (D.C. Cir. 1997). HRC believes that FERC's interpretation of CWA section 401 is not entitled to the usual judicial deference because EPA, not FERC, administers the CWA. See Alabama Rivers, 325 F.3d at 297; Professional Reactor Operator Society v. U.S. Nuclear Regulatory Commission, 939 F.2d 1047, 1051 (D.C. Cir. 1991) (“reviewing courts do not owe deference to an agency's interpretation of statutes that . . . are outside the agency's particular expertise and special charge to administer”).
See also 18 C.F.R. §§ 2.23, 385.716.
See 16 U.S.C. § 1536. See, e.g., “National Marine Fisheries Service request that FERC initiate consultation under Section 7(a)(2) of the Endangered Species Act for Federally licensed operations of the New Don Pedro Project etc under P-2299,”eLibrary no. 20030220-0293 (Nov. 19, 2002).
See Wisconsin Public Service Corporation, 104 FERC ¶ 61,295 (2003), on rehearing 105 FERC ¶ 61,191 (2003).
See “Letter Order Dismissing Duke Power Company's Application To Amend The License For The Catawba-Wateree Project, & Advises That Duke Power Pursue The Amendment Proposal As Part Of The Licensing Proceeding Under P-2232”(April 18, 2003) (eLibrary 20030424-0331).
See id.
A licensee must comply with the duties for construction, operation, and maintenance established by the license articles.1 Under FERC's general rules, it must submit periodic reports on recreational use and safety.2 It must also comply with monitoring and reporting requirements as established by the non-standard license articles. For example, it must use a gage or other reliable device to measure the release of any minimum flow. It must report non-compliance with any license article, including a temporary deviation caused by an event outside of its control. With some exceptions related to public safety, such reports are public documents, as defined in Section 3.2.2. FERC periodically inspects each project to assure the adequacy of compliance.3
It is impossible to operate a project in perfect compliance with a license over a term of 30 to 50 years, given the physical realities of weather, flood, land movement, and even human error. The licensee usually corrects (and reports) such non-compliance on its own initiative. If the licensee and FERC disagree whether non-compliance occurred or what the remedy should be, FERC may conduct a hearing before issuing a compliance order, which will specify the licensee's going-forward duties to return to compliance.4 If it finds that non-compliance is deliberate or systematic, FERC may assess an administrative penalty (up to $10,000) or even revoke the license or exemption, although the latter remedy has only been used a few times in the history of the FPA.5 It may also request that the U.S. Department of Justice file a complaint against the licensee in U.S. District Court, which has jurisdiction to issue an injunction or restraining order to enjoin such non-compliance, or to issue writs of mandamus commanding any person to comply with the provisions of the FPA or any rule or order of FERC.6
Any person may file a complaint alleging non-compliance with a license.7 A complaint must comply with the form and proof requirements established in 18 C.F.R. section 385.206. Essentially, the complainant must describe and, to the extent feasible, document the nature and frequency of the non-compliance.8 As long as the complaint meets these minimum requirements, the licensee will be required to answer the complaint and any additional questions asked by FERC staff.9 Unless persuaded on the basis of these initial pleadings, FERC may then undertake an independent investigation - such as a field inspection.10 It may issue a compliance order or dismiss the complaint.11
In a complaint about non-compliance with a license article, you should request specific procedures going-forward, once the licensee answers as required by 18 C.F.R. § 385.206(f). At a minimum, you should request that FERC include you in any investigation or negotiation it undertakes with the licensee. FERC takes the view that the complainant is not a formal party in the complaint proceeding and thus may negotiate without notice to you. You should also bear in mind that a court will probably not overturn FERC's decision on the complaint, given the doctrine that an agency has generally unreviewable discretion to determine an enforcement remedy. See Friends of Cowlitz v. FERC, 253 F.3d 1161, 1162 (9th Cir. 2001).
The HRC believes that a citizen may file a complaint in federal court to enforce the Clean Water Act water quality certification incorporated into a license, or the Incidental Take Statement adopted under the ESA. See, e.g., South Carolina Coastal Conservation League and American Rivers' Amended Complaint for Failure to Comply with Conditions of Water Quality Certifications, Saluda Project, available at Appendix B, p. B-26, for an example of a notice of citizens' suit against a licensee under CWA section 401. FERC and the hydropower industry generally believe that FERC has exclusive venue to enforce the license, including incorporated conditions; and as a result, may be expected to vigorously defend against any effort to enforce such conditions in another venue. Before pursuing such a strategy, you should carefully consult with your own counsel.
You may wish to negotiate directly with the licensee. Unless it completely disagrees with the merits of your complaint, it may well be interested in avoiding the cost and risk of litigation, or in demonstrating its responsiveness to legitimate concerns. American Rivers and South Carolina Coastal Conservation League settled a complaint regarding a licensee's non-compliance with water quality certification. See “Order Dismissing Complaint and Amending License,” 108 FERC ¶ 61,064 (July 15, 2004).
See 16 U.S.C. §§ 799, 823b.
See 18 C.F.R. §§ 8.11, 12.10, 12.11.
See 16 U.S.C. § 823b; 18 C.F.R. Part 1.b et seq. See also Division of Dam Safety and Inspections Operating Manual, available at www.ferc.gov/industries/hydropower/safety/ops-manual.pdf.
See 16 U.S.C. § 823b.
See id.
See 16 U.S.C. § 825p.
See 18 C.F.R. § 385.206.
See id.
See 18 C.F.R. § 385.213.
See 18 C.F.R. § 1b.3.
See 18 C.F.R. § 385.206(g).