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.