FERC's final decision will determine the licensee's duties for construction, operation, and maintenance of the project. It will also dedicate the lands and waters occupied by the project to a particular use. The licensing proceeding that precedes that decision is adjudicatory. It determines private and public rights in the affected lands and waters. A license is issued (or is denied) only after a public hearing on the application, as required by the FPA Part I as well as the Administrative Procedures Act. 1
In sum, the decision must be based on (A) proof that the licensee is ready, willing, and able to comply with a new license, if granted; (B) a record of evidence regarding project impacts on the public interest, including the licensee's field studies and an independent environmental document, and (C) consideration of comments and pleadings filed by agencies and other participants regarding the application.
This Section 3.2 addresses these fundamental elements. Sections 4-6 then describe the specific steps in the three processes - Integrated Licensing Process (ILP), Alternative Licensing Process (ALP), and Traditional Licensing Process (TLP) - that FERC uses for this purpose. While the specific steps for the ILP, TLP, and ALP differ somewhat in substance, time, and sequence, all incorporate the following fundamental elements.
A licensee must file a Notice of Intent (NOI) to seek a new license not less than five years before expiration of the original license.1 In an ILP proceeding, a license applicant can issue an NOI anytime between 5.5 and 5 years prior to license expiration. The NOI is the public notice whether the licensee intends to relicense or decommission the project. It triggers all of the steps that follow in the licensing proceeding.
Ensure you are notified of the Notice of Intent for any project in which you have an interest. In an ILP process, the licensee files the NOI at any time in the 6-month period between 5.5 and 5 years prior to license expiration. In the TLP or ALP, the licensee typically files the NOI just over 5 years prior to license expiration. In advance, file a letter with FERC, copied to the licensee, asking to be put on the mailing list for the NOI and subsequent notices. (Bear in mind that the formal service list for a proceeding is compiled only after the proceeding starts, as discussed in Section 3.2.4(B)). You should also subscribe to notices for that project via eSubscription, as discussed in Section 3.2.2(G).
See 18 C.F.R. § 5.5.
A license must be supported by “substantial evidence” in the record of the licensing proceeding.1 The evidence describes the impacts of the project (and any alternatives for facility design or operation) on the electricity system, environmental quality, recreation, and other beneficial uses of the lands and waters.2 The record must support a decision whether the project is best adapted to a comprehensive plan of development of the basin over the license term, which is 30 to 50 years.3 Evidence must be written and subject to rebuttal (or support) by any participating party. Scientific evidence (e.g., how will project operation affect the availability of habitat for a fish species?) must be based on a generally accepted analytical method that is properly applied.4
The record in a licensing proceeding consists of several parts, addressed in subsections below. These are: (A) Pre-Application Document, (B) Study Plan, (C) Application, and (D) Evidence Developed by other Participants, and (E) Environmental Document prepared under NEPA. Further, as discussed in subsection (F) below, any communication with OEP staff on the merits, after the license application is filed must be on the record.
See 16 U.S.C. § 825l; Bangor Hydro v. Federal Energy Regulatory Commission, 78 F.3d 659 (D.C. Cir. 1996).
See 16 U.S.C. §§ 803(a)(1), 808(a)(2).
See id. In any finding based on the record, a federal agency must identify the facts on which it relies, explain why these facts are reliable and relevant then demonstrate how the facts support its decision. See 5 U.S.C. §§ 556, 557, 706(2); Motor Vehicle Manufacturers Assoc. v. State Farm Insurance, 463 U.S. 29 (1983); Burlington Truck Lines v, United States, 371 U.S. 156 (1962).
See Fed. Rules Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993).
The Pre-Application Document (PAD), which is filed with the NOI, compiles existing information about project facilities, operation, and known or potential impacts on environmental quality, including protection, mitigation, and enhancement measures.1 The PAD must include available information such as studies, raw data, maps, and other information that is either in the licensee's possession or obtainable from third parties including agencies and the public. The license must use “due diligence” to collect the information.2
The PAD will form the basis of the study plan, license application, and the environmental document that follows.3 Among other information, the PAD must include five fundamental elements.
Process Plan states the proposed schedule of all activities prior to the filing of the license application.
Project Location, Facilities, and Operation describes the project as constructed and operated under the existing license.
Existing Environment and Project Impacts addresses the following resources areas:Geology and Soils; Water Resources; Fish and Aquatic Resources; Wildlife and Botanical Resources; Wetlands, Riparian, and Littoral Habitat; Rare, Threatened, andEndangered Species; Recreation and Land Use; Aesthetic Resources; CulturalResources; Socio-Economic Resources; and Tribal Resources.
Preliminary list of issues describes the issues likely to be disputed, and an outline of applicable studies.
List of contacts is self-explanatory.4
The licensee must make the PAD and the studies it refers to available to any requesting participant, preferably in electronic form.5
The PAD compiles existing information and thus serves as a starting point for the resulting study plan, which gathers new information. Before the NOI is due, you should contact the licensee to discuss its plan for compiling existing information. Submit information that you believe should be included. Encourage the licensee to work collaboratively with you and other likely participants to conceptualize the PAD - for example, identify resource issues you intend to raise, and state your preferences for the process plan.
Review the PAD carefully once published. Ask, “Does it contain all reasonably available information about the current environmental conditions (baseline)? How does the licensee interpret that information? What are the licensee's assumptions in interpreting the information? Do you agree with the preliminary study plan?” For more information on how to reevaluate and submit comments on the PAD, see Section 4.2.5(A).
See 18 C.F.R. § 5.6(c). The topical requirements are stated at 18 C.F.R. § 5.6(d)(2).
“Due diligence” includes contacting appropriate agencies and Indian tribes that may have relevant information and reviewing federal and state comprehensive plans filed with FERC. See 18 C.F.R. § 5.6(b)(2).
See 18 C.F.R. § 5.6(b).
18 C.F.R. § 5.6(d).
18 C.F.R. § 5.6(c)(2).
Since a license is a privilege to use public lands and waters, the licensee has the burden of proof under the Administrative Procedures Act (APA) to support its application for that privilege.1 Before preparing the application, the licensee must compile existing information, such as its own records of electricity generation under the existing license, or flow gauging records upstream and downstream of the dam, in the PAD.2 After publication of the PAD, it must also conduct field and other studies to supplement that existing information.3 In effect, the study plan provides for the licensee to supplement the existing information in anticipation of the exhibits required in the license application itself.
An application must be filed three years after the NOI.4 A licensee will conduct studies within that period, except in unusual circumstances.5 Such studies are undertaken according to a written document called a study plan.6 The licensee drafts, amends, finalizes, and implements the study plan in consultation with agencies and other participants. FERC must approve the plan in the ILP.7 The study plan must: (1) identify each study to be completed by the licensee to characterize existing conditions of resources affected by the project; (2) identify corresponding management goals and objectives; and (3) and propose analytical methods (generally, field studies) to determine the nature and scope of the project's existing impacts under the original license and alternatives to mitigate such impacts.8 Following any dispute resolution, the licensee will implement the study plan and conduct field and other studies and report the results.9
There is no specific requirement as to the number and types of studies in a study plan. A study plan, however, supplements existing information to complete the exhibits required in a license application and environmental document. We address below those study plan elements that tend to be most significant to the final decision in a relicensing proceeding.
The study plan is one of the most important steps in the licensing process. The new information which will be gathered is essential to: (A) fill any gaps in existing information about the existing impacts of the project, (B) evaluate the possible alternatives for project operation and their impacts, and (C) evaluate possible mitigation measures for any significant impacts.
You may request additional study if the licensee's draft study plan is inadequate. See Section 4.2.8 for the procedures, including criteria, for such a request.
Water Resources. A project converts the kinetic energy or force of river flow into electricity. The most important evidence in a license application is the pattern (the amount and variability) of flow at any given unit of time, available either continuously from the river or via reservoir storage to the powerhouse. A licensee must collect all flow data from gages in the project vicinity over the period of record, such as the term of the existing license; analyze that data for reliability (e.g., did the gage malfunction or otherwise produce inaccurate data?); and synthesize data to correct for any gaging errors. It will then use a water balance model to predict how alternatives for project operation would affect the level of any reservoir, energy generation, and flow release downstream of the dam or powerhouse. The model is both predictive across the proposed term of the new license and comparative, by permitting analysis of the incremental impacts of existing operations and alternatives. Thus, the water balance model answers questions such as: “if the minimum flow schedule for protection of a fishery is increased from the current X cfs to Y cfs, then how will reservoir level, generation, and dependable capacity change?”
A new license is intended to protect and enhance beneficial uses of the waters controlled by the project for the license term, which is 30 to 50 years. FERC and other regulatory agencies almost always rely on a computer model to predict how each action alternative will affect the reservoir level and downstream flow, since the alternative (hand calculation, as used in dam planning before computers) cannot address short time-steps, such as a week or day.
FPA and implementing rules require disclosure of the modeling results but not the model itself. A typical licensee or its consultant will treat the water balance model as proprietary and will not disclose it willingly to other participants. The model may have been developed for non-public use and thus is intellectual property. More often, the licensee is simply afraid that other participants would use the model to evaluate alternatives unacceptable to the licensee, or may develop a precise understanding of the project profitability and then use that as the basis for negotiation. HRC opposes this black box approach to water balance modeling.
You should encourage the licensee to allow use of its water balance model or develop your own for use and disclosure in the proceeding. In effect, a water balance model is a complex spreadsheet that applies variables (an operational protocol such as a minimum or maximum reservoir level, or a minimum flow schedule) to the hydrologic record, in order to predict future conditions, such as the actual reservoir level, flow, or electricity generation across any time step (hour, day, week, month, or year). In several proceedings when licensees have refused to disclose their proprietary models, HRC members have developed their own, disclosed them to the licensee and other participants for correction of errors in data or assumptions and for use in evaluating alternatives. See NHI's Santee-Cooper Watershed Model, available at www.n-h-i.org/srm.html. A hydrologic model can include an analysis of foregone generation revenue, or the water quality or other secondary impact, of a given flow schedule.
Fish and Aquatic Resources. The most fundamental decision in any licensing decision is flow regulation. What is the most beneficial schedule for storage of in-flow and release, and how will release be allocated between the powerhouse and any bypass reach between the dam and the powerhouse? Answering that question typically turns on two variables: the resulting energy capacity and generation on the one hand, and impacts on aquatic resources on the other. Plainly, the populations and habitats of downstream fisheries and amphibians, and even of wildlife species dependent on riparian vegetation (e.g., song birds), are directly affected by the flow schedule. A licensee typically uses the Instream Flow Incremental Methodology (IFIM) or a similar method to predict how alternative flow release schedules will affect the habitat availability of target fisheries.10 After representative transects of the affected channel have been measured, IFIM predicts the wetted depth and width of the channel, and more specifically, the availability of suitable habitat for a given fishery, at each alternative flow release schedule.
IFIM or similar method includes two fundamental assumptions: (A) the amount of habitat directly affects the fishery population rendering habitat the primary limiting factor; and (B) the target fishery is representative of other resources not modeled. These assumptions are often arbitrary or even wrong. There is a growing consensus in the scientific community that IFIM merely makes a physical prediction (what physical habitat will be available under a given flow schedule?) and is not reliable for any biological prediction (what will the future population of a fishery be?). IFIM does not analyze how a flow schedule or other project impact relates to other facilities and activities that may also limit the population, distribution, or health of the species in that watershed. See H. Sarakinos, Adequate Instream Flows for Dam Relicensing (2001); D. Ludwig, “Uncertainty, Resource Exploitation, and Conservation, Science (Apr. 2, 1993), p. 17; D. Castleberry, “Uncertainty and Instream Flow Standards,” Fisheries (Aug. 1998), p. 20.
The classic form of a limiting factor analysis, which varies one variable at a time to isolate the incremental impact of a given facility or activity, is not feasible on the relicensing clock. A licensee typically tests alternative flow release schedules for a limited period (say, a week or a month). FPA requires that a new license application will be filed within 3 years of the NOI, and thus a controlled experiment for a longer period coincident with the life cycle of a target resource (up to five years for an anadromous species, or even decades for a tree species) would require FERC's special approval. HRC increasingly uses post-licensing adaptive management to address causal impacts that cannot be fully understood on the relicensing clock. See, e.g., “Comprehensive Settlement Agreement, Roanoke Rapids and Gaston Project,” Proposed Articles 414-415, available at Appendix D, p. D-582.
In some recent proceedings, the licensees and other participants have used other methods that focus on how the project affects hydrologic variability, namely, the natural variability in flow across any unit of time (day, week, season, year, or decade). For example, Indices of Hydrologic Alteration (IHA) may be used to evaluate how much each alternative flow release schedule changes the natural hydrologic pattern, including minimum or maximum flows and variability across time. See www.freshwaters.org/tools. IHA and similar methods assume that a flow release schedule that mimics the variability of the natural pattern may reasonably substitute for a limiting factors analysis, which would provide an even more reliable understanding of the probable project impact on each fishery or other resource.
Further, the study plan must address the impacts of the project on passage of riverine or diadromous fish. Typically, NMFS and FWS will determine the scope and method used for this purpose, to assure the adequacy of the record for the Section 18 prescription.
You should coordinate with NMFS and FWS as they develop a study plan request related to fish passage. The licensee will focus only on their requests, given their authority to prescribe. You should focus on helping the agency articulate a management objective for the passage study (e.g., what is the appropriate level of passage, either upstream or downstream, for any migrating fish?).
Wetlands, Riparian, and Littoral Habitat. A study plan addresses how a new license will affect lands both within the project boundary and adjacent. It analyzes whether existing uses of the lands owned or managed by the licensee contribute to any adverse impacts on channel form, such as erosion; and whether alternatives (such as a ramping rate) will mitigate such impacts.
The state agency which will issue water quality certification has lead responsibility to assure the adequacy of the study plan related to water quality, including turbidity, temperature, dissolved oxygen, and other standards. Again, the primary function of a participant is to encourage the agency staff to devote the time necessary for careful review of the licensee's study plan (in the face of many conflicting priorities), and, in any study plan dispute, to insist that the final study plan provide the information necessary to evaluate project impacts on each applicable water quality standard.
Rare, Threatened, and Endangered Species. A study plan will specifically address each federally listed or proposed species of fish, wildlife, or plant, while it may otherwise rely on a “canary in the coal mine” to evaluate project impacts on non-listed species.
Again, your function here is to assist the FWS or NMFS in its preparation or advocacy of a study request related to a listed species, given that the agency with ESA jurisdiction over that species will control the eventual Biological Opinion and thus effectively controls the development of the record which will be the basis for the BO. Bear in mind that the BO will establish conditions to achieve two functions: prevention of take of the listed species, and contribution to species recovery. As a result, you should review the study plan and any responsive study request to assure that it will provide the information needed for both functions.
Recreation and Land Use. A study plan addresses how a new license will affect public recreation on any reservoir and the river downstream. Its scope includes facilities (such as the locations and usage of facilities such as boat ramps or picnic areas) and operation (such as the impacts of alternative minimum flow schedules on reservoir levels and downstream navigability). A typical study plan relies on FERC Form 80, which reports on recreational use under the existing license in 6-year intervals; and surveys of existing users to determine demand (or potential use) of additional facilities or services.11
HRC members routinely participate in the conduct of boating studies, which evaluate the safety and enjoyability of river recreation. In a typical boating study, the licensee arranges for volunteer boaters to run a given reach at different flows and to evaluate safety and enjoyability at each flow. See, e.g., PG& E, “Application for New License, Project No. 2107,” Ex. E, E5 (Dec. 2003) (eLibrary 20031223-0475).
Licensees and participants often disagree about the method or scope of study of economic impacts of river recreation. This dispute is a surrogate for the ultimate issue: how much flow should be dedicated to riverine uses, and how much to generation? Since any prediction of future recreation is somewhat speculative, you should compare the project reach to any comparable rivers in the region, as reference. How much recreation, including boating, angling, and hiking, occur on a reference river? Has the County or other reliable source estimated the economic value of that recreation? How is the project reach alike, or different - can the use and economic benefits of the reference river apply here? See, e.g., Alcoa Power, “Motion to Intervene and Comments, Project No. 2169,” p. 33 (April, 21, 2003) (eLibrary 200304215088).
Aesthetic Resources. FERC regulations require a description of the visual characteristics of the lands and waters affected by the project.12 This includes a description of the dam, natural water features, and other scenic attractions of the project and surrounding vicinity. If the project affects a waterfall, a gorge, or a similar place attractive for its beauty, the licensee may conduct a study to evaluate aesthetic quality at different flows that can lead to license requirements to provide aesthetic flows. Methods rely on user surveys or professional judgment and include on-site or photographic user surveys where recreationists respond to different flows.13
Do not assume that aesthetic impacts are a trivial issue in a licensing proceeding. The beauty of our landscape is a fundamental American value, as recognized in the song, “America the Beautiful.” Further, aesthetic quality is a significant factor in tourism in a watershed. FERC denied a license application on non-economic grounds for the first time in 1953, when the applicant proposed to dewater a waterfall popular in the Twin Cities. See Re Namekagon Hydro Co., 12 FPC ¶ 203 (1953);Namekagon Hydro Co. v. Federal Power Com'n, 216 F.2d 509 (7th Cir. 1954).
Cultural Resources. The study plan addresses how a new license will affect tribal and other historical sites within the project boundary. The licensee identifies known sites, surveys for unknown sites, and analyzes alternative forms of protection of such sites. Pursuant to the National Historic Preservation Act (NHPA),14 the State Historic Preservation Office (SHPO) will review the study plan for adequacy.
You should generally defer to the Tribes in their study requests related to tribal sites. As to other historical sites, focus on whether the study plan adequately evaluates the potential for public education. Often, there is potential for a trail to link a historical site (such as abandoned mining equipment) to a recreational facility.
See 5 U.S.C. § 556(d).
See 16 U.S.C. § 802; 18 C.F.R. §§ 4.41, 4.51, 5.18.
See 18 C.F.R. §§, 4.38(c), 5.15, 16.8(c).
See 16 U.S.C. § 808(c).
See 18 C.F.R. §§ 4.38(c), 5.15, 16.8(c).
See id.
See 18 C.F.R. § 5.13.
See 18 C.F.R. § 5.11.
See 18 C.F.R. §§ 4.38(c), 5.15, 16.8.
See, e.g., DOI, Instream Flow Incremental Methodology: A Primer for IFIM (Mar. 1995), available at www.fort.usgs.gov/products/Publications/2422/2422.pdf.
See 18 C.F.R. § 8.11.
See 18 C.F.R. § 5.6(3)(ix).
See Whittaker, D., B. Shelby, W. Jackson, R. Bescheta, Instream Flows for Recreation: A Handbook on Concepts and Research Methods, National Park Service (1993).
16 U.S.C. §§ 470 et seq. The NHPA establishes as policy that each implementing agency will:
“use measures, including financial and technical assistance to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations; provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments; and administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations ....”
16 U.S.C. § 470-1.
After the licensee implements the study plan, collects the study results, and reports the results to the participants for comment, it will publish a draft license application. The license application will be filed approximately 2.5 years before the expiration of the existing license for review of participants. The application will synthesize relevant information (including study results) into lettered exhibits, which display and analyze the information to describe project design, operation (including capacity, generation, and revenues), and environmental impacts of the proposed new license. There are eight such exhibits, as shown in Table 1.
TABLE 1
LICENSE APPLICATION EXHIBITS
Any participant may submit written evidence into the record. In the event that evidence conflicts with the licensee's, FERC will give weight to the evidence that is most reliable. Thus, a subjective opinion about project impact on a given resource is given less weight than data based on actual observations or measurements. Participants may submit evidence at any time after the NOI. More typically, evidence is submitted in response to the study plan, license application, or environmental document.
HRC members and allies have undertaken a wide variety of studies on ecological, recreational, economic, and other impacts of licenses. We take this initiative in circumstances where the law does not clearly require, or the licensee does to agree to conduct, a particular scope or method of study that we nonetheless believe will contribute value added to the record. Deciding whether to undertake such a study is a balance between cost and value-added. Thus, where a license declines to disclose its hydrologic model, an HRC member may incur the cost of developing its own if it has reason to believe that the independent modeling results are necessary for analysis of alternative flow schedules. For more information on these independent studies, see http://www.hydroreform.org/.
Under the National Environmental Policy Act (NEPA), FERC must publish an environment document to analyze the environmental impacts of any licensing decision that may have a significant impact on environmental quality.1 As a practical matter, FERC publishes such a document in every proceeding for a new or amended license, because there is always dispute or uncertainty about such impacts. The document is intended to assist FERC and other regulatory agencies2 to make rational decisions in the face of such dispute or uncertainty.
NEPA does not change the balance between development and other beneficial uses of the affected lands and waters as required by FPA Part I.3 NEPA does not change the level of protection, mitigation or enhancement of natural resources required by other laws, such as the Clean Water Act. Instead, the environmental document is an essential part of the record that forms the basis of the licensing decision.
Form. An environmental document must be “concise, clear, and to the point,” and supported by “evidence that the agency has made the necessary environmental analyses.”4
The environmental document in a licensing proceeding may be in two forms: an Environmental Assessment (EA) where the new license (including any mitigation or restoration measures) would probably not have a significant impact on environmental quality,5 or an Environmental Impact Statement (EIS), which applies to a decision which probably will have such significant impacts.6 Although the EA tends to be shorter than an EIS both forms cover the same topics: project description, a reasonable range of alternatives for relicensing, a comparison of the impacts of such alternatives, and a recommended decision.7
Early in the licensing process, you should ask FERC to prepare an EIS if you believe that the licensing decision (even including mitigation) may have a significant adverse impact. As stated above, an EIS tends to be more detailed in its articulation of action alternatives and analysis of impacts.
In 90% or more of licensing proceedings, FERC decides to publish an EA. If it does, put aside the fight about form until later in the proceeding. If the final EA finds a significant impact, FERC must prepare a follow-on EIS. Instead, until publication of the final EA, focus on substance - the specific action alternatives that you believe should be included and the method of analysis.
FERC claims to have discretion to: publish a draft EA followed by a final EA, or proceed directly to a final EA. The latter form is cheaper. HRC believes that tends to result in less careful response to comments. If a draft EA is published, FERC responds twice - once, in the final EA, and again, in the licensing order; whereas, if a final EA is published as the totality of NEPA review, it responds only once. The iterative comment-and-response tends to be helpful to FERC and participants alike in narrowing or resolving disputed issues of law and fact. Before FERC decides on the form of the EA, you should state a preference for a draft EA and explain why two rounds of public comment may help resolve issues in this manner.
FERC's Process. After the NOI, FERC's Office of Energy Projects (OEP) issues a Scoping Document for public comment. The scoping document broadly outlines issues to be evaluated in the environmental document. Next, OEP issues a Notice of Readiness for Environmental Analysis (REA) after the application has been filed, once it determines all necessary studies are complete.8 In the ALP, the REA Notice is titled “Notice Requesting Terms and Conditions,” but it has the same function. The REA Notice triggers a 60-day period for submittal of recommended and mandatory conditions, after which OEP proceeds to draft the environmental document.9
OEP staff or a consultant under their supervision drafts the environmental document, 10 relying heavily on the study results and license application. OEP may also ask another public agency with jurisdiction over the licensing decision, including those with authority to prescribe or recommend conditions, to cooperate in the drafting of the environmental document.11 Unfortunately, FERC and other regulatory agencies rarely cooperate in the preparation of the environmental document in a licensing proceeding. This is the result of FERC's interpretation of its ex parte rule (discussed in Section 3.2.2(F) below) to mean that another agency may formally cooperate only if it foregoes its right to participate as a party in the proceeding and appeal any adverse decision.12 As a result, agencies generally decline cooperating agency status, limit themselves to comments on the draft document prepared by FERC, and do not prepare their own document due to budgetary constraints.
FERC must ask for public comment on its environmental document, including an Environmental Assessment that may be published in final form without a prior draft.13 The environmental document must comply with the content requirements and facilitate meaningful comment.14 FERC may prepare and circulate a second document for a further round of public comment, if circumstances (including applicable laws) change substantially after the close of the public comment period.15
FERC must respond to comments in the final environmental document. If the EA was published as a final (without a draft) it will respond to comments in the licensing order. SeeSection 4.5.2 below. FERC may respond by modifying alternatives, including the proposed alternative; adding new alternatives; supplementing or modifying analyses; or explaining why the comments do not warrant further response.16
Mandatory Conditions Review Process (MCRP). The Departments of Commerce and Interior have adopted a review process for their respective mandatory conditions, exclusive of any FPA section 10(a) or (j) recommendations. The policy - proposed to be adopted as a rule - provides that they will file such conditions in preliminary form in response to the REA Notice or, in an ALP, the Notice Requesting Terms and Conditions.17 The filing requests public comments. Each agency will consider comments submitted during any comment period on the NEPA document. Each will submit to FERC modified conditions, taking into account such comments, within 60 days after the NEPA comment period.
Content of Environmental Document. Each environmental document in a licensing proceeding consists of topical sections organized as follows:
Statement of Project Purpose states the purpose or need for the new license.18 In virtually every case, the stated need will be for the generation of electricity for the local or regional service area to which the project is connected.
Proposed Action and Alternatives describes the No-Action Alternative, which is the renewal of any existing license without any modification; the Proposed Action, outlinedin the license application; and other Action Alternatives. These Action Alternatives are the “heart” of the environmental document.19 FERC must “rigorously explore and objectively evaluate all reasonable alternatives...”20 and identify possible environmentalmeasures before approving the license application. The range of Action Alternatives may include project decommissioning in some form that may be necessary for compliance with the Clean Water Act, Endangered Species Act, or other law.
Your comments before and in response to FERC's Scoping Document should identify specific Action Alternatives and explain why they should be included to assure the adequacy of analysis of the Proposed Action. It is not enough to simply restate the duty that FERC consider all reasonable alternatives. Bearing in mind that life (or money) is short, why should FERC consider the specific alternatives that you recommend? For example, assuming that the original license has a 50 cfs minimum flow schedule for protection of a bypass reach, the new license application proposes 100 cfs, and the natural flow in that reach is 800 cfs, you should ask for step analysis between 100 and 800 cfs, and you should explain the specific beneficial uses that may benefit from restoration of a more natural hydrograph.
Environmental Setting describes the existing environmental conditions that are the starting point for comparison of No-Action and Action Alternatives.21 They consist of: (A) the existing conditions of affected resources in the project vicinity considering the existence of the dam and (B) the likely future conditions assuming a continuation ofproject operations, or the No-Action Alternative.22 Current FERC policy is to define “baseline” to be conditions that exist today.23
In the 1990's, the HRC and other participants sought to define the environmental baseline in a relicensing proceeding as the conditions that would exist absent the existing license. This definition was rejected in American Rivers II, which holds that existing conditions in the project area are the baseline for FERC's NEPA review.
The HRC has moved on to a simpler strategy to achieve our restoration objective. FERC has a plain duty to consider past, present, and future cumulative impacts of the proposed action, and the licensee has a duty to undertake feasible measures to “enhance” existing conditions. Thus, if a project has blocked fish passage for 50 years, the baseline for the NEPA document is the separation of upstream and downstream fisheries - but the new license may require construction and operation of a feasible fish ladder if the separation undercuts the future sustainability of the fisheries. Thus, a new license is a “new decision” whether to continue or end this or other continuing impacts caused by the existing license. Confederated Tribes and Bands of the Yakima Indian Nation v. FERC, 746 F.2d 466, 476 (9th Cir. 1984).
You should gather historical evidence of the condition of the natural resources in the project reach before the original license. This evidence, while irrelevant to the baseline for NEPA review, is relevant to the analysis of the restoration potential of the reach. Try to find contemporaneous photographs or eyewitness accounts. Historical libraries and agency repositories are good places to start.
Environmental Impacts analyzes how each Action Alternative will change the baseline for affected resources. It includes: direct impacts (e.g., the discharge of waste from any new construction); indirect impacts (e.g., the public use of any new recreational facility); and cumulative impacts, which are defined “the impacts on the environment which result from the incremental impact of the action when added to other past,present, and reasonably foreseeable future actions regardless of who undertakes the other actions.24 This section identifies any irreversible and irretrievable commitments of resources under the Proposed Action or Action Alternative.25 In a licensing proceeding, this section is typically organized by topics that correspond to the form of the Pre-Application Document or application itself.
Try to parse the baseline to isolate the impacts of the project, as distinct from other facilities and activities. Acknowledge the principle of proportionate responsibility. This is essential to your credibility as well as success. Put in the negative, the licensee and OEP alike will not agree to hold the project responsible for the adverse impacts caused by other facilities and activities.
In Recommended Action, OEP tallies the benefits and costs, to the licensee as well asthe public for the Proposed Action and each alternative action. OEP then recommends an alternative for the Commissioners' approval. The recommended alternative is usually a mix of features of the Action Alternatives, including any mandatoryconditions submitted by other agencies.
A final EA typically does not make specific findings of fact and law as the basis for its recommendation of a Preferred Alternative. Rather, it includes a section entitled, “Developmental Analysis,” which describes the many factors that contribute to the recommendation. If you believe that the basis is unclear, ask specific questions in follow-up comments on the EA. See, e.g., “Request by San Bernardino Valley Audubon Society and California Trout for Rehearing of Order Issuing New License, Mill 2/3 Hydroelectric Project,” at Appendix B, p. B-72.
List of Preparers and Agencies or other Persons Consulted is self-explanatory.26
See 42 U.S.C. § 4332(c).
See 40 C.F.R. § 1502.1.
NEPA's scope has been interpreted primarily in the courts, who have generally declined to read substantive requirements into the Act. See Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 737 (1998) (stating that NEPA “simply guarantees a particular procedure, not a particular result”).
40 C.F.R. §1502.1. See also LaFlamme v. FERC, F.2d 1124, 1128 (9th Cir. 1991).
This finding is named “Finding of No Significant Impact” or FONSI.
See 40 C.F.R. §§ 1501.3, 1501.4.
See 40 C.F.R. § 1502.10.
See 18 C.F.R. § 5.22.
See 18 C.F.R. § 5.23.
See 40 C.F.R. § 1502.9(a). FERC may use a qualified contractor paid for by the licensee to prepare EISs. Third party contractors can be used when the processing schedule is important to the applicant or if the applicant wants FERC to be involved early in the process. FERC has sole responsibility for determining the scope of work, reviewing and approving the work.
See 40 C.F.R. § 1501.6.
See FERC, Licensing Handbook, pp. 2-16.
See 40 C.F.R. § 1502.9 (c), 40 C.F.R. § 1503.1.
See id.
40 C.F.R. § 1502.9(C).
See id.
69 Fed. Reg. 54,602 (Sept. 9, 2004).
See 40 C.F.R. § 1502.13.
40 C.F.R. § 1502.14.
Id.
Council on Environmental Quality, “Considering Cumulative Effects Under the National Environmental Policy Act” (1997), p. 41, available at http://ceq.hss.doe.gov/NEPA/ccenepa/ccenepa.htm.
See id.
American Rivers v. FERC, 187 F.3d 1007 (9th Cir. 1999), as amended, 201 F.3d 1186 (9th Cir. 2000) (American Rivers II).
See 40 C.F.R. § 1508.7.
See 42 U.S.C. § 4332(2)(c).
See 40 C.F.R. § 1508.10.
Once the licensing proceeding starts, FERC staff may only communicate with the licensee or any other participant in a public manner (e.g., at a public meeting or a written document served to the service list (as discussed in Section 3.2.2(F) and 3.2.4(C)). This ex parte rule means that FERC may only communicate with the licensee or other participants “on the record.” It cannot have a non-public meeting or conference calls or consider a non-public written submittal by a participant, on the merits of the proceeding.1 In short, a participant may not privately seek to persuade FERC to favor its evidence or opinion on a disputed factual issue.2 This rule assures fairness and transparency in the development of the record that FERC will use for its decision.3
The ex parte rule does not apply when the NOI is filed. That is because FERC does not formally deem the relicensing proceeding to begin as a result of the NOI. Instead, it applies when the license application is filed, because that step means that FERC is compelled to make a decision.4 Up until that step, it is theoretically possible that the licensee would not perfect a license application. Sections 4-6 flag when the rule applies in the three forms of process.
There are several important exceptions to the ex parte rule's requirement that any communication with assigned FERC staff must be on the record. The rule does not prohibit off-the-record communications: (A) related solely to the procedure; (B) to or from FERC staff who have formally been recused from participating in the Commission's decision; (C) to or from a cooperating agency that has regulatory responsibilities, i.e., cooperating agencies; (D) related to any emergency concerning a facility regulated by FERC, or (E) made pursuant to a written agreement among all parties which has been approved by FERC.5
G. Accessing the Record in Electronic Databases
FERC maintains a public record of all filed documents that relate to each project. FERC has established an eLibrary and related services that make all documents filed since 1989 available over the internet. FERC also operates a Public Reference Room, including public computers, for walk-in visitors.6 Traditionally, the record of a licensing proceeding (other than final order) has been available only in paper form to such walk-in visitors or by mail through a copy service.
Written Request. If you do not have access to a computer, or if the specific record you need is not on the eLibrary, you may mail a written Request for Record to:
Public Reference Room
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426.
The request must identify the document by date, docket and any sub-docket number, and any accession number. You may also go to the Public Reference Room and submit such a request in person.
eLibrary. This database contains: (A) an index of all documents filed about a project, regardless of date, including a unique accession number for each document; and (B) scanned images of most documents filed since 1989, downloadable in .pdf or Word format. eLibrary is accessible without prior registration at www.ferc.gov/docs-filing/eLibrary.asp.
The search logic is straightforward. First, enter the docket number for the project and any date range. The docket number is the unique identification assigned by FERC's Office of Secretary to a project, expressed in the form of P-XX where “P” means “hydropower project” (as distinct from gas and other facilities under FERC's jurisdiction), and “XX” is the unique number (between one and five digits) assigned to a given project.7 You may narrow the search by specifying author or type of document. See www.ferc.gov/docs-filing/eLibrary/tips.asp.
eSubscription. eSubscription permits any registered user to receive e-mail notice whenever a filing related to a project is made. This supplements service of a paper copy of any filing. See www.ferc.gov/docs-filing/esubscription.asp.
eRegistration. A person must register name, address, user and password in order to enter an eSubscription or make an eFiling. See www.ferc.gov/docs-filing/eregistration.asp.
H. Limitations on Access to the Record:
Critical Energy Infrastructure Information
Some project information is deemed non-public. In 2003 FERC created a restricted category, Critical Energy Infrastructure Information (CEII). Information may be classified as CEII if it relates to the production, generation, transmission or distribution of energy; provides strategic information beyond location of the critical infrastructure; or could be used in attack on critical infrastructure. CEII is exempt from mandatory public disclosure under the Freedom of Information Act. In order to obtain CEII you must submit a request to the CEII Coordinator at FERC.8 Instructions for making such a request are available at http://www.ferc.gov/help/filing-guide/ceii-request.asp.
The licensee, not FERC, decides what should be designated CEII. If you feel like information designated CEII should be available to the public, contact FERC and tell them so.
See 18 C.F.R. § 385.2201.
See id.
See id.
See id.
See id.
FERC, Customer Service Levels (2004), available at www.ferc.gov/help/pub-ref-rm/cust-serv-levs.asp.
The numbers are assigned sequentially, in order of application. Current applications have five digits.
A licensing proceeding runs on a clock. Certain deadlines have been established by statute, and a participant must meet them or lose associated rights. There are four such deadlines in a typical proceeding. The licensee must file a Notice of Intent (NOI) 5 years before expiration of the existing license1 (Section 3.2.1) and its application for new license 2 years before such expiration (Section 3.2.2(B)).2 A rehearing request must be filed within 30 days of the final licensing order (Section 3.2.5), and the petition for judicial review must be filed within 60 days of FERC's rehearing decision (Section 3.2.7).3
Other deadlines are set by federal regulations as published in the Code of Federal Regulations 4 (e.g., 18 C.F.R. Part 5 for the ILP). FERC may also issue “letter orders” in normal course of the proceeding. For example, after the submittal of an application, FERC will publish a notice establishing expeditious procedures for relicensing and a deadline for submission of final amendments, if any, to the application.5
FERC often provides a specific date on which to submit comments. A deadline is typically stated as “X days from today's date,” rather than as the actual date when the deadline runs. You calculate the actual due date as follows. Under FERC's Rule of Practice and Procedure number 2007, the clock starts the day after the initiating event.6 For example, if you decide to seek rehearing of a license issued on Tuesday, May 4, any rehearing request is due 30 days thereafter. So the clock starts on May 5, the day after the final order issues, and the rehearing request is due 30 days from May 5, or June 3. If the due date falls on a weekend or holiday, the due date is the next business day.7
See 16 U.S.C. § 808(b)(1).
See 16 U.S.C. § 808(c)(1).
See 16 U.S.C. § 825l.
The Code of Federal Regulations (CFR) is the compilation of all rules published by the executive departments and agencies of the U.S. Rules implement statutes by converting the more general language into the more specific. Thus, while the FPA Part I establishes 4 deadlines applicable to any licensing process, the ILP includes nearly 20 more, based on FERC's experience how best to run its train on time.
See 18 C.F.R. § 5.19.
18 C.F.R. § 385.2007.
See id.
FERC will issue a license only after public notice and hearing. The NOI and all other notices issued by FERC in a proceeding are published in eLibrary and served on the service list of interested parties. See Section 3.2.2. The hearing takes two forms: distribution of pleadings and other documents to the service list, or an actual hearing on disputed factual issues before an Administrative Law Judge. The latter form of hearing includes testimony and cross-examination of witnesses, just like a court hearing. With few exceptions, FERC only offers the paper hearing as the basis for a licensing decision, because of the substantial costs and delays associated with a hearing before an ALJ. We describe below the minimum requirements for comments, motions, and other pleadings in a paper hearing.
The FPA requires that a licensee must consult with agencies and other participants, from the NOI through the filing of the license application.1 This reduces the risk that significant issues will be raised for the first time in pleadings filed by participants. More positively, it ensures that the licensee understands the interests of other participants, regardless of whether they agree.
16 U.S.C. § 808(c)(1).
Types of Filing. There are many different types of filings. An application is the request for a license, in the form prescribed by Rule 204 and 18 C.F.R. Part 4, 5, or 16. A comment is a response to another filing. Under Rule 212, a motion is a request for an interlocutory order (e.g., to intervene, require a particular study, or resolve a study dispute) preparatory to the final decision. Under Rule 207, a petition is appropriate to seek a declaratory order, as described below. Under Rule 206, a complaint alleges that a licensee is violating a license, rule, or order. Under Rule 713, a request for rehearing is an administrative appeal for FERC's licensing order.
Format. The Rules of Practice and Procedure establish minimum format requirements applicable to all filings except an application, which is subject to special requirements.
A filing must be on 8.5 x 11 inch paper. It must have a 1.5-inch left margin.1 It must be typewritten or otherwise legible.2 It must begin with the caption that identifies the docket (e.g., the project number and any sub-docket).3 It must include a heading that describes its purpose (e.g., “Comments on New License Application”).4 It must then state relevant facts and law including citations.5 It must be signed.6 Signing verifies that contents are true to the signer's knowledge, and that the signer (if not representing him or herself) has authority to represent the party on whose behalf the filing is made.7
Submittal. You may submit a pleading to FERC in paper form (by mail or hand-delivery to the Office of Secretary) or in electronic form.8 In paper form, you must submit the original and eight identical copies to:
Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426.9
Electronic filing is now the preferred form of filing. It is cheaper, since paper copies are unnecessary. It is more reliable, since you immediately receive a confirmation of receipt. The Secretary strongly prefers it, because it creates a record in eLibrary without the necessity of a post-filing scan.
The eFiling system has an easy sequence of steps. After completing a one-time registration (name, address, telephone number, and email address) via eRegistration, you go to www.ferc.gov/docs-filing/efiling.asp. You log on, identify the party on whose behalf the filing is made, identify the docket and type of document, and then enter the document title. Next, you upload the document in Word or .pdf format. A file name must not contain any spaces or characters other than letters or numbers and must be limited to 25 characters. The file must be 10 MB or less in size; if your filing includes graphics, it may be broken into several parts for eFiling. It is unnecessary to sign an e-filed document, since the log-on substitutes for signature.10 Finally, you confirm that you intend to complete the filing, and you press “done.” FERC emails to the filer a Notice of Acknowledgement immediately after the eFiling. After the eFiling system converts the file to a .pdf, FERC sends a Notice of Receipt and asks for confirmation of the format, which is optional. Finally, FERC emails a Notice of Acceptance once the Secretary determines that the pleading is in the proper form. If it is not in the proper form, the Secretary may respond with a Notice of Rejection. The Notice of Acceptance or Rejection typically issues within a few business hours of the filing.
To be timely, a filing (whether in paper or electronic form) must be received by the Secretary not later than 5 p.m. EST on the due date.11 We add two notes of caution. First, receipt by the Secretary, not postmark, determines timeliness of a paper filing. Second, the filer takes the risk of delay by the Post Office or FedEx, or the occasional failure of its own ISP or FERC's eFiling system. You should not wait until the last minute to make a filing which, by statute, must be received by the due date (e.g., a rehearing request), since FERC will not excuse late filing even if you are not at fault.
Service. The filer must serve each pleading on the service list maintained by the Secretary.12 Service is by email through eSubscription, unless: (A) a proceeding commenced before March 21, 2005 and a given party is not so subscribed or (B) the parties agree to use mail, fax, or other means of delivery.13 Filing with FERC does not constitute service on the service list.
The Secretary maintains a service list for each proceeding. This is a list of persons who have intervened and become parties (see Section 3.2.4 (C) below) and of other persons who by statute or otherwise are entitled to receive service in a proceeding. The service list includes name, address, and party represented. The service list for any proceeding is available at http://ferconline.ferc.gov/MailListLORreq.aspx. Each pleading must include a declaration of service by the filer, in the following form: “I hereby certify that I have today served the [document title] upon each person designated on the official service list for this proceeding.”14 See Appendix C for a sample declaration of service.
See 18 C.F.R. § 385.2003.
See id.
See 18 C.F.R. § 385.2002.
See id.
See 18 C.F.R. § 385.2003.
See 18 C.F.R. § 385.2005.
See id.
See 18 C.F.R. § 385.2001.
See id.
See 18 C.F.R. § 385.2005.
See 18 C.F.R. § 385.2001.
See 18 C.F.R. § 385.2010.
See id.
See id.
While the licensee is a necessary party in every licensing proceeding, any other person who shows a direct interest in the outcome of the proceeding may intervene to become a party.1 For example, a membership organization has a direct interest if its members use the affected lands and waters.2
Why intervene? A person may file comments in a licensing proceeding without becoming a party. An intervener, however, has two fundamental rights: (1) it will be served with all of the documents that are filed in the proceeding, because the intervenor will be included in the service list (see above), and (2) it may file a motion or, on final decision, seek rehearing or judicial review.3 While a non-party may now use eSubscription as a substitute for being on the service list, it may not file a motion or, more importantly, may not seek rehearing or judicial review of the final decision.
HRC recommends timely intervention by each participant interested in a project. There is no down-side, other than the receipt of potentially voluminous documents in the event you later lose interest. In that event, you may withdraw from party status and the service list. By contrast, if you do not timely intervene and later move for late intervention, FERC has discretion to deny your motion, in which event you have forfeited the right to seek rehearing or judicial review. In order to ensure that the Commission's ex parte rules apply to a proceeding (see Section 3.2.2(F)) participants should file their intervention in opposition. In order to avoid appearing as a reactionary or obstacle, participants may wish to state their opposition as, “as long as the following goes unaddressed, we oppose the application.”
Format. You file a type of pleading called a motion to intervene. The motion includes the heading, “Motion to Intervene by [your name],” which must describe your interest in the proceeding, such as your ownership of adjacent land or your (our your member's) use of the affected lands and waters for recreation. See Appendix C for an example.
An intervention may be neutral or take a position on the license application. For example, clearly state you oppose the issuance of the preliminary permit, license, or exemption or that you do not oppose approval of the application on the condition that certain terms and conditions are included in the preliminary permit, license, or exemption.
Timeliness. You may file a motion to intervene once FERC has accepted the relevant application (e.g., new license, permit, or exemption). For example, in the ILP process motions to intervene are appropriate after the formal application is filed (see Section 4.2.2). FERC publishes a notice of acceptance of such application, once it determines the application is in the proper form, and that notice sets the deadline for intervention. eSubscription to that proceeding is the simplest method to assure that you receive that notice. If FERC prepares an Environmental Impact Statement (EIS), it permits a second round of intervention during the public comment period on the draft.4
If timely filed, your motion will be granted automatically unless another party opposes your motion.5 If another party opposes your motion or your motion is not filed on time, you will become a party only when FERC expressly grants your motion.6
If you miss the deadline for filing a timely motion to intervene, you may still file a motion for late intervention.7 The motion must state that: (A) you have good cause for filing late; (B) your intervention will not disrupt the proceeding or cause prejudice to existing parties; and (C) other parties may not adequately represent your interests. FERC must affirmatively grant any such motion. The odds are inversely proportional to the delay: a late motion filed just after the due date will be approved, while a motion filed after the licensing decision (e.g., to support a rehearing request) will probably be rejected.
See 18 C.F.R. § 385.214(a).
In some cases the organization may wish to provide declarations from members to demonstrate its standing. Declarations by members can also be used to support factual claims made in the motion to intervene or other filings. A sample declaration is provided in Appendix C.
See id.
See 18 C.F.R. § 380.10.
See id.
See id.
See 18 C.F.R. § 385.214(d).
If FERC staff make a decision that would cause irreparable harm to your interests, you may request the Commission review the decision, as interlocutory relief.
As a general matter, OEP Director and staff conduct a “paper hearing” in a relicensing proceeding. They make all decisions - such as whether to accept an application as adequate, or how to resolve a study plan dispute - through the issuance of written decisions prior to the licensing order. Interlocutory relief against such non-final decisions may take the form of a “Motion for Interlocutory Relief,”1 or in the alternative, “Petition for Declaratory Order.”
Motion for Interlocutory Relief. The motion must be made within 15 days of the disputed ruling and must state why prompt Commission review is necessary to prevent detriment to the public interest or irreparable harm to any person.2 While other parties may answer, the presiding officer3 is not required to consider answers in issuing its determination.4 A presiding officer must issue an order, orally or in writing, containing a decision on appeal, and provide the date of the action taken.5
If an appeal is granted, the presiding officer will send forward to the Commission a memorandum that sets forth the relevant issues and an explanation of the rulings on the issues, and participant's motion and any answer.6 Any decision to grant appeal will not suspend the proceeding unless otherwise ordered by the presiding officer or Motions Commissioner.7
If the presiding officer does not issue an order within 15 days, the appeal is deemed denied.8 If the appeal is denied, the participant may appeal the decision to the Motions Commissioner within seven days of the denial.9 The appeal must state why prompt review by the Commission is necessary to prevent detriment to the public interest or irreparable harm to any person, and must include a copy of the written order denying appeal, or a copy of the transcript of the oral order.10 If the Motions Commissioner makes no determination within seven days of the date the original motion for interlocutory appeal is denied, the appeal of the presiding officer's denial also will be deemed denied.11 Unless the Commission acts on an appeal permitted by a presiding officer or Motions Commissioner within 15 days after the date on which the appeal is granted, the contested ruling of the presiding officer will be reviewed in the ordinary course of the proceeding as if the appeal had not been made.12
Petition for Declaratory Order. A participant may petition for a declaratory order to end a dispute before the final decision, such as a dispute about whether a study plan complies with applicable requirements. In effect, such a petition moves the issue to the head of the queue and obliges the Commission to make a decision before the final decision (namely, whether to grant or deny the license application). The normal fee of $ 19,040, which is charged in natural gas and other non-hydropower proceedings, is waived in licensing proceedings.13
HRC recommends that you seek interlocutory relief only in extraordinary circumstance and not when you have a run-of-mill dispute with OEP staff. Such a request seeks special attention from Commissioners, who typically have dozens of final decisions on the agenda for each meeting. Commissioners will not look favorably on an unnecessary request, and they may remember the requestor as “Peter and the Wolf.” You may wish to seek interlocutory relief if, for example, OEP denies a study request which you believe to be critical to the outcome of the proceeding.
See 18 C.F.R. § 385.715(a)-(b).
See id.
Rule 715 assumes that the matter has been assigned to a hearing before an ALJ. For a notice-and-comment hearing, the Office Director functions as the presiding officer.
See 18 C.F.R. § 385.715(b).
See id.
See id.
See 18 C.F.R. § 385.715(e).
See 18 C.F.R. § 385.715(b).
See 18 C.F.R. § 385.715(c). 'Motions Commissioner' means the Chairman or a member of the Commission designated by the Chairman to rule on motions to permit interlocutory appeal. Id. A participant appealing the presiding officer's denial of interlocutory appeal must serve a separate copy of the appeal on the Motions Commissioner by Express Mail or hand delivery. See id.
See id.
See id.
See 18 C.F.R. § 385.715(d).
See www.ferc.gov/industries/hydropower/gen-info/jur-deter.asp.
A party may request rehearing of any final order in a relicensing proceeding, including issuance or denial of a new license. Rehearing is an administrative appeal1 - a final opportunity to persuade the Commission to decide a disputed issue in a particular way. It also is a precondition to judicial review.
Format. This pleading must include the title, “Request for Rehearing of [title of challenged order].” It must comply with the standard format requirements for any pleading.
Contents. Any request for rehearing must identify the alleged error of fact or law in the final decision. It must show that the decision is either not supported by substantial evidence in the record or is an “arbitrary and capricious” exercise of FERC's legal authorities. It must state the grounds for rehearing with specificity, including citations to evidence, statutes, or cases. It may rely on new evidence not otherwise in the record only if the evidence was not available prior to the final decision.2 It must state the relief requested, which may range from voiding to modifying the disputed decision. Appendix C includes a sample rehearing request.
Scope. The rehearing request may address any disputed issue in the final decision. Rehearing of a licensing order thus may challenge (A) the decision to issue the license (rather than deny it) or (B) the individual articles. While FPA section 313, 16 U.S.C. 825l, requires a rehearing request as a precondition for judicial review, FERC will not grant rehearing of (or modify) any license article prescribed by another agency under FPA section 4(e) or 18, CWA section 401, or the ESA, absent the consent of the prescribing agency, since it does not have jurisdiction to grant such relief. In that event, the party files the rehearing request to preserve its right to judicial review.
Timeliness. A rehearing request must be filed not later than 30 days after the issuance of the final decision or order.3
Answer. Answer is not permitted to a rehearing request.4 In response to a rehearing request, FERC may permit briefing or oral argument on one or more issues raised by the request.5
Rehearing Decision. The Commissioners, not OEP staff, will decide a rehearing request challenging a new license. FPA section 313(a) requires a decision within 30 days of filing. Thus, a request is deemed denied if not granted within 30 days.6 Before that deadline, FERC typically issues an order, entitled “Order Granting Rehearing For Further Consideration,” which tolls the statutory clock. That tolling order simply means that FERC is still considering the merits of the request. It specifies when FERC expects to make a decision on the merits, ranging from a few months to a few years. On the merits, FERC may grant rehearing, in which event the challenged order is remanded for further proceeding, or deny rehearing. If the denial is based on new grounds, then the party may file a subsequent rehearing request limited to those grounds.
You must seek rehearing in order to obtain judicial review. You should approach both steps with the same questions in mind. First, does FERC have substantial evidence in support of its licensing decision? Second, does the decision comply with the legal requirements for the protection, mitigation, and enhancement of affected natural resources?
Rehearing is not an opportunity to reargue reasonable differences of opinion, since the law requires deference to FERC's in matters within its jurisdiction. Rather, it is the opportunity to argue that FERC missed critical evidence, or did not squarely comply with legal requirements, which instead favor another Action Alternative.
The form of a rehearing request may be simple or complex. Contrast “Petition by Catherine D. Boretos and America Rivers, Inc. for Rehearing, Turnbridge Mill Project,” available at Appendix B, p. B-318 and “Request by San Bernardino Valley Audubon Society and California Trout for Rehearing of Order Issuing New License, Mill 2/3 Hydroelectric Project,” available at Appendix B, p. B-72. Simpler is better, unless you dispute complex issues of fact or law. Focus on the primary deficiencies, and do not worry over trivial issues. Do not introduce new evidence (e.g., evidence which post-dates the licensing order), unless you have a good reason for not offering the evidence in a timely manner.
18 C.F.R. § 385.713(b).
18 C.F.R. § 385.713(c).
18 C.F.R. § 385.713(b).
18 C.F.R. § 385.713(d).
See id.
See 18 C.F.R. § 385.713(f).
Federal agencies including USFS, FWS, and NMFS currently do not have any procedure for administrative appeal or rehearing of the mandatory conditions they respectively issue. Thus, if a party objects to such a condition when final, it may not obtain rehearing directly from the prescribing agency. While it may include the objection in a rehearing request before FERC, no relief may be granted, because FERC does not have jurisdiction to hear the objection absent the consent of the prescribing agency. Thus, the objecting party is limited to judicial review of the mandatory condition prescribed by an agency other than FERC. As of publication of this Toolkit edition, DOI has proposed to codify the MCRP and add an appeal procedure for its FPA section 4(e) or 18 conditions, 1 NMFS has proposed to codify the MRCP and not establish appeal procedures, 2 and the FS recently rescinded its appeal procedures.3
In turn, each state has its own written procedures for water quality certification for hydropower and other projects subject to CWA section 401(a). Such procedures typically include some form of administrative hearing, appeal, or rehearing of a certification. Compliance with those procedures is a precondition to any judicial review in state court.
Rehearing strategy is the same before other agencies.
See 69 Fed. Reg. 54,602 (Sept. 9, 2004).
See 69 Fed. Reg. 54,615 (Sept. 9, 2004).
See 68 Fed. Reg. 33,582 (June 4, 2003).
Any party dissatisfied with FERC's rehearing decision may petition for judicial review in the U.S. Court of Appeals for the D.C. Circuit or the Circuit where the project is located. A party seeking judicial review must have raised all such claims and supporting arguments in a rehearing request,1 since the Court is otherwise barred from hearing them.2 This is a strict requirement to assure exhaustion of any administrative remedy.3
Format. The petition must follow judicial form for pleading. Appendix B includes a sample petition, although the details of such form are beyond the scope of this Toolkit.
Content. The petition must identify the challenged order and the specific errors of fact or law that are challenged. As in a rehearing request, the petition must allege that the decision is not supported by substantial evidence in the record or is arbitrary and capricious.4 Unlike a rehearing request, the petition itself is a short form and does not make argument in support of its claims
Scope. A petition may challenge: (1) FERC's decision to grant or deny a new license, or (2) specific articles prescribed by FERC or by another federal agency under FPA section 4(e) or 18 or the ESA. Judicial review of water quality certification issued by the State probably lies in state court, not the U.S. Court of Appeals.5
Timeliness. A petition for judicial review must be filed within 60 days of the rehearing decision.
Given the expense and risk of adverse precedent, you should appeal only if you have a very significant grievance. FERC has won 75% or more of the appeals of licensing decisions, given that courts properly defer to its expertise and judgment. While specific strategy for judicial review is beyond the scope of this Toolkit, we underscore the general strategy - make your maximum effort before FERC.
See 16 U.S.C. § 825l(b).
See id. See also Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 876 F.2d 109, 113 (Platte River II) (“Parties seeking review of FERC orders must themselves raise in that petition all of the objections urged on appeal.”).
Platte River II, 876 F.2d 109, 112-13.
See Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).
See 33 U.S.C. § 1341(a)(1).