4 Integrated Licensing Process

Adopted in 2003,1 the Integrated Licensing Process (ILP) integrates the development of license application and environmental review, and it coordinates FERC and other regulatory agencies that undertake such environmental review. A licensee may voluntarily use the ILP now. After July 23, 2005, the ILP will be the default process and a licensee will be required to request authorization to use the TLP or ALP at the same time it files its Notice of Intent.2 After that date, FERC will grant a request to use the TLP or ALP only if the licensee shows “good cause.”3

 

Why Develop a New Licensing Process?

Hydropower regulation before the ILP was relatively efficient, by comparison to other federal regulatory programs for energy and other goods and services in interstate commerce. FERC now tends to make relicensing decisions on time, relatively few such decisions are appealed to court, and most participants believe that FERC today is doing a reasonably fair job of balancing energy and environmental quality. So why did FERC adopt the ILP, and why will the ILP become the default process?

FPA Part I mandates minimum steps for a licensing proceeding. Nonetheless, the statute leaves considerable discretion regarding how FERC, licensee and other participants contribute to the development of the record of project impact necessary for a licensing decision. The TLP and even ALP have tended to suffer from recurring process inefficiencies, including running disputes between FERC and other agencies over the boundaries between their respective jurisdictions. As a result, certain participants, including the HRC and the National Hydropower Association, formed the National Review Group (1998-2002), which developed joint recommendations for administrative reform. Federal agencies formed the Interagency Task Force (1999-2001) for the same purpose. FERC initiated the ILP rulemaking in response to these recommendations. The ILP implements solutions recommended by the HRC and other participants to correct five routine inefficiencies of the ALP and TLP.

First, under the ILP, the Notice of Intent will include a Pre-Application Document that compiles existing information about project impacts on hydrology and other natural resources. The licensee today does not publish such information when it files the NOI and instead fully discloses it in the license application published nearly three years later. So, prior to such application and when the study plan is being developed, other participants may not know what existing information is available and thus may demand studies that the licensee considers to be unnecessary.4

 

Second, the Office of Energy Projects will start NEPA scoping within 60 days of the NOI in order to assure the consistency of the study plan and the environmental review. Today, FERC tends to start scoping for environmental review after the submittal of the license application - years after the development and implementation of the study plan. This creates a substantial risk that issues that may prove to be material to the licensing decision have not been adequately studied by the licensee.

Third, under the ILP, FERC and other agencies will deliberately explore and implement arrangements for cooperation in the preparation of the environmental document. Such cooperation will begin before the study plan is drafted. FERC and other regulatory agencies rarely cooperate today in the preparation of the environmental document that serves as the basis for their respective decisions in a given proceeding. As discussed above, FERC interprets its ex parte rule to provide that another agency may formally cooperate only if it foregoes its right to participate as a party. As a result, other agencies generally decline that status, limit themselves to comments on the draft prepared by OEP, and in turn do not prepare their own document due to budgetary constraints. FERC and the agencies tend to have a running dispute whether FERC's environmental document provides the record necessary for their decisions in that proceeding.

Fourth, the ILP establishes specific criteria for each study request and the licensee's response, including nexus to project impacts and cost-effectiveness compared to an alternative study method. It establishes a mandatory procedure to resolve any study dispute between the licensee and any agency with mandatory conditioning authority. A panel of three members (OEP, disputing agency, and a neutral) will undertake a peer review whether a particular study complies with the stated criteria. Under the TLP or ALP, the licensee may reject a study request that it considers not to be “reasonably necessary” for the licensing decision. The dispute resolution procedure (namely, referral to the OEP Director) is both voluntary and non-binding, and is rarely used. As a result, unresolved disputes about the study plan are carried forward in the form of challenges to the adequacy of the license application or environmental document.

Finally, under the ILP, FERC will publish draft license articles in any draft environmental document, in order to permit early analysis of whether its articles and other draft conditions are consistent. While the license application today contains the licensee's recommended mitigation and enhancement measures and other participants submit theirs in response to the REA notice before the publication of the environmental document, FERC does not disclose its license articles until the final licensing decision. As a result, FERC and other agencies tend to recognize conflicts between their respective conditions only when it is too late, namely, when rehearing preparatory to judicial review is underway.

Structure of ILP Process

The ILP has five functional stages: Notice of Intent (Section 4.1), Study Plan Development and NEPA Scoping (Section 4.2), Implementation of Study Plan (Section 4.3), Preliminary Licensing Proposal and Application (Section 4.4), and Review of Application and Final Decision (Section 4.5). These stages consist of 24 discrete steps as shown in the diagram below. The steps are shown in the attached diagram.


FIGURE 1

INTEGRATED LICENSING PROCESS (ILP)

The ILP runs on a strict clock. All of the steps are subject to deadlines established by the rule, unless modified with FERC's permission. The first step, the Notice of Intent initiates the process and must occur sometime between 5.5 and 5 years prior to the expiration of the existing license. Each subsequent step is relative to the prior step. Deadlines for the entire process will therefore be determined once the NOI is issued. Below, we show below the timing for each step, relative to the prior step.


TABLE 2

TIMING OF ILP STEPS

Step Number

Step Description

Time (Relative To Prior Step, Unless Otherwise Indicated)

Step 1

Notice of Intent (NOI) and Pre-Application Document (PAD), Request to use TLP or ALP

5-5.5 years before license expiration

Step 2a

Initial Tribal Consultation

30 days after Step 1

Step 2b

Comments on Request to use TLP or ALP, if requested

30 days after Step 1

Step 3

Notice of Commencement (NOC) and Scoping Document 1 (SD1), Commission Decision on use of TLP or ALP

60 days after Step 1

Step 4

Scoping meeting/Site visit

30 days after Step 3

Step 5

Comments on PAD and SD1, Study Requests

60 days after Step 3

Step 6

Proposed Study Plan, Commission Issues Scoping Document 2 (SD2), if necessary

45 days after Step 5

Step 7

Study Plan Meeting

30 days after Step 6

Step 8

Comments on Study Plan

90 days after Step 6

Step 9a

Revised Study Plan for Commission Approval

30 days after Step 8

Step 9b

Agency Comments on Revised Study Plan

15 days after Step 9a

Step 10

Study Plan Determination

30 days after Step 9a

Step 11a

No disputes are filed or Notice of Study Dispute is file

Proceed to Step 14 within 20 days

Step 11b

Mandatory Conditioning Agencies File Notice of Study Disputes

20 days after Step 10

Step 12a

Study Dispute Resolution Process Initiated

  

Step 12b

Selection of Study Dispute Panel

20 days after Step 11b

Step 12c

Dispute Resolution/Panel Recommendation

50 days after Step 11b

Step 13

Determination on Study Dispute

70 days after Step 11b

Step 14a

First Season Studies; Initial Study Report

pursuant to approved study plan, or no later than one year after study plan approved

Step 14b

Study Meeting

15 days

Step 14c

Meeting Summary

15 days

Step 14d

Disagreement with Meeting Summary

30 days

Step 14e

Responses to Disagreements with Meeting Summary

30 days

Step 14f

FERC Resolution of Disagreement; Amendment of Study Plan if appropriate

30 days

Step 15

Second Season of Studies, and Updated Study Report

pursuant to approved study plan, or no later than two years after study plan approved

Step 16

Applicant's Preliminary Licensing Proposal

no later than 150 days before application

Step 17

Comments on Applicant's Preliminary Licensing Proposal; Additional Study Requests

90 days

Step 18 (post-filing activity)

License Application

no later than two years before expiration of applicant's license

Step 19a

Public Notice of Application

14 days

Step 19b

FERC Decision on Outstanding Requests for Additional Information (AIR)

30 days after Step 18

Step 19c

Satisfaction of AIR

90 days after Step 18

Step 20

Notice of Acceptance and Ready for Environmental Analysis (REA)

60 days after Step 19a

after satisfaction of AIR, etc. (30 days after License Application, or longer)

Step 21a

Comments on REA; Interventions; Preliminary Terms and Conditions; Applicant files for Water Quality Certification

60 days

Step 21b

Reply to Comments on REA

45 days

Step 22a

FERC issues non-draft Environmental Assessment (EA)

120 days after Step 21a

Step 22b

FERC Issues draft EA or draft EIS

180 days after Step 21a

Step 23a

Comments on non-draft EA

30-45 days after Step 22a

Step 23b

Comments on draft EA or draft EIS

30-60 days after Step 22b

Step 24

Modified Terms and Conditions

60 days after Step 23a or 23b

Step 25

Commission Issues Final EA or EIS

90 days

Step 26

Final License Order

upon completion of all previous Steps

 


  1. See 104 FERC ¶ 61,109 (2003).

  2. See 18 C.F.R. § 5.3(a)-(b). The contents for a request for authorization are provided in sections 5.3(b)-(f).

  3. See 18 C.F.R. § 5.3(e).

  4. As of July 23, 2005, the PAD will also be required of any subsequent TLP or ALP.

4.1 Notice of Intent (NOI)

At least five years before expiration of an existing license, 1 an existing licensee2 must file a Notice of Intent (NOI) to renew its FERC operating license. This notice must state the licensee's intent for the project's future, commit to follow the ILP unless the licensee requests and FERC grants permission to use the ALP or TLP, and include a Pre-Application Document which compiles all reasonably available information about the project and its impacts under the existing license.3

 

In addition to such filing, the NOI must be published in newspapers and distributed directly to agencies, tribes, and other likely participants.4

 

Unless you have notified FERC and the licensee of your interest in the project, you will not receive notice of the NOI and PAD. Once the NOI is issued, the clock starts ticking and there is only a limited time for review of certain documents. Since the licensee may issue the NOI and PAD anytime during the six month period (between 5.5 and 5 years prior to the license expiration, we recommend that you contact the licensee more than 5.5 years prior to state your interest in the proceeding. Ask whether the licensee is interested in collaboration with you and other participants in the preparation of the PAD. Ask to be included in the mailing list for any further consultation or notice, and enter an eSubscription for the project.

  1. See 18 C.F.R. § 5.5(d). The notice may be provided up to 5.5 years in advance.

  2. A potential applicant other than the existing licensee should file an NOI only if FERC issues a public notice soliciting applications because of a lack of acceptable applications. See 18 C.F.R. § 16.24.

  3. See id.

  4. 18 C.F.R. §§ 5.3(d)(1)-(2), 5.5(c).


4.1.1 Process Selection

After July 23, 2005, the NOI must state whether the licensee will use the ILP or instead requests permission to use the TLP or ALP.1 A request must explain why the licensee believes that the other process is preferable to the ILP in the specific circumstances of the project. As to the TLP, the request must address five criteria, essentially going to the question: will the other process result in less cost, delay, or controversy? A request for the ALP must address two criteria: does a consensus among likely participants exist in favor of the ALP, and have they adopted a communications protocol?2 The NOI must demonstrate that the licensee has consulted with agencies, tribes, and other likely participants regarding process request.3 It must notify that they may comment on the request to FERC within 30 days of the NOI. Any such comments must apply the same criteria.4

 

The process selection is critical. Through the Pre-Application Document (discussed in Section 4.1.2,), the licensee proposes a general process (ILP, TLP, or ALP) as well as implementing details (such as the date for each step) for comment. You should file comments, whether you agree or disagree with the licensee's proposed process and schedule. If you disagree, propose specific alternatives and explain why they are more likely to resolve disputes that may arise in the proceeding. See Section 4.2.5 for specific strategy.

  1. 18 C.F.R. § 5.3(c).

  2. The specific criteria are stated at id., §§ (1)-(2).

  3. Id.

  4. 18 C.F.R. § 5.3(d).


4.1.2 Pre-Application Document

The Pre-Application Document (PAD) compiles all existing information about project facilities, operation, and known or potential impacts on environmental quality, including protection, mitigation, and enhancement measures. 1 Adopted in the ILP, the PAD is required in the TLP and ALP, starting July 2005. Because it is now a common element of all processes, we discuss it in Section 3.2.2(A).

 

  1. See 18 C.F.R. § 5.6(c). The topical requirements are stated at 18 C.F.R. § 5.6(d)(2).


4.2 Study Plan Development and NEPA Scoping

The licensee will develop a study plan in consultation with agencies, tribes, and other participants that describes how it will gather new information required to draft the license application. On a parallel track, FERC will publish a Scoping Document outlining issues to be evaluated in the licensing environmental document. The purposes of this stage are to characterize the environmental baseline affected by the project; identify corresponding management goals and objectives that will be applied by the regulatory agencies; and establish a plan of study (by the licensee) and review (by the agencies) of the project impacts and alternatives to protect, mitigate, and enhance environmental quality.


4.2.1 Tribal Consultation

Within 30 days of the NOI, OEP staff will meet with each affected tribe who is interested in such early consultation.1 Under its 2003 policy statement on “Consultation with Indian Tribes in Commission Proceedings,” such consultation occurs directly between OEP and the affected tribe, not in public meetings.2

 

  1. See 18 C.F.R. § 5.7.

  2. Order No. 635, “Policy Statement on Consultation with Indian Tribes in Commission Proceedings” (PL03-4-000), 104 FERC ¶ 61,108 (July 23, 2003); 18 C.F.R. § 5.7.


4.2.10 Study Plan Determination

Within 30 days of the filing of the revised Study Plan, the OEP Director will issue a Study Plan Determination. The determination will approve the plan subject to any modifications that the Director determines are necessary to assure an adequate record.1 That determination is final with respect to studies that relate to impacts under FERC's primary jurisdiction - namely, the impacts addressed under FPA sections 10(a) and (j). The licensee must implement the plan as approved and modified by this determination,2 excluding only any studies subject to a Notice of Study Dispute discussed below

 

  1. See 18 C.F.R. § 5.13(c).

  2. See 18 C.F.R. § 5.13(c)-(d).


4.2.11 Study Dispute

Within 20 days of the Study Plan Determination, any federal agency with authority to prescribe conditions under FPA section 4(e) or 18, or a state agency or tribe with authority to issue a water quality certification under CWA section 401(a), may issue a Notice of Study Dispute for any study within the scope of those authorities.1 Within 20 days thereafter, OEP will convene a Dispute Resolution Panel consisting of: its own representative not otherwise involved in the relicensing, a representative of the disputing agency or tribe not otherwise involved in the relicensing, and a neutral panelist selected by the other two panelists.2 The licensee may file written comments within 25 days of the Notice of Dispute.3 Other participants may file comments and participate in a technical conference that the panel will hold prior to its own deliberations. The panel will specify the form (oral or written) and scope of the information needed from such participants.4

 

Within 50 days of the Notice of Study Dispute, the panel will make a finding whether each disputed study request meets the study criteria discussed in Section 4.2.4(A). The panel will then make a recommendation to FERC for a final decision, based on the finding. It will compile a record of its deliberations, including all documents submitted by the licensee or other participants.5 Within 20 days thereafter, the OEP Director will issue a written determination,6 which functions as an amendment to the Study Plan for those studies subject to the Notice of Study Dispute.7 The licensee must then implement any such studies.

 

  1. See 18 C.F.R. § 5.14(a). The Notice of Dispute must explain how the disputing agency or tribe's request meets the study criteria as discussed in Section 4.2.4(A). It must include contact information for the representative designated for the Dispute Resolution Panel. See id. at § 5.14(b).

  2. See 18 C.F.R. § 5.14(d). The parties must select the third panelist for a list of pre-established list of persons with expertise in the resource area, which is posted on FERC's website. See id. If the parties cannot agree on a third panelist within 15 days, FERC will appoint someone randomly selected from the list of technical experts maintained by FERC. See id.

  3. See 18 C.F.R. § 5.14(i).

  4. See 18 C.F.R. 5.4(j).

  5. See 18 C.F.R. § 5.14(k).

  6. See 18 C.F.R. § 5.14(l). Both the panel's recommendations and the Director's determination must satisfy the study criteria described in Section 4.2.4(A) above. See 18 C.F.R. § 5.14(k)-(l).

  7. See id.


4.2.2 Endangered Species Act (ESA) Consultation

Although the ILP does not specify an exact time, the licensee must consult early with FWS or NMFS, as appropriate, to determine whether any listed species or its critical habitat, or any species proposed for listing, under the ESA, may occur in the project area.1 (See Section 2.3.4(F)). The PAD must include any existing information, and it also will serve as the starting point for development of a survey or any other study necessary to resolve whether a listed species may be present or how the project may affect such species or habitat.

 

  1. 16 U.S.C. § 1536(a). Threatened and endangered species are treated the same under ESA section 7. See id.


4.2.3 Notice of Commencement

Within 60 days of the NOI, FERC will issue a Notice of Commencement. The Notice of Commencement triggers the issuance of Scoping Document 1, initiates the comment period on the Pre-Application Document, and makes some important process decisions. It will state OEP's decision whether to approve any request to use the ALP or TLP. It will request that participants file comments on the PAD (already issued by the licensee at the same time as the NOI). It will solicit study requests from participants and any recommended modifications to the Process Plan. It will state that that all communications with Commission staff related to the merits of the application must be on-the-record. See Section 3.2.2(E)). It will request that other federal or state agencies or Indian tribes cooperate in some manner in the preparation of an environmental document. It states FERC's intent as to which form of environmental document (EA or EIS) it will publish. It will also provide formal notice for a scoping meeting to be held within 30 days thereafter. Finally, the notice will initiate informal consultation under ESA section 7 and related laws.1

 

The Notice of Commencement establishes deadlines for public comments on three documents. The Notice gives participants 60 days to comment on the PAD and Scoping Document 1, and so submit study requests in response to the PAD. You should provide detailed comments on all three documents. You should get a head start by reviewing the PAD when published with the Notice of Intent (60 days earlier). Also, you may begin drafting study requests even before the Notice of Commencement is issued.

  1. See 18 C.F.R. § 5.8(b). If appropriate, FERC will designate the license applicant as its non-federal representative authorized to participate in consultations on behalf of FERC. See id.


4.2.4 Scoping Document and Process Plan

FERC will issue Scoping Document 1 (SD-1) concurrently with the Notice of Commencement.

SD-1 outlines the issues that the environmental document will evaluate. It includes a short description of the project; No-Action Alternative (namely, renewal of the existing license without modification); Action Alternatives, such as a range of new or modified conditions in a new license; and yet other alternatives that FERC proposes to eliminate from further analysis. It will also categorize the project impacts to be analyzed. It will also list comprehensive plans relevant to the licensing decision.1

 

SD-1 also outlines a proposed process plan. It sets the date and location for a scoping meeting and site visit where OEP staff will take oral comments on the PAD and SD-1 it. It requests that participants also file written comments. Such written comments must include any information or study requests to supplement the existing information in the PAD. Finally, SD-1 establishes due dates for these comments.2

 

Within 30 days after the issuance of the Notice of Commencement and SD-1, OEP staff will host a scoping meeting in the project vicinity, including an actual site visit. This meeting is open to all interested participants. OEP staff are there to receive preliminary oral comments on: the environmental baseline and project impacts included in SD-1, adequacy of existing information in the PAD to analyze such impacts, and applicable management requirements for protection, mitigation, or enhancement of natural resources. They also will receive oral comments on the Process Plan, including provisions for inter-agency cooperation in the preparation of the environmental document.

  1. See 18 C.F.R. § 5.8(c).

  2. See id. See also 40 C.F.R. § 1501.7.


4.2.5 Comments on Scoping Document 1 and Pre-Application Document

Within 60 days of the Notice of Commencement, a participant must file any comments on the PAD and SD-1. Comments may be supportive or critical. We explain the form and substance of critical comments below, since “job well done” does not require any further explanation.

The filing may be in the form of a letter or a pleading. Whatever form is used, the comments should be organized to separately address the PAD and SD-1, since they are different documents. We begin with the PAD.


A. Pre-Application Document (PAD)

Comments must state any concerns about the PAD's treatment of existing information about project impacts. The commenter may provide additional information omitted from the PAD. Comments must also state any concerns about the schedule or sequence of steps in the licensee's Process Plan and recommend appropriate modifications to that plan.

The Process Plan should establish an agreed upon process regarding communications, meetings, notices, and other communications between participants to the licensing process. The Process Plan should be structured, implemented, and updated as appropriate to mitigate against that risk. At a minimum, the plan should include the following elements.

It should establish a clear and realistic schedule for the many steps leading to license application, including time to address contingencies.

It should establish an organization structure of committees (e.g., technical by resource, legal or policy, and plenary) that is designed to move discussion to decision. The plan should categorize each issue and assign it to the committee most competent to make a decision (e.g., the location of IFIM transects should not be assigned to a policy committee), should prevent duplication of effort as between committees, and should assure that the plenary committee has the capacity to knit the trees back into a forest.

It should include protocols for document production and review, including a protocol for confidentiality of negotiation related to settlement.

It should rely on incentives rather than penalties to motivate effective effort, since a participant cannot be required to waive or limit legal rights as a condition of participating.

Most importantly, it should include a decision rule for the collaborative process.

Some participants may fear that the licensee will unduly control a collaborative process, because it has the greatest resources to draft or attend meetings. A “one-text drafting” protocol mitigates against that risk. Under this protocol, any party may prepare a first draft of a given document, eventually including the settlement. Other parties may comment in advance of the next meeting. The preferred form of comment is: “yes,” “no,” or “yes if . . . .” Parties discuss comments and seek to resolve disputes at the next meeting. A party other than the initial drafter then prepares the second draft, showing proposed changes reflective of meeting discussion in redline/strikeout format. The process continues in this seriatim manner. At any given meeting, only the latest draft is on the table for review.


B. Study or Information Request

Comments on the PAD must include study or information requests. In addition to outlining existing information, the PAD will include a Preliminary Issues and Studies List that describes in general terms the potential studies that the licensee may undertake. This description functions as a preliminary outline of the eventual study plan. Participants should comment on the preliminary issues. However, in commenting on this description, comments must now make a big leap forward in specificity toward the study plan itself. The commenter must specifically identify and justify each study that it requests be included in the study plan.

Study requests should include any study which the commenter believes is necessary for any condition in the licensing decision, whether FERC's or another agency's. Study requests should also cover those issues that contribute toward compliance with the National Environmental Act's requirements to evaluate alternatives and their relative impact on resources. Thus, the requests are intended to assure the adequacy of the record for conditions under FPA sections 10(a) and 10(j), which FERC administers, as well as FPA sections 4(e) and 18, CWA section 401(a), and other statutes administered by other agencies as discussed above.

Each such request must be in a specific form where the commenter addresses seven criteria (hereafter, study criteria): statement of the subject and purpose of the request (e.g., “this study will assist in our understanding of project impacts on the following resource...”); statement of the relevant management goals of any agency or tribe with jurisdiction over the resource to be studied; explanation of any relevant public interest considerations supporting the request, if the commenter is not an agency; description of existing information concerning the subject and an explanation why additional information is needed; explanation of the nexus between the project and the resource to be studied, and how the study results will inform the development of the license articles; explanation how any proposed study methodology is consistent with generally accepted practice in the scientific community or, as appropriate, considers relevant tribal values and knowledge; and description of considerations of level of effort and cost, as applicable, and why any proposed alternative studies would not be sufficient to meet the stated information needs.1

 

We recommend several rules of thumb for framing your study requests.

Do your homework. The study plan provides 90% or more of the record on which FERC will make its decision in a typical proceeding. You must take this initiative to assure the quality of that record. If not challenged, a licensee may be inclined to pick a study method which is (A) the least costly option for analyzing a particular impact and (B) least likely to produce study results that require significant changes in existing operations.

Think big. You should timely submit a study request to both FERC and the licensee regarding project impacts of concern to you. The request notifies the licensee what information you believe is needed for a complete application and how to obtain it, either through field studies or library research. Once you file the request, the licensee must consult with you and may agree, particularly if you have the support of agencies with prescriptive authorities. Nothing ventured, nothing gained. Put in the negative, your right to object to an application as deficient is compromised or may be waived if you do not file a timely request.

Don't waste money. The licensee is required by law to undertake a wide range of studies in order to provide an adequate record for the licensing decision. The mandatory studies generally relate to engineering, safety, economics, environment, and recreation. A study request should be reasonable and necessary in relation to the resource goals and management objectives, and the study methodology should be generally accepted practice.

Take the initiative. In a proceeding with complex environmental issues that require a high level of technical expertise, it may be worthwhile to retain an independent expert to critique the licensee's study plan and identify study needs. If funding is not available to you, ask the licensee, who may agree to the peer review so as to reduce the risk of subsequent dispute, rehearing, or appeal.

Work together. You should collaborate with resource agencies, Indian tribes, and other participants to prepare study requests. In some relicensing proceedings, HRC members and such participants have jointly submitted study requests. Even if study requests are not submitted jointly, the agencies and tribes may be willing to advise you or incorporate your requests into their own.

  1. See 18 C.F.R. § 5.9(b). Compare with 18 C.F.R. § 4.32(b)(7) (requirements for study requests under TLP and ALP).


C. Scoping Document 1

Comments on Scoping Document 1 (SD-1) should be organized topically, following that document's outline. They should state any concerns about the description of project and its impacts or the range of alternatives for the Proposed Action. Such alternatives must bracket what FERC and prescribing agencies may properly consider in reaching the licensing decision. Thus, if a range of minimum flows from X to Y cfs would arguably provide the required protection for a given resource, then the environmental document must consider such a range. The licensee's support or opposition with respect to any such alternative is irrelevant at this early step, since SD-1 or the environmental document which will follow are intended to provide an objective analysis, not a justification for any one position. Indeed, a commenter who requests an alternative in such comments is not expressing support for that alternative in the final decision - merely stating that the alternative should be included in the environmental document to assure an objective basis for the licensing decision. Accordingly, such comments should specifically identify alternatives for operation (such as minimum flow schedule, ramping rate, or lake level) and other environmental conditions that the commenter believes should be included in the NEPA review.

SD-1 often does not describe operational Action Alternatives in a detailed form. Typically, it includes a no-action alternative, the licensee's Proposed Action, a determination whether dam removal will or will not be evaluated, and a general statement that more defined operational alternatives will be considered as the proceeding goes forward. In short, SD-1 frames the outer boundaries of alternatives and impacts. As discussed above in Section 3.2.4, your comments should propose specific alternatives and their basis.


4.2.6 Scoping Document 2

Within 45 days of the deadline for comments on the PAD and SD-1, OEP may at its discretion publish a Scoping Document 2 (SD-2).1 This will respond to timely comments on SD-1, both written and oral.

 

File further comments on SD-2 if you believe that FERC has not responded adequately to prior comments. The strategy is “early and often,” without badgering or repeating - the later in the proceeding you call an issue, the less likely that it will be resolved in your favor.

  1. See 18 C.F.R. § 5.10.


4.2.7 Proposed Study Plan

Within 45 days of the same deadline, the licensee must file a proposed Study Plan.1 This must identify the studies the licensee proposes to undertake and otherwise respond to each timely study request. The plan must show that each proposed study, or each rejection of a study request, complies with the study criteria discussed in Section 4.2.5.2 In other words, the licensee, like a commenter, must address the utility of each study for the licensing decision, as well as cost. In addition, the plan must include a detailed description of the scope, method, and schedule of each study and must provide for continuing consultation with participants and progress reports.3

 

  1. See 18 C.F.R. § 5.11(a).

  2. See 18 C.F.R. § 5.11(d).

  3. 18 C.F.R. § 5.11(c).


4.2.8 Comments on Proposed Study Plan

Within 30 days of filing the proposed Study Plan, the licensee must hold a meeting to take further comments and more importantly, seek to resolve disputes related to choice of studies.1 It may hold further meetings for the same purpose. A participant must file any written comments on the proposed Study Plan within 90 days after the plan filing.2 If the participant disagrees with a choice (or rejection) of a study, the comments must comply with the study criteria discussed above in Section 4.2.5.

 

  1. 18 C.F.R. § 5.11(e).

  2. See 18 C.F.R. § 5.12.


4.2.9 Revised Study Plan

Within 30 days after such comments, the licensee will file a revised Study Plan.1 This revision must include all oral and written comments, describe efforts to resolve disputes, and again comply with the study criteria.2 A participant may file comments on this revision within 15 days of such filing.3

 

  1. See 18 C.F.R. § 5.13(a).

  2. See id.

  3. See 18 C.F.R. § 5.13(b)


4.3 Implementation of Study Plan

The licensee must implement the approved Study Plan. It will conduct the required studies on schedule.1 It must file progress reports, disclose study results to any participant who so requests,2 and seek to resolve disputes that may arise regarding the adequacy of the Study Plan or implementation.

 

  1. See 18 C.F.R. § 5.15(a).

  2. See 18 C.F.R. § 5.15(b).


4.3.1 Study Reports

In the first year after the Study Plan Determination as provided in the schedule, the licensee must file an initial Study Report. This report will describe progress in implementing the Study Plan. It must include any variance from the approved content or schedule and must also propose appropriate modifications to the approved plan.1 The licensee must file an Updated Study Report in the second year after the Study Plan Determination as provided in the schedule.2

 

  1. See 18 C.F.R. § 5.15(c).

  2. See 18 C.F.R. § 5.15(f).


4.3.2 Additional Study Request

A participant may request a modified or new study in response to a Study Report, as follows. Within 15 days of filing the initial Study Report, the licensee will hold a meeting with participants and OEP staff to discuss the study results and any proposed modifications.1 Any participant or the OEP staff may file a disagreement with the meeting summary, which the licensee must prepare within 30 days of that meeting.2 The disagreement may propose a modified or new study. Within 30 days thereafter, the OEP Director will resolve the disagreement and amend the approved Study Plan as appropriate.3 The same procedures for review, disagreement, and resolution apply to the Updated Study Report.4

 

The licensee, participant, or OEP staff who proposes a new or modified study must show good cause. 5 The burden of persuasion is proportional to how much change is proposed in the approved Study Plan, or how much time has passed since the Study Plan Determination.

 

  1. See 18 C.F.R. § 5.15(c). Fifteen days after the meeting, the applicant will file a meeting summary. See id.

  2. See id. The licensee may respond to any such filing within 30 days. See id.

  3. See id.

  4. See id.

  5. See 18 C.F.R. § 5.15(d)-(e).


A. Modified Study Request

A proposed modified study must comply with the study criteria discussed in Section 4.2.4(A) and must also show that: (1) approved studies were not conducted as provided for in the approved study plan; or (2) the study was conducted under anomalous environmental conditions or that environmental conditions have changed in a material way.”1

 

  1. 18 C.F.R. § 5.15(d).


B. New Study Request

A proposed new study must satisfy the study criteria discussed in Section 4.2.4(A). It must also meet the additional criteria: (1) whether any material changes in the law or regulations applicable to the information request has occurred; (2) why the goals and objectives of any approved study could not be met with the approved study methodology; (3) why the request was not made earlier; and (4) whether significant change has occurred in the project proposal, or significant new information material to the study objectives has become available.1 Further, any proposal for a new study following the Updated Study Plan must show “extraordinary circumstances,” not just good cause.2

 

  1. 18 C.F.R. § 5.15(e).

  2. 18 C.F.R. § 5.15(f).


4.4 Development of License Application

The licensee develops the license application in two steps - a preliminary and then a final form.


4.4.1 Preliminary License Proposal

At least 150 days prior to the deadline for filing a license application, the licensee must file and request comments on a Preliminary Licensing Proposal.1 The proposal must: (1) provide a project description, including any additions or other modifications to project facilities and waters; (2) describe the existing and the proposed plan for project operation and maintenance, including environmental measures; and (3) include an analysis of existing and any impacts, taking into account the environmental measures. The impacts analysis must apply the study results. The Preliminary Licensing Proposal will also include a draft Biological Assessment to evaluate whether the Proposed Action may have an adverse effect on any species listed under the ESA or its critical habitat (see Section 2.3.4(F)).2

 

The Preliminary Licensing Proposal format is simpler than an application in order to minimize the expense of document production and distribution. A licensee may elect to file a draft license application by providing notice in the Updated Study Report.3

 

Within 90 days of such filing, a participant or OEP staff may comment on the Preliminary License Proposal or draft license application.4 The comments may include recommendations whether the Commission should prepare an EA (in draft or final form) or an EIS. Any new study request must show extraordinary circumstances and satisfy the criteria described in Section 4.3.2(B).5

 

  1. See 18 C.F.R. § 5.16(a)-(b). A waiver of the requirement to file a Preliminary License Proposal or draft license application may be requested based on a consensus of the participants in favor of such waiver. See id. at § 5.16(f).

  2. See 18 C.F.R. § 5.16(d).

  3. See 18 C.F.R. § 5.16(c).

  4. See 18 C.F.R. § 5.16(e).

  5. Id.


4.4.2 License Application

The licensee must file a new license application at least 24 months before the existing license expires.1 In addition to publishing notice in papers of general circulation, the licensee must serve the application on each participant who has been consulted in the proceeding and any adjacent property owners.2

 

A new license application runs into the thousands of pages. The information is in a standard form. The application must identify the licensee and primary contact. It must also identify affected persons in several categories: owners of any lands or waters needed for project construction, operation, or maintenance; any other adjacent property owners; affected federal, state and local agencies, including the county in which the project is located; and affected tribes.3

 

The application must contain Exhibits A-F and G, as described in Section 3.2.2(C) reference.

  1. See 18 C.F.R. § 5.17(a). FPA section 7(a), 16 U.S.C. § 802(a), does not apply to applications for subsequent licenses, i.e., relicense by existing licensee. See id. at § 5.17(b).

  2. See 18 C.F.R. § 5.17(d)(1).

  3. 18 C.F.R. § 5.18(a).


A. Exhibit E (Environmental Exhibit)

This exhibit must contain the following eight sections.

General Description of the River Basin is self-explanatory.

Applicable Laws includes a discussion of compliance with CWA section 401(a), ESA section 7, CZMA, and other laws external to the FPA that bear on license conditions.

Consistency with Comprehensive Plans analyzes whether the Proposed Action favored by the licensee is consistent with comprehensive plans already accepted by FERC under FPA section 10(a).

Project Facilities and Operation includes: maps and drawings of facilities and lands, the existing and proposed plan of operation (expressed in terms of capacity and generation, as well as reservoir level, minimum flow, ramping rate, and flood control).

Proposed Action and Action Alternatives describes the licensee's proposal for a new license, including all environmental measures. Affected Environment includes a detailed description of the area affected by the project, not limited to the project boundary. Environmental Analysis analyzes the direct, indirect, and cumulative impacts on each of the resources listed in the PAD (see Section 3.2.2(A)). It applies the study results and any other relevant information obtained by the licensee. Proposed Environmental Measures are the measures that the licensee proposes to address such impacts. The section must describe with specificity the intended environmental benefits. It must also describe why the licensee does not adopt a preliminary measure proposed by a participant in the comments on the PAD or otherwise (see Section 4.2.5(A)). Unavoidable Adverse Impacts must identify any adverse impacts that would occur even if the proposed environmental measures are implemented. Economic Analysis is an annualized analysis of the costs and revenues to the licensee under the existing license and the proposed new license. This section estimates costs for: any construction, operation and maintenance of the project facilities; property and income taxes; each proposed environmental measure; and any such measure proposed by a participant and rejected by the licensee. Costs include: out-of-pocket payments, as well as foregone revenues associated with alternative flow schedules and other operational restrictions. Revenues include: proceeds from sale of capacity and generation in the electricity markets, as well as miscellaneous revenues associated with recreational and other uses of project facilities.

Cumulative Impacts includes the past and present impacts under the existing license, and the foreseeable impacts under any new license, of the project in combination with other facilities and activities in the river basin. The application must disclose the temporal and geographic scope of the cumulative impacts analysis.

Documentation of Consultationdescribes consultation with agencies and other participants. Literature Cited is self-explanatory.1

 

In addition to these required elements of Exhibit E, a license application also will include two related documents, which may be combined with Exhibit E or separately stated. The application must include a response to new or modified study requests that werefiled in response to the Preliminary Licensing Proposal. It must explain its basis for rejecting any such request.2 Further, the application will include a Biological Assessment (BA) if the project area includes listed species or critical habitat under the ESA.3 The BA evaluates whether the Proposed Action is likely to have an adverse impact on such species or habitat.4 The BA must make one of three findings: the Proposed Action will have no effect,5 is not likely to adversely affect,6 or is likely to adversely affect the listed species.7

 

  1. See 18 C.F.R.§ 5.18(b).

  2. 18 C.F.R. § 5.18(e).

  3. See 50 C.F.R. § 402.12.

  4. See id. The applicant must complete the BA within 180 days after its initiation. See 50 C.F.R. § 402.12(i).

  5. This finding effectively ends FERC's and applicant's obligations under the ESA's consultation process.

  6. All effects are beneficial, discountable, or insignificant. This finding extends the informal consultation between the applicant and FWS/NMFS until the latter issues a letter concurring with applicant's finding. The concurrence letter may include recommended modifications to minimize the likelihood of adverse effects to listed species. See 50 C.F.R. § 402.13(b). If FWS/NMFS does not issue a concurrence letter, FERC must initiate formal consultation.

  7. All adverse effects - even if minor or minimal - cannot be avoided and an Incidental Take Permits (ITS) will be required. In this situation, FERC must initiate formal consultation with FWS/NMFS and request that FWS/NMFS prepare a Biological Opinion (BO). For proposed species or critical habitat, the BO should evaluate whether an action is likely to jeopardize the continued existence of a proposed species or destroy or adversely modify proposed critical habitat. See 50 C.F.R. § 402.12(f).


B. Exhibit H (Developmental Benefits)

The application must also contain Exhibit H, which describes how the project fits within the electricity system. This exhibit must include four sections. Plan to use project for efficient electricity service describes project coordination with upstream and downstream facilities. Need for project electricity compares the project against alternative sources, in terms of cost, availability, and reliability from the licensee's perspective. Electricity consumption efficiency program describes such a program if the licensee is a retail utility or an actual consumer. Financial capacity provides the assurance that the licensee will have such capacity to perform license obligations.1

 

  1. 18 C.F.R. § 5.18(c).


4.4.3 Tendering and Related Notices and ESA Consultation

The application filing triggers a quick series of steps that FERC takes to prepare for the substantive review of the application, including the preparation of the environmental document.


A. Tendering Notice

Within 14 days of such filing, FERC will publish a “Notice of Application Tendered for Filing.”1 This notice includes a schedule for environmental review and all other steps leading to readiness of the application for the Commission's decision. It specifically includes a schedule for consultation under ESA section 7 and certification under CWA section 401.2 In effect, the schedule included in the Tendering Notice amends the schedule previously published in SD-1 or SD-2.

 

  1. See 18 C.F.R. § 5.19(a). FERC will publish the notice in the Federal Register and will notify participants by mail. See id. at § 5.19(c).

  2. See 18 C.F.R. § 5.19(b).


B. Resolution of Pending Information Requests

Within 30 days of the application filing, the OEP Director will issue an order resolving any requests for new or modified study requests made in response to the Preliminary License Proposal.

In addition, the OEP Director will require the licensee to submit any additional information or documents relevant to an informed decision on the application.1 The application may be dismissed or held in abeyance if the licensee does not timely supply additional information.2

 

  1. See 18 C.F.R. § 5.21.

  2. See id.


C. Notice of Deficiency

Within 30 days of the application filing, OEP Director will determine whether the application is deficient as a result of omission of required exhibits or other information or the failure to consult as required.1 The application will be rejected if the OEP Director and the Commission jointly determine that: (A) it is patently deficient because it “substantially” fails to conform with these requirements,2 or (B) for a new project, it seeks to use waters already subject to a preliminary permit or exemption.3 If merely deficient, the OEP Director will issue a notice that identifies deficiencies and sets a deadline, not to exceed another 90 days, for corrections.4 A revised application will be accepted if the deficiencies are cured, or rejected if still deficient.5

 

  1. See 18 C.F.R. §§ 5.20(a), 4.32(e)(1). The Director will notify the applicant of specific deficiencies by letter or by phone for minor deficiencies. See id.

  2. 18 C.F.R. § 5.20(b).

  3. See 18 C.F.R. §§ 5.17(f), 4.33(b)-(c), (e).

  4. See id.

  5. See id.


4.5 Substantive Review of License Application

FERC will now undertake the substantive review of a non-deficient license application. This stage includes three critical steps: the Notice of Acceptance and Readiness for Environmental Analysis (REA), after which agencies and other participants must timely submit mandatory and other environmental conditions; the environmental document; and the inter-agency process to resolve any disputes regarding FPA section 10(j) conditions.


4.5.1 Notice of Acceptance and Readiness for Environmental Analysis

The REA Notice is issued once OEP determines that all approved studies have been completed, any deficiencies in the application have been cured, and no other information is required for substantive review. This notice has several functions. It finds that the application is accepted and ready for substantive review. It starts the 60-day clock for any interested participant to file for formal intervention (see Section 3.2.4(C)). It requires that agencies submit mandatory conditions under FPA sections 4(e) and 18 in preliminary form, and further that all participants submit recommended conditions under FPA section 10. Further, the REA Notice amends the schedule issued with the Tendering Notice.1

 

  1. See 18 C.F.R. § 5.22.


A. Mandatory and other Conditions

Agencies and other participants must submit environmental and other conditions within 60 days of the REA notice. Mandatory conditions are preliminary and subject to modification following publication of the environmental document. The license may respond to such comments within 45 days thereafter.1

 

Within 60 days of the REA Notice, the licensee must demonstrate the status of compliance with CWA section 401(a). It must file: a water quality certification or evidence of waiver, or at the minimum, a request for certification, including the date on which the certifying state agency received the certification request.2

 

  1. See 18 C.F.R. § 5.23(a).

  2. See 18 C.F.R. § 5.23(b).


B. Amendment of Application

Mandatory or recommended conditions, and the certification, may be amended in response to the submittal of a license amendment application that materially changes the plan of development.1 In that event, FERC will issue a second REA Notice.

 

  1. See 18 C.F.R. § 5.27.


4.5.2 Environmental Document

As lead agency under FPA Part I, FERC publishes an environmental document as required by NEPA before making its licensing decision. The document, based on the PAD and Exhibit E, describes the Proposed Action and alternatives and analyzes the direct, indirect, and cumulative impacts of each alternative; and makes a recommendation to the Commission for its licensing decision. The document may be an EA, or a more comprehensive EIS. An EA may be published in final form, or in draft form subject to comment before finalization, while an EIS is always published in draft form before finalization. The publication of the environmental document triggers the final opportunity for submittal of conditions.


A. Environmental Assessment Published Only in Final Form

OEP will issue a final EA within 225 days of the REA notice, if it decides not to publish a draft.1 The EA will include: (1) draft license articles prepared by OEP; (2) a preliminary determination of whether each condition recommended under FPA section 10(j) is consistent with the FPA, and (3) any preliminary mandatory conditions submitted by other agencies.2

 

Such anEA will establish a deadline, typically not more than 45 days, for comments.3 A participant may stand by its recommended conditions filed in response to the REA Notice, or may file new or amended recommendations based on the analysis in this document. In turn, agencies must file all modified mandatory conditions within 60 days following the close of the comment period.4

 

  1. See 18 C.F.R. § 5.24(a).

  2. See 18 C.F.R. § 5.24(b).

  3. See 18 C.F.R. § 5.24(c).

  4. See 18 C.F.R. § 5.24(d).


B. Environmental Document Published First in Draft Form

OEP will issue a draft EA or EIS within 225 days of the REA notice, if it decides not to proceed straight to a final EA.1 The content is the same, regardless of form.2 The draft document will set a deadline for comments, typically 30 to 60 days.3 Agencies must file all modified mandatory conditions within 60 days of the close of the comment period.4 FERC must then issue a final environmental document within 90 days thereafter.5

 

  1. See 18 C.F.R. § 5.25(a).

  2. See 18 C.F.R. § 5.25(b).

  3. See 18 C.F.R. § 5.25(c).

  4. See 18 C.F.R. § 5.25(d).

  5. See 18 C.F.R. § 5.25(e).


4.5.3 FPA section 10(j) Process

In response to the Ready For Environmental Assessment (REA) Notice, the FWS, NMFS, or a state department of fish and wildlife may submit recommended conditions under FPA section 10(j) for the protection, mitigation, and enhancement of fish and wildlife resources affected by the project.1 A submittal must include the management objectives, as well as the evidentiary and legal basis for such conditions, and it must be filed by the deadline set in the REA Notice. Even if it would address the impacts differently on its own initiative, FERC must defer to these recommendations unless it makes an affirmative finding of inconsistency with the FPA.

 

After requesting any needed clarification,2 OEP will make a preliminary determination regarding consistency of each recommendation with the FPA or other applicable law. If the latter, the finding will include: (1) an explanation why OEP believes the recommendation is inconsistent with the FPA or other applicable law and (2) an explanation how other measures which OEP proposes in the environmental document will adequately and equitably protect, mitigate, and enhance affected fish and wildlife resources.3

 

Any party may comment on this determination within the comment period established for the EA or draft environmental document.4 The agency or tribe that submitted the contested recommendation may also request a meeting to resolve the dispute, to be held within 90 days of the date when OEP issues the preliminary determination of inconsistency.5 OEP will provide public notice of the meeting and will prepare a meeting summary thereafter.6 OEP and the agency must make a good faith effort to resolve the dispute, and OEP specifically must give “due weight” to the expertise and authority of the agency.7 This process ends when FERC issues its licensing order.8 If FERC does not adopt a Section 10(j) recommendation, the order must include findings required by FPA section 10(j)(2), as discussed in Section 2.3.3(C).9

 

  1. See 18 C.F.R. § 5.26(a).

  2. See 18 C.F.R. § 5.26(b).

  3. See id.

  4. See 18 C.F.R. § 5.26(c).

  5. See 18 C.F.R. § 5.26(c)-(d).

  6. See 18 C.F.R. § 5.26(d).

  7. 18 C.F.R. 5.25(d).

  8. See 18 C.F.R. § 5.26(e).

  9. See 18 C.F.R. § 5.26(e).


4.5.4 ESA Formal Consultation Process

On the basis of the Biological Assessment (BA), FERC may find that its proposed licensing action is not likely to adversely affect listed species or critical habitat, as discussed in Section 2.3.4(F). In that event, FERC will request the concurrence of FWS or NMFS as appropriate. If FWS or NMFS agrees after review of all supporting information, it will issue a concurrence letter, which means that FERC has satisfied its Section 7 consultation obligation in that proceeding. However, if FERC (or FWS or NMFS) finds that the licensing action may have an adverse impact on a listed species or its critical habitat, then FERC must request formal consultation, a structured process where FERC and the agency evaluate alternatives and measures to present such effect.1 At the conclusion of that formal consultation, the agency will issue a Biological Opinion (BO), which includes: (A) analysis of the effects of the Proposed Action; (B) a finding that the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a “jeopardy BO”), or in the alternative, a finding that the action is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a “no jeopardy BO”); and (C) depending on that finding, the RPAs or RPMs, as well as the take limitation, discussed in Section 2.3.3(F) above.2

 

  1. See 50 C.F.R. § 402.14(c).

  2. See 50 C.F.R. § 402.14(h).


4.5.5 Water Quality Certification Process

Under the Clean Water Act section 401(a), the State where a project discharges must certify that the project complies with all applicable water quality standards. See Section 2.3.4(F). The State must act on the licensee's request for water quality certification of a license application within one year of receipt of that request, or its certification authority for that license is waived.1 The licensee must file that request no later than the date the license application is filed, as discussed in Section 4.4.2(A). The State may deny the request without prejudice if, as the statutory deadline approaches, it finds that the request does not include all information required for certification or it is not otherwise prepared to take final action. A denial without prejudice effectively restarts the one-year clock. Thus, the statutory deadline applies again when the licensee then re-files the certification request. This pattern of request, denial, and re-filing of request may occur several times until the State makes the certification decision.

 

A special process applies if FERC determines that a flow or other discharge from a project may affect the water quality of a State downstream of the actual discharge location. In that event, FERC must notify the downstream State within 30 days of the Tendering Notice.2 If the downstream State finds that the discharge in the Proposed Action will violate its water quality standards, it will notify FERC of its finding, object to the approval of the Proposed Action, and request a public hearing.3 Based on evidence presented at the hearing, FERC must condition the license in a manner that ensures compliance with the water quality standards of the downstream State.4 The license may not be issued if such compliance is not possible.5

 

  1. See 33 U.S.C. § 1341(a).

  2. See 33 U.S.C. § 1341(a)(2).

  3. See id.

  4. See id.

  5. See id.


4.5.6 Coastal Zone Consistency Process

The State must act on the licensee's request for a determination that a license is consistent with the CZMA program, discussed in Section 2.3.4(H), within six months of receipt of a request,1 or its authority to determine if the license should be forfeited.2 The State may toll (or pause) that statutory clock by finding that it has not yet received all “necessary data and information” required for such review .3 In this event, its deadline is related to its subsequent finding that the licensee has provided that necessary information.4

 

  1. See 16 U.S.C. § 1456(c)(3)(A).

  2. See id.

  3. The term, “necessary data and information,” means all information specifically identified in the State's coastal program as necessary for such review. See 15 C.F.R. § 930.58(a)(2). The State's request for additional information not specifically required in the program does not stop the six-month clock.

  4. See 15 C.F.R. § 930.60.


4.6 Licensing Order

FERC will issue a licensing order. If FERC grants the license application, the order will state all conditions in the form of numbered articles, and it will make findings of fact and law that support these articles.1 A denial will make the necessary findings and, for an existing project, must also address decommissioning. The order will be final 30 days after issuance, unless the licensee or other party timely seeks rehearing.

 

  1. 16 U.S.C. § 825l(a).