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).