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.
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
See 18 C.F.R. § 5.7.
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.
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
See 18 C.F.R. § 5.13(c).
See 18 C.F.R. § 5.13(c)-(d).
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.
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).
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.
See 18 C.F.R. § 5.14(i).
See 18 C.F.R. 5.4(j).
See 18 C.F.R. § 5.14(k).
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).
See id.
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.
16 U.S.C. § 1536(a). Threatened and endangered species are treated the same under ESA section 7. See id.
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.
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.
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.
See 18 C.F.R. § 5.8(c).
See id. See also 40 C.F.R. § 1501.7.
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.
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.
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.
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).
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.
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.
See 18 C.F.R. § 5.10.
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
See 18 C.F.R. § 5.11(a).
See 18 C.F.R. § 5.11(d).
18 C.F.R. § 5.11(c).
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.
18 C.F.R. § 5.11(e).
See 18 C.F.R. § 5.12.
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
See 18 C.F.R. § 5.13(a).
See id.
See 18 C.F.R. § 5.13(b)