The licensee develops the license application in two steps - a preliminary and then a final form.
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
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).
See 18 C.F.R. § 5.16(d).
See 18 C.F.R. § 5.16(c).
See 18 C.F.R. § 5.16(e).
Id.
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.
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).
See 18 C.F.R. § 5.17(d)(1).
18 C.F.R. § 5.18(a).
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
See 18 C.F.R.§ 5.18(b).
18 C.F.R. § 5.18(e).
See 50 C.F.R. § 402.12.
See id. The applicant must complete the BA within 180 days after its initiation. See 50 C.F.R. § 402.12(i).
This finding effectively ends FERC's and applicant's obligations under the ESA's consultation process.
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.
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).
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
18 C.F.R. § 5.18(c).
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.
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.
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).
See 18 C.F.R. § 5.19(b).
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
See 18 C.F.R. § 5.21.
See id.
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
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.
18 C.F.R. § 5.20(b).
See 18 C.F.R. §§ 5.17(f), 4.33(b)-(c), (e).
See id.
See id.