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.