5 Traditional Licensing Process
The Traditional Licensing Process (TLP) is the old-timer of the processes available for a licensing decision. The TLP is a notice-and-comment process, which FERC has used in some form since the enactment of FPA Part I in 1935. In a TLP, the licensee drives the process until the filing of the license application. It consults with agencies and other participants in a limited and formal manner. It periodically holds meetings, receives written comments, and responds in kind. OEP participates in the process in a meaningful manner only after the licensee files its application. Then, it provides notices which trigger written responses by the participants. Because of the comparative efficiencies of the ILP (discussed in Section 4), after July 23, 2005 a licensee may use the TLP only if requests and receives FERC's permission.
The TLP consists of the Notice of Intent; First-Stage Consultation (Study Plan Development); Second-Stage Consultation (Study Plan Implementation and Application Development); and Third-Stage Consultation (Application Filing and Environmental Review). These stages include 16 discrete steps, as shown in the attached diagram.
FIGURE 2
TRADITIONAL LICENSING PROCESS (TLP)
The TLP specifies the deadlines for some, but not all, of these steps. In particular, it is silent as to the deadlines for steps during the Third-Stage Consultation (discussed below in Section 5.4), including the notices and documents that relate to environmental review. Table 3 shows deadlines as provided in the relevant rule, 18 C.F.R § 4.34.
TABLE 3
TIMING OF STEPS IN TLP
| Step Number | Step Description | Time (Relative To Prior Step, unless Otherwise Indicated) |
| Step 1a (pre-filing activity) | Notice of Intent (NOI), Pre-Application Document (PAD), and Request to Use TLP | 5-5.5 years before license expiration |
| Step 1b | Public Notice of NOI, PAD, and TLP Request to affected resource agencies, tribes, and interested public | concurrent with NOI |
| Step 2 | Comments on NOI, PAD, and TLP Request | 30 days |
| Step 3 | Notice of Commencement (NOC) and approval of TLP | 60 days after Step 1b |
| Step 4 | Joint Meeting for Consultation with agencies, tribes, and the public | 30-60 days (notice of Meeting must be given at least 14 days in advance) |
| Step 5 | Comments; Study Requests | 60 days (interested parties may request an additional 60-day extension for Comments) |
| Step 6 | Study Plans | Produced during Steps 2-5 |
| Step 7 | Draft License Application and Study Results | no deadline |
| Step 8 | Comments on Draft Application | 90 days |
| Step 9 | Final Application | no later than two years before expiration of license |
| Step 10 (post-filing activity) | Public Notice of Application | 14 days |
| Step 11 | Additional Information/Study Requests (AIR) | 60 days |
| Step 12 | FERC Decision on Adequacy of Application; Notice of Acceptance | no deadline |
| Step 13a | Comments; Interventions | 60 days |
| Step 13b | AIR; Applicant responds | 90 days |
| Step 14a | NEPA Scoping, Scoping Document 1 (SD1) | no deadline |
| Step 14b | Public Meeting | 30 days |
| Step 15 | Comments on SD1; preparation of Scoping Document 2 (SD2) if necessary | 30 days |
| Step 16 | Commission Issues AIR | |
| Step 17 | Notice of Ready for Environmental Analysis (REA) | 60-90 days |
| Step 18 | Comments on REA; Water Quality Certification; Final Conditions | 60 days |
| Step 19 | Reply Comments | 45 days |
| Step 20a | Non-draft EA | no deadline |
| Step 20b | Draft EA or EIS | no deadline |
| Step 21 | Final EA or EIS | no deadline |
| Step 22 | Final License Order | upon completion of all previous Steps |
Below, we describe the stages of the TLP. This section primarily highlights the differences with the ILP, in order to avoid repetition and recognize that the ILP will shortly be the default process. If you are interested in the detailed steps of the TLP, you should review FERC's Licensing Handbook, Section 4.
5.1 Notice of Intent
An existing licensee must file a Notice of Intent (NOI) not less than five years before expiration of the existing license. Before July 23, 2005, the notice will merely state the licensee's intent to seek a new license and its choice of the TLP. After that date, the notice must include a PAD, discussed in Section 4.2.5, and a request for FERC's permission to use the TLP, addressing five criteria: (A) likelihood of timely license issuance, (B) complexity of resource issues, (C) level of anticipated controversy, (D) amount of available information and potential for significant disputes over studies, and (E) relative cost of the traditional process compared to the ILP. Reply comments to this request are due within 30 days of the NOI.1 The OEP Director will issue a Notice of Commencement, including a decision on the request to use the TLP, within 60 days of the NOI.2 That decision is not subject to interlocutory review or appeal (see Section 3.2.4(D)).
See 18 C.F.R. § 5.3.
See id.
5.2 First-Stage Consultation
In First Stage Consultation, the licensee prepares a Study Plan by undertaking a joint meeting with agencies and other participants, and then considers written study requests and comments. A study plan dispute may be referred to the OEP Director for voluntary resolution.1
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See 18 C.F.R. §§ 4.38(c)(2), 16.8(c)(2).
5.2.1 Consultation Meeting
The licensee holds a pubic meeting with agencies, tribes, and other participants, in order to begin development of the Study Plan. The meeting will occur 30 to 60 days after OEP approves the request to use the TLP.1 The licensee will establish an agenda for the meeting, organize a site visit; publish notice of the meeting and the site visit; and prepare a meeting summary thereafter.2 Unlike the ILP, the TLP does not provide for OEP staff participation in such consultation.
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See 18 C.F.R. § 4.38(b); 18 C.F.R. § 16.8(b).
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See 18 C.F.R. § 5.5; 18 C.F.R. § 4.38(b); 18 C.F.R. § 16.7(d).
5.2.2 Comments and Study Requests
Participants must provide to the licensee any study requests1 within 60 days of the consultation meeting, or 120 days if an extension is timely requested to the licensee and the Commission. The criteria for a TLP study request largely duplicate those required in an ILP. See Section 4.2.5.2
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See 18 C.F.R. 4.38(b)(4); 18 C.F.R. 16.8(b)(4).
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See 18 C.F.R. § 4.38(b)(4) for the specific criteria.
5.2.3 Study Plan
The licensee must publish a Study Plan. The plan must document the results of consultation, including the basis for rejection or modification of any study request.
This step is different than the ILP in several critical respects. The OEP Director does not review or approve the Study Plan, and OEP staff do not participate in the plan development. Further, NEPA scoping is not concurrent with study plan development and instead commences after application filing.
5.2.4 Referral of Study Dispute to OEP Director
The licensee, agency, or tribe may refer a study dispute to the OEP Director, by filing a written request. Any participant may respond with comments within 15 days thereafter. The OEP Director will resolve the dispute on the basis of two criteria: (A) whether the request is reasonable and necessary in relation to the management objectives for the affected resources, and (B) whether it is generally accepted practice. The OEP Director will issue a resolution in letter form. The licensee may choose not to follow the resolution, just as it may choose to reject or modify any study request during First-Stage Consultation, although it then assumes the risk that the license application will be deemed deficient as a result.1
This step is substantially different than the ILP. Such referral is discretionary, in that a licensee or agency may elect to leave a study dispute unresolved. There is no deadline for resolution after referral. The OEP Director is solely responsible for any resolution and does not undertake peer review. The resolution is non-binding on the licensee.
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See 18 C.F.R. § 5.3.
5.3 Second-Stage Consultation
Second Stage Consultation involves implementation of the Study Plan and the preparation of a draft License Application.
5.3.1 Study Plan Implementation
The licensee will implement its Study Plan and, at its discretion, the OEP Director's resolution of any study dispute. The results must be available before the deadline for application filing, unless the results are not necessary for the licensing decision.1
An agency or other participant may request an additional study or information, using the same criteria as before. If requested by an agency, the licensee must undertake the study or gather the information, unless it determines the request is not reasonable or necessary for the licensing decision or involves a method that is not generally accepted. The agency or licensee may refer any new study dispute to the OEP Director, as before.2
The TLP does not provide for an Initial or Updated Study Report, as required in the ILP. Further, OEP staff are not involved in the implementation of the Study Plan, unless a referral is made to the OEP Director.
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18 C.F.R. §§ 4.38(c) 16.8(c).
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18 C.F.R. § 4.38(b)(6)(i).
5.3.2 Draft License Application
Not later than 27 months before license expiration, the licensee must publish and file a draft license application, in the form of the final application. It must report the study results as exhibits and discuss any proposed environmental measures.1 After July 23, 2005, Exhibit E must be in the same form required in the ILP.
Agencies and other participants have 90 days to provide written comments on the draft application.2 If any such comment states a substantive disagreement with the factual findings regarding project impacts or the proposed environmental measures, the licensee must meet with the agency within 60 days in an attempt to resolve the disagreement.3 The licensee will prepare a meeting report, which states whether the disagreement was resolved.4
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18 C.F.R. § 4.38(c)(4).
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See 18 C.F.R. § 4.38(c)(5); 18 C.F.R. § 16.8(c)(5).
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See 18 C.F.R. § 4.38(c)(6); 18 C.F.R. § 16.8(c)(6).
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See 18 C.F.R. § 4.38(c)(7); 18 C.F.R. § 16.8(c)(7).
5.4 Third-Stage Consultation
During Third-stage Consultation, the licensee will file a license application. FERC will issue tendering and other notices, as in the ILP. It will then undertake scoping and preparation of the environmental document.
5.4.1 New License Application
As required by the FPA, the license application must be filed not less than 24 months before expiration of the existing license.1 Content and other requirements for the application track the ILP.
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16 U.S.C. § 808(c)(1).
5.4.2 Notices of Tendering, Deficiency, Additional Information Requests, Acceptance, and Readiness for Environmental Analysis
These steps (including the deadlines for comments, submittal of mandatory or other conditions, or other responses which vary by notice) largely track the ILP process as discussed in Section 4, except that the Notice of Acceptance in the TLP precedes the REA Notice.
5.4.3 Scoping Document
Sometime after the Tendering Notice, FERC will typically issue a Scoping Document for its environmental review. This will include the expected date for publication of the REA Notice.
The TLP differs substantially from the ILP at this critical step. In the TLP, OEP has discretion not to publish a Scoping Document, hold a site visit, or revise any such document in response to public comments. Any such document will be published after the application is filed, while the ILP requires FERC to publish a SD-1 nearly 2.75 years earlier, just after the NOI. In the TLP, OEP does not have any obligation to consider cooperative arrangements with other agencies or tribes with jurisdiction over the affected resources.
5.4.4 Environmental Document
The environmental document here tracks the ILP requirements as discussed in Section 4.5.2.
5.4.5 Section 10(j), ESA, Certification, and CZMA Processes
These processes track the ILP requirements as discussed in Section 4.5.3
5.5 License Issuance
The TLP concludes on license issuance.