6 Alternative Licensing Process

The ALP encourages collaboration between the licensee, agencies, tribes, and other participants, in the development of the Study Plan, and license application. Its primary purpose is to facilitate the negotiation of a settlement that, when filed with FERC, may serve as the basis for a new license. Adopted in 1997, the ALP functions as an overlay of the TLP's stages and steps.

FIGURE 3

ALTERNATIVE LICENSING PROCESS (ALP)

The ALP specifies the deadlines for some, but not all, of these steps. In particular, it is silent as to the deadlines for steps following application filing, including the notices and documents that relate to environmental review. Table 4 shows deadlines as provided in the relevant rule, 18 C.F.R § 4.34(i).

TABLE 4

TIMING OF STEPS IN ALP

Step Number

Step Description

Time (Relative To Prior Step, Unless otherwise indicated)

Step 1 (pre-filing activity)

Notice of Intent (NOI), Pre-Application Document (PAD), Request for ALP

5-5.5 years before license expiration

Step 2a

Comments on NOI and ALP Request

30 days

Step 2b

Commission Response on use of ALP

pursuant to agreed upon ALP schedule

Step 3a

Scoping Document 1 (SD1)

pursuant to agreed upon ALP schedule

Step 3b

Initial Information Meeting

pursuant to agreed upon ALP schedule

Step 3c

Studies Conducted

pursuant to agreed upon ALP schedule

Step 4

Preliminary Draft EA; Preliminary Conditions

pursuant to agreed upon ALP schedule

Step 5 (post-filing activity)

Application Filed, including Preliminary Draft EA

no later than two years before expiration of license

Step 6

Public Notice of Application and Solicitation of Terms and Final Conditions

no deadline

Step 7

Comments on Application

60 days

Step 8

Final EA or EIS

no deadline

Step 9

Final License Order

upon completion of all previous Steps

The discussion below is limited only to those steps where the ALP differs from the TLP. This section highlights the differences between the processes, in order to avoid repetition and recognize the ILP will shortly become the default process. Any reader who is interested in the detailed steps of the ALP should review FERC's Licensing Handbook, Section 5.


6.1 Notice of Intent

An existing licensee must file a NOI not less than 5 years before expiration of the existing license.

Before July 23, 2005, the notice will state the licensee's intent to seek a new license. It will request permission to use the ALP, on the grounds that: (A) the licensee has consulted with all affected agencies, tribes, and other likely participants, and a consensus supporting use of the ALP exists; and (B) the collaborative group has adopted a communications protocol which will govern how communications within the group and also with OEP will occur prior to application filing. 1 See Appendix C for a sample communications protocol.

 

After July 23, 2005, the NOI must include a PAD, and any request to use the ALP will be subject to the same requirements. Reply comments to this request are due within 30 days of the NOI.2 The OEP Director will issue a Notice of Commencement, including a decision on the request to use the ALP, within 60 days of the NOI.3 That decision is not subject to interlocutory review or appeal.4

 

We now describe the material differences between the TLP and ALP. We do not repeat the description of the individual steps that are identical in the two processes.

  1. 18 C.F.R. § 4.34(i)(3)(i).

  2. See 18 C.F.R. § 5.3.

  3. See id.

  4. 18 C.F.R. § 4.34(i)(5).


6.2 Initial Information Package (IIP)

Today, the licensee must publish an Initial Information Package (IIP) subsequent to FERC's approval of the ALP and prior to the filing of the draft license application. The IIP serves the same function as the PAD: namely, early disclosure of existing information about project impacts. After July 23, 2005, the NOI must include a PAD, regardless of which process is used.1

 

  1. See 18 C.F.R. § 4.34(i)(5).


6.3 Pre-Filing Schedule

Although a Process Plan is not required prior to July 23, 2005, the licensee and other participants must agree to “reasonable deadlines” for the submittal of study requests and other steps preparatory to application filing.1

 

  1. 18 C.F.R. § 4.34(i)(6)(v).


6.4 Study Plan Development and Implementation

Under the ALP, the licensee and other participants cooperate in the development and implementation of the Study Plan. While any participant may file a study request for resolution by the OEP Director (see Section 5.2.2), “reasonable efforts” must be made first to resolve the dispute within the collaborative group. OEP staff may participate in this stage and informally assist in resolving any such study dispute. The licensee must file a Progress Report every six months. 1

 

The ALP provides for the collaborative group, with assistance from OEP staff, to undertake “cooperative scoping of environmental issues.” They will prepare an informal scoping document. Although any such document is not binding on FERC as lead agency, OEP tends not to publish its own Scoping Document on application filing or otherwise.

  1. See 18 C.F.R. § 4.34(i)(6)(ii).


6.5 Process Failure

The licensee or other participant may request that the ALP terminate if “consensus supporting the use of the process” no longer exists. Any such request must include a recommendation for an alternative procedure to allow the licensee to timely file its application. Such procedures may be a switchover to the TLP or some alternative in the specific circumstances of this project.1

 

  1. See 18 C.F.R. § 4.34(i)(7).


6.6 Draft License Application

The draft license application contains a Preliminary Draft Environmental Assessment (PDEA) in lieu of Exhibit E.1 FERC will request that agencies and other participants file preliminary conditions in response to the draft application.2

 

  1. See 18 C.F.R. § 4.34(i)(6)(iv).

  2. 18 C.F.R. § 4.34(i)(6)(vi).


6.7 License Application

The licensee must file the application not less than 2 years before expiration of the existing license. The required content tracks the TLP, except that the PDEA will substitute for Exhibit E. The notices that FERC will issue on application filing track the TLP, except that: FERC will not issue a REA Notice, and the Notice of Acceptance will instead trigger the 60-day period for submittal of recommended and mandatory conditions.1

 

  1. See 18 C.F.R. § 4.34(b).


6.8 Environmental Review, Section 10(j) and other Processes

These steps track the TLP counterparts.


6.9 License Issuance

The ALP concludes when FERC issues the licensing order.