A licensing settlement must be filed with FERC in the form of an Offer of Settlement. As required by Rule 601, an offer must be signed by the supporting parties and must include an explanation why it is a proper basis for the license. FERC will receive and consider comments by non-signatories before decision. It may approve, disapprove, or modify a settlement in its final decision.
Under Rule 601, an Offer of Settlement may be submitted at any time before FERC's final decision in the proceeding.1 The best practice is to submit a settlement before or, at latest, during the public comment period on the REA Notice or, in an ALP, the Notice of Acceptance. FERC must base its licensing decision on an environmental document that considers Action Alternatives, and a settlement may be approved only if it is within the scope of one or more such alternatives. While FERC has approved settlements submitted after the publication of the draft or even final environmental documents, it strongly discourages such lateness, which creates a significant risk delay in the final decision if such a document must be supplemented to address a new Action Alternative, or if non-signatories submit adverse comments.
Working backwards from the REA Notice, the licensee and other participants typically decide early in a proceeding whether they will try to negotiate a settlement. The Process Plan in the ILP, like the Communications Protocol in an ALP, must address the intent and schedule for such negotiation.
Inertia is a significant impediment to settlement. Establishing a process structure as soon as possible is critical to overcome inertia. See Section 4.2.5(A) above for specific recommendations on such structure. These recommendations boil down into a few principles: (1) Adopt the process in written form to prevent misunderstanding; (2) Work on a clock; (3) Become accustomed to making little decisions together, in preparation for the bigger decisions involved in settlemen; (4) Resolve disputes as they arise, not later; and (5) Negotiate only those issues necessary for settlement.
See 18 C.F.R. § 385.602.
An Offer of Settlement must include: a settlement of disputed issues in the proceeding and an Explanatory Statement. That statement must show how the settlement is a proper basis for the licensing decision. It must cite all documents and other evidence that support it.1
An offer may be partial or complete. A offer may be partial in two ways: it may resolve some but not all of the disputed issues in the proceeding, leaving the signatories free to address the unresolved issues; or it may be signed by some but not all of the parties. A settlement in a licensing proceeding will likely be approved if it resolves the most significant project impacts, including flow regulation, and if it is supported by the licensee, agencies, tribes, and other participants representing the diversity of interests affected by a project.
18 C.F.R. § 385.602.
An offer must be served to every party on the official service list.1 The offer must expressly notify all such non-signatories when comments are due.2
See 18 C.F.R. § 385.602(d).
See id.
Comments on a settlement must be filed with the Secretary not later than 20 days after the filing of the offer, and any reply comments must be filed not later than 10 days thereafter, unless FERC provides otherwise.1 Failure to file comments waives objection.2 Any comment that disputes a factual issue relevant to the settlement must include an affidavit documenting the commenter's position in that dispute.3
See id.
See id.
See id.
Approval of a settlement as the basis of a new license must be based on substantial evidence1 and must not be arbitrary or capricious. In other words, a settlement must meet the same legal standards as a final decision in a disputed proceeding. If the record does not contain substantial evidence upon which to base a reasoned decision, FERC may establish procedures for the purpose of receiving additional evidence.2
See 18 C.F.R.§§ 385.602(g), (h).
See 18 C.F.R. § 385.602(h).