A. License

This Toolkit focuses on licenses, which cover 99% of the generation capacity under FERC's jurisdiction. There are different forms of license for a constructed or an unconstructed project, and for major or minor generation capacity.¹ A list of current licenses, sortable by state, river, utility, and project name, is available at http://www.ferc.gov/industries/hydropower/gen-info/licensing/licenses.xls.

B. Exemption

An exemption applies only in the limited circumstances where a project is located on an existing water supply conduit (such as an irrigation canal) on non-federal lands and where the project has a generation capacity of 15 MW or less or, if operated by a state or local government solely for municipal water supply, 40 MW or less;¹ or uses a natural stream feature (such as a waterfall) without a dam or other storage capacity and has a generation capacity of 5 MW or less.² An exemption is perpetual, unlike a license, which has a term of years as discussed below in Section 2.3.5. It includes whatever environmental conditions are submitted by fish and wildlife agencies, not subject to the normal limitations on scope, in order to prevent loss or damage to fish and wildlife resources.³ FERC may include any additional conditions necessary to insure the facility continues to comply with these conditions.⁴ A list of exempted projects is available at http://www.ferc.gov/industries/hydropower/gen-info/licensing/exemptions.xls.

C. Preliminary Permit

A developer interested in a potential site for a new hydropower project may first apply for a preliminary permit.¹ A permit is an exclusive right to study that site and to file a license application during the permit term, which is three years² subject to renewal³ and periodic reporting. FERC will grant a permit application unless a legal barrier precludes it from licensing any subsequent project.⁴nless a permanent legal barrier precludes FERC from licensing the project, FERC will issue a preliminary permit." City of Summersville, W.Va. v. FERC, 780 F.2d 1038 (D.C. Cir. 1986).

] FERC may also decline to issue a permit where it has rejected a license application for the same site and development.⁵ If competing permit applications are filed for the same site, FERC grants the permit to the applicant which: is a state or municipal utility, will “best serve the public interest,” or was filed first in time.⁶ A list of current preliminary permits is available at http://www.ferc.gov/industries/hydropower/gen-info/licensing/pre-permits.xls .

A. Standard Articles

All licenses issued since 1953 and many issued previously, include Standard Articles, which are incorporated by reference. While these vary slightly between license categories (for example, existing versus unconstructed status, or minor versus major generation capacity), they establish general duties for the protection of the public interest, including coordination of water regulation in a river basin. One of these Standard Articles reserves FERC's authority to require additional or different environmental conditions in advance of relicensing, either on the motion of a regulatory agency or other person or its own initiative. This article balances the licensee's need for investment security over the license term, with the countervailing need to adjust project design or operation if circumstances relevant to the public interest change significantly after license issuance.¹ Thus, Standard Article 15 for a major project (over 5 MW) provides:

“The licensee shall, for the conservation and development of fish and wildlife resources, construct, maintain, and operate, or arrange for the construction, maintenance, and operation of such reasonable facilities, and comply with such reasonable modifications of the project structures and operation, as may be ordered by the Commission upon its own motion or upon the recommendation of the Secretary of the Interior or the fish and wildlife agency or agencies of the State in which the project or a part thereof is located, after notice and opportunity for hearing.”²

Other Standard Articles permit reopening a license (a reopener) for modification of recreational facilities, coordination of energy operations in a watershed, and other purposes.³ Mandatory conditions submitted under FPA section 4(e) or 18 or CWA section 401(a) may include reopener at the initiative of the prescribing agency.⁴

B. FPA Section 10(a) Conditions for Protection, Mitigation, and Enhancement of Environmental Quality

Under FPA section 10(a)(1), a project must serve the public interest in a river basin, not just the licensee's interest in power generation. A license must ensure that the project adopted “shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes....”¹

The record compiled in the proceeding is a comprehensive plan.² In addition, FERC will give consideration to a plan which a federal or state agency has adopted under its own authority, if the plan (1) is a comprehensive study of one or more of the beneficial uses of the river; (2) specifies the standards, the data, and the methodology used; and (3) is filed with FERC's Secretary before Section 10(a) conditions are established for a given project.³ An agency or other participant may submit a plan for acceptance as comprehensive in the course of a proceeding, or even outside of any proceeding. The Secretary maintains a list of comprehensive plans approved by FERC.⁴

Under FPA section 10(a)(2), FERC must consider whether a license or license condition is consistent with applicable comprehensive plans. For example, FERC must determine whether a flow objective, as established in a State's recognized “comprehensive plan” for river management, is consistent with the conditions in a proposed license. FERC has occasionally denied and frequently conditioned license applications in order to ensure consistency with the general tendency of such plans. Inconsistency with a management objective in any one comprehensive plan, however, is not controlling.⁵

Project revenues are a relevant factor under Section 10(a)(2). FERC evaluates the fiscal impact of each alternative, assuming existing conditions in the electricity market served by the licensee. It does not attempt to forecast changes in market conditions, nor will FERC grant or deny a license based on a prediction of economic viability. Rather, the licensee makes a choice whether to accept a license, and if it does, it is obliged to comply, regardless of whether project revenues are different than predicted.⁶

C. FPA Section 10(j) Conditions for the Protection, Mitigation, and Enhancement of Fish and Wildlife Resources

Unlike FPA section 10(a), which balances energy generation and all other beneficial uses of the affected river, FPA section 10(j) requires that a license “adequately and equitably protect, mitigate damages to, and enhance, fish and wildlife (including related spawning grounds and habitat) affected by the development, operation, and management of the project....”¹ NMFS, FWS, or a state fish and wildlife department may recommend such conditions. If timely submitted,² all such conditions must be included in the license, unless FERC makes written findings that: (1) a given condition is inconsistent with the purposes of the FPA Part I; and (2) the alternative condition adopted by FERC provides the protection, mitigation, and enhancement required by FPA section 10(j)(1).³

D. FPA Section 4(e) Conditions for Protection of a Federal Reservation

If a project is located within a federal reservation such as a National Forest or tribal land¹ FPA Section 4(e) applies. FPA Section 4(e) establishes two substantive requirements. First, FERC must find the license will not interfere or be inconsistent with the original purposes of such reservation.”² Second, the federal agency managing the reservation may require whatever conditions it finds are necessary for the reservation's protection and use,³ although such conditions may not expressly veto the license.⁴ FERC must incorporate these conditions into the license.⁵ FERC may reject or condition a license if it believes a condition exceeds the scope of FPA section 4(e). In this event, FERC may issue the license under protest after which it may join in judicial review of that condition. FERC, however, may not amend or delete the condition on its own authority.⁶ impose conditions on projects or portions of projects that are not located on reservations under its supervision.”

]

E. FPA Section 18 Fishway Prescription

Under FPA section 18, FWS or NMFS may prescribe a facility for fish passage (such as a fish ladder or a trapping site), operation and maintenance of the facility, and any other conditions necessary to ensure effective passage.¹ A Section 18 prescription applies to upstream or downstream passage, and diadromous or riverine fish and aquatic species such as eels and mussels. The agency may also reserve its authority to adopt or amend a prescription after license issuance.² This authority may not directly address the impact of fish entrainment unrelated to passage facility, since that impact is instead within the scope of FPA section 10(j) or (a).³ A Section 18 prescription may address entrainment indirectly, by trying to maximize the efficiency and safety of a downstream fishway. Further, the agency may not use this authority to veto the license in the event that passage is infeasible.

As with FPA section 4(e), FERC must incorporate a Section 18 prescription timely submitted by FWS or NMFS. If it finds that the condition exceeds the permissible scope (e.g., by addressing fish entrainment directly), it may refuse to issue the license, or it may issue the license “under protest” with the objectionable condition subject to judicial review.⁴ position-substantially or procedurally.'”).

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F. Protection of Endangered or Threatened Species and Their Habitat

Where a project adversely affects a species of fish, wildlife, or plant listed as threatened or endangered under the Endangered Species Act, the FWS or NMFS may establish reasonable and prudent alternatives (RPA) or measures (RPM).¹ While FERC is not required to include such measures in the license,² FERC and the licensee may be liable for damages if the license results in death, injury, or other harm to the listed species.³ As a practical matter, FERC treats RPA or RPM as mandatory conditions.

Under ESA section 7(a)(1), FERC, like any other federal agency, must protect and contribute to the recovery of all threatened and endangered species affected by their actions.⁴ Under ESA Section 3(3), FERC must “use ... all methods and procedures which are necessary” for this purpose.⁵ Under ESA section 7(a)(2), FERC must, in consultation with FWS/NMFS, ensure that any action it authorizes, funds, or implements is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of designated critical habitat. In fulfilling this requirement, each agency must use the best scientific and commercial data available.

The ESA specifies special procedures for compliance with these mandates. Early in the licensing proceeding, FERC must determine whether its licensing action may affect listed species or critical habitat. Typically, the licensee will be designated as the non-federal representative for consultation and will prepare a Biological Assessment (BA) under FERC's supervision. If, on receipt of the BA, FERC finds that the licensing action will not affect such species or habitat in the project area, and if NMFS/FWS concurs (in what is called a “concurrence letter”), then informal consultation ends. ⁶, that the proposed action is not likely to adversely affect any listed species or critical habitat.” 50 C.F.R. § 402.14(b)(1).

] Otherwise, FERC must initiate formal consultation - with NMFS with respect to marine wildlife or diadromous fish such as salmon, or the FWS regarding freshwater and terrestrial species such as bass or frogs.⁷ FWS/NMFS will review the information provided by FERC (including the BA), evaluate the status of the affected species, evaluate the possible direct, indirect, and cumulative impacts of the licensing action; and then prepare a Biological Opinion (BO) and Incidental Take Statement (ITS).⁸ The opinion must include: (1) supporting documentation, (2) discussion of the impacts of the action on listed species or critical habitat; and (3) FWS/NMFS' opinion as to whether the action is likely to jeopardize the continued existence of a listed species.

If the FWS or NMFS, as appropriate, finds that the project may cause jeopardy to the listed species or adversely affect critical habitat,⁹ then the BO includes Reasonable and Prudent Alternatives (RPAs). These are alternatives that avoid jeopardy or adverse modification of critical habitat in a manner consistent with the intended purpose of the project, within the scope of FERC's legal authority, and are economically and technologically feasible.¹⁰ If the agency finds that the project will not cause jeopardy or adverse modification to critical habitat, then the BO includes RPMs which minimize the impact of incidental take¹¹ but do not modify the basic design, location, scope, duration, or timing of the Proposed Action.¹² Finally, regardless of the type of BO, the ITS specifies the permissible level of take of the listed species.¹³

G. Wild and Scenic Rivers Act

The Wild and Scenic Rivers Act (WSRA)¹ provides for the protection and preservation of certain rivers and their riparian lands. A river may be included in this system by Congress or, if protected by an act of the State legislature, the Secretary of the Interior. Sections 7, 5, and 11 have special relevance for hydropower licensing.

Under Section 7,² the agency administering the WSRA on a river (BLM, NPS, USFWS, or USFS) reviews any license application for a project on or affecting that river. Section 7 prohibits an original license for any project that is proposed to be located within the boundaries of a designated river or a Congressionally authorized study area.³ Section 7 strictly prohibits FERC from issuing a new license for any project works that lie within a designated river reach.⁴he Federal Energy Regulatory Commission shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act, as amended, on or directly affecting any river which is designated in section 1274 of this title as a component of the national wild and scenic river system or which is hereafter designated for inclusion in that system....”

] FERC has established a policy of dismissing license or preliminary permit applications where the proposed development is barred by the WSRA.⁵

For any project (including all works) located wholly outside designated boundaries, the administering agency determines whether the project would invade the designated area (e.g. through the backwater effect of an impoundment) or unreasonably diminish the scenic, recreational, and fish and wildlife values present at the date of designation, also called “outstandingly remarkable values” (ORVs). The standard for a Congressionally authorized study river is similar.⁶

WSRA section 5(d) states: “In all planning for the use and development of water and related land resources, consideration shall be given by all Federal agencies involved to potential national wild, scenic, and recreational river areas.” It further requires that “the Secretary of the Interior shall make specific studies and investigations to determine which additional wild, scenic and recreational river areas ... shall be evaluated in planning reports by all Federal agencies as potential alternative uses of water and related land resources involved.”⁷ In partial fulfillment of the Section 5(d) requirements, the National Park Service has compiled and maintains a Nationwide Rivers Inventory (NRI), a register of river segments that potentially qualify as national wild, scenic or recreational river areas. The NRI is a comprehensive plan under Section 10(a)(2)(A) of the Federal Power Act.

Under WSRA Section 11(b), NPS is authorized to assist, advise, and cooperate with governments, landowners, or individuals to plan, protect, and manage river resources.⁸

H. Water Quality Certification Under CWA section 401(a)

Under Clean Water Act (CWA) Section 401, FERC may license a hydropower project only if the State where the project discharges certifies that the project will comply with applicable water quality standards.¹ FERC must include in the license any conditions the state requires in order to certify the project.

The state where the project is located must assure compliance with the Clean Water Act water quality standards before issuing a water quality certification. Each state's water quality standards are made up of beneficial uses, narrative and numeric criteria, and the anti-degradation policy.² If the state finds that a project would violate water quality standards and cannot be reasonably expected to meet water quality standards through remedial actions, the state must deny certification, and FERC must also deny the license.³ A state, however, can include limitations on discharge of pollutants (such as construction debris or erosion) and “any other appropriate requirement of State law” to assure compliance with water quality standards.⁴

Depending on water quality standards in individual states, the water quality certification can establish a variety of different types of conditions. For example, a certification may establish a minimum flow schedule or flow storage,⁵ require fish passage or creation of a recreational facility for enhanced access.⁶ A certification may also reserve the State's authority to reopen the certification, if the State determines any such condition to be necessary for such compliance. A certification can also be issued with an adaptive management plan to meet water quality targets in the future. As with Section 4(e) or 18 conditions, FERC may not amend or delete a certification condition. A licensee (or other participant) may challenge an objectionable certification only in State court.⁷

I. Consistency Determination Under the Coastal Zone Management Act

Under Coastal Zone Management Act (CZMA) section 307, a license must include a valid certification approved by the State to assure that project construction and operation will be consistent with the State's coastal zone management program.¹ FERC may not issue a license if the State, subject to approval by NOAA, determines that the project is inconsistent with that program.²

A. Pre-Application Document

The Pre-Application Document (PAD), which is filed with the NOI, compiles existing information about project facilities, operation, and known or potential impacts on environmental quality, including protection, mitigation, and enhancement measures.¹ The PAD must include available information such as studies, raw data, maps, and other information that is either in the licensee's possession or obtainable from third parties including agencies and the public. The license must use “due diligence” to collect the information.²

The PAD will form the basis of the study plan, license application, and the environmental document that follows.³ Among other information, the PAD must include five fundamental elements.

Process Plan states the proposed schedule of all activities prior to the filing of the license application.

Project Location, Facilities, and Operation describes the project as constructed and operated under the existing license.

Existing Environment and Project Impacts addresses the following resources areas:Geology and Soils; Water Resources; Fish and Aquatic Resources; Wildlife and Botanical Resources; Wetlands, Riparian, and Littoral Habitat; Rare, Threatened, andEndangered Species; Recreation and Land Use; Aesthetic Resources; CulturalResources; Socio-Economic Resources; and Tribal Resources.

Preliminary list of issues describes the issues likely to be disputed, and an outline of applicable studies.

List of contacts is self-explanatory.⁴

The licensee must make the PAD and the studies it refers to available to any requesting participant, preferably in electronic form.⁵

B. Study Plan

Since a license is a privilege to use public lands and waters, the licensee has the burden of proof under the Administrative Procedures Act (APA) to support its application for that privilege.¹ Before preparing the application, the licensee must compile existing information, such as its own records of electricity generation under the existing license, or flow gauging records upstream and downstream of the dam, in the PAD.² After publication of the PAD, it must also conduct field and other studies to supplement that existing information.³ In effect, the study plan provides for the licensee to supplement the existing information in anticipation of the exhibits required in the license application itself.

An application must be filed three years after the NOI.⁴ A licensee will conduct studies within that period, except in unusual circumstances.⁵ Such studies are undertaken according to a written document called a study plan.⁶ The licensee drafts, amends, finalizes, and implements the study plan in consultation with agencies and other participants. FERC must approve the plan in the ILP.⁷ The study plan must: (1) identify each study to be completed by the licensee to characterize existing conditions of resources affected by the project; (2) identify corresponding management goals and objectives; and (3) and propose analytical methods (generally, field studies) to determine the nature and scope of the project's existing impacts under the original license and alternatives to mitigate such impacts.⁸ Following any dispute resolution, the licensee will implement the study plan and conduct field and other studies and report the results.⁹

There is no specific requirement as to the number and types of studies in a study plan. A study plan, however, supplements existing information to complete the exhibits required in a license application and environmental document. We address below those study plan elements that tend to be most significant to the final decision in a relicensing proceeding.

Water Resources. A project converts the kinetic energy or force of river flow into electricity. The most important evidence in a license application is the pattern (the amount and variability) of flow at any given unit of time, available either continuously from the river or via reservoir storage to the powerhouse. A licensee must collect all flow data from gages in the project vicinity over the period of record, such as the term of the existing license; analyze that data for reliability (e.g., did the gage malfunction or otherwise produce inaccurate data?); and synthesize data to correct for any gaging errors. It will then use a water balance model to predict how alternatives for project operation would affect the level of any reservoir, energy generation, and flow release downstream of the dam or powerhouse. The model is both predictive across the proposed term of the new license and comparative, by permitting analysis of the incremental impacts of existing operations and alternatives. Thus, the water balance model answers questions such as: “if the minimum flow schedule for protection of a fishery is increased from the current X cfs to Y cfs, then how will reservoir level, generation, and dependable capacity change?”

Fish and Aquatic Resources. The most fundamental decision in any licensing decision is flow regulation. What is the most beneficial schedule for storage of in-flow and release, and how will release be allocated between the powerhouse and any bypass reach between the dam and the powerhouse? Answering that question typically turns on two variables: the resulting energy capacity and generation on the one hand, and impacts on aquatic resources on the other. Plainly, the populations and habitats of downstream fisheries and amphibians, and even of wildlife species dependent on riparian vegetation (e.g., song birds), are directly affected by the flow schedule. A licensee typically uses the Instream Flow Incremental Methodology (IFIM) or a similar method to predict how alternative flow release schedules will affect the habitat availability of target fisheries.¹⁰ After representative transects of the affected channel have been measured, IFIM predicts the wetted depth and width of the channel, and more specifically, the availability of suitable habitat for a given fishery, at each alternative flow release schedule.

Further, the study plan must address the impacts of the project on passage of riverine or diadromous fish. Typically, NMFS and FWS will determine the scope and method used for this purpose, to assure the adequacy of the record for the Section 18 prescription.

Wetlands, Riparian, and Littoral Habitat. A study plan addresses how a new license will affect lands both within the project boundary and adjacent. It analyzes whether existing uses of the lands owned or managed by the licensee contribute to any adverse impacts on channel form, such as erosion; and whether alternatives (such as a ramping rate) will mitigate such impacts.

Rare, Threatened, and Endangered Species. A study plan will specifically address each federally listed or proposed species of fish, wildlife, or plant, while it may otherwise rely on a “canary in the coal mine” to evaluate project impacts on non-listed species.

Recreation and Land Use. A study plan addresses how a new license will affect public recreation on any reservoir and the river downstream. Its scope includes facilities (such as the locations and usage of facilities such as boat ramps or picnic areas) and operation (such as the impacts of alternative minimum flow schedules on reservoir levels and downstream navigability). A typical study plan relies on FERC Form 80, which reports on recreational use under the existing license in 6-year intervals; and surveys of existing users to determine demand (or potential use) of additional facilities or services.¹¹

Aesthetic Resources. FERC regulations require a description of the visual characteristics of the lands and waters affected by the project.¹² This includes a description of the dam, natural water features, and other scenic attractions of the project and surrounding vicinity. If the project affects a waterfall, a gorge, or a similar place attractive for its beauty, the licensee may conduct a study to evaluate aesthetic quality at different flows that can lead to license requirements to provide aesthetic flows. Methods rely on user surveys or professional judgment and include on-site or photographic user surveys where recreationists respond to different flows.¹³

Cultural Resources. The study plan addresses how a new license will affect tribal and other historical sites within the project boundary. The licensee identifies known sites, surveys for unknown sites, and analyzes alternative forms of protection of such sites. Pursuant to the National Historic Preservation Act (NHPA),¹⁴ the State Historic Preservation Office (SHPO) will review the study plan for adequacy.

C. License Application

After the licensee implements the study plan, collects the study results, and reports the results to the participants for comment, it will publish a draft license application. The license application will be filed approximately 2.5 years before the expiration of the existing license for review of participants. The application will synthesize relevant information (including study results) into lettered exhibits, which display and analyze the information to describe project design, operation (including capacity, generation, and revenues), and environmental impacts of the proposed new license. There are eight such exhibits, as shown in Table 1.

TABLE 1

LICENSE APPLICATION EXHIBITS

D. Evidence Submitted by Participants

Any participant may submit written evidence into the record. In the event that evidence conflicts with the licensee's, FERC will give weight to the evidence that is most reliable. Thus, a subjective opinion about project impact on a given resource is given less weight than data based on actual observations or measurements. Participants may submit evidence at any time after the NOI. More typically, evidence is submitted in response to the study plan, license application, or environmental document.

E. Environmental Document under NEPA

Under the National Environmental Policy Act (NEPA), FERC must publish an environment document to analyze the environmental impacts of any licensing decision that may have a significant impact on environmental quality.¹ As a practical matter, FERC publishes such a document in every proceeding for a new or amended license, because there is always dispute or uncertainty about such impacts. The document is intended to assist FERC and other regulatory agencies² to make rational decisions in the face of such dispute or uncertainty.

NEPA does not change the balance between development and other beneficial uses of the affected lands and waters as required by FPA Part I.³ NEPA does not change the level of protection, mitigation or enhancement of natural resources required by other laws, such as the Clean Water Act. Instead, the environmental document is an essential part of the record that forms the basis of the licensing decision.

Form. An environmental document must be “concise, clear, and to the point,” and supported by “evidence that the agency has made the necessary environmental analyses.”⁴

The environmental document in a licensing proceeding may be in two forms: an Environmental Assessment (EA) where the new license (including any mitigation or restoration measures) would probably not have a significant impact on environmental quality,⁵ or an Environmental Impact Statement (EIS), which applies to a decision which probably will have such significant impacts.⁶ Although the EA tends to be shorter than an EIS both forms cover the same topics: project description, a reasonable range of alternatives for relicensing, a comparison of the impacts of such alternatives, and a recommended decision.⁷

FERC's Process. After the NOI, FERC's Office of Energy Projects (OEP) issues a Scoping Document for public comment. The scoping document broadly outlines issues to be evaluated in the environmental document. Next, OEP issues a Notice of Readiness for Environmental Analysis (REA) after the application has been filed, once it determines all necessary studies are complete.⁸ In the ALP, the REA Notice is titled “Notice Requesting Terms and Conditions,” but it has the same function. The REA Notice triggers a 60-day period for submittal of recommended and mandatory conditions, after which OEP proceeds to draft the environmental document.⁹

OEP staff or a consultant under their supervision drafts the environmental document, ¹⁰ relying heavily on the study results and license application. OEP may also ask another public agency with jurisdiction over the licensing decision, including those with authority to prescribe or recommend conditions, to cooperate in the drafting of the environmental document.¹¹ Unfortunately, FERC and other regulatory agencies rarely cooperate in the preparation of the environmental document in a licensing proceeding. This is the result of FERC's interpretation of its ex parte rule (discussed in Section 3.2.2(F) below) to mean that another agency may formally cooperate only if it foregoes its right to participate as a party in the proceeding and appeal any adverse decision.¹² As a result, agencies generally decline cooperating agency status, limit themselves to comments on the draft document prepared by FERC, and do not prepare their own document due to budgetary constraints.

FERC must ask for public comment on its environmental document, including an Environmental Assessment that may be published in final form without a prior draft.¹³ The environmental document must comply with the content requirements and facilitate meaningful comment.¹⁴ FERC may prepare and circulate a second document for a further round of public comment, if circumstances (including applicable laws) change substantially after the close of the public comment period.¹⁵

FERC must respond to comments in the final environmental document. If the EA was published as a final (without a draft) it will respond to comments in the licensing order. SeeSection 4.5.2 below. FERC may respond by modifying alternatives, including the proposed alternative; adding new alternatives; supplementing or modifying analyses; or explaining why the comments do not warrant further response.¹⁶

Mandatory Conditions Review Process (MCRP). The Departments of Commerce and Interior have adopted a review process for their respective mandatory conditions, exclusive of any FPA section 10(a) or (j) recommendations. The policy - proposed to be adopted as a rule - provides that they will file such conditions in preliminary form in response to the REA Notice or, in an ALP, the Notice Requesting Terms and Conditions.¹⁷ The filing requests public comments. Each agency will consider comments submitted during any comment period on the NEPA document. Each will submit to FERC modified conditions, taking into account such comments, within 60 days after the NEPA comment period.

Content of Environmental Document. Each environmental document in a licensing proceeding consists of topical sections organized as follows:

Statement of Project Purpose states the purpose or need for the new license.¹⁸ In virtually every case, the stated need will be for the generation of electricity for the local or regional service area to which the project is connected.

Proposed Action and Alternatives describes the No-Action Alternative, which is the renewal of any existing license without any modification; the Proposed Action, outlinedin the license application; and other Action Alternatives. These Action Alternatives are the “heart” of the environmental document.¹⁹ FERC must “rigorously explore and objectively evaluate all reasonable alternatives...”²⁰ and identify possible environmentalmeasures before approving the license application. The range of Action Alternatives may include project decommissioning in some form that may be necessary for compliance with the Clean Water Act, Endangered Species Act, or other law.

Environmental Setting describes the existing environmental conditions that are the starting point for comparison of No-Action and Action Alternatives.²¹ They consist of: (A) the existing conditions of affected resources in the project vicinity considering the existence of the dam and (B) the likely future conditions assuming a continuation ofproject operations, or the No-Action Alternative.²² Current FERC policy is to define “baseline” to be conditions that exist today.²³

Environmental Impacts analyzes how each Action Alternative will change the baseline for affected resources. It includes: direct impacts (e.g., the discharge of waste from any new construction); indirect impacts (e.g., the public use of any new recreational facility); and cumulative impacts, which are defined “the impacts on the environment which result from the incremental impact of the action when added to other past,present, and reasonably foreseeable future actions regardless of who undertakes the other actions.²⁴ This section identifies any irreversible and irretrievable commitments of resources under the Proposed Action or Action Alternative.²⁵ In a licensing proceeding, this section is typically organized by topics that correspond to the form of the Pre-Application Document or application itself.

In Recommended Action, OEP tallies the benefits and costs, to the licensee as well asthe public for the Proposed Action and each alternative action. OEP then recommends an alternative for the Commissioners' approval. The recommended alternative is usually a mix of features of the Action Alternatives, including any mandatoryconditions submitted by other agencies.

List of Preparers and Agencies or other Persons Consulted is self-explanatory.²⁶

F. Prohibition Against Private Communications: The Ex Parte Rule

Once the licensing proceeding starts, FERC staff may only communicate with the licensee or any other participant in a public manner (e.g., at a public meeting or a written document served to the service list (as discussed in Section 3.2.2(F) and 3.2.4(C)). This ex parte rule means that FERC may only communicate with the licensee or other participants “on the record.” It cannot have a non-public meeting or conference calls or consider a non-public written submittal by a participant, on the merits of the proceeding.¹ In short, a participant may not privately seek to persuade FERC to favor its evidence or opinion on a disputed factual issue.² This rule assures fairness and transparency in the development of the record that FERC will use for its decision.³

The ex parte rule does not apply when the NOI is filed. That is because FERC does not formally deem the relicensing proceeding to begin as a result of the NOI. Instead, it applies when the license application is filed, because that step means that FERC is compelled to make a decision.⁴ Up until that step, it is theoretically possible that the licensee would not perfect a license application. Sections 4-6 flag when the rule applies in the three forms of process.

There are several important exceptions to the ex parte rule's requirement that any communication with assigned FERC staff must be on the record. The rule does not prohibit off-the-record communications: (A) related solely to the procedure; (B) to or from FERC staff who have formally been recused from participating in the Commission's decision; (C) to or from a cooperating agency that has regulatory responsibilities, i.e., cooperating agencies; (D) related to any emergency concerning a facility regulated by FERC, or (E) made pursuant to a written agreement among all parties which has been approved by FERC.⁵

G. Accessing the Record in Electronic Databases

FERC maintains a public record of all filed documents that relate to each project. FERC has established an eLibrary and related services that make all documents filed since 1989 available over the internet. FERC also operates a Public Reference Room, including public computers, for walk-in visitors.⁶ Traditionally, the record of a licensing proceeding (other than final order) has been available only in paper form to such walk-in visitors or by mail through a copy service.

Written Request. If you do not have access to a computer, or if the specific record you need is not on the eLibrary, you may mail a written Request for Record to:

Public Reference Room

Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426.

The request must identify the document by date, docket and any sub-docket number, and any accession number. You may also go to the Public Reference Room and submit such a request in person.

eLibrary. This database contains: (A) an index of all documents filed about a project, regardless of date, including a unique accession number for each document; and (B) scanned images of most documents filed since 1989, downloadable in .pdf or Word format. eLibrary is accessible without prior registration at www.ferc.gov/docs-filing/eLibrary.asp.

The search logic is straightforward. First, enter the docket number for the project and any date range. The docket number is the unique identification assigned by FERC's Office of Secretary to a project, expressed in the form of P-XX where “P” means “hydropower project” (as distinct from gas and other facilities under FERC's jurisdiction), and “XX” is the unique number (between one and five digits) assigned to a given project.⁷ You may narrow the search by specifying author or type of document. See www.ferc.gov/docs-filing/eLibrary/tips.asp.

eSubscription. eSubscription permits any registered user to receive e-mail notice whenever a filing related to a project is made. This supplements service of a paper copy of any filing. See www.ferc.gov/docs-filing/esubscription.asp.

eRegistration. A person must register name, address, user and password in order to enter an eSubscription or make an eFiling. See www.ferc.gov/docs-filing/eregistration.asp.

H. Limitations on Access to the Record:

Critical Energy Infrastructure Information

Some project information is deemed non-public. In 2003 FERC created a restricted category, Critical Energy Infrastructure Information (CEII). Information may be classified as CEII if it relates to the production, generation, transmission or distribution of energy; provides strategic information beyond location of the critical infrastructure; or could be used in attack on critical infrastructure. CEII is exempt from mandatory public disclosure under the Freedom of Information Act. In order to obtain CEII you must submit a request to the CEII Coordinator at FERC.⁸ Instructions for making such a request are available at http://www.ferc.gov/help/filing-guide/ceii-request.asp.

A. Consultation

The FPA requires that a licensee must consult with agencies and other participants, from the NOI through the filing of the license application.¹ This reduces the risk that significant issues will be raised for the first time in pleadings filed by participants. More positively, it ensures that the licensee understands the interests of other participants, regardless of whether they agree.

B. Comments and other Standard Filings

Types of Filing. There are many different types of filings. An application is the request for a license, in the form prescribed by Rule 204 and 18 C.F.R. Part 4, 5, or 16. A comment is a response to another filing. Under Rule 212, a motion is a request for an interlocutory order (e.g., to intervene, require a particular study, or resolve a study dispute) preparatory to the final decision. Under Rule 207, a petition is appropriate to seek a declaratory order, as described below. Under Rule 206, a complaint alleges that a licensee is violating a license, rule, or order. Under Rule 713, a request for rehearing is an administrative appeal for FERC's licensing order.

Format. The Rules of Practice and Procedure establish minimum format requirements applicable to all filings except an application, which is subject to special requirements.

A filing must be on 8.5 x 11 inch paper. It must have a 1.5-inch left margin.¹ It must be typewritten or otherwise legible.² It must begin with the caption that identifies the docket (e.g., the project number and any sub-docket).³ It must include a heading that describes its purpose (e.g., “Comments on New License Application”).⁴ It must then state relevant facts and law including citations.⁵ It must be signed.⁶ Signing verifies that contents are true to the signer's knowledge, and that the signer (if not representing him or herself) has authority to represent the party on whose behalf the filing is made.⁷

Submittal. You may submit a pleading to FERC in paper form (by mail or hand-delivery to the Office of Secretary) or in electronic form.⁸ In paper form, you must submit the original and eight identical copies to:

Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, DC 20426.⁹

Electronic filing is now the preferred form of filing. It is cheaper, since paper copies are unnecessary. It is more reliable, since you immediately receive a confirmation of receipt. The Secretary strongly prefers it, because it creates a record in eLibrary without the necessity of a post-filing scan.

The eFiling system has an easy sequence of steps. After completing a one-time registration (name, address, telephone number, and email address) via eRegistration, you go to www.ferc.gov/docs-filing/efiling.asp. You log on, identify the party on whose behalf the filing is made, identify the docket and type of document, and then enter the document title. Next, you upload the document in Word or .pdf format. A file name must not contain any spaces or characters other than letters or numbers and must be limited to 25 characters. The file must be 10 MB or less in size; if your filing includes graphics, it may be broken into several parts for eFiling. It is unnecessary to sign an e-filed document, since the log-on substitutes for signature.¹⁰ Finally, you confirm that you intend to complete the filing, and you press “done.” FERC emails to the filer a Notice of Acknowledgement immediately after the eFiling. After the eFiling system converts the file to a .pdf, FERC sends a Notice of Receipt and asks for confirmation of the format, which is optional. Finally, FERC emails a Notice of Acceptance once the Secretary determines that the pleading is in the proper form. If it is not in the proper form, the Secretary may respond with a Notice of Rejection. The Notice of Acceptance or Rejection typically issues within a few business hours of the filing.

To be timely, a filing (whether in paper or electronic form) must be received by the Secretary not later than 5 p.m. EST on the due date.¹¹ We add two notes of caution. First, receipt by the Secretary, not postmark, determines timeliness of a paper filing. Second, the filer takes the risk of delay by the Post Office or FedEx, or the occasional failure of its own ISP or FERC's eFiling system. You should not wait until the last minute to make a filing which, by statute, must be received by the due date (e.g., a rehearing request), since FERC will not excuse late filing even if you are not at fault.

Service. The filer must serve each pleading on the service list maintained by the Secretary.¹² Service is by email through eSubscription, unless: (A) a proceeding commenced before March 21, 2005 and a given party is not so subscribed or (B) the parties agree to use mail, fax, or other means of delivery.¹³ Filing with FERC does not constitute service on the service list.

The Secretary maintains a service list for each proceeding. This is a list of persons who have intervened and become parties (see Section 3.2.4 (C) below) and of other persons who by statute or otherwise are entitled to receive service in a proceeding. The service list includes name, address, and party represented. The service list for any proceeding is available at http://ferconline.ferc.gov/MailListLORreq.aspx. Each pleading must include a declaration of service by the filer, in the following form: “I hereby certify that I have today served the [document title] upon each person designated on the official service list for this proceeding.”¹⁴ See Appendix C for a sample declaration of service.

C. Intervention

While the licensee is a necessary party in every licensing proceeding, any other person who shows a direct interest in the outcome of the proceeding may intervene to become a party.¹ For example, a membership organization has a direct interest if its members use the affected lands and waters.²

Why intervene? A person may file comments in a licensing proceeding without becoming a party. An intervener, however, has two fundamental rights: (1) it will be served with all of the documents that are filed in the proceeding, because the intervenor will be included in the service list (see above), and (2) it may file a motion or, on final decision, seek rehearing or judicial review.³ While a non-party may now use eSubscription as a substitute for being on the service list, it may not file a motion or, more importantly, may not seek rehearing or judicial review of the final decision.

Format. You file a type of pleading called a motion to intervene. The motion includes the heading, “Motion to Intervene by [your name],” which must describe your interest in the proceeding, such as your ownership of adjacent land or your (our your member's) use of the affected lands and waters for recreation. See Appendix C for an example.

An intervention may be neutral or take a position on the license application. For example, clearly state you oppose the issuance of the preliminary permit, license, or exemption or that you do not oppose approval of the application on the condition that certain terms and conditions are included in the preliminary permit, license, or exemption.

Timeliness. You may file a motion to intervene once FERC has accepted the relevant application (e.g., new license, permit, or exemption). For example, in the ILP process motions to intervene are appropriate after the formal application is filed (see Section 4.2.2). FERC publishes a notice of acceptance of such application, once it determines the application is in the proper form, and that notice sets the deadline for intervention. eSubscription to that proceeding is the simplest method to assure that you receive that notice. If FERC prepares an Environmental Impact Statement (EIS), it permits a second round of intervention during the public comment period on the draft.⁴

If timely filed, your motion will be granted automatically unless another party opposes your motion.⁵ If another party opposes your motion or your motion is not filed on time, you will become a party only when FERC expressly grants your motion.⁶

If you miss the deadline for filing a timely motion to intervene, you may still file a motion for late intervention.⁷ The motion must state that: (A) you have good cause for filing late; (B) your intervention will not disrupt the proceeding or cause prejudice to existing parties; and (C) other parties may not adequately represent your interests. FERC must affirmatively grant any such motion. The odds are inversely proportional to the delay: a late motion filed just after the due date will be approved, while a motion filed after the licensing decision (e.g., to support a rehearing request) will probably be rejected.

D. Interlocutory Relief

If FERC staff make a decision that would cause irreparable harm to your interests, you may request the Commission review the decision, as interlocutory relief.

As a general matter, OEP Director and staff conduct a “paper hearing” in a relicensing proceeding. They make all decisions - such as whether to accept an application as adequate, or how to resolve a study plan dispute - through the issuance of written decisions prior to the licensing order. Interlocutory relief against such non-final decisions may take the form of a “Motion for Interlocutory Relief,”¹ or in the alternative, “Petition for Declaratory Order.”

Motion for Interlocutory Relief. The motion must be made within 15 days of the disputed ruling and must state why prompt Commission review is necessary to prevent detriment to the public interest or irreparable harm to any person.² While other parties may answer, the presiding officer³ is not required to consider answers in issuing its determination.⁴ A presiding officer must issue an order, orally or in writing, containing a decision on appeal, and provide the date of the action taken.⁵

If an appeal is granted, the presiding officer will send forward to the Commission a memorandum that sets forth the relevant issues and an explanation of the rulings on the issues, and participant's motion and any answer.⁶ Any decision to grant appeal will not suspend the proceeding unless otherwise ordered by the presiding officer or Motions Commissioner.⁷

If the presiding officer does not issue an order within 15 days, the appeal is deemed denied.⁸ If the appeal is denied, the participant may appeal the decision to the Motions Commissioner within seven days of the denial.⁹ The appeal must state why prompt review by the Commission is necessary to prevent detriment to the public interest or irreparable harm to any person, and must include a copy of the written order denying appeal, or a copy of the transcript of the oral order.¹⁰ If the Motions Commissioner makes no determination within seven days of the date the original motion for interlocutory appeal is denied, the appeal of the presiding officer's denial also will be deemed denied.¹¹ Unless the Commission acts on an appeal permitted by a presiding officer or Motions Commissioner within 15 days after the date on which the appeal is granted, the contested ruling of the presiding officer will be reviewed in the ordinary course of the proceeding as if the appeal had not been made.¹²

Petition for Declaratory Order. A participant may petition for a declaratory order to end a dispute before the final decision, such as a dispute about whether a study plan complies with applicable requirements. In effect, such a petition moves the issue to the head of the queue and obliges the Commission to make a decision before the final decision (namely, whether to grant or deny the license application). The normal fee of $ 19,040, which is charged in natural gas and other non-hydropower proceedings, is waived in licensing proceedings.¹³

A. Pre-Application Document (PAD)

Comments must state any concerns about the PAD's treatment of existing information about project impacts. The commenter may provide additional information omitted from the PAD. Comments must also state any concerns about the schedule or sequence of steps in the licensee's Process Plan and recommend appropriate modifications to that plan.

B. Study or Information Request

Comments on the PAD must include study or information requests. In addition to outlining existing information, the PAD will include a Preliminary Issues and Studies List that describes in general terms the potential studies that the licensee may undertake. This description functions as a preliminary outline of the eventual study plan. Participants should comment on the preliminary issues. However, in commenting on this description, comments must now make a big leap forward in specificity toward the study plan itself. The commenter must specifically identify and justify each study that it requests be included in the study plan.

Study requests should include any study which the commenter believes is necessary for any condition in the licensing decision, whether FERC's or another agency's. Study requests should also cover those issues that contribute toward compliance with the National Environmental Act's requirements to evaluate alternatives and their relative impact on resources. Thus, the requests are intended to assure the adequacy of the record for conditions under FPA sections 10(a) and 10(j), which FERC administers, as well as FPA sections 4(e) and 18, CWA section 401(a), and other statutes administered by other agencies as discussed above.

Each such request must be in a specific form where the commenter addresses seven criteria (hereafter, study criteria): statement of the subject and purpose of the request (e.g., “this study will assist in our understanding of project impacts on the following resource...”); statement of the relevant management goals of any agency or tribe with jurisdiction over the resource to be studied; explanation of any relevant public interest considerations supporting the request, if the commenter is not an agency; description of existing information concerning the subject and an explanation why additional information is needed; explanation of the nexus between the project and the resource to be studied, and how the study results will inform the development of the license articles; explanation how any proposed study methodology is consistent with generally accepted practice in the scientific community or, as appropriate, considers relevant tribal values and knowledge; and description of considerations of level of effort and cost, as applicable, and why any proposed alternative studies would not be sufficient to meet the stated information needs.¹

C. Scoping Document 1

Comments on Scoping Document 1 (SD-1) should be organized topically, following that document's outline. They should state any concerns about the description of project and its impacts or the range of alternatives for the Proposed Action. Such alternatives must bracket what FERC and prescribing agencies may properly consider in reaching the licensing decision. Thus, if a range of minimum flows from X to Y cfs would arguably provide the required protection for a given resource, then the environmental document must consider such a range. The licensee's support or opposition with respect to any such alternative is irrelevant at this early step, since SD-1 or the environmental document which will follow are intended to provide an objective analysis, not a justification for any one position. Indeed, a commenter who requests an alternative in such comments is not expressing support for that alternative in the final decision - merely stating that the alternative should be included in the environmental document to assure an objective basis for the licensing decision. Accordingly, such comments should specifically identify alternatives for operation (such as minimum flow schedule, ramping rate, or lake level) and other environmental conditions that the commenter believes should be included in the NEPA review.

A. Modified Study Request

A proposed modified study must comply with the study criteria discussed in Section 4.2.4(A) and must also show that: (1) approved studies were not conducted as provided for in the approved study plan; or (2) the study was conducted under anomalous environmental conditions or that environmental conditions have changed in a material way.”¹

B. New Study Request

A proposed new study must satisfy the study criteria discussed in Section 4.2.4(A). It must also meet the additional criteria: (1) whether any material changes in the law or regulations applicable to the information request has occurred; (2) why the goals and objectives of any approved study could not be met with the approved study methodology; (3) why the request was not made earlier; and (4) whether significant change has occurred in the project proposal, or significant new information material to the study objectives has become available.¹ Further, any proposal for a new study following the Updated Study Plan must show “extraordinary circumstances,” not just good cause.²

A. Exhibit E (Environmental Exhibit)

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

B. Exhibit H (Developmental Benefits)

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

A. Tendering Notice

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.

B. Resolution of Pending Information Requests

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

C. Notice of Deficiency

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

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

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.

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

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