Not less than five years before expiration, an existing licensee for a project must notify FERC of its intent whether to seek a new license. FERC has four options for its final decision in the resulting proceeding: a new license, non-power license, decommissioning, or federal takeover.
FERC attempts to make a final decision in a relicensing proceeding before expiration of the current license. Its new policy, in plain English, is that “the train will run on time.” If FERC does not timely make such a decision, an annual license issues from year to year.1 An annual license is a non-discretionary stopgap in that circumstance.2 The annual license incorporates the conditions of the now-expired license and for that reason is not subject to water quality certification under CWA section 401(a)(1),3 although FERC has the discretion to adopt interim measures in the circumstance where the original conditions are plainly inadequate.4
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See FPA § 15(a)(1), 16 U.S.C. § 808(a)(1).
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See Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC (Platte I), 876 F.2d 109, 114 (D.C. Cir. 1989).
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See California Trout, Inc. v. FERC, 313 F.3d 1131, 1137 (9th Cir. 2002), cert. denied, 124 S. Ct. 85 (2003).
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See Platte I 876 F.2d 109, 118. (“FERC can and presumably should promote the environmental objectives of the ECPA by amending annual licenses to include protective conditions.”).
 | 3 Relicensing Process | Page 37 of 143 | 3.1.1 New License |  |