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3.2.2 Licensing Record

A license must be supported by “substantial evidence” in the record of the licensing proceeding.1 The evidence describes the impacts of the project (and any alternatives for facility design or operation) on the electricity system, environmental quality, recreation, and other beneficial uses of the lands and waters.2 The record must support a decision whether the project is best adapted to a comprehensive plan of development of the basin over the license term, which is 30 to 50 years.3 Evidence must be written and subject to rebuttal (or support) by any participating party. Scientific evidence (e.g., how will project operation affect the availability of habitat for a fish species?) must be based on a generally accepted analytical method that is properly applied.4

 

The record in a licensing proceeding consists of several parts, addressed in subsections below. These are: (A) Pre-Application Document, (B) Study Plan, (C) Application, and (D) Evidence Developed by other Participants, and (E) Environmental Document prepared under NEPA. Further, as discussed in subsection (F) below, any communication with OEP staff on the merits, after the license application is filed must be on the record.

  1. See 16 U.S.C. § 825l; Bangor Hydro v. Federal Energy Regulatory Commission, 78 F.3d 659 (D.C. Cir. 1996).

  2. See 16 U.S.C. §§ 803(a)(1), 808(a)(2).

  3. See id. In any finding based on the record, a federal agency must identify the facts on which it relies, explain why these facts are reliable and relevant then demonstrate how the facts support its decision. See 5 U.S.C. §§ 556, 557, 706(2); Motor Vehicle Manufacturers Assoc. v. State Farm Insurance, 463 U.S. 29 (1983); Burlington Truck Lines v, United States, 371 U.S. 156 (1962).

  4. See Fed. Rules Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993).


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