1 Introduction

The Hydropower Reform Coalition (HRC) publishes this Citizen Guide to encourage effective citizen participation in the licensing of non-federal hydropower projects.  The Federal Energy Regulatory Commission (FERC) decides, through licenses, how such projects will be constructed, operated, and maintained.  Licenses determine how to allocate river flows between energy generation and other beneficial uses recognized by the Federal Power Act (FPA) and other applicable laws.  Effective citizen participation helps assure that licenses protect and restore fish and wildlife resources, recreation, and water quality of the rivers affected by these projects.  This guide is a public document available to licensees, property owners, public agencies, and all other participants who share our interest in assuring that licenses achieve the best balance of beneficial uses in the public interest. This guide is available to review or download at the HRC website, https://www.hydroreform.org/hydroguide/hydropower-licensing/citizen-tool....

Hydropower projects are located in 47 states.[1] A total of 1,020 licenses are in effect.  Most activity in hydropower regulation relates to the relicensing of existing projects.  Between 2000 and 2015, FERC relicensed 318 projects.[2]

A license for a given project has a term of 30 to 50 years, subject to renewal.  Five years before the current license expires, the licensee must start a relicensing proceeding.  It formally notifies FERC of its intent to seek a new license, then develops and implements a plan of study of project impacts on the resources of the affected river.  Using study results, it files an application for a new license.  Meanwhile, active participants have meaningful opportunities to influence the study plan and application.  They may assist the licensee to pick the study methods, cooperate in fieldwork, interpret study results, and even draft the new license application.  Most importantly, they may negotiate a settlement with the licensee that, if approved by FERC, will be the basis of the new license.  Such a settlement is river democracy in action.

We publish this Citizen Guide to further the HRC’s objectives to achieve restoration of environmental quality and recreational values of rivers affected by licensed projects, consistent with reliable and economical energy supply.  The guide restates the laws, rules, procedures, and substantive requirements that apply to licenses.  This restatement is intended to help you understand the fundamental structure of a licensing proceeding, notwithstanding the complexity (running to many thousands of pages) of the actual legal authorities.  We have attempted to describe these requirements in a neutral manner and, for that reason, have solicited the peer review and welcome the further comments of FERC, the National Hydropower Association, EPRI, and other non-HRC participants.    

We also state our recommended strategies for effective participation in a licensing proceeding, which spans five years or more.  Effectiveness means that you add value to the evidentiary record that the licensee will compile regarding project impacts and that you persuade FERC and other regulatory agencies to adopt license conditions which further the public interest as you understand it.  Since the evidentiary record in each licensing proceeding is two to twenty linear feet of filing space, and since the licensee and other participants represent many different interests, you participate to assure a fair hearing for that balance which you believe best serves the public interest.  Our recommendations are highlighted in italicized text in text boxes. 

Fundamentally, what is necessary for effective participation is curiosity about the project and its impacts, along with the patience or at least the stamina to keep current on the evidentiary record, attend relevant meetings – many dozens in the course of a proceeding involving collaboration between the licensee and participants – and otherwise represent your interest in that crowd.  In exchange for your efforts, you have an extraordinary opportunity to use the leverage provided by the FPA and other applicable laws to protect and restore a river controlled by a hydropower project.  The law provides that all participants with an interest in the decision have equal standing to participate.  With few exceptions, the groups and individuals who make this commitment view it as one of the better decisions they have made to improve the future of our rivers. 

This Citizen Guide is intended to complement two other public documents.  The first is FERC’s Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing (April 2004) (hereafter, Licensing Handbook).[3]  The Licensing Handbook describes the mechanics of the licensing processes.  The second reference document is the Interagency Task Force’s Report to Improve the Hydropower Licensing Processes (December 2000).[4]

This Citizen Guide replaces prior editions.  It reflects new directions in hydropower regulation, including the Integrated Licensing Process (ILP) (July 2003) as well as FERC’s increasing reliance on settlement as the basis of a license.  HRC will keep this Citizen Guide current through periodic updates.

[1]               FERC, Projects Map, available at www.ferc.gov/for-citizens/projectsearch/SearchProjects.aspx

[2]               See FERC, “Complete List of Issued Licenses” (updated Nov. 9, 2015), available at https://www.ferc.gov/industries/hydropower/gen-info/licensing/exemptions.asp

This Citizen Guide does not address federal hydropower projects operated by the U.S. Bureau of Reclamation, Army Corps of Engineers, Tennessee Valley Authority, or Bonneville Power Administration.  Those projects, which total half of the nation’s hydropower generation, are not under FERC’s jurisdiction, since Congress authorized them under statutes other than the Federal Power Act.  See https://www.americanrivers.org/about-rivers for guidance on citizen participation in the operation of such projects.  Further, 68,000 of the nation’s 70,000 dams (97%) do not include any hydropower capacity and are not under FERC’s jurisdiction for that reason.   

[4]               Available at https://www.ferc.gov/industries/hydropower/indus-act/itf/itf-reports.asp.  This report includes sections entitled: “National Environmental Policy Act Procedures,”  “Improving the Studies Process,”  “Improving Coordination of Endangered Species Act Section 7 Consultation,” “Agency Recommendations, Conditions, and Prescriptions under Part I of the Federal Power Act,” “FERC Noticing Procedures,” “Guidelines to Consider for Participation in the Alternative Licensing Process,” and “Anatomy of Trackable and Enforceable License Conditions.”  While the report predates the adoption of the Integrated Licensing Process, it is still helpful guidance on federal agencies’ conduct in recommending or prescribing conditions.