2.3.4 What are the Basic Legal Responsibilities of Licensee?
The license establishes the legal responsibilities of a licensee for construction, operation, and maintenance of the project.
Generally, for any unconstructed project, the license specifies the plan (including schedule) for design and construction. Once constructed, license articles relate to operation typically specifying a range of reservoir levels, a schedule (varying by year-type or season) for flow release from the dam or powerhouse, and a ramping rate that may limit the rate of change in the powerhouse discharge or other release. For example, the licensee has discretion how to operate the project after compliance with these license articles. Thus, if a license requires a minimum flow release of X cubic feet per second (cfs), the licensee may release more than X cfs at any given time. A licensee may not modify project operations or works prescribed by the license without FERC’s prior approval.
A typical license also requires recreational facilities on any reservoir or river reach within the project boundary, such as boat launches. It specifies measures for fish passage and meeting water quality standards as well as monitoring methods and schedules for measures such as the minimum flow schedule to assure compliance and (in some recent licenses) to evaluate whether the measures have the intended results. Finally, it requires periodic reports of the monitoring results and also standard reports of recreational use and safety as specified in FERC’s general rules.
The format of a license is spelled out in numbered articles establishing duties for construction, operation, and maintenance of the project. A license consists of Standard Articles (see Section 2.3.4(A) below) that are generally applicable.
In addition to the Standard Articles, FERC adopts numbered articles that establish conditions for construction, operation, and maintenance of the specific project. These are specific to the project circumstances and specify how, when, and where a given measure (such as release of a minimum flow or a recreational facility) will be implemented. At its own discretion, FERC may establish mandatory conditions for protection of environmental quality under FPA sections 10(a) and 10(j), discussed sequentially in Sections 2.3.4(B) and (C) below.
A license incorporates those articles or conditions submitted by agencies other than FERC prescribed under various authorities, including FPA section 4(e) or 18, ESA section 7, CWA section 401(a), and CZMA. When timely submitted in the course of a licensing proceeding, FERC incorporates these conditions verbatim into the license, even if it might have established a different condition if left to its own discretion. In other words, a community of regulatory agencies shares the licensing decision (see Section 2.2 above).
In recent years, some industry representatives have complained that FERC has been reduced into a word processor, compiling other agencies’ submittals of mandatory conditions into a license. While overstated, that beef is not bad news for the conservation community. Before these agencies began to systematically use these authorities in the 1990s, FERC tended to give short shrift to non-power uses of lands and waters. Now, it has substantial incentives to cooperate with these agencies as they develop their mandatory conditions. This is not criticism of FERC – it just acknowledges the fundamental value and effect of checks and balances.
While you should encourage each such agency to use its authority deliberately (e.g., a measure may be overturned on appeal if outside of the scope of the agency’s authority or not supported in the record), you should also support the result of affirmative protection or restoration as promised in the environmental statutes. In the face of political pressure from FERC (whose primary mission is energy) or the licensee (which reasonably seeks to minimize new capital costs), your support helps give agency staffs the necessary basis for such conditions.