2.4 License Amendments

A licensee must construct, operate, and maintain the project in conformity with the license.[1]  Any proposed amendment to that plan must be approved by FERC before implementation.[2]  The licensee must submit an application for license amendment to change any facility (such as the height of the dam or the capacity of the powerhouse), operation (such as the minimum flow release), or schedule for construction or operation, as prescribed in the license.[3]  Temporary deviation is permitted without formal amendment, if necessary for protection of life and property or if caused by an event beyond the licensee’s control.[4]

The application for license amendment varies by category of amendment.  As a general rule, an application must contain: a description of the proposed change in facility, operation, or schedule and supporting exhibits, which document the environmental and other impacts of the amendment to the extent they differ from the impacts of the underlying license.[5]  FERC will publish public notice and take comment if the application proposes a material change in the plan of development.[6]  In that circumstance, the federal agencies with mandatory authorities may also change their prescriptions as appropriate to address the expected impacts of the amendment, and other persons may intervene and comment.[7]  Further, an amendment that involves a new or materially changed flow discharge is subject to new or amended certification.[8]

In the Standard Articles discussed in Section 2.3.4(A), FERC reserves its authority to reopen the license on its own initiative or on the motion of a regulatory agency or other interested person.[9]  This reserved authority permits FERC to compel the licensee to amend the license even if the licensee does not desire to do so.  FERC sparingly uses this authority, which it considers to unsettle the licensee’s expectation that the license will remain fixed for its term.  However, FERC may amend an environmental condition if the project impact is substantially worse than predicted when the license issued or if the required level of protection for an affected resource has substantially changed.  For example, FWS or NMFS may request that FERC initiate formal consultation, and thus an amendment proceeding, if: (A) a fish or wildlife species in the project vicinity is listed as threatened or endangered under the federal Endangered Species Act post-licensing, and (B) there is a risk that the project will take (kill or harm) members of that species in the absence of an amendment.[10]

Amendments, while often necessary to address changed circumstances, may also be used to reopen a resolved issue without the public scrutiny which occurs in relicensing. 

A licensee may, after relicensing, seek to amend the project boundary to remove project works or lands.[11]  Or, before relicensing, it may seek such an amendment of the original license in order to narrow the jurisdiction of regulatory agencies.[12] 

You may track the submittal of any amendment application through eSubscription, which is described in Section 3.2.2 (G) below.  You may intervene in the proceeding if it materially affects the plan of development.  You may argue against approval of such an application late in the term of an original license on the ground that the amendment is more properly an element of a new license application.[13]

[1]               See id.

[2]               See 16 U.S.C. §§ 799, 803(b).

[3]               See 18 C.F.R. § 385.204.

[4]               See 16 U.S.C. § 803(b).

[5]               See 16 U.S.C. § 802; 18 C.F.R. §§ 4.41, 4.51, 5.18.

[6]               See 18 C.F.R. § 4.202.

[7]               See 16 U.S.C. §§ 797(e); 803; 18 C.F.R. §§ 4.38(a)(6), 380.10.

[8]               See Alabama River Alliance v. FERC, 325 F.3d 290, 300 (2003) (Alabama Rivers).  However, FERC’s rules limit the requirement for certification to a license amendment which would have a “material adverse impact on water quality.”  18 C.F.R. § 4.38(a)(6)(iii).  Although it did not reach the issue, the U.S. Court of Appeals (D.C. Circuit) has expressed “serious reservations concerning FERC’s attempt to redefine the statutory phrase ‘any discharge,’ 33 U.S.C. 1341(a)(1), to mean only those discharges that are ‘material.’”  See North Carolina v. FERC, 112 F.3d 1175, 1186 (D.C. Cir. 1997).  HRC believes that FERC’s interpretation of CWA section 401 is not entitled to the usual judicial deference because EPA, not FERC, administers the CWA.  See Alabama Rivers, 325 F.3d at 297; Professional Reactor Operator Society v. U.S. Nuclear Regulatory Commission, 939 F.2d 1047, 1051 (D.C. Cir. 1991) (“reviewing courts do not owe deference to an agency’s interpretation of statutes that. . . are outside the agency’s particular expertise and special charge to administer”). 

[9]               See also 18 C.F.R. §§ 2.23, 385.716.

[11]             See Wisconsin Public Service Corporation, 104 FERC ¶ 61,295 (2003), on rehearing 105 FERC ¶ 61,191 (2003).

[12]             See “Letter Order Dismissing Duke Power Company’s Application To Amend The License For The Catawba-Wateree Project, & Advises That Duke Power Pursue The Amendment Proposal As Part Of The Licensing Proceeding Under P-2232”(Apr. 18, 2003) (eLibrary 20030424-0331).

[13]             See id.