2.5 Compliance and Enforcement of Licenses

A licensee must comply with the duties for construction, operation, and maintenance established by the license articles.[1]  Under FERC’s general rules, it must submit periodic reports on recreational use and safety.[2]  It must also comply with monitoring and reporting requirements as established by the non-standard license articles.  For example, it must use a gage or other reliable device to measure the release of any minimum flow.  It must report non-compliance with any license article, including a temporary deviation caused by an event outside of its control.  With some exceptions related to public safety, such reports are public documents, as defined in Section 3.2.2.  FERC periodically inspects each project to assure the adequacy of compliance.[3]

It is impossible to operate a project in perfect compliance with a license over a term of 30 to 50 years, given the physical realities of weather, flood, land movement, and even human error.  The licensee usually corrects (and reports) such non-compliance on its own initiative.  If the licensee and FERC disagree whether non-compliance occurred or what the remedy should be, FERC may conduct a hearing before issuing a compliance order, which will specify the licensee’s going-forward duties to return to compliance.[4]  If it finds that non-compliance is deliberate or systematic, FERC may assess an administrative penalty (up to $10,000) or even revoke the license or exemption, although the latter remedy has only been used a few times in the history of the FPA.[5]  It may also request that the U.S. Department of Justice file a complaint against the licensee in U.S. District Court, which has jurisdiction to issue an injunction or restraining order to enjoin such non-compliance or to issue writs of mandamus commanding any person to comply with the provisions of the FPA or any rule or order of FERC.[6]

Any person may file a complaint alleging non-compliance with a license.[7]  A complaint must comply with the form and proof requirements established in 18 C.F.R. § 385.206.  Essentially, the complainant must describe and, to the extent feasible, document the nature and frequency of the non-compliance.[8]  As long as the complaint meets these minimum requirements, the licensee will be required to answer the complaint and any additional questions asked by FERC staff.[9]  Unless persuaded on the basis of these initial pleadings, FERC may then undertake an independent investigation – such as a field inspection.[10]  It may issue a compliance order or dismiss the complaint.[11]

In a complaint about non-compliance with a license article, you should request specific procedures going forward, once the licensee answers as required by 18 C.F.R. § 385.206(f).  At a minimum, you should request that FERC include you in any investigation or negotiation it undertakes with the licensee.  FERC takes the view that the complainant is not a formal party in the complaint proceeding and thus may negotiate without notice to you.  You should also bear in mind that a court will probably not overturn FERC’s decision on the complaint, given the doctrine that an agency has generally unreviewable discretion to determine an enforcement remedy.[12]

The HRC believes that a citizen may file a complaint in federal court to enforce the Clean Water Act water quality certification incorporated into a license or the Incidental Take Statement adopted under the ESA.  See, e.g., South Carolina Coastal Conservation League and American Rivers’ Amended Complaint for Failure to Comply with Conditions of Water Quality Certifications, Saluda Project, available at Appendix B, p. B-26, for an example of a notice of citizens’ suit against a licensee under CWA section 401.  FERC and the hydropower industry generally believe that FERC has exclusive venue to enforce the license, including incorporated conditions and, as a result, may be expected to vigorously defend against any effort to enforce such conditions in another venue.  Before pursuing such a strategy, you should carefully consult with your own counsel.   

You may wish to negotiate directly with the licensee.  Unless it completely disagrees with the merits of your complaint, it may well be interested in avoiding the cost and risk of litigation or in demonstrating its responsiveness to legitimate concerns.  American Rivers and South Carolina Coastal Conservation League settled a complaint regarding a licensee’s non-compliance with water quality certification.[13] 

[1]               See 16 U.S.C. §§ 799, 823b.

[2]               See 18 C.F.R. §§ 8.11, 12.10, 12.11.

[3]               See 16 U.S.C. § 823b; 18 C.F.R. Part 1.b et seqSee also Division of Dam Safety and Inspections Operating Manual, available at www.ferc.gov/industries/hydropower/safety/ops-manual.pdf.

[4]               See 16 U.S.C. § 823b.

[5]               See id.

[6]               See 16 U.S.C. § 825p.

[7]               See 18 C.F.R. § 385.206.

[8]               See id.

[9]               See 18 C.F.R. § 385.213.

[10]             See 18 C.F.R. § 1b.3.

[11]             See 18 C.F.R. § 385.206(g).

[12]             See Friends of Cowlitz v. FERC, 253 F.3d 1161, 1162 (9th Cir. 2001). 

[13]             See South Carolina Electric & Gas Company, 108 FERC ¶ 61,064 (July 15, 2004).