7.2.2 Proposed License Articles

Proposed license articles are environmental and other measures that the signatories believe fall within FERC’s jurisdiction to approve and then enforce.  In short, each such measure must: (A) oblige the licensee, and only the licensee, to implementation; (B) be stated in a specific and enforceable form (e.g., “licensee will release X cfs,” not “licensee will release an unknown flow”); and (C) have a nexus to a project impact that a relevant statute, such as FPA Section 10, requires be addressed in the licensing decision.

As preferred form, proposed license articles are stated in a discrete part of the settlement, such as Appendix A.  The boilerplate terms, which form the main text of the settlement, call out specifically that Appendix A is the only part submitted for FERC’s approval.

If a licensee agrees that an environmental measure will be implemented in an adaptive or collaborative manner with other signatories, that commitment must be bifurcated, as follows.  Because FERC only has jurisdiction over the licensee, the proposed license article (which is being submitted for FERC’s approval) should state the licensee’s obligation.  E.g., “Licensee will convene a Collaborative Management Team consisting of the following parties....  In consultation with those other parties, licensee will adopt protocols for the team’s meetings, including schedule and a decision rule.  Licensee shall consult with team before submitting the following monitoring reports to FERC for approval....”  The obligations of other signatories to participate in the team, and additional details, should be stated separately, as a non-jurisdictional provision in a separate Appendix which, while included in the settlement, is not submitted for FERC’s approval.[1]

[1]               Compare Offer of Settlement on Rehearing, Roanoke Rapids and Gaston Hydroelectric Project, Article 413 (collaborative management in jurisdictional form) and Comprehensive Settlement Agreement, Roanoke Rapids and Gaston Hydroelectric Project, Technical Settlement, Article FL1 (the same in non-jurisdictional form).