B. FPA Section 10(a) Conditions for Protection, Mitigation, and Enhancement of Environmental Quality

Under FPA section 10(a)(1), a project must serve the public interest in a river basin, not just the licensee’s interest in power generation.  A license must ensure that the project adopted “shall be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, for the adequate protection, mitigation, and enhancement of fish and wildlife (including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and recreational and other purposes….”[1]

The record compiled in the proceeding is a comprehensive plan.[2]  In addition, FERC will give consideration to a plan which a federal or state agency has adopted under its own authority, if the plan (1) is a comprehensive study of one or more of the beneficial uses of the river; (2) specifies the standards, the data, and the methodology used; and (3) is filed with FERC’s Secretary before Section 10(a) conditions are established for a given project.[3]  An agency or other participant may submit a plan for acceptance as comprehensive in the course of a proceeding, or even outside of any proceeding.  The Secretary maintains a list of comprehensive plans approved by FERC.[4]

Under FPA section 10(a)(2), FERC must consider whether a license or license condition is consistent with applicable comprehensive plans.  For example, FERC must determine whether a flow objective, as established in a State’s recognized “comprehensive plan” for river management, is consistent with the conditions in a proposed license.  FERC has occasionally denied and frequently conditioned license applications in order to ensure consistency with the general tendency of such plans.  Inconsistency with a management objective in any one comprehensive plan, however, is not controlling.[5]

            Project revenues are a relevant factor under Section 10(a)(2).  FERC evaluates the fiscal impact of each alternative, assuming existing conditions in the electricity market served by the licensee.  It does not attempt to forecast changes in market conditions, nor will FERC grant or deny a license based on a prediction of economic viability.  Rather, the licensee makes a choice whether to accept a license, and if it does, it is obliged to comply, regardless of whether project revenues are different than predicted.[6]

Early in the proceeding, you should determine which comprehensive plans accepted by FERC apply to the proposed project.  State and federal agencies may have adopted other management plans which appear to meet the requirements for a comprehensive plan, but which have not been submitted to FERC for acceptance under FPA Section 10(a)(2).  If so, you should encourage the agencies to submit the plans or do so yourself.  Even if FERC determines that a plan does not meet the required definition, you should notify FERC and the licensee and request that the plan be included in the Pre-Application Document (PAD) (see Section 3.2.2(A)).

As the proceeding goes forward, your comments should address any conflicts between the project and the management objectives of relevant plans.  For example: “The license application does not propose sufficient minimum flow to support the fishery below the dam, an identified goal of the following comprehensive plan....”  You should request that the licensing decision address the specific objectives of these plans.  FERC has a tendency to make a conclusory finding (expressed in a single paragraph) that a decision is consistent with all applicable plans and not address specific objectives.  Thus, a license may not be consistent with a specific objective in a given comprehensive plan.

[1]               16 U.S.C. § 803(a)(1); see also Udall v. Federal Power Commission, 387 U.S. 428 (1967) (emphasis added).

[2]               See LaFlamme v. FERC, 945 F.2d 1124 (9th Cir. 1991).

[3]               See 18 C.F.R. § 2.19; or Order 481-A, 53 FR 15804 (May 4, 1988).

[4]               A bibliography of these plans is available at https://www.ferc.gov/industries/hydropower/gen-info/licensing/complan.pdf

[5]               See Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1554 (2nd Cir. 1992) (“Although FERC must ‘consider’ inconsistencies with state plans, a license need not be denied merely because a state agency opposes a particular project.”).

[6]               See Mead Paper, 72 FERC ¶ 61,027, 61,068 (1995).