[Federal Register Volume 62, Number 214 (Wednesday, November 5, 1997)]
[Rules and Regulations]
[Pages 59802-59812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29196]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 4 and 375
[Docket No. RM95-16-000; Order No. 596]
Regulations for the Licensing of Hydroelectric Projects; Final
Rule
Issued October 29, 1997.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
revising its procedural regulations governing applications for licenses
and exemptions for hydroelectric projects. The regulations offer an
alternative administrative process whereby in appropriate circumstances
the pre-filing consultation process and the environmental review
process will be combined. This alternative process is designed to
improve communication among affected entities and to be flexible and
tailored to the facts and circumstances of the particular proceeding.
The final rule does not delete or replace any existing regulations.
EFFECTIVE DATE: December 5, 1997.
FOR FURTHER INFORMATION CONTACT:
Edward Abrams, Office of Hydropower Licensing, 888 First Street, N.E.,
Washington, DC 20426, (202) 219-2773
Merrill Hathaway, Office of the General Counsel, 888 First Street,
N.E., Washington, DC 20426, (202) 208-0825
[[Page 59803]]
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in Room 2A, 888 First
Street, N.E., Washington DC 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing 202-208-1397 if dialing locally or 1-800-856-3920 if dialing
long distance. To access CIPS, set your communications software to
19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex,
no parity, 8 data bits and 1 stop bit. The full text of this order will
be available on CIPS in ASCII and WordPerfect 6.1 format. CIPS user
assistance is available at 202-208-2474.
CIPS is also available on the Internet. Telnet software is
required. To access CIPS via the Internet, point your browser to the
URL address: http://www.ferc.fed.us and select the Bulletin Board
System. Read instructions on the next page, select FedWorld Dialup/
Telnet. A screen will appear presenting you with several options,
select option 1. There will be a welcome message from FedWorld and a
log on prompt. Enter your user ID and password (if you already have an
account). To establish an account, type the word NEW and answer the
questions which follow. Upon establishing an account, the FedWorld Main
Menu will appear. From the Main Menu, type /go ferc.
Finally, the complete text on diskette in WordPerfect format may be
purchased from the Commission's copy contractor, La Dorn Systems
Corporation. La Dorn Systems Corporation is also located in the Public
Reference Room at 888 First Street, N.E., Washington, DC 20426.
Before Commissioners: James J. Hoecker, Chairman; Vicky A.
Bailey, and William L. Massey.
I. Introduction
On November 26, 1996, the Federal Energy Regulatory Commission
(Commission) issued a Notice of Proposed Rulemaking (NOPR) to revise
its procedural regulations governing applications for licenses for
hydroelectric projects.\1\ In response to the comments received,\2\ the
Commission adopts a final rule in this proceeding which offers an
alternative administrative process in which the pre-filing consultation
and the environmental review processes will be combined. This
alternative process is designed to improve communication between
affected entities and to be flexible and tailored to the facts and
circumstances of the particular proceeding. The final rule does not
delete or replace any existing regulations.
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\1\ 77 FERC para. 61,209 (1996).
\2\ The commenters are listed in Appendix A.
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II. Purpose of the Final Rule
The NOPR was issued in response to a petition by the National
Hydropower Association (NHA), seeking completely new Commission
regulations to improve the licensing process for hydropower applicants.
The Commission agreed with commenters on NHA's petition, that adoption
of its proposed rules would not be fair to other entities interested in
the licensing process, such as resource agencies, Indian tribes and
citizens' groups, and would not in fact expedite licensing proceedings.
The Commission noted, however, that the collaborative option in NHA's
proposal resembled the alternative procedures that the Commission had
been developing for use on a case-by-case basis as requested by the
applicant, pursuant to waivers granted by the Office of Hydropower
Licensing. The Commission determined that the experience with the
alternative procedures had been positive, that many applicants and
interested entities appeared to be interested in pursuing the
alternative procedures, and that it would be helpful to refine,
clarify, and codify the procedures in the regulations.
A wide range of entities, representing the hydropower industry,
state and federal resource agencies, citizens' groups, and an Indian
tribe, filed comments generally supporting adoption of the rule
proposed in the NOPR. The commenters made a number of recommendations
for improving the proposed rule, many of which are adopted in the final
rule, as discussed in detail below.
The final rule offers alternative administrative procedures for the
processing of applications for licenses to construct, operate, and
maintain hydropower projects, including applications for certain major
amendments to such licenses, and for applications for exemption. Under
the final rule, in appropriate circumstances pre-filing consultation
and environmental review can be combined into a single process. This
alternative process can be used only if there is a consensus among the
interested entities to make use of it (consent of the applicant is
required but agreement of everyone interested is not), and is designed
to be flexible and tailored to the facts and circumstances of the
particular proceeding. The final rule does not delete or replace any
existing regulations, but would supplement the existing regulations by
offering applicants an opportunity to use the alternative procedures.
The present regulations require applicants for a license to engage
in consultation with federal and state resource agencies and Indian
tribes during the preparation of the application for the license and
prior to filing it. Thereafter the Commission performs an environmental
review of the application pursuant to the National Environmental Policy
Act (NEPA) 3 and related statutes. The final rule is
intended to simplify and expedite the licensing process by combining
the pre-filing consultation and environmental review processes into a
single process, and by improving communication among the participants
in the licensing process. We hope that adoption and use of the
alternative procedures, on a voluntary basis by applicants, will result
in expedited licensing proceedings before the Commission, including the
narrowing of contested issues and the submission of offers of
settlement that can be used as a basis for licensing orders.
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\3\ 42 U.S.C. 4321 et seq.
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III. Discussion
A. Application for and Scope of Alternative Procedures
In proposed Sec. 4.34(i)(1) we set forth the scope of the
alternative procedures and who could request them. The proposed
regulatory text stated that the applicant could submit a request to the
Commission to use the alternative procedures where it intended to file
an application for a hydropower license or for the amendment of a
license subject to the provisions of the pre-filing consultation
regulations at Sec. 4.38.
Some commenters pointed out that the title of the rule in the
notice in the Federal Register indicated it only applied to
applications for relicense and that it should be changed to include all
applications for license. A commenter recommended that an applicant be
required to join with other interested entities, such as resource
agencies, in making such a request.4 Commenters also have
asked whether the alternative
[[Page 59804]]
procedures apply to applications for preliminary permits or exemption.
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\4\ Comments of U.S. Department of Commerce, National Marine
Fisheries Service (NMFS), at 5.
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We will not require the applicant to obtain the express consent of
others in order to submit a request to use alternative procedures in
preparing its application. An applicant may voluntarily request to use
the alternative procedures. As provided in the final rule and discussed
below, the Commission will give public notice of, and interested
entities may submit comments on, the applicant's request to use
alternative procedures. If an applicant for a hydropower license wishes
to use the standard procedures in preparing its application, it may
comply with the pre-filing consultation requirements of Sec. 4.38 or
Sec. 16.8 of the regulations and need not prepare a preliminary draft
NEPA document.
The title of the notice accompanying this final rule in the Federal
Register accurately describes the application of the new rule,
extending to all applications for the licensing of hydroelectric
projects. The alternative procedures apply only to applications for
license and amendments to licenses that are subject to the pre-filing
consultation rules contained in Sec. 4.38 and Sec. 16.8 of the
regulations. Since applications for preliminary permit are not subject
to such requirements, we see no reason to make the alternative
procedures available to such applicants. On the other hand,
applications for exemption are subject to the pre-filing consultation
requirements of Sec. 4.38, and we conclude that these alternative
procedures should be available to applicants for exemption, if they
wish to take advantage of them and meet the applicable requirements of
the final rule. Accordingly, we are making changes in the rule to
clarify that it also applies to applicants for exemption.
B. Objectives of Process
In the proposed regulatory text at Sec. 4.34(i)(2), we set forth
the goals of the alternative procedures, which included integrating the
pre-filing consultation process and the environmental review process,
facilitating greater participation by Commission staff and the public
in the pre-filing consultation process, allowing the applicant to
prepare an environmental assessment (EA) or a contractor to prepare an
environmental impact statement (EIS), encouraging the applicant and
interested persons to narrow any areas of disagreement, and promoting
settlement of the issues raised by the hydropower proposal.
Commenters have recommended that these statements of objective be
broadened in the final rule. They have asked that the interests of
Indian tribes be kept in mind.5 A commenter has also asked
that the stated objectives include providing for effective
participation in the process by citizens' groups, including the
provision of financial assistance where appropriate, and allowing such
participants a role in selecting contractors to conduct scientific
studies and prepare required documents.6 Commenters have
asked the Commission to keep in mind in regard to the proposed
regulations the goal of promoting competition between rival applicants
for proposed hydropower facilities.7 A commenter was
concerned that the proposed rule may suggest that under the alternative
procedures the Commission would delegate to an outside party its
responsibility for NEPA documents.8
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\5\ Comments of Penobscot Nation (Penobscots), U.S. Dept. of the
Interior (Interior) at 4, 10.
\6\ Hydropower Reform Coalition (HRC) Comments at 8-10.
\7\ Comments of Holyoke Gas & Electric Dept. and the Northern
California Power Agency.
\8\ Comments of NMFS at 3.
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We believe that the language of the objectives of the alternative
procedures should be revised. We have changed proposed
Sec. 4.34(i)(2)(i) to reflect the goal of combining into one process
not only the pre-filing consultation procedures and the environmental
review process under NEPA, but also those administrative processes
associated with section 401(a) of the Clean Water Act 9 and
other statutes. We are revising proposed Sec. 4.34(i)(2)(ii) to make
clear that the goal of the alternative procedures includes greater
participation in the process by and improved communication among all
concerned entities, including the applicant, resource agencies, Indian
tribes, the public and Commission staff. While meeting certain minimum
requirements of openness and fairness, the process is designed to be as
flexible as possible, tailored to the circumstances of each case.
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\9\ 33 U.S.C. 1341(a)(1).
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Section 4.34(i)(2)(iv) is revised to state that the rule is
designed to promote cooperative efforts by the applicant and interested
entities, including the sharing of pertinent information about the
resource impacts of the applicant's hydropower proposal and appropriate
mitigation and enhancement measures. The goal of encouraging settlement
is not confined to submitting a formal offer of settlement among
parties on the application when it is filed, but includes any agreement
that can be reached that narrows the range of contested issues, both on
necessary studies and on mitigation and enhancement measures.
We decline to modify the goal statement in the regulations as
recommended by HRC. We have no objection to an applicant voluntarily
deciding to provide financial assistance to citizens' groups to
facilitate their effective participation in the alternative process or
to allowing such groups an appropriate role in choosing contractors to
do necessary studies. We believe that if any participant believes such
measures are important and would further the successful completion of
the process and the achievement of its other objectives, these
questions should be discussed among the participants. But we do not
believe it would be appropriate or helpful for the Commission to
attempt to force participants to make such arrangements, which should
be strictly voluntary and arise from the particular circumstances and
dynamics of each case.
The final rule establishing alternative procedures for hydropower
applications is neutral in regard to its impact on potential rival
applicants for hydropower facilities, such as an applicant seeking to
renew its license for such facilities and a municipal competitor
seeking a license for the same facilities. No applicant in a
competitive proceeding has asked the Commission to use the alternative
procedures. However, nothing in the final rule precludes granting such
a request. If it is made, we will consider whether it should be
granted, considering all the relevant factors presented.
We are changing the language of Sec. 4.34(i)(2)(iii) to state that
the applicant or its contractor or consultant will only prepare a
preliminary draft EA or a preliminary draft EIS, which after filing
(with the related application) will be subject to complete review,
revision and issuance for comment by the Commission.
Finally, we are adding a Sec. 4.34(i)(2)(v) to the rules, to make
it clear that another objective of the alternative procedures is the
orderly and expeditious review by the Commission of any agreement or
offer of settlement filed to resolve issues raised by an application
for hydropower license, amendment, or exemption. We hope that
involvement of the Commission's staff, prior to the filing of an
application and agreement or offer of settlement with the Commission,
together with the preparation of preliminary draft NEPA documents
during the pre-filing consultation process, will result in filings that
the Commission can expeditiously review. These filings should include
water quality certification under section 401 of the Clean Water Act,
with any
[[Page 59805]]
applicable conditions, and (after filing of the application) a final
decision by any land management agency under section 4(e) of the
Federal Power Act (FPA),10/ with mandatory conditions,
should be submitted to the Commission so that we can make a prompt
decision on the license or exemption application.
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\10\ 16 U.S.C. 791a et seq.
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C. Demonstration Required of Applicant
The NOPR proposed in Sec. 4.34(i)(3)(i) to require that the
applicant, in its request to the Commission for use of the alternative
procedures, demonstrate that it had made a reasonable effort to contact
all resource agencies, Indian tribes, citizens' groups and others
affected by the hydropower proposal, and that a ``consensus'' exists
that the use of alternative procedures is appropriate.
This proposed regulatory text generated the most controversy in the
rulemaking. Commenters disagreed vigorously as to what ``consensus''
should mean, with some arguing that it should mean unanimous agreement
by all concerned,11/ and others arguing that it should mean
the preponderance of views, at least by the major participants in the
process.12/ Some commenters have proposed elaborate voting
schemes in this regard,13/ while others have claimed that
certain entities, such as resource agencies, should have a veto power
over use of the alternative procedures.14/ Some commenters
have asked the Commission to specify in the rule exactly what the
requester should include in its showing.15/
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\11\ E.g., Comments of HRC at 4-5, Interior at 3-4.
\12\ E.g., Comments of NHA at 4, 15-18, Alabama Power Co. and
Georgia Power Co. at 3-5.
\13\ E.g., Comments of Public Generating Pool at 6-8.
\14\ Comments of U.S. Dept. of Agriculture, Forest Service, at
2.
\15\ Comments of NMFS at 5.
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The term ``consensus'' in ordinary usage means ``general
agreement'' or ``collective opinion: the judgment arrived at by most of
those concerned.'' 16/ That is how the Commission employs
the term here. While unanimous views obviously reflect consensus,
unanimity is not always essential to a fundamentally consensual
approach in a multi-party situation. The final rule does not require
the applicant, in the request for use of the alternative procedures, to
show that everyone concerned supports the use of these procedures. The
applicant need only show that the weight of opinions expressed make it
reasonable to conclude that under the circumstances it appears that use
of the alternative procedures will be productive. We do not require the
applicant to make any formal showing, such as a signed agreement
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\16\ Webster's Third New International Dictionary (1981), or use
of a particular voting procedure, to memorialize the consensus on
use of the procedures. We do not give any single interested entity a
veto power over the applicant's use of alternative procedures.
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We envision a series of interactions between the applicant and
participants that goes beyond an exchange of letters. Such interactions
could include teleconferences and meetings involving Commission staff
to explore the alternative procedures. In some cases the applicant's
showing may rely on a lack of objections raised in such meetings. This
situation may arise at the outset of the pre-filing consultation
process, when interested entities are unsure of how the alternative
procedures may compare to those otherwise required under Commission
regulations and are unaware of the relative benefits of the
alternative. The Commission believes that in these situations it is
worth allowing the applicant and participants to try the alternative
process rather than closing the door on this option.
To protect the rights of all interested entities to be advised of
the request for alternative procedures and to file comments on the
request in order to make their views known directly to the Commission,
the final rule specifies, as proposed in the NOPR, that in all cases
the Commission will give public notice in the Federal Register of the
filing by an applicant of a request to use alternative procedures.
Comments may be filed in response to this notice, and the Commission
will take them into account in deciding whether or not to grant the
request. The decision on the request will be final and not subject to
interlocutory rehearing or appeal.17
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\17\ The Commission will place a copy of the decision (on the
request to use alternative procedures) on the Commission Issuance
Posting System (CIPS), so that it can readily be found by anyone
interested.
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D. Required Steps to Follow
In Sec. 4.34(i)(4), the NOPR set forth certain minimum steps that
all alternative procedures should include as appropriate: (1) The
initial information meeting; (2) the scoping of environmental issues;
(3) the analysis of scientific studies and further scoping; and (4) the
preparation of a preliminary draft NEPA document and related
application. Participants would be free, under the communications
protocol to be submitted with the request to use alternative
procedures, to describe those steps in greater detail or to agree to
steps in addition to those set forth in the proposed rule.
Some commenters objected to the statement that these steps would
only be included ``as appropriate,'' and expressed their stongly held
views that the steps were the minimum that should be required in any
alternative procedure.18 Others argued in general for more
flexibility.19 Some commenters wanted more requirements in
the regulatory text, to make clear that the alternative process must
include distribution by the applicant of an initial information
package, that the initial information meeting should be open to the
public, and that there should be cooperation between the applicant and
interested persons on the determination of necessary studies and their
design and scope.20
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\18\ E.g., Comments of Interior at 4, Forest Service at 3.
\19\ NMFS Comments at 4-5.
\20\ HRC Comments at 9-10, 13.
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Commenters also requested that the Commission specify in detail in
the regulations the deadlines that would apply during the alternative
process.21
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\21\ E.g., Comments of Forest Service at 4.
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We have set forth in the final rule a list of the minimum steps we
think should be a part of any alternative process, if it is to serve
its objectives of expediting the completion of the administrative
process, while at the same time being fair to all participants. The
final rule adopted provides for the inclusion of three steps by
combining the second and third steps (dealing with the scoping and
study processes, as outlined above) that were proposed in the NOPR. We
do not believe that the requirement that these three steps be included
restricts the flexibility of the alternative process.
We do not, however, make the inclusion of these three steps
mandatory in every alternative process, as there may be special
circumstances where some of them are not possible or necessary.
The best example of such a case is if the alternative process
begins after the applicant has already completed the first step in the
standard pre-filing consultation process (the initial information
meeting open to the public). The Commission will entertain requests to
use the alternative process at any reasonable time, and they need not
be submitted before the commencement of the standard pre-filing
consultation process. In such a case, if the Commission grants the
request, it would make no sense to require by rule that the applicant
repeat a step that is the same as or substantially similar to a step it
[[Page 59806]]
has already taken under the standard process. The Commission is
sensitive to the concerns expressed in the comments and will not
abridge procedures allowed in the alternative process in a way that
would curtail notice to or participatory rights of any interested
entity. We wish to be flexible and fair to all concerned.
We agree with the comments asking for changes in the regulatory
text to clarify the basic requirements for the completion of these
minimum steps in the alternative process. Accordingly, Sec. 4.34(i)(4)
of the final rule makes clear that the applicant must distribute an
initial information package and conduct an initial information meeting
open to the public, as required in the standard process, and that the
approved procedures must include provisions for the cooperative scoping
of environmental issues with all participants, including the selection
and design of required scientific studies and any further scoping. Our
goal is to promote as much candid communication as possible among the
participants about the applicant's proposal, its resource impacts, and
the proposals and views of the other participants.
We do not think it is necessary or appropriate to spell out, in
greater detail in the regulations, deadlines for the alternative
process. The establishment of these deadlines should be done
cooperatively by the participants in a manner that fits the
circumstances and needs of each case, with the guidance and support of
Commission staff. We believe that the successful use of the alternative
procedures is predicated on a climate of cooperation among the
applicant and interested entities. Therefore we do not believe that the
Commission should mandate by rule exactly how the alternative process
may unfold in every case. To do so would unnecessarily repeat
requirements in the standard pre-filing consultation process, which
remains available for use in appropriate cases, and would undercut the
flexibility and spirit of cooperation and open communiciation that lie
at the heart of the alternative process.
E. Notice, Filings and Service Requirements
The NOPR proposed in Sec. 4.34(i)(5) that the Commission would give
public notice of the filing of the applicant's request to use the
alternative procedures, inviting comment on the request. Proposed
Sec. 4.34(6)(i) would require the Commission and the applicant to give
public notice of each of the four steps required in the alternative
process under proposed Sec. 4.34(i)(4). The applicant would be required
to give notice of each of these stages to entities on a mailing list
approved by the Commission. The proposal required the applicant to file
with the Commission quarterly reports on the progress of the
alternative process, pursuant to Sec. 4.34(i)(6)(ii), and implied in
Sec. 4.34(i)(6)(iii) that the applicant would also have to file with
the Commission the critical documents generated in the process, namely
the initial information package, scoping documents, and the preliminary
draft environmental review document.
Some commenters have urged the Commission to add language to the
rule in order to make it clear how the Commission and the applicant
would give notice.22 A commenter urged that, in the case of
an applicant seeking a new license, the applicant be required to give
notice at the outset to (1) any entity that had contacted the
Commission during the period of the previous license about the project
in question and (2) published lists of citizens' groups that may have
an interest.23 The Commission was also asked to require that
various filings made by the applicant in the course of the alternative
process be served on all participants in the process.24
Resource agencies requested that the Commission require the applicant,
at the conclusion of the alternative process, to index its public file
(which documents the pre-filing consultation and environmental review
processes) and submit all of these documents, together with the index,
to the Commission with its application.25 Commenters also
expressed concern that omission of Exhibit E would eliminate important
information from the Commission's record.26
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\22\ E.g., Comments of Interior at 5.
\23\ HRC Comments at 5-6.
\24\ Comments of Interior at 6-7.
\25\ Comments of Interior at 6-7 and Forest Service at 1.
\26\ Comments of Interior at 7.
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We agree that revisions should be made in the final rule about the
requirements for notice, filings and service of documents. New
Sec. 4.34(i)(3)(iii) requires the applicant, when it files its request
for alternative procedures with the Commission, to serve copies on all
affected resource agencies and Indian tribes and all entities that have
expressed an interest in the alternative process. As provided in
Sec. 4.34(i)(5), the Commission will give notice in the Federal
Register of receipt of the request. We believe that these requirements,
together with the rule's requirement that the applicant must have made
reasonable efforts to contact interested entities prior to the filing
of its request (see Sec. 4.34(i)(3)(i)), will be sufficient to put the
public on notice of the request. As discussed in section III.C above,
the Commission will consider any comments received in determining
whether to grant the request.
Section 4.34(6)(i) is also revised from the proposal to make clear
that the Commission's public notice of each of the first two stages in
the alternative process, described in Sec. 4.34(i)(4), will appear in
the Federal Register, and that the applicant's public notice of these
stages is required to appear in local newspapers in the county or
counties in which the project is located. Section 4.34(i)(6)(ii) is
revised to make clear that reports to the Commission on the pre-filing
consultation process are required only every six months, and that this
requirement can be satisfied by the submission of documents already
available, such as summaries or minutes of meetings held. This section
also clarifies what critical documents in the process the applicant
must file with the Commission and provides that copies of these
documents must be served on each participant in the process that
requests a copy.27
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\27\ Applicants should note that in order to have sufficient
copies for internal distribution, the Commission requires the
submission of an original and eight copies of all filings in
hydropower matters. See 18 CFR 4.34(h). The final rule makes clear
that this requirement applies to filings with the Commission that
are made in the course of the alternative pre-filing process
described in Sec. 4.34(i). See Sec. 4.34(i)(6)(ii).
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When the applicant files its application and preliminary draft
environmental review document with the Commission, these filings, and
such additional material as will be specified by the Commission in each
case, will replace the Exhibit E material that is required in the
standard process. We will not permit applicants to omit material
necessary for the Commission's review in these filings.
We do not think it necessary to require the applicant to index all
of the documents in its public file compiled during the alternative
process and to submit those documents, together with the index, to the
Commission with its application.28 Any party to the
proceeding before the Commission may file any material it wishes as
part of its comments on the application, or the party may request that
materials in the possession of the applicant be filed with the
Commission. The Commission may order such filings if it believes they
[[Page 59807]]
would be in the public interest. See the final rule
Sec. 4.34(i)(6)(iv).
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\28\ The final rule requires the applicant to maintain a public
file of all relevant documents in the pre-filing consultation
process. See Sec. 4.34(i)(6)(iii).
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F. Requests for Scientific Studies
Under the proposed rule Sec. 4.34(i)(6)(v), the procedures approved
in the alternative process may require all participants in the process
to submit during the pre-filing consultation period their requests for
scientific studies by the applicant. The proposal also allowed requests
for such studies to be filed with the Commission after the filing of
the application for good cause, with an explanation of why it was not
possible to request the study during the pre-filing period.
This proposal was controversial. Some commenters pointed out that
it was too restrictive, and that any party should be able to file a
request for scientific studies by the applicant after the filing of its
application, so long as good cause is shown. The Commission was also
asked to give examples of situations in which a party would be able to
show good cause.29 Other commenters wanted the rule to be
tightened to eliminate in whole or in part the right of any party to
request scientific studies after the filing of the
application.30
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\29\ HRC Comments at 11-12, U.S. Environmental Protection Agency
at 1, Washington Dept. of Fish and Wildlife at 3-4.
\30\ Reply Comments of EEI at 4-6.
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We believe that an important result of the alternative process, and
the greater participation and communication among participants it
encourages, should be the amicable resolution among participants of
disputes about necessary scientific studies during the pre-filing
consultation period, not after the application is filed with the
Commission. With improved communication among the participants and the
availability of dispute resolution in the alternative process, we do
not expect to receive frequent requests for additional studies after
the filing of an application that is subject to the alternative
process. We understand, however, that not all such disputes will be so
resolved, and that some participants, even though they have
participated actively and in good faith in the alternative process, may
be unwilling thereby to waive their requests for certain studies, even
if the other participants in the process do not think they are
necessary. The alternative process does not require such a waiver. We
hope that through the alternative process, with the assistance of
Commission staff, participants will be able to resolve all important
differences about a hydropower proposal, including disputes about
necessary studies. If the participants cannot resolve such a dispute,
even with the dispute resolution procedure discussed in the next
section, a party may raise it to the Commission's attention after the
filing of the application. In such a case, the Commission will rule on
the request, either by separate order or when issuing a decision on the
application.
The requirement of good cause is self-explanatory, and the
Commission does not wish to bind by rule the discretion of future
Commissions to do justice in a particular case. We will not, therefore,
encumber the final rule or include in this preamble additional language
that would attempt to explain what would suffice to make a showing of
good cause in a particular case.
G. Dispute Resolution
The proposed rule was silent on whether the Commission's provisions
for dispute resolution, available in the standard pre-filing
consultation process, would apply to the alternative process.
Commenters asked whether they could seek resolution of disputes by the
Commission in the alternative process, should it be
necessary.31
---------------------------------------------------------------------------
\31\ Comments of Interior at 8.
---------------------------------------------------------------------------
We believe that participants should be able to ask the Commission
to resolve disputes arising during the alternative process, but only if
they have first made reasonable efforts to resolve the disputes with
other participants, using any mechanisms established by agreement among
the participants and the help of Commission staff, where appropriate.
Any such request should be served on all participants and must document
what efforts have been made to resolve the dispute.
H. Collapse of Consensus
The NOPR asked the commenters to address what they thought should
happen if the consensus that had appeared to exist when the Commission
granted an applicant's request for alternative procedures subsequently
collapsed.
Many commenters attempted to answer this question. Most seemed to
recognize that in certain circumstances it would make no sense to
continue with the alternative process,32 and some asked the
Commission to direct what should happen in such circumstances.\33\
---------------------------------------------------------------------------
\32\ Comments of Duke Power Co. at 2-3, Pacific Gas & Electric
Co. at 4; HRC Comments at 7, Reply Comments at 11-12. asked the
Commission to direct what should happen in such circumstances.
\33\ Comments of Forest Service at 4, Montana Power Co. at 6-7,
EEI Reply Comments at 6.
---------------------------------------------------------------------------
Despite the best of intentions of the participants, it is possible
in some instances for the consensus supporting the continued use of the
alternative procedures to collapse. We do not mean by this loss of
consensus a disagreement on what studies should be conducted or what
mitigation or enhancement measures should be required in response to
the applicant's proposal, or loss of confidence on the part of one
participant or a few participants in the process. We believe that a
consensus will collapse if the weight of opinion of the applicant and
the other participants is that the process has become a waste of their
valuable time and resources and that the public interest would be
better served under the circumstances by the Commission's directing a
completion of the pre-filing process and what further steps are
required of the applicant. In such a situation an alternative pre-
filing process directed by the Commission would be required in order to
clarify what steps the applicant would have to take in the time
remaining to file an acceptable application.
Accordingly, the final rule adds Sec. 4.34(i)(7) to allow a
participant (including the applicant), in the event that a consensus
supporting the alternative process is lost, to file a request that the
Commission direct what steps should be taken to complete the pre-filing
consultation process.
I. Grandfather Provision
The NOPR asked what should be done about alternative processes
already approved by the Commission, pursuant to case-by-case waivers of
current regulatory requirements, if the Commission adopts a final rule
establishing alternative procedures.
All commenters addressing this question felt that the rule should
grandfather such already approved processes.
We agree and are adding Sec. 4.34(i)(9) to the final rule to
grandfather existing alternative processes. Steps already taken do not
have to be repeated, and applicants are not required to act
inconsistently with written agreements already reached by participants
in such cases. Other provisions of the new rule, however, such as
public file requirements or requirements to file materials with the
Commission (consisting of an original and eight copies) and serve
copies on other participants, that may be in addition to those already
agreed to in cases where waivers have been granted, will apply to all
such cases after the effective date of the final rule.
J. Miscellaneous
NHA asked the Commission to improve its public noticing of
[[Page 59808]]
hydropower applications, by including the licensee name and the name of
the project in addition to the project number, and to use public
libraries to facilitate notice to the public. NHA also asked the
Commission to explain what the NOPR meant in stating that staff could
participate in cases where there was no alternative process proposed
and approved, pursuant to proposed Sec. 4.34(i)(7).
Resource agencies were concerned about the impact of the
alternative procedures on the Commission's obligations under NEPA,
section 10(j) of the FPA and the Endangered Species Act
(ESA).34 Federal agencies were concerned about whether the
alternative procedures would affect their participation as cooperating
agencies for NEPA purposes.35 A number of commenters asked
the Commission to explain how the alternative pre-filing procedures
would affect the Commission's conduct of the hearing process on the
application when it is filed.36
---------------------------------------------------------------------------
\34\ 16 U.S.C. 1531-1544. Comments of Interior at 9 and NMFS at
4.
\35\ Comments of Forest Service at 4, Interior at 10.
\36\ Comments of NMFS at 3, Western Urban Water Coalition at 4,
Public Generating Pool at 14-29, Sacramento Municipal Utility
District at 18-36, and the City and County of Denver at 2-3.
---------------------------------------------------------------------------
Regarding notices concerning a hydropower project, the Commission
agrees with NHA that all public notices of a hydropower application
should include not only the project number but also the name of the
licensee and the name of the project. Participants in the alternative
process may agree to use public libraries to facilitate notice and to
provide information to the public, in addition to complying with the
notice and public file requirements contained in the final rule.
The final rule contains a provision at Sec. 4.34(i)(8) making it
clear that, at the Commission's discretion, its staff may participate
not only in the pre-filing consultation process where alternative
procedures are in use, but also in other cases where these procedures
are not being used. The Commission may commit its staff, upon request
and on a case-by-case basis, to limited participation in the pre-filing
consultation process in connection with the preparation of any
application for license, exemption, or license amendment. The goals of
such participation may include exploring whether the participants in
the process should consider the use of alternative procedures and, to
the extent feasible and appropriate, assisting in the informal
resolution of disputes and the combination of the pre-filing
consultation process with the NEPA process and related processes, such
as the grant of water quality certification under the Clean Water Act
and the issuance of mandatory conditions pursuant to section 4(e) of
the FPA.
In such cases, on request and at its discretion, the Commission may
approve suitable modifications to the procedures otherwise applicable
during the pre-filing and post-filing periods, similar to those made
for alternative procedures set forth in the proposed rule. If the
applicant subsequently requests and is granted permission to use
alternative procedures, the Commission may direct how the applicant and
interested entities may shift from the standard pre-filing consultation
process to the alternative process.
The final rule does not affect the Commision's compliance with
NEPA, section 10(j) of the FPA, or the ESA, nor does it in any way
deprive a party of the right to contest issues before the Commission
and obtain a decision on these issues based on the administrative
record before the Commission. The Commission will review the
application for adequacy, and if it is accepted for filing the
Commission will invite interventions and set a deadline for the
submission of final recommendations, prescriptions, mandatory
conditions, and comments. Upon receipt of the application the
Commission will not issue a notice inviting additional study requests,
and the Commission will not issue a notice that the application is
ready for environmental analysis, as would occur under the standard
procedures. The Commission will review the preliminary draft NEPA
document, prepared in the course of the pre-filing consultation period
under the alternative procedures, and issue a draft NEPA document for
comment. The Commission will take any steps required to examine
contested issues and comply in its usual manner with statutory mandates
applicable to the case, such as section 10(j) of the FPA and the ESA.
The Commission will then issue the NEPA document in final form and an
order on the application for license, exemption, or license amendment.
If an agreement or offer of settlement is filed in connection with
an application that the Commission grants, the order will address the
agreement or offer of settlement. If contested issues remain, as
determined by the position of the parties and resource agencies before
the Commission, the order will resolve the issues based on the
administrative record before the Commission.
Finally, an agency, such as a federal land management agency with
authority over the proposed project under FPA section 4(e) or a state
agency with responsibility for issuing a certification for the project
under the Clean Water Act, is free to participate fully in any
alternative procedures under the final rule and subsequently to elect
to be a cooperating agency with the Commission for NEPA purposes. The
Commission will continue to enforce its policy, however, that such an
agency cannot intervene as a party in the proceeding and at the same
time be a cooperating agency for NEPA purposes. We believe that
allowing an agency to pursue both of these roles simultaneously could
raise concerns about compliance by the Commission with its ex parte
rule.37
---------------------------------------------------------------------------
\37\ 18 CFR 385.2201.
---------------------------------------------------------------------------
IV. Environmental Analysis
Commission regulations describe the circumstances where preparation
of an environmental assessment or an environmental impact statement
will be required.\38\ The Commission has categorically
excluded certain actions from this requirement as not having a
significant effect on the human environment.\39\ No
environmental consideration is necessary for the promulgation of a rule
that is clarifying, corrective, or procedural, or that does not
substantially change the effect of legislation or regulations being
amended.\40\
---------------------------------------------------------------------------
\\38\\ Regulations Implementing National Environmental Policy
Act, 52 FR 47897 (Dec. 17, 1987), codified at 18 CFR Part 380.
\\39\\ 18 CFR 380.4(a)(2)(ii).
\\40\\ 18 CFR 380.4.
---------------------------------------------------------------------------
This final rule is procedural in nature. It proposes alternative
procedures that participants to a hydroelectric licensing or exemption
proceeding may wish to use. Thus, no environmental assessment or
environmental impact statement is necessary for the requirements
proposed in the rule.
V. Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980 (RFA) \41\
generally requires a description and analysis of final rules that will
have significant economic impact on a substantial number of small
entities. Pursuant to section 605(b) of the RFA, the Commission hereby
certifies that the regulations promulgated will not have a significant
economic impact on a substantial number of small entities.
---------------------------------------------------------------------------
\\41\\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------
The procedures adopted herein are purely voluntary in nature, and
are designed to reduce burdens on small entities (as well as large
entities) rather
[[Page 59809]]
than to increase them. More fundamentally, the alternative process we
are proposing herein is voluntary. The procedures constitute an
alternative to the procedures currently prescribed in our regulations,
and will not be available unless it is the consensus of the persons and
entities interested in the proceeding, as discussed herein, to use the
alternative procedures. Under this approach, each small entity will be
able to evaluate for itself whether the alternative procedures are
beneficial or burdensome, and oppose their adoption if they appeared to
be more burdensome than beneficial. Under these circumstances, the
economic impact of the proposed rule will be either neutral or
beneficial to the small entities affected by it.
VI. Information Collection Requirements
The Office of Management and Budget (OMB) regulations require OMB
to approve certain reporting and recordkeeping requirements
(collections of information) imposed by agency rule.\42\ OMB
has reviewed the NOPR without comment. The final rule adopted herein
will impose reporting burdens only on those applicants that voluntarily
choose to use the alternate procedures. Respondents subject to the
filing requirements of this final rule will not be penalized for
failing to respond to these collections of information unless the
collections of information display a valid OMB control number. The
Final Rule will affect two existing data collections, FERC-500 and
FERC-505. Most of the reporting burdens associated with preparing and
filing an application for a hydropower license, exemption, or amendment
to license are imposed by existing regulations.
---------------------------------------------------------------------------
\\42\\ 5 CFR 1320.11.
---------------------------------------------------------------------------
Public Reporting Burden
The alternative procedures will only require minor additional
filing requirements with the Commission. The other additional burdens
of the alternative procedures, as compared to the standard procedures,
do not involve filings with the Commission, but will consist of various
outreach efforts of the applicant and related interactions with
entities interested in its hydropower proposal. An applicant would
presumably only incur such additional burdens if it believed that, in
the long run, it would save on litigation and other costs incurred to
pursue the standard procedures.
The Commission has made approximate estimates of the additional
time that may be required of an applicant to comply with the
alternative procedures, as compared with the standard procedures. It is
difficult to be precise about such estimates, because the time required
for one applicant could vary considerably from the time required for
other applicants, depending upon the circumstances involved, including
the complexity of the issues raised, the total number of participants
in the pre-filing process, and how cooperatively those participants
worked together. If the alternative procedures were successful and
resulted, for example, in the filing of an agreement or offer of
settlement with the Commission, the applicant may be able to save
substantially more time by avoiding litigation than was invested in the
alternative procedures. If an applicant requested and was allowed to
use the alternative procedures, the main additional burden, with the
estimated hours to comply with each, are estimated to be:
------------------------------------------------------------------------
Burden
Process (hours of
effort)
------------------------------------------------------------------------
(1) Contact interested entities........................... 80
(2) Prepare and submit request, including communications
protocol................................................. 80
(3) Prepare and distribute scoping and hold related
meetings................................................. 50
(4) Develop agenda and other documents, including minutes,
for all meetings and prepare and distribute them (only
additional time as compared to presently required
meetings................................................. 600
(5) Prepare and publish public notices.................... 24
(6) Prepare and submit semi-annual progress reports and
make other required Commission filings................... 48
(7) Maintain a complete record of the pre-filing
consultation proceedings that would be open to the public 250
------------------------------------------------------------------------
It is estimated that to prepare and distribute the preliminary
draft environmental review document would not take any more time than
to prepare Exhibit E under the standard process. Therefore, the
estimated additional burden of the tasks required of an applicant if it
voluntarily undertakes the alternative process totals 1132 hours.
The OMB regulations require OMB to approve certain information
collection requirements imposed by agency rule. Accordingly, pursuant
to OMB regulations, the Commission is providing notice of its proposed
information collections to OMB.
Title: FERC-500 ``Application for License for Water Projects with
More than 5MW Capacity''; FERC-505 ``Application for Water Projects 5MW
or Less Capacity''.
Action: Proposed Data Collections.
OMB Control No.: 1902-0058; 1902-0115.
Respondents: Businesses or other for profit.
Frequency of Responses: On Occasion.
Necessity of Information: There are approximately 1,021 hydropower
licenses issued by the Commission that are currently outstanding. These
licenses all expire at the completion of fixed terms, and at expiration
the license holders may apply for a new licenses. Other applicants may
apply for exemptions or original licenses to construct and operate new
or existing hydropower projects.
The final rule authorizes a potential applicant for a license,
exemption or certain major amendments to a license to file a request
for alternative procedures if the applicant wants to use such
procedures, as authorized by the rule. The rule also requires the
filing of a communications protocol with the request for alternative
procedures. The applicant will have to do a number of other things in
the pre-filing consultation process, including distribution of an
initial information package and conduct an initial public meeting,
which are required under existing Commission regulations. The
applicant, possibly with a contractor's assistance, would have to
conduct the scoping of environmental issues; this is a new requirement,
not now imposed on applicants, but which is related to currently
required pre-filing consultation duties of the applicant and would
substitute in part for the environmental review process traditionally
done by the Commission after the filing of an application for
hydropower license or for certain major license amendments.
The applicant would have to do studies of the resource impacts of
its proposal, as it now must do under current Commission regulations
governing the pre-filing consultation process. The applicant or the
contractor would also have to prepare a preliminary draft NEPA document
and submit additional information in lieu of what is now required as
Exhibit E to a hydropower application. These two filing requirements--
what is now required and what would be required under the regulations
for the alternative procedures--are similar.
The applicant would have to file with the Commission semi-annual
reports on
[[Page 59810]]
the progress of the pre-filing consultation process under the
alternative procedures. No such reports are now required, although the
filing of these reports under the alternative procedures avoids the
requirement in the current regulations for the applicant to document
the entire pre-filing consultation process when the application is
filed. Under the alternative procedures the applicant would have to
maintain a public file of the pre-filing process and to give various
public notices during this process, while current regulations do not
require maintenance of a public file containing all this information or
the issuance of as many such notices during the pre-filing consultation
period.
Internal Review: The Commission has assured itself, by means of its
internal review, that there is specific, objective support for the
burden estimates associated with the information requirements. The
Commission's Office of Hydropower Licensing will upon receipt of the
application review it to determine the broad impact of the license
application. Commission staff conducts a systematic review of the
prepared application with supplemental documentation provided by the
solicitation of comments from other agencies and the public. The
Commission will take any steps required to examine contested issues and
comply with statutory mandates applicable to the case. These reviews
ensure that the Federal Power Act as amended by other statutory
provisions is formally administered to ensure compliance by the
licensee. These requirements conform to the Commission's plan for
efficient information collection, communication, and management within
the hydroelectric industry.
Interested persons may obtain information on the reporting
requirements by contacting the following: Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426. [Attention:
Michael Miller, Division of Information Services Phone: (202) 208-1415,
fax: (202) 273-0873, email: mmiller@ferc.fed.us]
Comments are solicited on the Commission's need for this
information, whether the information will have practical utility, the
accuracy of the provided burden estimates, ways to enhance the quality,
utility, and clarity of the information to be collected, and any
suggested methods for minimizing respondents' burden, including the use
of automated information techniques. For submitting comments concerning
the collections of information and the associated burden estimates,
please send your comments to the contact listed above and to the Office
of Management and Budget, Office of Information and Regulatory Affairs,
Washington, DC 20503. [Attention: Desk Officer for the Federal Energy
Regulatory Commission, phone (202) 395-3087, fax: (202) 395-7285]
Estimated Annual Burden (includes burden hours already approved for
standard procedures):
----------------------------------------------------------------------------------------------------------------
Number of Number of Hours per Total annual
Data collection respondents responses response hours
----------------------------------------------------------------------------------------------------------------
FERC-500........................................ 6 6 853 5,120
FERC-505........................................ 10 10 182 1,818
----------------------------------------------------------------------------------------------------------------
Total Annual Hours for collections (Reporting + Recordkeeping, (if
appropriate)) = 6,938.
Information Collection Costs: The Commission seeks comments on the
costs to comply with these requirements. It has projected the average
annualized cost for all respondents to be:
----------------------------------------------------------------------------------------------------------------
Annualized
Annualized costs Total
Data collection capital/start- (operations & annualized
up costs maintenance) costs
----------------------------------------------------------------------------------------------------------------
FERC-500........................................................ $269,861 $0.00 $269,861.00
FERC-505........................................................ 95,822 0.00 95,822.00
---------------
Total..................................................... .............. .............. 365,683.00
----------------------------------------------------------------------------------------------------------------
VII. Effective Date
This rule is effective December 5, 1997. If OMB has not approved
the information collection provisions at that time, the Commission will
issue a notice delaying the effective date until OMB approval of the
final rule.
List of Subjects
18 CFR Part 4
Electric power, Reporting and recordkeeping requirements.
18 CFR Part 375
Authority delegations (Government agencies), Seals and insignia,
Sunshine Act.
By the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, the Commission amends parts 4
and 375 of Chapter I, Title 18, Code of Federal Regulations, as set
forth below.
PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT
COSTS
1. The authority citation for part 4 continues to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.
2. In Sec. 4.34, the section heading is revised and a new paragraph
(i) is added to read as follows:
Sec. 4.34 Hearings on applications; consultation on terms and
conditions; motions to intervene; alternative procedures.
* * * * *
(i) Alternative procedures. (1) An applicant may submit to the
Commission a request to approve the use of alternative procedures for
pre-filing consultation and the filing and processing of an application
for an original, new or subsequent hydropower license or exemption that
is subject to Sec. 4.38 or Sec. 16.8 of this chapter, or for the
amendment of a license that is subject to the provisions of Sec. 4.38.
(2) The goal of such alternative procedures shall be to:
(i) Combine into a single process the pre-filing consultation
process, the
[[Page 59811]]
environmental review process under the National Environmental Policy
Act and administrative processes associated with the Clean Water Act
and other statutes;
(ii) Facilitate greater participation by and improve communication
among the potential applicant, resource agencies, Indian tribes, the
public and Commission staff in a flexible pre-filing consultation
process tailored to the circumstances of each case;
(iii) Allow for the preparation of a preliminary draft
environmental assessment by an applicant or its contractor or
consultant, or of a preliminary draft environmental impact statement by
a contractor or consultant chosen by the Commission and funded by the
applicant;
(iv) Promote cooperative efforts by the potential applicant and
interested entities and encourage them to share information about
resource impacts and mitigation and enhancement proposals and to narrow
any areas of disagreement and reach agreement or settlement of the
issues raised by the hydropower proposal; and
(v) Facilitate an orderly and expeditious review of an agreement or
offer of settlement of an application for a hydropower license,
exemption or amendment to a license.
(3) A potential hydropower applicant requesting the use of
alternative procedures must:
(i) Demonstrate that a reasonable effort has been made to contact
all resource agencies, Indian tribes, citizens' groups, and others
affected by the applicant's proposal, and that a consensus exists that
the use of alternative procedures is appropriate under the
circumstances;
(ii) Submit a communications protocol, supported by interested
entities, governing how the applicant and other participants in the
pre-filing consultation process, including the Commission staff, may
communicate with each other regarding the merits of the applicant's
proposal and proposals and recommendations of interested entities; and
(iii) Serve a copy of the request on all affected resource agencies
and Indian tribes and on all entities contacted by the applicant that
have expressed an interest in the alternative pre-filing consultation
process.
(4) As appropriate under the circumstances of the case, the
alternative procedures should include provisions for:
(i) Distribution of an initial information package and conduct of
an initial information meeting open to the public;
(ii) The cooperative scoping of environmental issues (including
necessary scientific studies), the analysis of completed studies and
any further scoping; and
(iii) The preparation of a preliminary draft environmental
assessment or preliminary draft environmental impact statement and
related application.
(5) The Commission will give public notice in the Federal Register
inviting comment on the applicant's request to use alternative
procedures. The Commission will consider any such comments in
determining whether to grant or deny the applicant's request to use
alternative procdures. Such a decision will not be subject to
interlocutory rehearing or appeal.
(6) If the Commission accepts the use of alternative procedures,
the following provisions will apply.
(i) To the extent feasible under the circumstances of the
proceeding, the Commission will give notice in the Federal Register and
the applicant will give notice, in a local newspaper of general
circulation in the county or counties in which the project is located,
of the initial information meeting and the scoping of environmental
issues. The applicant will also send notice of these stages to a
mailing list approved by the Commission.
(ii) Every six months, the applicant shall file with the Commission
a report summarizing the progress made in the pre-filing consultation
process and referencing the applicant's public file, where additional
information on that process can be obtained. Summaries or minutes of
meetings held in the process may be used to satisfy this filing
requirement. The applicant must also file with the Commission a copy of
its initial information package, each scoping document, and the
preliminary draft environmental review document. All filings with the
Commission under this section must include the number of copies
required by paragraph (h) of this section, and the applicant shall send
a copy of these filings to each participant that requests a copy.
(iii) At a suitable location, the applicant will maintain a public
file of all relevant documents, including scientific studies,
correspondence, and minutes or summaries of meetings, compiled during
the pre-filing consultation process. The Commission will maintain a
public file of the applicant's initial information package, scoping
documents, periodic reports on the pre-filing consultation process, and
the preliminary draft environmental review document.
(iv) An applicant authorized to use alternative procedures may
substitute a preliminary draft environmental review document and
additional material specified by the Commission instead of Exhibit E to
its application and need not supply additional documention of the pre-
filing consultation process. The applicant will file with the
Commission the results of any studies conducted or other documentation
as directed by the Commission, either on its own motion or in response
to a motion by a party to the licensing or exemption proceeding.
(v) Pursuant to the procedures approved, the participants will set
reasonable deadlines requiring all resource agencies, Indian tribes,
citizens' groups, and interested persons to submit to the applicant
requests for scientific studies during the pre-filing consultation
process, and additional requests for studies may be made to the
Commission after the filing of the application only for good cause
shown.
(vi) During the pre-filing process the Commission may require the
filing of preliminary fish and wildlife recommendations, prescriptions,
mandatory conditions, and comments, to be submitted in final form after
the filing of the application; no notice that the application is ready
for environmental analysis need be given by the Commission after the
filing of an application pursuant to these procedures.
(vii) Any potential applicant, resource agency, Indian tribe,
citizens' group, or other entity participating in the alternative pre-
filing consultation process may file a request with the Commission to
resolve a dispute concerning the alternative process (including a
dispute over required studies), but only after reasonable efforts have
been made to resolve the dispute with other participants in the
process. No such request shall be accepted for filing unless the entity
submitting it certifies that it has been served on all other
participants. The request must document what efforts have been made to
resolve the dispute.
(7) If the potential applicant or any resource agency, Indian
tribe, citizens' group, or other entity participating in the
alternative pre-filing consultation process can show that it has
cooperated in the process but a consensus supporting the use of the
process no longer exists and that continued use of the alternative
process will not be productive, the participant may petition the
Commission for an order directing the use by the potential applicant of
appropriate procedures to complete its application. No such request
shall be accepted for filing unless the entity submitting it certifies
that it has been served on all other participants. The
[[Page 59812]]
request must recommend specific procedures that are appropriate under
the circumstances.
(8) The Commission may participate in the pre-filing consultation
process and assist in the integration of this process and the
environmental review process in any case, including appropriate cases
where the applicant, contractor, or consultant funded by the applicant
is not preparing a preliminary draft environmental assessment or
preliminary draft environmental impact statement, but where staff
assistance is available and could expedite the proceeding.
(9) In all cases where the Commission has approved the use of
alternative pre-filing consultation procedures prior to December 5,
1997, during the pre-filing process the potential applicant need not
follow any additional requirements imposed by paragraph (i) of this
section, if in so doing the applicant would repeat any steps already
taken in the preparation of its application and supporting
documentation or act inconsistently with any written agreement signed
before December 5, 1997 by the applicant and the other participants in
the alternative process.
PART 375--THE COMMISSION
3. The authority citation for part 375 continues to read as
follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
4. In Sec. 375.314, paragraph (u) is added to read as follows:
Sec. 375.314 Delegations to the Director of the Office of Hydropower
Licensing.
* * * * *
(u) Approve, on a case-specific basis, and issue such orders as may
be necessary in connection with the use of alternative procedures,
under Sec. 4.34(i) of this chapter, for the development of an
application for an original, new or subsequent license, exemption, or
license amendment subject to the pre-filing consultation process, and
assist in the pre-filing consultation and related processes.
Note: The appendix will not appear in the Code of Federal
Regulations.
Appendix A
Comments
Citizens' Groups
Adirondack Mountain Club
American Rivers
Appalachian Mountain Club
California Hydropower Reform Coalition
Conservation Law Foundation
Hydropower Reform Coalition
Idaho Rivers United
Michigan Hydro Relicensing Coalition
New England FLOW
New York Rivers United
Trout Unlimited
Federal Agencies
U.S. Department of Agriculture, U.S. Forest Service
U.S. Department of Commerce, National Marine Fisheries Service
U.S. Department of the Interior
U.S. Environmental Protection Agency
Indian Tribes
Penobscot Nation
Industry Associations
American Public Power Association
Edison Electric Institute
National Hydropower Association
Public Generating Pool
Western Urban Water Coalition
State Agencies
Georgia Department of Natural Resources
New York State Department of Environmental Conservation
Washington Department of Fish and Game
Licensees
Adirondack Hydro Development Corporation
Alabama Power Company and Georgia Power Company
Denver Water
Duke Power Company
Holyoke Gas & Electric Company and Northern California Water Power
Agency
Minnesota Power & Light Company
Montana Power Company
Pacific Gas and Electric Company
Portland General Electric Company
Sacramento Municipal Utility District
Seattle City Light
Reply Comments
Alabama Power Company and Georgia Power Company
City of Holyoke, Massachusetts Gas & Electric Department
Duke Power Company
Edison Electric Institute
Hydropower Reform Coalition
National Hydropower Association
Sacramento Municipal Utility District
[FR Doc. 97-29196 Filed 11-4-97; 8:45 am]
BILLING CODE 6717-01-P
