[Federal Register Volume 60, Number 98 (Monday, May 22, 1995)]
[Notices]
[Pages 27154-27201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12337]
[[Page 27153]]
_______________________________________________________________________
Part II
Department of Agriculture
_______________________________________________________________________
Forest Service
_______________________________________________________________________
Hydropower Applications
Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 /
Notices
[[Page 27154]]
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AA47
Hydropower Applications
AGENCY: Forest Service, USDA.
ACTION: Notice of proposed policy and procedures; request for public
comment.
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SUMMARY: The Forest Service proposes to revise current policy and
procedures, implemented in February 1987, concerning administration of
hydropower authorizations and the processing of proposals for
hydropower projects affecting National Forest System lands. This notice
contains the proposed revision, clarifies the current policy, and
modifies procedures. These revisions are necessary to make agency
policy and procedures consistent with regulatory changes by the Federal
Energy Regulatory Commission (FERC) and to address issues raised in
appeals related to authorizing hydropower projects. This proposed
revision also includes revised fee structures that developers would pay
for hydropower projects on National Forest System lands exempted from
FERC licensing. The fees were revised to ensure that the United States
receives fair market value for the use of National Forest System lands
for hydropower development. Public comment is invited.
DATES: Comments must be received in writing on or before July 21, 1995.
ADDRESSES: Send written comments to Director of Lands (2770), 4th
Floor, South Wing, Auditors Building, Forest Service, USDA, P.O. Box
96090, Washington, DC 20090-6090.
The public may inspect comments received on this proposed policy in
the Office of the Director of Lands, 4th Floor, South Wing, Auditors
Building, 201 14th Street, SW., Washington, DC, between the hours of
8:30 a.m. and 4:30 p.m. Those wishing to inspect comments are
encouraged to call ahead (202-205-1367) to facilitate entry into the
building.
FOR FURTHER INFORMATION CONTACT:
Questions about this proposal or requests for the entire Forest Service
Handbook 2709.15, Hydropower Handbook, should be addressed to J.
Kenneth Myers, Assistant Director, Realty Management Group, Lands Staff
202-205-1248.
SUPPLEMENTARY INFORMATION:
Background and Need for Policy
Presently, there are more than 240 non-Federal hydropower projects
on National Forest System lands that are either licensed or exempted
from licensing by the Federal Energy Regulatory Commission (FERC).
Hydropower developers must receive authorization from both FERC and the
Forest Service to construct and operate projects on National Forest
System lands. The Forest Service is authorized under the Federal Power
Act (16 U.S.C. 791 et seq.) to set mandatory terms and conditions in a
FERC license necessary to protect National Forest System resources. The
Forest Service also has authority under the Federal Land Policy and
Management Act (FLPMA) (43 U.S.C. 1701) to issue special use
authorizations for the occupancy and use of National Forest System
lands for hydropower purposes. Both the Forest Service and FERC must
review applications for proposed hydropower projects for adequacy and
prepare environmental analyses under the National Environmental Policy
Act (42 U.S.C. 4371 et seq.).
Hyrdopower development proposals affecting National Forest System
lands nearly quadrupled in 1981 as a result of legislation promoting
the construction of energy projects utilizing renewable resources,
namely, the Public Utility Regulatory Policies Act of 1978 (16 U.S.C.
260) and the Energy Security Act of 1980 (Pub. L. 96-294; 42 U.S.C.
8855). In 1984, the Supreme Court in Escondido Mutual Water Co. v.
LoJolla Band of Mission Indians, 466 U.S. 765 (1984) (hereafter
``Escondido ruling''), clarified the role of the Secretary of
Agriculture in the licensing of hydropower projects on National Forest
System lands. The Escondido ruling makes it clear that when National
Forest System lands are to be occupied by a hydropower project, the
Secretary may impose conditions on a FERC license necessary for the
adequate protection and utilization of the National Forest. This
affirmation of the Secretary's authority was incorporated into a
February 1987 revision of Forest Service Manual Chapter 2770, which
sets our broad direction to Forest Service managers on how to respond
to applications for FERC licenses. Simultaneously, the agency issued a
new Handbook (FSH 2709.15) in February 1987 to provide field direction
on hydropower licenses and permits.
In August 1989, the forest Service initiated a process to identify
the topics or aspects of the agency's hydropower project direction that
need revision.
Numerous modifications to existing policy and procedures were
identified during the process. As a result, the agency is proposing a
revision of all hydropower direction in the Manual and Handbook. A
discussion of the important modifications follows. Because of the
length of the Handbook, only the proposed Manual direction and the
following parts of the Handbook are set forth at the end of this
Federal Register notice: (1) The Forest Service conditions for a FERC
license, (2) special use authorization provisions for licensed
projects, (3) direction on charging fees to hydropower developers, and
(4) direction on rehabilitating dams in wilderness areas. Those
interested in reviewing a copy of the entire Handbook may obtain a copy
by calling the FOR FURTHER INFORMATION CONTACT listed in the beginning
of this notice.
Modifications to Existing Policy and Procedures
1. Recognition of Hydropower as an Appropriate Use of National Forest
System Lands
Current Forest Service policy recognizes hydropower as an
appropriate use of National Forest Service land but the policy is not
clearly stated.
In the proposed Manual revision, this agency policy is rewritten
and clarified. These changes appear in the draft Forest Service Manual
(FSM) in sections FMS 2770.2 and 2770.3. In summary, (1) energy is a
recognized use of National Forest System lands; (2) hydropower is a
valuable energy resource and a legitimate use of National Forest System
lands; (3) sites with hydropower development potential are unique and
rare; (4) the Forest Service will favorably consider hydropower
development that does not conflict with other important uses or
allocations of National Forest System resources; and (5) potential
hydropower use should be carefully considered in the forest planning
process.
2. Resource Balance
The Forest Service must balance energy development with protection
and use of National Forest System resources. Furthermore, the agency
strives to mitigate adverse environmental impacts whenever possible.
The Forest Service often sets instream flow requirements and requires
other measures necessary for the adequate protection and utilization of
National Forest System resources. Consistent with the Escondido ruling,
FERC is precluded from requiring a less stringent instream flow than
the Forest Service's required flow even if their information indicates
less stringent flows are justified and in the public interest.
Consistent with its responsibility to administer National Forest
System lands [[Page 27155]] in the public interest, the Forest Service
reviews and considers recommendations of other agencies, as well as the
licensee, in developing its position. The agency, however, will not
simply include recommendations of other agencies as part of its
mandatory conditions. Independent analysis of all recommendations by
the Forest Service is necessary to put in perspective the project's
impact against the Forest Service's general responsibility to protect
all National Forest System resources. The Manual direction is being
revised to reflect the Forest Service's obligation to balance resource
needs in arriving at decisions related to hydropower development. The
proposed revisions appear in the proposed Manual in FSM 2770.3 and
2773.2.
3. Relicensing Policy
The Manual lacks specific Forest Service policy relicensing
hydropower projects and the role of the agency.
Under the proposed revision, the Forest Service would use the
authority under section 4(e) of the Federal Power Act to condition the
license of a project being relicensed. The responsibility has been
affirmed by FERC. The proposed policy would recognize that such
projects have been part of the environment for 50 years or more and
that the Forest Service should not attempt, by virtue of its
conditioning authority, to recreate the pre-license environment.
However, the agency would mitigate unacceptable impacts to resources.
The proposed changes appear in the Manual in FSM 2776.
4. Unlicensed Projects
The Forest Service does not have a policy regarding unlicensed
hydropower projects. Before 1976, the Federal Power Commission (now
FERC) allowed the Forest Service to authorize by a special use
authorization minor hydropower projects. This authority was withdrawn
in 1976; however, several unlicensed projects still exit on National
Forest System lands. The agency proposes policy and guidance regarding
the special use authorizations for unlicensed projects which would
encourage their owners to obtain appropriate authorization for FERC.
This proposed change appears in the Manual in FSM 2772.24. The agency
shall not authorize amendments to these projects unless they first
comply with FERC's regulations.
5. Cooperative Forest Service/FERC Environmental Assessments
Until recently, the Forest Service and FERC prepared separate
environmental assessments but prepared environmental impact statements
as cooperating agencies. The Forest Service has recently adopted an
environmental analysis process that is generally conducted
cooperatively with FERC. The new process is explained in the proposed
Manual in FSM 2773.
6. Recreation Plans and Development
The Forest Service proposes to clarify direction regarding
recreation development and other recreation mitigation and enhancement
needs associated with hydropower project development.
A new Manual section (FSM 2774) has been developed, in accordance
with section 4(e) of the Federal Power Act, addressing recreation
development at hydropower projects. This proposed section clarifies the
licensee's full responsibility for the recreation needs resulting from
project development and operation. And, even though the Forest Service
could operate recreation facilities at a hydropower project according
to a written agreement with the licensee, the licensee would remain
financially responsible for the operation, as well as for the
construction, maintenance, and replacement of the recreation
facilities. Several items related to recreation plan development,
operation, liability, and user fees may be the subject of voluntary and
consensual agreement between the Forest Service and the licensee. These
items may include, but are not limited to, licensee responsibility for
construction, operation, maintenance, and replacement of recreation
facilities on National Forest System lands, collection of fees to
offset Forest Service operating costs, and the need for recreation
planning for lands beyond the area directly influenced by the project.
7. Wild and Scenic Rivers
The Forest Service proposes to update the direction relating to
hydropower development affecting designated and potential Wild and
Scenic Rivers. The authority for this direction is section 7 of the
Wild and Scenic Rivers Act (16 U.S.C. 1271-1287). The Forest Service
proposes to prepare eligibility determinations for rivers not in the
Wild and Scenic Rivers System that are affected by a hydropower
proposal. Such determinations shall be prepared in a timely manner,
usually accompanying the initial 4(e) report. Rivers found eligible for
inclusion through this process would then be studied by the Forest
Service for suitability. This Wild and Scenic River suitability study
would be completed within 18 months or in conjunction with the
environmental document for the hydropower project. While not legally
bound to do so, it has been FERC's practice to refrain from acting upon
the license application until completion of the suitability study if
the Forest Service makes timely determinations. Under the proposed
policy, for rivers found suitable under this process, the Forest
Service shall forward recommendations for Wild and Scenic River
designation to the Secretary of Agriculture for review and submission
to Congress. Once a suitability determination is made and for a period
not to exceed three years after Congress has received the formal
recommendation for Wild and Scenic River designation from the
Secretary, the Forest Service shall use its authority under section
4(e) of the Federal Power Act to protect a suitable river from impacts
that would ``invade or unreasonably diminish the values'' which make it
eligible and suitable for inclusion in the Wild and Scenic Rivers
System. If Congress fails to take action to protect the proposed river
within three years, the Forest Service shall manage the river as a
multiple-use resource and resume consideration of the original
hydropower proposal. The proposed changes appear in the Manual in FSM
2775.1
For Congressionally designated rivers and designated study rivers,
the Manual has been updated to clarify the procedures for section 7
determinations pursuant to the Wild and Scenic Rivers Act. The updated
direction is in the Manual in FSM 2775.1
8. Term of the Special Use Authorization.
Current Forest Service direction for a special use authorization of
a hydropower project exempted from the FERC licensing requirements does
not address the amortization or financing period of the project.
The Forest Service proposes to revise its direction for special use
authorizations for exempt projects to require the issuing officer to
consider the amortization and financing periods of a project in
determining the term of the special use authorization. The proposed
change appears in the Manual in FSM 2772.4.
9. Fees
A proposed Forest Service policy on hydropower fees for licensed
projects was published in the Federal Register in 1984 (49 FR, p.
23902, June 8, 1984). Due to the length of time since that notice, the
agency is again seeking comments on a revised fee structure
[[Page 27156]] proposed in section 65.3 of the Handbook.
a. Fees for Projects Exempt from Licensing
In 1987, the Forest Service implemented policy that set fair market
value for use of National Forest System lands by hydropower projects
exempted from licensing by FERC at three percent of the gross power
sales from the project. This was based upon a market survey of land
rental fees charged for hydropower use on private land. Upon
administrative appeal, that policy was rescinded pending public notice
and opportunity to comment. This notice seeks that involvement. In the
interim, the Forest Service has been charging fair market value for the
use of National Forest System lands, as determined by appraisal. Fees
for the few projects that receive an exemption from licensing from FERC
are contained in section 65.3 of the Handbook.
b. Fees for Licensed Projects
To date, Forest Service policy has been that it has the authority
to collect fees for hydropower projects licensed by FERC. The Forest
Service, however, presently waives the collection of fees for these
projects since FERC already collects fees for the use of National
Forest System land; although the fees collected by FERC for run-of-the-
river projects (projects that operate whereby instantaneous inflow to
the project equals instantaneous outflow) are often far below the
market value of the use of those lands for power purposes.
The Forest Service proposes that, for licensed projects, fees shall
not be charged because to do so may be inconsistent with the Federal
Power Act (16 U.S.C. 803(e)) (FSH 2709.15, sec. 65.2).This position is
consistent with the Federal Land Policy and Management Act (43 U.S.C.
1702(a)(9)) which does not require the collection of fees where another
statute, in this case the Federal Power Act, also provides for fee
collection.
10. New Mandatory 4(e) License Conditions
The Forest Service is proposing to update and revise those
conditions required to be incorporated in all licenses issued by FERC
for projects occupying National Forest System lands. These conditions
would be applied to all proposed projects that would occupy National
Forest System lands. Once these conditions have gone through the public
notice process and are included in the final Handbook, they will not be
subject to appeal under Department of Agriculture administrative appeal
regulations at 36 CFR 215 and 251. The proposed revisions of mandatory
license conditions appear in the draft Handbook in section 55.6,
exhibit 01.
11. New Special Use Authorization Provisions
The Forest Service proposes to revise the special use authorization
conditions for hydropower projects (FSH 2709.15, sec. 77, ex. 01).
These revisions are based on issues raised in appeals related to the
open-ended nature of special use authorization conditions. Those
provisions identified as mandatory will no longer be subject to appeal
if they are incorporated into the final notice of policy.
12. Other License and Special Use Authorization Conditions
Other proposed conditions which may be used or adapted for use for
a proposed project have also been developed in standardized form (Form
FS 2700-4g) and are proposed in the Handbook. These conditions may be
applied to projects as site-specific needs dictate. Their application
is appealable, since the authorized Forest Officer has the discretion
to require them. These conditions can be found in the Handbook in
section 55.6, exhibit 01, and in section 77, exhibit 01.
13. Open-ended Nature of the Special-use Authorization
Under existing procedures, the licensee of a FERC-licensed
hydropower project on National Forest System lands obtains a special
use authorization from the Forest Service after FERC issues a license.
(The FERC license contains an explicit clause to this effect as a
condition of the license.) This procedure places the licensee in the
awkward position of accepting a license without knowing what conditions
the special use authorization may impose on the project's operation.
The Forest Service proposes to revise the Handbook procedures to
limit the use of open-ended Forest Service conditions in the license
(issued by FERC) and in the special use authorization issued by the
Forest Service (Form FS-2700-4g); instead, the Forest Service would
provide prospective licensees with a special use authorization prior
to, and contingent upon, issuance of a license. This reversal of the
special use authorization process will ensure that licensees will know
ahead of time the requirements and costs associated with the special
use authorization throughout the term of the license. In order to guard
against modification in the design or operation of the project
subsequent to issuance of the special use authorization, the special
use authorization would contain a provision which states that it is to
become effective only if the project is licensed substantially as it
was proposed during the time the Forest Service was developing the
conditions for the special use authorization. These changes would
require modification of the Forest Service special use authorization
(FSH 2709.15, sec. 77, ex. 01, Form FS-2700-4g) and of the FERC license
conditions currently required by the Forest Service (FSH 2709.15, sec.
55.6, ex. 01, condition 101).
14. Revocation of the Special Use Authorization
Current policy provides for revocation of a hydropower project
special use authorization based on breach of the terms or conditions
therein or for reasons to further the public interest.
Since FERC already has procedures in place which permit revocation
of the license upon a public interest determination, the Forest Service
believes that revocation of a special use permit on the basis of the
public interest is redundant and adds unnecessary uncertainty to
operations under the license. Therefore the Forest Service proposes to
eliminate public interest as a basis for revocation of the special use
authorization. The proposed change appears in the Handbook in section
77, exhibit 01, condition V.B.
15. Modification of the Special Use Authorization
At any time during the license term, which varies from 30 to 50
years, FERC may reopen and amend the license if it is in the public
interest. Furthermore, FERC must review the project as a new proposal
when the licensee applies for a license renewal when the license term
ends. Currently, FERC licenses contain a mandatory condition under
section 4(e) of the Federal Power Act that allows the Forest Service to
unilaterally change the terms of special use authorizations for
hydropower projects after 30 years, subject to loosely defined
guidelines.
Forest Service special use regulations (36 CFR 251) provide for
revision of special use authorization conditions at specified intervals
to reflect changing times and conditions if the term of the special use
authorization exceeds 30 years.
Based on its review, the agency proposes to provide for revision of
conditions in hydropower project special use authorization only if the
project is amended or when the license terminates and the relicensing
process is [[Page 27157]] initiated. In those cases where the Forest
Service determines that special use authorization revision is necessary
and appropriate prior to license termination or project amendment, the
agency proposes to petition FERC to reopen the license. If FERC grants
a Forest Service petition, FERC will be able to balance the need to
amend the license against the hardship such amendment would cause the
licensee. The Forest Service believes this system is more equitable
than the current unilateral right of the agency to periodically change
a special use authorization if its term is greater than 30 years. Under
this proposal, the Forest Service would no longer require a section
4(e) condition for reopening the FERC license at intervals. This
proposed change appears in the draft Handbook in section 77, exhibit
01, condition I.D.
16. Continuation of the Special Use Authorization During Annual
Licenses
The current Forest Service special use authorization does not
provide for any interim authorization between termination of the
original license and issuance of a new license through the relicensing
process. During this period, a hydropower project operates on an annual
license, which generally is granted and renewed by FERC as a matter of
course until relicensing is completed.
The Forest Service proposes to modify the terms and conditions of
the special use authorization for hydropower projects to provide that
it remains in force for a particular project during relicensing as long
as (1) FERC issues annual licenses and (2) there is not a critical need
to immediately modify the authorization to provide for protection and
management of National Forest System resources before the issuance of a
new license and special use authorization. The proposed change appears
in the draft Handbook in section 77, exhibit 01, condition II.A.
17. Improvement Relocation
The current special use authorization for hydropower projects
requires the licensee to move hydropower and appurtenant facilities, if
necessary, to accommodate future government access needs. This
provision subjects the license to uncertainty regarding project costs.
Accordingly, the Forest Service proposes to modify this provision
slightly. Rather than speaking solely to relocation of facilities, the
proposed direction would recognize that modification of hydropower
facilities also may be appropriate under certain circumstances. The
special use authorization also would make explicit that this provision
would apply only in furtherance of Federal Government purposes. In
other words, the licensee would not incur additional costs to
accommodate other forest users absent a Federal need. Instead, other
forest users would have to pay for facility relocation or modification
expenses resulting from their actions or needs. The proposed change
appears in the Handbook in section 77, exhibit 01, condition III.I.
18. Nonexclusive Use of National Forest System Lands
The Forest Service may permit other uses of National Forest System
lands within FERC-licensed project boundaries which do not materially
interfere with the hydropower project. To this end, the special use
authorization expressly prohibits exclusive use of National Forest
System lands for project purposes and authorizes other nonconflicting
uses on lands within a FERC-licensed project boundary. On the other
hand, FERC typically authorizes licensees to exclude other uses from
lands within the project boundary and holds the licensee responsible
for accidents occurring therein. Due to this inconsistency between the
Forest Service and FERC requirements concerning exclusive use of
project lands, licensees contend that they may be held liable in tort
claims for injuries occurring on project lands by users over which they
had no knowledge or control.
The agency agrees that the licensee should not be held liable for
injuries or damage caused by the actions of another Forest Service
permittee if the licensee had no knowledge of or control over the other
permittee. The Forest Service does not believe it is in the interest of
sound management of National Forest System lands to change its policy
of authorizing nonconflicting uses within the licensed boundary;
however, the agency does believe it is appropriate to revise the
standard terms and conditions of the special use authorization for
licensed or relicensed projects to permit the exclusion of the public
from certain areas within the project boundaries for safety reasons.
This proposed revision appears in the draft Handbook in section 77,
exhibit 01, as condition I.G.
19. Plan Approvals, Amendments, and Approval Authority
Current license and special use authorization provisions reserve to
the Forest Service authority to approve project construction, design
and mitigation plans. Based on this authority there is the potential
for delays and additional costs resulting from (1) required Forest
Service approval of plans, (2) Forest Service authority to modify
plans, (3) Forest Service authority to require amendments to the
project, (4) Forest Service authority to suspend construction
operations for noncompliance with the terms of the special use
authorization, and (5) Forest Service final approval authority. There
is some question regarding the extent to which the Forest Service can
exercise control over a FERC license through this reserved authority.
In order to provide the licensee greater certainty regarding
project operation, the Forest Service proposes to modify its standard
4(e) license condition that currently allows the Forest Service to
impose changes in the operation and location of project facilities once
a project has been licensed and issued a special use authorization. The
intent of this proposal is to limit the discretion of the Forest
Service by requiring Forest Service consistency in the agency's review
and approval of project plans. For example, if the Forest Service had
initially approved the concept of a powerhouse on the south side of a
stream, it should not require the licensee to move the powerhouse to
the north side during review of the final plan absent compelling
information (justifying the change) not available during the initial
review.
The proposed license conditions also provide for expedited higher
level resolution of disputes regarding Forest Service approval of plans
and Forest Service imposed suspensions. While the Forest Service will
consult with FERC and the licensee on such disputes to the extent
possible, it ultimately is and will remain the Forest Service's
responsibility to make the final determination when licensee actions
affect surface resources on National Forest System lands. Note that
FERC has responsibility for dam safety and overall public safety, and
therefore the Forest Service should not interfere with FERC's
responsibilities in these areas. These changes appear in the Handbook
in section 55.6, exhibit 01, conditions 102, 105, and 106.
20. Annual Review of Project
A standard license condition used by the Forest Service requires
the licensee to meet annually with the Forest Service and review the
project with a subsequent report to FERC. In order to reduce the amount
of paperwork and reviews and to increase flexibility, the Forest
Service proposes to modify the condition to require a meeting only
every 5 years or for a period mutually agreeable to the Forest Service
and the [[Page 27158]] licensee. The proposed change is in the draft
Handbook in section 55.6, exhibit 01, condition 104.
21. Project Rehabilitation in Wilderness
The existing Manual and Handbook do not address hydropower project
maintenance and rehabilitation in units of the National Wilderness
Preservation System. These projects were in place before the
establishment of the wilderness area. Direction would be incorporated
in the Hydropower Handbook with this proposed revision. Maintenance and
rehabilitation of hydropower projects in wilderness is necessary for
safety and other reasons but it would be achieved subject to the
provisions and intent of the Wilderness Act (16 U.S.C. 1131-1136).
Decisions on access to the project would consider, among other things,
the type of rehabilitation, the most reasonable and efficient method to
conduct such work, the manner in which the original project was
constructed, and ways in which to minimize the impact on wilderness
values. Due to the restrictions imposed by the Wilderness Act, project
rehabilitation must often be done by primitive means and will be more
costly than similar project maintenance and rehabilitation outside
designated wilderness. Nevertheless, necessary project rehabilitation
would be allowed. The proposed revision is in the handbook, section
64.7.
Environmental Impact
This proposed policy would establish direction to Forest Service
employees on the review, authorization, and administration of
hydropower proposals on National Forest System lands. The environmental
impacts of proposed projects will be addressed in environmental
documents specific to each proposed project. Section 31.1b of Forest
Service Handbook 1909.15 (57 FR 43180, Sept. 18, 1992) excludes from
documentation in an environmental assessment or impact statement
``rules, regulations, or policies to establish Service-wide
administrative procedures, program processes, or instructions.'' The
agency's preliminary assessment is that this policy falls within this
category of actions and that no extraordinary circumstances exist which
would require preparation of an environmental assessment or
environmental impact statement. A final determination will be made upon
adoption of the final policy.
Controlling Paperwork Burdens on the Public
This policy does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 CFR 1320 and, therefore, imposes no paperwork burden on the public.
Accordingly, the review provisions of the Paperwork Reduction Act of
1980 (44 U.S.C. 3507) do not apply. The Forest Service uses information
provided to FERC as a basis for reviewing hydropower project impacts on
National Forest System lands. Any further additional information is
covered by the Forest Service's special use regulations (36 CFR part
251).
Regulatory Impact
This proposed policy has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. The policy will not
have an annual effect of $100 million or more on the economy nor
adversely affect productivity, competition, jobs, the environment,
public health or safety, nor State or local governments. This rule will
not interfere with an action taken or planned by another agency nor
raise new legal or policy issues. Finally, this action will not alter
the budgetary impact of entitlements, grants, use fees, or loan
programs or the rights and obligations of recipients of such programs.
Accordingly, this proposed policy is not subject to OMB review under
Executive Order 12866.
Moreover, this proposed policy has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by that Act. In
short, little or no effect on the National economy will result from
this policy, since this action consists primarily of technical and
administrative changes to existing policy and procedures. In fact, it
may reduce costs to the Government and users of the National Forest
System.
Takings Executive Order
This proposed policy has been analyzed in accordance with the
principles and criteria contained in Executive Order 12630, and it has
been determined that this proposed policy does not pose the risk of
taking of Constitutionally protected private property.
First, special use authorizations are not private property
compensable under the Fifth Amendment if taken by the Government. The
special use authorization is a benefit or privilege bestowed on a
private individual to use National Forest System lands. In the event
that special use authorizations are found to have certain contractual
rights associated with them, those rights are consensual in nature and
require the prior informed consent of the parties to form the
agreement. Such consensual agreements generally do not result in
takings claims against the Government. Finally, the proposed policy
does not purport to modify the existing special use authorizations.
Instead, only special use authorizations that will be issued after the
date this guidance is adopted will be subject to the revisions and
clarification described herein.
Comments Invited
The proposed policy and procedures for hydropower uses of National
Forest System lands would replace existing policy and procedures
contained in the Forest Service Manual (FSM 2770) and Forest Service
Handbook (FSH 2709.15). The text of the Manual and sections of the
Handbook containing the Forest Service standard license 4(e) conditions
and the Forest Service special use authorization conditions for
licensed projects are set out at the end of this notice. Single copies
of the entire Handbook are available free of charge upon request to the
further information contact listed at the beginning of this notice. The
Forest Service invites written comments and will analyze and consider
those comments in the development of the final notice of policy which
will be published in the Federal Register.
Dated: May 15, 1995.
David G. Unger,
Associate Chief.
Proposed Manual Revision
Note: The Forest Service organizes its directive system by
alpha-numeric codes and subject headings. Only those sections of the
Forest Service Manual and Handbook that are the subject of this
notice are set out here. The audience of this direction is Forest
Service employees charged with reviewing, processing, and approving
hydropower proposals on National Forest System lands.
Title 2700--Land Uses Management
Chapter 2770--Federal Power Act Projects
Contents
2770.1 Authority
2770.2 Objectives
2770.3 Policy
2770.4 Responsibility
2770.41 Chief
2770.42 Director of Lands, Washington Office
2770.43 Regional Forester
2770.6 Federal Energy Regulatory Commission (FERC) Responsibility
and Authority
2771. Forest Service involvement with FERC on Hydropower
Projects [[Page 27159]]
2771.1 Response to Applications
2771.11 Response to License Applications
2771.12 Response to Preliminary Permit Applications
2771.13 Response to Exemption Applications
2771.2 Requirements
2771.21 Section 4(e) Reports
2771.22 Section 4(e) Conditions
2771.23 Projects Exempted from Licensing
2771.24 National Forest Purposes
2771.25 Recommendation that Project is Not in Public Interest
2771.3 Coordination
2771.31 Other Actions within Project Boundaries
2771.32 Project Surrender, Termination, or Abandonment
2771.33 Federal Takeover of Project Facilities
2771.4 Federal Power Act and Powersite Withdrawals
2771.41 Exchange within Federal Power Act and Powersite Withdrawals
2771.42 Retraction of Licensed Project Boundaries and Withdrawals
2772 Special-Use Authorizations
2772.1 Applications
2772.2 Authorization of Projects
2772.21 Authorization of Licensed Projects
2772.22 Denial of Special-use Authorization to Licensed Project
2772.23 Authorization of Projects under Preliminary Permit
2772.24 Authorization of Projects Exempt from Licensing
2772.25 Requirement To Have Special-use Authorization
2772.3 Conditions
2772.4 Term
2772.5 Revocation or Suspension of Special-use Authorization
2772.6 Special-use Authorization Fees
2773 Environmental Analysis
2773.1 Environmental Analysis and Documentation
2773.11 Licensed Projects
2773.12 Projects Exempted from Licensing
2773.2 Mitigation
2774 Recreation Uses at Hydropower Projects
2774.1 Licensee Responsibility
2774.2 Facility Operation, Maintenance, and Replacement
2774.3 Campgrounds
2774.4 Signs
2774.5 Project Recreation Plan
2774.6 Recreation Planning during Relicensing
2775 Special Management Areas
2775.1 Projects Proposed in Wild and Scenic River Areas
2775.11 Projects Proposed on All Other Waterways
2775.12 Projects Proposed on Wild and Scenic Rivers on Lands in
Conservation Units in Alaska
2775.2 Projects Proposed in Designated Wilderness Areas
2775.3 Projects Proposed in Roadless Study Areas
2775.4 Projects Proposed in Research Natural Areas
2775.41 Projects Proposed in Candidate Research Natural Areas
2775.5 Projects Proposed in Other Special Areas
2775.51 Projects Proposed in Study Special Areas
2775.6 Projects Proposed in State-Designated Special Areas
2775.7 Projects Proposed in National Monuments
2776 Relicensing
2776.1 Section 4(e) Conditions in New License
2776.2 Removal of Project
Title 2700--Land Uses Management
Chaper 2770--Federal Power Act Projects
This chapter covers the review of proposals for hydropower
projects; the use of authority granted by section 4(e) of the Federal
Power Act (16 U.S.C. 797(e)) to set conditions in licenses for
hydropower projects issued by the Federal Energy Regulatory Commission
(FERC) for the protection and utilization of National Forest System
lands; the granting of special-use authorizations for hydroelectric
projects; and the granting of special-use authorizations for primary
transmission lines subject to licensing by FERC that are partly or
wholly on National Forest System land. The chapter also covers the
relationship of the Forest Service and FERC during project planning,
construction, and operation.
2770.1--Authority
See FSM 2701.1 for statutory authorities that govern the general
issuance and administration of special use authorizations on National
Forest System lands. The following statutes and regulations
specifically govern the issuance and administration of hydropower
projects on National Forest System lands:
1. The Federal Power Act of August 26, 1935 (49 stat. 847; 16
U.S.C. 797). This act grants the Forest Service the authority to
require conditions in a Federal Energy Regulatory Commission (FERC)
license for a hydropower project on National Forest System lands.
2. The Wild and Scenic Rivers Act of October 2, 1968 (82 Stat. 906;
16 U.S.C. 1271-1287). This act, specifically in sections 7(a), 7(b) and
5(d), sets forth Forest Service responsibilities for determining
acceptability for projects that impact designated and study wild and
scenic rivers. Section 7 gives the Secretary of Agriculture the
authority to determine whether a proposed project would be on or
directly affect a wild and scenic river or would degrade or
unreasonably diminish the values for which the river was designated.
Under section 5(d), the Forest Service is authorized to study rivers
for suitability for designation as wild and scenic.
3. Title V. Section 501, Federal Land Policy and Management Act of
October 21, 1976, as amended (90 Stat. 2743; 43 U.S.C. 1761-1771).
Title V of the Federal Land Policy and Management Act (FLPMA)
authorizes the Secretary of Agriculture to issue, renew, or grant
permits or easements to occupy, use, or traverse National Forest System
lands for the generation, transmission, and distribution of electric
power. Under section 501, as amended by the Energy Policy Act of
October 24, 1992 (106 Stat. 2776; 42 U.S.C. 13201), permits or
easements are not required for the continued operation of projects
licensed by FERC or exempted as of October 24, 1992, unless additional
project area or the project had received a permit or easement under
section 501 of FLPMA at some time in the past.
4. Title 36, Code of Federal Regulations, Part 297, Subpart A. This
regulation provides direction concerning projects affecting wild and
scenic rivers administered in whole or in part by the Secretary of
Agriculture.
2770.2--Objectives
1. To facilitate hydropower production where it is compatible with
the purposes for which a National Forest was created or acquired.
2. To ensure that planning, construction, and operation of
hydropower projects are performed in a manner that provides adequate
protection and utilization of National Forest System lands and
resources.
3. To ensure that Forest Service planning and the evaluation of the
hydropower proposals recognize the rarity of sites which are suitable
for potential hydropower development because of a unique combination of
resources and circumstances.
2770.3--Policy
1. Hydropower development is an appropriate use of National Forest
System land, unless one or more of the following circumstances exist:
a. Hydropower development is inconsistent with and would interfere
with the purposes for which the affected area was created or acquired
as determined by the following: The Organic Administration Act, the
Multiple Use-Sustained Yield Act, subsequent acts making special
designations within the National Forest System, and legislation or
Presidential proclamation specifically establishing a National Forest.
b. Hydropower development is inconsistent with the management
direction in the Forest land and resource management plan, and
significant adverse effects on the [[Page 27160]] management and
utilization of National Forest System resources cannot be mitigated
sufficiently to achieve plan consistency with the Forest plan.
c. The project is not in the public interest (FSM 2771.25)
2. Weight energy resource development with the protection and
utilization of other National Forest resources when determining what
mitigation is necessary to provide the best balance of protection and
utilization of those resources.
3. Cooperate and coordinate activities in the development of the
Nation's energy resources for hydropower with the Federal Energy
Regulatory Commission (FERF); Federal, State, and local resource
agencies; tribal governments; coordinating bodies, such as the
Northwest Power Planning Council; and potential developers.
2770.4--Responsibility
2770.41--Chief
1. For projects proposed in designated wilderness areas or other
special areas which require Presidential approval:
a. The Chief reserves authority to approve reports and sign
correspondence that make recommendations to the Secretary for approval
of projects when the Forest Service considers them to be in the public
interest, and
b. The Chief may deny approval for projects when the Forest Service
considers them not to be in the public interest (FSM 1923 and FSM
2323).
2. The Chief also reserves the authority to approve a Forest
Service recommendation to FERC that the Federal Government take over a
project whose license period is ending (FSM 2771.33).
2770.42--Director of Lands, Washington Office
Except for the authority reserved to the Chief (FSM 2770.41), the
Director of Lands, Washington Office has authority and responsibility
to:
1. Approve reports and sign correspondence to the Federal Energy
Regulatory Commission (FERC) relating to activities under the Federal
Power Act, as amended.
2. Represent the Department of Agriculture in contacts with FERC at
the National level in matters relating to hydropower projects (FSM
1043).
3. Coordinate the review of matters pertaining to hydropower
projects with other agencies of the Department.
4. Control the assignment of Forest Service personnel as witnesses
in FERC hearings, secure Office of the General Counsel review, and
approve testimony prior to its being filed with FERC.
5. Review prior to signature, any Regional Forester decision for
hydropower project proposals involving section 7 of the Wild and Scenic
Rivers Act. (See review and routing procedures in FSH 2709.15, sec.
24.41)
6. Review prior to signature, any Regional Forester decision
involving section 4(e) of the Federal Power Act, except when the
Director specifically waived such a review because the Regional
Forester has staff sufficiently experienced in hydropower procedures.
(See review and routing procedures in FSH 2709.15, sec. 52.2)
7. Approve recommendations to FERC for the Federal Government to
take over hydropower project facilities (FSM 2771.33).
2770.43--Regional Forester
The Regional Forester has authority and responsibility to:
1. Subject to the delegations of authority to the Washington Office
Director of Lands in FSM 2770.42, paragraphs 5 and 6, approve reports
and signed correspondence to FERC on behalf of the Secretary of
Agriculture relating to licensing activities under the Federal Power
Act, as amended, including reports under section 4(e) of the Federal
Power Act, except as noted in the following paragraph 8. This authority
may not be redelegated.
2. Establish Region-wide quidelines for analysis and administration
of hydropower projects on National Forest System lands.
3. Coordinate with FERC staff as necessary.
4. Maintain an information base for use in managing Federal Power
Act project activities.
5. Respond to FERC on behalf of the Secretary of Agriculture on
applications for licenses. Coordinate review of applications for FERC
licenses, field investigations, and preparation of 4(e) reports.
6. Respond to FERC on behalf of the Secretary of Agriculture on
applications for preliminary permits and exemptions.
7. Establish procedures for contacting licensees or special-use
holders at least 5 years prior to the expiration of their license or
special-use authorization to ascertain their intentions concerning
continuation of the project.
8. For projects proposed in wilderness areas or other areas which
require Presidential approval:
a. Prepare, for the Chief's review, the environmental impact
statement (EIS) necessary for the Secretary to make recommendations to
the President concerning such projects.
b. Approve reports recommending to the Chief approval of projects
when the Forest Service considers them to be in the public interest.
c. Approve reports and sign correspondence for denial of approval
when the Forest Service considers projects not to be in the public
interest.
The authority to sign the recommendation to the Chief or to deny
approval for a project may not be redelegated.
9. Subject to the delegation of authority to the Washington Office
Director of Lands (FSM 2770.42, para. 5 and 6) approve reports and sign
correspondence to FERC on behalf of the Secretary of Agriculture
relating to decisions made under section 7 of the Wild and Scenic
Rivers Act for hydropower projects.
10. As appropriate, authorize Forest Supervisors to correspond
directly with FERC on all administrative and construction matters
during construction and operation of a project.
11. Issue special-use authorizations for hydropower projects that
have been licensed or exempted from licensing by FERC. The authority to
issue special-use authorizations for these projects may be redelegated
to the Forest Supervisor, but the authority may not be redelegated by
the Forest Supervisor to lower level officials.
2770.6--Federal Energy Regulatory Commission (FERC) Responsibility and
Authority
Forest Service officers must coordinate actions regarding
hydropower matters with the Federal Energy Regulatory Commission
(FERC). Review the information regarding FERC in FSH 2709.15, chapter
10.
2771.--Forest Service Involvement With FERC on Hydropower Projects
For a summary of the typical steps involved in the hydropower
approval and administration process, see FSH 2709.15, sec. 28.
2771.1--Response to Applications
2771.11--Response to License Applications
Use the 4(e) report (FSM 2771.2) to state the official position of
the Secretary regarding the licensing of specific projects affecting
National Forest System land and resources (FSH 2709.15, ch. 50). Where
appropriate, include comments on the effects of the project on the
programs of the Department of Agriculture. Also, see FSM 2774.5 for
coordination with license applicants on recreation project
plans. [[Page 27161]]
2771.12--Response to Preliminary Permit Applications
The Regional Forester must provide comments to FERC on potential
problems, concerns, and conditions for applications for preliminary
permits on projects affecting National Forest System lands and
resources. Do not prepare a 4(e) report for a preliminary permit;
submit these comments through correspondence.
2771.13--Response to Exemption Applications
The Regional Forester shall identify potential problems and provide
comments and recommendations to FERC on applications for exemptions.
Incorporate standard and special conditions required on exemptions in
the special-use authorization. Do not prepare 4(e) report for an
exemption; submit these comments through correspondence.
2771.2--Requirements
2771.21--Section 4(e) Reports
Respond to a Federal Energy Regulatory Commission (FERC) notice
that an application for license is ready for environmental analysis
with a report pursuant to section 4(e) of the Federal Power Act
(hereafter called a 4(e) report) for any project that would occupy
National Forest System land. An original and 8 copies of the 4(e)
report must be provided to FERC within 60 days of the FERC notice.
FERC's regulations allow FERC to consider 4(e) conditions filed after
the 60-day deadline as recommendations rather than mandatory
conditions. The exception is when FERC grants the Forest Service an
extension of time because of extenuating circumstances or because the
Forest Service and FERC are conducting a cooperative environmental
analysis under the National Environmental Policy Act (NEPA). In these
cases the Forest Service must provide preliminary 4(e) reports within
the 60-day timeframe and final 4(e) conditions within 45 days after the
cooperative NEPA analysis is completed (FSH 2709.15, sec. 13.32).
Regional Foresters shall transmit draft 4(e) reports (preliminary
and final) to the Washington Office Director of Lands for procedural
review prior to the Regional Forester's decision and transmittal to
FERC in conformance with the review and routing procedures in FSH
2709.15, section 52.2. However, if the Washington Office Director of
Lands notifies the Regional Forester that such reviews are not
necessary because of sufficient Regional staff experience in hydropower
matters, the Regional Forester may send 4(e) reports to FERC without
Washington Office review. The Regional Forester shall send copies of
the signed 4(e) reports to the Washington Office Director of Lands.
The 4(e) report should provide FERC with:
1. A statement of the conclusion as to the project's consistency or
interference with the purposes for which the National Forest was
created or acquired, and as appropriate, advice on whether the project
is in the public interest (FSM 2771.24 and 2771.25 and FSH 2709.15,
sec. 27).
2. Appropriate comments regarding the project application for
license.
3. Conditions (FSM 2771.22) to be included in the FERC license
necessary for the adequate protection and utilization of the National
Forest System lands and resources (FSH 2709.15, ch. 50).
4. The appropriate environmental documentation and documentation of
decision in support of the conditions that the Forest Service will
require in the license 4(e) conditions) and in the special-use
authorization (FSH 2709.15, ch. 30).
5. A copy of the special-use authorization that will be issued if
the project is licensed (FSH 2709.15, sec. 77). See FSH 2709.15,
chapter 50, for instructions on responding to FERC under various
situations.
2771.22--Section 4(e) Conditions
For a project which would occupy National Forest System lands, the
Forest Service may impose conditions through the 4(e) report the FERC
must make part of any license it issues for the project. Such
conditions must be reasonable and necessary for the adequate protection
and utilization of National Forest System lands and resources.
Do not impose the recommendations of other agencies as 4(e)
conditions without an independent analysis by the Forest Service so
that they become Forest Service conditions. Generally, limit 4(e)
license conditions to those measures that have substantial effects on
the economics or siting of the project. Other conditions of a more
routine nature relating to project impacts on National Forest Systems
lands may be imposed through the special-use authorization (FSM
2772.3). (See FSH 2709.15, sec. 21.4, for limits on the scope of 4(e)
conditions for amendments to a license see also FSH 2709.15, sec.
52.23, 55.1, and 55.6). Chapter 70 of the Handbook contains direction
on the forms to complete for various special-use permits for hydropower
projects. (See FSH 2709.15, sec. 77, ex. 01 through 04).
2771.23--Projects Exempted From Licensing
An exemption from licensing (FSH 2709.15, sec. 12) by FERC does not
grant or imply a grant to any land-use rights to the exemptee. Advise
FERC of substantial concerns regarding potential effects of exempt
project proposals on National Forest resources. Make an independent
determination of whether to authorize such projects (FSM 2772.2).
2771.24--National Forest Purposes
FERC may not license projects which it finds would be inconsistent
and that would interfere with the purposes for which the National
Forest was created or acquired (section 4(e) of the Federal Power Act).
Those purposes are defined in the Organic Administration Act of 1897
(16 U.S.C. 473 et. seq.) and expanded by the Multiple-Use Sustained-
Yield Act of 1960 (16 U.S.C. 528 et. seq.) and subsequent acts (FSM
2701.1). In addition, some National Forest enabling legislation or
proclamations state specific purposes. Since Congress has the authority
to change or expand the National Forests, those purposes do not have to
have been stated at the time the National Forest was originally
reserved or acquired to be ``purposes for which they were created or
acquired.'' Specific legislation (the Wilderness Act for example; 16
U.S.C. 1131-1136) and specific designations (Research Natural Areas for
example) also determine the purposes for which portions of the National
Forests are created or acquired.
Through the Forest and Rangeland Renewable Resources Planning Act
of 1974 (16 U.S.C. 1601 et seq; as amended by the National Forest
Management Act of 1976), Congress requires land and resources
management planning to determine management direction for the National
Forests. Such plans must be consistent with the purposes for which
those lands were created or acquired. Therefore, also use the Forest
land and resource management plan in determining the consistency of a
project with the purposes for which the National Forest was created or
acquired. Fully disclose to FERC in the 4(e) report, a recommendation
concerning the nature and extent of any significant inconsistency or
interference the project would cause for those purposes. FERC makes the
decision whether to authorize the project through licensing. In so
doing, FERC makes the actual determination regarding whether the
project is inconsistent with or would interfere with the purposes for
which the National Forest was created or acquired. [[Page 27162]]
2771.25--Recommendation That Project is Not Public Interest
The Forest Service is not responsible for determining or
recommending whether a hydropower project (with an application for
license) is in the public interest. Consider making such a
recommendation to FERC if the available information supports such a
conclusion. Make sure the 4(e) report fully explains the nature and
extent of reasons for the Forest Service recommendation. Use the Forest
land and resource management plan as a basis for evaluating the needs
of the public.
FERC makes the actual determination of whether the project is in
the public interest under section 10(a) of the Federal Power Act.
2771.3--Coordination
2771.31--Other Actions Within Project Boundaries
Do not initiate non-project related resource management activities
or authorize use by others on lands covered by a hydropower project use
authorization or license unless it is determined that such activities
or uses will not adversely affect project operations and will not
conflict with the terms and conditions of the project special-use
authorization or license. Also, prior to granting special-use
authorizations to third parties, the authorized officer must review
with the Federal Energy Regulatory Commission (FERC) and the affected
licensee proposed non-project uses within the boundaries of licensed
projects.
2771.32--Project Surrender, Termination, or Abandonment
FERC is responsible for procedures for termination, surrender, and
abandonment of licensed projects (18 CFR Part 6). See FSM 2772.5 for
termination requirements for Forest Service special-use authorizations
(36 CFR 251.60).
2771.33--Federal Takeover of Project Facilities With Expired License
Federal takeover of a project whose license period is ending is a
rarely used process which requires Congressional action. If warranted,
the Forest Service may file a recommendation with FERC that the United
States exercise its right to take over a hydropower project no earlier
than five years before the license expires and no later than the end of
the comment period for a notice of an application for a new license, a
nonpower license, or an exemption. The Forest Service rarely would
propose to the Federal Energy Regulatory Commission (FERC) that the
United States take over a project. The Chief must approve a Forest
Service recommendation for the Federal Government to take over project
facilities. If a project is taken over, the Federal Government must
compensate the licensee for the net investment. See Title 18, Code of
Federal Regulations, Part 16, Subpart C, sections 16.14 through 16.17,
for procedures for recommending to FERC for Federal takeover of a
project. See FSM 2716.4 for direction regarding Forest Service takeover
of unlicensed projects by default, surrender, abandonment, and so
forth.
2771.4--Federal Power Act and Powersite Withdrawals
(For further direction see FSH 2709.15, sec. 21.8.)
2771.41--Exchange Within Federal Power Act and Powersite Withdrawals
Lands withdrawn for power purposes within licensed project
boundaries are available for disposal through exchange or other means
only after:
1. FERC vacates or amends the withdrawal, and thus opens (restores)
the lands for exchange and other related actions, or
2. FERC makes a determination that the lands may be conveyed
subject to a reservation in the patent or deed under section 24 of the
Federal Power Act.
2771.42--Retraction of Licensed Project Boundaries and Withdrawals
When a project boundary contains National Forest System lands that
are in excess of what is needed for the project, the authorized officer
should formally request that the licensee and FERC retract the
boundary; then, request FERC to vacate (terminate) the withdrawal of
these excess lands.
When withdrawn lands are associated with an inactive project (that
is, one not currently authorized or being considered by FERC for some
type of action), request FERC to vacate the withdrawal.
2772--Special-Use Authorizations
FSH 2709.11, Special Uses Handbook, provides direction on the
authorization and administration of special uses on National Forest
System land. Chapters 60 and 70 of FSH 2709.15, Hydropower Handbook,
provide detailed instructions for special-use authorizations related to
hydropower projects on the following forms: Form FS-2700-4e, Special-
Use Permit Exempted or Unlicensed Hydropower Project; Form FS-2700-4g,
Special-Use Permit, Licensed Hydropower Project; and Form FS-2700-4f,
Special-Use Permit, Hydropower Investigation.
2772.1--Applications
Applicants for Federal Energy Regulatory Commission (FERC)
licenses, preliminary permits, and exemptions from licensing must also
apply to the Forest Service for authorization when projects involve
National Forest System land (36 CFR 251 Part B; FSM 2772.25).
Authorizing officers should encourage applicants to file applications
for special use authorizations with the Forest Service concurrently
with filing a FERC license or exemption application.
2772.2--Authorization of Projects
Project special-use authorizations shall become effective only
after the project is licensed or exempted from licensing by FERC.
2772.21--Authorization of Licensed Projects
Issue special-use authorizations for all hydropower projects
licensed by FERC in accordance with FSM 2772.25. If the Forest Service
determines that a project (whose proponent is seeking a license) should
not be constructed on National Forest System land, then the Forest
Service must advise FERC, before the licensing decision is made, that
the project is inconsistent or would interfere with National Forest
purposes or that it would not be in the public interest. Promptly
notify the Washington Office Director of Lands is issuance of a
special-use authorization to a project licensed by FERC might violate a
law or cause unacceptable damage to National Forest System resources
before preparing a section 4(e) report.
2772.22--Denial of Special-Use Authorization to Licensed Project
Licensed projects may not be denied a special-use authorization
(FSM 2772.21)
2772.23--Authorization of Projects Under Preliminary Permits
The Forest Service may issue investigative special use permits to
authorize studies to be carried out by prospective applicants that have
received a FERC preliminary permit. An investigative special-use permit
(FS-2700-4f) may be issued to allow investigation of potential
projects. This type of permit must contain conditions necessary for
resource protection commensurate with the scope of investigation (FSH
2709.15, sec. 62.11 and 74). [[Page 27163]]
2772.24--Authorization of Projects Exempt From Licensing
For a project exempted from licensing by FERC, the Forest Service
may issue a special-use authorization (Form FS-2700-4e) if it
determines the project is an appropriate use of National Forest System
lands and is in the public interest. (See FSH 2709.15, sec. 53.2, for
additional information on exemptions.)
2772.25--Requirement To Have Special-use Authorization
Pursuant to the Federal Land Policy and Management Act (FLPMA) of
October 21, 1976, the holder of a FERC license or a hydropower project
proponent who is exempt from licensing also must obtain a Forest
Service special-use authorization. This requirement to have a special-
use authorization applies to original licenses (first license for
project) and new licenses issued as a result of relicensing. However,
pursuant to the Energy Policy Act of 1992 (42 U.S.C. 13201), a special
use authorization is not required for the continued operation of
licensed or exempted projects that had not received a authorization
under section 501 of FLPMA at any time prior to the passage of the Act
unless FERC determines that additional National Forest System lands
would be affected. Before passage of FLPMA, FERC licensees were not
required to have a Forest Service special-use authorization. See FSH
2709.15, section 63.1, for direction regarding the reasonable and
orderly phase-in of FLPMA requirements in regard to licensed and
relicensed projects.
A special-use authorization is also required for the use of
National Forest System lands affected by a material license amendment,
even if the current license was issued prior to passage of FLPMA. See
FSH 2709.15, section 63.1 for direction regarding the reasonable and
orderly phase-in of FLPMA requirements in regard to amendments of
license.
2772.3--Conditions
Special-use authorizations for licensed projects (Form FS-2700-4g)
shall authorize the occupancy and use of National Forest System lands.
In addition to the mandatory standard provisions (FSH 2709.15 sec. 72),
the special-use authorization shall include those conditions and
requirements which are necessary for comprehensive and compatible use
of land, water, and hydropower resources consistent with the purposes
for which the National Forests are managed (FSM 2772.5, and FSH
2709.15, sec. 62.13 and 72). These conditions, however, should not
duplicate what is already required in the FERC license.
1. In the Forest Service special-use authorization for a FERC-
licensed project (Form FS-2700-4g), do not include conditions and
requirements that:
a. Substantially affect power production capability (through limits
on water use or through high costs), or
b. Substantially affect facility siting. Such requirements are to
be imposed through conditions in the section 4(e) report (FSM 2771.21).
2. The limitations on conditions in special use authorizations in
the preceding paragraph 1 do not apply to:
a. A Federally owned dam under the jurisdiction of the Forest
Service, or
b. A project exempted from licensing by FERC.
Special-use authorizations for projects exempted from licensing
(Forms FS-2700-4e) by FERC must also include conditions to protect the
public interest normally covered by the FERC license (FSH 2709.15, sec.
12, 62.12, and 73).
An investigation special-use permit (Form (FS-2700-4f) may be
issued to allow investigation of potential projects. This type of
permit must contain conditions necessary for resource protection
commensurate with the scope of investigation (FSH 2709.15, sec. 62.11
and 74).
2772.4--Term
For FERC-licensed projects, issue a special-use authorization (Form
FS-2700-4g) for the same term as the license. For projects exempted
from licensing by FERC, the authorized Forest Service officer shall
determine the term of the permit (Form FS-2700-4e), up to 30 years.
Temporary facilities and investigations may be authorized for up to 3
years (Form FS-2700-4f) (FSH 2709.15, sec. 62.1).
2772.5--Revocation or Suspension of Special-Use Authorization
A special-use authorization for a FERC-licensed project (Form FS-
2700-4g) has a term matching that of the license and normally is not
revoked unless and until the license terminates. However, a special-use
authorization for a licensed project may be revoked or suspended for
breach of its conditions, if negotiations to remedy the breach in
consultation with FERC such as those outlined in FSH 2709.15, section
64, fail to obtain the compliance of the holder (see also FSM 2771.32).
Special-use authorizations for FERC-exempted projects may be revoked in
accordance with 36 CFR 251.60.
2772.6--Special Use Authorization Fees
See FSH 2709.15, section 65 for policy on charging fees for:
1. Investigation permits,
2. Licensed project authorizations, and
3. Exempted project authorizations.
2773--Environmental Analysis
2773.1--Environmental Analysis and Documentation
(FSM 1950, FSH 1909.15, FSH 2709.15, ch. 30.) If an environmental
impact statement (EIS) is to be prepared, FERC usually will be the lead
Federal agency. Line officers should request FERC to designate the
Forest Service as a cooperating agency when National Forest System
lands are affected. When an environmental assessment (EA) is to be
prepared, the Forest Service and FERC will usually perform a
cooperative environmental analysis and prepare a cooperative EA.
2773.11--Licensed Projects
The Federal Energy Regulatory Commission (FERC) is responsible for
National Environmental Policy Act (NEPA) compliance for projects
licensed by FERC. The Forest Service is responsible for NEPA compliance
on decisions regarding the determination of the conditions imposed
through the 4(e) report (FSM 2771.21); and special-use permit
conditions necessary for the protection and utilization of National
Forest System lands; and compatibility decisions under Section 7 of the
Wild and Scenic Rivers Act.
2773.12--Projects Exempted From Licensing
When National Forest System lands are involved, the Forest Service
is responsible for NEPA compliance for projects exempt from licensing
by FERC.
2773.2--Mitigation
Determine the effects of the project as proposed and the effects of
identified alternatives. Devise alternatives which provide for
mitigation of adverse resource impacts. Analyze alternatives and their
associated resource protection measures, and balance resource
protection needs and resource utilization needs.
1. Identify measures necessary for the adequate protection and
utilization of the National Forest and
a. Include the measures in the 4(e) report which will then be
incorporated into the license; as appropriate, require implementation
plans as a 4(e) condition or as a condition of the special-use
authorization to provide site-specific details for applying those
measures on the ground; and/or [[Page 27164]]
b. Include them as appropriate in the special-use authorization.
2. The effects of a project should be known before authorization is
granted through the license or special-use authorization. Therefore,
determine resource protection measures in the environmental analysis
before authorization. The license or special-use authorization may
require plans to implement the mitigation measures, but in general, the
plans would not be used to determine the impacts (FSH 2709.15, sec.
55.23).
3. Required mitigation measures must be reasonable and necessary
for the adequate protection and utilization of the National Forest and
should be designed to prevent unnecessary impacts to forest resources.
As noted in FSM 2271.22, do not require, through 4(e) conditions,
measures that do not meet that standard.
4. Tradeoffs in uses of the National Forest can be evaluated and
certain enhancement measures may be required through 4(e) conditions
for the adequate protection and utilization of the National Forest. For
example, in allowing an important hydropower development, a resource or
use (such as dispersed recreation) may be severely impacted or
eliminated from the affected area--an unmitigated impact. Through
evaluation of the project, another related resource or use (such as
developed recreation) may be enhanced by actions or developments (such
as campgrounds) the licensee could provide. Such enhancements may be
required through section 4(e) conditions as offsetting the impacts of
the development. Carefully negotiate such enhancements with the
potential licensee to obtain agreement if possible. In cases where it
may be difficult to substantiate project impacts with the need for
enhancement, be aware that such measures may be challenged by the
potential licensee for their imposition as 4(e) conditions. Seek the
advice of the Washington Office Lands Staff before requiring offsetting
enhancement without the potential licensee's consent.
5. Developing offsite resources as mitigation for resources lost by
development in the project area is acceptable as called for by a
balanced evaluation of the effects of the project. However, it is not
necessary that resource losses be mitigated by such offsite
replacement. Determine whether offsite replacement is appropriate based
on the evaluation of effects of the project and the balancing of the
hydropower needs with resource needs; consider whether potentially lost
resources are unique or in short supply; and determine the feasibility
of replacing the resources. See FSM 2276.1, for offsite mitigation
direction regarding projects in relicensing.
2774--Recreation Uses at Hydropower Projects
(See also FSM 2314 for additional direction.)
2774.1--Licensee Responsibility
Licensees and exemptees are responsible for providing recreation
and interpretive facilities to mitigate (FSM 2773.2) the recreation
pressures induced by the construction and operation of the hydropower
facilities. That induced recreation need is often the result of
reservoir construction or stream flow alterations that create a water
attraction or new access to existing roads (such as by snow removal).
These attractions may invite the recreating public to existing
locations in increased numbers, to new places, and to places or at
times not previously used.
Require developers of hydropower facilities that induce or displace
recreational use of the National Forest to provide facilities and
otherwise mitigate those increases and losses in recreation use in an
appropriate manner, consistent with the Forest land and resource
management plan. Specify necessary facilities and mitigation measures
as conditions in the 4(e) report submitted to FERC (FSH 2709.15, ch.
50). Forest Service requirements for recreation facilities and
mitigation measures must be reasonable and necessary for the adequate
protection and utilization of the National Forest and its resources
(Federal Power Act, sec. 4(e); 16 U.S.C. 797(e)).
Hold the licensee or exemptee responsible for construction,
operation, maintenance, and replacement of recreation facilities that
accommodate project-induced use or mitigate impacts from projects
constructed through licenses or exemption issued by the Federal Energy
Regulatory Commission (FERC). Do not relieve the licensee of the
obligation to provide those facilities and to cover the costs for
facility operation, maintenance, and replacement.
See FSH 2709.15, section 24.2, for additional direction on Forest
Service and licensee responsibilities; in particular, see section 24.22
regarding displaced recreation uses.
2774.2--Facility Operation, Maintenance, and Replacement
Control licensee's construction, operation, maintenance, and
replacement of recreation facilities on National Forest System lands
through the project special-use authorization (FSM 2772, FSH 2709.15,
ch. 60).
Negotiation is the preferred method of determining which party
should assume operation and maintenance of licensee-constructed project
recreation facilities (FSM 2774.2). If negotiations fail, the Forest
Service may require the licensee to turn over operation and maintenance
of these facilities on National Forest System lands to the Forest
Service as long as the standards of FSH 2709.15, section 24.31 are met.
When it is desirable for the Forest Service to operate the
recreation facilities (FSH 2709.15, sec. 24.3), negotiate a memorandum
of understanding (FSH 2709.15, sec. 42.2) with the licensee for such
operation at the licensee's expense. Ownership of facilities is not
necessary for the Forest Service to operate facilities through a
memorandum of understanding or license conditions. Use a collection
agreement to allow the licensee to make payments for Forest Service
operation, maintenance, and replacement of facilities.
Licensees may be allowed to operate Forest Service-owned facilities
through the authority of the Granger-Thye Act (16 U.S.C. 580(d); see
FSM 2711.7). The licensee may improve National Forest facilities and
the facilities operated by the licensee under authorization of the
Forest Service project special-use authorization by adding appropriate
conditions from the standard Granger-Thye permit (FSM 2713.12a).
Negotiate shared financial responsibility with the licensee when
facilities are constructed which accommodate both project induced
recreation and non-project induced recreation.
See FSH 2709.15, section 24.3, for additional direction on
determining who is responsible for operating, maintaining, and
replacing recreation facilities.
Generally, do not accept ownership of recreation facilities
constructed by the licensee. Such acceptance may make the Forest
Service responsible for operation and maintenance of the facility, as
well as replacement. If the licensee desires to transfer ownership to
the Forest Service, ensure that the transfer agreement specifies the
licensee's continuing responsibility, including replacement of
facilities as appropriate. In addition, make sure that project-induced
facilities remain within the project boundary so that they remain
within the jurisdiction of the FERC license.
2774.3--Campgrounds
Campgrounds constructed on National Forest System lands, regardless
[[Page 27165]] of who builds, operates, or maintains them, are to be
identified and managed as National Forest campgrounds. They are subject
to Forest Service standards and to National programs, such as the
``Golden Age and Golden Access Passports.''
Monitor literature produced by the licensee to ensure that
campgrounds are identified as National Forest campgrounds and as
licensed and/or operated by the licensee as required by a condition of
the special use authorization or FERC license.
2774.4--Signs
Recreation facility signs must be from the Forest Service family of
signs for campgrounds (FSM 7160 and FSH 7109.11). Give visible and
equal credit in such signs to the licensee for its role in the
campground development, construction, and operation, as appropriate.
The licensee is responsible for the cost of such signs.
Interpretive signs for the project are the responsibility of the
licensee, except to the extent they interpret the Forest Service
mission or activities.
Coordinate with FERC and the licensee with regard to placement and
design of signs required by FERC for the project.
2774.5--Project Recreation Plan
As part of the application for a FERC license, a project applicant
normally prepares a project recreation plan to address future
recreation needs associated with the project. The Forest Service should
work with a license applicant to ensure that the applicant's plan
adequately anticipates and plans for future recreation needs. In the
plan, develop and include criteria or measurable events that will
trigger future additional facility needs.
Do not use open-ended special-use authorization or 4(e) conditions
for the FERC license to require unspecified future recreation
developments; however, provide flexibility for modifying the project
recreation plan if unanticipated needs for different recreation
developments arise in the future. Keep in mind that costs for any
future modifications must be within the total cost of the future
recreation expansion required in the license.
2774.6--Recreation Planning During Relicensing
Recreation guidelines for relicensing existing FERC-licensed
projects are the same as for original licenses. Needs induced by the
project are the responsibility of the licensee, regardless of when
those needs were originally induced or who is currently meeting those
needs.
The Forest Service has constructed many recreation facilities in
the past to accommodate recreation induced by FERC-licensed projects
when the licensee would not construct the facilities. During
relicensing, use appropriate 4(e) conditions (FSH 2709.15, ch. 50) to
require the licensee to assume appropriate financial responsibility for
those facilities constructed by the Forest Service, unless the Forest
Service has reasons to retain this responsibility (see also related
direction in FSM 2774.2 and FSH 2709.15, sec. 24.15).
2775--Special Management Areas
2775.1--Projects Proposed in Wild and Scenic Rivers Areas
Rivers and study rivers designated for protection under sections 3
or 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.) may
not be used for hydropower projects on or directly affecting such
rivers. Hydropower projects not on or directly affecting a designated
wild and scenic river, but having some indirect affects on the river,
may be permitted only where they do not invade or unreasonably diminish
the existing wild and scenic river values (this provision also affects
rivers designated for study under section 5(a) of the Wild and Scenic
River Act).
By law, the Secretary of Agriculture must make the determination of
whether a project is ``on or directly affecting'' the designated river
or would ``invade or unreasonably diminish the values for which the
river was designated,'' in accordance with section 7 of the Wild and
Scenic Rivers Act. This is called a section 7 determination. This
authority has been delegated to the Regional Forester, who must make
this determination prior to issuance of an exemption or license by FERC
on rivers administered by the Department of Agriculture. See FSM
2354.04 and 2770.4 for the delegation of authority for making this
determination. For further direction on wild and scenic rivers, see FSH
2709.15, sec. 25; 36 CFR Part 297; and FSH 1909.12, ch. 8.
2775.11--Projects Proposed on All Other Waterways
The proposed use of rivers on National Forest System lands for
hydropower projects must be consistent with the requirements of section
5(d) of the wild and Scenic Rivers Act which Authorizes the Forest
Service to study the Suitability of rivers for wild and scenic
protection through the forest planning process. Therefore, the Regional
Forester must ensure that eligibility determinations have been
completed for all National Forest rivers proposed for use by hydropower
projects by the time of the interim 4(e) report (FSH 2709.15, sec. 25;
FSM 2354). If the river is not eligible for inclusion in the Wild and
Scenic Rivers System, note that fact in the interim 4(e) report to
FERC. If the river is eligible for inclusion in the Wild and Scenic
Rivers system, ask FERC to delay the licensing decision until the
suitability determination for inclusion in the Wild and Scenic Rivers
System has been completed as outlined in FSH 2709.15, section 25.3.
This requirement to complete eligibility requirements and, if the river
is eligible, to complete suitability determinations applies to rivers
identified on the Nation-wide Rivers Inventory and to rivers identified
for consideration through Forest land and resource management plans
(FSM 1924).
2775.12--Wild and Scenic Rivers on Lands in Conservation Units in
Alaska
Dams and hydropower plants on a designated wild and scenic river in
Alaska would not be an appropriate use and could not be licensed by
FERC if they are ''on or directly affecting'' the river (Wild and
Scenic Rivers Act, sec. 7, and sec. 1107 of the Alaska National
Interest Lands Conservation Act (ANILCA; 94 Stat. 2464; 16 U.S.C.
3167)). A transportation or utility system, including linear facilities
associated with a hydropower project, may use lands within the
boundaries of a designated river in Alaska National Forests when the
following conditions are met (16 U.S.C. 3167(b)):
1. Facilities do not interfere with or impede the streamflow of and
transportation on the river.
2. The transportation or utility system (linear facilities, such as
pipelines, ditches, tunnels and powerlines; 16 U.S.C. 3162(4)) is
located and constructed in an environmentally sound manner.
2775.2--Projects Proposed in Designated Wilderness Areas.
(FSM 2320), and FSH 2709.15, sec. 26.) A new hydropower project may
occupy land in a wilderness only if the President approves (16 U.S.C.
1133(d)(4)). The Secretary of Agriculture is responsible for a
recommendation to the President to approve a hydroelectric use in a
designated wilderness. The Chief is responsible for the recommendation
to the Secretary to approve such a hydroelectric use. The Regional
Forester is responsible for evaluating such a proposal. The
[[Page 27166]] Secretary, Chief, or Regional Forester (FSM 2770.4) may
determine that a proposal is not in the public interest and dismiss the
project proposal.
Even though the Forest Service is responsible for initiating a
recommendation for a project in wilderness, the Federal Energy
Regulatory Commission (FERC) is responsible for the environmental
impact statement (EIS) needed to evaluate proposed licensing of the
project (FSM 2773). Such an EIS generally is prepared with the
cooperation of the Forest Service through the Regional Forester.
If the Chief determines that a proposed project in wilderness is in
the public interest, the Chief transmits the EIS, along with the
recommendation, to the Department of Agriculture for the Secretary's
recommendation to the President for a decision. If the President
approves the project and the associated use of the wilderness, the
Regional Forester must submit a 4(e) report to FERC consistent with
that decision.
A special-use authorization (Form FS-2700-4f) for study of a
potential hydropower development and other non-ground-disturbing
activities in a wilderness may be issued without Presidential approval
(FSM 2772.3, and FSH 2709.15, sec. 62.11 and 74).
Existing facilities in wilderness areas that have been properly
authorized by a FERC license continue to be authorized by that license.
See FSH 2709.15, section 64.7, for further guidance on administering
existing projects in the wilderness.
2775.3--Project Proposed in Roadless Study Areas
Roadless study areas include legislatively unreleased Roadless Area
Review and Evaluation II (RARE II) areas, further planning areas, and
Congressionally mandated wilderness study areas (FSM 1923 and FSM
2320).
When roadless study lands are included in an application for
license for a proposed hydropower project, advise FERC through an
interim 4(e) report (or other appropriate correspondence) of the study
and pending land allocation decision. Recommend that FERC:
1. Reject the application for license and advise the applicant to
reapply if the lands in question are allocated to non-wilderness uses
that would not conflict with hydropower development, or
2. Delay the licensing decision until the land allocation decision
is made, preferably through the Forest land and resource management
plan. If the land use decision must be made before the forest land and
resource management plan can be implemented, conduct a suitable
analysis in compliance with the National Environmental Policy Act (FSM
1920; FSH 1909.12 and 1909.15).
Generally, grant investigation special-use authorizations (Form FS-
2700-4f) in these areas only for study and other non-ground-disturbing
activities.
2775.4--Projects Proposed in Research Natural Areas
Most surface hydropower facilities would be incompatible with the
purposes of a research natural area (FSM 4063). However, the research
natural area management plan may allow for hydropower or similar uses;
in this case, evaluate a proposed project and respond to FERC in a 4(e)
report. Coordinate advice to FERC and the issuance of any special-use
authorizing actions within the research natural area with the Research
Station Director.
1. If a proposed hydropower project is incompatible with the
purposes of the research natural area, then:
a. In response to a notice of application to FERC for license, or
in the 4(e) report, inform FERC that such surface uses would be
incompatible with the purposes of the research natural area.
b. Do not issue a special-use authorization for a project exempted
from licensing by FERC when the project includes surface lands within a
research natural area boundary.
2. When the Station Director believes that the hydropower values
that would be forgone are of greater public benefit than keeping the
research natural area fully protected, the Station Director may
request, with Regional Forester concurrence, that the Chief reconsider
or modify the designation order establishing the research natural area
(see direction on authority of Station Directors in FSM 4062).
3. In general, do not issue an investigation special-use
authorization (Form FS-2700-4f) to a project proposing to use lands of
a research natural area; however, a non-ground disturbing investigation
special-use authorization may be issued in situations such as:
a. The research natural area's management plan allows actions which
include or are similar to those proposed by the hydropower project;
b. There would be no direct or indirect modification to the
ecological processes of the research natural area; for example, a
tunnel under the research natural area might not adversely affect the
area; or
c. The Station Director anticipates that a proposed hydropower
development may have significant public benefits.
2775.41--Projects Proposed in Candidate Research Natural Areas
When candidate research natural area lands are included in an
application for license for a proposed hydropower project, advise FERC
of the study and pending land allocation decision. Recommend that FERC:
1. Reject the application for license and advise the applicant to
reapply if these lands are allocated to non-research natural area uses
that would not conflict with hydropower development, or
2. Delay the licensing decision until the land allocation decision
is made, preferably through the Forest land and resource management
plan. If the land use decision must be made before the land and
resource management plan can be implemented, conduct a suitable
analysis in compliance with the National Environmental Policy Act (FSM
1920; FSH 1909.12 and 1090.15).
Issue investigation special-use authorizations (Form FS-2700-4f)
for candidate research natural areas where no ground disturbance will
take place. Coordinate the issuance of any special-use authorizing
actions within the candidate research natural area with the Research
Station Director.
2775.5--Projects Proposed in Other Special Areas
1. Other special areas may be established by the Forest land and
resource management plan or unit plan for which the Forest Service may
determine that a proposed hydropower development would not be
compatible. Special interest areas established by the Forest Service
may include:
a. Scenic, geological, botanical, zoological, and paleontological
areas (FSM 2360.2).
b. Cultural resources areas (FSM 2361).
c. National scenic or historic trails (FSM 2353.4).
d. Other special land allocations established through the forest
land and resource management plan or other procedure where hydropower
development would be incompatible.
2. Other special land allocations may have been established by
legislation, such as national recreation areas, where hydropower
development may be incompatible.
3. When hydropower use would be incompatible with the management
and purposes for establishing the special area, take the following
actions:
a. In response to a notice of application to FERC for license,
inform FERC in the 4(e) report that such use [[Page 27167]] would be
incompatible with National Forest purposes of the special management
area (FSH 2709.15, sec. 26.4).
b. In response to an application for special-use authorization for
a project exempted from licensing by FERC, do not issue a special-use
authorization for such a project that includes lands within the special
management area.
4. When project impacts can be adequately mitigated to protect the
management and purposes for establishing the special management area,
impose appropriate conditions on the license and special-use
authorization through the 4(e) report or through the special-use
authorization alone for a project exempted from licensing.
2775.51--Projects Proposed in Study Special Areas
When study special management area lands are included in an
application for license for a proposed hydropower project, advise FERC
of the study and pending land allocation decision. Recommend that FERC:
1. Reject the application for license and advise the application to
reapply if the lands in question are allocated to non-special area uses
that would not conflict with hydropower development, or
2. Delay the licensing decision until the land allocation decision
is made, preferably through the Forest land and resource management
plan. If the land use decision must be made before the Forest land and
resource plan can be implemented, conduct a suitable analysis in
compliance with the National Environmental Policy Act (FSM 1920; FSH
1909.15).
Issue investigation special-use authorizations (Forms FS-2700-4f)
for study special areas, and as appropriate, carefully regulate
potential ground disturbance.
2775.6--Projects Proposed in State-Designated Special Areas
The States may designate special areas, such as State wild and
scenic rivers, wild trout streams, and State game refuges, which may
include National Forest System land. State laws may prohibit State
permits for hydropower projects on these special areas, but these laws
are not binding on Federally authorized projects. However, in the
spirit of cooperation, give such State laws and areas very careful
analysis when considering hydropower projects. Under section 4(e) of
the Federal Power Act, the Forest Service is not authorized to:
1. Impose conditions on the license to ensure protection of the
State's designated special areas; or
2. Impose conditions on the license to protect other State
interests not directly a result of the need for ``adequate protection
and utilization of the National Forest.''
However, the Forest Service and the State may request that FERC
provide protections which promote the interest of the state-designated
area.
2775.7--Projects Proposed in National Monuments
FERC is prohibited from licensing a project that would occupy lands
of a national monument administered by the Forest Service or other
Federal agency (41 Stat. 1353; 16 U.S.C. 797(a)); such action would
require an act of Congress.
2776--Relicensing
In general, follow the same procedures for projects whose owners
are applying for a new license under relicensing procedures as used for
those for projects whose applicants are applying for an original
license. The procedural differences apply mainly to the project owners,
not the Forest Service (sec. 15 of the Federal Power Act, 16 U.S.C.
808; 18 CFR Part 16, subpart B, sec. 16.8 through 16.13).
2776.1--Section 4(e) Conditions in Relicensing
The Forest Service may specify 4(e) conditions in a new license
issued by FERC under relicensing procedures. Such conditions must be
reasonable and necessary for the adequate protection and utilization of
the National Forest as it exists at the time of relicensing.
Existing projects provide public benefits and have been in place
long enough to be the ``normal'' situation where they exist. Therefore
avoid disruption of these projects and carefully evaluate the need for
change. However, it is essential to require reasonable measures to
protect the environment. For example, it may be reasonable to provide
fish passage over a dam, but not to restore a stream fishery that was
converted to a lake fishery. Do not seek in relicensing offsite
replacement of resources lost during the original licensing decision.
Generally, limit the resource protection measures to those which
the project could afford to provide and still operate; avoid as much as
possible actions that would cause projects to operate in a marginal
economic condition.
2776.2--Removal of Project
If special circumstances indicate a project that is under
consideration for relicensing should be removed, recommend in a 4(e)
report to FERC that no new license be issued and that the area be
restored. Do not use the conditioning authority under section 4(e) of
the Federal Power Act to force removal of a project. See FSM 2771.33,
for direction regarding Federal takeover of a project.
Proposed Handbook Revision
Following are the sections of the Hydropower Handbook (FSH 2709.15)
cited in this Federal Register notice. For a copy of the entire
Handbook, call the For Further Information Contact listed at the
beginning of the notice. This Handbook provides detailed direction to
Forest Service personnel for evaluating hydropower project proposals
and for coordinating with the Federal Energy Regulatory Commission
(FERC). See FSM 2770 for policy and overall direction on Forest Service
hydropower matters.
64.7--Administration of Projects in Wilderness Areas
Facilities in wilderness areas that have been properly authorized
by a FERC license will continue to be authorized by that license. When
FERC relicenses a project, the Forest Service issues a companion
special-use authorization (Form FS-2700-4g), usually under the Federal
Land Policy and Management Act (FLPMA) (FSM 2770.1). Since FLPMA
authority cannot be used for facilities in a wilderness, use the
Organic Act (16 U.S.C. 551) for the Forest Service authorization of
that portion of the project in the wilderness.
These hydropower projects are considered as valid existing rights
and administered as such under section 4(c) of the Wilderness Act of
September 3, 1964 (16 U.S.C. 1133(c); FSM 2775.2).
Existing special use authorizations may be modified for maintenance
and reconstruction work on projects in wilderness areas. Any
modifications to such facilities must be made in conformance with the
requirements of the license and any special-use authorization, and
section 4(c) of the Wilderness Act, except that modifications to
increase storage capacity or similar improvements must receive
Presidential approval (sec. 4(d)(4) of the Wilderness Act).
Hydropower dams in wilderness areas must meet the requirements of
Federal and State law, including the Wilderness Act, the Dam Safety Act
(33 U.S.C. 467a-367n), the Federal Power Act, the [[Page 27168]] law
and regulation that provides for the special use authorization, and the
terms of the authorization. The Wilderness Act provides for the
maintenance of existing dams and related facilities in wilderness areas
if they are valid existing rights.
Maintenance can include work that will improve the safety of the
dam, such as enlarging the spillway or increasing the freeboard on the
dam. In some instances the installation of a water measuring device may
be added when required by State law and when there is no suitable
location available outside of the wilderness area.
FSM 2320 provides direction for evaluating proposed improvements
and reconstruction of facilities, including access alternatives to the
dam or water conveyance system. Consideration of proposals for work on
dams and related access should be made on a case-by-case basis using
the NEPA process (FSM 1950), balancing wilderness values with licensee
rights and public safety. Historic methods of access and economics also
should be considered in the analysis.
Hydropower projects licensed by FERC do not qualify for an easement
under the Act of October 27, 1986 (Pub. L. 99-5545, the ``Ditch Bill'';
FSM 2770.1) which amended parts of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1761(c)).
65--Special-Use Authorization Fees
Fees may be charged for investigation special use permits (Form FS-
2700-4f), as well as for project special use authorizations.
65.1--Investigation Permit Fee
Unless the market conditions indicate that a higher fee is
appropriate, charge $200.00 for the term of a hydropower investigation
permit (Form FS-2700-4f).
65.2--Licensed Project Authorization Fee
Waive the fee for this type of authorization since FERC already
charges fees for the use of National Forest System land.
The holder shall pay a fee, as described in section 65.31, for
areas outside the license boundary that are under temporary permit.
65.3--Exempted Project Authorization Fee
65.31--Fee for Construction Period (Minimum Operation Fee)
Charge the annual minimum fee of 10 percent of the land value of
the area under permit for periods when power is not being sold. At the
option of the Regional Forester, determine such land value by appraisal
or other sound business practices. The holder shall pay the minimum fee
in advance at the beginning of each year. Calculate the fee for
temporary permits issued for temporary areas outside the main permit
area at 10 percent, annually, of the land value of the area under those
permits.
65.32--Operation Fee
Unless local market conditions indicate otherwise, the holder shall
pay a fee of 3 percent of the gross power sales from the start of
project operation until the end of the fifth year. From the start of
the sixth year to the end of the tenth year, the holder shall pay a fee
of 5 percent of the gross power sales. The fee from the start of the
eleventh year until the end of the term of the authorization may
increase up to 10 percent. Determine the final rate through a
reevaluation of the market, during the tenth year.
The holder pays the minimum operation fee (sec. 65.31) in advance
each year and that amount is credited toward the operation fee. The
holder does not start paying the quarterly operation fees each year
until the year's accumulated operation exceeds the minimum operation
fee. The holder pays the operation fee quarterly, within 45 days of the
end of each quarter, unless the average annual fee is less than $2,000
(in which case the holder pays at the end of the year).
65.33--Fee Adjustment of Mixed Ownership
Adjust the operation fee when the Federal Government land under
permit is less than 90 percent of the total linear distance actually
occupied by the project excluding access roads and transmission lines.
Make the adjustment by measuring slope-distance length of the project
from the outlet of the lowest powerhouse tailrace to the upstream edge
of the impoundment created by the diversion. The percentage of that
length that is on Government land is the percentage of the total fee
that is due the Government. For example, if the government owns 800
feet of a 1,000-foot-long project, the initial operation fee would be
80 percent of 3 percent of the gross power sales or 2.4 percent of the
gross power sales.
If there is more than one diversion, include the additional lengths
of those other diversions from the point of intersection with those
already measured in the total length.
65.34--Transmission Line Fee
The holder shall pay a separate fee for the area under permit for
the transmission line portion of the project if such a line is the only
facility under permit or if the transmission line exceeds 2,500 feet on
National Forest System land to the point of interconnection with an
existing transmission line. A separate special use authorization for a
transmission line greater than 2,500 feet is not necessary, but may be
used at the discretion of the authorizing officer; that is, the
authorizing officer has the discretion to charge an additional fee for
the transmission line within the hydropower permit, instead of issuing
a separate transmission line permit for lines over 2,500 feet.
Determine fees by the procedures for transmission line fees (see also
sec. 62.24).
65.35--Conduit Exemption Fee
While conduit exemptions cannot be issued for projects that occupy
Federal lands, FERC grants exemptions to such projects as long as the
powerhouse is not on Federal lands and there is no new construction on
Federal lands; for example when the powerhouse would be on non-Federal
lands and the existing water pipeline or ditch on Federal lands does
not need modification.
Regardless of FERC's action, treat the project in its entirety when
calculating fees. Consistent with section 65.33, measure the linear
distance of the water system from the powerhouse to the upper end of
the diversion or to the next powerhouse, if any. The percentage of that
length that is on National Forest System land is the percentage of the
total fee that would be charged.
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[FR Doc. 95-12337 Filed 5-19-95; 8:45 am]
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