[Federal Register Volume 61, Number 233 (Tuesday, December 3, 1996)]
[Proposed Rules]
[Pages 64031-64041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30715]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 233 / Tuesday, December 3, 1996 /
Proposed Rules
[[Page 64031]]
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission, DOE
18 CFR Parts 4 and 375
[Docket No. RM95-16-000]
Regulations for the Relicensing of Hydroelectric Projects; Notice
of Proposed Rulemaking
November 26, 1996.
AGENCY: Federal Energy Regulatory Commission, Doe.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
proposing to revise its procedural regulations governing applications
for licenses for hydroelectric projects. The proposed regulations
respond to a petition for rulemaking filed by the National Hydropower
Association and are intended to offer an alternative administrative
process whereby in appropriate circumstances the pre-filing
consultation process and the environmental review process can be
integrated. This alternative process is designed to be tailored to the
facts and circumstances of the particular proceeding. The proposed
regulations would not delete or replace any existing regulations.
DATES: Comments on the Notice of Proposed Rulemaking are due February
3, 1997 and March 3, 1997 for reply comments. Comments should be filed
with the Office of the Secretary and should refer to Docket No. RM95-
16-000.
ADDRESSES: Federal Energy Regulatory Commission, 888 First Street,
N.E., Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
Edward Abrams, Office of Hydropower Licensing, 888 First Street, N.E.,
Washington, DC 20426, (202) 219-2773.
Merrill Hathaway, Office of the General Counsel, 888 First Street,
N.E., Washington, DC 20426, (202) 208-0825.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in Room 2A, 888 First
Street, N.E., Washington, DC 20426. The last page of Appendix A
consists of a flow chart that is not being published in the Federal
Register but is available from the Commission's Public Reference Room.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing (202) 208-1397 if dialing locally or 1-800-856-3920 if dialing
long distance. To access CIPS, set your communications software to use
19200, 14400, 12000, 9600, 7200, 4800, 2400 or 1200bps, full duplex, no
parity, 8 data bits, and 1 stop bit. The full text of this document
will be available on CIPS indefinitely in ASCII and WordPerfect 5.1
format for one year. The complete text on diskette in WordPerfect
format may also be purchased from the Commission's copy contractor, La
Dorn Systems Corporation, also located in Room 2A, 888 First Street,
N.E., Washington, DC 20426.
The Commission's bulletin board system also can be accessed through
the FedWorld system directly by modem or through the Internet. To
access the FedWorld system by modem:
Dial (703) 321-3339 and logon to the FedWorld system.
After logging on, type: /go FERC
To access the FedWorld system through the Internet, a telnet
application must be used either as a stand-alone or linked to a Web
browser:
Telnet to: fedworld.gov
Select the option: [1] FedWorld
Logon to the FedWorld system
Type: /go FERC
Or:
Point your Web Browser to: http://www.fedworld.gov
Scroll down the page to select FedWorld Telnet Site
Select the option: [1] FedWorld
Logon to the FedWorld system
Type: /go FERC
I. Introduction
The Federal Energy Regulatory Commission (Commission) is proposing
to revise its procedural regulations governing applications for
licenses for hydroelectric projects. The proposed regulations respond
to a petition for rulemaking filed by the National Hydropower
Association (NHA) and are intended to offer an alternative
administrative process whereby in appropriate circumstances the pre-
filing consultation process and the environmental review process can be
integrated. This alternative process is designed to be tailored to the
facts and circumstances of the particular proceeding. The proposed
regulations would not delete or replace any existing regulations.
II. Reporting Burden
The regulations proposed herein would not impose any new
information collection requirements.
III. Background
A. Order Nos. 513 and 533 Proceedings
The Commission last made comprehensive revisions of its procedural
regulations governing hydropower applications in two major rulemakings.
In Order Nos. 513 and 513-A,1 the Commission revised its
regulations governing the relicensing of hydropower projects to
implement provisions added to the Federal Power Act (FPA) 2 by the
Electric Consumers Protection Act of 1986 (ECPA).3 The Commission
adopted more detailed regulations for applicants for new licenses to
conduct pre-filing consultation with resource agencies, to specify the
information to be contained in the applications, and to set forth
procedures for processing and considering the applications. These
regulations are principally contained in 18 C.F.R. Part 16. In Order
Nos. 533 and
[[Page 64032]]
533-A,4 the Commission adopted further revisions to its procedural
regulations for all applications for hydropower licenses, implemented
other provisions of ECPA, especially Section 10(j) of the FPA, and
streamlined the hydropower licensing process by making it more
efficient, fairer, and more understandable for all participants. In the
rule, the Commission codified and improved many of its regulations
governing pre-filing consultation and hearing practices, explaining how
most hydropower proceedings are conducted by notice and comment rather
than by trial-type hearings. This rulemaking established deadlines for
participation in hydropower proceedings, clarified a number of
Commission practices in the conduct of such proceedings,5 required
the Commission to resolve disputes concerning necessary scientific
studies in the pre-filing consultation process for hydropower
applicants, and provided greater opportunities for the public and
Indian tribes to participate in the proceedings.
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\1\ Order No. 513 (1989), 54 FR 23756 (June 2, 1989), FERC Stats
& Regs., Regulations Preambles 1986-1990 para. 30,854; Order No.
513-A (1989), 55 FR 4 (January 2, 1990), FERC Stats & Regs.,
Regulations Preambles 1986-1990 para. 30,869.
\2\ 16 U.S.C. Secs. 791a-825r.
\3\ Pub. L. No. 99-495, 100 Stat. 1243 (Oct. 16, 1986).
\4\ Order No. 553 (1991), 56 FR 23108 (May 20, 1991), FERC Stats
& Regs., Regulations Preambles 1991-1996 para. 30,921; Order No.
553-A (1991), 56 FR 61137 (December 2, 1991), FERC Stats. & Regs.,
Regulations Preambles 1991-1996 para. 30,932.
\5\ These related to the requirements governing pre-filing
consultation for applicants for amendment of licenses, when a water
quality certification must be obtained, and how the Commission
begins its review of hydropower applications.
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In one important respect, however, the Commission took no action in
these rulemakings in response to comments made by some resource
agencies and citizens' groups. They believed that in the revised
regulations the Commission should have integrated the environmental
review process pursuant to the National Environmental Policy Act of
1969 (NEPA) 6 with the pre-filing consultation process required of
hydropower applicants. The Commission stated that this was not the
Commission's historical practice, and that the results of the pre-
filing consultation process and the comments, recommendations,
conditions, and prescriptions of concerned parties were a necessary
predicate to a successful NEPA review by the Commission of a hydropower
application.
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\6\ 42 U.S.C. Secs. 4321-4307a.
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B. Implementation of Energy Policy Act of 1992
In section 2403 of the Energy Policy Act of 1992,7 Congress
authorized the Commission, in preparing a NEPA document in hydropower
licensing proceedings, subject to certain conditions, to permit the
applicant or its contractor or consultant to prepare an Environmental
Assessment (EA) or a contractor or consultant chosen by the Commission
and funded by the applicant to prepare an Environmental Impact
Statement (EIS).8 The provision left untouched the Commission's
own responsibilities under NEPA.
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\7\ Pub. L. No. 102-486, 106 Stat. 2776, 2905-21. Codified at 42
U.S.C. Secs. 13201-13556 (Supp. 1993).
\8\ Section 2403 provides:
(a) ENVIRONMENTAL IMPACT STATEMENTS.--Where the Federal Energy
Regulatory Commission is required to prepare a draft or final
environmental impact statement . . . in connection with an
application for a [hydropower] license . . ., the Commission may
permit, at the election of the applicant, a contractor, consultant,
or other person funded by the applicant and chosen by the Commission
. . ., to prepare such statement for the Commission. . . . Nothing
herein shall affect the Commission's responsibility to comply with
the National Environmental Policy Act of 1969.
(b) ENVIRONMENTAL ASSESSMENTS.--Where an environmental
assessment is required . . . in connection with an application for a
[hydropower] license . . ., the Commission may permit an applicant,
or a contractor, consultant or other person selected by the
applicant, to prepare such environmental assessment. The Commission
shall institute procedures, including pre-application consultations,
to advise potential applicants of studies or other information
foreseeably required by the Commission. The Commission may allow the
filing of such applicant-prepared environmental assessment as part
of the application. Nothing herein shall affect the Commission's
responsibility to comply with the National Environmental Policy Act
of 1969.
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The Commission has implemented this provision of the Act by
permitting hydropower applicants to explore alternative licensing
procedures. The Commission has received from potential hydropower
applicants requests for guidance as to whether they could submit an EA
or an EIS as part of their license applications. Applicants have asked
whether they could integrate the NEPA process with the Commission's
pre-filing consultation process, obtain greater involvement of
Commission staff in this effort, and substitute such actions and the
resulting NEPA document for the requirements for pre-filing
consultation and filings set forth in the Commission's regulations.
The Commission's staff has responded to such requests on a case-by-
case basis.9 Staff advised potential applicants that it could not
participate unless entities that might reasonably have an interest in
the contemplated hydropower application are invited to participate in
the pre-filing process. Such entities included all resource agencies,
Indian tribes, local governments, citizens groups, and members of the
general public affected by the proposed project. Staff advised that
following this process requires a number of waivers of the Commission's
regulations, in order to achieve the purposes of the Act. The principal
waivers required are:
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\9\ The Office of Hydropower Licensing has developed
``Guidelines for the Applicant Prepared Environmental Assessment
(APEA) Process.'' See Appendix A.
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(1) the requirement for the applicant to file Exhibit E, containing
environmental information 10--the draft NEPA document prepared by
the applicant or contractor or consultant, together with additional
information, satisfies this requirement;
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\10\ E.g.,18 CFR 4.51(f).
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(2) the provision allowing parties to request additional scientific
studies after the application is tendered for filing 11--the
waiver procedures move this opportunity forward in time;
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\11\ 18 CFR 4.32(b)(7).
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(3) the requirement for issuing a notice that the application is
ready for environmental analysis 12--integrating preparation of
the draft NEPA document with the pre-filing consultation process should
ensure that the necessary environmental data concerning the application
have already been developed prior to filing; and
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\12\ 18 CFR 4.34(b).
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(4) the requirement for the applicant to document the pre-filing
process in detail 13--this is replaced by periodic reports during
the pre-filing process that are available to the public.
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\13\ E.g., 18 CFR 4.38.
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Before staff acts on a potential applicant's request for waiver of
these regulatory requirements, the applicant must demonstrate that a
cooperative atmosphere exists regarding the participation of concerned
entities in the pre-filing process and that the applicant has reached
an agreement with such entities on accepted procedures. Staff has
advised the participants on procedures that have worked in similar
circumstances to produce good NEPA documents or that show promise of
working in this respect. Staff's objective has been to encourage the
participants to focus analysis on a preferred environmental alternative
and, insofar as possible, reach agreement on the issues raised by the
application.14
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\14\ The alternative process is designed to facilitate the
negotiation of settlements in appropriate cases, that could be
submitted to the Commission with the application as an offer of
settlement.
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The applicant is also required to develop a communications
protocol, governing how the participants, including Commission staff,
may communicate with each other during the pre-filing process.
Oversight and technical committees may be formed. At least three public
notices are required during this process, each of which consists of
notice placed in the Federal
[[Page 64033]]
Register by the Commission, notice placed in local newspapers by the
potential applicant, and notice mailed directly to a mailing list of
interested entities.15 These notices are typically given: (1) at
the beginning of the pre-filing process, when the applicant releases
its initial information package, which may include a schedule for the
first NEPA scoping meeting; 16 (2) when the results of the
applicant's scientific studies are available, which may be combined
with additional NEPA scoping and study requests; and (3) when the
preliminary draft environmental document and related application have
been prepared.
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\15\ The mailing list is developed by the applicant under the
guidance of Commission staff. The list will include federal and
state resource agencies, Indian tribes, local governments,
environmental groups and others that may be affected by the proposed
hydropower project. The mailing list may expand as a result of
responses to the applicant's initial pre-filing consultation meeting
and public notices, including local newspaper notice.
\16\ Scoping is the formal process to solicit comments to help
determine the environmental issues and how they should be addressed
in an EIS or EA.
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Prior to the signing of the communications protocol, staff has not
communicated with any interested entity other than on procedural
matters. Once the protocol is executed, pursuant to its provisions
staff may enter into substantive discussions with any entity on the
merits of the potential applicant's proposal, so long as the results of
those discussions are subsequently made available in the relevant
public files. These consist of the Commission's files for the project
in question and a file maintained by the potential applicant.
For the majority of the many applications for new license currently
undergoing pre-filing consultation, the applicants are using the
process set forth in the Commission's rules. In 20 proceedings where a
potential applicant is seeking a new or original license, the staff's
alternative pre-filing procedures are being explored or are in use. In
one proceeding, use of the alternative process has already resulted in
an order issuing a license.17 In most of the pending proceedings
the applicant or its agent is preparing an EA; in some of the cases a
contractor funded by the applicant is preparing an EIS. Some of the
proceedings involve multiple projects on the same river basin.
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\17\ See Georgia Power Company, 74 FERC para. 62,146 (1996)
(Sinclair Project No. 1951). No requests for rehearing were filed.
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C. NHA Petition for Rulemaking
On July 10, 1995, NHA filed a Petition for Rulemaking Regarding
Regulations for the Relicensing of Hydroelectric Projects.18 In
its petition, NHA described its consultation with a large number of
entities on how to improve the Commission's regulations in this area.
NHA expressed its views on problems it perceives in the existing
process for relicensing hydroelectric projects and proposed a
comprehensive regulatory scheme for that purpose, which would replace
the existing regulations governing the preparation, filing, and hearing
process for hydropower applications for new licenses.
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\18\ NHA is an association that represents the hydropower
industry.
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As described by NHA, its proposal is intended to integrate the
application preparation process under the FPA with the environmental
review process under NEPA, to provide an earlier start to the NEPA
process, to involve Commission staff prior to the filing of an
application, and to afford resource agencies and the public greater
opportunity to participate in the pre-filing process. The goal is to
shorten and simplify relicensing proceedings, which NHA claimed take
too long to complete and impose unnecessary burdens on the
participants, by eliminating repetitious steps in the pre-filing and
post-filing stages. NHA also sought to promote settlements and to allow
greater communication among parties and Commission staff by relaxing
restrictions on ex parte communications. NHA proposed a ``collaborative
option'' by which participants could agree to an alternative process
for preparing and evaluating a hydropower application for new license.
NHA proposed 49 pages of regulatory text, which would substitute
for sections in Parts 4 and 16 of the Commission's rules governing
relicensing proceedings. NHA's proposed regulations specify 52 steps in
such proceedings, through the filing of a final license application.
The applicant would prepare and file with the Commission a Notice of
Intent Package, an Initial Information Package, a study plan, and an
application for new license. Under detailed guidelines, the Commission
would give public notice of each of these filings, review them to
determine their adequacy, and either accept or reject them.\19\
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\19\ See NHA Petition, Draft Regulations, at sections 6, 7, 18,
23, 24, 27, and 29.
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Under NHA's proposed regulations, a proceeding before the
Commission would begin no later than the filing of the Initial
Information Package, when interested persons could formally intervene
in the proceeding as parties under Sec. 385.214 of the Commission's
rules.\20\ The applicant's Initial Information Package would be
``comprised primarily of baseline data from the exhibits in [existing]
18 CFR Sec. 4.51.'' \21\ These requirements were spelled out in section
19 of NHA's proposal, describing seven required ``schedules''
containing detailed information on the project, its operation and
resource utilization, need for power and alternative sources of power,
costs and financing, the environment, design drawings and other
information showing the safety and adequacy of project structures, and
a project map.
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\20\ Id. at 5, section 8(c).
\21\ Id. at 13.
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The environmental schedule would contain seven major elements,
including a description of the locale and reports on water use and
quality; fish, wildlife, and botanical resources; historic and
archeological resources; recreational resources; socio-economic
impacts; and land management and aesthetics. This information would
describe not only the existing project and its impacts but also
mitigation and other measures proposed for the new license period.
Unlike existing Sec. 4.51 and similar regulations (including Sec. 16.8)
now governing the preparation of license applications, no consultation
with resource agencies, Indian tribes, or the public would be required
in the preparation of these proposals of the applicant.
Under NHA's proposed rules, the Commission would conduct the NEPA
process beginning immediately after the receipt of the Initial
Information Package. The rules specify deadlines for the Commission and
all participants defining ``the latest point at which a decision or
action should be taken * * *'' \22\ The Commission would be required to
publish public notice of the Initial Information Package within 30 days
of its filing and at the same time issue and serve on each interested
person a copy of ``Scoping Document I,'' pursuant to NEPA. This
document would include: (1) a description of the scoping process, the
project and its history; (2) a discussion of the applicant's proposal,
reasonable alternatives, and competing proposals; (3) a discussion of
resource and environmental issues (including cumulative impacts, other
relevant projects and alternatives); (4) a schedule for preparing the
NEPA document; (5) an outline for the final scoping document; and (6) a
mailing list of recipients with intervenors identified.\23\
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\22\ Id. at 33, section 22(b) (emphasis in original).
\23\ Id. at 35, section 24.
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[[Page 64034]]
Sixty days would be allowed for filing comments on Scoping Document
I, and within 45 days the Commission would be required to hold a site
visit and public scoping meeting.\24\ Within 45 days of the completion
of the public comment period on Scoping Document I, the Commission
would be required to issue Scoping Document II, reviewing all the
issues identified and the comments provided.\25\ This document would
identify all the data needs that must be satisfied by studies to be
conducted by the applicant. Persons would have 45 days to file comments
on Scoping Document II, including requests for additional or
alternative studies. Not less than 14 days after issuance of Scoping
Document II, the Commission would be required to issue public notice of
a final public scoping meeting.
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\24\ Id. at 37, section 26.
\25\ Id. at 37, section 27.
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Within 30 days after the final scoping meeting, the Commission
would be required to issue a final scoping document, which would
``identify all reasonable alternatives that need to be considered,
identify cumulative effects and significant issues that need to be
addressed in the environmental review process, document issues that
were found not to be significant, and list all study and additional
information requirements * * *'' \26\ At this point, applicants would
have the right to elect to prepare an EA or to have a contractor
prepare an EIS.\27\
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\26\ Id. at 39, section 31.
\27\ Id. at 39, section 32.
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Pursuant to a set of detailed deadlines, NHA would allow a period
of 150 days for the applicant to prepare a study plan, comments on it
to be filed, and the Commission to resolve any disputes and review the
plan.\28\ Agencies and citizens groups would have the burden of asking
the Commission to resolve any dispute over the adequacy of the
applicant's study plan.\29\ If the agencies or groups failed to request
such a resolution, they would waive any right to raise this issue
subsequently in the relicensing proceeding. The Commission would have
60 days after the filing of the Final Study Plan for the first year's
study to resolve any disputes presented to the Commission over the plan
and to accept, reject, or modify the plan accordingly.\30\ The
applicant would be required to submit a report summarizing the results
of each study completed at the conclusion of the first year's study,
and the Commission would hold a meeting to discuss the report.\31\
Similar steps would be required in reference to a study plan for the
second year, with further restrictions on the ability of others to
request additional studies, and deadlines for the Commission to resolve
any disputes presented to it.
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\28\ Id. at 40-47, sections 34-37.
\29\ NHA's proposed rules do not recognize any right of Indian
tribes to dispute the adequacy of the applicant's study plan.
\30\ NHA Petition, Draft Regulations, at 43, section 34(e).
\31\ Id. at 45, section 35(g).
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The final stage of NHA's rulemaking proposal would require the
applicant to prepare a ``final license application'' for filing with
the Commission.\32\ This application would incorporate the Notice of
Intent Package, the Initial Information Package, the scoping documents
and the study reports made in the pre-filing process. This information
would be updated as necessary, and recommendations of agencies or
citizens groups that were rejected would be explained.\33\ This filing
would ``constitute the complete application upon which the Commission
will base its decision to accept, reject, or accept with modifications
the final application submitted by the Applicant.'' \34\
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\32\ Id. at 47-48, section 38.
\33\ As in the pre-filing process, NHA's proposed regulations do
not recognize any role for Indian tribes.
\34\ NHA Petition, Draft Regulations, at 47, section 38(b).
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NHA's proposed rules would also require the Commission to make more
information about the relicensing process available on the Commission
Issuance Posting Systems (CIPS); \35\ provide that the Commission's ex
parte rule, Sec. 385.2201, does not apply to the proposed hydropower
proceeding until after the filing of a final license application; \36\
and give an applicant the right to elect a collaborative option, by
which the applicant and interested parties may jointly design rules--
different from the detailed rules proposed by NHA--to govern a
hydropower proceeding.\37\
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\35\ Id. at 6, section 9(a).
\36\ Id. at 6, section 10.
\37\ Id. at 6-7, section 12.
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NHA acknowledged that there are a number of relevant subject areas,
where it has not proposed regulations, that require further analysis.
These areas include: \38\
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\38\ NHA Petition at 12.
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(1) the impact of the relicensing process on small hydropower
projects;
(2) the interaction of the Commission's process with administrative
processes of other agencies, such as those conducted pursuant to the
Endangered Species Act,\39\ and FPA sections 4(e) and 18;
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\39\ 16 U.S.C. Sec. 1531, et seq.
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(3) how to integrate cumulative impact analysis into an accelerated
NEPA process;
(4) how to evaluate the appropriateness of the time deadlines
proposed for comment and Commission action; and
(5) how to develop transition provisions regarding ongoing
licensing proceedings.
D. Comments Received on NHA's Petition
On October 31, 1995, the Commission issued a notice of NHA's
petition and invited comment on it.\40\ The Commission received 43
comments and four reply comments. The commenters are listed in Appendix
B.
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\40\ The notice was published in the Federal Register on
November 8, 1995 (60 FR 56278). On January 4, 1996, the Commission
issued a notice extending the deadline for comments and reply
comments to February 5 and March 4, 1996, respectively.
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A number of licensees of hydropower projects \41\ and other
industry associations \42\ filed comments supportive of NHA's petition.
A number of state agencies filed comments supporting NHA.\43\ A number
of federal agencies supported NHA's petition,\44\ but other federal
agencies, while approving of a Commission rulemaking that would
integrate the NEPA and pre-filing consultation processes, objected to
the short time frames and other aspects of NHA's proposed rules.\45\
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\41\ E.g., Comments of Adirondack Hydro Development Corp.,
Alabama Power Co., Idaho Power Co., Minnesota Power & Light Co.,
Montana Power Co., Pacific Gas and Electric Co., and Southern
California Edison Co.
\42\ E.g., Comments of American Public Power Association and
Edison Electric Institute.
\43\ E.g., Comments of Idaho Public Utilities Commission and
State of Washington, Department of Ecology.
\44\ Comments of the U.S. Environmental Protection Agency and
the U.S. Department of Energy.
\45\ Comments of U.S. Department of Agriculture and U.S.
Department of Commerce.
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Many hydropower licensees filed comments critical of various
aspects of NHA's petition, supporting the goal of greater integration
of the NEPA and pre-filing processes but asking for more flexibility in
the proposed rules in order to accommodate different circumstances.\46\
Questions about the appropriateness of the time frames established in
NHA's proposal were raised,\47\ and the Commission was asked
[[Page 64035]]
to codify the alternative procedures staff had used on a case-by-case
basis.\48\ Some licensees believed that NHA's Initial Information
Package was too detailed, amounting to a draft license application.\49\
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\46\ Comments of Duke Power Co., Georgia Power Co., Nebraska
Public Power District, and Niagara Mohawk Power Co.
\47\ Comments of Public Utility District No. 2 of Grant County.
\48\ Comments of Power Authority of the State of New York.
\49\ Comments of Georgia Power Co. and Safe Harbor Water Power
Corp.
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New England Power Company opposed adoption of NHA's proposed rule,
except in situations where the parties agreed on such an approach as an
alternative. The company doubted that NHA's proposal would help when
there was no such consensus, especially in light of the importance of
other related legal processes, such as those involving fishway
prescriptions under section 18 of the FPA and certifications under
section 401 of the Clean Water Act.\50\ New England Power did not
believe that the Commission would have the resources to be as involved
in the pre-filing process as NHA's proposed rule would require. The
company thought that NHA did not recognize the importance of the
flexible, case-by-case procedures the Commission's staff had been using
in recent years when there was a consensus supporting this approach.
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\50\ 33 U.S.C. Sec. 1341(a)(1).
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Some commenters characterized NHA's petition as discouraging
competing relicense applications, because the petition would seriously
delay a potential competitor's access to project information that
section 15(b)(2) of the FPA requires the incumbent licensee to make
available, and that the potential competitor needs in order to decide
whether to file an application.\51\
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\51\ Comments of the Confederated Tribes of the Warm Springs
Reservation and the City of Santa Clara, California, Holyoke Gas &
Electric Dept., and the Northern California Power Agency.
Section 15(b)(2) of the FPA provides that, at the time an
existing licensee notifies the Commission whether it intends to file
an application for a new license (which shall be at least 5 years
before the expiration of the existing license), the existing
licensee must make publicly available such information about
construction and operation of the project as the Commission shall
require. The Commission's regulations implementing this provision
(18 CFR 16.7) require extensive and detailed information about the
project.
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A number of state agencies opposed adoption of NHA's proposed rule
as unnecessary.\52\ They objected to its rigidity and to many of its
features that in their view favored the applicant at the expense of
other participants. They considered NHA's time deadlines on
participants in the process unreasonable and opposed the elimination of
draft applications and the shifting of responsibility from the
applicant to others. A number of federal agencies, while supporting the
goal of greater integration of the pre-filing and NEPA processes, made
similar criticisms of NHA's petition and reminded the Commission of its
trust responsibilities for Indian tribes, which they asserted NHA
ignored.\53\
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\52\ E.g., State of Washington Department of Fish and Wildlife
and State of Wisconsin Department of Natural Resources.
\52\ Comments of the U.S. Department of the Interior, Fish and
Wildlife Service, and Bureau of Indian Affairs.
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Citizens' groups were very much opposed to adoption of the
regulations NHA proposed.\54\ These commenters asked the Commission to
continue its current practice of flexibly implementing the existing
hydropower procedural regulations.
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\54\ Comments of the Adirondack Mountain Club, the Defenders of
Wildlife, and the Hydropower Reform Coalition, which includes
American Rivers, American Whitewater Affiliation, Appalachian
Mountain Club, Conservation Law Foundation, Michigan Hydro
Relicensing Coalition, Natural Heritage Institute, New England
F.L.O.W., New York Rivers United, River Alliance of Wisconsin, Trout
Unlimited, and Sierra Club Legal Defense Fund.
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Hydro Reform Coalition (HRC) stated that the Commission's current
procedural regulations for hydropower applications were adopted for
good reasons, to cure real problems in the licensing process, have been
working reasonably well and are not the chief cause of any delays
encountered in the process.\55\ Rather, HRC asserted that applicants
have brought such delays on themselves by not conducting adequate
studies of a project's resource impacts and not filing required
information with their applications. Other delays are necessary to
allow sufficient time to address such critical issues as cumulative
impacts. HRC stated: ``NHA's package of changes drastically alters the
equities of the relicensing process in favor of a front-end loaded,
fast track, where licensees gain at the expense of all other
participants--resource agencies, conservation groups, competing
applicants * * *.'' \56\
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\55\ HRC at 3-8. HRC pointed to many recent relicense
proceedings, primarily involving some kind of cooperative approach,
that were expeditiously conducted under the current regulations.
\56\ HRC at 4.
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HRC noted that a hydropower licensing proceeding is a learning
process for most parties, who do not have the information and knowledge
of the applicant. It takes some time for them to learn about and
evaluate the proposed project's resource impacts so that they can
usefully participate in the process and assist the Commission in
considering reasonable alternatives and in compiling an adequate record
for a decision in the public interest. While the current procedural
regulations allow this process to unfold, in HRC's view NHA's proposal
would replace them with new regulations designed to curtail this
process and serve the interests of the license applicants.\57\
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\57\ HRC at 8.
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IV. Discussion
A. NHA's Petition
The Commission recognizes that the present procedures for licensing
hydroelectric projects are complicated and can result in lengthy
proceedings. We agree with NHA that every effort should be made to
lessen the burden of such proceedings on the participants. To a
considerable extent, however, we believe the burdens are an unavoidable
product resulting from statutory mandates and the often conflicting
objectives of the large number of parties, including state and federal
agencies with overlapping roles, Indian tribes, and citizens' groups,
interested in the licensing process. Nevertheless, we believe there
continues to be room for taking reasonable measures to improve the
efficiency of the process, while remaining faithful to the statutory
mandates and public interest the Commission serves. Our hope is that
the licensing process can be both expedited in time and improved in
results, while treating all parties fairly.
We commend NHA and the other representatives of the hydropower
industry who devoted substantial time and effort in evaluating the
Commission's hydropower licensing procedures. We appreciate NHA's
consultation with other participants in the licensing process and the
submission of a petition for rulemaking, and we welcome the comments of
all those who responded. We believe that the comments show that
everyone who has studied and addressed this subject shares common
goals, making licensing proceedings more efficient while maintaining
procedures that will protect the participatory rights of interested
parties and compile an adequate record for decision.
A critical difference between the avenues explored by the
Commission staff in light of the Energy Policy Act and by NHA is in
their basic design. The staff process was designed to supplement and
not replace the existing procedures in licensing proceedings and can be
flexibly applied on a case-by-case basis, with the alternative
procedures tailored to the expressed needs and desires of the
participants. This process places a lot of responsibility on the
participants to come together and reach
[[Page 64036]]
a consensus on how the environmental impacts of the applicant's
proposal should be evaluated. If such a consensus cannot be achieved,
the standard procedures set forth in the Commission's regulations must
be followed by the applicant.
NHA has proposed enactment of comprehensive generic procedures that
would apply to all relicensing proceedings, regardless of whether such
a consensus exists and the prospect for success. NHA's proposal would
require the Commission's staff to be involved in developing every
application for a new license and to render decisions on the details of
the steps required in that development. The Commission does not have
the resources to carry out such an open-ended mandate. Furthermore, if,
as NHA proposed, Commission staff assumed the role of decisionmaker in
pre-filing consultation for all proceedings, concerned parties
(including the applicant) could be discouraged from trying to form a
consensus on how to study and resolve critical issues in a mutually
satisfactory manner.
We share with the critics of NHA's petition a concern that NHA's
proposed regulations would not improve hydropower licensing
proceedings. In effect, NHA's proposal would eliminate the pre-filing
consultation process. NHA would have an applicant for a new license
develop a detailed package, called the ``Initial Information Package,''
that is for all intents and purposes a draft license application. We
think such proposals are best developed based on prior consultation
with affected resource agencies, Indian tribes, and the public. Before
doing such consultation and conducting the studies that are required as
part of the pre-filing process, an applicant cannot know in detail what
mitigation and enhancement measures it should propose.
To require the Commission staff to step in to direct every
hydropower relicensing proceeding prior to any pre-filing consultation
would consume too much of the Commission's limited resources without
providing any assurance that the process would be improved. The
Commission did not have the resources to undertake this role in the
past; we certainly do not have the resources to do so now, a time when
federal agencies are being called upon to tighten their budgets.
NHA has described as critical its proposal to waive the ex parte
rule prior to the filing of what it calls the ``final license
application'' with the Commission. But its proposal would have the
Commission conducting a proceeding prior to that time, with the
intervention of parties, and NHA itself also recognized that the
proceeding may be highly contentious. Under those circumstances, it
would be unwise and may be unlawful for the Commission to consider
itself and its advisory staff as not subject to any ex parte restraint.
We also share the concern of those who question how NHA's proposal
would afford potential competitors the timely access to project
information that section 15(b)(12) of the FPA calls for.
Nor has NHA justified the short time frames it sets for responses
and decisions during its proposed hydropower process. The periods
allowed are much shorter than similar time frames in the existing
regulations, whose deadlines have been considered strict by various
participants in the licensing process. Any successful process will
necessarily require more flexibility than may be contemplated in NHA's
proposal.
NHA's proposed rules might also not result in a more efficient
proceeding if other state or federal agencies with related statutory
responsibilities, such as Clean Water Act certification, do not wish to
participate in the accelerated NEPA process that NHA would require in
all cases. Lacking a consensus for an alternative approach to front-
load the NEPA process would risk wasting a large amount of resources by
all participants and might require the NEPA process to be repeated,
once the other agencies decided how they wished to proceed in reference
to the applicant's proposal. The Commission cannot by rule mandate a
positive spirit of mutual understanding and cooperation among the
applicant, resource agencies, Indian tribes, and the public, or fully
integrate related processes that occur under separate statutes.\58\
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\58\ NHA has also not explained its apparent omission of Indian
tribes from its proposed rules. The Commission included the tribes
in the pre-filing consultation process in recognition of their
special interests and status. NHA claimed that it consulted with
Indian tribes in developing its proposal, but NHA did not identify
them or their positions.
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We do, however, believe there is considerable merit in the part of
NHA's proposal called a ``collaborative option.'' This appears to be
similar to the alternative procedures that the Commission's staff has
been using on a case-by-case basis at the request of license
applicants, where there is a consensus among the interested entities
that such an approach would be fruitful. If an applicant is willing to
devote itself to working on a cooperative basis with all the entities
interested in its proposed hydropower project, including affected
resource agencies, Indian tribes, and the public, and those entities
have a similar attitude and commitment, the Commission is willing to
commit its staff to active involvement in the proceeding prior to the
filing of an application, to the extent our limited resources permit.
In such cases, the staff's participation has been more as a resource
and guide to the parties rather than as a decisionmaker.
Such an approach, tailored to the needs and requirements of the
particular circumstances and facts presented, has worked in many cases
and in our view offers the best hope of achieving the goal of
expediting the licensing process in a way that is fair to all parties
and in the public interest. Such proceedings can front-load not only
NEPA, but also the completion of other processes related to hydropower
licensing that are not in the Commission's control, such as state water
quality certification for the project.
In the following section, we describe the Commission's proposed
rule on this alternative process. The proposed rule is intended to
refine, clarify, and codify the alternative procedures that the
Commission's staff has evolved over the past few years on a case-by-
case basis. By articulating these procedures in the form of a notice of
proposed rulemaking, we are providing a forum in which all interested
persons will have an opportunity to comment on them, in light of
experience with the alternative procedures as well as with the existing
procedures. This rulemaking should provide an opportunity to consider
how the alternative procedures have worked to date, and how they might
be refined to improve the efficiency of the licensing process while
preserving the rights of all of the participants in it.
B. Proposed Rule
We propose to codify an alternative process that affords case-by-
case flexibility and opportunity for continued innovation for all
concerned. We recognize that some of the procedures that participants
may agree to use and that the Commission may approve in individual
cases might well be similar to those that NHA has proposed in generic
form. The proposal would leave intact the existing pre-filing and
hearing procedures for use in all proceedings where there is neither a
consensus on suitable alternative procedures nor any reasonable
prospect for their success in expediting the proceeding.
We see no reason to restrict the proposal to applicants for new
licenses, but, consistent with Commission practice and the Energy
Policy Act,
[[Page 64037]]
would extend the ability to apply for this option to all applicants for
licenses, whether original, new or subsequent, and to amendments to
existing licenses where pre-filing consultation is required (pursuant
to Sec. 4.38(a)(4) of the regulations).59
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\59\ By revising Sec. 4.34 of the regulations, which governs the
hearing process for all hydropower applications, the proposal would
apply to all licensing proceedings, including those subject to Part
16.
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The Commission proposes to revise Sec. 4.34 of the regulations,
governing the hydropower hearing process, to add a new subsection (i).
Under this subsection, a potential applicant could request that it be
permitted to conduct the pre-filing consultation and hearing processes
pursuant to an alternative procedure. Under this procedure, the pre-
filing consultation process and the NEPA process would be integrated
and the applicant or its contractor or consultant would prepare a
preliminary draft environmental assessment or a contractor or
consultant chosen by the Commission and funded by the applicant would
prepare a preliminary draft environmental impact statement, to be filed
with the application.
In appropriate circumstances, the Commission could approve the
request and participate in the alternative process, if the applicant
demonstrated that it had reached out to interested entities and a
consensus exists supporting the use of alternative procedures. The
requester would also have to submit a communications protocol,
supported by interested entities, that would describe how the applicant
and other participants in the pre-filing consultation process,
including Commission staff, would communicate concerning the merits of
the applicant's proposal.
The alternative process would integrate the NEPA process and the
pre-filing consultation process. The applicant, contractor or
consultant would be required to conduct an initial information meeting,
to scope environmental issues, to complete scientific studies and
release them, to conduct further scoping if appropriate, and to prepare
the preliminary draft environmental document for filing with the
Commission. The process would allow for public participation, and
public notice would be given of critical stages (including the filing
of the request for alternative procedures) by the Commission in the
Federal Register and by the applicant in a local newspaper.
Every quarter, the applicant would be required to report to the
Commission on the progress of the pre-filing consultation process.
Public files of relevant documents would be maintained by the
Commission and the applicant. The Commission's file would contain
summary information while the applicant's file would contain all
relevant information compiled during the process.
Under the alternative process, the applicant could substitute a
draft NEPA document for Exhibit E to its application, and the applicant
would not need to document all the details of the pre-filing
consultation process. Requests for scientific studies would be due
during the pre-filing process, and requests for additional studies
could be made after filing of the application only upon a showing that
it was not possible to request them during the pre-filing process.
Preliminary fish and wildlife recommendations, prescriptions, mandatory
conditions, and comments would be due during the pre-filing period, to
be finalized after the filing of the application. No notice that the
application is ready for environmental analysis would be given by the
Commission after filing of the application.
The proposed rule would also reserve the Commission's authority,
upon request and on a case-by-case basis, to participate in the pre-
filing consultation process and assist in the integration of this
process with the NEPA process where, e.g., the applicant, contractor or
consultant funded by the applicant would not prepare an environmental
assessment or environmental impact statement. In such cases, the
Commission could approve suitable modifications to the procedures
otherwise applicable during the pre-filing and post-filing periods,
similar to those made for alternative procedures set forth in the
proposed rule.
The Commission invites comment on all aspects of its proposal, as
described above. The Commission particularly invites comment on what
should happen if the consensus for use of alternative procedures
disappears prior to the filing of an application. Should the Commission
still allow alternative procedures to be followed in such a situation?
If not, what procedures should apply?
Would any transition provisions be necessary for the proposed rule,
so as not to upset applications currently being prepared pursuant to
staff-granted waivers?
The Commission also proposes to add a new Sec. 375.314(u) to its
regulations, to clarify and codify the authority of the Director of the
Office of Hydropower Licensing to approve the use of the alternative
procedures and to assist in the pre-filing consultation process. In
appropriate cases, for example, the Director could decide to actively
assist a potential applicant in the pre-filing consultation process,
including the preparation of a NEPA document.
V. Environmental Analysis
Commission regulations describe the circumstances where preparation
of an environmental assessment or an environmental impact statement
will be required.60 The Commission has categorically excluded
certain actions from this requirement as not having a significant
effect on the human environment.61 No environmental consideration
is necessary for the promulgation of a rule that is clarifying,
corrective, or procedural, or that does not substantially change the
effect of legislation or regulations being amended.62
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\60\ Regulations Implementing National Environmental Policy Act,
52 FR 47897 (Dec. 17, 1987), codified at 18 CFR Part 380.
\61\ 18 CFR 380.4(a)(2)(ii).
\62\ 18 CFR 380.4.
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This proposed rule is procedural in nature. It proposes alternative
procedures that participants to a hydroelectric licensing proceeding
may wish to use. Thus, no environmental assessment or environmental
impact statement is necessary for the requirements proposed in the
rule.
VI. Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980 (RFA) 63 generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
Pursuant to section 605(b) of the RFA, the Commission hereby certifies
that the proposed regulations, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
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\63\ 5 U.S.C. Secs. 601-612.
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The procedures proposed herein are purely voluntary in nature, and
are designed to reduce burdens on small entities (as well as large
entities) rather than to increase them. More fundamentally, the
alternative process we are proposing herein would be purely voluntary.
The procedures proposed herein would be a potential alternative to the
procedures currently prescribed in our regulations, and would not be
adopted unless all of the persons and entities interested in the
proceeding affirmatively agreed to use them. Under this approach, each
small entity would be able to evaluate for itself whether the
alternative procedures would be beneficial or burdensome, and could
decline to agree to their adoption
[[Page 64038]]
if they appeared to be burdensome. Under these circumstances, the
economic impact of the proposed rule would be either neutral or
beneficial to the small entities affected by it.
VII. Information Collection Requirements
The Office of Management and Budget's (OMB) 64 regulations
require that OMB approve certain information collection requirements
imposed by agency rules. The regulations proposed in this Notice do not
require the collection or filing of any information, nor would they
amend any existing information collection requirement.
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\64\ 5 CFR 1320.13.
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VIII. Comment Procedure
The Commission invites interested persons to submit written
comments on the matters proposed in this notice. An original and 14
copies of the written comments must be filed with the Commission no
later than February 3, 1997, for comments and March 3, 1997, for reply
comments. Comments should be submitted to the Office of the Secretary,
Federal Energy Regulatory Commission, 888 First Street, N.E.,
Washington, D.C. 20426, and should refer to Docket No. RM95-16-000.
Written comments will be placed in the public files of the
Commission and will be available for inspection at the Commission's
Public Reference Room, at 888 First Street, N.E., Washington, D.C.
20426, during regular business hours.
List of Subjects
18 CFR Part 4
Electric power, Reporting and recordkeeping requirements.
18 CFR Part 375
Authority delegations (Government agencies), Seals and insignia,
Sunshine Act.
By direction of the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
parts 4 and 375 of chapter I, title 18, Code of Federal Regulations, as
set forth below.
PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT
COSTS
1. The authority citation for part 4 continues to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.
2. In Sec. 4.34, the heading is revised and a new paragraph (i) is
added to read as follows:
Sec. 4.34 Hearings on applications; consultation on terms and
conditions; motions to intervene; alternative procedures.
* * * * *
(i) Alternative procedures. (1) An applicant may submit to the
Commission a request to approve the use of alternative procedures for
pre-filing consultation and the filing and processing of an application
for an original, new or subsequent hydropower license, or for the
amendment of a license that is otherwise subject to the provisions of
Sec. 4.38.
(2) The goal of such alternative procedures shall be to:
(i) Integrate the pre-filing consultation process with the
environmental review process;
(ii) Facilitate the greater participation of the public and
Commission staff in the pre-filing consultation process;
(iii) Allow for the preparation of an environmental assessment by
an applicant or its contractor or consultant or of an environmental
impact statement by a contractor or consultant chosen by the Commission
and funded by the applicant; and
(iv) Encourage the applicant and interested persons to narrow any
areas of disagreement and promote settlement of the issues raised by
the hydropower proposal.
(3) A potential hydropower applicant requesting the use of
alternative procedures must:
(i) Demonstrate that a reasonable effort has been made to contact
all resource agencies, Indian tribes, citizens' groups and others
affected by the applicant's proposal, and that a consensus exists that
the use of alternative procedures is appropriate under the
circumstances; and
(ii) Submit a communications protocol, supported by interested
entities, governing how the applicant and other participants in the
pre-filing consultation process, including the Commission staff, may
communicate with each other regarding the merits of the applicant's
proposal.
(4) As appropriate, the alternative procedures shall include
provision for an initial information meeting, the scoping of
environmental issues, the analysis of completed scientific studies and
further scoping, and the preparation of a preliminary draft
environmental assessment or environmental impact statement and related
application.
(5) The Commission will give public notice inviting comment on the
applicant's request to use alternative procedures.
(6) If the Commission accepts the use of alternative procedures,
the following provisions will apply.
(i) To the extent feasible under the circumstances of the
proceeding both the Commission and the applicant will give public
notice at each of the stages described in paragraph (i)(4) of this
section. The applicant will also send notice of these stages to a
mailing list approved by the Commission.
(ii) Every quarter, the applicant shall furnish the Commission with
a report summarizing the progress made in the pre-filing consultation
process and referencing the applicant's public file, where additional
information on that process can be obtained.
(iii) At a suitable location, the applicant will maintain a public
file of all relevant documents, including scientific studies,
correspondence, and minutes of meetings, compiled during the pre-filing
consultation process. The Commission will maintain a public file of the
applicant's initial proposal and information package, scoping
documents, periodic reports on the pre-filing consultation process, and
the preliminary draft environmental document.
(iv) An applicant authorized to use alternative procedures may
substitute a preliminary draft environmental document and specified
additional material instead of Exhibit E to its application and need
not document the pre-filing consultation process.
(v) The procedures approved may require all resource agencies,
Indian tribes, citizens groups, and interested persons to submit to the
applicant requests for scientific studies during the pre-filing
consultation process, so long as additional requests may be made to the
Commission for good cause after the filing of the application,
explaining why it was not possible to request the study during the pre-
filing period.
(vi) During the pre-filing process the Commission may require the
filing of preliminary fish and wildlife recommendations, prescriptions,
mandatory conditions, and comments, to be finalized after the filing of
the application; no notice that the application is ready for
environmental analysis need be given by the Commission after the filing
of an application pursuant to these procedures.
(7) The Commission may participate in the pre-filing consultation
process and assist in the integration of this process and the
environmental review process in appropriate cases where the applicant,
contractor or consultant
[[Page 64039]]
funded by the applicant is not preparing a preliminary draft
environmental assessment or environmental impact statement, but where
staff assistance is available and will expedite the proceeding.
PART 375--THE COMMISSION
3. The authority citation for part 375 continues to read as
follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
4. In Sec. 375.314, paragraph (u) is added to read as follows:
Sec. 375.314 Delegations to the Director of the Office of Hydropower
Licensing.
* * * * *
(u) Approve, on a case-specific basis, the use of alternative
procedures for the development of an application for an original, new
or subsequent license or of an application for a license amendment
subject to the pre-filing consultation process, and assist in the pre-
filing consultation process.
Note: The appendices will not appear in the Code of Federal
Regulations.
Appendix A--Guidelines for the Applicant Prepared Environmental
Assessment (APEA) Process
(November 26, 1996--Office of Hydropower Licensing Division of Project
Review)
Section 2403(b) of the Energy Policy Act of 1992 (Act) allows an
applicant to file a draft environmental assessment (DEA), pursuant
to the National Environmental Policy Act of 1969 (NEPA),65 with
its license application. The Act also requires the Federal Energy
Regulatory Commission (Commission) to institute procedures to advise
applicants who choose this route. This document provides general
advice consistent with the statutory provisions.
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\65\ National Environmental Policy Act of 1969, as amended.
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We've divided the process into three stages, consistent with the
Commission's three stage consultation regulations. In each stage,
we: 1) highlight the objective; and 2) discuss the major milestones
and work products. The process, as outlined by the bullet items and
arrows, provides a framework for applicants, consultants, Commission
staff and other interested entities to complete the process
successfully. The guidance herein is intended to be flexibly
administered, to suit the circumstances of specific cases.
Applicant Prepared EA (APEA) Process
Commission Staff Goal: 1) front-load NEPA review and other
licensing requirements (i.e., 401 water quality certification,
section 106--historic preservation consultation, section 7--
endangered species consultation, etc.) by providing oversight for an
applicant who prepares a DEA during the prefiling consultation
period; 2) facilitate a process whereby the draft EA fully evaluates
and balances the interests of all stakeholders involved; and 3)
expedite the licensing process.
Stage 1 Consultation
Stage 1 Consultation sets the tone for the process and has two
important features: participation in the activities ancillary to the
licensing process and the beginning of NEPA scoping, including a
site visit. Part of the licensing process includes the applicant
inviting the federal, state, and local agencies, nongovernmental
organizations (NGOs), and other interested members of the public to
participate in the process. Once the applicant has gathered a group
to participate, the applicant and participants should prepare a
communications protocol and a request for waiver of specific three-
stage consultation regulations. If a federal land managing agency is
involved and desires cooperating agency status in the Commission's
NEPA document, a Letter of Understanding (LOU) should be prepared by
staff.
NEPA scoping and a site visit may begin in Stage 1. Basically,
there are two options: 1) the applicant can begin the NEPA scoping
by combining the 1st Stage joint agency and public meeting [required
in 18 C.F.R. Sec. 4.38(b)(3) and 16.8] with a NEPA scoping meeting;
or 2) the applicant can hold the 1st Stage meeting and postpone NEPA
scoping until Stage 2. The Commission and the Council on
Environmental Quality (CEQ) prefer to scope the issues as early as
possible.
There are advantages and disadvantages of beginning NEPA scoping
at the 1st Stage consultation meeting. The advantage is that the
applicant and participants can focus on identifying the issues up-
front to develop study plans for the project. This may help
eliminate the ``cart before the horse'' syndrome where the applicant
is requested to study everything to find out if it's an issue.
Another advantage is that the applicant can ask for input regarding
project alternatives and ask the meeting participants to provide
information, such as existing studies, that other agencies or NGOs
might have. Most APEA efforts have completed NEPA scoping in Stage
1.
It may not be possible to combine NEPA scoping with the 1st
Stage consultation meeting, because the participants may not be able
to identify the issues owing to a lack of data.
Consider combining the NEPA scoping and 1st Stage joint meeting
when:
1) applicants ask to begin the APEA process at the beginning of
Stage 1, and
2) project issues and potential impacts are fairly well-known.
This option is most appropriate for relicenses or unlicensed
projects (UL's).
Here Are the Milestones and Work Products for Stage 1 Consultation
Applicant decides to do APEA--preferably at the
preliminary permit stage (original license) or at the notice of
intent to file stage (relicense) or earlier.66
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\66\ Applicant and interested stakeholders can request to meet
with staff to discuss the process.
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Applicant generates a project mailing list (federal,
state, local agencies, NGOs, and any other interested entities, such
as property owners along the river).
Applicant writes to the Commission (cc: the mailing
list) requesting that the Commission agree to advise it in the APEA
process.
Commission responds to the applicant's letter and
specifies staff's role in the process. Staff sends samples of
communications protocol, if one hasn't been proposed, as well as
samples of other EAs, scoping documents, etc.
==> Commission staff are selected to advise applicant
Applicant requests a waiver of certain regulations
(such as a waiver allowing the filing of the DEA in lieu of an
exhibit E), as appropriate.
The applicant, Commission staff, and other participants
develop a Communications protocol (merits and procedures
discussions) and a timeline (milestones). Participants are
encouraged to sign the communications protocol. The applicant mails
a copy of these documents to the mailing list.
If applicable, the Commission or applicant will
executes a Letter of Understanding (LOU) with cooperating federal
managing agencies.
Applicant mails Initial Stage Consultation Document
(ISCD). The ISCD must be comprehensive and contain adequate
information to provide a basis for participants to comment and make
recommendations concerning study plans, etc.
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BASED ON THE AMOUNT OF AVAILABLE PROJECT INFORMATION, THE COMMISSION
STAFF WILL ADVISE THE APPLICANT TO: (A) HOLD THE 1ST STAGE MEETING
ONLY; OR (B) COMBINE THE 1ST STAGE AND NEPA SCOPING MEETINGS.
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(A) Applicant holds joint agency and public meeting within 60
days of mailing the ISCD; conducts a site visit; Applicant requests
that the agencies, NGOs provide initial study needs.
==> Comments from agencies/NGOs on the ISCD are due 60 days after
joint meeting. Agencies, NGOs, and the public should request initial
studies.
Applicant, agencies, or NGOs can, if needed, request
dispute resolution on study requests.
(B) Applicant prepares Scoping Document 1 (SD1) 67 and
mails 30 days before joint agency/public meeting. Applicant can
attach Scoping Document I to the ISCD and mail together.
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\67\ SDI can be very brief since the ISCD will provide a great
deal of information.
==> Commission issues a notice of scoping.
==> Applicant holds NEPA scoping meetings (public and agency);
conducts site visit.
==> Comments from agencies/NGOs on the ISCD and SDI are due 60 days
after joint meeting. This includes requests for initial studies.
Applicant, agencies, or NGOs can, if needed, request
dispute resolution on study requests.
Applicant issues Scoping Document II (SDII).
[[Page 64040]]
Applicant should apply for the 401 WQC so that the WQC
agency can determine whether it requires any additional information
to act on water quality certification.
Stage 2 Consultation
Several activities occur during Stage 2: 1) data collection and
analysis [1-2 field seasons]; 2) scoping [if not completed in Stage
1]; 3) final request for additional studies pursuant to 18 C.F.R.
Section 4.32 (b)(7); 4) development of the preliminary DEA and draft
license application; 5) request for agency/NGO/public preliminary
recommendations, terms and conditions; and 6) issuance of the draft
license application and preliminary DEA for comment [as required in
18 C.F.R. Sec. 4.38(c)(4); Sec. 16.8].
Here Are the Milestones and Work Products for Stage 2
Applicant will copy Commission and all participants on
study plans (Commission staff reviews, advises, comments).
Applicant completes first field season of studies.
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IF NEPA SCOPING WASN'T DONE IN STAGE 1, PROCEED WITH (A); IF NEPA
SCOPING WAS DONE IN STAGE 1, FOLLOW (B).
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(A) Applicant provides study results to all interested
participants along with SD1.
==> In SD1, applicant issues a request for any further study
recommendations.
Applicant holds a Scoping meeting and site visit 30
days after mailing SDI.
Comments on scoping and additional study requests are
due to the Applicant, with a copy to the Commission staff, 60 days
after SD1 is mailed; 30 days after the NEPA scoping meeting.
If a dispute regarding an additional study request can
not be resolved, an applicant, agency, or NGO may request dispute
resolution.
(B) Since scoping meetings were held in Stage 1, the Applicant
mails study results to all participants for 60-day review.
==> Applicant issues a request for any further study recommendations
30 days after study results have been mailed and allows 60 days
after issuance of that letter for agencies, NGOs, public, to request
additional studies, if needed.
If a dispute regarding an additional study request can
not be resolved, an applicant, agency, or NGO may request dispute
resolution.
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ALL APPLICANTS FOLLOW THE STEPS OUTLINED BELOW
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Second field season of studies, if needed.
Applicant begins preparing draft license application
and preliminary DEA (PDEA).
Applicant requests preliminary terms and conditions
from the stakeholders to analyze in the PDEA.
Applicant presents and analyzes its proposal for
licensing/relicensing the project in the PDEA along with any
preliminary terms and conditions, prescriptions and recommendations
from the participants and sends to all participants for review and
comment.68 The PDEA should contain the results of any
additional studies that were completed in stage 2.
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\68\ To allow sufficient time for the applicant to evaluate and
balance the participants' recommendations and preliminary terms and
conditions, the applicant should mail the PDEA about 8 months prior
to the deadline date for filing the final license application and
DEA with the Commission.
==>NOTE: The PDEA must include the applicant's proposal and
reasonable alternatives.
==> Commission issues a notice of availability of the PDEA with a
request for preliminary terms and conditions, prescriptions and
recommendations.
The applicant will incorporate comments, preliminary
terms and conditions and recommendations from the participants into
the DEA and final license application.
==> Comments from agencies, NGOs, and the public are due to the
applicant 90 days from mailing the draft license application and
PDEA.
Hold a meeting, if needed, (not later than 60 days from
the disagreeing parties' letter) to discuss the applicant's
proposal, analyses, etc., that were presented in the PDEA and
discuss any changes (such as settlement agreements, the preliminary
conditions and recommendations) to be incorporated and analyzed in
the DEA and final license application.
Prepare final application and DEA.
Stage 3 Consultation
At this stage, the Commission staff conducts an independent
analysis and makes a recommended decision.
Here Are the Milestones for Stage 3
Applicant files license application and DEA with
Commission, and distributes it to the mailing list.
==> Staff reviews the application and DEA for adequacy.
The Commission issues a notice of acceptance, provides
opportunity for interested entities to request intervenor status,
and requests final terms, conditions [including final 401 WQC
conditions] recommendations, and 4(e) conditions if applicable, from
participants.
==> 60-day period to file a motion to intervene with the Commission.
==> 105-day comment period (60 days for agency final
recommendations; 45 days for the applicant's response to agency
final recommendations.
==> This 60-day recommendation period is also an opportunity for
agencies, NGOs, and other interested entities to comment on the
applicant's license application and DEA.
Commission staff receives final agency terms and
conditions, prescriptions and participants' final recommendations.
Commission staff modifies the DEA in light of responses
to final agency and participants' recommendations.
==> Staff completes comprehensive development analysis; writes
Finding of Significant Impact or of No Significant Impact.
Commission issues staff DEA.
==> 30-day comment period on the DEA or 45 days comment if section
10(j) issues apply.
Commission staff revises DEA in light of comments
received and the results of section 10(j) negotiations, if
applicable.
Commission issues Final EA.
Commission requests Final 4(e) conditions, if
applicable.69
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\69\ Some 4(e) agencies have a practice of providing only
preliminary terms and conditions before a final NEPA document is
issued. However, Staff will work with cooperating agencies with the
goal of expediting final 4(e) conditions so that they may be
incorporated into the Final EA, rather than have those conditions
provided afterward.
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License order issued.70 Note: The Applicant-
Prepared EA Process flow chart that follows is not being published
in the Federal Register but is available from the Commission's
Public Reference Room.
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\70\ Assumes 401 WQC has been received/waived and no intervenors
in opposition.
Note: The Applicant-Prepared EA Process flow chart that follows
is not being published in the Federal Register but is available from
the Commission's Public Reference Room.
Appendix B--Commenters
U.S. Department of Agriculture, U.S. Forest Service
U.S. Department of Commerce, National Marine Fisheries Service
U.S. Department of Energy
U.S. Department of the Interior, Bureau of Indian Affairs
U.S. Department of the Interior, U.S. Fish and Wildlife Service
U.S. Environmental Protection Agency
Environmental Council of States
Idaho Public Utility Commission
Minnesota Department of Natural Resources
Washington Department of Ecology
Washington Department of Fish and Wildlife
Wisconsin Department of Natural Resources
Confederated Tribes of the Warm Springs Reservation of Oregon
National Hydropower Association
Edison Electric Institute
American Public Power Association
Western Urban Water Coalition
Northwest Hydroelectric Association
Association of California Water Agencies
Hydro Reform Coalition
Adirondack Mountain Club
Defenders of Wildlife
Denver Water Department
Nebraska Public Power District
New York State Power Authority
Sacramento Municipal Power District
Santa Clara County, Holyoke Gas & Electric Company, and California
Water Agency Alabama Power Company
Duke Power Company
Georgia Power Company
Idaho Power Company
Minnesota Power & Light Company
[[Page 64041]]
Montana Power Company
Niagara Mohawk Power Company
New England Power Services
Pacific Gas & Electric Company
Portland General Electric Company
Safe Harbor Power Company
Southern California Edison Company
Washington Water Power Company
TAPOCO
Adirondack Hydro Development Corporation
Reply comments were filed by NHA, Hydro Reform Coalition,
Georgia Power, and Niagara Mohawk.
[FR Doc. 96-30715 Filed 12-2-96; 8:45 am]
BILLING CODE 6717-01-P
