RAPID/Roadmap/7-FD-i

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Regulatory and Permitting Information Desktop Toolkit

Federal FERC Traditional Licensing Process (7-FD-i)

The Integrated Licensing Process (ILP) is the default process used to license hydropower projects. However, developers may request use of the Traditional Licensing Process (TLP) for their project. The Office of Energy Projects within the Federal Energy Regulatory Commission (FERC) oversees the licensing process as authorized by the Federal Power Act. FERC may approve the use of TLP for projects with less complex issues, where involvement in the study plan development process may not be necessary. Developers often wish to use TLP to avoid the strict schedule of the ILP so that they can move through pre-filing quicker or have time to develop a settlement agreement with interested parties. The TLP is a notice-and-comment process that involves three stages of consultation with agencies implicated by the project.


FERC Traditional Licensing Process Process

7-FD-i.1 – Notice of Intent, Pre-Application Documents, and Request for Traditional Licensing Process

The developer may file with FERC a request to use the Traditional Licensing Process (TLP) with the Notice of Intent. 18 CFR 5.3(b). An application for permission to use the TLP must include justification for the request and any existing written comments on the developer’s proposal and any response provided. 18 CFR 5.3(c)(1)(i). The developer should address the following considerations when requesting to use the TLP:

  • Likelihood of timely license issuance;
  • Complexity of the resource issues;
  • Level of anticipated controversy;
  • Relative cost of the traditional process compared to the integrated process;
  • The amount of available information and potential for significant disputes over studies; and
  • Other factors believed by the developer to be pertinent.

18 CFR 5.3(c)(1)(ii).

7-FD-i.2 – Provide Copy of Request to Affected Resource Agencies

The developer must provide a copy of the request to all affected resource agencies, Indian tribes, and members of the public likely to be interested in the proceeding. 18 CFR 5.3(d)(1).


7-FD-i.3 – Initiate 401 Water Quality Certification

Under Section 401 of the Clean Water Act (CWA), a federal agency may not issue a license authorizing the construction or operation of a project unless the appropriate state agency first issues a water quality certification for the project or waives certification by failing or refusing to act on a request for certification within a reasonable period of time. 33 USC 1341(a)(1). In order to allow the state agency sufficient time to analyze the impacts of the project on water quality and to meet the deadline for demonstrating compliance with Section 401 of the CWA, the developer may request water quality certification from the appropriate state authority early on in the FERC licensing process.

Alaska


In Alaska, the Alaska Department of Environmental Conservation (ADEC) reviews and issues 401 Water Quality Certifications. ADEC reviews hydropower projects filed with the Federal Energy Regulatory Commission (FERC) in accordance with 18 AAC 15.180 and may issue a 401 WQC or waiver. For more information, see: 401 Water Quality Certification:
14-AK-d

California


In California, the California State Water Resources Control Board and the regional water quality control boards implement Section 401 of the Clean Water Act. For more information, see:

401 Water Quality Certification:
14-CA-d

Colorado


In Colorado, the Colorado Department of Public Health and Environment Water Quality Control Division regulates water quality and wetlands through the State’s 401 Water Quality Certification Program. For more information, see:

401 Water Quality Certification:
14-CO-d

New York


In New York, the New York State Department of Environmental Conservation (DEC) Division of Water Resources reviews and issues 401 Water Quality Certifications (WQC).

401 Water Quality Certification:
14-NY-d

Vermont


In Vermont, the Vermont Department of Environmental Conservation regulates water quality and issues 401 Water Quality Certifications pursuant to the Clean Water Act. For more information, see:

401 Water Quality Certification:
14-VT-d

Washington


In Washington, the Washington State Department of Ecology (WSDE) reviews and issues 401 Water Quality Certifications (WQC). The developer must submit a 401 WQC application for any hydropower project requiring a FERC license, license amendment, or re-licensing. Washington currently does not require a 401 WQC for FERC exempted projects. For more information, see:

401 Water Quality Certification:
14-WA-d


7-FD-i.4 – Publish Notice of NOI, Pre-Application Documents, and Request

The developer must publish notice of the filing of its NOI, the Pre-Application Document, and of the request to use the TLP no later than the filing date of the NOI in a daily or weekly newspaper of general circulation in each county in which the project is located. The notice must:

  • Disclose the filing date of the request to use the traditional process, and the NOI and Pre-Application Document;
  • Briefly summarize these documents and the basis for the request to use the traditional process;
  • Include the potential developer’s name and address, and telephone number, the type of facility proposed to be applied for, its proposed location, the places where the Pre-Application document is available for inspection and reproduction; and
  • Include a statement that comments on the request to use the traditional process are due to FERC and the potential developer no later than 30 days following the filing date of that document and, if there is no project number, that responses must reference the developer’s name and address.

18 CFR 5.3(d)(2).

7-FD-i.5 – Comment on Request for Traditional Licensing Process

Any person may submit comments on the request for the TLP within 30 days of the filing date of the request. The notice will specify that comments on the request to use the TLP should address the likelihood of timely license issuance, complexity of the resource issues, level of anticipated controversy, relative cost compared to the integrated process and any other factors that the commenter believes are pertinent. FERC Handbook, page 4-3.

7-FD-i.6 – Issue Decision on Request for Traditional Licensing Process

FERC usually issues a decision on any request to use the TLP within 60 days of the filing of the notice of intent. FERC Handbook, page 4-3.

7-FD-i.7 to 7-FD-i.8 – Does FERC Approve the Request for Use of the Traditional Licensing Process?

FERC may grant requests to use the TLP if they find good cause shown by the developer. If FERC does not approve the request for use of the TLP, the developer will initiate the ILP.

FERC Integrated Licensing Process:
7-FD-k


7-FD-i.9 – Schedule Consultation Meeting

The developer must consult with the agencies, tribes, and public to schedule a joint meeting to discuss the notice of commencement and project details. FERC Handbook, page 4-4. The developer must provide to the resource agencies, Indian tribes and FERC the following information:

  • Detailed maps showing project boundaries, if any, proper land descriptions of the entire project area by township, range, and section, and also showing the specific location of all proposed project facilities, including roads, transmission lines, and any other appurtenant facilities;
  • A general engineering design of the proposed project, with a description of any proposed diversion of a stream through a canal or penstock;
  • A summary of the proposed operational mode of the project;
  • Identification of the environment to be affected, the significant resources present, and the developer’s proposed environmental protection, mitigation, and enhancement plans, to the extent known at that time;
  • Streamflow and water regime information, including drainage area, natural flow periodicity, monthly flow rates and durations, mean flow figures illustrating the mean daily streamflow curve for each month of the year at the point of diversion or impoundment, with location of the stream gauging station;
  • A statement of whether or not the developer will seek benefits under section 210 of the Public Utility Regulatory Policies Act (PURPA);
  • Detailed descriptions of any proposed studies and the proposed methodologies to be employed; and
  • Any statement required by 18 CFR 4.301(a).

18 CFR 4.38(b)(2).

7-FD-i.10 – Publish Notice of Consultation Meeting and Site Visit

The developer must provide public notice of the consultation meeting and site visit. The developer must provide FERC with written notice of the meeting’s time, place, and agenda at least 15 days before the scheduled joint meeting date. The developer must provide public notice of the meeting arrangements and agenda in a daily or weekly newspaper in each county in which the project is located. 18 CFR 4.38(g)(2)(i).

7-FD-i.11 to 7-FD-i.12 – Hold Public Consultation Meeting

The developer must hold a public consultation meeting. Members of the public are invited to attend the meeting. The meeting must include an opportunity for a site visit. The objectives of the joint meeting are:

  • To develop a common understanding of the project;
  • Discuss current and potential resource needs and management objectives for the project area; and
  • Agree on a time frame and format for discussion of study results.

18 CFR 4.38.

7-FD-i.13 – Conduct Endangered Species Act Section 7 Consultation Process

Under the Endangered Species Act (ESA) section 7(a)(2), FERC must ensure that any action it authorizes, funds, or implements is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of a designated critical habitat. If the project will adversely affect a threatened or endangered species of fish, wildlife, or plant, then the FWS or NMFS may establish reasonable and prudent alternatives (RPA) or measures (RPM). FERC is not required to include the measures in a license, but FERC and the developer may be held liable for any damage to a listed species that results from the license. Due to this, FERC treats RPA or RPM as mandatory conditions included in the license. FERC Handbook, page B-2.

Endangered Species Act Section 7 Consultation Process:
12-FD-c

7-FD-i.14 to 7-FD-i.16 – Comment on Meeting and Site Visit

Any interested resource agency, Indian tribe, and members of the public may provide the developer with written comments and study requests not later than 60 days after the joint meeting. The written comments should include:

  • Identifying its determination of necessary studies to be performed or information to be provided by the developer;
  • The basis for the agency’s determination;
  • The agency’s understanding of the resource issues involved, and its goals and objectives for these resources;
  • Justification of recommended study methodology;
  • Documentation that the use of each study method it recommends is a generally accepted practice; and
  • Explanation of how the studies and information requested will be useful to the agency, Indian tribe, or members of the public in furthering its resource goals and objectives as related to the project.

18 CFR 4.38(b)(5).

7-FD-i.17 – Study Plans

Following the required consultations, the developer with the assistance of participating agencies will have completed a set of resource-by-resource study plans and detailed documentation of the consultations. FERC Handbook, page 4-7.

7-FD-i.18 – Has a Study Dispute Been Filed?

Any participant and the developer may disagree on the need or method of a study. Any dispute may be referred to FERC for resolution.

7-FD-i.19 – Has the Dispute Been Referred to FERC for Resolution?

If the developer and a resource agency or Indian tribe disagree as to any matter arising during the first stage of consultation or as to the need to conduct a study, then the dispute may be referred to FERC for resolution. 18 CFR 4.38(b)(6).

7-FD-i.20 – Provide Notice of Referral

The entity referring the dispute to FERC must serve a copy of its written request for resolution on the disagreeing party and any affected resource agency or Indian tribe, which may submit a written response to the referral within 15 days of the referral’s submission. 18 CFR 4.38(b)(6)(ii).

7-FD-i.21 – Review and Provide Resolution to Dispute

FERC will resolve the disputes by letter provided to the developer and all affected resource agencies and Indian tribes. 18 CFR 4.38(b)(6)(iv).

7-FD-i.22 – Implement Study Plans

The developer must implement the approved study plans once all disputes have been resolved.

7-FD-i.23 to 7-FD-i.24 – Is an Additional Study Requested?

If a participant requests an additional study, then the developer must promptly initiate the study unless the study is unreasonable or unnecessary for an informed decision by FERC on the merits of the application or use of the methodology requested by a resource agency or Indian tribe for conducting the study is not a generally accepted practice. 18 CFR 4.38(c)(2).

7-FD-i.25 Draft License Application and Study Results

The developer may submit a Draft License Application and Study Results to FERC. A draft license application must:

  • Indicate the type of application the potential applicant intends to file;
  • Respond to any comments and recommendations made by any resource agency and Indian tribe during the first stage of consultation;
  • Contain the results of studies requested by the resource agencies and Indian tribes; and
  • Include a discussion of the study results and any proposed protection, mitigation, and enhancement measures.

FERC Handbook, page 4-9. Note, FERC may review the Draft License Application and Study Results, pending on workload.

7-FD-i.26 – Provide Copy of Draft Application

The developer must provide each resource agency and Indian tribe a copy of its draft application that:

  • Indicates the type of application the developer expects to file with FERC;
  • Responds to any comments and recommendations made by any resource agency and Indian tribe either during the consultation process.

18 CFR 4.38(c)(4).

7-FD-i.27 – Comment on Draft Application

Resource agencies and Indian tribes will have 90 days from the date the developer provides the copy of the draft application to comment on the application. 18 CFR 4.38(c)(5).

7-FD-i.28 to 7-FD-i.29 – Develop Preliminary License Conditions and Recommendations

Any agency responsible for developing mandatory terms, conditions or prescriptions for a FERC license, or issuing recommendations to FERC for a FERC license, must provide these terms, conditions, prescriptions or recommendations in the agency’s initial comments filed on the draft application. Agencies and the public may comment no later than 60 days following public notice of the draft application. These agencies will include those acting pursuant to the following:

FPA Section 4(e)

Where the project will be located on a federal reservation, the federal agency responsible for managing that land can file conditions to protect the reservation, and these conditions are required to be included in any license issued.

For example, The Forest Service (FS) may require that a license for a project occupying lands or waters of a National Forest include those conditions necessary to assure the protection and use of the affected resources. United States Department of the Interior Memorandum M-37005. A national forest is considered a “reservation” for purposes of FPA Section 4(e), and FS is authorized to impose mandatory conditions on the project license. 16 USC 796(2).

FPA Section 10(a)

FERC must ensure that the project is best adapted to a comprehensive plan for developing the waterway for beneficial public purposes.

For example, The NPS has submitted the Nationwide Rivers Inventory as a comprehensive plan with FERC. NPS may then submit conditions to FERC for consideration under FPA Section 10(a) to ensure that the project is best adapted to the Nationwide Rivers Inventory. FERC List of Comprehensive Plans.

FPA Section 10(j)

The U.S. Fish and Wildlife Service (FWS), the National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NOAA Fisheries), and state fish and wildlife agencies will develop preliminary conditions for inclusion in the license pursuant to section 10(j) of the Federal Power Act.

The agencies are responsible for filing any preliminary fish and wildlife recommendations, prescriptions, conditions, and comments, to be submitted in final form after the filing of the application. FERC Handbook, page 5-5. FERC will include these measures unless it finds them inconsistent with the FPA or other applicable law. FERC likely could avoid 10(j) disputes if the ALP application contains consensus for the proposed protection, mitigation, and enhancement measures. FERC Handbook, page 4-14.

FPA Section 18

The Secretaries of Commerce and the Interior can prescribe mandatory fishways at licensed projects, and those conditions are required to be included in any license issued.

For example, the NMFS may require acceptable fishway prescriptions to safeguard certain species of fish from changes in waterflow that degrade their habitat. NOAA Hydropower and Fish Passage webpage.

FERC Handbook, page 1-4.

The agency must specifically identify and explain the mandatory terms and conditions or prescriptions and their evidentiary and legal basis. 18 CFR 4.34(b)(1).

With TLP, any agency must also submit the following by the due date:

  • Preliminary terms and conditions or prescriptions and a schedule showing the status of the agency proceedings and when the terms and conditions or prescriptions are expected to become final; or
  • A statement waiving the agency’s right to file the terms and conditions or prescriptions or indicating the agency does not intend to file terms and conditions or prescriptions.

18 CFR 4.34(b)(1).

Agency Conditions and Recommendations

  • Bureau of Indian Affairs
    • The Bureau of Indian Affairs (BIA) typically issues FPA section 4(e) conditions or 10(a) recommendations, as appropriate, where a project is located on tribal lands, a tribe has an interest in the area where the project is located, or a project may interfere with the purpose of a reservation. The BIA may also participate by engaging with fish and wildlife agencies responsible for developing section 10(j) recommendations.

Bureau of Indian Affairs - FERC License Conditions and Recommendations-
7-FD-l

  • Bureau of Reclamation
    • The Bureau of Reclamation (BOR) typically issues FPA section 4(e) conditions or 10(a) recommendations, as appropriate, for projects that are located on or may otherwise affect a BOR facility.

Bureau of Reclamation - FERC License Conditions and Recommendations-
7-FD-n

  • National Park Service
    • The National Park Service (NPS) typically issues FPA section 4(e) conditions or 10(a) recommendations, as appropriate, for projects that are located on federally-reserved NPS lands, projects that may affect NPS-managed lands, and projects that may affect recreational interests in non-NPS lands.

National Park Service - FERC License Conditions and Recommendations-
7-FD-q

  • U.S. Forest Service
    • The United States Forest Service (USFS) typically issues FPA section 4(e) conditions or 10(a) recommendations, as appropriate, where projects are located on National Forest Service lands or may adversely affect National Forest System resources.

U.S. Forest Service - FERC License Conditions and Recommendations-
7-FD-s

State Fish and Wildlife Agencies

California


The California Department of Fish & Wildlife (CDFW) is California’s state agency dedicated to the conservation, protection, and management of fish, wildlife, and native plant species, and the habitat necessary to support biologically sustainable populations of those species. California Department of Fish and Wildlife: Federal Energy Regulatory Commission (FERC) Hydroelectric Projects. The CDFW participates in the FERC licensing process by (in addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process, such as the California State Water Resources Control Board (SWRCB)) reviewing proposed hydropower projects and issuing to FERC either mandatory terms and conditions or a defensible set of recommendations designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 USC 803. For more information, see:


State Fish and Wildlife License Conditions and Recommendations:
12-CA-a (1)

Colorado


The Colorado Parks and Wildlife (CPW) is the state agency charged with the management of Colorado’s wildlife and wildlife areas. The CPW participates in the FERC licensing process by (in addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process) reviewing proposed hydropower projects and issuing to FERC either mandatory terms and conditions or recommendations designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 USC 803. The Colorado Wildlife Commission encourages an approach that (considering the potential impacts to wildlife, wildlife habitat, and the potential for habitat fragmentation) balances energy development with wildlife conservation. Colorado Wildlife Commission Policy: Energy Development in Colorado.

State Fish and Wildlife License Conditions and Recommendations:
12-CO-a (2)

New York

The New York State Department of Environmental Conservation (DEC) is the state agency charged with the management of New York’s fish, wildlife, and marine resources. The New York Division of Fish, Wildlife, and Marine Resources (DFWMR), a division of the DEC, participates in the FERC licensing process by (in addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process) reviewing proposed hydropower projects and issuing to FERC either mandatory terms and conditions or recommendations designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 USC 803. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-NY-a

Vermont


The Vermont Agency of Natural Resources (ANR) is Vermont’s state agency with primary responsibility for protecting Vermont’s environment, natural resources and wildlife. ANR actively participate in FERC licensing and exemption processes by (in addition to consulting with other resource management agencies and reviewing Water Quality Certification applications) working collaboratively to issue to FERC mandatory conditions or recommendations designed to protect, mitigate damage to, and enhance Vermont’s fish and wildlife resources. 16 USC 803. ANR reviews the potential impacts on fish or wildlife species from a proposed hydropower project and issues conditions and recommendations.

State Fish and Wildlife License Conditions and Recommendations:
12-VT-a

7-FD-i.30 – Is there a Substantive Dispute that Must be Resolved?

The developer will be required to participate in further review if the written comments provided in response to the draft application indicate that a resource agency or Indian tribe has a substantive disagreement with the developer’s conclusions regarding resource impacts or its proposed protection, mitigation, or enhancement measures. 18 CFR 4.38(c)(6). If there is no dispute regarding the applicant’s (developer) study results and draft application then go to: 7-FD-i.33 – Application for FERC License and Associated Documents.


7-FD-i.31 to 7-FD-i.32 – Provide Notice of Joint Meeting

The developer must hold a joint meeting if there is a substantial dispute regarding the applicant’s (developer) draft application and study results. The developer must hold the joint meeting with the disagreeing resource agency or Indian tribe and other agencies with similar or related areas of interest, expertise, or responsibility no later than 60 days from the date of the written comments of the disagreeing agency or Indian tribe. The meeting will allow all parties to discuss and to attempt to reach agreement on any plan for environmental protection, mitigation, or enhancement measures. 18 CFR 4.38(c)(6)(i). The developer must provide written notice of the meeting to FERC at least 15 days prior to the meeting. The notice must indicate the time, place, and agenda of the issues to be discussed at the meeting. 18 CFR 4.38(c)(6)(iii).The developer and any disagreeing agency or Indian tribe may conclude a joint meeting with a document embodying any agreement among them regarding environmental protection, mitigation, or enhancement measures and any issues that are unresolved. 18 CFR 4.38(c)(7).

7-FD-i.33 – Application for FERC License and Associated Documents

The developer must file an application with FERC, accompanied by a transmittal letter certifying that at the same time copies of the application are being mailed to the resource agencies, Indian tribes, other government offices, and consulted members of the public. 18 CFR 4.38(d)(1). A developer may submit an application for a FERC License if:

  • It has provided resources agencies with the documents required under 18 CFR 4.38(c)(4); and
  • It has complied with meeting requirements in the event of a substantive disagreement with any resource agency. 18 CFR 4.38(c)(9).

The developer must describe all disagreements with a resource agency or Indian tribe on technical or environmental protection, mitigation, or enhancement measures in the application. 18 CFR 4.38(c)(10). The developer must include an Exhibit E in the application that indicates they have met all consultation requirements, and it should include a summary of the consultation process and:

  • Any resource agency’s or Indian tribe’s letters containing comments, recommendations, and proposed terms and conditions;
  • Any letters from the public containing comments and recommendations;
  • Notice of any remaining disagreement with a resource agency or Indian tribe on the need for or manner of a study, and information on any environmental protection, mitigation, or enhancement measure, including the developer’s reasons for disagreement;
  • Evidence of any waivers obtained from resource agencies;
  • Evidence of all attempts to consult with a resource agency or Indian tribe, copies of related documents showing the attempts, and documents showing the conclusion of the second stage of consultation;
  • An explanation of how and why the project would, would not, or should not, comply with any relevant comprehensive plan and a description of any relevant resource agency or Indian tribe determination regarding the consistency of the project with any such comprehensive plan;
  • A description of how the developer’s proposal addresses the significant resource issues raised at the joint meeting; and
  • A list containing the name and address of every federal, state, and interstate resource agency and Indian tribe with which the developer consulted.

18 CFR 4.38(f).


7-FD-i.34 – Provide Notice of Application

FERC must issue a tendering notice within 14 days of the filing of an application. FERC Handbook, page 4-11. This notice must solicit requests for additional studies. FERC Handbook, page 4-11.

7-FD-i.35 – Initiate FERC - NEPA Process

FERC, with the assistance of the developer, must initiate environmental review under the National Environmental Policy Act (NEPA). FERC will issue a Notice of Ready for EA after the developer files the license application and FERC has accepted the application.

FERC - NEPA Process:
9-FD-i

7-FD-i.36 - Conduct National Historic Preservation Act Section 106 – Resource Survey

With the FERC-issued notice of application (see 7-FD-i.36), FERC initiates consultation with the State Historic Preservation Officer (SHPO), as required by section 106 of the National Historic Preservation Act. FERC Handbook, page 4-11.

Section 106 of the National Historic Preservation Act requires FERC to consult with appropriate state and local officials, Indian tribes, applicants for federal assistance, and members of the public and to consider their views and concerns about the effect of licensing a hydropower project on historic properties within the affected area.

For more information regarding the National Historic Preservation Act (NHPA) requirements, see:

National Historic Preservation Act Section 106 – Resource Survey:
11-FD-a

7-FD-i.37 – Provide any Necessary Additional Information

The developer must provide to the participants any:

  • Deficiency correction, revision, supplement, response to additional information request, or amendment to the application; and
  • Written correspondence from FERC requesting the correction of deficiencies or the submittal of additional information.

FERC Handbook, page 4-11.

7-FD-i.38 to 7-FD-i.40 – Review Application Materials for Completeness

FERC will review application materials to ensure that all required elements are present. FERC may request additional information or documents it considers relevant for an informed decision on the application even if the application complies with the regulations. 18 CFR 4.32(e)(1).

7-FD-i.41 – Conduct Substantive Review of Application Materials

FERC will review the application materials to ensure that all applicable regulations have been followed.

7-FD-i.42 – Is the Application Accepted?

FERC may accept or reject an application for a license.

7-FD-i.43 – Letter of Acceptance

If FERC determines that the application is acceptable following adequacy review, then they will issue a Letter of Acceptance to the developer. FERC Handbook, page 4-11.

7-FD-i.44 – Is the Application Patently Deficient?

If FERC determines, within 90 days of its filing date, that an application patently fails to substantially comply with the application requirements, then the application will be rejected as patently deficient. 18 CFR 4.32(e)(2). If FERC determines that the application is patently deficient, go to: 7-FD-i.47 to 7-FD-i.48 – Submit a Request for Rehearing.

7-FD-i.45 – Deficiency Letter

FERC will issue a Deficiency Letter to the developer if the application is inadequate but not patently deficient.

7-FD-i.46 – Provide Any Necessary Additional Information

The developer will be given a chance to provide the necessary additional information. However, if the 24-month filing deadline has passed, then the application must be rejected.

7-FD-i.47 to 7-FD-i.48 – Submit a Request for Rehearing

The developer may request rehearing on any decision of FERC. The developer must submit the request no later than 30 days after issuance of the licensing denial. 18 CFR 385.713(b). The request should outline the alleged error in the final decision or final order. 18 CFR 385.713(c)(1). FERC may approve or deny any rehearing request.

If FERC rejects or dismisses an application because it is patently deficient or because the developer fails to correct deficiencies, then the developer cannot refile its application if the 24-month filing deadline has passed. FERC Handbook, page 4-12.

7-FD-i.49 – Consider Submitting Final Order for Judicial Review

The developer may obtain review of a final order in the United States Court of Appeals for any circuit in which the developer is located or has its principal place of business. The developer may obtain review through filing a written petition requesting that the final order be modified or set aside in whole within 60 days after the final action of FERC. 16 USC 8251(b).

7-FD-i.50 – Conduct Rehearing on Denial of Application

If the request for rehearing is approved, then FERC will review the decision to deny an application.

See element 7-FD-i.33 — Application for FERC License and Associated Documents..

7-FD-i.51 to 7-FD-i.52 – Provide Public Notice of Acceptance of Application

FERC must provide public notice in the Federal Register, local newspapers, and directly to resources agencies and Indian tribes if the application is accepted. The notice will identify dates for comment, intervention, and protests. 18 CFR 4.34(b).

The public and participating agencies may comment on the acceptance of the application. The time frame for comments will be included in the public notice. 18 CFR 4.34(b).

7-FD-i.53 to 7-FD-i.54 – Scoping Document 1 (If Necessary)

FERC will typically issue a Scoping Document for public comment. FERC Handbook, page 4-13. The timeframe for public notice will be included in the Scoping Document. FERC may request additional information from the developer. 18 CFR 4.32(g).

7-FD-i.55 to 7-FD-i.56 – Provide Notice of Readiness for Environmental Analysis (REA)

FERC will provide notice of Readiness for Environmental Analysis (REA) following the comment period for the Notice of Acceptance of Application or the Scoping Document. FERC Handbook, page 4-13. Agencies, tribes, and the public will have 60 days to file comments, recommendations, terms and conditions, and prescriptions. 18 CFR 4.34(b).

7-FD-i.57 – Demonstrate Compliance with 401 Water Quality Certification

The developer must demonstrate compliance with the CWA’s water quality certification requirements. Within 60 days from the date FERC issues the notice of readiness for environmental analysis, the developer must file:

  • A copy of the water quality certification;
  • A copy of the request for certification, including proof of the date on which the certifying agency received the request; or
  • Evidence of waiver of water quality certification.

See element 7-FD-i.3.

18 CFR 4.34(b)(5)(i).

7-FD-i.58 to 7-FD-i.60 – Is the License Approved?

FERC may approve or deny any request for a license. If the license is approved, then FERC will issue a Licensing Order. If the license is denied, then FERC will issue an order denying the license application. The developer may seek rehearing of the order denying the license application with FERC. FERC may issue an order either granting or denying rehearing of the license order. If FERC issues an order denying rehearing of the license order, then the developer may obtain review of the order denying rehearing in the United States Court of Appeals for the District of Columbia, or for any circuit in which the developer is located or where the developer has its principal place of business. The developer may obtain review through filing a written petition requesting that the rehearing order be modified or set aside in whole within 60 days after the final action of FERC. 16 USC 8251(b).

FERC Licensing Orders contain an extensive overview of the project, licensing requirements and information regarding compliance with federal law, generally containing content in the following form:

  • Introduction, describing application date, type, and project capacity.
  • Background, describing licensing history and current application history.
  • Project Description, describing the following about the project;
    • Area.
    • Facilities.
    • Recreation sites.
    • Boundary.
    • Current operation.
    • Proposed operation and environmental measures.
  • Summary of License Requirements, describing the license authorizations and requirements.
  • Water Quality Certification, describing water quality certification and conditions.
  • Coastal Zone Management, describing CZMA consistency certification.
  • Section 18 Fishway Prescription, describing required fishways.
  • Threatened and Endangered Species, describing Endangered Species Act compliance.
  • National Historic Preservation Act, describing National Historic Preservation Act compliance.
  • FPA Section 10(a)(1), describing adaptation to conform with comprehensive plan.
  • FPA Section 10(j) Recommendations, describing conditions submitted by federal and state fish and wildlife agencies.
  • Administrative Provisions, describing required administrative provisions.
  • State and Federal Comprehensive Plans, describing consistency with state and federal comprehensive plans.
  • Applicant’s Plans and Capabilities, describing FERC’s analysis of the licensee’s record as a licensee.
  • Project Economics, describing FERC’s analysis of the economic benefits of the project.
  • Comprehensive Development, describing FERC’s analysis of the impact of the development.
  • License Term, describing the license term, requirements, and project detail.
  • Terms and Conditions, describing all the terms and conditions attached to the license.
  • Appendix A, Water Quality Certification Conditions, containing an additional description of the conditions of water quality certification.

See FERC Online eLibrary.




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