Federal FERC Authorization Amendment Process (7-FD-t)
If the developer seeks to make certain changes to a project authorized under an existing Federal Energy Regulatory Commission (FERC) license or exemption, the developer must apply for a license amendment from FERC. Prior to submitting an amendment application, the developer must complete a pre-filing consultation process that may involve resource agencies, Indian tribes, or the public. Generally, amendments can be broken into two categories: capacity changes and noncapacity changes.
(See generally, FERC Compliance Handbook).
The developer must follow the amendment application requirements found at 18 CFR 4.200 et seq., if the developer seeks to:
- Make a change in the physical features of the project or its boundary, or make an addition, betterment, abandonment, or conversion, of such character as to constitute an alteration of the license;
- Make a change in the plans for the project under license; or
- Extend the time fixed on the license for commencement or completion of project works.
(18 CFR 4.200).
FERC Authorization Amendment Process Process
7-FD-t.1 to 7-FD-t.2 – Is the Developer Seeking to Amend an Exemption?
A developer that holds an exemption may file an application to amend its exemption. However, for minor changes, a developer need not file an application to amend, and may implement changes without FERC’s approval, if:
- After being notified in writing by the exemption holder of its intended changes, the appropriate fish and wildlife agencies determine that the proposed changes would not cause the project to violate the terms and conditions imposed by the agencies; and
- The changes would not materially alter the design, location, or method of construction or operation.
7-FD-t.3 to 7-FD-t.4 – Is the Amendment for a Change that Will not Result in a Substantial Alteration?
Minor changes to licensed projects, those that will not result in a substantial alterations to a project as licensed, do not require that the developer submit an application for amendment or FERC approval. In most licenses, Standard Articles 2 and 3 give the developer the ability to make minor changes in project works, or in uses of project lands and waters, or to diverge from approved exhibits but only for changes that do not result in substantial alterations. For example, the following minor changes would not ordinarily need prior Commission approval but instead could be made by the licensee pursuant to Articles 2 and 3:
- Adding signage for public information purposes where such signage does not conflict with the project’s approved recreation or public safety plans;
- Constructing small sheds, garages, and other outbuildings to house maintenance equipment and/or to otherwise support project operations or personnel; and
- Installing new electrical control and/or monitoring equipment needed to safely operate the project in a manner consistent with approved license conditions.
7-FD-t.5 to 7-FD-t.6 – Is the Application for a Capacity or Non-Capacity Related Amendment?
Consultation process requirements differ and depend in large part on whether the developer is seeking a capacity-related or noncapacity-related amendment. However, certain noncapacity-related amendments (those identified in 18 CFR 4.38(a)(4)(v)) require that the developer use the same three-step agency consultation process as capacity amendments set forth in 18 CFR 4.38.
The developer must submit a capacity-related amendment if the amendment is for a project modification for additional capacity not previously authorized, which would:
- Increase the actual or proposed total installed capacity of the project;
- Result in an increase in the maximum hydraulic capacity of the project of 15 percent or more; and
- Result in an increase in the installed nameplate capacity of 2 megawatts or more.
If only one of the criteria listed in 18 CFR 4.201(b) applies to the amendment, it is considered a noncapacity-related amendment.
Noncapacity-Related Amendments Requiring Three-Step Consultation
The noncapacity changes which require three-step consultation include:
- The construction of a new dam or diversion in a location where there is no existing dam or diversion;
- Any repair, modification, or reconstruction of an existing dam that would result in a significant change in the normal maximum surface area or elevation of an existing impoundment; or
- The addition of new water power turbines other than to replace existing turbines.
The developer must submit a noncapacity-related amendment if the amendment is for a project modification, which would involve:
- Design changes in the physical features of a project such as new structures, relocation of transmission lines, or alterations of existing structures;
- Operational changes such as modifications to operating levels, minimum instream flows, revised ramping rates and other changes affecting environmental resources;
- Land status changes including altered usage of lands of the United States, changes in land rights, non-project use of project lands, or changes in the recreational usage of the site;
- Compliance filings (filings pursuant to license articles or other Commission orders) such as filing of study results, mitigation plans, study plans, or schedules ordered in the license articles;
- As-built extensions; or
- Time extensions.
7-FD-t.7 – Consult with any Affected Agency
If the proposed change is neither a capacity-related amendment nor a noncapacity amendment requiring three-step consultation, the licensee must consult with any appropriate resource agencies and discuss the results of such consultation in the application (18 CFR 4.38(a)(7)).
7-FD-t.8 to 7-FD-t.9 – Will the Amendment Result in a Discharge Requiring a State Water Quality Certification?
A proposed amendment to an exempt or licensed hydroelectric facility may require a waiver, revision or issuance of a state water quality certification. Under section 401 of the Clean Water Act a federal agency may not issue a license authorizing the construction or operation of a project which “…may result in any discharge into a navigable water…” unless the appropriate state agency first issues a water quality certification. 33 U.S.C. § 1341(a)(1). Any limitation included in the state certification becomes a condition on the FERC license. 33 U.S.C. § 1341(d). If the state denies the water quality certification, FERC may not issue the hydroelectric license. 33 U.S.C. § 1341(a)(1). Some states, like Vermont and New York, also require a 401 water quality certification for FERC exempt hydroelectric facilities pursuant to the state’s section 30(c) power under the Federal Power Act.
A developer must provide evidence of a waiver or request for a new or revised water quality certification, from the appropriate state agency, for any proposed amendment that would result in a change in discharge at the existing hydropower facility site. FERC Compliance Handbook, page 25). The developer must provide this evidence with the amendment application to FERC. FERC Compliance Handbook, page 25). A change that would decrease o increase the flow of water into a navigable waterway may cause a “discharge” within the meaning of section 401 of the Clean Water Act. Alabama Rivers Alliance v. FERC 325 F.3d 399 (2003). However, a change that increases the flow does cause or result in a “discharge” requiring a waiver or request for a new or revised water quality certification from the appropriate state agency. Alabama Rivers Alliance v. FERC 325 F.3d 399 (2003).
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 should request water quality certification from the appropriate state authority early on in the FERC license or exemption amendment process.
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:
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:
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:
In New York, the New York State Department of Environmental Conservation (DEC) Division of Water Resources reviews and issues 401 Water Quality Certifications (WQC).
In Pennsylvania, the Pennsylvania Department of Environmental Protection (“PADEP”) reviews and issues 401 Water Quality Certifications. PADEP reviews hydropower projects filed with the Federal Energy Regulatory Commission and may issue a 401 Water Quality Certification or waiver. For more information, see:
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:
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:
In West Virginia, the West Virginia Department of Environmental Protection reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission that may result in any discharge into the navigable waters of the U.S. For more information, see:
7-FD-t.10 to 7-FD-t.12 – Consult with Appropriate Resource Agencies and Indian Tribes
For all amendments requiring completion of the three-step consultation process set forth in 18 CFR 4.38, prior to FERC review of an application for amendment the developer must complete the following: (1) reach out to relevant agencies, Indian tribes, and members of the public; hold a public meeting; and request studies; (2) conduct any studies requested by interested parties and provide a draft of the application to relevant resource agencies, tribes, and other interested entities for review and comment; and (3) file the final application with the FERC (FERC Compliance Handbook, page 24).
First the developer must consult with the agencies, tribes, and public to schedule a joint meeting to discuss the notice of commencement and project details (18 CFR 4.38(a)). 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).
7-FD-t.13 – 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.
7-FD-t.14 to 7-FD-t.15 – 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.
7-FD-t.16 – Submit Comments and Study Requests
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.
7-FD-t.17 – Study Plans
Following the required consultations, the developer with the assistance of participating agencies will have a completed set of resource-by-resource study plans and detailed documentation of the consultations (see 18 CFR 4.38(c)).
7-FD-t.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 (18 CFR 4.38(b)(6)).
7-FD-t.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-t.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-t.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-t.22 – Implement Study Plans
The developer must implement the approved study plans once all disputes have been resolved (18 CFR 4.38(c)).
7-FD-t.23 to 7-FD-t.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. In addition, the developer will not be required to use any methodology that is not a generally accepted practice.
7-FD-t.25 – Draft License Amendment Application and Study Results
The developer must submit a Draft License Amendment Application and Study Results to FERC. A draft application must:
- 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.
7-FD-t.26 – Provide Copy of Draft Application
The developer must provide each resource agency and Indian tribe a copy of its draft application that 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-t.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-t.28 – 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)).
7-FD-t.29– Provide Notice of Joint Meeting
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.
7-FD-t.30– Hold Joint Meeting on Dispute
The developer must hold a 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 allows all parties to discuss and to attempt to reach agreement on any plan for environmental protection, mitigation, or enhancement measures.
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-t.31 – Amendment Application and Exhibits
To amend an application the developer must file an Amendment 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)). FERC will review the application materials to ensure that all applicable regulations have been followed. A developer may submit an application for an amendment 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)).
To amend an application the developer must submit an Amendment Application and any required exhibits to FERC. Amendment application content, including required exhibits, differs and depends in large part on whether the developer is seeking a capacity-related or noncapacity-related amendment. All amendment applications must contain an initial statement; applicable exhibits and pre-filing consultation; and, in some cases, evidence of a new request for water quality certification (18 CFR 4.201(a)). All revised exhibits are governed by 18 CFR 4.41, 4.51, or 4.61 based on project size and development stage.
Exhibits for Capacity-Related Amendments
The number and type of exhibits required for a capacity-related (and a specified set of noncapacity-related, discussed below) amendments depends on the installed capacity of the project proposed for modification and the current stage of the project’s development at the time the application is filed. The content requirements for exhibits can be found at 18 CFR 4.41, 4.51, or 4.61. The exhibits listed below must be included in a license amendment application. For amendment of a license for a water power project that is:
- Not constructed and proposed to have a total installed generating capacity of,
- More than 5 MW: include Exhibits A, B, C, D, E, F, and G under 18 CFR 4.41;
- 5 MW or less, but more than 1.5 MW: include Exhibits F and G under 18 CFR 4.61, and Exhibit E under 18 CFR 4.41;
- 1.5 MW or less: include Exhibits E, F, and G under 18 CFR 4.61;
- Constructed and proposed to have a total installed generating capacity of,
- More than 5 MW: include Exhibits A, B, C, D, E, F, and G under 18 CFR 4.51;
- 5 MW or less: include Exhibits E, F and G under 18 CFR 4.61.
In addition, a table containing the content requirements can be found in the FERC Other Licenses and Exemptions Handbook, page 4-2.
Exhibits for Noncapacity-Related Amendments
Noncapacity-related amendment applications must contain all exhibits that require revision under the proposed amendment (18 CFR 4.201(c)).
These applications may vary in detail from a one-page letter to a comprehensive, multi-volume application. Applications must provide reasons for the amendment, resource agency comments, exhibits, and drawings.
In addition, 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.
7-FD-t.32 – Review Application for Adequacy
When first receiving a request to amend a license or exemption, DHAC staff performs an adequacy review to determine if the licensee/exemptee has complied with the Commission’s regulations in preparing the filing and if all necessary information is provided. If the filing is deficient in any way, or if DHAC staff determines that further information is necessary for our review, we ask the licensee/exemptee to correct the deficiencies or provide the additional information.
7-FD-t.33 to 7-FD-t.34 – Will the Amendment Constitute a Significant Alteration of the License?
If FERC determines that approval of the application for amendment of license would constitute a significant alteration of license pursuant to Section 6 of 16 U.S.C. 799, FERC provides public notice at least 30 days prior to approval of the application (18 CFR 4.202(a)).
7-FD-t.35 - Initiate FERC NEPA Process
An authorization of an amendment to a hydropower license that does not require ground disturbing activity, changes to project works or operation is an action categorically excluded from the requirements of NEPA under (18 CFR 380.4(a)(13)).
However, even where an authorization is within a categorical exclusion, FERC may determine that extraordinary circumstances exist such that the authorization is a major federal action requiring an environmental document be prepared consistent with NEPA. Such circumstances exist when the action may have an effect on one of the following:
- Indian lands;
- Wilderness areas;
- Wild and scenic rivers;
- Units of the National Park System, National Refuges, or National Fish Hatcheries;
- Anadromous fish or endangered species; or
- Where the environmental effects are uncertain.
7-FD-t.36 to 7-FD-t.37 - Will the Amendment Require FERC to Revise Annual Charges?
When an amendment of license would result in a change to the project’s authorized installed capacity or the project boundary, thereby affecting the amount of federal lands acreage, the annual charges article is modified by the amendment order (FERC Compliance Handbook, section 126.96.36.199).
7-FD-t.38 to 7-FD-t.41 – Is the License Amendment 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 not approved, then FERC will issue a Notice of Denial.
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.
As with the denial for a request for rehearing, 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.
Following issuance of a final FERC License, FERC must monitor the developer’s compliance with all the conditions contained within the license (see FERC Compliance Handbook).
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- Federal Power Act
- 16 USC 799 License duration, conditions, revocation, alteration, or surrender
- 33 USC 1341 Permits and Licenses - Certification
- Title 18 CFR 4.34(i) Alternative Procedures
- Title 18 CFR 4.38 Consultation Requirements
- Title 18 CFR 4.200 et seq. Application for Amendment of License
- Title 18 CFR Subpart E Application for License for Major Unconstructed Project and Major Modified Project
- Title 18 CFR Subpart F Application for License for Major Project -- Existing Dam
- Title 18 CFR Subpart G Application for License for Minor Water Power Projects and Major Water Power Projects 5 Megawatts or Less
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