[Federal Register Volume 65, Number 103 (Friday, May 26, 2000)]
[Notices]
[Pages 34151-34152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13265]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


Solicitation of Public Comments on Establishing a Review Process 
for Mandatory Conditions Developed by the Departments of the Interior 
and Commerce in the Context of Hydropower Licensing

AGENCIES: Office of the Secretary, Interior; National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of solicitation of public comments.

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SUMMARY: The Department of the Interior and the Department of Commerce 
(Departments) have committed to establishing a review process for the 
mandatory conditions and prescriptions the Departments develop as part 
of the Federal Energy Regulatory Commission's hydropower licensing 
proceedings under part I of the Federal Power Act. The Departments have 
convened a joint drafting committee to develop such a process and, with 
the input of the public and agency field staffs, will be exploring a 
variety of options in the coming months.

DATES: Comments must be submitted by June 26, 2000.

ADDRESSES: Please submit all comments to Liz Birnbaum, U.S. Department 
of the Interior, Solicitor's Office, MS-6352, 1849 C Street, NW 20240, 
or by email: [email protected]>.

FOR FURTHER INFORMATION CONTACT: Liz Birnbaum, U.S. Department of the 
Interior, 202-208-4423, or Stephen Waste, U.S. Department of Commerce, 
301-713-2325, extension 182.

SUPPLEMENTARY INFORMATION:

Background

    Pursuant to Part I of the Federal Power Act, 16 U.S.C. 791a et 
seq., the Department of the Interior and Department of Commerce possess 
certain authorities in the process for licensing non-federal 
hydroelectric generating facilities. Although the final licensing 
decision lies with the Federal Energy Regulatory Commission 
(Commission), various bureaus of the Departments provide input to the 
Commission on a number of issues related to the license application. 
Among others, the Departments' authorities include the U.S. Fish and 
Wildlife Service's and National Marine Fisheries Service's authority to 
prescribe fishways under section 18 of the Federal Power Act, 16 U.S.C. 
811, and the Secretary of the Interior's authority with respect to land 
``reservations'' that may contain non-federal hydropower project works, 
to establish conditions ``necessary for the adequate protection and 
utilization of such reservations'' under section 4(e) of the Federal 
Power Act, 16 U.S.C. 797(e). These reservations may include lands 
managed principally by the U.S. Fish and Wildlife Service, the National 
Park Service, the Bureau of Land Management, the Bureau of Reclamation 
and the Bureau of Indian Affairs.
    The Federal Power Act states that both section 18 prescriptions and 
section 4(e) conditions must be included in any license issued by the 
Commission. The mandatory nature of these prescriptions and conditions 
has been upheld by Federal courts, including the Supreme Court. 
Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 
U.S. 765 (1984); Bangor Hydroelectric Co. v. FERC, 78 F.3d 659 (D.C. 
Cir. 1996); American Rivers v. FERC, 129 F.3d 99 (2d Cir. 1997); 
American Rivers v. FERC, 187 F.3d 1007 (9th Cir. 1999). After 
incorporation into a license, the prescriptions and conditions are 
subject to judicial review under the appeal procedures of the Federal 
Power Act, which places exclusive jurisdiction in the Federal courts of 
appeals (16 U.S.C. 8251(b)).
    Currently, the Departments try to work closely with the license 
applicant in developing mandatory prescriptions and conditions. 
However, the Departments understand the interest of licensees and 
others in having a more formal opportunity to provide input on the 
Departments' mandatory conditions before FERC issues a license. Such a 
review process mechanism would provide an opportunity for the 
Departments and interested parties to work together to improve 
prescriptions and conditions in advance of license issuance. While it 
is generally thought that this process would only be appropriate in a 
traditional process licensing, the Departments will also evaluate 
whether such a mechanism should be available for prescriptions and 
conditions developed during negotiations under the Commission's 
alternative licensing procedure, or other settlement negotiations.
    Before the Departments can establish a review process, a number of 
issues must be considered and addressed. The Departments do not wish to 
institute a review process that causes significant delays in developing 
prescriptions and conditions, or creates unnecessary procedural burdens 
on the Commission, licensees, or on to balance the need to obtain 
timely, meaningful input with their legal obligation to support 
conditions and prescriptions with substantial evidence in the record. 
Furthermore, in consideration of increasingly significant resource 
constraints, the Departments must adopt a procedure that is not too 
burdensome.
    Timing will be a particularly important consideration in 
establishing a review process. While the Departments often have an 
opportunity to review and comment on draft hydropower licensing 
applications before the applications are due, they typically do not see 
the final license application until it is submitted to the Commission. 
The Departments therefore have very little time to analyze the 
application and develop appropriate prescriptions and conditions. In 
addition, they often must wait to receive additional environmental 
information before being able to develop section 18 prescriptions or 
Section 4(e) conditions. Commission rules ask that the Departments 
submit prescriptions and conditions within 60 days after the Commission 
determines that the application is complete and ready for environmental 
review. Where there is sufficient information to support a preliminary 
prescription or condition, the Departments normally take this time to 
develop prescriptions and conditions that address the application as 
written, leaving little time for any kind of review process. Once the 
prescriptions and conditions have bean submitted, the Commission's 
regulations provide a narrow 45-day comment period for public comments. 
Therefore, in developing a review process, the Departments must 
consider whether to delay their submissions to the Commission in order 
to accommodate the new process, use the time period already 
contemplated under the Commission's regulations, or take otherstreps to 
integrate this new process into the licensing procedure.

[[Page 34152]]

Issues To Be Addressed

    Based on the cited considerations, the Departments are seeking 
public comment on the following questions:
    1. Should a review process be adopted and, if so, what kind of 
process should be established?
    2. If so, how could such a process be integrated into the 
Commission's current licensing procedures in a timely and efficient 
manner? To meet the constraints of timeliness and resource limitations, 
are changes needed in the timing or implementation of various steps in 
the agencies'--including the Commission's--existing regulations or 
procedures? If not, then when should the review process take place?
    3. If, under any review process mechanism, it were not possible to 
avoid delaying the overall licensing process, would it still be worth 
establishing such a process?
    4. Should the review process for Section 4(e) and Section 18 be the 
same?
    5. Who should be allowed to initiate and/or participate in the 
review process? Should it be limited to the license applicant? Should 
it be limited to formal parties (i.e., intervenors) to the Commission's 
licensing process (note that, depending upon when the review process 
takes place, there may not yet be intervenors before the Commission)? 
Should the opportunity be available to anyone with an interest in the 
project?
    6. Should the new process be available for prescriptions and 
conditions agreed upon pursuant to the Commission's streamlined 
alternative licensing procedure--a process that already provides 
considerable opportunity for communication and negotiation among the 
Departments and other interested parties?

Alex Matthiessen,
Special Assistant to the Deputy Secretary, U.S. Department of the 
Interior.
Andrew Rosenberg,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service, National Oceanic and Atmospheric Administration, Department of 
Commerce.
[FR Doc. 00-13265 Filed 5-25-00; 8:45 am]
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