[Federal Register Volume 84, Number 26 (Thursday, February 7, 2019)]
[Proposed Rules]
[Pages 2469-2479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01256]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 7
[Docket No. RM19-6-000]
Hydroelectric Licensing Regulations Under the America's Water
Infrastructure Act of 2018
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Pursuant to the America's Water Infrastructure Act, the
Federal Energy Regulatory Commission (Commission) is proposing rules to
establish an expedited process for issuing original licenses for
qualifying facilities at existing nonpowered dams and closed-loop
pumped storage projects. Under the expedited process, the Commission
will seek to ensure a final decision will be issued no later than two
years after the Commission receives a completed license application.
The Commission proposes to codify the rules in a new part that will be
added to the Commission's regulations.
DATES: Comments are due March 11, 2019.
ADDRESSES: You may send comments, identified by RM19-6-000, by either
of the following methods:
Agency website: Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format.
Mail: Those unable to file electronically may mail or
hand-deliver comments to: Federal Energy Regulatory Commission,
Secretary of the Commission, 888 First Street NE, Washington, DC 20426.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Comment
Procedures section of this document.
FOR FURTHER INFORMATION CONTACT:
Shana Wiseman (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8736, [email protected].
Kenneth Yu (Legal Information), Office of the General Counsel, Federal
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426, (202) 502-8482, [email protected].
Tara DiJohn (Legal Information), Office of the General Counsel, Federal
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426, (202) 502-8671, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
Paragraph
Nos.
I. Background.............................................. 3
II. Discussion............................................. 6
A. Eligibility Criteria................................ 8
1. Statutory Criteria for Qualifying Facilities.... 9
2. FERC-Defined Criteria for Expedited Process..... 14
B. Expedited Licensing Process......................... 27
1. Section 7.1--Applicability and Definitions...... 28
2. Section 7.2--Use of Expedited Licensing Process. 29
3. Section 7.3--Adequacy Review of Application..... 30
4. Section 7.4--Additional Information............. 31
[[Page 2470]]
5. Section 7.5--Decision on Request To Use 32
Expedited Licensing Process.......................
6. Section 7.6--Notice of Acceptance and Ready for 33
Environmental Analysis............................
7. Section 7.7--Amendment of Application........... 35
8. Section 7.8--Other Provisions................... 36
9. Section 7.9--Transition Provision............... 37
C. Key Issues and Goals for an Expedited Licensing 38
Process...............................................
1. Definition of Closed-Loop Pumped Storage........ 39
2. License Amendments.............................. 42
3. Projects That Require the Preparation of an EIS. 45
III. Regulatory Requirements............................... 48
A. Information Collection Statement.................... 48
B. Environmental Analysis.............................. 63
C. Regulatory Flexibility Act.......................... 64
D. Comment Procedures.................................. 68
E. Document Availability............................... 72
1. On October 23, 2018, the America's Water Infrastructure Act of
2018 \1\ was signed into law. The AWIA, among other things, requires
the Federal Energy Regulatory Commission (Commission or FERC) to
establish an expedited process for issuing and amending licenses for
qualifying facilities at existing nonpowered dams and closed-loop
pumped storage projects. Under the expedited process, the Commission
will seek to ensure that a final decision on a license application will
be issued no later than two years after the Commission receives a
completed application for a license.
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\1\ Public Law 115-270, 132 Stat. 3765 (2018) (AWIA).
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2. To comply with the AWIA, the Commission proposes to amend its
regulations governing hydroelectric licensing under the Federal Power
Act (FPA) by establishing a new expedited licensing process for
qualifying facilities at existing nonpowered dams and for closed-loop
pumped storage projects. Under the proposal, a new part 7 will be added
to Title 18 of the Code of Federal Regulations. The Commission's
coordination and discussion with appropriate federal and state agencies
and Indian Tribes, as part of an interagency task force (ITF), have
informed these proposed regulations.
I. Background
3. Sections 3003 and 3004 of the AWIA amended the FPA by adding new
sections 34 and 35. Section 34 of the FPA gives the Commission
discretion to issue or amend licenses, as appropriate, for any facility
that the Commission determines is a qualifying facility at an existing
nonpowered dam. Section 35 of the FPA gives the Commission discretion
to issue or amend licenses, as appropriate, for closed-loop pumped
storage projects. Congress directed the Commission to issue a rule, no
later than 180 days after October 23, 2018, establishing an expedited
licensing process for issuing and amending licenses for qualifying
facilities at nonpowered dams and for closed-loop pumped storage
projects under sections 34 and 35. In establishing the expedited
licensing process, Congress directed the Commission to convene an ITF,
with appropriate Federal and State agencies and Indian Tribes
represented, to coordinate the regulatory processes associated with the
authorizations required to construct and operate qualifying facilities
at nonpowered dams and closed-loop pumped storage projects.
4. On November 13, 2018, the Commission issued a notice inviting
federal agencies, state agencies, and Indian Tribes to participate on
the ITF.\2\ The notice directed interested agencies and Tribes to file
a statement of interest with the Commission by November 29, 2018. On
December 6, 2018, the Commission issued a notice identifying 28 federal
agencies, state agencies, and Tribes as ITF participants.\3\
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\2\ See Notice Inviting Federal and State Agencies and Indian
Tribes to Request Participation in the Interagency Task Force
Pursuant to America's Water Infrastructure Act of 2018, 83 FR 58,245
(Nov. 19, 2018).
\3\ See Notice of Interagency Task Force (Dec. 6, 2018); see
also FERC, Office of Energy Projects, Summary of Interagency Task
Force Activities (Jan. 10, 2019) (Appendix A identifies the ITF
participants).
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5. On December 12, 2018, the Commission convened a coordination
session with the ITF participants at the Commission's headquarters to
discuss the Commission's preliminary proposal to coordinate the
regulatory processes associated with the authorizations required to
construct and operate qualifying facilities at nonpowered dams and
closed-loop pumped storage projects. At the session, Commission staff
presented for the ITF participants' consideration and comment a
flowchart illustrating a draft expedited licensing process.\4\ In
addition to soliciting comments at the coordination session, Commission
staff invited ITF participants to file comments on the process in
Docket No. RM19-6-000 by December 26, 2018. Seven post-session comments
were filed.
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\4\ See Commission staff's Letter to ITF Participants, Summary
of Interagency Task Force Activities (Jan. 10, 2019).
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II. Discussion
6. The Commission's current regulations provide three prefiling
process alternatives for hydropower developers to use in preparing
license applications: (i) The integrated licensing process (ILP), which
is the default process, as described in part 5; (ii) the traditional
licensing process (TLP), as described in part 4, subparts D to H; and
(iii) the alternative procedures (i.e., the alternative licensing
process (ALP)), as described in Sec. 4.34(i) of part 4. The Commission
does not propose to alter these existing licensing processes. Instead,
these proposed regulations establish procedures for the Commission to
determine, on a case-by-case basis, whether applications for an
original license at qualifying hydropower projects at nonpowered dams
or closed-loop pumped storage projects, as defined in sections 34 and
35 of the FPA and the eligibility criteria below, qualify to
participate in the Commission's new expedited licensing process.
7. To be considered under the expedited process, applicants for
original licenses at qualifying hydropower projects at nonpowered dams
or closed-loop pumped storage projects must include with their
application a request for authorization to use the expedited licensing
process. The Commission may grant the request if the applicant
demonstrates compliance with the procedures set forth in the proposed
regulations. The
[[Page 2471]]
use of the expedited licensing process is voluntary. The proposed
expedited licensing process would only apply to original license
applications; it would not apply to applications for a new or
subsequent license. However, the Commission seeks comments on whether
the expedited licensing process should apply to applications for a new
or subsequent license for a project that was originally licensed under
the expedited licensing process. The expedited licensing process would
begin with the filing of a license application, that is, the prefiling
process is not included in the two-year time frame governed by the
expedited process. For the purposes of prefiling activities, any
applicant interested in pursuing authorization to use the expedited
licensing process must use the default ILP, or request authorization to
the use TLP or ALP, as required under the current regulations.
Therefore, the focus of this Notice of Proposed Rulemaking (NOPR) is
solely on the process milestones and necessary authorizations that
occur after an applicant files a license application.
A. Eligibility Criteria
8. An applicant interested in requesting authorization to use the
expedited licensing process must demonstrate that its proposed project
design meets the statutory criteria for qualifying facilities that
Congress enumerated in sections 34 and 35 of the FPA. In addition, the
applicant must demonstrate compliance with the FERC-defined criteria to
use the expedited process, which include providing documentation of
consultation at the time of application filing, verifying that the
applicant has engaged in consultation with agencies, Indian Tribes,
and, if applicable, the existing dam owner, sufficient to facilitate
Commission action on the application within two years. The statutory
criteria for qualifying facilities and the FERC-defined documentation
requirements for the expedited process are described below.
1. Statutory Criteria for Qualifying Facilities
9. Section 34(e) of the FPA sets forth the qualifying criteria for
a facility to be located at an existing nonpowered dam, and defines the
term ``qualifying nonpowered dam.'' Section 35(g) of the FPA, as
amended by the AWIA, directs the Commission to establish qualifying
criteria for closed-loop pumped storage projects that will be eligible
for the expedited licensing process. The statutory criteria for
qualifying facilities are further described below.
a. Qualifying Facilities at Nonpowered Dams
10. Section 34(e)(1) of the FPA provides that ``qualifying
criteria,'' with respect to a facility, are: (A) As of the October 23,
2018, the facility is not licensed under, or exempted from, the license
requirements contained in Part I of the FPA; (B) the facility is
associated with a qualifying nonpowered dam; (C) the facility will be
constructed, operated, and maintained for the generation of electric
power; (D) the facility will generate electricity by using any
withdrawals, diversions, releases, or flows from the associated
qualifying nonpowered dam, including its associated impoundment or
other infrastructure; and (E) the operation of the facility will not
result in any material change to the storage, release, or flow
operations of the associated qualifying nonpowered dam.
11. Section 34(e)(2) defines ``qualifying facility'' as any
facility that is determined to meet the ``qualifying criteria'' under
section 34(e)(1).
12. Section 34(e)(3) defines ``qualifying nonpowered dam'' as any
dam, dike, embankment, or other barrier, constructed on or before
October 23, 2018, that is or was operated for the control, release, or
distribution of water for agricultural, municipal, navigational,
industrial, commercial, environmental, recreational, aesthetic,
drinking water, or flood control purposes, and that, as of October 23,
2018, is not generating electricity with hydropower generating works
licensed under, or exempted from, the license requirements of Part I of
the FPA.
b. Closed-Loop Pumped Storage Projects
13. Section 35(g)(1) mandates that the Commission establish
criteria that a pumped storage project must meet in order to qualify as
a closed-loop pumped storage project eligible for the expedited
process. In defining the criteria to qualify as an eligible closed-loop
pumped storage project, section 35(g)(2) requires that the Commission
include criteria that the pumped storage project cause little to no
change to existing surface and groundwater flows and uses, and is
unlikely to adversely affect species listed as a threatened species or
endangered species under the Endangered Species Act of 1973 (ESA).\5\
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\5\ 16 U.S.C. 1531-1544 (2012).
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2. FERC-Defined Criteria for Expedited Process
14. In addition to complying with the license application
requirements set forth in part 4, subparts D to H and part 5 of the
Commission's regulations, an application filed with a request for
authorization to use the expedited licensing process must include
documentation of consultation. Through experience and the
implementation of the pilot two-year licensing process,\6\ Commission
staff has determined that this consultation, and documentation thereof,
will best ensure that the Commission will be able to act on a completed
license application within two years from the date it is received. As
described below, this documentation of consultation must be filed
concurrently with the license application and the request for
authorization to use the expedited licensing process.
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\6\ See FERC, Report on the Pilot Two-Year Pilot Hydroelectric
Licensing Process For Non-Powered Dams and Closed-Loop Pumped
Storage Projects and Recommendations Pursuant to Section 6 of the
Hydropower Regulatory Efficiency Act of 2013 (May 31, 2017), https://www.ferc.gov/legal/staff-reports/2017/final-2-year-process.pdf
(Pilot Two-Year Licensing Report).
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a. Clean Water Act
15. Under section 401(a)(1) of the Clean Water Act (CWA), the
Commission may not issue a license authorizing the construction or
operation of a hydroelectric project that results in a discharge into
the navigable waters of the United States unless the state water
quality certifying agency either has issued water quality certification
for the project or has waived certification by failing to act on a
request for certification within a reasonable period of time, not to
exceed one year.\7\ Section 401(d) of the CWA provides that the water
quality certification shall become a condition of the license.\8\
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\7\ See 33 U.S.C. 1341(a)(1) (2012).
\8\ Id. 1341(d).
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16. Under the Commission's existing licensing processes, an
applicant 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 no later than 60 days from the date that
the Commission issues public notice accepting an application for filing
and finding it ready for environmental analysis.\9\ The Commission's
Pilot Two-Year Licensing Report noted that all projects licensed within
two years either received a water quality certification or a waiver
within one year of the applicant's request.\10\
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\9\ See 18 CFR 4.34(b)(5) and 5.23(b) (2018).
\10\ Pilot Two-Year Licensing Report at 42. As part of the Pilot
Two-Year Licensing Report, Commission staff examined the processing
times for 83 projects that completed prefiling activities and were
issued original licenses or small hydropower exemptions between 2003
and 2016. During this period, 23 projects (i.e., 28 percent) were
licensed within two years from the filing of a Notice of Intent to
file a license application and a pre-application document.
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[[Page 2472]]
17. To increase the likelihood that a license application can be
acted on within two years, the Commission proposes to require an
applicant to submit, at the time of application filing, a copy of the
applicant's request for certification under section 401(a)(1) of the
CWA, including proof of the date on which the certifying agency
received the request, and: (i) A copy of the water quality
certification, (ii) evidence of waiver of water quality certification,
or (iii) documentation from the state certifying agency that no
additional information is needed to complete the water quality
certification application.
b. ESA
18. Section 7(a)(2) of the ESA requires the Commission to ensure
that its actions are not likely to jeopardize the continued existence
of federally-listed threatened or endangered species, or result in the
destruction or adverse modification of designated critical habitat of
such species.\11\ The Commission, in determining what protective
measures to incorporate into a license, must consult with the U.S. Fish
and Wildlife Service (FWS) or the National Marine Fisheries Service
(NMFS), as applicable. The length of this consultation process varies
based on the Commission's determination of effect on a federally-listed
species or its critical habitat.\12\
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\11\ See 16 U.S.C. 1536 (2012).
\12\ For example, if the Commission determines that its actions
will have no effect on a listed species or habitat, no further
consultation is required. If the Commission determines that its
action is not likely to adversely affect a listed species or its
habitat, Commission staff will seek concurrence from FWS or NMFS. If
FWS or NMFS agrees with the Commission's determination, consultation
is complete once the appropriate service provides a letter of
concurrence. However, if FWS or NMFS does not agree with the
Commission's finding that its action is not likely to adversely
affect a federally listed species or its critical habitat or if the
Commission determines its action is likely to adversely affect a
federally-listed species or its critical habitat, formal
consultation is required under section 7 of the ESA.
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19. Under the Commission's current licensing processes, the
Commission issues its effect determination as part of the National
Environmental Policy Act of 1969 (NEPA) \13\ document prepared on the
license application. The NEPA document is used as the Commission's
biological assessment on listed species for ESA consultation purposes.
The Commission's Pilot Two-Year Licensing Report found that seventy
percent (i.e., 16 of 23) of projects licensed in two years or less
required no consultation under the ESA.\14\ In addition, the report
found that of the seven projects that required ESA consultation, all of
the consultations were completed in less than 48 days.\15\
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\13\ 42 U.S.C. 4321 et seq. (2012).
\14\ Pilot Two-Year Licensing Report at 43.
\15\ Id.
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20. To increase the likelihood that an expedited license
application may be acted on within two years, the Commission proposes
to require that any application filed with a request for authorization
to use the expedited licensing process include: (i) A no-effect
determination that includes documentation that no listed species or
critical habitat are present at the proposed project site; (ii)
documentation of concurrence from FWS and NMFS, as necessary, on a not
likely to adversely affect determination; or (iii) a draft biological
assessment that includes documentation of consultation with FWS and
NMFS, as necessary.
21. New FPA sections 34 and 35 do not refer to the critical habitat
of listed species. However, if there were critical habitat that would
likely be adversely affected by a proposed project, formal ESA
consultation would be required, which may make it difficult to issue a
license within a two-year period. Accordingly, the documentation
referred to above must cover not only listed species but also their
critical habitat.
22. Moreover, FPA section 35(g)(1) is silent on whether a closed-
loop pumped storage project would be eligible for the expedited
licensing process if it were to result in adverse effects to habitat
designated as critical habitat under the ESA. Because the AWIA does not
alter the ESA and ESA section 7(a)(2) also requires the Commission to
ensure that its actions are not likely to result in the destruction or
adverse modification of designated critical habitat of such
species,\16\ we propose to include in the qualifying criteria for
closed-loop pumped storage projects the requirement that the proposed
project is not likely to adversely affect threatened or endangered
species, or habitat designated as critical habitat, under the ESA.
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\16\ 16 U.S.C. 1536(a)(2) (2012).
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c. National Historic Preservation Act
23. Under section 106 of the National Historic Preservation Act
(NHPA) \17\ and its implementing regulations,\18\ the Commission must
take into account the effect of any proposed undertaking on properties
listed or eligible for listing in the National Register of Historic
Places and afford the Advisory Council on Historic Preservation a
reasonable opportunity to comment on the undertaking.
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\17\ 54 U.S.C. 306108 (2012).
\18\ 36 CFR pt. 800 (2018).
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24. To increase the likelihood that an expedited license
application may be acted on within two years, the Commission proposes
to require an applicant to provide, at the time of application filing,
documentation that section 106 consultation has been initiated with the
relevant State Historic Preservation Officer(s) and any Indian Tribes
identified as having an interest in the proposed project. This
requirement does not differ from requirements in our current
regulations.
d. Dam Owner Documentation
25. For projects at existing nonpowered dams, the Commission
proposes to require an applicant to provide, at the time of application
filing, documentation verifying consultation with the owner of the dam
and the results of the consultation. For a proposal at a non-federal
nonpowered dam, the applicant would be required to provide
documentation of consultation with the non-federal dam owner, including
confirmation that the non-federal dam owner does not oppose the project
development. For a proposal at a federal nonpowered dam, the applicant
would be required to provide documentation from the federal dam owner
confirming that non-federal hydropower is not precluded at the proposed
location and that the federal owner does not oppose project
development. This documentation and confirmation requirement seeks to
ensure that applicants discuss the project proposal with dam owners
early in the process to verify that there are no issues that would
preclude the Commission from authorizing a hydropower project at the
dam or would require an applicant to significantly amend its proposal.
Substantial amendments to a license application, especially when made
late in the licensing process, decrease the likelihood that the
application could be acted on in two years.
e. Public Parks, Recreation Areas, and Wildlife Areas
26. Section 21 of the FPA, as amended by the Energy Policy Act of
1992,\19\ limits the use of eminent domain to acquire any lands
included within any public park, recreation area, or wildlife refuge
established under state or local
[[Page 2473]]
law.\20\ Waiting until after a license application is filed to identify
a proposal for a project that uses any public park, recreation area, or
wildlife refuge in a manner that would be acceptable to the managing
entity could extend the license application processing time and
decrease the likelihood of meeting the two-year target. Therefore, if
the proposed project would use any public park, recreation area, or
wildlife refuge established under state or local law, the Commission
proposes to require an applicant to provide, at the time of application
filing, documentation from the managing entity demonstrating that it is
not opposed to use of the park, recreation area, or wildlife refuge for
hydropower development.
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\19\ Public Law 102-486, 106 Stat. 2776 (1992).
\20\ 16 U.S.C. 814 (2012).
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B. Expedited Licensing Process
27. As directed by FPA sections 34 and 35, the Commission is
proposing an expedited licensing process for qualifying facilities at
nonpowered dams and for closed-loop pumped storage projects. The
proposed regulations, if enacted, will be codified as part 7 of the
Commission's regulations.
1. Section 7.1--Applicability and Definitions
28. Proposed Sec. 7.1 explains that the expedited licensing
process would be restricted to applicants that apply for and receive
authorization to use the process. Unless superseded by the expedited
licensing process regulations, the Commission's existing regulations
governing license applications would also apply to license applications
filed pursuant to part 7. This section also defines the following key
terms used throughout this proposed part: ``qualifying nonpowered
dam,'' ``qualifying facility,'' and ``closed-loop pumped storage
project.'' Finally, proposed Sec. 7.1 explains that an applicant under
part 7 may elect to use any of the Commission's three licensing
processes: the ILP,\21\ the TLP,\22\ or the ALP.\23\
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\21\ 18 CFR pt. 5 (2018).
\22\ Id. pt. 4, subpts. D-H.
\23\ Id. 4.34(i).
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2. Section 7.2--Use of Expedited Licensing Process
29. Proposed Sec. 7.2 explains that an applicant must submit a
request for authorization to use the expedited licensing process.
Proposed Sec. 7.2(b) identifies the information that must be included
in any original license application that accompanies a request to use
the expedited licensing process. The information pertains to the design
and environmental criteria statutorily mandated by sections 34 and 35
of the FPA, as well as the early consultation documentation described
above in section II.A (Eligibility Criteria).
3. Section 7.3--Adequacy Review of Application
30. Proposed Sec. 7.3 describes how Commission staff will conduct
an adequacy review of an application submitted under part 7. Commission
staff will review a license application that is accompanied by a
request to use the expedited licensing process under part 4 (TLP or
ALP) or part 5 (ILP) of the Commission's regulations, depending on the
applicant's elected licensing process. If the application is deemed
deficient and rejected under part 4 or 5, the request to use the
expedited licensing process will likewise be rejected.
4. Section 7.4--Additional Information
31. Proposed Sec. 7.4 states that an applicant under part 7 may be
required to submit additional information or documentation to the
Commission in the form and time frame prescribed by the Commission. The
Commission may also require the applicant to submit copies of the
application or other filed materials to any person, agency, Indian
Tribe, or other entity specified by the Commission. Failure to provide
the requested information or documentation as specified may result in
dismissal of the license application.
5. Section 7.5--Decision on Request To Use Expedited Licensing Process
32. Proposed Sec. 7.5 explains that the Director of the Office of
Energy Projects (Director) will act on the request to use the expedited
licensing process within six months from the date of application
filing. If Commission staff is unable to find that the application
meets the requirements of parts 4, 5, and 7, all deficiencies have been
cured, and no additional information is required, the Director will
deny the request to use the expedited licensing process. If the
expedited licensing request is denied, proposed Sec. 7.5 explains that
the license application will be processed pursuant to a standard
processing schedule under parts 4 or 5 of the Commission's regulations,
as appropriate.
6. Section 7.6--Notice of Acceptance and Ready for Environmental
Analysis
33. If the Director approves the request to use the expedited
licensing process, proposed Sec. 7.6 describes the components of the
public notice that the Commission will issue no later than six months
after the date of application filing. The notice will accept the
application and confirm the acceptance date as the application filing
date; find the application ready for environmental analysis; request
comments, protests, and interventions; request recommendations,
preliminary terms and conditions, and preliminary fishway
prescriptions; and establish a schedule for the application's expedited
processing.
34. The expedited licensing process schedule will include the
estimated dates for: (i) The filing of recommendations, preliminary
terms and conditions, and fishway prescriptions; (ii) issuance of the
draft NEPA document, or an environmental assessment not preceded by a
draft; (iii) filing of responses, if applicable, to Commission staff's
request for ESA concurrence or request for formal consultation under
ESA, or to other Commission staff requests to federal and state
agencies, or Indian Tribes under other federal laws, including the
Magnuson-Stevens Fishery Conservation and Management Act \24\ and the
NHPA; (iv) filing of comments on a draft NEPA document, if applicable;
(v) filing of modified recommendations, mandatory terms and conditions,
and fishway prescriptions in response to a draft NEPA document or, if
no draft NEPA document is issued, to an environmental assessment; and
(vi) issuance of a final NEPA document, if applicable.
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\24\ 16 U.S.C. 1801 et seq. (2012).
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7. Section 7.7--Amendment of Application
35. Proposed Sec. 7.7 prescribes the requirements for an
application that proposes to amend a pending application filed under
the expedited licensing process, after the Commission has already
issued a notice of acceptance and ready for environmental analysis for
the application. This section also explains the right of an agency,
Indian Tribe, and member of the public to modify its previously-
submitted recommendations or terms and conditions or prescriptions if
an applicant files, and the Commission accepts, an amendment to the
application that would materially change the proposed project's plans
of development.
8. Section 7.8--Other Provisions
36. Proposed Sec. 7.8 authorizes the Director to waive or modify
provisions of this part for good cause. The Commission may consider
late-filed
[[Page 2474]]
recommendations by authorized fish and wildlife agencies under the Fish
and Wildlife Coordination Act \25\ and FPA section 10(j),\26\ and late-
filed FPA section 4(e) \27\ terms and conditions or FPA section 18 \28\
prescriptions as cause to remove the application from the expedited
licensing process under this part.
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\25\ 16 U.S.C. 661-666c (2012).
\26\ Id. 803(j).
\27\ Id. 797(e).
\28\ Id. 811.
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9. Section 7.9--Transition Provision
37. Proposed Sec. 7.9 provides that this part only applies to
original license applications filed on or after the effective date of
the final rule.
C. Key Issues and Goals for an Expedited Licensing Process
38. In addition to the structure and information requirements of
the expedited licensing process, the Commission requests comments on
certain issues, discussed below.
1. Definition of Closed-Loop Pumped Storage
39. Absent the inclusion requirement in FPA section 35(g)(2), FPA
section 35 does not define the term ``closed-loop pumped storage
project.'' The Commission's existing regulations also do not provide a
definition. In the past, the Commission or Commission staff has defined
closed-loop pumped storage projects as pumped storage projects that are
``not continuously connected to a naturally-flowing water feature.''
\29\ The Commission has also licensed five projects with proposed
operational features that could be considered to be closed-loop pumped
storage projects, depending on how the term is defined:
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\29\ See Wyco Power and Water, Inc., 139 FERC ] 61,124, at n.11
(2012) (providing the definition in an order denying rehearing of a
dismissed preliminary permit). See generally FERC, Pumped Storage
Projects, https://www.ferc.gov/industries/hydropower/gen-info/licensing/pump-storage.asp. See also Pilot Two-Year Licensing Report
at 7.
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The Eagle Mountain Pumped Storage Hydroelectric Project
No. 13123: A closed-loop pumped storage project that will rely on
groundwater wells to provide the project's initial reservoir fill and
future replenishment.\30\ Construction of the project has not
commenced.
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\30\ See Eagle Crest Energy Co., 147 FERC ] 61,220 (2014).
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The Gordon Butte Pumped Storage Project No. 13642: A
closed-loop pumped storage project that will use an existing,
privately-owned irrigation system connected to Cottonwood Creek to
supply initial reservoir fill and future replenishment due to
evaporation loss.\31\ Construction of the project has not commenced.
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\31\ See GB Energy Park, LLC, 157 FERC ] 62,196 (2016).
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The Summit Pumped Storage Hydroelectric Project No. 9423:
A pumped storage facility that would have used off-stream reservoirs
filled by a municipal water supply.\32\ The license was terminated for
failure to commence timely construction.\33\
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\32\ Summit Energy Storage, Inc., 55 FERC ] 62,026 (1991).
\33\ Summit Energy Storage, Inc., 95 FERC ] 62,035 (2001).
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The Mount Hope Pumped Storage Project Nos. 9401, 8595,
9105: A pumped storage facility that was to be located at a rock quarry
site, with fill water supplied by water from an abandoned iron
mine.\34\ The license was terminated for failure to commence timely
construction.\35\
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\34\ Halecrest Co., 60 FERC ] 61,121 (1992).
\35\ Mt. Hope Waterpower Project, LLP, 113 FERC ] 61,258 (2005).
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The Blue Diamond Pumped Storage Project No. 10756: A
pumped storage facility with off-stream reservoirs that were dependent
on the local water district for the initial fill and future
replenishment.\36\ The license was terminated for failure to commence
timely construction.\37\
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\36\ Blue Diamond South Pumped Storage Power Co., Inc., 79 FERC
] 62,184 (1997).
\37\ Blue Diamond South Pumped Storage Power Co., Inc., 112 FERC
] 62,110 (2005).
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40. In addition, the Commission is currently reviewing an
application for an original license for the Mineville Energy Storage
Project No. 12635, a pumped storage project that would include
facilities located in a decommissioned mine, and an application for an
original license for the Swan Lake North Pumped Storage Project No.
13318, a pumped storage project near Klamath Falls, Oregon. Both
proposals would rely on groundwater for initial reservoir fill.\38\
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\38\ See Moriah Hydro Corporation's February 13, 2015
Application at 17-18; Exhibit A of Swan Lake North Hydro LLC's
October 28, 2015 Application at A-19.
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41. Based on a review of these licenses and related applications,
the Commission proposes to retain the Commission's previous definition
of a closed-loop pumped storage project (i.e., a pumped storage project
that is not continuously connected to a naturally-flowing water
feature). We encourage comments on the proposed definition, including
proposals for alternative definitions and discussion of how terms in
the definition, such as ``continuously connected,'' should be
construed.
2. License Amendments
42. FPA sections 34(a)(1) and 35(a)(1) give the Commission
discretion to amend licenses, as appropriate, for any facility that the
Commission determines is a qualifying facility. As part of this
rulemaking, the Commission is required to establish an expedited
process for amending licenses for qualifying facilities. FPA sections
34(a)(4) and 35(a)(4) specifically define the expedited process for
license applications as a two-year process for the Commission to issue
a final decision on a license application once it receives a completed
license application. The amended statute, however, is silent on the
length of time to process applications to amend licenses.
43. Any change to an issued license is considered a license
amendment, and proposed amendments can vary greatly in type and
complexity. A simple amendment might consist of changing the frequency
of fish passage monitoring, whereas a complex amendment might include
building a new dam or powerhouse or changing a project's basic mode of
operation.
44. Over the last five fiscal years, Commission staff has reviewed
and processed over 18,000 post-license related filings, approximately
7,500 of which were considered amendment-related filings. Ninety-eight
percent of these 7,500 filings resulted in the issuance of a Commission
final decision within two years from receipt of the filing. Because the
Commission already processes the vast majority of amendments within two
years, the Commission proposes to process applications to amend
licenses for projects located at qualifying nonpowered dam and for
closed-loop pumped storage projects under the Commission's existing
regulations for amendments in 18 CFR part 4, subpart L.
3. Projects That Require the Preparation of an EIS
45. When the Commission believes a proposed project may not be a
major federal action significantly affecting the quality of the human
environment, the Commission may first prepare an environmental
assessment to determine whether an EIS needs to be prepared.\39\
However, Sec. 380.6(a)(4) of the Commission's regulations identifies
licenses of any unconstructed water power project as a category of
project that will normally require the preparation of an EIS.\40\
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\39\ 18 CFR 380.6(b) (2018).
\40\ Id. 380.6(a)(4).
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[[Page 2475]]
46. Because the preparation of an EIS typically involves projects
that are more complex, thereby requiring more resources from all
involved stakeholders and Commission staff, the Commission requests
comment on whether the two-year expedited licensing process should be
available to proposed projects that would require the Commission to
prepare an EIS.
47. Additionally, then FERC Chairman McIntyre signed a Memorandum
of Understanding Implementing One Federal Decision Under Executive
Order 13807,\41\ in which the Commission committed to completing within
an average of two years all environmental reviews and authorization
decisions for ``major infrastructure projects,'' \42\ starting from the
date the Commission publishes a Notice of Intent to prepare an EIS and
ending with the issuance of a final order.\43\ Projects that are
authorized for expedited processing and qualify as ``major
infrastructure projects,'' will be designated under both programs.
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\41\ Establishing Discipline and Accountability in the
Environmental Review and Permitting Process for Infrastructure
Projects, Exec. Order No. 13,807, 82 FR 40,463 (Aug. 15, 2017).
\42\ A major infrastructure project is defined as an
infrastructure project for which multiple authorizations by Federal
agencies will be required to proceed with construction, the lead
Federal agency has determined that it will prepare an EIS, and the
project sponsor has identified the reasonable availability of funds
sufficient to complete the project. Id. 3(e).
\43\ Memorandum of Understanding Implementing the One Federal
Decision under Executive Order 13807, https://www.ferc.gov/legal/mou/2018/MOU-One-Federal-Decision.pdf.
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III. Regulatory Requirements
A. Information Collection Statement
48. The Paperwork Reduction Act \44\ requires each federal agency
to seek and obtain the Office of Management and Budget's (OMB) approval
before undertaking a collection of information directed to ten or more
persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection
requirements contemplated by proposed rules.\45\ Upon approval of a
collection of information, OMB will assign an OMB control number and an
expiration date. Respondents subject to the filing requirements of a
rule will not be penalized for failing to respond to the collection of
information unless the collection of information displays a valid OMB
control number.
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\44\ 44 U.S.C. 3501-3521 (2012).
\45\ See 5 CFR 1320.11 (2018).
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49. Public Reporting Burden: In this NOPR, the Commission proposes
to establish an expedited process for issuing original licenses for
qualifying facilities at nonpowered dams and for closed-loop pumped
storage projects, as directed by Congress in the AWIA.
50. This proposed rule would modify certain reporting and
recordkeeping requirements included in FERC-500A \46\ (OMB Control No.
TBD) \47\ and FERC-505 (OMB Control No. 1902-0115).\48\
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\46\ The new reporting requirements and burden that would
normally be submitted to OMB under FERC-500 (OMB Control No 1902-
0058) will be submitted under a ``placeholder'' information
collection number (FERC-500A). FERC-500 is currently under OMB
review for an unrelated FERC activity.
\47\ FERC-500A includes the reporting and recordkeeping
requirements for ``Application for License/Relicense for Water
Projects with More than 5 Megawatt (MW) Capacity.''
\48\ FERC-505 includes the reporting and recordkeeping
requirements for ``Small Hydropower Projects and Conduit Facilities
including License/Relicense, Exemption, and Qualifying Conduit
Facility Determination.''
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51. The proposed revisions to the Commission's regulations,
associated with the FERC-500A and FERC-505 information collections, are
intended to comply with the requirements of the AWIA. While the
information to be included in the license application and the required
federal and state authorizations would remain the same under the
expedited licensing process, consultation documentation regarding these
authorizations will need to be submitted to the Commission at an
earlier point in the licensing process. Therefore, preparing the
request to use the expedited licensing process would represent a slight
increase in the reporting requirements and burden information for FERC-
500A and FERC-505.
52. The estimated burden and cost for the requirements contained in
this NOPR follow.
Annual Changes Proposed by the NOPR in Docket No. RM19-6-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of
Number of responses \49\ Total number Average burden hours & cost per Total annual burden hours &
respondents per respondent of responses response \50\ total annual cost
(1) (2) (1) x (2) = (4).............................. (3) x (4) = 5
(3)
--------------------------------------------------------------------------------------------------------------------
FERC-500A.......................... \51\ 5 1 5 40; $3,160....................... 200 hrs.; $15,800.
FERC-505........................... \52\ 5 1 5 40 hrs.; $3,160.................. 200 hrs.; $15,800.
--------------------------------------------------------------------------------------------------------------------
Total.......................... .............. .............. 10 ................................. 400 hrs.; $31,600
--------------------------------------------------------------------------------------------------------------------------------------------------------
53. Titles: FERC-500A (Application for License/Relicense for Water
Projects with More than 5 Megawatt (MW) Capacity) and FERC-505 (Small
Hydropower Projects and Conduit Facilities including License/Relicense,
Exemption, and Qualifying Conduit Facility Determination).
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\49\ We consider the filing of an application to be a
``response.''
\50\ The estimates for cost per response are derived using the
following formula: Average Burden Hours per Response * $79 per Hour
= Average Cost per Response.
The hourly cost figure of $79 is the 2018 average FERC employee
wage plus benefits. Commission staff assumes that respondents earn
at a similar rate to FERC employees.
\51\ After implementation of this rule, we estimate five
applications for closed-loop pumped storage projects will be filed,
alongside a request to use the expedited licensing process, per
year. We estimate that all of these applications will be for
projects with more than 5 MW capacity.
\52\ After implementation of this rule, we estimate five
applications for qualifying facilities at existing nonpowered dams
will be filed, alongside a request to use the expedited licensing
process, per year. We estimate that all of these applications will
be for projects with 5 MW or less capacity.
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54. Action: Revisions to information collections FERC-500A and
FERC-505.
55. OMB Control Nos.: TBD (FERC-500A) and 1902-0115 (FERC-505).
56. Respondents: Municipalities, businesses, private citizens, and
for-profit and not-for-profit institutions.
57. Frequency of Information: Ongoing.
58. Necessity of Information: The revised regulations implement the
AWIA's directive to establish an expedited licensing process for two
types of hydropower projects--qualifying facilities at existing
[[Page 2476]]
nonpowered dams and closed-loop pumped storage projects. The revised
regulations would affect only the number of entities that would file
applications with the Commission for these two project types, and would
impose a new, albeit slight, information collection requirement.
59. The new requirement for an applicant interested in using the
expedited process to file a request for authorization to use the
expedited process concurrently with its license application is
necessary for the Commission to carry out its responsibilities under
the FPA, as amended by the AWIA. The information provided to the
Commission enables the Commission to review the features of the
proposed project and make a determination on whether the proposed
project meets the statutory criteria enumerated in the AWIA, as well as
the early consultation requirements that the Commission has determined
will help it seek to ensure that the proposed project's license
application will be acted on no later than two years after the date of
application filing.
60. Internal Review: The Commission has reviewed the proposed
revisions and has determined that they are necessary. These
requirements conform to the Commission's need for efficient information
collection, communication, and management within the energy industry.
The Commission has assured itself, by means of internal review, that
there is specific, objective support for the burden estimates
associated with the information collection requirements.
61. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown,
Office of the Executive Director], by email to [email protected],
by phone (202) 502-8663, or by fax (202) 273-0873.
62. Comments concerning the collections of information and the
associated burden estimates may also be sent to: Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street NW, Washington, DC 20503 [Attention: Desk Officer for the
Federal Energy Regulatory Commission]. Due to security concerns,
comments should be sent electronically to the following email address:
[email protected]. Comments submitted to OMB should refer to
FERC-500A (OMB Control No. TBD) and FERC-505 (OMB Control No. 1902-
0115).
B. Environmental Analysis
63. The Commission is required to prepare an environmental
assessment or an EIS for any action that may have a significant adverse
effect on the human environment.\53\ The Commission has categorically
excluded certain actions from this requirement as not having a
significant effect on the human environment. Excluded from this
requirement are rules that are clarifying, corrective, or procedural,
or that do not substantially change the effect of legislation or the
regulations being amended.\54\ This proposed rule proposes to establish
an expedited licensing process for qualifying facilities at nonpowered
dams and for closed-loop pumped storage projects, as directed by
Congress in the AWIA. Because this proposed rule is procedural in
nature and does not substantially change the effect of the underlying
legislation, preparation of an environmental assessment or EIS is not
required.
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\53\ Regulations Implementing the National Environmental Policy
Act, Order No. 486, FERC Stats. & Regs. ] 30,783 (1987) (cross-
referenced at FERC ] 61,284).
\54\ 18 CFR 380.4(a)(2)(ii) (2018).
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C. Regulatory Flexibility Act
64. The Regulatory Flexibility Act of 1980 (RFA) \55\ generally
requires a description and analysis of proposed rules that will have
significant economic impact on a substantial number of small entities.
The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a proposed rule and minimize any
significant economic impact on a substantial number of small
entities.\56\ In lieu of preparing a regulatory flexibility analysis,
an agency may certify that a proposed rule will not have a significant
economic impact on a substantial number of small entities.\57\
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\55\ 5 U.S.C. 601-612 (2012).
\56\ Id. 603(c).
\57\ Id. 605(b).
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65. The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business.\58\
The SBA size standard for electric utilities is based on the number of
employees, including affiliates.\59\ Under SBA's current size
standards, a hydroelectric power generator (NAICS code 221111) \60\ is
small if it, including its affiliates, employs 500 or fewer people.\61\
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\58\ 13 CFR 121.101 (2018).
\59\ Id. 121.201.
\60\ The North American Industry Classification System (NAICS)
is an industry classification system that Federal statistical
agencies use to categorize businesses for the purpose of collecting,
analyzing, and publishing statistical data related to the U.S.
economy. United States Census Bureau, North American Industry
Classification System, https://www.census.gov/eos/www/naics/.
\61\ 13 CFR 121.201 (2018) (Sector 22--Utilities).
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66. If enacted, this proposed rule would directly affect only those
entities that file an application for a qualifying facility at a
nonpowered dam or for a closed-loop pumped storage project, and a
request to use the expedited licensing process. While the information
to be included in the licensing application and the required federal
and state authorizations would remain the same, documentation regarding
these authorizations will need to be submitted at an earlier point in
the licensing process. Therefore, preparing a request to use the
expedited licensing process would represent a slight increase (40 hours
of reporting burden and corresponding wage costs of $3,160 per entity
on an annual basis) in the information collection reporting
requirements and burden for FERC-500A and FERC-505. However, we do not
anticipate the impact of the proposed rule on affected entities,
regardless of their status as a small entity or not, to be significant.
67. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
D. Comment Procedures
68. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice to be adopted, including
any related matters or alternative proposals that commenters may wish
to discuss. Comments are due March 11, 2019. Comments must refer to
Docket No. RM19-6-000, and must include the commenters' name, the
organization they represent, if applicable, and their address.
69. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
70. Commenters that are not able to file comments electronically
must send an original of their comments to: Federal Energy Regulatory
Commission, Secretary of the Commission, 888 First Street NE,
Washington, DC 20426.
[[Page 2477]]
71. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
E. Document Availability
72. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A,
Washington, DC 20426.
73. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number, excluding the last three digits of this document, in
the docket number field.
74. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
List of Subjects in 18 CFR Part 7
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
By direction of the Commission.
Issued: January 31, 2019.
Kimberly D. Bose,
Secretary.
0
In consideration of the foregoing, the Commission proposes to add part
7, chapter I, title 18, Code of Federal Regulations, as follows:
PART 7--EXPEDITED LICENSING PROCESS FOR QUALIFYING NON-FEDERAL
HYDROPOWER PROJECTS AT EXISTING NONPOWERED DAMS AND FOR CLOSED-LOOP
PUMPED STORAGE PROJECTS
Sec.
7.1 Applicability and Definitions.
7.2 Use of Expedited Licensing Process.
7.3 Adequacy Review of Application.
7.4 Additional Information.
7.5 Decision on Request To Use Expedited Licensing Process.
7.6 Notice of Acceptance and Ready for Environmental Analysis.
7.7 Amendment of Application.
7.8 Other Provisions.
7.9 Transition Provision.
Authority: 16 U.S.C. 791a-825r; Pub. L. 115-270, 132 Stat.
3765.
Sec. 7.1 Applicability and definitions.
(a) This part applies to the processing of applications for
original licenses for qualifying non-federal hydropower projects at
existing nonpowered dams and for closed-loop pumped storage projects
pursuant to sections 34 and 35 of the Federal Power Act.
(b) Applicability of Existing Regulations. Except where superseded
by the expedited licensing process set forth in this part, the
regulations governing license applications under parts 4 and 5 of this
chapter, as applicable, also apply to license applications filed under
this part.
(c) Definitions. The definitions in Sec. 4.30(b) of this chapter
apply to this part. In addition, for the purposes of this part-
(1) Qualifying nonpowered dam means any dam, dike, embankment, or
other barrier-
(i) The construction of which was completed on or before October
23, 2018;
(ii) That is or was operated for the control, release, or
distribution of water for agricultural, municipal, navigational,
industrial, commercial, environmental, recreational, aesthetic,
drinking water, or flood control purposes; and
(iii) That, as of October 23, 2018, was not generating electricity
with hydropower generating works that were licensed under, or exempted
from the license requirements contained in, Part I of the Federal Power
Act.
(2) Qualifying facility means a facility that is determined under
section 34 of the Federal Power Act to meet the qualifying criteria for
non-federal hydropower projects at existing nonpowered dams.
(3) Closed-loop pumped storage project means a pumped storage
project that is not continually connected to a naturally-flowing water
feature.
(d) Who may file. Any citizen, association of citizens, domestic
corporation, municipality, or state that develops and files a license
application under 18 CFR parts 4 and 5, as applicable, may request
expedited processing under this part.
(e) Use of expedited licensing process. An applicant wishing to use
this expedited licensing process must apply for and receive
authorization from the Commission under this part. An applicant under
this part may elect to use the licensing process provided for in 18 CFR
part 5 (i.e., integrated license application process), or as provided
under Sec. 5.1 of this chapter:
(1) 18 CFR part 4, subparts D-H (i.e., traditional process); or
(2) Sec. 4.34(i) of this chapter, Alternative procedures.
Sec. 7.2 Use of Expedited Licensing Process.
(a) In order to pursue the expedited licensing process, an
applicant must request authorization for the expedited process, as
provided for in paragraph (b) of this section. The licensing procedures
in this part do not apply to an application for a new or subsequent
license.
(b) An application that accompanies a request for authorization to
use the expedited licensing process must include the information
specified below.
(1) Section 34 of the Federal Power Act Qualification--Projects at
Nonpowered Dams. The application must demonstrate that the proposed
facility meets the following qualifications pursuant to section 34(e)
of the Federal Power Act:
(i) As of October 23, 2018, the proposed hydropower facility was
not licensed under or exempted from the license requirements contained
in Part I of the Federal Power Act;
(ii) The facility will be associated with a qualifying nonpowered
dam;
(iii) The facility will be constructed, operated, and maintained
for the generation of electric power;
(iv) The facility will use for such generation any withdrawals,
diversions, releases, or flows from the associated qualifying
nonpowered dam, including its associated impoundment or other
infrastructure; and
(v) The operation of the facility will not result in any material
change to the storage, release, or flow operations of the associated
qualifying nonpowered dam.
(2) Section 35 of the Federal Power Act Qualification--Closed-Loop
Pumped Storage Projects. The application must demonstrate that the
proposed closed-loop pumped storage project meets the following
qualifications pursuant to section 35(g)(2) of the Federal Power Act:
(i) The project will cause little to no change to existing surface
and groundwater flows and uses, and
(ii) The project is not likely to adversely affect species listed
as a threatened species or endangered species, or designated critical
habitat of such species, under the Endangered Species Act of 1973.
[[Page 2478]]
(3) Section 401 of the Clean Water Act. The application must
include a copy of a request for certification under section 401(a)(1)
of the Clean Water Act, including proof of the date on which the
certifying agency received the request; and
(i) A copy of the water quality certification;
(ii) Evidence of waiver of water quality certification. A
certifying agency is deemed to have waived the certification
requirements of section 401(a)(1) of the Clean Water Act if the
certifying agency has not denied or granted certification by one year
after the date the certifying agency received a written request for
certification; or
(iii) Documentation from the state certifying agency that the water
quality certification application is complete. If a certifying agency
denies certification, the applicant must file a copy of the denial
within 30 days after the applicant receives it.
(4) Endangered Species Act (ESA). The application must include:
(i) A no-effect determination that includes documentation that no
listed species or critical habitat are present at the proposed project
site;
(ii) Documentation of concurrence from the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service (Service(s)), as
necessary, on a not likely to adversely affect determination; or
(iii) A draft Biological Assessment that includes documentation of
consultation with the Service(s).
(5) Section 106 of the National Historic Preservation Act.
Documentation that section 106 consultation has been initiated with the
state historic preservation officer(s) and any Indian Tribes identified
as having an interest in the project.
(6) Dam Owner Documentation. For projects to be located at existing
nonpowered dams:
(i) Documentation of consultation with any nonfederal owner of the
nonpowered dam if the applicant is not the owner and confirmation that
the owner is not opposed to a hydropower development at the location;
or
(ii) Documentation from the federal entity that non-federal
hydropower development is not precluded at the proposed location and
confirmation that the federal entity is not opposed to a hydropower
development at the location.
(7) Public Parks, Recreation Areas, and Wildlife Refuges. If the
project would use any public park, recreation area, or wildlife refuge
established under state or local law, documentation from the managing
entity indicating it is not opposed to the site's use for hydropower
development.
Sec. 7.3 Adequacy Review of Application.
(a) Adequacy Review of License Applications. Review of the original
license application for which expedited processing under this part is
requested will be conducted pursuant to 18 CFR part 4 or 5, as
applicable.
(b) Deficient License Applications. If an original license
application for which expedited processing is requested under this part
is rejected under 18 CFR parts 4 and 5, as applicable, the request for
authorization for the expedited licensing process under this part is
deemed rejected.
Sec. 7.4 Additional information.
An applicant may be required to submit any additional information
or documentation that the Commission considers relevant for an informed
decision on the application for authorization under this part. The
information or documents must take the form, and must be submitted
within the time, that the Commission prescribes. An applicant may also
be required to provide within a specified time additional copies of the
application, or any of the additional information or documents that are
filed, to the Commission or to any person, agency, Indian Tribe or
other entity that the Commission specifies. If an applicant fails to
provide timely additional information, documents, or copies of
submitted materials as required, the Director of the Office of Energy
Projects (Director) may dismiss the application, hold it in abeyance,
or take other appropriate action under this chapter or the Federal
Power Act.
Sec. 7.5 Decision on request to use expedited licensing process.
When the Commission has determined that the original license
application meets the Commission's requirements as specified in 18 CFR
parts 4, 5, and this part; any deficiencies have been cured; and no
other additional information is needed, the Director will approve the
request to use the expedited licensing process under this part. If the
Commission cannot deem the application meets the Commission's
requirements as specified in 18 CFR parts 4, 5, and this part; has
deficiencies; or additional information is needed within 6 months of
application filing, the Director will deny the request to use the
expedited licensing process. If the Director denies the request to use
the expedited licensing process, the original license application will
be processed pursuant to a standard processing schedule under 18 CFR
parts 4 and 5, as applicable.
Sec. 7.6 Notice of acceptance and ready for environmental analysis.
If the Director approves the request to use the expedited licensing
process under Sec. 7.5, the Commission will issue a public notice as
required in the Federal Power Act, no later than 6 months after
application filing, that:
(a) Accepts the application for filing and specifies the date upon
which the application was accepted for filing;
(b) Finds that the application is ready for environmental analysis;
(c) Requests comments, protests, and interventions;
(d) Requests recommendations, preliminary terms and conditions, and
preliminary fishway prescriptions, including all supporting
documentation; and
(e) Establishes an expedited licensing process schedule, including
estimated dates for:
(1) Filing of recommendations, preliminary terms and conditions,
and fishway prescriptions;
(2) Issuance of a draft National Environmental Policy Act (NEPA)
document, or an environmental assessment not preceded by a draft;
(3) Filing of a response, as applicable, to Commission staff's
request for ESA concurrence or request for formal consultation under
the ESA, or responding to other Commission staff requests to Federal
and State agencies, or Indian Tribes pursuant to Federal law, including
the Magnuson-Stevens Fishery Conservation and Management Act and
National Historic Preservation Act;
(4) Filing of comments on the draft NEPA document, as applicable;
(5) Filing of modified recommendations, mandatory terms and
conditions, and fishway prescriptions in response to a draft NEPA
document or environmental assessment, if no draft NEPA document is
issued; and
(6) Issuance of a final NEPA document, if any.
Sec. 7.7 Amendment of application.
(a) Any proposed amendments to the pending license application
after issuance of the notice of acceptance and ready for environmental
analysis under this section must include:
(1) An amended or new section 401 of the Clean Water Act water
quality certification if the amendment would have a material adverse
impact on the water quality in the discharge from the proposed project;
and
(2) Updates to all other material submitted under Sec. 7.2(b)(1).
[[Page 2479]]
(b) If based on the information provided under paragraph (a) of
this section, the proposed project under the amended license
application no longer meets the requirements for expedited processing
under Sec. 7.2, the Director will notify the applicant that the
application will no longer be processed under the expedited licensing
process under this part and that further processing of the application
will proceed under 18 CFR parts 4 and 5, as applicable.
(c) If the Director approves the continued processing of the
amended application under this part and the amendment to the
application would materially change the project's proposed plans of
development, as provided in Sec. 4.35 of this chapter, an agency,
Indian Tribe, or member of the public may modify the recommendations or
terms and conditions or prescriptions it previously submitted to the
Commission pursuant to Sec. 7.6. Such modified recommendations, terms
and conditions, or prescriptions must be filed no later than the due
date specified by the Commission for comments on the amendment.
(d) Date of acceptance. The date of acceptance of an amendment of
application for an original license filed under this part is governed
by the provisions of Sec. 4.35 of this chapter.
Sec. 7.8 Other provisions.
(a) Except for provisions required by statute, the Director may
waive or modify any of the provisions of this part for good cause.
(b) Late-filed recommendations by fish and wildlife agencies
pursuant to the Fish and Wildlife Coordination Act and section 10(j) of
the Federal Power Act for the protection, mitigation of damages to, and
enhancement of fish and wildlife affected by the development,
operation, and management of the proposed project and late-filed terms
and conditions or prescriptions filed pursuant to sections 4(e) and 18
of the Federal Power Act, respectively, may be considered by the
Commission as cause to remove the application from the expedited
licensing process. If late-filed recommendations, terms and conditions,
or prescriptions would delay or disrupt the expedited licensing
proceeding, the Director will notify the applicant that the application
will no longer be processed under the expedited licensing process under
this part and that further processing of the application will proceed
under 18 CFR parts 4 and 5, as applicable.
(c) License conditions and required findings. (1) All licenses
shall be issued on the conditions specified in section 10 of the
Federal Power Act and such other conditions as the Commission
determines are lawful and in the public interest.
(2) Subject to paragraph (b) of this section, fish and wildlife
conditions shall be based on recommendations timely received from the
fish and wildlife agencies pursuant to the Fish and Wildlife
Coordination Act.
(3) The Commission will consider the timely recommendations of
resource agencies, other governmental units, and members of the public,
and the timely recommendations (including fish and wildlife
recommendations) of Indian Tribes affected by the project.
(4) Licenses for a project located within any Federal reservation
shall be issued only after the findings required by, and subject to,
any conditions that may be filed pursuant to section 4(e) of the
Federal Power Act.
(5) The Commission will require the construction, maintenance, and
operation of such fishways as may be timely prescribed by the Secretary
of Commerce or the Secretary of the Interior, as appropriate, pursuant
to section 18 of the Federal Power Act.
Sec. 7.9 Transition provision.
This part shall only apply to original license applications filed
on or after May 8, 2019.
[FR Doc. 2019-01256 Filed 2-6-19; 8:45 am]
BILLING CODE 6717-01-P