Industries Hydroelectric Licensing Rulemaking
Commission Issues Final Rule - On July 23, 2003, the Commission issued a Final Rule to revise its regulations pertaining to hydroelectric licensing under the Federal Power Act. Effective October 23, 2003, the revisions would create a new licensing process, the Integrated Licensing Process (ILP) in which a potential license applicant's pre-filing consultation and the Commission's scoping pursuant to the National Environmental Policy Act (NEPA) would be conducted concurrently, rather than sequentially. The Final Rule was published in the Federal Register on August 25, 2003. Highlights of the proposed new licensing process include:
- Greater coordination among the Commission and federal and state agencies with mandatory conditioning authority;
- Increased assistance by Commission staff to the potential applicant and stakeholders during the development of a license application;
- Application preparation in conjunction with the Commission's environmental scoping process to facilitate in early issue identification;
- Increased public participation in the pre-filing consultation process;
- Establishment of process plan and schedules and deadlines for all participants, including Commission staff;
- Development of a Commission-approved study plan by the applicant, with informal resolution to study disagreements, followed by formal dispute resolution, if necessary; and
- Limiting of the need for post-application study requests
The ILP joins the Commission's two existing processes, the Traditional
Licensing Process (TLP) and the Alternative Licensing Process (ALP),
as a third alternative for processing hydroelectric license applications
(table comparing the three processes).
The Final Rule also established a two-year-transition-period
whereby an applicant may choose among the three processes until
July 2005. On July 23, 2005, the ILP would became the default process. Commission approval is now needed to use the TLP and ALP.
The regulatory language for the ILP is included in a new part 5 of Title 18 of the Code of Federal Regulations. The Final Rule also includes changes to the TLP and ALP regarding application requirements, public participation, and a Pre-application document. The 18 CFR parts 2, 4, 16, and 385 is amended to implement the new procedures. A redline/strikeout version of the changes to 18 CFR parts 2, 4, 9, 16, 375, and 385 and the new part 5 regulation text is available.
In drafting language for the Final Rule, Commission staff considered written comments filed in response to the February 20, 2003 Notice of Proposed Rulemaking comments received at public and tribal workshops, conceptual language from the Stakeholder Drafting Sessions, and language drafted jointly with other federal agencies with authorities under the Federal Power Act (Departments of Commerce, Agriculture, and the Interior.)
Tribal Policy Statement
In addition to the Final Rule, the Commission also issued a policy statement on consultation with indian tribes in Commission proceedings to articulate its commitment to promote a government-to-government relationship between itself and federally-recognized Indian tribes. The policy statement recognizes the sovereignty of tribal nations and the Commission's trust responsibility to Indian tribes. The policy statement also establishes a tribal liaison who will act as a guide for an Indian tribe's participation in FERC proceedings. Finally, the policy statement establishes certain actions specific to the hydroelectric program that will endeavor to increase direct communications with tribal representatives in appropriate proceeding.
» Final Rule and Tribal Policy Statement News Release