America's Water Infrastructure Act of 2018
President Trump signed America’s Water Infrastructure Act of 2018 into law on October 23, 2018. Sections 3003 and 3004 of the Act require FERC to issue rules establishing expedited processes for issuing and amending licenses for qualifying facilities at existing non-powered dams and for closed-loop pumped storage projects. The processes must seek to ensure a final decision by the Commission on an application for a license by no later than two years after receipt of a completed application.
These sections also require the Commission to convene an interagency task force (ITF) to coordinate the regulatory processes associated with the authorizations required in connection with the new processes. Because of the congressionally mandated deadline, participation in the ITF will be time sensitive.
- Guidance for Applicants Seeking Licenses or Preliminary Permits for Closed-Loop Pumped Storage Projects at Abandoned Mine Sites | Notice (AD19-7-000)
- Determination on project investments under Section 36 of the Federal Power Act (P-943-130)
- Hydroelectric Licensing Regulations Under the America’s Water Infrastructure Act of 2018 Order (RM19-6-000)
- Notice (AD19-8-000)
- Notice (RM19-6-000)
- Notice (RM19-6-000, AD19-7-000, AD19-8-000)
Hydropower Regulatory Efficiency Act of 2013
May 31, 2017 FERC Staff Sends to Congress Report and Recommendations on the Two-Year Hydro Pilot Process Report
On August 9, 2013, President Obama signed into law the "Hydropower Regulatory Efficiency Act of 2013". The Act, among other things:
(1) exempts certain conduit hydropower facilities from the licensing requirements of the Federal Power Act (FPA);
(2) amends Section 405 of the Public Utility Regulatory Policies Act of 1978 to define "small hydroelectric power projects" as having an installed capacity that does not exceed 10,000 kilowatts;
(3) authorizes the Commission to extend the term of preliminary permits once for not more than 2 additional years beyond the 3 years previously allowed under Section 5 of the FPA; and
(4) directs the Commission to investigate the feasibility of a 2-year licensing process for hydropower development at non-powered dams and closed-loop pump storage projects.
Qualifying Conduit Facilities:
Please follow the links below for guidance on how to file a notice of intent to construct a qualifying conduit facility, an application for a small hydropower exemption, and an application to amend a preliminary permit term.
- How to File a Notice of Intent to Construct a Qualifying Conduit Hydropower Facility
- How to File an Application for a Small Hydropower Exemption
- How to File an Application to Extend the Term of a Preliminary Permit
Hydroelectric Licensing Rulemaking (Order No. 2002)
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.
Interagency Task Force (ITF)
In the Winter of 1998, the FERC and the following agencies formed an Interagency Task Force to Improve Hydroelectric Licensing Processes:
- Departments of the Interior,
- Commerce, Agriculture, and Energy; Council on Environmental Quality; and
- Environmental Protection Agency
On May 22, 2000, FERC's Chairman and the Secretaries of the Interior, Commerce, and Agriculture signed a statement of commitment to make the hydropower licensing process more efficient and effective. In 2001, the ITF completed its tasks and the results were reported to Congress by letter dated January 10, 2001.
The ITF Reports recommendations concerning:
- The National Environmental Policy Act (NEPA) process;
- Environmental studies performed in connection with hydropower licensing;
- Consultation under the Endangered Species Act;
- Mandatory license conditions provided by fish and wildlife resource agencies;
- Procedures for providing public notice of hydropower licensing actions;
- Guidelines regarding the Commission's streamlined Alternative Licensing Procedures; and
- Methods for drafting enforceable and traceable license conditions.