FERC considers changes to hydropower license pre-filing rules


Federal Energy Regulatory Commission staff has issued a memo proposing revisions to a handful of hydropower license pre-filing rules that might be considered "outmoded, ineffective, insufficient or excessively burdensome."

The 2015 Biennial Staff Memo Concerning Retrospective Analysis of Existing Rules (No. AD12-6-001) was issued under FERC's 2011 plan to periodically examine its rules to see whether some rules warrant streamlining, expansion, repeal or modification.

FERC issued a formal notice April 23 about the April 10 memo, saying public comments should be filed within 30 days of the April 23 notice date. Although the Notice of Staff Memorandum only refers to suggested revisions to the commission's natural gas pipeline regulations, the memo itself includes suggested hydropower rules changes.

FERC staff said comments would help the commission decide whether any rules should undergo a formal public review under a notice of inquiry or a notice of proposed rulemaking.

The FERC staff memo proposed a review of several hydropower pre-filing rules under 18 C.F.R. Parts 4, 5 and 16.

Rule 18 C.F.R. Part 4 describes requirements for license pre-filing activities and filing applications using FERC's traditional and alternative licensing processes. FERC last year amended the section on exemptions and conduit projects to comply with provisions of the Hydropower Regulatory Efficiency Act of 2013.

Part 5 describes requirements for pre-filing activities and filing applications using FERC's integrated licensing process. Part 16 describes requirements for pre-filing activities and filing applications for relicensing.

Choice of licensing process

FERC staff proposed changing Section 5.3 that allows a license applicant to request use of the traditional or alternative licensing process instead the integrated licensing process, which is the default process used under FERC regulation. The memo said over the past 10 years, most requests to use the traditional or alternative process have been granted based on a showing of good cause.

Based on that record, staff expressed concern that the requirement to seek approval to use the other processes is delaying the licensing process by 60 days. It said one option being considered is to automatically grant a properly supported request to use the traditional or alternative process unless staff issues a letter within 15 days saying it will review the request.

Property owner notification

Staff also proposed changes to Sections 5.5(c) and 5.6(a)(1) that require a license applicant to distribute its notice of intent to file and its pre-application document to resource agencies, tribes, local governments and interested members of the public. Additionally, Section 4.32(a)(3)(A) requires affected property owners to be notified when an actual license application is filed.

Staff proposed adding property owners to the list of entities receiving notices of intent and pre-application documents, reducing the possibility of delay in addressing issues raised.

Comments on revised study plans

Changes also were proposed to Section 5.13(b) that allows participants in the licensing process 15 days to file comments on an applicant's revised plan for studies needed to provide information on the application. Staff said in some cases, participants are using that as an opportunity to raise new issues and seek modifications or new studies that could have been raised or requested during the initial study plan comment period.

Staff proposed the section be changed to prohibit requests at that stage for modifications or new studies that could have been requested earlier.

Time for study plan comments and FERC determination

Staff said there might be a need to revise Sections 5.13(b) and (c) that set a 15-day deadline for comments on revised study plans and a 30-day deadline for FERC's Office of Energy Projects to issue a study plan determination. Staff said in many cases there have been extensive issues to be addressed creating voluminous and complex study plans.

Therefore, the memo said there might be a need to revise the sections to allow more time for both public comment and OEP review of study plans.

Dispute resolution technical conferences

Staff also proposed changes to Section 5.14(j) that requires a dispute resolution panel to hold a technical conference to resolve disputes with resource agencies having mandatory conditioning authority. It noted such technical conferences can be time consuming and possibly unnecessary.

Staff proposed changing the section to permit, but not require, a panel to hold a technical conference if the panel finds it is necessary.

The 2015 Biennial Staff Memo Concerning Retrospective Analysis of Existing Rules (No. AD12-6-001) may be obtained from FERC's Internet site under http://www.ferc.gov/legal/maj-ord-reg/retro-analysis/04-10-15-staff-memo.pdf. The notice of the memorandum is under http://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=13851344.

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