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Citizen Guide for Effective Participation in Hydropower Licensing

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Citizen Guide for Effective Participation in Hydropower Licensing CITIZEN GUIDE FOR EFFECTIVE PARTICIPATION IN HYDROPOWER LICENSING November 2015 ACKNOWLEDGEMENTS AND DISCLAIMER The Hydropower Reform Coalition (HRC) publishes this updated version of the Citizen Guide to Hydropower (1997, 2005). The primary authors are Richard Roos-Collins and Julie Gantenbein, shareholders for the Water and Power Law Group PC, in our capacity as HRC General Counsel. We were assisted by Nicholas Niiro, our staff attorney (2011-2015). We were further assisted by paralegals in our practice over time: Shane Conway, Terri Cordrey, Russell Hilkene, Kat Ridolfi, and Emma Roos-Collins. HRC staff provided substantial assistance over time. These include: Danielle Droitsch, Andrew Fahlund, Alice Hill, Robbin Marks, Laura Norlander, Keith Nakatani, John Seebach, Rebecca Sherman, and Rupak Thapaliya. This Citizen Guide is intended to provide a public benefit. It does not represent the legal opinion of the HRC as a whole or any member thereof on any issue disputed in a licensing or related proceeding. It is not offered or intended as legal advice to any reader who participates in such a proceeding. Citizen Guide to Hydropower November 2015 TABLE OF CONTENTS 1. INTRODUCTION ................................................................................................................. 1 1.1. Who is the Hydropower Reform Coalition? ........................................................... 3 1.2. Citizen Guide Organization .................................................................................... 3 1.3. Legal Research Relevant to Hydropower Regulation ............................................. 5 2. OVERVIEW OF HYDROPOWER REGULATION ............................................................ 5 2.1. Who is FERC? ........................................................................................................ 6 2.2. Several Kings of the Hydropower Mountain .......................................................... 6 2.2.1. National Marine Fisheries Service .............................................................. 7 2.2.2. U.S. Department of Interior ........................................................................ 8 A. Fish and Wildlife Service .................................................................... 8 B. National Park Service .......................................................................... 8 C. Bureau of Land Management .............................................................. 9 D. Bureau of Indian Affairs ..................................................................... 9 E. Bureau of Reclamation ........................................................................ 9 F. United States Geological Survey....................................................... 10 2.2.3. Forest Service............................................................................................ 10 2.2.4. U.S. Environmental Protection Agency .................................................... 10 2.2.5. U.S. Army Corps of Engineers ................................................................. 11 2.2.6. State Agencies ........................................................................................... 11 2.3. What is a FERC License? ..................................................................................... 12 2.3.1. Types of Licenses and Related Approvals ................................................ 12 Citizen Guide to Hydropower November 2015 -i- A. License .............................................................................................. 12 B. Exemption ......................................................................................... 12 C. Preliminary Permit ............................................................................ 13 2.3.2. What is Included in the Project? ............................................................... 14 2.3.3. Who is the Licensee? ................................................................................ 16 2.3.4. What are the Basic Legal Responsibilities of Licensee? .......................... 16 A. Standard Articles ............................................................................... 18 B. FPA Section 10(a) Conditions for Protection, Mitigation, and Enhancement of Environmental Quality ........................................... 19 C. FPA Section 10(j) Conditions for the Protection, Mitigation, and Enhancement of Fish and Wildlife Resources............................ 21 D. FPA Section 4(e) Conditions for Protection of a Federal Reservation ........................................................................................ 22 E. FPA Section 18 Fishway Prescription ............................................... 23 F. Protection of Endangered or Threatened Species and Their Habitat ............................................................................................... 25 G. Wild and Scenic Rivers Act .............................................................. 27 H. Water Quality Certification Under CWA Section 401(a) ................. 29 I. Consistency Determination Under the Coastal Zone Management Act ............................................................................... 30 2.3.5. What is the Term of the License? ............................................................. 30 2.4. License Amendments ............................................................................................ 31 2.5. Compliance and Enforcement of Licenses ........................................................... 33 3. RELICENSING PROCESS ................................................................................................. 35 3.1. Purpose of Relicensing Proceeding ...................................................................... 35 Citizen Guide to Hydropower November 2015 -ii- 3.1.1. New License.............................................................................................. 36 3.1.2. Non-power License ................................................................................... 36 3.1.3. Decommissioning as a Result of License Surrender ................................. 37 3.1.4. Federal Takeover ...................................................................................... 38 3.2. Fundamental Elements of Licensing Process ....................................................... 38 3.2.1. Notice of Intent ......................................................................................... 39 3.2.2. Licensing Record ...................................................................................... 39 A. Pre-Application Document ................................................................ 40 B. Study Plan ......................................................................................... 41 C. License Application........................................................................... 47 D. Evidence Submitted by Participants .................................................. 49 E. Environmental Document under NEPA ............................................ 49 F. Prohibition Against Private (Ex Parte) Communications ................. 54 G. Accessing the Record in Electronic Databases ................................. 55 H. Limitations on Access to the Record: Critical Energy Infrastructure Information ................................................................. 56 3.2.3. Deadlines................................................................................................... 57 3.2.4. Consultation, Intervention, Filings, and Hearing ...................................... 57 A. Consultation ...................................................................................... 58 B. Comments and other Standard Filings .............................................. 58 C. Intervention ....................................................................................... 60 D. Interlocutory Relief ........................................................................... 62 3.2.5. Rehearing by FERC .................................................................................. 63 Citizen Guide to Hydropower November 2015 -iii- 3.2.6. Appeal to Other Prescribing Agencies ...................................................... 65 3.2.7. Judicial Review ......................................................................................... 65 4. INTEGRATED LICENSING PROCESS ............................................................................ 66 4.1. Why Develop a New Licensing Process? ............................................................. 67 4.2. Structure of ILP Process ....................................................................................... 68 4.3. Notice of Intent (NOI) .......................................................................................... 73 4.3.1. Process Selection ...................................................................................... 74 4.3.2. Pre-Application Document ....................................................................... 75 4.4. Study Plan Development and NEPA Scoping ...................................................... 75 4.4.1. Tribal Consultation ................................................................................... 75 4.4.2. Endangered Species Act (ESA) Consultation ........................................... 75 4.4.3. Notice of Commencement ........................................................................ 76 4.4.4. Scoping Document and Process Plan .......................................................
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