Non-Federal Hydropower Development at U.S. Army Corps of Engineers Facilities:

Improving Coordination through

Implementation of the FERC/Corps MOU

Matt Cutlip

FERC Division of Hydropower Licensing

February 23, 2012

Workshop Agenda

• 1:15 – 2:30 Matt Cutlip, FERC Hydro Licensing

• 2:30 – 2:45 Break

• 2:45 – 3:15 Erich Gaedeke, FERC Hydro Compliance

• 3:15 – 3:45 Ed Perez, FERC Dam Safety

• 3:45 – 4:15 Marci Johnson, Corps Planning, Programs, and Project Management

• 4:15 – 5:00 Q&A – Open Discussion

Licensing Discussion Items

• Educate the Corps staff on FERC process

• Overview of FERC’s Office of Energy Projects, regulatory

responsibilities, Division of Hydropower Licensing, and licensing

processes.

• Improving coordination of non-Federal hydropower development at

Corps’ facilities.

• Opportunities for integrating the Corps permit information needs into

the FERC prefiling licensing process.

• Describe how the Corps facility and operational requirements are

addressed in FERC licenses.

FERC Jurisdiction

Commission authorization is required for non-federal hydropower projects that:

• are located on navigable waters;

• are located on non-navigable waters over which Congress has Commerce Clause jurisdiction, were constructed after 1935, and affect the interests of interstate or foreign commerce (e.g., are connected to the interstate grid);

• are located on public lands of the United States; or

• use surplus water from a federal dam.

• Preliminary permit – gives priority of

application while studying project (3 yrs)

• Conduit exemption and 5 MW exemption

– exemptions from licensing (issued in

perpetuity)

• License – to construct and operate a

project (up to 50 yrs)

FERC Authorizations

Preliminary Permit

• A preliminary permit maintains priority over a site while a developer studies the feasibility of the site and prepares a development application

• Issued for three years

• Six month progress reports are required

• Entities may file competing preliminary permit or development applications

• Preliminary Permits DO NOT authorize construction.

7

Exemptions from Licensing

• An exemption is not a form of deregulation, it is a statutory provision that allows an applicant to be exempt from some or all of Part I of the Federal Power Act

• Two types of exemptions: Conduit and <5MW

• For more information on exemptions go to www.ferc.gov. There is a small/low-impact hydropower program page with a comparison of chart describing the characteristics of a conduit exemption, <5MW exemption, and a license.

Conduit Exemption

•Utilize hydroelectric potential of a conduit

•Located entirely on non-Federal land

•Maximum Installed Capacity

15 MW for private entities

40 MW for municipal entities

•Not an integral part of a dam

•Project must discharge water:

• Into a conduit,

• Directly to a point of consumption, or

• Into a natural body of water if an equal or greater quantity

of water is withdrawn downstream into a conduit that is part

of the same water supply system.

5MW Exemption

Utilize and Existing Dam, or Natural Water Feature

FERC Licenses

• Non-federal hydropower projects; authorize project construction and operation for a period of 30 to 50 years.

• Include mandatory conditions for federal reservations under section 4(e) of the FPA, and fishway prescriptions under section 18 of the FPA

• License applications are developed according to one of the following processes:

18 C.F.R. § 5 (Integrated Licensing Process) 18 C.F.R. §§ 4.30-4.61(Traditional Licensing Process) 18 C.F.R. § 4.34(i) (Alternative Licensing Process)

Important Statutes

• National Environmental Policy Act

• Coastal Zone Management Act

• Clean Water Act

• Endangered Species Act

• Rivers and Harbors Act

• National Historic Preservation Act

• Energy Policy Act of 2005

Licensing Processes

• Integrated Licensing Process (ILP)-default

– Traditional Licensing Process (TLP)

– Alternative Licensing Process (ALP)

•

• Consult with interested

parties on issues and

studies

• Gather information

• Conduct studies

• Prepare license

application

•

• Seek comments from

interested parties

• Prepare EA or EIS

and seek comments

• Weigh all information in

record before

Commission decision

Prefiling Postfiling

Integrated Licensing Process

1 year 2-3 years

1.5 years

Pre

fili

ng

Post

fili

ng

Notice of

Intent & Pre-

Application

Document

Scoping

Meetings &

Public

Comment

Study Plan

Development

Conduct

Studies &

Prepare

Application

Application:

Proposal,

Effects &

Mitigation

Measures

FERC Review

& Public

Comment

FERC NEPA

Document &

Public

Comment

FERC

Authorization

(License Order)

Integrated Licensing Process

1 year 2-3 years

Pre

fili

ng

Notice of

Intent & Pre-

Application

Document

Scoping

Meetings &

Public

Comment

Study Plan

Development

Conduct

Studies &

Prepare

Application

Initial Steps

• Brings together all existing, relevant, and

reasonably available information

• Provides basis for identifying issues, data gaps,

and study needs

• Forms the foundation of future documents

• Sets the schedule for the ILP

Purpose of the PAD

• Project description

• River basin description

• Description of existing environment and resource

impacts to the extent they are known

• List of issues and information or studies proposed

to fill identified information gaps

• List of relevant comprehensive plans

• Process plan

• Summary of contacts

Contents of the PAD

1 year 2-3 years

Pre

fili

ng

Initial

Proposal &

Information

Document

Scoping

Meetings &

Public

Comment

Study Plan

Development

Conduct

Studies &

Prepare

Application

Scoping and Study Requests

18 CFR section 5.9(b) - Study Request Criteria

• (1) Describe goals and objectives of study proposal

• (2) Explain relevant resource management goals

• (3) Explain relevant public interest considerations

• (4) Describe existing information and need for more info

• (5) Explain nexus to project operations and effects and how

study results would inform license requirements

• (6) Describe methodology and how it’s consistent with

accepted practice

• (7) Describe consideration of level of effort and cost of study

and why alternative study is needed

Why are the study criteria

important?

• Increased understanding of

stakeholder information needs

• More focused studies

• Better study plans and more

efficient use of time

Study Plan Development

1 year 2-3 years

Pre

fili

ng

Initial

Proposal &

Information

Document

Scoping

Meetings &

Public

Comment

Study Plan

Development

Conduct

Studies &

Prepare

Application

Study Plan Development Study Requests Due

Proposed Study Plan Filed

Applicant Conducts Study Plan Meeting

Participant Comments due on Proposed Study Plan

Applicant Files Revised Study Plan

Final Participant Comments Due

OEP Director’s Study Plan Determination

45 days

30 days

60 days

30 days

15 days

15 days

Study Dispute Resolution

• Mandatory conditioning agency may dispute the

OEP Director’s determination for studies directly

relating to the exercise of their conditioning

authorities

– A three-member panel of technical experts is

convened and makes recommendations

– OEP Director considers the panel findings and

makes decision with respect to study criteria and

any applicable law or FERC policy

Conduct Studies & Prepare

Application

1 year 2-3 years

Pre

fili

ng

Initial

Proposal &

Information

Document

Scoping

Meetings &

Public

Comment

Study Plan

Development

Conduct

Studies &

Prepare

Application

Study Plan Implementation (1 to 2 years)

• Initial Study Report (within 1 year)

– Summarizes the results of the first year of study

– Documents any studies that were not conducted

according to approved study plan

– Documents anomalous environmental

conditions

• Updated study report (within 2 years)

– Same process as for initial study report

Preliminary Licensing Proposal

• Contents

– Describes existing and proposed facilities, operation,

and proposed environmental measures

– Includes draft environmental analysis [Exhibit E]

– Does not include other application exhibits

• Draft license application optional (if requested)

• Draft BA, EFH Assessment, and Historic

Properties Management Plan

• Comments/additional studies due within 90 days

Application Filed

1.5 years

Post

fili

ng

Application:

Proposal,

Effects &

Mitigation

Measures

FERC Review

& Public

Comment

FERC

Environmental

Document &

Public

Comment

FERC

Authorization

(License Order)

Ready for Environmental

Analysis (REA)

1.5 years

Post

fili

ng

Application:

Proposal,

Effects &

Mitigation

Measures

FERC Review

& Public

Comment

FERC

Environmental

Document &

Public

Comment

FERC

Authorization

(License Order)

Environmental Document

1.5 years

Post

fili

ng

Application:

proposal,

effects, &

protection

measures

FERC Review

& Public

Comment

FERC NEPA

Document &

Public

Comment

FERC

Authorization

(License Order)

NEPA Process

• Staff prepares analysis

– Single Environmental Assessment (EA)

– Draft EA

– Draft Environmental Impact Statement (EIS)

• Staff makes licensing recommendation

• Comments on draft/non-draft environmental document

– Request ESA/NHPA consultation

– 10(j) process (within 90 days)

• Modified terms and conditions

• Final EA/EIS

Licensing Decision

1.5 years

Post

fili

ng

Application:

Proposal,

Effects &

Mitigation

Measures

FERC Review

& Public

Comment

FERC

Environmental

Document &

Public

Comment

FERC

Authorization

(License Order)

Licensing Process Comparison

TLP

ALP

ILP

NOI/PAD

NOI/PAD

NOI/PAD

ORDER

ORDER

ORDER

Application Filed

Application Filed

Application Filed

PROCESS PLAN/

SCOPING EA/EIS

EA/EIS

EA/EIS

CONSULT/STUDIES PDEA SCOPING

SCOPING

CONSULT/STUDIES

ADD. STUDIES CONSULTATION/ STUDIES

TLP ALP ILP

Consultation Paper Collaborative Integrated

FERC Involvement

Post-filing Pre-filing:

Requested

Pre-filing:

Sustained

Deadlines

Pre-filing Some

Post-filing Defined by

FERC

Pre-filing

Collaboratively defined

Post-filing Same as TLP

All participants throughout

process, including FERC

Licensing Process Comparison

TLP ALP ILP

Application Exhibit E APEA or

3rd party EIS

PLP or Exhibit E follows

EA format

Additional

Information

Requests

Post-filing

Pre-filing

Post-filing

limited

Pre-filing

No Post-filing study requests

Timing of

Resource Agency

Terms and

Conditions

60 days after

REA

Schedule

for final

60 days after

REA

Schedule

for final

60 days after REA

Modified 60 days after due

date for comments on draft

NEPA document

Licensing Process Comparison

Hydrokinetic Pilot Project

• Small, short term, removable projects

• Test technology and/or evaluate sites

• Protect the environment – Short license term and small footprint

– Post-license monitoring

– Project shutdown or removal if harm

• Process license applications in as few as 6

months

Pilot Project Licensing Procedures

3 – 4 months

Pre

fili

ng

P

ostf

ilin

g

Draft License

Application

and Waiver

Request

Comments on

Process/DLA/

Monitoring

Plans

Public

Meeting

(if needed)

Application

Filed REA Notice EA

FERC

Authorization

(License Order)

4.5 months 1.5 – 3 months

FERC

Determination

on Waiver

Request

FERC/Corps MOU

Purpose:

• Coordinate Regulatory Review Processes

• Establish framework for early Corps participation in Commission licensing processes, and incorporation of Corps section 408 and section 404 permit information needs into prefiling, if desired by the Corps

• Ensure timely review and action on non-federal hydropower development

Improving Prefiling Coordination

MOU provides for early notification:

(1) Projects at Corps facilities – notification to the appropriate Corps

division would occur at the preliminary permit acceptance notice stage:

– Southwestern Division

– Gulf Region Division

– Mississippi Valley Division

– North Atlantic Division

– Northwestern Division

– Pacific Ocean Division

– South Atlantic Division

– South Pacific Division

– Great Lakes and Ohio River Division

(2) Notice of Intent/Pre-Application Document

Improving Prefiling Coordination

• Initial Consultation Database • Mailing Lists (project lists; state lists) • Stakeholders and agencies should monitor for accuracy • FERC staff can assist with updates • Help also available at www.ferc.gov, email:

ferconlinesupport@ferc.gov

• FERC’s eLibrary and eSubscription services

Improving Prefiling Coordination

The MOU states that, following early notification, the Corps will need to

determine early on if it has an interest in the proposed project: (1) Located at or would alter a Corps facility? [section 408

authorization]

(2) Affects navigation? [may require Corps section 10 authorization]

(3) Removal/fill of Corps’ jurisdictional waters? [requires Clean Water Act section 404 authorization]

(4) Other interests?

Cooperating Agency Status

• If the Corps is interested in a proposed project, then the Corps will determine if it wishes to be a cooperating agency for NEPA document preparation

• FERC and the Corps will develop a Letter of Understanding (LOU) to establish the Corps cooperating agency status as well as the protocols Commission staff and the Corps will adhere to for NEPA scoping, the prefiling study planning process, and preparation of NEPA document(s).

• LOUs are case-specific, unique to each project, and would be based on the Corps desired level of involvement

• If the Corps is a cooperating agency for a given project, it would not be able to intervene in the proceeding.

Information Needs

• The MOU acknowledges that both the Corps and FERC will cooperate in requests for study needs and additional information needs.

• It is our expectation that the Corps will request the information that it needs to complete its required analysis for issuing its authorizations.

• The MOU acknowledges that the Corps may need some engineering, environmental, or other information that FERC would not otherwise require under the regulatory procedures of the Commission. The MOU specifies that any such information would be the requirement of the Corps to obtain.

Integrating the Corps Permit Needs

into Prefiling

Clean Water Act Section 404 Removal/fill Authorization

• Identification of removal/fill of Corps jurisdictional waters and wetlands as issues during NEPA scoping

• Request removal/fill volumes and wetland delineations during ILP study planning process;

• Others information needs?

Section 408

• Potential information needs?

FERC License Orders

• Document compliance with applicable statutory requirements

• Include license articles and mandatory conditions

• Approve/modify resource protection plans

• Approve design drawings

• A FERC license for a project at a Corps facility would typically include

seven standard license articles that are set forth in the 2011 MOU

• Additional license conditions can be filed by the Corps pursuant to section 4(e) of the FPA

Interventions

• Official party to proceeding

– Participate in hearings

– File briefs

– File for rehearing on Commission decision

– Legal standing to be heard by Court of Appeals

• Can not be a cooperating agency

• Must serve any filing on applicant and all other intervenors

• Status terminates when Commission has issued order on rehearing and time for judicial review has expired

• Must be party to proceeding (intervenor)

• Must include statement of issues

• 30-day filing deadline

Rehearing

License Transition

• FERC’s Division of Hydropower Administration and Compliance (DHAC) takes over administration of the license after rehearing is complete.

www.ferc.gov

Questions?