Hydroelectric Licensing Regulations Under the America's Water Infrastructure Act of 2018, 17064-17080 [2019-08239]

Download as PDF 17064 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: ■ Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): ■ 2019–07–10 Northrop Grumman LITEF GmbH LCR–100 Attitude and Heading Reference System: Amendment 39– 19621; Docket No. FAA–2017–0522; Product Identifier 2015–SW–068–AD. jbell on DSK30RV082PROD with RULES (a) Applicability This AD applies to airplanes and helicopters, certificated in any category, with a Northrop Grumman LITEF GmbH LCR–100 Attitude and Heading Reference System (AHRS) unit part number (P/N) 145130–2000, 145130–2001, 145130–7000, 145130–7001, or 145130–7100 installed using analog outputs for primary flight information display or autopilot functions without automatic output comparison. Aircraft known to have the subject AHRS units installed include but are not limited to the following: (1) Dornier Luftfahrt GmbH Model 228– 100, 228–101, 228–200, 228–201, 228–202, and 228–212 airplanes; (2) Learjet Inc. Model 31A airplanes; (3) Pilatus Aircraft Ltd. Model PC12, PC– 12/45, and PC–12/47 airplanes; (4) Polskie Zaklady Lotnicze Sp. z o.o. Model PZL M28 05 airplanes; (5) Textron Aviation Inc. (type certificate previously held by Cessna Aircraft Company) Model 560XL airplanes; (6) Bell Helicopter Textron Canada Limited Model 407 helicopters; (7) Bell Helicopter Textron Inc. Model 412 and 412EP helicopters; and (8) Sikorsky Aircraft Corporation Model S– 76A, S–76–B, and S–76C helicopters. (b) Unsafe Condition This AD defines the unsafe condition as the AHRS unit’s analog outputs of attitude and heading data freezing without detection or warning. This condition could result in misleading attitude and heading information, anomalous autopilot behavior, and loss of control of the aircraft. VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 (c) Affected ADs This AD affects AD 2010–26–09, Amendment 39–16548 (75 FR 81424, December 28, 2010) (‘‘AD 2010–26–09’’). Accomplishing a certain requirement of this AD terminates the requirements of AD 2010– 26–09. Issued in Fort Worth, Texas, on April 16, 2019. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service. [FR Doc. 2019–08157 Filed 4–23–19; 8:45 am] BILLING CODE 4910–13–P (d) Effective Date This AD becomes effective May 29, 2019. (e) Compliance You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time. DEPARTMENT OF ENERGY (f) Required Actions (1) Within 25 hours time-in-service (TIS), remove the AHRS unit from service. (2) Removal from service of P/N 145130– 7100 terminates the requirements of AD 2010–26–09 (75 FR 81424, December 28, 2010). (3) Do not install an AHRS unit P/N 145130–2000, 145130–2001, 145130–7000, 145130–7001, or 145130–7100 on any aircraft. 18 CFR Part 7 (g) Alternative Methods of Compliance (AMOCs) (1) The Manager, Boston ACO Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Nick Rediess, Aviation Safety Engineer, Boston ACO Branch, Compliance and Airworthiness Division, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238– 7763; email nicholas.rediess@faa.gov. (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC. (h) Additional Information (1) Northrop Grumman LITEF GmbH Service Bulletin No. 145130–0017–845, Revision D, dated April 1, 2015, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Northrop Grumman LITEF GmbH, Customer Service—Commercial Avionics, Loerracher Str. 18, 79115 Freiburg, Germany; telephone +49 (761) 4901–142; fax +49 (761) 4901–773; email ahrs.support@nglitef.de. You may review a copy of the service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N–321, Fort Worth, TX 76177. (2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2015–0093, dated May 27, 2015. You may view the EASA AD on the internet at http://www.regulations.gov in Docket No. FAA–2017–0522. (i) Subject Joint Aircraft Service Component (JASC) Code: 3420, Attitude and Directional Data System. PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 Federal Energy Regulatory Commission [Docket No. RM19–6–000; Order No. 858] Hydroelectric Licensing Regulations Under the America’s Water Infrastructure Act of 2018 Federal Energy Regulatory Commission. ACTION: Final rule. AGENCY: In this final rule, the Federal Energy Regulatory Commission (Commission) is establishing an expedited process for issuing original licenses for qualifying facilities at existing nonpowered dams and for closed-loop pumped storage projects, pursuant to sections 3003 and 3004 of the America’s Water Infrastructure Act of 2018. Under the expedited licensing process, the Commission will seek to ensure that a final decision is issued no later than two years after the Commission receives a completed license application. The final rule will be codified in a new part that will be added to the Commission’s regulations. DATES: The rule is effective July 23, 2019. SUMMARY: FOR FURTHER INFORMATION CONTACT: Shana Wiseman (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502– 8736, shana.wiseman@ferc.gov. Kenneth Yu (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502–8482, kenneth.yu@ ferc.gov. Tara DiJohn (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502–8671, tara.dijohn@ ferc.gov. SUPPLEMENTARY INFORMATION: Table of Contents E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations 17065 Paragraph Nos. I. Background .......................................................................................................................................................................................... II. Notice of Proposed Rulemaking ........................................................................................................................................................ III. Discussion ......................................................................................................................................................................................... A. Scope of the Expedited Licensing Process ............................................................................................................................... 1. Pre-filing Process ................................................................................................................................................................. 2. Relicense Proceedings ......................................................................................................................................................... 3. Amendment Proceedings ..................................................................................................................................................... B. Expedited Licensing Process ...................................................................................................................................................... 1. Section 7.1—Applicability and Definitions ....................................................................................................................... 2. Section 7.2—Use of Expedited Licensing Process ............................................................................................................. 3. Section 7.3—Adequacy Review of Application ................................................................................................................. 4. Section 7.4—Additional Information .................................................................................................................................. 5. Section 7.5—Decision on Request to Use Expedited Licensing Process .......................................................................... 6. Section 7.6—Notice of Acceptance and Ready for Environmental Analysis ................................................................... 7. Section 7.7—Amendment of Application .......................................................................................................................... 8. Section 7.8—Other Provisions ............................................................................................................................................ 9. Section 7.9—Transition Provision ...................................................................................................................................... C. Other Matters .............................................................................................................................................................................. 1. Projects that Require an EIS ................................................................................................................................................ 2. FPA Section 35© Exceptions .............................................................................................................................................. IV. Regulatory Requirements ................................................................................................................................................................. A. Information Collection Statement ............................................................................................................................................. B. Environmental Analysis ............................................................................................................................................................. C. Regulatory Flexibility Act .......................................................................................................................................................... D. Document Availability 139. E. Effective Date and Congressional Notification .......................................................................................................................... Order No. 858 Final Rule (Issued April 18, 2019) 1. On October 23, 2018, the America’s Water Infrastructure Act (AWIA) 1 was signed into law. The AWIA requires the Federal Energy Regulatory Commission (Commission or FERC) to establish an expedited process for issuing and amending licenses for qualifying facilities at existing nonpowered dams and for closed-loop pumped storage projects. Under the expedited process, the Commission will seek to ensure that a final decision on a license application is issued no later than two years after the Commission receives a completed license application. 2. To comply with the AWIA, the Commission issues this final rule to amend its regulations governing hydroelectric licensing under the Federal Power Act (FPA) by establishing an expedited licensing process for qualifying facilities at existing nonpowered dams and for closed-loop pumped storage projects. The final rule will be codified in a new part 7 that will be added to Title 18 of the Code of Federal Regulations. jbell on DSK30RV082PROD with RULES I. Background 3. Sections 3003 and 3004 of the AWIA amended the FPA by adding new sections 34 and 35. Section 34 of the FPA gives the Commission discretion to issue or amend licenses, as appropriate, 1 Public Law 115–270, 132 Stat. 3765. VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 for any facility that the Commission determines is a qualifying facility at an existing nonpowered dam. Section 35 of the FPA gives the Commission discretion to issue or amend licenses, as appropriate, for closed-loop pumped storage projects. Congress directed the Commission to issue a rule, no later than 180 days after October 23, 2018, establishing an expedited licensing process for issuing and amending licenses for projects covered by FPA sections 34 and 35. In establishing the expedited licensing process, Congress directed the Commission to convene an interagency task force (ITF), with appropriate federal and state agencies and Indian Tribes represented, to coordinate the regulatory processes associated with the authorizations required to construct and operate qualifying facilities at nonpowered dams and closed-loop pumped storage projects. 4. On November 13, 2018, the Commission issued a notice inviting federal agencies, state agencies, and Indian Tribes to participate on the ITF.2 The notice directed interested agencies and Indian Tribes to file a statement of interest with the Commission by November 29, 2018. On December 6, 2018, the Commission issued a notice identifying 28 federal agencies, state 2 See Notice Inviting Federal and State Agencies and Indian Tribes to Request Participation in the Interagency Task Force Pursuant to America’s Water Infrastructure Act of 2018, 83 FR 58,245 (Nov. 19, 2018). PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 3 6 7 7 11 15 18 22 22 32 85 87 89 94 98 101 106 108 108 116 119 119 134 135 142 agencies, and Indian Tribes as ITF participants.3 5. On December 12, 2018, the Commission convened a meeting with the ITF participants at the Commission’s headquarters to discuss the Commission’s preliminary proposal to coordinate the regulatory processes associated with the authorizations required to construct and operate qualifying facilities at nonpowered dams and closed-loop pumped storage projects. At the meeting, Commission staff presented for the ITF participants’ consideration and comment a flowchart illustrating a draft expedited licensing process.4 In addition to soliciting comments at the meeting, Commission staff invited ITF participants to file comments on the process in Docket No. RM19–6–000 by December 26, 2018. Seven post-session comments were filed. The Commission’s coordination and discussion with appropriate federal and state agencies and Indian Tribes, as part of the ITF, have informed this final rule. II. Notice of Proposed Rulemaking 6. On January 31, 2019, the Commission issued a Notice of Proposed Rulemaking proposing to promulgate rules to establish an 3 See Notice of Interagency Task Force (Dec. 6, 2018); see also FERC, Office of Energy Projects, Summary of Interagency Task Force Activities (Jan. 10, 2019) (Appendix A identifies the ITF participants). 4 See Commission staff’s Letter to ITF Participants, Summary of Interagency Task Force Activities (Jan. 10, 2019). E:\FR\FM\24APR1.SGM 24APR1 17066 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations expedited process to license eligible projects at existing nonpowered dams and closed-loop pumped storage projects.5 In response to the NOPR, the Commission received 11 comments. Consumers Energy Company (Consumers),6 Daybreak Power, Inc. (Daybreak),7 Dominion Energy Services, Inc. (Dominion),8 the U.S. Department of Agriculture’s Forest Service (Forest Service), the U.S. Department of the Interior (Interior),9 the National Hydropower Association (NHA),10 the National Marine Fisheries Service (NMFS), the Oregon Department of Fish and Wildlife (Oregon DFW), the Nature Conservancy, the Pennsylvania State Historic Preservation Office (PA SHPO), and Rye Development, LLC (Rye Development) filed comments.11 The proposal set forth in the NOPR, the comments received in response to the NOPR, and the Commission’s determinations are discussed below. III. Discussion jbell on DSK30RV082PROD with RULES A. Scope of the Expedited Licensing Process 7. The NOPR explained that the Commission’s current regulations provide three pre-filing process options for hydropower developers to use in preparing license applications: (i) the integrated licensing process (ILP), which is the default process, as described in part 5; 12 (ii) the traditional licensing process (TLP), as described in part 4, subparts D to H; 13 or (iii) the alternative procedures (i.e., the alternative licensing process (ALP)), as described in section 4.34(i) of part 4.14 The NOPR did not propose to alter these existing licensing processes. Rather, the 5 Hydroelectric Licensing Regulations Under the America’s Water Infrastructure Act of 2018, 84 FR 2469, 166 FERC ¶ 61,083 (2019) (NOPR). 6 Consumers is a public utility that owns and operates thirteen FERC-licensed hydroelectric projects. 7 Daybreak is a developer of pumped storage projects. 8 Dominion holds a preliminary permit for the proposed Tazewell Hybrid Energy Center Project No. 14854, and states that it is currently investigating whether the Tazewell Project, or a similar project, could be configured as a closed-loop pumped storage project. 9 Interior represents the U.S. Bureau of Reclamation, the National Park Service, and U.S. Fish and Wildlife Service in its comment. 10 NHA represents the Edison Electric Institute, the National Rural Electric Cooperative Association, the American Public Power Association, and the Northwest Hydropower Association in its comment. 11 Rye Development is developing a number of hydroelectric projects, including one that was licensed under the Commission’s Two-Year Pilot Licensing Process, FFP Project 92, LLC, 155 FERC ¶ 62,089 (2016). 12 18 CFR part 5 (2018). 13 18 CFR part 4, subpt. D–H (2018). 14 Id. 4.34(i). VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 NOPR proposed to establish procedures for the Commission to determine, on a case-by-case basis, whether original license applications for qualifying hydropower projects at nonpowered dams or for closed-loop pumped storage projects, as defined in sections 34 and 35 of the FPA and the eligibility criteria below, qualify for expedited processing. 8. As stated in the NOPR, the use of the expedited licensing process is voluntary. To apply for consideration under the expedited process, an applicant for an original license for a qualifying hydropower project or closed-loop pumped storage project must supplement its license application with a request for authorization to use the expedited licensing process. 9. The NOPR proposed that the expedited licensing process would begin with the receipt of a completed license application. Consistent with the statute, the proposed expedited licensing process envisioned a two-year framework that did not include the prefiling stages of application development (i.e., all process milestones and consultation to obtain necessary authorizations that must occur before an applicant files a license application). For pre-filing activities, the NOPR explained that any applicant interested in pursuing authorization to use the expedited licensing process must use the default ILP, or request authorization to the use TLP or ALP, as required under our current regulations. 10. Finally, the scope of the NOPR was limited to original license applications. However, the Commission requested comments on whether the expedited licensing process should apply to applications for a new or subsequent license for a project that was originally licensed under the expedited licensing process.15 1. Pre-filing Process 11. NHA, Consumers, Dominion, and Rye Development encourage the Commission to improve the overall process to authorize hydroelectric facilities, which includes streamlining the pre-filing process.16 Rye Development estimates that the NOPR may not reduce the overall licensing time, which it calculates to be at least three years for the pre-filing process and two years for the post-filing process for a total of at least five years, because the NOPR does not address the pre-filing process time.17 This, it alleges, is 15 NOPR, 166 FERC ¶ 61,083 at P 7. NHA’s March 11, 2019 Comment at 4–6; Consumers’ March 11, 2019 Comment at 2; Dominion’s March 11, 2019 Comment at 1–2; Rye Development’s March 8, 2019 Comment at 2. 17 See Rye Development’s Comment at 2. 16 See PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 contrary to Congressional intent.18 Rye Development explains that a shorter and more certain licensing schedule, which includes pre-filing process ‘‘reforms’’ and allows for off-ramps for more problematic projects, would allegedly make hydroelectric generation cost competitive with other types of power generation and help attract investors.19 12. NHA proposes, and Dominion supports, an alternative two-step prefiling process that NHA posits will allow the Commission to determine, during pre-filing, whether a project would be eligible for the expedited licensing process.20 If the Commission finds a project eligible, NHA recommends that the Commission also grant preliminary approval of draft study plans and establish milestones and a schedule for the expedited licensing process during pre-filing.21 Noting that the success of the expedited licensing process depends on the cooperation of all parties to the process, NHA and Dominion also encourage other federal and state agencies to align their policies and regulations with the expedited licensing process and urge consideration of an interagency memorandum of understanding.22 13. The Commission understands the importance of a clear process schedule. It is for this reason that the Commission has made publicly available on its website diagrammatic representations of the ILP and TLP.23 We will provide the same for the expedited licensing process under the new part 7.24 This rulemaking, however, is limited to the post-filing period as mandated by the AWIA. Congress required the Commission to issue a rule establishing a two-year expedited licensing process that begins from the receipt of a 18 See id. at 2–3. id. at 3–4. 20 See NHA’s Comment at 6–9 (proposing a twostep pre-filing eligibility determination that would culminate in Commission action on a request for authorization to use the expedited licensing following issuance of the Scoping Document 1); Dominion’s Comment at 2–4. 21 NHA’s Comment at 6–7; Dominion’s Comment at 4. 22 NHA’s Comment at 7–8; Dominion’s Comment at 4. 23 See FERC, the Integrated Licensing Process (ILP)—Tutorial, https://www.ferc.gov/industries/ hydropower/gen-info/licensing/ilp/ilp-tutorial/ overview.asp (updated Oct. 10, 2012); FERC, Processes for Hydropower Licenses—Traditional Licensing Process (Applicant’s Pre-Filing Process), https://www.ferc.gov/resources/processes/flow/ hydro-1.asp; FERC, Processes for Hydropower Licenses—Traditional Licensing Process (FERC Application Process), https://www.ferc.gov/ resources/processes/flow/hydro-2.asp. 24 Commission staff will provide a flowchart on the Commission’s website shortly after the final rule is issued. 19 See E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations completed license application.25 Completion of the pre-filing process is necessary to develop a completed application. We therefore decline to revise the established pre-filing schedule in our existing regulations in this rulemaking. Furthermore, the Commission’s existing ALP framework provides the flexibility that could accommodate, on a case by case basis, the type of pre-filing schedule NHA has proposed.26 14. While we encourage federal and state agencies to cooperate with the Commission’s licensing schedules, we have no authority to require other agencies to modify their own regulations or policies to suit our licensing process as encouraged by NHA and Dominion. Nor will we dictate to other agencies how their regulations or policies should be interpreted. Expedited processing is possible when applicants and stakeholders work closely during pre-filing to gather information, conduct studies, and address information gaps. Expedited licensing is further aided by welldeveloped license applications that provide a detailed project proposal, a comprehensive summary of existing facilities and natural resources, and a thorough examination of the resource issues at hand and study needs. jbell on DSK30RV082PROD with RULES 2. Relicense Proceedings 15. The NOPR requested comments on whether the expedited licensing process should be available for applications for new or subsequent licenses,27 provided that the project was originally licensed under the expedited licensing process.28 16. Daybreak and Consumers recommend that the proposed rule be expanded to include relicensing of projects licensed under the expedited licensing process.29 NHA did not explicitly express opposition or support in response to the Commission’s relicensing inquiry, but observed that 25 See 16 U.S.C.A. 823e(a)(4), 823f(a)(4) (West 2019). 26 The ALP framework was designed to be flexible in order for an applicant to tailor the pre-filing consultation process to the circumstances of each case. See Regulations for the Licensing of Hydroelectric Projects, Order No. 596, FERC Stats & Regs ¶ 31,057, at P 6 (1997) (cross-referenced at 81 FERC ¶ 61,103). 27 A new license is a license that is issued under FPA section 15(a) after an original license expires. A subsequent license is a license that is issued under FPA Part I after a minor or minor-part license that was not subject to FPA sections 14 and 15 expires. Both new and subsequent licenses are considered relicenses. See 18 CFR 16.2(a), (d) (2018). 28 NOPR, 166 FERC ¶ 61,083 at P 7. 29 Daybreak’s February 25, 2019 Comment at 1; Consumers’ Comment at 1–2. VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 the first new or subsequent license applications for projects originally licensed under the expedited licensing process would not be filed for another 40 years.30 Absent a significant change in the regulatory landscape, NHA finds it highly unlikely that future relicensing of a project that was originally licensed under the expedited licensing process could not be completed within two years.31 17. The AWIA’s eligibility criteria for qualifying facilities at existing nonpowered dams exclude facilities that are already licensed or exempted from license requirements in the FPA.32 Thus, future new or subsequent license applications for projects at existing nonpowered dams that were originally licensed under the expedited process would be ineligible to participate in the expedited process. Furthermore, we agree with NHA’s observation that, in most cases, a relicense proceeding for a project that was originally licensed under the expedited licensing process should be completed within an average of two years under the Commission’s existing regulations. Accordingly, the expedited licensing process set forth in this final rule remains limited in scope to original license applications for projects at qualifying facilities at existing nonpowered dams and for closed-looped pumped storage projects. 3. Amendment Proceedings 18. The NOPR explained that FPA sections 34(a)(1) and 35(a)(1) give the Commission discretion to amend licenses, as appropriate, for any facility that the Commission determines is a qualifying facility. As part of this rulemaking, the Commission is required to establish an expedited process for amending licenses for qualifying facilities. FPA sections 34(a)(4) and 35(a)(4) explicitly define the expedited process for license applications as a two-year process for the Commission to issue a final decision on a license application once it receives a completed license application. These sections, however, are silent on the length of time to process applications to amend licenses. 19. Because the Commission already processes the majority of amendments within two years, the NOPR proposed to process applications to amend licenses 30 See NHA’s Comment at 17. at 17. NHA further states that a new or subsequent license application for a project previously licensed at an existing dam would not qualify for the expedited licensing process because it would not satisfy the requirement set forth in section 34(e)(1)(A) of the FPA that the project not already be licensed. 32 See 16 U.S.C.A. 823e(e)(1)(A) (West 2019). 31 Id. PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 17067 for projects located at qualifying nonpowered dams and for closed-loop pumped storage projects under the Commission’s existing regulations for amendments in 18 CFR part 4, subpart L.33 20. NHA contends that once a project is licensed, there is no reason that applications to amend licenses issued under the expedited licensing process should receive preferential treatment over applications to amend licenses issued under the ILP, TLP, or ALP framework.34 No other comments addressed or advocated for an expedited amendment process separate and apart from the Commission’s existing procedures for license amendment applications. 21. Therefore, we are satisfied that the Commission’s existing procedures will continue to result in expeditious action on any application to amend a license originally licensed under the expedited process, well within the two-year benchmark established in the AWIA. Accordingly, the final rule does not establish a separate process for acting on applications to amend licenses issued under the expedited licensing process. B. Expedited Licensing Process 1. Section 7.1—Applicability and Definitions 22. In § 7.1(c)(3) of the NOPR, the Commission restated the Commission’s current definition of a closed-loop pumped storage project as ‘‘a pumped storage project that is not continually connected to a naturally-flowing water feature.’’ 35 The NOPR also incorporated the statutorily-defined ‘‘qualifying criteria,’’ ‘‘qualifying nonpowered dam,’’ and ‘‘qualifying facility.’’ 23. We received several comments that the key terms, such as ‘‘continually,’’ ‘‘connected,’’ and ‘‘naturally-flowing water features’’ are unclear, which could potentially result in the expeditious licensing of an environmentally-harmful pumped storage project.36 Some commenters argue that a pumped storage project may not be ‘‘continually’’ connected to a naturally-flowing water feature, but those intermittent periods when the 33 NOPR, 166 FERC ¶ 61,083 at PP 42–44 (estimating that about 98 percent of amendmentrelated filings were processed in two years during the past five years). 34 NHA’s Comment at 18. 35 NOPR, 166 FERC ¶ 61,083 at PP 21 & 36. The NOPR’s preamble mistakenly used ‘‘continuously’’ instead of ‘‘continually’’ to describe the Commission’s current definition of closed-loop pumped storage. 36 See Interior’s March 8, 2019 Comment at 2–3, Forest Service’s March 8, 2019 Comment at 2, Oregon DFW’s March 11, 2019 Comment at 1–2. E:\FR\FM\24APR1.SGM 24APR1 17068 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations jbell on DSK30RV082PROD with RULES project is connected to the naturallyflowing water feature could result in substantial resource impacts.37 On the other hand, NHA, Consumers, and Dominion encourage the Commission to generously interpret terms, such as closed-loop pumped storage, in order to allow more projects to be eligible for the expedited process.38 24. In addition, commenters contend that the term ‘‘connected’’ is ambiguous as to whether the connection only refers to a physical hydraulic connection or includes a separate and independent hydrologic connection.39 Some commenters suggest that for a project to qualify for expedited processing as a closed-loop pumped storage project, there should be no hydrologic connection between the project and surface or groundwater features.40 Interior notes that subsurface or surface hydrologic connections might adversely affect lake levels and associated recreational use and access on lakes which would lead to longer processing times.41 NHA and Dominion allege that excluding projects from eligibility based on a mere physical hydraulic or a hydrologic connection to surface waters or groundwater would disqualify almost all closed-loop pumped storage projects, and therefore request that our definition focus on how the water would be used by the project rather than how the project is connected to the water feature.42 25. As for ‘‘naturally-flowing water features,’’ the Forest Service asks whether such water features include groundwater aquifers, existing lakes, or other isolated waterbodies.43 Commenters note that although flow is generally not significant in the hydrologic mass balance of lakes or other isolated, surface water features,44 use of the term ‘‘naturally-flowing’’ could result in eligibility for projects that would significantly adversely affect lakes, endorheic basins,45 and other 37 See Forest Service’s Comment at 2; Interior’s Comment at 3; Oregon DFW’s Comment at 1. 38 See NHA’s Comment at 10–15; Consumers’ Comment at 2; Dominion’s Comment at 4–8. 39 See, e.g., Forest Service’s Comment at 2. 40 See Oregon DFW’s Comment at 2; Nature Conservancy’s March 11, 2019 Comment at 4; Forest Service’s Comment at 2. 41 See Interior’s Comment at 3. 42 See NHA’s Comment at 14; Dominion’s Comment at 7. 43 See Forest Service’s Comment at 2. 44 See id. 45 Endorheic basins are hydrologically-landlocked drainage basins that do not discharge to other bodies of water. VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 isolated surface water features,46 as well as wildlife that inhabit these areas.47 26. We received several proposed alternative definitions of a closed-loop pumped storage project. 27. The Forest Service recommends that a closed-loop pumped storage project be defined as a pumped storage project ‘‘whose operation causes little to no change in discharge, flow, water quality, or other hydrologic characteristics of naturally-occurring surface or groundwater features, or the species and habitats that depend on these features.’’ 48 Oregon DFW suggests defining closed-loop pumped storage as ‘‘projects that utilize artificial reservoirs that have been constructed and operated for purposes authorized in the original license; that rely on temporary connections to flowing water features or groundwater for initial fill and periodic recharge; and whose construction and operation causes little to no change in discharge, flow, water quality, or other hydrologic characteristics of naturally occurring surface or groundwater features, or to the fish and wildlife and their habitats associated with these features.’’ 49 NHA and Dominion encourage the Commission to expand its definition, and suggest that the Commission define a closed-loop pumped storage project as: ‘‘a pumped storage project that: (1) does not obtain its principal water supply from a naturally-flowing water feature; (2) obtains its water from a naturallyflowing surface water feature only for the purpose of initial fill and periodic replenishment, or (3) is not located on a navigable waterway.’’ 50 28. As noted by the resource agencies, we recognize that use of the term ‘‘not continually connected’’ in our definition might capture pumped storage projects that would potentially require additional time and agency resources to determine their environmental effects, and may not be appropriate for expedited processing. Therefore, in the final rule, we adopt a definition of a closed-loop pumped storage project that focuses on the extent and type of a project’s use of surface waters or groundwater rather than on its physical, hydraulic connection to such features. Further, we agree with the 46 See Forest Service’s Comment at 2; Interior’s Comment at 3; Oregon DFW’s Comment at 2. 47 See Oregon DFW’s Comment at 2. 48 Forest Service’s Comment at 1. 49 Oregon DFW’s Comment at 2. 50 NHA’s Comment at 15; see Dominion’s Comment at 7. NHA contends that the location of a proposed project on non-navigable waterways (e.g., small creeks or streams which do not contain or affect significant environmental resources) should not disqualify the project from the expedited licensing process. PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 resource agencies that the term ‘‘naturally-flowing water features’’ in terms of a connected use is overly narrow and does not account for the environmental significance of water withdrawals from such features as groundwater, lakes, and wetlands. We see the benefit in specifying in our definition how we expect closed-loop pumped storage projects would utilize water from these water features (i.e., initial fill and periodic recharge), as suggested by many commenters.51 29. In addition, as required by section 35(g)(2) of the FPA, a request to use the expedited licensing process must demonstrate that a closed-loop pumped storage project will cause little to no change to existing surface and groundwater flows and uses, and is unlikely to adversely affect species listed as threatened or endangered under the Endangered Species Act of 1973 (ESA).52 If the proposed project does not meet these two aforementioned statutory criteria, then the project will not qualify under the AWIA for use of the expedited process. Therefore, we have incorporated these criteria into the final rule’s definition of a closed-loop pumped storage project. 30. As to the statutory requirement that the project cause little to no change to the existing surface flows and uses, the mere presence of a pumped storage project reservoir on a surface water feature, such as a natural waterway, lake, or wetland would undeniably change existing surface water flows and uses in direct contravention of FPA section 35(g)(2)(A). For this reason and for clarification, the revised definition requires closed-loop pumped storage projects to use reservoirs that are not located on natural surface water features. 31. Therefore, informed by the comments received on the NOPR, and for the purposes of expediting processing under the AWIA, § 7.1(c)(3) is revised, as follows: ‘‘pumped storage projects that: (1) cause little to no change to existing surface and groundwater flows and uses; (2) are unlikely to adversely affect species listed as a threatened species or endangered species, or designated critical habitat of such species, under the Endangered Species Act of 1973; (3) utilize only reservoirs situated at locations other than natural waterways, lakes, wetlands, and other natural surface water features; and (4) rely only on temporary withdrawals from surface 51 See, e.g., NHA’s Comment at 11, 14–15; Dominion’s Comment at 5; Oregon DFW’s Comment at 2. 52 16 U.S.C. 1531–1544 (2012). E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations waters or groundwater for the sole purposes of initial fill and periodic recharge needed for project operation.’’ 2. Section 7.2—Use of Expedited Licensing Process 32. Section 7.2 of the NOPR described the information that an applicant must include in any license application that accompanies a request to use the expedited licensing process. The information includes design and environmental criteria mandated by sections 34 and 35 of the FPA and documentation demonstrating early consultation with relevant agencies, Indian Tribes, and dam owners.53 jbell on DSK30RV082PROD with RULES a. Statutory Criteria for Qualifying Facilities at Nonpowered Dams 33. FPA section 34(e)(1) sets forth the ‘‘qualifying criteria’’ that a proposed project at an existing ‘‘qualifying nonpowered dam’’ must meet in order to be considered a ‘‘qualifying facility’’ 54 eligible to apply for the expedited licensing process. Section 34(e)(1) states that such a facility must: (A) As of October 23, 2018, not be licensed under, or exempted from, the license requirements contained in Part I of the FPA; (B) be associated with a qualifying nonpowered dam; (C) be constructed, operated, and maintained for the generation of electric power; (D) generate electricity by using any withdrawals, diversions, releases, or flows from the associated qualifying nonpowered dam, including its associated impoundment or other infrastructure; and (E) not result, due to operation of the facility, in any material change to the storage, release, or flow operations of the associated qualifying nonpowered dam.55 34. Section 34(e)(3) defines ‘‘qualifying nonpowered dam’’ as any dam, dike, embankment, or other barrier, constructed on or before October 23, 2018, that is or was operated for the control, release, or distribution of water for agricultural, municipal, navigational, industrial, commercial, environmental, recreational, aesthetic, drinking water, or flood control purposes, and that, as of October 23, 2018, is not generating electricity with hydropower generating works licensed under, or exempted from, the license requirements of Part I of the FPA.56 35. NHA and the Nature Conservancy ask the Commission to define the term 53 See NOPR, 166 FERC ¶ 61,083 at PP 15–17 (CWA), PP 18–22 (ESA), PP 23–24 (NHPA). 54 FPA section 34(e)(2) defines ‘‘qualifying facility’’ as any facility that is determined to meet the ‘‘qualifying criteria’’ under section 34(e)(1). 55 16 U.S.C.A. 823e(e)(1) (West 2019). 56 Id. section 823e(e)(3). VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 ‘‘material change’’ contained in FPA section 34(e)(1)(E).57 Concerned that the Commission’s interpretation of this statutory qualifying criterion might unnecessarily preclude from the expedited process projects that would have only minor effects on existing dam operations,58 NHA proposes to define a ‘‘material change’’ as a change that would ‘‘(1) significantly modify the prelicense storage, release, or flow operations of the associated qualifying nonpowered dam, or (2) would impair the ability of the dam owner to control operation of the dam.’’ 59 The Nature Conservancy proposes an alternative definition: ‘‘little or no change to the subdaily, daily, seasonal and interannual operations, or to the sediment, nutrient, dissolved oxygen, and temperature components of water quality upstream and downstream of the facility, unless it is clearly demonstrated that such changes will not conflict with the existing public uses and will also result in a new ecological benefit.’’ 60 36. NHA also requests that the final rule identify operational regimes, such as ‘‘run-of-river’’ or ‘‘run-of-release,’’ that would categorically not rise to the level of a ‘‘material change’’ to the storage, release, or flow operations.61 37. We decline to define ‘‘material change’’ as requested by NHA and the Nature Conservancy. The statute provides sufficiently clear guidance, such that a further definition is unnecessary. The term ‘‘material’’ is well understood to mean significant or consequential. Further, we do not believe that it would be possible to develop a definition of ‘‘material’’ that could be applied in all cases. We will examine the facts of any case in which the materiality of changes that be may caused by a proposed project is at issue, and make a case-by-case decision. 38. Rye Development recommends that we create alternative eligibility criteria for projects at nonpowered dams, to include projects that will (i) add new generating capacity to nonpowered dams, (ii) not include new dams or impoundments, (iii) not 57 FPA section 34(e)(1)(E) states that ‘‘the operation of the facility will not result in any material change to the storage, release, or flows from the associated qualifying nonpowered dam, including associated impoundment or other infrastructure.’’ 16 U.S.C.A. 823e(e)(1)(E) (emphasis added). 58 NHA’s and Dominion’s comments generally advocate that the Commission interpret statutory language generously and broadly in order to capture more projects in the expedited licensing process. See, e.g., NHA’s Comment at 11; Dominion Comment at 5 (interpret ‘‘cause little to no change’’ in FPA section 35(g)(2)(A) broadly). 59 NHA’s Comment at 10. 60 Nature Conservancy’s Comment at 3. 61 NHA’s Comment at 10. PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 17069 materially change any existing storage and release regimes, (iv) not include federal lands except for those associated with an existing federal dam, and (v) not require more than one environmental study season.62 Nature Conservancy recommends that an eligible facility not materially change water quality and that qualifying nonpowered dams exclude those that it terms ‘‘obsolete.’’ 63 Because section 34 of the FPA does not authorize the Commission to replace or revise the statutory eligibility criteria that Congress established for qualifying facilities at nonpowered dams, we will not make the additions recommended by Rye Development and Nature Conservancy. b. Qualifying Criteria for Closed-Loop Pumped Storage Projects 39. FPA section 35(g)(1) directs the Commission to establish criteria that a pumped storage project must meet to be eligible for the expedited licensing process. FPA section 35(g)(2) further instructs the Commission to include criteria that an eligible closed-loop pumped storage project cause little to no change to existing surface and groundwater flows and uses, and is unlikely to adversely affect species listed as threatened or endangered under the ESA. 40. We received several comments requesting that the final rule include additional or revised qualifying criteria for closed-loop pumped storage projects to be eligible for the expedited licensing process under FPA section 35(g)(2). Specifically, we received recommendations that the final rule include additional qualifying criteria to ensure that a closed-loop pumped storage project eligible for the expedited licensing process will: (i) Not be hydrologically connected to natural water bodies; 64 (ii) cause little to no change to existing aquatic habitats, water quality, and water quantity; 65 (iii) cause little to no change to river, lacustrine, and groundwater-dependent ecosystems; 66 (iv) cause little to no change to existing recreational access and uses; 67 (v) meet the intent of 62 Rye Development’s Comment at 7. Nature Conservancy’s Comment at 3 (recommending the addition of a criterion to ensure that an associated nonpowered dam actively serves a public purpose). 64 See Oregon DFW’s Comment at 2; Nature Conservancy’s Comment at 4. 65 See Oregon DFW’s Comment at 2; Nature Conservancy’s Comment at 4; NMFS’ February 15, 2019 Comment at 2; Forest Service’s Comment at 2–3; Interior’s Comment at 3. 66 See Forest Service’s Comment at 3; Oregon DFW’s Comment at 2. 67 See Interior’s Comment at 3. 63 See E:\FR\FM\24APR1.SGM 24APR1 17070 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations jbell on DSK30RV082PROD with RULES comprehensive land management plans for all applicable resources if the project will be located on federal reservations; 68 and (vi) not degrade or act as a source of contaminants to surface or groundwater features if the project will use abandoned mines as storage reservoirs.69 41. We believe that the Commission’s revised definition of a ‘‘closed-loop pumped storage project,’’ 70 in combination with the Commission’s existing licensing requirements, will ensure that only projects meeting the Congressional criteria qualify for expedited treatment, and that therefore no additional definition is needed. 42. With regard to the qualifying criteria, we also received requests to clarify the statutory language. NMFS, Interior, and Oregon DFW recommend that the qualifying criteria set forth in FPA section 35(g)(2)(i) be revised to specify ‘‘the construction and operation’’ of the project will cause little to no change to existing surface and groundwater flows and uses.71 43. We cannot revise the criteria established by Congress. However, we note that Congress did not exclude project construction and operation from the criteria in section 35(g)(2)(i). 44. Pursuant to the authority in FPA section 35(g)(2) that directs the Commission to establish additional qualifying criteria for closed-loop pumped storage projects, we proposed in the NOPR to add ‘‘designated critical habitat of species of [threatened or endangered] species’’ in § 7.2(b)(2)(ii) to ensure the qualifying criterion conforms with the ESA.72 45. NHA does not oppose this additional criterion because it assumes that an applicant would be unlikely to request use of the expedited licensing process if a proposed project would 68 See Forest Service’s Comment at 3; Interior’s Comment at 3; Nature Conservancy’s Comment at 4. Nature Conservancy also recommends a qualifying criterion that the project not be located on a river reach protected under the National Wild and Scenic Rivers Act, or similar state statute. However, pursuant to section 7(a) of the Wild and Scenic Rivers Act, the Commission is already prohibited from licensing the construction of any ‘‘dam, water conduit, reservoir, powerhouse, transmission line, or other project works . . . on or directly affecting’’ a river segment that Congress has designated as component of the National Wild and Scenic Rivers System. 16 U.S.C. 1278(a) (2012). 69 See Forest Service’s Comment at 3; Nature Conservancy’s Comment at 4. 70 See supra PP 28–31. 71 See NMFS’ Comment at 2; Interior’s Comment at 3; Oregon DFW’s Comment at 2. 72 NOPR, 166 FERC ¶ 61,083 at P 22 (explaining that section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2) (2012), requires agencies to ensure that their actions are not likely to result in the destruction or adverse modification of designated critical habitat of such species). VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 require preparation of a Biological Opinion.73 Forest Service endorses the addition.74 We therefore have retained the additional critical habitat criterion in § 7.2(b)(2)(ii) of the final rule. c. Commission-Defined Criteria for the Expedited Licensing Process 46. The NOPR established criteria for applications to be eligible for the new expedited licensing process. The FERCdefined criteria for the expedited process, as set forth in §§ 7.2(b)(3) to 7.2(b)(7), modify the timing of existing licensing requirements by requiring an applicant interested in pursuing the expedited process to submit certain documentation of consultation at the same time that an application is filed. i. Early Consultation With Agencies 47. Several commenters recommended early and frequent consultation with federal and state agencies. The Nature Conservancy recommends that § 7.2(b) include a requirement that applicants engage in early coordination with mandatory conditioning agencies and any resource agencies with jurisdiction over resources that may be affected by the proposed project.75 Interior also requests additional guidance on the form and content of the required prefiling documentation.76 48. Consultation with agencies will be crucial to the success of the expedited licensing process. Moreover, the consultation criteria discussed below are designed to promote early engagement between applicants and agencies. However, because the Commission’s existing regulations already require applicants to consult with these agencies prior to filing a license application,77 we decline to include Nature Conservancy’s suggested requirement in § 7.2(b) of the final rule. ii. Clean Water Act Documentation 49. In the NOPR, § 7.2(b)(3) proposed to require an applicant, as part of its application, to provide its request for certification under section 401(a)(1) of the Clean Water Act, including proof of the date on which the certifying agency received the request; and one of the following: (1) A copy of water quality certification, (2) evidence of a waiver of the certification, or (3) documentation from the state certifying agency that the water quality certification application is complete, or in the event a certifying agency denies certification, a copy of 73 NHA’s Comment at 13. Forest Service’s Comment at 3. 75 See Nature Conservancy’s Comment at 5. 77 See 18 CFR 4.38, 4.34(i), 5.1(d). 74 See PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 the denial within 30 days after the applicant receives it. 50. Daybreak contends that section 401 of the Clean Water Act does not require that a state certify a water quality certification application is complete in order to start the clock on the one-year statutory deadline for a state to act on an application.78 51. Daybreak is correct. Section 401(a)(1) of the Clean Water Act states that ‘‘[i]f the State . . . fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements . . . shall be waived with respect to such Federal application.’’ 79 A state’s one-year review period begins when the applicable state agency receives the request for water quality certification, not when the state agency deems an application ‘‘complete.’’ 80 52. The purpose of proposed § 7.2(b)(3)(iii) was not to inform the Commission when to start the one-year clock for state action on a section 401 application. Rather, proposed § 7.2(b)(3)(iii) sought to ensure that all of the necessary authorizations, including water quality certification, could be obtained in a timely enough manner so as to enable the Commission to act on a license application within two years from the date of application filing. 53. However, recognizing that requiring applicants to submit documentation from a state certifying agency that the water quality certification application is ‘‘complete’’ may prove difficult, we have revised § 7.2(b)(3)(iii) to remove this requirement. Accordingly, at the time of application filing, an applicant will be required to submit a copy of the request for certification, including proof of the date on which the certifying agency received the request; a copy of water quality certification; or evidence of waiver of water quality certification. This information will still enable us to assess the likelihood that a water quality certification will be obtained in a timely enough manner so as to facilitate Commission action on a license application within two years from the date of application filing. iii. ESA Documentation 54. NMFS recommends that the Commission require that applicants, in proposed § 7.2(b)(4), begin early coordination with NMFS during pre78 Daybreak’s Comment at 2. U.S.C. 1341(a)(1) (2012). 80 N.Y. State Dep’t of Environmental Conservation v. FERC, 884 F.3d 450, 455–456 (2d Cir. 2018). 79 33 E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations jbell on DSK30RV082PROD with RULES filing if the project would affect resources protected under the ESA or Magnuson-Stevens Fishery Conservation and Management Act (MSA).81 NMFS states that the benefits of early coordination include improved license applications, efficient environmental reviews, and a higher likelihood of a settlement.82 Interior requests that the same requirement be added with regard to early coordination with FWS and lists similar benefits.83 55. Pursuant to § 4.38 of the Commission’s regulations, a potential applicant must consult with the relevant federal, state, and interstate resource agencies, including NMFS and FWS, prior to filing an application for an original license. We agree with NMFS and Interior that early consultation on resources protected under the ESA or MSA would allow applicants to avoid or minimize effects to listed species by negotiating protection, mitigation, and enhancement measures. However, this request for pre-filing consultation does not differ from the Commission’s existing licensing requirements. Moreover, in the NOPR,84 the Commission proposed to require that any application filed with a request for authorization to use the expedited licensing process include: A no-effect determination that includes documentation that no listed species or critical habitat are present at the proposed project site; (ii) documentation of concurrence from FWS and NMFS, as necessary, on a not likely to adversely affect determination; or (iii) a draft biological assessment that includes documentation of consultation with FWS and NMFS, as necessary. Therefore, we find it unnecessary to add NMFS and Interior’s request as a requirement of the expedited licensing process.85 56. Interior recommends that the applicant file concurrently with its application written concurrence from applicable stakeholders concerning potential project impacts on natural, cultural, or recreation resources.86 57. After a license application is filed and accepted as complete, the Commission will issue a Ready for Environmental Analysis (REA) notice to seek input from stakeholders on an applicant’s license application in 81 16 U.S.C. 1801 et seq. (2012); See NMFS’ Comment at 2. 82 See id. 83 See Interior’s Comment at 3. 84 NOPR, 166 FERC ¶ 61,083 at P 11. 85 We also decline to issue guidance pertaining to how to consult with the FWS or how to interpret FWS’s or NMFS’ regulations and policies, as requested by Interior and NMFS. 86 Interior’s Comment at 1–2. VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 advance of preparing the Environmental Assessment (EA) or Environmental Impact Statement (EIS) required by the National Environmental Policy Act of 1969 (NEPA). In terms of the licensing process, seeking input from stakeholders at the time of the REA notice does not delay or slow down the license process timeline. Therefore, we find the recommendation that the applicant include with its application written concurrence from applicable stakeholders concerning potential project impacts on natural, cultural, or recreation resources unduly burdensome and unnecessary to expedite the licensing process. 58. To conform to ESA regulations, NMFS and Interior recommend that the Commission revise § 7.2(b)(4)(i) to replace ‘‘at the proposed project site’’ with ‘‘in the action area, as defined by the ESA regulations at 50 CFR 402.02.’’ 87 Interior explains that limiting evaluation to a ‘‘proposed project site’’ would not adequately consider impacts to National Park Services (NPS) resources and recreational use.88 All aspects of the project, Interior suggests, should be evaluated, such as staging and construction laydown areas, roads and other conduits and/or transmission line or interconnections.89 Interior recommends that the Commission evaluate a proposal and determine the impacts in ‘‘action areas’’ under the ESA and/or ‘‘area of potential effects’’ under the National Historic Preservation Act (NHPA) 90 in order to identify the potential adverse effects on natural and recreational resources near a NPS unit.91 59. We accept NMFS’ and Interior’s recommendation and replace the term ‘‘at the proposed project site’’ with the term ‘‘in the action area’’ in § 7.2(b)(4)(i) to bring the language into accord with the ESA. With respect to commenters’ other concerns about the Commission’s responsibilities under the ESA and the NHPA, the expedited licensing process does not change the Commission’s responsibilities under existing federal laws, such as the ESA and the NHPA, and Commission staff will continue to comply with all pertinent federal laws during the review of a license application. 60. NMFS and Interior request that the Commission clarify in § 7.2(b)(4)(i) that the Commission has the responsibility to determine whether 87 NMFS’ Comment at 2; Interior’s Comment at 4. Interior’s Comment at 2. 89 See id. 90 36 CFR 800.16(d) (2018). 91 See Interior’s Comment at 2 and n.2. 88 See PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 17071 ESA consultation is necessary under section 7 of the ESA.92 Both assert that the Commission has the ultimate responsibility to ensure compliance with section 7 of the ESA.93 61. Section 7 of the ESA speaks for itself and there is thus no need for the requested clarification in § 7.2(b)(4)(i). 62. NMFS and Interior request that the Commission clarify in § 7.2(b)(4)(ii) that the Commission will designate an applicant to be a non-federal representative under ESA regulations 94 at the beginning of the expedited process in order for the applicant to participate in informal ESA consultation.95 63. Section 5.5(e) of the Commission’s regulations 96 provides that a potential license applicant may, as early as the same time it files its notification of intent and distributes its pre-application document (PAD) at the beginning of the pre-filing period, request to be designated as the Commission’s nonfederal representative for purposes of consultation under section 7 of the ESA and the joint agency regulations thereunder at 50 CFR part 402, section 305(b) of the MSA and the implementing regulations at 50 CFR 600.902. Even if it chooses not to request such designation at the time of the filing of the notification of intent, an applicant could make such a request at any time later in the pre-filing period. The Commission typically grants such requests as a routine process matter. Therefore, there is no need for the requested clarification to § 7.2(b)(4)(ii). 64. NMFS recommends that the Commission, with the assistance of NMFS, develop guidance on informal ESA consultations and preparation of biological assessments to provide to the designated non-federal representative.97 NMFS and Interior further recommend that we provide a template letter for the Commission to use to designate a nonfederal representative to conduct consultation or prepare a draft biological assessment.98 65. Commission staff typically prepares guidance documents for use by prospective license applicants, federal and state resource agencies, and the public regarding various aspects of the 92 NMFS’ Comment at 2; Interior’s Comment at 4. Comment at 3; Interior’s Comment at 4. 94 See 50 CFR 402.02, 402.08, 402.13 (2018). 95 NMFS’ Comment at 2; Interior’s Comment at 3. 96 18 CFR 5.5(e). 97 See NMFS’ Comment at 3. 98 NMFS’ Comment at 3 and Attachment 1 (providing a sample template letter); Interior’s Comment at 3–4 and Attachment 1 (providing a sample template letter). 93 NMFS’ E:\FR\FM\24APR1.SGM 24APR1 17072 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations jbell on DSK30RV082PROD with RULES licensing process.99 We will instruct our staff to review the license process guidance material to determine what modifications and additional guidance are needed to facilitate the efficient implementation of the new part 7 regulations. 66. Interior recommends that proposed § 7.2(b)(4)(ii) should require consultation documentation ‘‘that the action is not likely to adversely affect ESA-listed species or critical habitat.’’ 100 We agree that Interior’s recommended revision is more precise, and have revised § 7.2(b)(4)(ii) accordingly. 67. NMFS requests clarification of the language ‘‘documentation of consultation with the Service(s)’’ in proposed § 7.2(b)(4)(iii). NMFS explains that the Commission must be involved with the applicant’s ESA consultation with NMFS, as required by ESA regulations.101 Interior requests that the phrase should be revised to ‘‘documentation of communication.’’ 102 68. We decline to make this change. As the ESA regulations allow, the intent here is that the applicant will act as our designated non-federal representative in seeking the documentation of consultation specified by § 7.2(b)(4)(iii). 69. NHA submits that Commission action on the request to use the expedited process comes too late in the process if it coincides with the REA notice.103 Instead, NHA contends, a request for expedited processing should be approved during the pre-filing process if an applicant is able to provide, concurrent with its Notice of Intent to File a License Application and PAD submittal, a no effect determination, FWS and/or NMFS concurrence on a not likely to adversely affect determination, or a draft biological assessment with documentation of consultation and draft mitigation measures.104 70. As noted above, the clear mandate of the AWIA is that the expedited licensing process begin with the filing of a completed license application, and therefore, we make no changes to the existing pre-filing processes. If an applicant requesting to use the expedited licensing process is able to demonstrate that its project satisfies the eligibility criteria and submits a 99 Commission staff’s licensing guidance material is available on the Commission’s website at http:// www.ferc.gov/industries/hydropower/gen-info/ licensing.asp. 100 Interior’s Comment at 4. 101 NMFS’ Comment at 3 (citing 50 CFR 402.08). 102 Interior’s Comment at 4. 103 NHA’s Comment at 13. 104 NHA’s Comment at 13; Dominion’s Comment at 6. VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 complete license application without the need for Commission staff to request additional information or correct deficiencies, then Commission staff will be able to approve the request sooner than 180 days from the date the application was filed. Generally, Commission staff issues an REA notice when it determines that the contents of a license application meet the Commission’s requirements and no additional information is needed to process the application.105 In the context of the expedited licensing process, if Commission staff determines a request and application are satisfactory, then we will issue an REA notice no later than 180 days from the date of receipt of a completed application. iv. NHPA Documentation 71. PA SHPO contends that the requirement in proposed § 7.2(b)(5) that an applicant provide documentation demonstrating that consultation with a SHPO or Tribal Historic Preservation Office has been initiated is insufficient to satisfy section 106 of the NHPA.106 In addition to consultation, PA SHPO requests that the Commission provide guidance to applicants regarding the consultation procedures for each state SHPO. PA SHPO recommends hiring consultants that meet Interior’s standards.107 PA SHPO further encourages applicants to initiate consultation early and to identify potentially affected historic properties as soon as possible.108 PA SHPO also notes some projects may be more likely to affect historic properties, which would require more consultation time under section 106 and may warrant exclusion from the expedited process.109 PA SHPO also requests that we consider the impacts on historic properties of transmission lines associated with projects eligible for the expedited process.110 72. PA SHPO states that existing nonpowered dams may be eligible to be listed as historic properties in the National Register.111 For a dam to be eligible in Pennsylvania, PA SHPO explains that the dam must have engineering significance or retain its historic setting and integrity in a surrounding historic district.112 PA 105 18 CFR 5.22. SHPO’s March 5, 2019 Comment at 1. 107 Id. (citing Secretary of Interior, Archeology and Historic Preservation; Secretary of the Interior’s Standards and Guidelines, 48 FR 44738–39 (1983)). 108 PA SHPO’s Comment at 1. 109 Id. 110 Id. 111 Id. at 2. 112 See id. 106 PA PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 SHPO also recommends that applicants should begin, and if possible finish, locating National Register significant archaeological properties during prefiling.113 73. PA SHPO recommends that the Commission, with the intent to improve efficiency, provide guidance on the anticipated effects and alternatives to adverse effects typically caused by projects located at nonpowered dams and closed-loop pumped storage projects.114 74. As we acknowledged in the NOPR,115 the requirement that a part 7 applicant provide documentation demonstrating that section 106 consultation has been initiated does not differ from the Commission’s existing licensing requirements.116 We expect our applicants, as the project proponents, to work collaboratively with a SHPO and any affected tribes to conduct information gathering and to complete any studies the Commission determines necessary to support its section 106 decision-making as the Commission will make the final determination. However, because consultation practices vary, we do not believe this rulemaking is the appropriate forum to provide guidance on each state SHPO’s section 106 consultation procedures and preferences. Moreover, because projects at nonpowered dams and closed-loop pumped storage projects can vary drastically in size and scope, the Commission prefers to analyze anticipated impacts on historic properties and resolution of any adverse impacts on a project-by-project basis, rather than providing a generalized or over-simplistic forecast of anticipated effects and alternatives for projects to be proposed at nonpowered dams and for closed-loop pumped storage projects. v. Dam Owner Documentation 75. The NOPR proposed to require an applicant to provide confirmation that the federal or non-federal dam owner is not opposed to hydropower development at the dam if the proposed project would be located at an existing nonpowered dam.117 76. The Forest Service requests clarification concerning the requirement in proposed § 7.2(b)(6)(ii) that an applicant provide confirmation that the federal entity is not opposed to hydropower development at the 113 See id. 114 Id. 115 NOPR, 166 FERC ¶ 61,083 at PP 23–24. 18 CFR 4.41(f)(4), 5.18(b)(3)(v). 117 See NOPR, 166 FERC ¶ 61,083 at P 25. 116 See E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations location.118 The Forest Service recommends that the documentation include confirmation that the applicant and federal entity discussed the possible license conditions that may be required by the federal entity, as well as confirmation of discussions about planning, permitting, and management issues related to all aspects of the development and operation of a hydropower facility, not only the location.119 According to the Forest Service, the requirement should also apply to applicants for closed-loop pumped storage projects.120 77. In contrast, Rye Development recommends that the final rule exclude the proposed requirement in § 7.2(b)(6)(ii) that the federal dam owner must state the project is feasible.121 Rye Development states that the U.S. Army Corps of Engineers’ (Army Corps) practice is to refuse to provide such documentation and it does not favor projects at its facilities.122 In effect, Rye Development contends the requirement would exclude many projects from the expedited process.123 78. NHA also opposes the requirement that an applicant must submit documentation demonstrating that the federal dam owner does not oppose project development.124 NHA states that the federal dam owner’s opposition to the project should not be determinative, but also notes that the federal entity could prevent project development even after issuance of a Commission license by denying necessary authorizations under its purview.125 According to NHA, a federal dam owner’s concerns about a proposed project should be addressed by the applicant outside of the Commission’s licensing process.126 Moreover, NHA observes that if the federal agency opposes the project, it is unlikely that an application will ever be filed.127 79. Dominion supports the NOPR’s proposal to require applicants to provide documentation of consultation with a non-federal dam owner that confirms the owner is not opposed to project development.128 Dominion notes that allowing a developer to obtain an expedited license at an existing nonfederal dam without the owner’s 118 Forest Service’s Comment at 3. id. 120 See id. 121 Rye Development’s Comment at 7. 122 See id. 123 See id. 124 NHA’s Comment at 16. 125 See id. 126 See id. 127 See id. 128 Dominion’s Comment at 8. jbell on DSK30RV082PROD with RULES 119 See VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 consent could impair the intended use of the dam and water resource.129 80. The Commission’s intent is to avoid significant staff expenditures of time and effort that would be needed to shepherd an application through the expedited licensing process to ensure a license decision can be made two years from application filing, only to have a project stalled by a federal dam owner’s general opposition to hydropower development at its facility. The required documentation must demonstrate a preliminary confirmation that the federal dam owner is not opposed to use of the facility for hydropower development; there is no need for the federal entity to agree to specific design components or specifications at the time of application filing. We also note that neither the Army Corps nor Interior (on behalf the Bureau of Reclamation) commented on this documentation requirement. 81. Accordingly, the final rule retains the requirement that an applicant provide documentation demonstrating that the dam owner, whether a federal or non-federal entity, is not opposed to project development. vi. Public Parks, Recreation Areas, and Wildlife Areas Documentation 82. If a proposed project would use any public park, recreation area, or wildlife refuge established under state or local law, the NOPR proposed in § 7.2(b)(7) to require an expedited licensing applicant to provide, at the time of application filing, documentation from the managing entity demonstrating that it is not opposed to use of the park, area, or wildlife refuge for hydropower development.130 83. Referencing § 7.2(b)(7) as proposed in the NOPR, Interior recommends that any license application submitted alongside a request to use the expedited licensing process address the following areas of interest to the National Park Service (NPS): (1) NPS areas; (2) Wild and Scenic Rivers; (3) Nationwide Rivers Inventory and eligible/suitable rivers; (4) recreation grant programs, and (5) recreation management.131 Specifically, Interior requests that if the project or any appurtenant structure or conduit is located in the vicinity of a NPS unit, consultation with NPS should begin as 129 See id. 130 NOPR, 166 FERC ¶ 61,083 at P 26 (explaining that section 21 of the FPA, as amended by the Energy Policy Act of 1992, limits the use of eminent domain to acquire any lands included within any public park, recreation area, or wildlife refuge established under state or local law). 131 Interior’s Comment at 5–6. PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 17073 soon as possible and an application should include a concurrence from the NPS that the project is not likely to adversely affect NPS-managed lands, or natural, cultural, or recreational resources.132 Interior also reminds the Commission that it must comply with the Wild and Scenic Rivers Act if a project is proposed to be located in the proximity of a designated Wild and Scenic River or Congressionallyauthorized study segments.133 Further, if the project would require a conversion under various NPSadministered recreation grant programs, Interior recommends that an application identify a suitable replacement property approved by NPS.134 Lastly, Interior recommends that an application include an explanation of a recreation strategy, a draft or final recreation management plan, and documentation of consultation with interested stakeholders.135 84. Pursuant to § 4.38 of the Commission’s regulations,136 a potential applicant must consult with the relevant federal, state, and interstate resource agencies, including NPS, prior to filing an application for an original license. Further, §§ 4.41 and 5.18 of our regulations require an application to include documentation of consultation; describe existing recreation facilities, existing and potential recreational use, and any new recreation development proposed by the applicant (e.g., recreation management plan); and identify any designated waters and lands including any areas within or in the vicinity of the proposed project boundary that are included in, or have been designated for the study for inclusion in, the National Wild and Scenic Rivers System, or that have been designated as wilderness area, recommended for such designation, or designated as a wilderness study area under the Wilderness Act.137 Therefore, with the exception of the need for an application to identify suitable replacement property under NPSadministered grant programs, Interior’s requests do not differ from the Commission’s existing requirements 132 Id. at 5. Interior also recommends that an application for a project proposed to be located on eligible or suitable wild and scenic rivers, including Nationwide Rivers Inventory, should include a determination from the NPS as to whether the project would preclude Wild and Scenic Rivers designation for Nationwide Rivers Inventory segments and other eligible and suitable river segments. 134 Id. at 5–6 (citing 36 CFR 59.3, 72.72, and 40 U.S.C. 550(b) and (e)). 135 Interior’s Comment at 6. 136 18 CFR 4.38. 137 See 18 CFR 4.41, 5.18. 133 Id. E:\FR\FM\24APR1.SGM 24APR1 17074 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations with respect to the recreation-related content of a license application. Identifying suitable replacement property under NPS-administered grant programs is not a prerequisite for issuance of a Commission license. The Commission does not anticipate that this information, or the lack thereof, will preclude the Commission’s expedited processing of the license application. Therefore, we will not require the additional information requested by Interior. 3. Section 7.3—Adequacy Review of Application 85. In the NOPR, the Commission proposed to review a license application that is accompanied by a request to use the expedited licensing process under part 4 (TLP or ALP) or part 5 (ILP) of the Commission’s regulations, depending on the applicant’s elected licensing process. If the application is deemed deficient and rejected under part 4 or 5, the NOPR explained that the request to use the expedited licensing process would likewise be rejected. 86. We received no comments on this aspect of the NOPR. The final rule retains § 7.3 as originally proposed. jbell on DSK30RV082PROD with RULES 4. Section 7.4—Additional Information 87. In the NOPR, the Commission proposed to include § 7.4, requiring an applicant under part 7 to submit additional information or documentation to the Commission in the form and time frame prescribed by the Commission. As proposed, § 7.4 would also allow the Commission to direct a part 7 applicant to submit copies of the application or other filed materials to any person, agency, Indian Tribe, or other entity specified by the Commission. Failure to provide the requested information or documentation as specified may result in dismissal or abeyance of the license application. 88. We received no comments on this aspect of the NOPR. The final rule retains § 7.4 as originally proposed. 5. Section 7.5—Decision on Request To Use Expedited Licensing Process 89. In the NOPR, the Commission proposed that the Director of the Office of Energy Projects (OEP) would act on a request to use the expedited licensing process within six months from the date of application filing. If Commission staff is unable to find that the application meets the requirements of parts 4, 5, and 7, deficiencies remain, or additional information is still needed six months after the date the application is filed, the Director will deny the request to use the expedited licensing process. If the expedited licensing request is denied, VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 proposed § 7.5 explained that the license application would be processed pursuant to a standard processing schedule under parts 4 or 5 of the Commission’s regulations, as appropriate. 90. Daybreak recommends that the Director of OEP should only have 60 to 90 days, not six months as proposed in § 7.5, to review a request to use the expedited process to determine whether the project is eligible for the expedited process.138 Similarly, NMFS recommends 30 to 60 days to make this determination,139 while the Nature Conservancy recommends 60 days.140 If an application is complete, NMFS recommends that the Commission issue a Notice of Acceptance and Ready for Environmental Analysis immediately and not wait for the six-month period to run.141 Alternatively, Daybreak recommends that the time for the applicants to respond to the Commission staff’s deficiency requests should not be counted toward the twoyear deadline.142 91. The Nature Conservancy asks the Commission to clarify whether the twoyear timeframe begins once the Director of OEP determines whether the use of the expedited licensing process is appropriate.143 92. To clarify, the Director of OEP will act on a request to use the expedited licensing process no later than 180 days after an application and request to use the expedited process has been filed. However, earlier action by the Director of OEP is possible if an application clearly demonstrates compliance with the expedited licensing eligibility criteria. The timeliness of the Director’s action on such a request will also be directly tied to the completeness of the license application as well as the applicant’s prompt resolution of any deficiencies and additional information requests. If an applicant is unable to correct all deficiencies within 180 days after the application filing date, the Director will deny the request to use the expedited licensing process, and processing of the application will proceed under the Commission’s standard licensing process. 93. If the Director approves a request to use the expedited licensing process, the two-year process will be deemed to have begun on the date the application was filed. Therefore, whether the Director approves an expedited 138 Daybreak’s Comment at 3. Comment at 3. 140 Nature Conservancy’s Comments at 5. 141 NMFS’ Comment at 3. 142 Daybreak’s Comment at 3. 143 Nature Conservancy’s Comment at 5. licensing request within 30 days or 180 days from the date the application was filed, the two-year schedule commences on the date the application was filed. For the sake of precision, we have revised §§ 7.5 and 7.6 in the final rule to replace ‘‘6 months’’ with ‘‘180 days.’’ 6. Section 7.6—Notice of Acceptance and Ready for Environmental Analysis 94. As proposed in the NOPR, section 7.6 explained that if the Director of OEP approves a request to use the expedited licensing process, the Commission will issue a public notice no later than six months from the application filing date. The notice will accept the application and confirm the acceptance date as the application filing date; find the application ready for environmental analysis; request comments, protests, and interventions; request recommendations, preliminary terms and conditions, and preliminary fishway prescriptions; and establish a schedule for the application’s expedited processing. 95. The expedited schedule will include date estimates for: (i) The filing of recommendations, preliminary terms and conditions, and fishway prescriptions; (ii) issuance of the draft NEPA document, or an EA not preceded by a draft; (iii) filing of responses, if applicable, to requests for concurrence or formal consultation under ESA, or to other Commission staff requests to agencies or Indian Tribes under other federal laws, including the MSA and the NHPA; (iv) filing of comments on a draft NEPA document, if applicable; (v) filing of modified recommendations, mandatory terms and conditions, and fishway prescriptions in response to a draft NEPA document or, if no draft NEPA document is issued, to an EA; and (vi) issuance of a final NEPA document, if applicable. 96. NMFS and Interior request that the Commission, prior to issuing public notice of the application, seek concurrence on the proposed schedule from the agencies responsible for the various environmental reviews and authorizations.144 NMFS and Interior also request that the Commission issue a final decision on an application as soon as possible after the issuance of the final NEPA document to allow resource agencies sufficient time within the twoyear expedited process to complete the requisite environmental reviews and authorizations.145 139 NMFS’ PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 144 NMFS’ Comment at 3; Interior’s Comment at 145 NMFS’ Comment at 3; Interior’s Comment at 4. 4. E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations 97. The expedited processing schedule provided for in § 7.6(e) will be determined on case-by-case basis. Agencies should memorialize any anticipated timing or scheduling concerns during pre-filing correspondence with the applicant. In addition, once an application with a request for expedited processing is filed with the Commission, agencies should strive to promptly notify the Commission of any schedule-related concerns or requests. The Commission will consider any such agency input prior to issuing the public notice containing a project’s expedited licensing schedule. 7. Section 7.7—Amendment of Application 98. Section 7.7 of the NOPR proposed a process for amending a pending part 7 application following the Commission’s issuance of the notice accepting the application and finding it ready for environmental analysis. 99. The Forest Service recommends that amendments to a license application filed under part 7 only be permitted before the Commission issues a notice of acceptance of the application.146 Permitting amendments after a notice of acceptance has been issued would not allow sufficient time for the applicant and agencies to negotiate and modify license terms and conditions.147 100. We agree that a request to amend a part 7 license application after the acceptance of the application and issuance of the expedited processing schedule may interfere with the Commission’s ability to act on a license application within two years from the date of application filing. Therefore, we have revised § 7.7 to allow the Director of OEP to remove an application from the expedited licensing process if the applicant files a significant amendment to its application. If an application is removed from the expedited licensing process, Commission staff will continue to process the application under the Commission’s standard licensing process. jbell on DSK30RV082PROD with RULES 8. Section 7.8—Other Provisions 101. Section 7.8, as proposed in the NOPR, authorized the Director of OEP to waive or modify provisions of part 7 for good cause. Proposed § 7.8 also explained that the Commission may consider late-filed recommendations by authorized fish and wildlife agencies under the Fish and Wildlife 146 Forest 147 Forest Service’s Comment at 4. Service’s Comment at 4. VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 Coordination Act 148 and FPA section 10(j),149 and late-filed FPA section 4(e) 150 terms and conditions or FPA section 18 151 prescriptions as cause to remove the application from the expedited licensing process under this part. In addition, proposed § 7.8(c)(5) stated that ‘‘[t]he Commission will require the construction, maintenance, and operation of such fishways as may be timely prescribed by the Secretary of Commerce or the Secretary of the Interior, as appropriate, pursuant to section 18 of the [FPA].’’ 152 102. NMFS and Interior recommend that the Commission expand or generalize the circumstances listed in proposed § 7.8 that would cause the Commission to remove a project from the expedited process.153 NMFS provides two examples, one in which the an applicant fails to provide sufficient information to complete ESA or essential fish habitat (EFH) consultation due to unanticipated delays, and another in which the scope of the project changes unexpectedly.154 103. Once an applicant has received approval to use the expedited licensing process, circumstances such as late-filed recommendations, terms and conditions, or prescriptions that may cause a project to be removed from the expedited licensing process will be evaluated on a case-by-case basis. The scenarios posed by NMFS (i.e., insufficient information to complete ESA or EFH consultation and unanticipated changes to the scope of the project) could impact the aspirational two-year processing timeline, but depending on the circumstances, may not be cause to remove the project from the expedited licensing process. In the alternative, rather than removing the project from the expedited licensing process, Commission staff may instead choose to document the reason for the delay and issue a revised processing schedule that may extend the original two year timeline. 104. NMFS and Interior state that the Commission lacks the authority to reject a mandatory license condition prescribed by an agency under section 4(e) of the FPA or a fishway prescription prescribed by agency under section 18 of the FPA based on a deadline set forth 148 16 U.S.C. 661–666c (2012). section 803(j). 150 Id. section 797(e). 151 Id. section 811. 152 NOPR, 166 FERC ¶ 61,083 at § 7.8(c)(5) (emphasis added). 153 NMFS’ Comment at 4; Interior’s Comment at 4. 154 NMFS’ Comment at 4. 149 Id. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 17075 by the Commission.155 Therefore, NMFS recommends that the word ‘‘timely’’ be removed from proposed § 7.8(c)(5).156 105. As NMFS and Interior correctly observe, the Commission has no authority to reject mandatory conditions filed under FPA section 4(e) or fishway prescriptions filed under FPA section 18 even if the mandatory condition or prescription is filed late.157 Accordingly, we have deleted the word ‘‘timely’’ from § 7.8(c)(5). 9. Section 7.9—Transition Provision 106. The NOPR proposed including a transition provision to clarify that the new part 7 would only apply to original license applications filed on or after the effective date of the final rule. 107. The Commission received no comments on this aspect of the NOPR. The final rule retains § 7.9 as originally proposed. C. Other Matters 1. Projects That Require an EIS 108. The NOPR requested comments on whether the expedited licensing process should be available for projects that otherwise meet the eligibility criteria, but will require the preparation of an EIS.158 109. The Forest Service, Oregon DFW, Interior, and the Nature Conservancy support excluding projects that would require the preparation of an EIS from the expedited process because the expedited process should only be available for projects that would have limited environmental impacts.159 110. In contrast, Daybreak believes that an expedited process that would exclude closed-loop pumped storage projects that would require an EIS would be overly restrictive.160 Daybreak warns that ‘‘virtually’’ no closed-loop pumped storage project would qualify for the expedited process and would violate the purpose of the statute.161 111. Rather than categorically excluding projects that will require preparation of an EIS, NHA suggests that the Commission should make a case-by-case determination at the conclusion of the pre-filing NEPA scoping on whether the particular 155 NMFS’ Comment at 4; Interior’s Comment at 2 and 5. 156 NMFS’ Comment at 4. 157 See City of Tacoma, WA v. FERC, 460 F.3d 53, 64–65 (D.C. Cir. 2006). 158 NOPR, 166 FERC ¶ 61,083 at PP 45–47. 159 Forest Service’s Comment at 4; Oregon DFW’s Comment at 2; Interior’s Comment at 7; Nature Conservancy’s Comment at 2. 160 Daybreak’s Comment at 2–3. 161 Id. E:\FR\FM\24APR1.SGM 24APR1 17076 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations circumstances warrant approval of the expedited licensing process.162 112. As further described in the discussion regarding the One Federal Decision process,163 the final rule will not categorically exclude applications for projects that would require the preparation of an EIS.164 In light of NHA’s recommendation, Commission staff will decide, on a case-by-case basis, whether to approve a request to use the expedited process after completing prefiling scoping. By waiting until more information about a proposal’s possible environmental effects is available, we ensure that EIS projects that can be licensed within two years are not unreasonably excluded from the expedited process. Yet, we would also be able to exclude from expedited processing EIS projects that would require more resources, thereby ensuring that these projects are not hastily licensed under the expedited process. Accordingly, the final rule will not restrict part 7 eligibility to only projects that require preparation of an EA. 113. The Forest Service and NMFS request clarification on the processing timeline for an application for a project that would be eligible for both the expedited licensing process and the One Federal Decision process.165 114. By signing a Memorandum of Understanding Implementing One Federal Decision Under Executive Order 13807,166 federal agencies, including the Commission, committed to completing within an average of two years all required environmental reviews and authorization decisions for ‘‘major infrastructure projects.’’ 167 In general for hydropower projects, this two-year 162 NHA’s Comment at 18. infra PP 114–115. 164 Under the Commission’s existing regulations, an EIS is normally prepared for licenses for construction of any unconstructed water power projects. 18 CFR 380.6(a)(4) (2018). If, however, the Commission finds a license application may not significantly affect the quality of the human environment, an EIS may not be required to be prepared. Id. 380.6(b). 165 Forest Service’s Comment at 4; NMFS’ Comment at 1. 166 Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, Exec. Order No. 13,807, 82 FR 40,463 (Aug. 15, 2017); Memorandum of Understanding Implementing the One Federal Decision under Executive Order 13807, https:// www.ferc.gov/legal/mou/2018/MOU-One-FederalDecision.pdf (One Federal Decision MOU). 167 A major infrastructure project is defined as an infrastructure project for which multiple authorizations by Federal agencies will be required to proceed with construction, the lead Federal agency has determined that it will prepare an EIS, and the project sponsor has identified the reasonable availability of funds sufficient to complete the project. Exec. Order No. 13,807, section 3(e). jbell on DSK30RV082PROD with RULES 163 See VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 timeframe starts on the date the Commission publishes a Notice of Intent to prepare an EIS and ends with the issuance of all federal environmental reviews and authorization decisions.168 115. Projects that qualify as ‘‘major infrastructure projects’’ and receive approval to use the expedited licensing process will be processed under the two-year expedited licensing process set forth in part 7 of the Commission’s regulations. The two-year timeframe for the expedited licensing process will begin on the date of application filing, and will follow the procedures set forth in part 7 of the Commission’s regulations. Under the expedited licensing process, the Commission will strive to ensure that a final order is issued within two years from the date of application filing, as directed by the AWIA. We believe this outcome fulfills the spirit of the One Federal Decision MOU. 2. FPA Section 35(c) Exceptions 116. When issuing or amending a license for a closed-loop pumped storage project under the expedited licensing process, FPA section 35(c) gives the Commission discretion to ‘‘grant an exception from any other requirement of [FPA Part I] with respect to any part of the closed-loop pumped storage project (not including any dam or other impoundment).’’ 169 The NOPR did not propose regulations implementing this section of the AWIA. 117. NHA notes that the NOPR did not discuss FPA section 35(c), and asks the Commission to provide guidance on the kinds of exceptions to the FPA Part I requirements that it will adopt or consider.170 NHA posits that section 35(c) allows the Commission to ease the burden of license conditions for closedloop pumped storage projects that qualify for expedited processing, noting that the Commission could refrain from requiring recreation improvements or could ease monitoring and reporting requirements unrelated to dam and project safety for these types of projects.171 118. Pursuant to section 35(c) of the FPA, any applicant interested in pursuing the expedited licensing process may request an exception from any of the requirements of Part I of the FPA with respect to any part of the applicant’s proposed closed-loop 168 FERC’s One Federal Decision Implementation Plan, Attachment C. Under our One Federal Decision Implementation Plan, we will issue NOIs to prepare an EIS in post-filing for hydropower projects. 169 16 U.S.C.A. 823f(c) (West 2019). 170 NHA’s Comment at 19. 171 NHA’s Comment at 19. PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 pumped storage project (not including any dam or other impoundment). An applicant may request a section 35(c) exception concurrently with a license application and the request for authorization to use the expedited licensing process. A request for a section 35(c) exception should clearly identify the requirement under Part I of the FPA from which the applicant is seeking to be excepted and provide reasoned justification for the request. IV. Regulatory Requirements A. Information Collection Statement 119. The Paperwork Reduction Act 172 requires each federal agency to seek and obtain the Office of Management and Budget’s (OMB) approval before undertaking a collection of information directed to ten or more persons or contained in a rule of general applicability. OMB regulations require approval of certain information collection requirements contained in final rules published in the Federal Register.173 Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number. 120. Public Reporting Burden: In this final rule, the Commission establishes an expedited process for issuing original licenses for qualifying facilities at nonpowered dams and for closed-loop pumped storage projects, as directed by Congress in the AWIA. 121. This final rule modifies certain reporting and recordkeeping requirements included in FERC–500 (OMB Control No. 1902–0058) 174 and FERC–505 (OMB Control No. 1902– 0115).175 122. The revisions to the Commission’s regulations, associated with the FERC–500 and FERC–505 information collections, are intended to comply with the requirements of the AWIA. While the information to be included in the license application and the required federal and state authorizations would remain the same under the expedited licensing process, 172 44 U.S.C. 3501–3521 (2012). 5 CFR 1320.12 (2018). 174 FERC–500 includes the reporting and recordkeeping requirements for ‘‘Application for License/Relicense for Water Projects with More than 5 Megawatt (MW) Capacity.’’ 175 FERC–505 includes the reporting and recordkeeping requirements for ‘‘Small Hydropower Projects and Conduit Facilities including License/ Relicense, Exemption, and Qualifying Conduit Facility Determination.’’ 173 See E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations consultation documentation regarding these authorizations will need to be submitted to the Commission at an earlier point in the licensing process. Therefore, preparing the request to use the expedited licensing process represents a slight increase in the reporting requirements and burden information for FERC–500 and FERC– 505. 17077 123. The estimated burden and cost for the requirements contained in this final rule follow. jbell on DSK30RV082PROD with RULES REVISIONS DUE TO THE FINAL RULE IN DOCKET NO. RM19–6–000 Number of respondents Number of responses per respondent Total number of responses Average burden hours & cost per response 176 Total annual burden hours & total annual cost (1) (2) (1) × (2) = (3) (4) (3) × (4) = 5 FERC–500 ................................................... FERC–505 ................................................... 5 5 1 1 5 5 40; $3,160 ................. 40; $3,160 ................. 200 hrs.; $15,800. 200 hrs.; $15,800. Total ...................................................... ........................ ........................ 10 .................................... 400 hrs.; $31,600. 124. Titles: FERC–500 (Application for License/Relicense for Water Projects with More than 5 Megawatt (MW) Capacity) and FERC–505 (Small Hydropower Projects and Conduit Facilities including License/Relicense, Exemption, and Qualifying Conduit Facility Determination). 125. Action: Revisions to information collections FERC–500 and FERC–505. 126. OMB Control Nos.: 1902–0058 (FERC–500) and 1902–0115 (FERC– 505). 127. Respondents: Municipalities, businesses, private citizens, and forprofit and not-for-profit institutions. 128. Frequency of Information: Ongoing. 129. Necessity of Information: The revised regulations implement the AWIA’s directive to establish an expedited licensing process for two types of hydropower projects— qualifying facilities at existing nonpowered dams and closed-loop pumped storage projects. The revised regulations would affect only those entities that opt to request authorization to use the expedited process at the time they file a license application proposing one of the two aforementioned project types. The revised regulations would impose a new, albeit slight, information collection requirement. 130. The new requirement for an applicant to file a request for authorization to use the expedited process concurrently with its license application is necessary for the Commission to carry out its responsibilities under the FPA, as amended by the AWIA. The information provided by the applicants will enable the Commission to review the features of the proposed project and make a determination on whether the proposed project meets the statutory criteria enumerated in the AWIA, as well as the early consultation requirements that the Commission has determined will help it seek to ensure that the proposed project’s license application will be acted on no later than two years after the date of application filing. 131. Internal Review: The Commission has reviewed the revisions and has determined that they are necessary. These requirements conform to the Commission’s need for efficient information collection, communication, and management within the energy industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information collection requirements. 132. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], by email to DataClearance@ferc.gov, by phone (202) 502–8663, or by fax (202) 273–0873. 133. Comments concerning the collections of information and the associated burden estimates may also be sent to: Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. Due to security concerns, comments should be sent electronically to the following email address: oira_submission@ omb.eop.gov. Comments submitted to OMB should refer to FERC–500 (OMB 176 The estimates for cost per response are derived using the following formula: Average Burden Hours per Response * $79 per Hour = Average Cost per Response. The hourly cost figure of $79 is the 2018 average FERC employee wage plus benefits. Commission staff assumes that respondents earn at a similar rate to FERC employees. 177 Regulations Implementing the National Environmental Policy Act, Order No. 486, 52 FR VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 Control No. 1902–0058) and FERC–505 (OMB Control No. 1902–0115). B. Environmental Analysis 134. The Commission is required to prepare an EA or an EIS for any action that may have a significant adverse effect on the human environment.177 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Excluded from this requirement are rules that are clarifying, corrective, or procedural, or that do not substantially change the effect of legislation or the regulations being amended.178 This final rule establishes an expedited licensing process for qualifying facilities at nonpowered dams and for closed-loop pumped storage projects, as directed by Congress in the AWIA. Because this final rule is procedural in nature and does not substantially change the effect of the underlying legislation, preparation of an EA or EIS is not required. C. Regulatory Flexibility Act 135. The Regulatory Flexibility Act of 1980 (RFA) 179 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a final rule and minimize any significant economic impact on a substantial number of small entities.180 In lieu of preparing a regulatory flexibility analysis, an agency may certify that a final rule will not have a 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987) (cross-referenced at 41 FERC 61,284). 178 18 CFR 380.4(a)(2)(ii) (2018). 179 5 U.S.C. 601–612 (2012). 180 Id. section 603(c). E:\FR\FM\24APR1.SGM 24APR1 17078 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations significant economic impact on a substantial number of small entities.181 136. The Small Business Administration’s (SBA) Office of Size Standards develops the numerical definition of a small business.182 The SBA size standard for electric utilities is based on the number of employees, including affiliates.183 Under SBA’s current size standards, a hydroelectric power generator (NAICS code 221111) 184 is small if it, including its affiliates, employs 500 or fewer people.185 137. This final rule will directly affect only those entities that file an application for a qualifying facility at a nonpowered dam or for a closed-loop pumped storage project, and a request to use the expedited licensing process. While the information to be included in the licensing application and the required federal and state authorizations would remain the same, documentation regarding these authorizations will need to be submitted at an earlier point in the licensing process. Therefore, preparing a request to use the expedited licensing process would represent a slight increase (40 hours of reporting burden and corresponding wage costs of $3,160 per entity on an annual basis) in the information collection reporting requirements and burden for FERC–500 and FERC–505. However, we do not anticipate the impact of the final rule on affected entities, regardless of their status as a small entity or not, to be significant. 138. Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that this final rule will not have a significant economic impact on a substantial number of small entities. D. Document Availability 139. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission’s Home Page (http:// www.ferc.gov) and in the Commission’s Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington DC 20426. 181 Id. section 605(b). CFR 121.101 (2018). 183 Id. section 121.201. 184 The North American Industry Classification System (NAICS) is an industry classification system that Federal statistical agencies use to categorize businesses for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy. United States Census Bureau, North American Industry Classification System, https:// www.census.gov/eos/www/naics/. 185 13 CFR 121.201 (2018) (Sector 22—Utilities). jbell on DSK30RV082PROD with RULES 182 13 VerDate Sep<11>2014 16:49 Apr 23, 2019 Jkt 247001 140. From the Commission’s Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number, excluding the last three digits of this document, in the docket number field. 141. User assistance is available for eLibrary and the Commission’s website during normal business hours from the Commission’s Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502–8371, TTY (202) 502–8659. Email the Public Reference Room at public.referenceroom@ferc.gov. E. Effective Date and Congressional Notification 142. These regulations are effective July 23, 2019. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a major rule as defined in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996.186 This rule is being submitted to the Senate, House, Government Accountability Office, and Small Business Administration. List of Subjects in 18 CFR Part 7 Administrative practice and procedure, Electric power, Reporting and recordkeeping requirements. By direction of the Commission. Commissioner McNamee is not participating. Issued: April 18, 2019. Nathaniel J. Davis, Sr., Deputy Secretary. In consideration of the foregoing, the Commission adds part 7, chapter I, title 18, Code of Federal Regulations, as follows: ■ PART 7—EXPEDITED LICENSING PROCESS FOR QUALIFYING NONFEDERAL HYDROPOWER PROJECTS AT EXISTING NONPOWERED DAMS AND FOR CLOSED-LOOP PUMPED STORAGE PROJECTS Sec. 7.1 7.2 7.3 7.4 7.5 Applicability and definitions. Use of expedited licensing process. Adequacy review of application. Additional information. Decision on request to use expedited licensing process. 7.6 Notice of acceptance and ready for environmental analysis. 186 5 PO 00000 U.S.C. 804(2) (2012). Frm 00024 Fmt 4700 Sfmt 4700 7.7 7.8 7.9 Amendment of application. Other provisions. Transition provision. Authority: 16 U.S.C. 791a–825r; Pub. L. 115–270, 132 Stat. 3765. § 7.1 Applicability and definitions. (a) Applicability of the expedited licensing process. This part applies to the processing of applications for original licenses for qualifying nonfederal hydropower projects at existing nonpowered dams and for closed-loop pumped storage projects pursuant to sections 34 and 35 of the Federal Power Act. (b) Applicability of existing regulations. Except where superseded by the expedited licensing process set forth in this part, the regulations governing license applications under parts 4 and 5 of this chapter, as applicable, also apply to license applications filed under this part. (c) Definitions. The definitions in § 4.30(b) of this chapter apply to this part. In addition, for the purposes of this part— (1) Qualifying nonpowered dam means any dam, dike, embankment, or other barrier— (i) The construction of which was completed on or before October 23, 2018; (ii) That is or was operated for the control, release, or distribution of water for agricultural, municipal, navigational, industrial, commercial, environmental, recreational, aesthetic, drinking water, or flood control purposes; and (iii) That, as of October 23, 2018, was not generating electricity with hydropower generating works that were licensed under, or exempted from the license requirements contained in, Part I of the Federal Power Act. (2) Qualifying facility means a facility that is determined under section 34 of the Federal Power Act to meet the qualifying criteria for non-federal hydropower projects at existing nonpowered dams. (3) Qualifying criteria for closed-loop pumped storage projects means criteria that a pumped storage project must meet in order to qualify as a closed-loop pumped storage project eligible for the expedited process established under this part. These criteria require that the pumped storage project: (i) Cause little to no change to existing surface and groundwater flows and uses; (ii) Is unlikely to adversely affect species listed as a threatened species or endangered species, or designated critical habitat of such species, under the Endangered Species Act of 1973; (iii) Utilize only reservoirs situated at locations other than natural waterways, E:\FR\FM\24APR1.SGM 24APR1 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations lakes, wetlands, and other natural surface water features; and (iv) Rely only on temporary withdrawals from surface waters or groundwater for the sole purposes of initial fill and periodic recharge needed for project operation. (d) Who may file. Any citizen, association of citizens, domestic corporation, municipality, or state that develops and files a license application under 18 CFR parts 4 and 5, as applicable, may request expedited processing under this part. (e) Use of expedited licensing process. An applicant wishing to use this expedited licensing process must apply for and receive authorization from the Commission under this part. An applicant under this part may elect to use the licensing process provided for in 18 CFR part 5 (i.e., integrated license application process), or as provided under 18 CFR 5.1: (1) 18 CFR part 4, subparts D–H (i.e., traditional process); or (2) Section 4.34(i) of this chapter, Alternative procedures. jbell on DSK30RV082PROD with RULES § 7.2 Use of expedited licensing process. (a) In order to pursue the expedited licensing process, an applicant must request authorization for the expedited process, as provided for in paragraph (b) of this section. The licensing procedures in this part do not apply to an application for a new or subsequent license. (b) An application that accompanies a request for authorization to use the expedited licensing process must include the information specified below. (1) Section 34 of the Federal Power Act qualification—projects at nonpowered dams. The application must demonstrate that the proposed facility meets the following qualifications pursuant to section 34(e) of the Federal Power Act: (i) As of October 23, 2018, the proposed hydropower facility was not licensed under or exempted from the license requirements contained in Part I of the Federal Power Act; (ii) The facility will be associated with a qualifying nonpowered dam; (iii) The facility will be constructed, operated, and maintained for the generation of electric power; (iv) The facility will use for such generation any withdrawals, diversions, releases, or flows from the associated qualifying nonpowered dam, including its associated impoundment or other infrastructure; and (v) The operation of the facility will not result in any material change to the storage, release, or flow operations of VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 the associated qualifying nonpowered dam. (2) Section 35 of the Federal Power Act qualification—closed-loop pumped storage projects. The application must demonstrate that the proposed closedloop pumped storage project meets the following qualifications pursuant to section 35(g)(2) of the Federal Power Act: (i) The project will cause little to no change to existing surface and groundwater flows and uses; and (ii) The project is unlikely to adversely affect species listed as a threatened species or endangered species, or designated critical habitat of such species, under the Endangered Species Act of 1973. (3) Section 401 of the Clean Water Act. The application must include a copy of a request for certification under section 401(a)(1) of the Clean Water Act, including proof of the date on which the certifying agency received the request; or (i) A copy of water quality certification; or (ii) Evidence of waiver of water quality certification. A certifying agency is deemed to have waived the certification requirements of section 401(a)(1) of the Clean Water Act if the certifying agency has not denied or granted certification by one year after the date the certifying agency received a written request for certification. If a certifying agency denies certification, the applicant must file a copy of the denial within 30 days after the applicant received it. (4) Endangered Species Act (ESA). The application must include: (i) A no-effect determination that includes documentation that no listed species or critical habitat are present in the action area; (ii) Documentation of concurrence from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Service(s)), as necessary, that the action is not likely to adversely affect ESA-listed species or critical habitat; or (iii) A draft Biological Assessment that includes documentation of consultation with the Service(s). (5) Section 106 of the National Historic Preservation Act. Documentation that section 106 consultation has been initiated with the state historic preservation officer(s) and any Indian Tribes identified as having an interest in the project. (6) Dam owner documentation. For projects to be located at existing nonpowered dams: (i) Documentation of consultation with any nonfederal owner of the PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 17079 nonpowered dam if the applicant is not the owner and confirmation that the owner is not opposed to a hydropower development at the location; or (ii) Documentation from the federal entity that non-federal hydropower development is not precluded at the proposed location and confirmation that the federal entity is not opposed to a hydropower development at the location. (7) Public parks, recreation areas, and wildlife refuges. If the project would use any public park, recreation area, or wildlife refuge established under state or local law, documentation from the managing entity indicating it is not opposed to the site’s use for hydropower development. § 7.3 Adequacy review of application. (a) Adequacy review of license applications. Review of the original license application for which expedited processing under this part is requested will be conducted pursuant to 18 CFR part 4 or 5, as applicable. (b) Deficient license applications. If an original license application for which expedited processing is requested under this part is rejected under 18 CFR parts 4 and 5, as applicable, the request for authorization for the expedited licensing process under this part is deemed rejected. § 7.4 Additional information. An applicant may be required to submit any additional information or documentation that the Commission considers relevant for an informed decision on the application for authorization under this part. The information or documents must take the form, and must be submitted within the time, that the Commission prescribes. An applicant may also be required to provide within a specified time additional copies of the application, or any of the additional information or documents that are filed, to the Commission or to any person, agency, Indian Tribe or other entity that the Commission specifies. If an applicant fails to provide timely additional information, documents, or copies of submitted materials as required, the Director of the Office of Energy Projects (Director) may dismiss the application, hold it in abeyance, or take other appropriate action under this chapter or the Federal Power Act. § 7.5 Decision on request to use expedited licensing process. When the Commission has determined that the original license application is complete insofar as it meets the Commission’s requirements as E:\FR\FM\24APR1.SGM 24APR1 17080 Federal Register / Vol. 84, No. 79 / Wednesday, April 24, 2019 / Rules and Regulations specified in 18 CFR parts 4, 5, and this part; any deficiencies have been cured; and no other additional information is needed, the Director will make a decision on the request to use the expedited licensing process under this part no later than 180 days after receipt of a request for authorization to use the expedited process. If the Commission cannot deem the application complete within 180 days of application filing, the Director will deny the request to use the expedited licensing process. If the Director denies the request to use the expedited licensing process, the original license application will be processed pursuant to a standard processing schedule under 18 CFR parts 4 and 5, as applicable. jbell on DSK30RV082PROD with RULES § 7.6 Notice of acceptance and ready for environmental analysis. If the Director deems the application complete and approves the request to use the expedited licensing process under § 7.5, the Commission will issue a public notice as required in the Federal Power Act, no later than 180 days after application filing, that: (a) Accepts the application for filing and specifies the date upon which the application was accepted for filing; (b) Finds the application ready for environmental analysis; (c) Requests comments, protests, and interventions; (d) Requests recommendations, preliminary terms and conditions, and preliminary fishway prescriptions, including all supporting documentation; and (e) Establishes an expedited licensing process schedule, including estimated dates for: (1) Filing of recommendations, preliminary terms and conditions, and fishway prescriptions; (2) Issuance of a draft National Environmental Policy Act (NEPA) document, or an environmental assessment not preceded by a draft; (3) Filing of a response, as applicable, to Commission staff’s request for ESA concurrence or request for formal consultation under the ESA, or responding to other Commission staff requests to federal and state agencies, or Indian Tribes pursuant to Federal law, including the Magnuson-Stevens Fishery Conservation and Management Act and the National Historic Preservation Act; (4) Filing of comments on the draft NEPA document, as applicable; (5) Filing of modified recommendations, mandatory terms and conditions, and fishway prescriptions in response to a draft NEPA document or VerDate Sep<11>2014 15:47 Apr 23, 2019 Jkt 247001 environmental assessment, if no draft NEPA document is issued; and (6) Issuance of a final NEPA document, if any. § 7.7 Amendment of application. (a) Any proposed amendments to the pending license application after issuance of the notice of acceptance and ready for environmental analysis under this section must include: (1) An amended or new section 401 of the Clean Water Act water quality certification if the amendment would have a material adverse impact on the water quality in the discharge from the proposed project; and (2) Updates to all other material submitted under § 7.2(b). (b) If based on the information provided under paragraph (a) of this section, the proposed project under the amended license application no longer meets the requirements for expedited processing under § 7.2 of this part or if the proposed amendment significantly amends the license application, the Director will notify the applicant that the application will no longer be processed under the expedited licensing process under this part and that further processing of the application will proceed under parts 4 and 5 of this chapter, as applicable. (c) If the Director approves the continued processing of the amended application under this part and the amendment to the application would materially change the project’s proposed plans of development, as provided in § 4.35 of this chapter, an agency, Indian Tribe, or member of the public may modify the recommendations or terms and conditions or prescriptions it previously submitted to the Commission pursuant to § 7.6. Such modified recommendations, terms and conditions, or prescriptions must be filed no later than the due date specified by the Commission for comments on the amendment. (d) Date of acceptance. The date of acceptance of an amendment of application for an original license filed under this part is governed by the provisions of § 4.35 of this chapter. § 7.8 Other provisions. (a) Except for provisions required by statute, the Director may waive or modify any of the provisions of this part for good cause. (b) Late-filed recommendations by fish and wildlife agencies pursuant to the Fish and Wildlife Coordination Act and section 10(j) of the Federal Power Act for the protection, mitigation of damages to, and enhancement of fish and wildlife affected by the PO 00000 Frm 00026 Fmt 4700 Sfmt 9990 development, operation, and management of the proposed project and late-filed terms and conditions or prescriptions filed pursuant to sections 4(e) and 18 of the Federal Power Act, respectively, may be considered by the Commission as cause to remove the application from the expedited licensing process. If the Director determines that late-filed recommendations, terms and conditions, or prescriptions are likely to prevent the Commission from issuing a final licensing decision within two years from application receipt, the Director will notify the applicant that the application will no longer be processed under the expedited licensing process under this part and that further processing of the application will proceed under 18 CFR parts 4 and 5, as applicable. (c) License conditions and required findings. (1) All licenses shall be issued on the conditions specified in section 10 of the Federal Power Act and such other conditions as the Commission determines are lawful and in the public interest. (2) Subject to paragraph (b) of this section, fish and wildlife conditions shall be based on recommendations timely received from the fish and wildlife agencies pursuant to the Fish and Wildlife Coordination Act. (3) The Commission will consider the timely recommendations of resource agencies, other governmental units, and members of the public, and the timely recommendations (including fish and wildlife recommendations) of Indian Tribes affected by the project. (4) Licenses for a project located within any Federal reservation shall be issued only after the findings required by, and subject to, any conditions that may be filed pursuant to section 4(e) of the Federal Power Act. (5) The Commission will require the construction, maintenance, and operation of such fishways as may be prescribed by the Secretary of Commerce or the Secretary of the Interior, as appropriate, pursuant to section 18 of the Federal Power Act. § 7.9 Transition provision. This part shall only apply to original license applications filed on or after July 23, 2019. [FR Doc. 2019–08239 Filed 4–23–19; 8:45 am] BILLING CODE 6717–01–P E:\FR\FM\24APR1.SGM 24APR1

Agencies

[Federal Register Volume 84, Number 79 (Wednesday, April 24, 2019)]
[Rules and Regulations]
[Pages 17064-17080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08239]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 7

[Docket No. RM19-6-000; Order No. 858]


Hydroelectric Licensing Regulations Under the America's Water 
Infrastructure Act of 2018

AGENCY:  Federal Energy Regulatory Commission.

ACTION:  Final rule.

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SUMMARY:  In this final rule, the Federal Energy Regulatory Commission 
(Commission) is establishing an expedited process for issuing original 
licenses for qualifying facilities at existing nonpowered dams and for 
closed-loop pumped storage projects, pursuant to sections 3003 and 3004 
of the America's Water Infrastructure Act of 2018. Under the expedited 
licensing process, the Commission will seek to ensure that a final 
decision is issued no later than two years after the Commission 
receives a completed license application. The final rule will be 
codified in a new part that will be added to the Commission's 
regulations.

DATES: The rule is effective July 23, 2019.

FOR FURTHER INFORMATION CONTACT:
Shana Wiseman (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8736, [email protected].
Kenneth Yu (Legal Information), Office of the General Counsel, Federal 
Energy Regulatory Commission, 888 First Street NE, Washington, DC 
20426, (202) 502-8482, [email protected].
Tara DiJohn (Legal Information), Office of the General Counsel, Federal 
Energy Regulatory Commission, 888 First Street NE, Washington, DC 
20426, (202) 502-8671, [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

[[Page 17065]]



 
                                                              Paragraph
                                                                 Nos.
 
I. Background..............................................            3
II. Notice of Proposed Rulemaking..........................            6
III. Discussion............................................            7
    A. Scope of the Expedited Licensing Process............            7
        1. Pre-filing Process..............................           11
        2. Relicense Proceedings...........................           15
        3. Amendment Proceedings...........................           18
    B. Expedited Licensing Process.........................           22
        1. Section 7.1--Applicability and Definitions......           22
        2. Section 7.2--Use of Expedited Licensing Process.           32
        3. Section 7.3--Adequacy Review of Application.....           85
        4. Section 7.4--Additional Information.............           87
        5. Section 7.5--Decision on Request to Use                    89
         Expedited Licensing Process.......................
        6. Section 7.6--Notice of Acceptance and Ready for            94
         Environmental Analysis............................
        7. Section 7.7--Amendment of Application...........           98
        8. Section 7.8--Other Provisions...................          101
        9. Section 7.9--Transition Provision...............          106
    C. Other Matters.......................................          108
        1. Projects that Require an EIS....................          108
        2. FPA Section 35(copyright) Exceptions............          116
IV. Regulatory Requirements................................          119
    A. Information Collection Statement....................          119
    B. Environmental Analysis..............................          134
    C. Regulatory Flexibility Act..........................          135
    D. Document Availability 139...........................
    E. Effective Date and Congressional Notification.......          142
 

Order No. 858

Final Rule

(Issued April 18, 2019)

    1. On October 23, 2018, the America's Water Infrastructure Act 
(AWIA) \1\ was signed into law. The AWIA requires the Federal Energy 
Regulatory Commission (Commission or FERC) to establish an expedited 
process for issuing and amending licenses for qualifying facilities at 
existing nonpowered dams and for closed-loop pumped storage projects. 
Under the expedited process, the Commission will seek to ensure that a 
final decision on a license application is issued no later than two 
years after the Commission receives a completed license application.
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    \1\ Public Law 115-270, 132 Stat. 3765.
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    2. To comply with the AWIA, the Commission issues this final rule 
to amend its regulations governing hydroelectric licensing under the 
Federal Power Act (FPA) by establishing an expedited licensing process 
for qualifying facilities at existing nonpowered dams and for closed-
loop pumped storage projects. The final rule will be codified in a new 
part 7 that will be added to Title 18 of the Code of Federal 
Regulations.

I. Background

    3. Sections 3003 and 3004 of the AWIA amended the FPA by adding new 
sections 34 and 35. Section 34 of the FPA gives the Commission 
discretion to issue or amend licenses, as appropriate, for any facility 
that the Commission determines is a qualifying facility at an existing 
nonpowered dam. Section 35 of the FPA gives the Commission discretion 
to issue or amend licenses, as appropriate, for closed-loop pumped 
storage projects. Congress directed the Commission to issue a rule, no 
later than 180 days after October 23, 2018, establishing an expedited 
licensing process for issuing and amending licenses for projects 
covered by FPA sections 34 and 35. In establishing the expedited 
licensing process, Congress directed the Commission to convene an 
interagency task force (ITF), with appropriate federal and state 
agencies and Indian Tribes represented, to coordinate the regulatory 
processes associated with the authorizations required to construct and 
operate qualifying facilities at nonpowered dams and closed-loop pumped 
storage projects.
    4. On November 13, 2018, the Commission issued a notice inviting 
federal agencies, state agencies, and Indian Tribes to participate on 
the ITF.\2\ The notice directed interested agencies and Indian Tribes 
to file a statement of interest with the Commission by November 29, 
2018. On December 6, 2018, the Commission issued a notice identifying 
28 federal agencies, state agencies, and Indian Tribes as ITF 
participants.\3\
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    \2\ See Notice Inviting Federal and State Agencies and Indian 
Tribes to Request Participation in the Interagency Task Force 
Pursuant to America's Water Infrastructure Act of 2018, 83 FR 58,245 
(Nov. 19, 2018).
    \3\ See Notice of Interagency Task Force (Dec. 6, 2018); see 
also FERC, Office of Energy Projects, Summary of Interagency Task 
Force Activities (Jan. 10, 2019) (Appendix A identifies the ITF 
participants).
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    5. On December 12, 2018, the Commission convened a meeting with the 
ITF participants at the Commission's headquarters to discuss the 
Commission's preliminary proposal to coordinate the regulatory 
processes associated with the authorizations required to construct and 
operate qualifying facilities at nonpowered dams and closed-loop pumped 
storage projects. At the meeting, Commission staff presented for the 
ITF participants' consideration and comment a flowchart illustrating a 
draft expedited licensing process.\4\ In addition to soliciting 
comments at the meeting, Commission staff invited ITF participants to 
file comments on the process in Docket No. RM19-6-000 by December 26, 
2018. Seven post-session comments were filed. The Commission's 
coordination and discussion with appropriate federal and state agencies 
and Indian Tribes, as part of the ITF, have informed this final rule.
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    \4\ See Commission staff's Letter to ITF Participants, Summary 
of Interagency Task Force Activities (Jan. 10, 2019).
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II. Notice of Proposed Rulemaking

    6. On January 31, 2019, the Commission issued a Notice of Proposed 
Rulemaking proposing to promulgate rules to establish an

[[Page 17066]]

expedited process to license eligible projects at existing nonpowered 
dams and closed-loop pumped storage projects.\5\ In response to the 
NOPR, the Commission received 11 comments. Consumers Energy Company 
(Consumers),\6\ Daybreak Power, Inc. (Daybreak),\7\ Dominion Energy 
Services, Inc. (Dominion),\8\ the U.S. Department of Agriculture's 
Forest Service (Forest Service), the U.S. Department of the Interior 
(Interior),\9\ the National Hydropower Association (NHA),\10\ the 
National Marine Fisheries Service (NMFS), the Oregon Department of Fish 
and Wildlife (Oregon DFW), the Nature Conservancy, the Pennsylvania 
State Historic Preservation Office (PA SHPO), and Rye Development, LLC 
(Rye Development) filed comments.\11\ The proposal set forth in the 
NOPR, the comments received in response to the NOPR, and the 
Commission's determinations are discussed below.
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    \5\ Hydroelectric Licensing Regulations Under the America's 
Water Infrastructure Act of 2018, 84 FR 2469, 166 FERC ] 61,083 
(2019) (NOPR).
    \6\ Consumers is a public utility that owns and operates 
thirteen FERC-licensed hydroelectric projects.
    \7\ Daybreak is a developer of pumped storage projects.
    \8\ Dominion holds a preliminary permit for the proposed 
Tazewell Hybrid Energy Center Project No. 14854, and states that it 
is currently investigating whether the Tazewell Project, or a 
similar project, could be configured as a closed-loop pumped storage 
project.
    \9\ Interior represents the U.S. Bureau of Reclamation, the 
National Park Service, and U.S. Fish and Wildlife Service in its 
comment.
    \10\ NHA represents the Edison Electric Institute, the National 
Rural Electric Cooperative Association, the American Public Power 
Association, and the Northwest Hydropower Association in its 
comment.
    \11\ Rye Development is developing a number of hydroelectric 
projects, including one that was licensed under the Commission's 
Two-Year Pilot Licensing Process, FFP Project 92, LLC, 155 FERC ] 
62,089 (2016).
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III. Discussion

A. Scope of the Expedited Licensing Process

    7. The NOPR explained that the Commission's current regulations 
provide three pre-filing process options for hydropower developers to 
use in preparing license applications: (i) the integrated licensing 
process (ILP), which is the default process, as described in part 5; 
\12\ (ii) the traditional licensing process (TLP), as described in part 
4, subparts D to H; \13\ or (iii) the alternative procedures (i.e., the 
alternative licensing process (ALP)), as described in section 4.34(i) 
of part 4.\14\ The NOPR did not propose to alter these existing 
licensing processes. Rather, the NOPR proposed to establish procedures 
for the Commission to determine, on a case-by-case basis, whether 
original license applications for qualifying hydropower projects at 
nonpowered dams or for closed-loop pumped storage projects, as defined 
in sections 34 and 35 of the FPA and the eligibility criteria below, 
qualify for expedited processing.
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    \12\ 18 CFR part 5 (2018).
    \13\ 18 CFR part 4, subpt. D-H (2018).
    \14\ Id. 4.34(i).
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    8. As stated in the NOPR, the use of the expedited licensing 
process is voluntary. To apply for consideration under the expedited 
process, an applicant for an original license for a qualifying 
hydropower project or closed-loop pumped storage project must 
supplement its license application with a request for authorization to 
use the expedited licensing process.
    9. The NOPR proposed that the expedited licensing process would 
begin with the receipt of a completed license application. Consistent 
with the statute, the proposed expedited licensing process envisioned a 
two-year framework that did not include the pre-filing stages of 
application development (i.e., all process milestones and consultation 
to obtain necessary authorizations that must occur before an applicant 
files a license application). For pre-filing activities, the NOPR 
explained that any applicant interested in pursuing authorization to 
use the expedited licensing process must use the default ILP, or 
request authorization to the use TLP or ALP, as required under our 
current regulations.
    10. Finally, the scope of the NOPR was limited to original license 
applications. However, the Commission requested comments on whether the 
expedited licensing process should apply to applications for a new or 
subsequent license for a project that was originally licensed under the 
expedited licensing process.\15\
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    \15\ NOPR, 166 FERC ] 61,083 at P 7.
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1. Pre-filing Process
    11. NHA, Consumers, Dominion, and Rye Development encourage the 
Commission to improve the overall process to authorize hydroelectric 
facilities, which includes streamlining the pre-filing process.\16\ Rye 
Development estimates that the NOPR may not reduce the overall 
licensing time, which it calculates to be at least three years for the 
pre-filing process and two years for the post-filing process for a 
total of at least five years, because the NOPR does not address the 
pre-filing process time.\17\ This, it alleges, is contrary to 
Congressional intent.\18\ Rye Development explains that a shorter and 
more certain licensing schedule, which includes pre-filing process 
``reforms'' and allows for off-ramps for more problematic projects, 
would allegedly make hydroelectric generation cost competitive with 
other types of power generation and help attract investors.\19\
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    \16\ See NHA's March 11, 2019 Comment at 4-6; Consumers' March 
11, 2019 Comment at 2; Dominion's March 11, 2019 Comment at 1-2; Rye 
Development's March 8, 2019 Comment at 2.
    \17\ See Rye Development's Comment at 2.
    \18\ See id. at 2-3.
    \19\ See id. at 3-4.
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    12. NHA proposes, and Dominion supports, an alternative two-step 
pre-filing process that NHA posits will allow the Commission to 
determine, during pre-filing, whether a project would be eligible for 
the expedited licensing process.\20\ If the Commission finds a project 
eligible, NHA recommends that the Commission also grant preliminary 
approval of draft study plans and establish milestones and a schedule 
for the expedited licensing process during pre-filing.\21\ Noting that 
the success of the expedited licensing process depends on the 
cooperation of all parties to the process, NHA and Dominion also 
encourage other federal and state agencies to align their policies and 
regulations with the expedited licensing process and urge consideration 
of an interagency memorandum of understanding.\22\
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    \20\ See NHA's Comment at 6-9 (proposing a two-step pre-filing 
eligibility determination that would culminate in Commission action 
on a request for authorization to use the expedited licensing 
following issuance of the Scoping Document 1); Dominion's Comment at 
2-4.
    \21\ NHA's Comment at 6-7; Dominion's Comment at 4.
    \22\ NHA's Comment at 7-8; Dominion's Comment at 4.
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    13. The Commission understands the importance of a clear process 
schedule. It is for this reason that the Commission has made publicly 
available on its website diagrammatic representations of the ILP and 
TLP.\23\ We will provide the same for the expedited licensing process 
under the new part 7.\24\ This rulemaking, however, is limited to the 
post-filing period as mandated by the AWIA. Congress required the 
Commission to issue a rule establishing a two-year expedited licensing 
process that begins from the receipt of a

[[Page 17067]]

completed license application.\25\ Completion of the pre-filing process 
is necessary to develop a completed application. We therefore decline 
to revise the established pre-filing schedule in our existing 
regulations in this rulemaking. Furthermore, the Commission's existing 
ALP framework provides the flexibility that could accommodate, on a 
case by case basis, the type of pre-filing schedule NHA has 
proposed.\26\
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    \23\ See FERC, the Integrated Licensing Process (ILP)--Tutorial, 
https://www.ferc.gov/industries/hydropower/gen-info/licensing/ilp/ilp-tutorial/overview.asp (updated Oct. 10, 2012); FERC, Processes 
for Hydropower Licenses--Traditional Licensing Process (Applicant's 
Pre-Filing Process), https://www.ferc.gov/resources/processes/flow/hydro-1.asp; FERC, Processes for Hydropower Licenses--Traditional 
Licensing Process (FERC Application Process), https://www.ferc.gov/resources/processes/flow/hydro-2.asp.
    \24\ Commission staff will provide a flowchart on the 
Commission's website shortly after the final rule is issued.
    \25\ See 16 U.S.C.A. 823e(a)(4), 823f(a)(4) (West 2019).
    \26\ The ALP framework was designed to be flexible in order for 
an applicant to tailor the pre-filing consultation process to the 
circumstances of each case. See Regulations for the Licensing of 
Hydroelectric Projects, Order No. 596, FERC Stats & Regs ] 31,057, 
at P 6 (1997) (cross-referenced at 81 FERC ] 61,103).
---------------------------------------------------------------------------

    14. While we encourage federal and state agencies to cooperate with 
the Commission's licensing schedules, we have no authority to require 
other agencies to modify their own regulations or policies to suit our 
licensing process as encouraged by NHA and Dominion. Nor will we 
dictate to other agencies how their regulations or policies should be 
interpreted. Expedited processing is possible when applicants and 
stakeholders work closely during pre-filing to gather information, 
conduct studies, and address information gaps. Expedited licensing is 
further aided by well-developed license applications that provide a 
detailed project proposal, a comprehensive summary of existing 
facilities and natural resources, and a thorough examination of the 
resource issues at hand and study needs.
2. Relicense Proceedings
    15. The NOPR requested comments on whether the expedited licensing 
process should be available for applications for new or subsequent 
licenses,\27\ provided that the project was originally licensed under 
the expedited licensing process.\28\
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    \27\ A new license is a license that is issued under FPA section 
15(a) after an original license expires. A subsequent license is a 
license that is issued under FPA Part I after a minor or minor-part 
license that was not subject to FPA sections 14 and 15 expires. Both 
new and subsequent licenses are considered relicenses. See 18 CFR 
16.2(a), (d) (2018).
    \28\ NOPR, 166 FERC ] 61,083 at P 7.
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    16. Daybreak and Consumers recommend that the proposed rule be 
expanded to include relicensing of projects licensed under the 
expedited licensing process.\29\ NHA did not explicitly express 
opposition or support in response to the Commission's relicensing 
inquiry, but observed that the first new or subsequent license 
applications for projects originally licensed under the expedited 
licensing process would not be filed for another 40 years.\30\ Absent a 
significant change in the regulatory landscape, NHA finds it highly 
unlikely that future relicensing of a project that was originally 
licensed under the expedited licensing process could not be completed 
within two years.\31\
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    \29\ Daybreak's February 25, 2019 Comment at 1; Consumers' 
Comment at 1-2.
    \30\ See NHA's Comment at 17.
    \31\ Id. at 17. NHA further states that a new or subsequent 
license application for a project previously licensed at an existing 
dam would not qualify for the expedited licensing process because it 
would not satisfy the requirement set forth in section 34(e)(1)(A) 
of the FPA that the project not already be licensed.
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    17. The AWIA's eligibility criteria for qualifying facilities at 
existing nonpowered dams exclude facilities that are already licensed 
or exempted from license requirements in the FPA.\32\ Thus, future new 
or subsequent license applications for projects at existing nonpowered 
dams that were originally licensed under the expedited process would be 
ineligible to participate in the expedited process. Furthermore, we 
agree with NHA's observation that, in most cases, a relicense 
proceeding for a project that was originally licensed under the 
expedited licensing process should be completed within an average of 
two years under the Commission's existing regulations. Accordingly, the 
expedited licensing process set forth in this final rule remains 
limited in scope to original license applications for projects at 
qualifying facilities at existing nonpowered dams and for closed-looped 
pumped storage projects.
---------------------------------------------------------------------------

    \32\ See 16 U.S.C.A. 823e(e)(1)(A) (West 2019).
---------------------------------------------------------------------------

3. Amendment Proceedings
    18. The NOPR explained that FPA sections 34(a)(1) and 35(a)(1) give 
the Commission discretion to amend licenses, as appropriate, for any 
facility that the Commission determines is a qualifying facility. As 
part of this rulemaking, the Commission is required to establish an 
expedited process for amending licenses for qualifying facilities. FPA 
sections 34(a)(4) and 35(a)(4) explicitly define the expedited process 
for license applications as a two-year process for the Commission to 
issue a final decision on a license application once it receives a 
completed license application. These sections, however, are silent on 
the length of time to process applications to amend licenses.
    19. Because the Commission already processes the majority of 
amendments within two years, the NOPR proposed to process applications 
to amend licenses for projects located at qualifying nonpowered dams 
and for closed-loop pumped storage projects under the Commission's 
existing regulations for amendments in 18 CFR part 4, subpart L.\33\
---------------------------------------------------------------------------

    \33\ NOPR, 166 FERC ] 61,083 at PP 42-44 (estimating that about 
98 percent of amendment-related filings were processed in two years 
during the past five years).
---------------------------------------------------------------------------

    20. NHA contends that once a project is licensed, there is no 
reason that applications to amend licenses issued under the expedited 
licensing process should receive preferential treatment over 
applications to amend licenses issued under the ILP, TLP, or ALP 
framework.\34\ No other comments addressed or advocated for an 
expedited amendment process separate and apart from the Commission's 
existing procedures for license amendment applications.
---------------------------------------------------------------------------

    \34\ NHA's Comment at 18.
---------------------------------------------------------------------------

    21. Therefore, we are satisfied that the Commission's existing 
procedures will continue to result in expeditious action on any 
application to amend a license originally licensed under the expedited 
process, well within the two-year benchmark established in the AWIA. 
Accordingly, the final rule does not establish a separate process for 
acting on applications to amend licenses issued under the expedited 
licensing process.

B. Expedited Licensing Process

1. Section 7.1--Applicability and Definitions
    22. In Sec.  7.1(c)(3) of the NOPR, the Commission restated the 
Commission's current definition of a closed-loop pumped storage project 
as ``a pumped storage project that is not continually connected to a 
naturally-flowing water feature.'' \35\ The NOPR also incorporated the 
statutorily-defined ``qualifying criteria,'' ``qualifying nonpowered 
dam,'' and ``qualifying facility.''
---------------------------------------------------------------------------

    \35\ NOPR, 166 FERC ] 61,083 at PP 21 & 36. The NOPR's preamble 
mistakenly used ``continuously'' instead of ``continually'' to 
describe the Commission's current definition of closed-loop pumped 
storage.
---------------------------------------------------------------------------

    23. We received several comments that the key terms, such as 
``continually,'' ``connected,'' and ``naturally-flowing water 
features'' are unclear, which could potentially result in the 
expeditious licensing of an environmentally-harmful pumped storage 
project.\36\ Some commenters argue that a pumped storage project may 
not be ``continually'' connected to a naturally-flowing water feature, 
but those intermittent periods when the

[[Page 17068]]

project is connected to the naturally-flowing water feature could 
result in substantial resource impacts.\37\ On the other hand, NHA, 
Consumers, and Dominion encourage the Commission to generously 
interpret terms, such as closed-loop pumped storage, in order to allow 
more projects to be eligible for the expedited process.\38\
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    \36\ See Interior's March 8, 2019 Comment at 2-3, Forest 
Service's March 8, 2019 Comment at 2, Oregon DFW's March 11, 2019 
Comment at 1-2.
    \37\ See Forest Service's Comment at 2; Interior's Comment at 3; 
Oregon DFW's Comment at 1.
    \38\ See NHA's Comment at 10-15; Consumers' Comment at 2; 
Dominion's Comment at 4-8.
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    24. In addition, commenters contend that the term ``connected'' is 
ambiguous as to whether the connection only refers to a physical 
hydraulic connection or includes a separate and independent hydrologic 
connection.\39\ Some commenters suggest that for a project to qualify 
for expedited processing as a closed-loop pumped storage project, there 
should be no hydrologic connection between the project and surface or 
groundwater features.\40\ Interior notes that subsurface or surface 
hydrologic connections might adversely affect lake levels and 
associated recreational use and access on lakes which would lead to 
longer processing times.\41\ NHA and Dominion allege that excluding 
projects from eligibility based on a mere physical hydraulic or a 
hydrologic connection to surface waters or groundwater would disqualify 
almost all closed-loop pumped storage projects, and therefore request 
that our definition focus on how the water would be used by the project 
rather than how the project is connected to the water feature.\42\
---------------------------------------------------------------------------

    \39\ See, e.g., Forest Service's Comment at 2.
    \40\ See Oregon DFW's Comment at 2; Nature Conservancy's March 
11, 2019 Comment at 4; Forest Service's Comment at 2.
    \41\ See Interior's Comment at 3.
    \42\ See NHA's Comment at 14; Dominion's Comment at 7.
---------------------------------------------------------------------------

    25. As for ``naturally-flowing water features,'' the Forest Service 
asks whether such water features include groundwater aquifers, existing 
lakes, or other isolated waterbodies.\43\ Commenters note that although 
flow is generally not significant in the hydrologic mass balance of 
lakes or other isolated, surface water features,\44\ use of the term 
``naturally-flowing'' could result in eligibility for projects that 
would significantly adversely affect lakes, endorheic basins,\45\ and 
other isolated surface water features,\46\ as well as wildlife that 
inhabit these areas.\47\
---------------------------------------------------------------------------

    \43\ See Forest Service's Comment at 2.
    \44\ See id.
    \45\ Endorheic basins are hydrologically-landlocked drainage 
basins that do not discharge to other bodies of water.
    \46\ See Forest Service's Comment at 2; Interior's Comment at 3; 
Oregon DFW's Comment at 2.
    \47\ See Oregon DFW's Comment at 2.
---------------------------------------------------------------------------

    26. We received several proposed alternative definitions of a 
closed-loop pumped storage project.
    27. The Forest Service recommends that a closed-loop pumped storage 
project be defined as a pumped storage project ``whose operation causes 
little to no change in discharge, flow, water quality, or other 
hydrologic characteristics of naturally-occurring surface or 
groundwater features, or the species and habitats that depend on these 
features.'' \48\ Oregon DFW suggests defining closed-loop pumped 
storage as ``projects that utilize artificial reservoirs that have been 
constructed and operated for purposes authorized in the original 
license; that rely on temporary connections to flowing water features 
or groundwater for initial fill and periodic recharge; and whose 
construction and operation causes little to no change in discharge, 
flow, water quality, or other hydrologic characteristics of naturally 
occurring surface or groundwater features, or to the fish and wildlife 
and their habitats associated with these features.'' \49\ NHA and 
Dominion encourage the Commission to expand its definition, and suggest 
that the Commission define a closed-loop pumped storage project as: ``a 
pumped storage project that: (1) does not obtain its principal water 
supply from a naturally-flowing water feature; (2) obtains its water 
from a naturally-flowing surface water feature only for the purpose of 
initial fill and periodic replenishment, or (3) is not located on a 
navigable waterway.'' \50\
---------------------------------------------------------------------------

    \48\ Forest Service's Comment at 1.
    \49\ Oregon DFW's Comment at 2.
    \50\ NHA's Comment at 15; see Dominion's Comment at 7. NHA 
contends that the location of a proposed project on non-navigable 
waterways (e.g., small creeks or streams which do not contain or 
affect significant environmental resources) should not disqualify 
the project from the expedited licensing process.
---------------------------------------------------------------------------

    28. As noted by the resource agencies, we recognize that use of the 
term ``not continually connected'' in our definition might capture 
pumped storage projects that would potentially require additional time 
and agency resources to determine their environmental effects, and may 
not be appropriate for expedited processing. Therefore, in the final 
rule, we adopt a definition of a closed-loop pumped storage project 
that focuses on the extent and type of a project's use of surface 
waters or groundwater rather than on its physical, hydraulic connection 
to such features. Further, we agree with the resource agencies that the 
term ``naturally-flowing water features'' in terms of a connected use 
is overly narrow and does not account for the environmental 
significance of water withdrawals from such features as groundwater, 
lakes, and wetlands. We see the benefit in specifying in our definition 
how we expect closed-loop pumped storage projects would utilize water 
from these water features (i.e., initial fill and periodic recharge), 
as suggested by many commenters.\51\
---------------------------------------------------------------------------

    \51\ See, e.g., NHA's Comment at 11, 14-15; Dominion's Comment 
at 5; Oregon DFW's Comment at 2.
---------------------------------------------------------------------------

    29. In addition, as required by section 35(g)(2) of the FPA, a 
request to use the expedited licensing process must demonstrate that a 
closed-loop pumped storage project will cause little to no change to 
existing surface and groundwater flows and uses, and is unlikely to 
adversely affect species listed as threatened or endangered under the 
Endangered Species Act of 1973 (ESA).\52\ If the proposed project does 
not meet these two aforementioned statutory criteria, then the project 
will not qualify under the AWIA for use of the expedited process. 
Therefore, we have incorporated these criteria into the final rule's 
definition of a closed-loop pumped storage project.
---------------------------------------------------------------------------

    \52\ 16 U.S.C. 1531-1544 (2012).
---------------------------------------------------------------------------

    30. As to the statutory requirement that the project cause little 
to no change to the existing surface flows and uses, the mere presence 
of a pumped storage project reservoir on a surface water feature, such 
as a natural waterway, lake, or wetland would undeniably change 
existing surface water flows and uses in direct contravention of FPA 
section 35(g)(2)(A). For this reason and for clarification, the revised 
definition requires closed-loop pumped storage projects to use 
reservoirs that are not located on natural surface water features.
    31. Therefore, informed by the comments received on the NOPR, and 
for the purposes of expediting processing under the AWIA, Sec.  
7.1(c)(3) is revised, as follows: ``pumped storage projects that: (1) 
cause little to no change to existing surface and groundwater flows and 
uses; (2) are unlikely to adversely affect species listed as a 
threatened species or endangered species, or designated critical 
habitat of such species, under the Endangered Species Act of 1973; (3) 
utilize only reservoirs situated at locations other than natural 
waterways, lakes, wetlands, and other natural surface water features; 
and (4) rely only on temporary withdrawals from surface

[[Page 17069]]

waters or groundwater for the sole purposes of initial fill and 
periodic recharge needed for project operation.''
2. Section 7.2--Use of Expedited Licensing Process
    32. Section 7.2 of the NOPR described the information that an 
applicant must include in any license application that accompanies a 
request to use the expedited licensing process. The information 
includes design and environmental criteria mandated by sections 34 and 
35 of the FPA and documentation demonstrating early consultation with 
relevant agencies, Indian Tribes, and dam owners.\53\
---------------------------------------------------------------------------

    \53\ See NOPR, 166 FERC ] 61,083 at PP 15-17 (CWA), PP 18-22 
(ESA), PP 23-24 (NHPA).
---------------------------------------------------------------------------

a. Statutory Criteria for Qualifying Facilities at Nonpowered Dams
    33. FPA section 34(e)(1) sets forth the ``qualifying criteria'' 
that a proposed project at an existing ``qualifying nonpowered dam'' 
must meet in order to be considered a ``qualifying facility'' \54\ 
eligible to apply for the expedited licensing process. Section 34(e)(1) 
states that such a facility must: (A) As of October 23, 2018, not be 
licensed under, or exempted from, the license requirements contained in 
Part I of the FPA; (B) be associated with a qualifying nonpowered dam; 
(C) be constructed, operated, and maintained for the generation of 
electric power; (D) generate electricity by using any withdrawals, 
diversions, releases, or flows from the associated qualifying 
nonpowered dam, including its associated impoundment or other 
infrastructure; and (E) not result, due to operation of the facility, 
in any material change to the storage, release, or flow operations of 
the associated qualifying nonpowered dam.\55\
---------------------------------------------------------------------------

    \54\ FPA section 34(e)(2) defines ``qualifying facility'' as any 
facility that is determined to meet the ``qualifying criteria'' 
under section 34(e)(1).
    \55\ 16 U.S.C.A. 823e(e)(1) (West 2019).
---------------------------------------------------------------------------

    34. Section 34(e)(3) defines ``qualifying nonpowered dam'' as any 
dam, dike, embankment, or other barrier, constructed on or before 
October 23, 2018, that is or was operated for the control, release, or 
distribution of water for agricultural, municipal, navigational, 
industrial, commercial, environmental, recreational, aesthetic, 
drinking water, or flood control purposes, and that, as of October 23, 
2018, is not generating electricity with hydropower generating works 
licensed under, or exempted from, the license requirements of Part I of 
the FPA.\56\
---------------------------------------------------------------------------

    \56\ Id. section 823e(e)(3).
---------------------------------------------------------------------------

    35. NHA and the Nature Conservancy ask the Commission to define the 
term ``material change'' contained in FPA section 34(e)(1)(E).\57\ 
Concerned that the Commission's interpretation of this statutory 
qualifying criterion might unnecessarily preclude from the expedited 
process projects that would have only minor effects on existing dam 
operations,\58\ NHA proposes to define a ``material change'' as a 
change that would ``(1) significantly modify the pre-license storage, 
release, or flow operations of the associated qualifying nonpowered 
dam, or (2) would impair the ability of the dam owner to control 
operation of the dam.'' \59\ The Nature Conservancy proposes an 
alternative definition: ``little or no change to the subdaily, daily, 
seasonal and interannual operations, or to the sediment, nutrient, 
dissolved oxygen, and temperature components of water quality upstream 
and downstream of the facility, unless it is clearly demonstrated that 
such changes will not conflict with the existing public uses and will 
also result in a new ecological benefit.'' \60\
---------------------------------------------------------------------------

    \57\ FPA section 34(e)(1)(E) states that ``the operation of the 
facility will not result in any material change to the storage, 
release, or flows from the associated qualifying nonpowered dam, 
including associated impoundment or other infrastructure.'' 16 
U.S.C.A. 823e(e)(1)(E) (emphasis added).
    \58\ NHA's and Dominion's comments generally advocate that the 
Commission interpret statutory language generously and broadly in 
order to capture more projects in the expedited licensing process. 
See, e.g., NHA's Comment at 11; Dominion Comment at 5 (interpret 
``cause little to no change'' in FPA section 35(g)(2)(A) broadly).
    \59\ NHA's Comment at 10.
    \60\ Nature Conservancy's Comment at 3.
---------------------------------------------------------------------------

    36. NHA also requests that the final rule identify operational 
regimes, such as ``run-of-river'' or ``run-of-release,'' that would 
categorically not rise to the level of a ``material change'' to the 
storage, release, or flow operations.\61\
---------------------------------------------------------------------------

    \61\ NHA's Comment at 10.
---------------------------------------------------------------------------

    37. We decline to define ``material change'' as requested by NHA 
and the Nature Conservancy. The statute provides sufficiently clear 
guidance, such that a further definition is unnecessary. The term 
``material'' is well understood to mean significant or consequential. 
Further, we do not believe that it would be possible to develop a 
definition of ``material'' that could be applied in all cases. We will 
examine the facts of any case in which the materiality of changes that 
be may caused by a proposed project is at issue, and make a case-by-
case decision.
    38. Rye Development recommends that we create alternative 
eligibility criteria for projects at nonpowered dams, to include 
projects that will (i) add new generating capacity to nonpowered dams, 
(ii) not include new dams or impoundments, (iii) not materially change 
any existing storage and release regimes, (iv) not include federal 
lands except for those associated with an existing federal dam, and (v) 
not require more than one environmental study season.\62\ Nature 
Conservancy recommends that an eligible facility not materially change 
water quality and that qualifying nonpowered dams exclude those that it 
terms ``obsolete.'' \63\ Because section 34 of the FPA does not 
authorize the Commission to replace or revise the statutory eligibility 
criteria that Congress established for qualifying facilities at 
nonpowered dams, we will not make the additions recommended by Rye 
Development and Nature Conservancy.
---------------------------------------------------------------------------

    \62\ Rye Development's Comment at 7.
    \63\ See Nature Conservancy's Comment at 3 (recommending the 
addition of a criterion to ensure that an associated nonpowered dam 
actively serves a public purpose).
---------------------------------------------------------------------------

b. Qualifying Criteria for Closed-Loop Pumped Storage Projects
    39. FPA section 35(g)(1) directs the Commission to establish 
criteria that a pumped storage project must meet to be eligible for the 
expedited licensing process. FPA section 35(g)(2) further instructs the 
Commission to include criteria that an eligible closed-loop pumped 
storage project cause little to no change to existing surface and 
groundwater flows and uses, and is unlikely to adversely affect species 
listed as threatened or endangered under the ESA.
    40. We received several comments requesting that the final rule 
include additional or revised qualifying criteria for closed-loop 
pumped storage projects to be eligible for the expedited licensing 
process under FPA section 35(g)(2). Specifically, we received 
recommendations that the final rule include additional qualifying 
criteria to ensure that a closed-loop pumped storage project eligible 
for the expedited licensing process will: (i) Not be hydrologically 
connected to natural water bodies; \64\ (ii) cause little to no change 
to existing aquatic habitats, water quality, and water quantity; \65\ 
(iii) cause little to no change to river, lacustrine, and groundwater-
dependent ecosystems; \66\ (iv) cause little to no change to existing 
recreational access and uses; \67\ (v) meet the intent of

[[Page 17070]]

comprehensive land management plans for all applicable resources if the 
project will be located on federal reservations; \68\ and (vi) not 
degrade or act as a source of contaminants to surface or groundwater 
features if the project will use abandoned mines as storage 
reservoirs.\69\
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    \64\ See Oregon DFW's Comment at 2; Nature Conservancy's Comment 
at 4.
    \65\ See Oregon DFW's Comment at 2; Nature Conservancy's Comment 
at 4; NMFS' February 15, 2019 Comment at 2; Forest Service's Comment 
at 2-3; Interior's Comment at 3.
    \66\ See Forest Service's Comment at 3; Oregon DFW's Comment at 
2.
    \67\ See Interior's Comment at 3.
    \68\ See Forest Service's Comment at 3; Interior's Comment at 3; 
Nature Conservancy's Comment at 4. Nature Conservancy also 
recommends a qualifying criterion that the project not be located on 
a river reach protected under the National Wild and Scenic Rivers 
Act, or similar state statute. However, pursuant to section 7(a) of 
the Wild and Scenic Rivers Act, the Commission is already prohibited 
from licensing the construction of any ``dam, water conduit, 
reservoir, powerhouse, transmission line, or other project works . . 
. on or directly affecting'' a river segment that Congress has 
designated as component of the National Wild and Scenic Rivers 
System. 16 U.S.C. 1278(a) (2012).
    \69\ See Forest Service's Comment at 3; Nature Conservancy's 
Comment at 4.
---------------------------------------------------------------------------

    41. We believe that the Commission's revised definition of a 
``closed-loop pumped storage project,'' \70\ in combination with the 
Commission's existing licensing requirements, will ensure that only 
projects meeting the Congressional criteria qualify for expedited 
treatment, and that therefore no additional definition is needed.
---------------------------------------------------------------------------

    \70\ See supra PP 28-31.
---------------------------------------------------------------------------

    42. With regard to the qualifying criteria, we also received 
requests to clarify the statutory language. NMFS, Interior, and Oregon 
DFW recommend that the qualifying criteria set forth in FPA section 
35(g)(2)(i) be revised to specify ``the construction and operation'' of 
the project will cause little to no change to existing surface and 
groundwater flows and uses.\71\
---------------------------------------------------------------------------

    \71\ See NMFS' Comment at 2; Interior's Comment at 3; Oregon 
DFW's Comment at 2.
---------------------------------------------------------------------------

    43. We cannot revise the criteria established by Congress. However, 
we note that Congress did not exclude project construction and 
operation from the criteria in section 35(g)(2)(i).
    44. Pursuant to the authority in FPA section 35(g)(2) that directs 
the Commission to establish additional qualifying criteria for closed-
loop pumped storage projects, we proposed in the NOPR to add 
``designated critical habitat of species of [threatened or endangered] 
species'' in Sec.  7.2(b)(2)(ii) to ensure the qualifying criterion 
conforms with the ESA.\72\
---------------------------------------------------------------------------

    \72\ NOPR, 166 FERC ] 61,083 at P 22 (explaining that section 
7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2) (2012), requires agencies 
to ensure that their actions are not likely to result in the 
destruction or adverse modification of designated critical habitat 
of such species).
---------------------------------------------------------------------------

    45. NHA does not oppose this additional criterion because it 
assumes that an applicant would be unlikely to request use of the 
expedited licensing process if a proposed project would require 
preparation of a Biological Opinion.\73\ Forest Service endorses the 
addition.\74\ We therefore have retained the additional critical 
habitat criterion in Sec.  7.2(b)(2)(ii) of the final rule.
---------------------------------------------------------------------------

    \73\ NHA's Comment at 13.
    \74\ See Forest Service's Comment at 3.
---------------------------------------------------------------------------

c. Commission-Defined Criteria for the Expedited Licensing Process
    46. The NOPR established criteria for applications to be eligible 
for the new expedited licensing process. The FERC-defined criteria for 
the expedited process, as set forth in Sec. Sec.  7.2(b)(3) to 
7.2(b)(7), modify the timing of existing licensing requirements by 
requiring an applicant interested in pursuing the expedited process to 
submit certain documentation of consultation at the same time that an 
application is filed.
i. Early Consultation With Agencies
    47. Several commenters recommended early and frequent consultation 
with federal and state agencies. The Nature Conservancy recommends that 
Sec.  7.2(b) include a requirement that applicants engage in early 
coordination with mandatory conditioning agencies and any resource 
agencies with jurisdiction over resources that may be affected by the 
proposed project.\75\ Interior also requests additional guidance on the 
form and content of the required pre-filing documentation.\76\
---------------------------------------------------------------------------

    \75\ See Nature Conservancy's Comment at 5.
---------------------------------------------------------------------------

    48. Consultation with agencies will be crucial to the success of 
the expedited licensing process. Moreover, the consultation criteria 
discussed below are designed to promote early engagement between 
applicants and agencies. However, because the Commission's existing 
regulations already require applicants to consult with these agencies 
prior to filing a license application,\77\ we decline to include Nature 
Conservancy's suggested requirement in Sec.  7.2(b) of the final rule.
---------------------------------------------------------------------------

    \77\ See 18 CFR 4.38, 4.34(i), 5.1(d).
---------------------------------------------------------------------------

ii. Clean Water Act Documentation
    49. In the NOPR, Sec.  7.2(b)(3) proposed to require an applicant, 
as part of its application, to provide its request for certification 
under section 401(a)(1) of the Clean Water Act, including proof of the 
date on which the certifying agency received the request; and one of 
the following: (1) A copy of water quality certification, (2) evidence 
of a waiver of the certification, or (3) documentation from the state 
certifying agency that the water quality certification application is 
complete, or in the event a certifying agency denies certification, a 
copy of the denial within 30 days after the applicant receives it.
    50. Daybreak contends that section 401 of the Clean Water Act does 
not require that a state certify a water quality certification 
application is complete in order to start the clock on the one-year 
statutory deadline for a state to act on an application.\78\
---------------------------------------------------------------------------

    \78\ Daybreak's Comment at 2.
---------------------------------------------------------------------------

    51. Daybreak is correct. Section 401(a)(1) of the Clean Water Act 
states that ``[i]f the State . . . fails or refuses to act on a request 
for certification, within a reasonable period of time (which shall not 
exceed one year) after receipt of such request, the certification 
requirements . . . shall be waived with respect to such Federal 
application.'' \79\ A state's one-year review period begins when the 
applicable state agency receives the request for water quality 
certification, not when the state agency deems an application 
``complete.'' \80\
---------------------------------------------------------------------------

    \79\ 33 U.S.C. 1341(a)(1) (2012).
    \80\ N.Y. State Dep't of Environmental Conservation v. FERC, 884 
F.3d 450, 455-456 (2d Cir. 2018).
---------------------------------------------------------------------------

    52. The purpose of proposed Sec.  7.2(b)(3)(iii) was not to inform 
the Commission when to start the one-year clock for state action on a 
section 401 application. Rather, proposed Sec.  7.2(b)(3)(iii) sought 
to ensure that all of the necessary authorizations, including water 
quality certification, could be obtained in a timely enough manner so 
as to enable the Commission to act on a license application within two 
years from the date of application filing.
    53. However, recognizing that requiring applicants to submit 
documentation from a state certifying agency that the water quality 
certification application is ``complete'' may prove difficult, we have 
revised Sec.  7.2(b)(3)(iii) to remove this requirement. Accordingly, 
at the time of application filing, an applicant will be required to 
submit a copy of the request for certification, including proof of the 
date on which the certifying agency received the request; a copy of 
water quality certification; or evidence of waiver of water quality 
certification. This information will still enable us to assess the 
likelihood that a water quality certification will be obtained in a 
timely enough manner so as to facilitate Commission action on a license 
application within two years from the date of application filing.
iii. ESA Documentation
    54. NMFS recommends that the Commission require that applicants, in 
proposed Sec.  7.2(b)(4), begin early coordination with NMFS during 
pre-

[[Page 17071]]

filing if the project would affect resources protected under the ESA or 
Magnuson-Stevens Fishery Conservation and Management Act (MSA).\81\ 
NMFS states that the benefits of early coordination include improved 
license applications, efficient environmental reviews, and a higher 
likelihood of a settlement.\82\ Interior requests that the same 
requirement be added with regard to early coordination with FWS and 
lists similar benefits.\83\
---------------------------------------------------------------------------

    \81\ 16 U.S.C. 1801 et seq. (2012); See NMFS' Comment at 2.
    \82\ See id.
    \83\ See Interior's Comment at 3.
---------------------------------------------------------------------------

    55. Pursuant to Sec.  4.38 of the Commission's regulations, a 
potential applicant must consult with the relevant federal, state, and 
interstate resource agencies, including NMFS and FWS, prior to filing 
an application for an original license. We agree with NMFS and Interior 
that early consultation on resources protected under the ESA or MSA 
would allow applicants to avoid or minimize effects to listed species 
by negotiating protection, mitigation, and enhancement measures. 
However, this request for pre-filing consultation does not differ from 
the Commission's existing licensing requirements. Moreover, in the 
NOPR,\84\ the Commission proposed to require that any application filed 
with a request for authorization to use the expedited licensing process 
include: A no-effect determination that includes documentation that no 
listed species or critical habitat are present at the proposed project 
site; (ii) documentation of concurrence from FWS and NMFS, as 
necessary, on a not likely to adversely affect determination; or (iii) 
a draft biological assessment that includes documentation of 
consultation with FWS and NMFS, as necessary. Therefore, we find it 
unnecessary to add NMFS and Interior's request as a requirement of the 
expedited licensing process.\85\
---------------------------------------------------------------------------

    \84\ NOPR, 166 FERC ] 61,083 at P 11.
    \85\ We also decline to issue guidance pertaining to how to 
consult with the FWS or how to interpret FWS's or NMFS' regulations 
and policies, as requested by Interior and NMFS.
---------------------------------------------------------------------------

    56. Interior recommends that the applicant file concurrently with 
its application written concurrence from applicable stakeholders 
concerning potential project impacts on natural, cultural, or 
recreation resources.\86\
---------------------------------------------------------------------------

    \86\ Interior's Comment at 1-2.
---------------------------------------------------------------------------

    57. After a license application is filed and accepted as complete, 
the Commission will issue a Ready for Environmental Analysis (REA) 
notice to seek input from stakeholders on an applicant's license 
application in advance of preparing the Environmental Assessment (EA) 
or Environmental Impact Statement (EIS) required by the National 
Environmental Policy Act of 1969 (NEPA). In terms of the licensing 
process, seeking input from stakeholders at the time of the REA notice 
does not delay or slow down the license process timeline. Therefore, we 
find the recommendation that the applicant include with its application 
written concurrence from applicable stakeholders concerning potential 
project impacts on natural, cultural, or recreation resources unduly 
burdensome and unnecessary to expedite the licensing process.
    58. To conform to ESA regulations, NMFS and Interior recommend that 
the Commission revise Sec.  7.2(b)(4)(i) to replace ``at the proposed 
project site'' with ``in the action area, as defined by the ESA 
regulations at 50 CFR 402.02.'' \87\ Interior explains that limiting 
evaluation to a ``proposed project site'' would not adequately consider 
impacts to National Park Services (NPS) resources and recreational 
use.\88\ All aspects of the project, Interior suggests, should be 
evaluated, such as staging and construction laydown areas, roads and 
other conduits and/or transmission line or interconnections.\89\ 
Interior recommends that the Commission evaluate a proposal and 
determine the impacts in ``action areas'' under the ESA and/or ``area 
of potential effects'' under the National Historic Preservation Act 
(NHPA) \90\ in order to identify the potential adverse effects on 
natural and recreational resources near a NPS unit.\91\
---------------------------------------------------------------------------

    \87\ NMFS' Comment at 2; Interior's Comment at 4.
    \88\ See Interior's Comment at 2.
    \89\ See id.
    \90\ 36 CFR 800.16(d) (2018).
    \91\ See Interior's Comment at 2 and n.2.
---------------------------------------------------------------------------

    59. We accept NMFS' and Interior's recommendation and replace the 
term ``at the proposed project site'' with the term ``in the action 
area'' in Sec.  7.2(b)(4)(i) to bring the language into accord with the 
ESA. With respect to commenters' other concerns about the Commission's 
responsibilities under the ESA and the NHPA, the expedited licensing 
process does not change the Commission's responsibilities under 
existing federal laws, such as the ESA and the NHPA, and Commission 
staff will continue to comply with all pertinent federal laws during 
the review of a license application.
    60. NMFS and Interior request that the Commission clarify in Sec.  
7.2(b)(4)(i) that the Commission has the responsibility to determine 
whether ESA consultation is necessary under section 7 of the ESA.\92\ 
Both assert that the Commission has the ultimate responsibility to 
ensure compliance with section 7 of the ESA.\93\
---------------------------------------------------------------------------

    \92\ NMFS' Comment at 2; Interior's Comment at 4.
    \93\ NMFS' Comment at 3; Interior's Comment at 4.
---------------------------------------------------------------------------

    61. Section 7 of the ESA speaks for itself and there is thus no 
need for the requested clarification in Sec.  7.2(b)(4)(i).
    62. NMFS and Interior request that the Commission clarify in Sec.  
7.2(b)(4)(ii) that the Commission will designate an applicant to be a 
non-federal representative under ESA regulations \94\ at the beginning 
of the expedited process in order for the applicant to participate in 
informal ESA consultation.\95\
---------------------------------------------------------------------------

    \94\ See 50 CFR 402.02, 402.08, 402.13 (2018).
    \95\ NMFS' Comment at 2; Interior's Comment at 3.
---------------------------------------------------------------------------

    63. Section 5.5(e) of the Commission's regulations \96\ provides 
that a potential license applicant may, as early as the same time it 
files its notification of intent and distributes its pre-application 
document (PAD) at the beginning of the pre-filing period, request to be 
designated as the Commission's non-federal representative for purposes 
of consultation under section 7 of the ESA and the joint agency 
regulations thereunder at 50 CFR part 402, section 305(b) of the MSA 
and the implementing regulations at 50 CFR 600.902. Even if it chooses 
not to request such designation at the time of the filing of the 
notification of intent, an applicant could make such a request at any 
time later in the pre-filing period. The Commission typically grants 
such requests as a routine process matter. Therefore, there is no need 
for the requested clarification to Sec.  7.2(b)(4)(ii).
---------------------------------------------------------------------------

    \96\ 18 CFR 5.5(e).
---------------------------------------------------------------------------

    64. NMFS recommends that the Commission, with the assistance of 
NMFS, develop guidance on informal ESA consultations and preparation of 
biological assessments to provide to the designated non-federal 
representative.\97\ NMFS and Interior further recommend that we provide 
a template letter for the Commission to use to designate a non-federal 
representative to conduct consultation or prepare a draft biological 
assessment.\98\
---------------------------------------------------------------------------

    \97\ See NMFS' Comment at 3.
    \98\ NMFS' Comment at 3 and Attachment 1 (providing a sample 
template letter); Interior's Comment at 3-4 and Attachment 1 
(providing a sample template letter).
---------------------------------------------------------------------------

    65. Commission staff typically prepares guidance documents for use 
by prospective license applicants, federal and state resource agencies, 
and the public regarding various aspects of the

[[Page 17072]]

licensing process.\99\ We will instruct our staff to review the license 
process guidance material to determine what modifications and 
additional guidance are needed to facilitate the efficient 
implementation of the new part 7 regulations.
---------------------------------------------------------------------------

    \99\ Commission staff's licensing guidance material is available 
on the Commission's website at http://www.ferc.gov/industries/hydropower/gen-info/licensing.asp.
---------------------------------------------------------------------------

    66. Interior recommends that proposed Sec.  7.2(b)(4)(ii) should 
require consultation documentation ``that the action is not likely to 
adversely affect ESA-listed species or critical habitat.'' \100\ We 
agree that Interior's recommended revision is more precise, and have 
revised Sec.  7.2(b)(4)(ii) accordingly.
---------------------------------------------------------------------------

    \100\ Interior's Comment at 4.
---------------------------------------------------------------------------

    67. NMFS requests clarification of the language ``documentation of 
consultation with the Service(s)'' in proposed Sec.  7.2(b)(4)(iii). 
NMFS explains that the Commission must be involved with the applicant's 
ESA consultation with NMFS, as required by ESA regulations.\101\ 
Interior requests that the phrase should be revised to ``documentation 
of communication.'' \102\
---------------------------------------------------------------------------

    \101\ NMFS' Comment at 3 (citing 50 CFR 402.08).
    \102\ Interior's Comment at 4.
---------------------------------------------------------------------------

    68. We decline to make this change. As the ESA regulations allow, 
the intent here is that the applicant will act as our designated non-
federal representative in seeking the documentation of consultation 
specified by Sec.  7.2(b)(4)(iii).
    69. NHA submits that Commission action on the request to use the 
expedited process comes too late in the process if it coincides with 
the REA notice.\103\ Instead, NHA contends, a request for expedited 
processing should be approved during the pre-filing process if an 
applicant is able to provide, concurrent with its Notice of Intent to 
File a License Application and PAD submittal, a no effect 
determination, FWS and/or NMFS concurrence on a not likely to adversely 
affect determination, or a draft biological assessment with 
documentation of consultation and draft mitigation measures.\104\
---------------------------------------------------------------------------

    \103\ NHA's Comment at 13.
    \104\ NHA's Comment at 13; Dominion's Comment at 6.
---------------------------------------------------------------------------

    70. As noted above, the clear mandate of the AWIA is that the 
expedited licensing process begin with the filing of a completed 
license application, and therefore, we make no changes to the existing 
pre-filing processes. If an applicant requesting to use the expedited 
licensing process is able to demonstrate that its project satisfies the 
eligibility criteria and submits a complete license application without 
the need for Commission staff to request additional information or 
correct deficiencies, then Commission staff will be able to approve the 
request sooner than 180 days from the date the application was filed. 
Generally, Commission staff issues an REA notice when it determines 
that the contents of a license application meet the Commission's 
requirements and no additional information is needed to process the 
application.\105\ In the context of the expedited licensing process, if 
Commission staff determines a request and application are satisfactory, 
then we will issue an REA notice no later than 180 days from the date 
of receipt of a completed application.
---------------------------------------------------------------------------

    \105\ 18 CFR 5.22.
---------------------------------------------------------------------------

iv. NHPA Documentation
    71. PA SHPO contends that the requirement in proposed Sec.  
7.2(b)(5) that an applicant provide documentation demonstrating that 
consultation with a SHPO or Tribal Historic Preservation Office has 
been initiated is insufficient to satisfy section 106 of the NHPA.\106\ 
In addition to consultation, PA SHPO requests that the Commission 
provide guidance to applicants regarding the consultation procedures 
for each state SHPO. PA SHPO recommends hiring consultants that meet 
Interior's standards.\107\ PA SHPO further encourages applicants to 
initiate consultation early and to identify potentially affected 
historic properties as soon as possible.\108\ PA SHPO also notes some 
projects may be more likely to affect historic properties, which would 
require more consultation time under section 106 and may warrant 
exclusion from the expedited process.\109\ PA SHPO also requests that 
we consider the impacts on historic properties of transmission lines 
associated with projects eligible for the expedited process.\110\
---------------------------------------------------------------------------

    \106\ PA SHPO's March 5, 2019 Comment at 1.
    \107\ Id. (citing Secretary of Interior, Archeology and Historic 
Preservation; Secretary of the Interior's Standards and Guidelines, 
48 FR 44738-39 (1983)).
    \108\ PA SHPO's Comment at 1.
    \109\ Id.
    \110\ Id.
---------------------------------------------------------------------------

    72. PA SHPO states that existing nonpowered dams may be eligible to 
be listed as historic properties in the National Register.\111\ For a 
dam to be eligible in Pennsylvania, PA SHPO explains that the dam must 
have engineering significance or retain its historic setting and 
integrity in a surrounding historic district.\112\ PA SHPO also 
recommends that applicants should begin, and if possible finish, 
locating National Register significant archaeological properties during 
pre-filing.\113\
---------------------------------------------------------------------------

    \111\ Id. at 2.
    \112\ See id.
    \113\ See id.
---------------------------------------------------------------------------

    73. PA SHPO recommends that the Commission, with the intent to 
improve efficiency, provide guidance on the anticipated effects and 
alternatives to adverse effects typically caused by projects located at 
nonpowered dams and closed-loop pumped storage projects.\114\
---------------------------------------------------------------------------

    \114\ Id.
---------------------------------------------------------------------------

    74. As we acknowledged in the NOPR,\115\ the requirement that a 
part 7 applicant provide documentation demonstrating that section 106 
consultation has been initiated does not differ from the Commission's 
existing licensing requirements.\116\ We expect our applicants, as the 
project proponents, to work collaboratively with a SHPO and any 
affected tribes to conduct information gathering and to complete any 
studies the Commission determines necessary to support its section 106 
decision-making as the Commission will make the final determination. 
However, because consultation practices vary, we do not believe this 
rulemaking is the appropriate forum to provide guidance on each state 
SHPO's section 106 consultation procedures and preferences. Moreover, 
because projects at nonpowered dams and closed-loop pumped storage 
projects can vary drastically in size and scope, the Commission prefers 
to analyze anticipated impacts on historic properties and resolution of 
any adverse impacts on a project-by-project basis, rather than 
providing a generalized or over-simplistic forecast of anticipated 
effects and alternatives for projects to be proposed at nonpowered dams 
and for closed-loop pumped storage projects.
---------------------------------------------------------------------------

    \115\ NOPR, 166 FERC ] 61,083 at PP 23-24.
    \116\ See 18 CFR 4.41(f)(4), 5.18(b)(3)(v).
---------------------------------------------------------------------------

v. Dam Owner Documentation
    75. The NOPR proposed to require an applicant to provide 
confirmation that the federal or non-federal dam owner is not opposed 
to hydropower development at the dam if the proposed project would be 
located at an existing nonpowered dam.\117\
---------------------------------------------------------------------------

    \117\ See NOPR, 166 FERC ] 61,083 at P 25.
---------------------------------------------------------------------------

    76. The Forest Service requests clarification concerning the 
requirement in proposed Sec.  7.2(b)(6)(ii) that an applicant provide 
confirmation that the federal entity is not opposed to hydropower 
development at the

[[Page 17073]]

location.\118\ The Forest Service recommends that the documentation 
include confirmation that the applicant and federal entity discussed 
the possible license conditions that may be required by the federal 
entity, as well as confirmation of discussions about planning, 
permitting, and management issues related to all aspects of the 
development and operation of a hydropower facility, not only the 
location.\119\ According to the Forest Service, the requirement should 
also apply to applicants for closed-loop pumped storage projects.\120\
---------------------------------------------------------------------------

    \118\ Forest Service's Comment at 3.
    \119\ See id.
    \120\ See id.
---------------------------------------------------------------------------

    77. In contrast, Rye Development recommends that the final rule 
exclude the proposed requirement in Sec.  7.2(b)(6)(ii) that the 
federal dam owner must state the project is feasible.\121\ Rye 
Development states that the U.S. Army Corps of Engineers' (Army Corps) 
practice is to refuse to provide such documentation and it does not 
favor projects at its facilities.\122\ In effect, Rye Development 
contends the requirement would exclude many projects from the expedited 
process.\123\
---------------------------------------------------------------------------

    \121\ Rye Development's Comment at 7.
    \122\ See id.
    \123\ See id.
---------------------------------------------------------------------------

    78. NHA also opposes the requirement that an applicant must submit 
documentation demonstrating that the federal dam owner does not oppose 
project development.\124\ NHA states that the federal dam owner's 
opposition to the project should not be determinative, but also notes 
that the federal entity could prevent project development even after 
issuance of a Commission license by denying necessary authorizations 
under its purview.\125\ According to NHA, a federal dam owner's 
concerns about a proposed project should be addressed by the applicant 
outside of the Commission's licensing process.\126\ Moreover, NHA 
observes that if the federal agency opposes the project, it is unlikely 
that an application will ever be filed.\127\
---------------------------------------------------------------------------

    \124\ NHA's Comment at 16.
    \125\ See id.
    \126\ See id.
    \127\ See id.
---------------------------------------------------------------------------

    79. Dominion supports the NOPR's proposal to require applicants to 
provide documentation of consultation with a non-federal dam owner that 
confirms the owner is not opposed to project development.\128\ Dominion 
notes that allowing a developer to obtain an expedited license at an 
existing non-federal dam without the owner's consent could impair the 
intended use of the dam and water resource.\129\
---------------------------------------------------------------------------

    \128\ Dominion's Comment at 8.
    \129\ See id.
---------------------------------------------------------------------------

    80. The Commission's intent is to avoid significant staff 
expenditures of time and effort that would be needed to shepherd an 
application through the expedited licensing process to ensure a license 
decision can be made two years from application filing, only to have a 
project stalled by a federal dam owner's general opposition to 
hydropower development at its facility. The required documentation must 
demonstrate a preliminary confirmation that the federal dam owner is 
not opposed to use of the facility for hydropower development; there is 
no need for the federal entity to agree to specific design components 
or specifications at the time of application filing. We also note that 
neither the Army Corps nor Interior (on behalf the Bureau of 
Reclamation) commented on this documentation requirement.
    81. Accordingly, the final rule retains the requirement that an 
applicant provide documentation demonstrating that the dam owner, 
whether a federal or non-federal entity, is not opposed to project 
development.
vi. Public Parks, Recreation Areas, and Wildlife Areas Documentation
    82. If a proposed project would use any public park, recreation 
area, or wildlife refuge established under state or local law, the NOPR 
proposed in Sec.  7.2(b)(7) to require an expedited licensing applicant 
to provide, at the time of application filing, documentation from the 
managing entity demonstrating that it is not opposed to use of the 
park, area, or wildlife refuge for hydropower development.\130\
---------------------------------------------------------------------------

    \130\ NOPR, 166 FERC ] 61,083 at P 26 (explaining that section 
21 of the FPA, as amended by the Energy Policy Act of 1992, limits 
the use of eminent domain to acquire any lands included within any 
public park, recreation area, or wildlife refuge established under 
state or local law).
---------------------------------------------------------------------------

    83. Referencing Sec.  7.2(b)(7) as proposed in the NOPR, Interior 
recommends that any license application submitted alongside a request 
to use the expedited licensing process address the following areas of 
interest to the National Park Service (NPS): (1) NPS areas; (2) Wild 
and Scenic Rivers; (3) Nationwide Rivers Inventory and eligible/
suitable rivers; (4) recreation grant programs, and (5) recreation 
management.\131\ Specifically, Interior requests that if the project or 
any appurtenant structure or conduit is located in the vicinity of a 
NPS unit, consultation with NPS should begin as soon as possible and an 
application should include a concurrence from the NPS that the project 
is not likely to adversely affect NPS-managed lands, or natural, 
cultural, or recreational resources.\132\ Interior also reminds the 
Commission that it must comply with the Wild and Scenic Rivers Act if a 
project is proposed to be located in the proximity of a designated Wild 
and Scenic River or Congressionally-authorized study segments.\133\ 
Further, if the project would require a conversion under various NPS-
administered recreation grant programs, Interior recommends that an 
application identify a suitable replacement property approved by 
NPS.\134\ Lastly, Interior recommends that an application include an 
explanation of a recreation strategy, a draft or final recreation 
management plan, and documentation of consultation with interested 
stakeholders.\135\
---------------------------------------------------------------------------

    \131\ Interior's Comment at 5-6.
    \132\ Id. at 5.
    \133\ Id. Interior also recommends that an application for a 
project proposed to be located on eligible or suitable wild and 
scenic rivers, including Nationwide Rivers Inventory, should include 
a determination from the NPS as to whether the project would 
preclude Wild and Scenic Rivers designation for Nationwide Rivers 
Inventory segments and other eligible and suitable river segments.
    \134\ Id. at 5-6 (citing 36 CFR 59.3, 72.72, and 40 U.S.C. 
550(b) and (e)).
    \135\ Interior's Comment at 6.
---------------------------------------------------------------------------

    84. Pursuant to Sec.  4.38 of the Commission's regulations,\136\ a 
potential applicant must consult with the relevant federal, state, and 
interstate resource agencies, including NPS, prior to filing an 
application for an original license. Further, Sec. Sec.  4.41 and 5.18 
of our regulations require an application to include documentation of 
consultation; describe existing recreation facilities, existing and 
potential recreational use, and any new recreation development proposed 
by the applicant (e.g., recreation management plan); and identify any 
designated waters and lands including any areas within or in the 
vicinity of the proposed project boundary that are included in, or have 
been designated for the study for inclusion in, the National Wild and 
Scenic Rivers System, or that have been designated as wilderness area, 
recommended for such designation, or designated as a wilderness study 
area under the Wilderness Act.\137\ Therefore, with the exception of 
the need for an application to identify suitable replacement property 
under NPS-administered grant programs, Interior's requests do not 
differ from the Commission's existing requirements

[[Page 17074]]

with respect to the recreation-related content of a license 
application. Identifying suitable replacement property under NPS-
administered grant programs is not a prerequisite for issuance of a 
Commission license. The Commission does not anticipate that this 
information, or the lack thereof, will preclude the Commission's 
expedited processing of the license application. Therefore, we will not 
require the additional information requested by Interior.
---------------------------------------------------------------------------

    \136\ 18 CFR 4.38.
    \137\ See 18 CFR 4.41, 5.18.
---------------------------------------------------------------------------

3. Section 7.3--Adequacy Review of Application
    85. In the NOPR, the Commission proposed to review a license 
application that is accompanied by a request to use the expedited 
licensing process under part 4 (TLP or ALP) or part 5 (ILP) of the 
Commission's regulations, depending on the applicant's elected 
licensing process. If the application is deemed deficient and rejected 
under part 4 or 5, the NOPR explained that the request to use the 
expedited licensing process would likewise be rejected.
    86. We received no comments on this aspect of the NOPR. The final 
rule retains Sec.  7.3 as originally proposed.
4. Section 7.4--Additional Information
    87. In the NOPR, the Commission proposed to include Sec.  7.4, 
requiring an applicant under part 7 to submit additional information or 
documentation to the Commission in the form and time frame prescribed 
by the Commission. As proposed, Sec.  7.4 would also allow the 
Commission to direct a part 7 applicant to submit copies of the 
application or other filed materials to any person, agency, Indian 
Tribe, or other entity specified by the Commission. Failure to provide 
the requested information or documentation as specified may result in 
dismissal or abeyance of the license application.
    88. We received no comments on this aspect of the NOPR. The final 
rule retains Sec.  7.4 as originally proposed.
5. Section 7.5--Decision on Request To Use Expedited Licensing Process
    89. In the NOPR, the Commission proposed that the Director of the 
Office of Energy Projects (OEP) would act on a request to use the 
expedited licensing process within six months from the date of 
application filing. If Commission staff is unable to find that the 
application meets the requirements of parts 4, 5, and 7, deficiencies 
remain, or additional information is still needed six months after the 
date the application is filed, the Director will deny the request to 
use the expedited licensing process. If the expedited licensing request 
is denied, proposed Sec.  7.5 explained that the license application 
would be processed pursuant to a standard processing schedule under 
parts 4 or 5 of the Commission's regulations, as appropriate.
    90. Daybreak recommends that the Director of OEP should only have 
60 to 90 days, not six months as proposed in Sec.  7.5, to review a 
request to use the expedited process to determine whether the project 
is eligible for the expedited process.\138\ Similarly, NMFS recommends 
30 to 60 days to make this determination,\139\ while the Nature 
Conservancy recommends 60 days.\140\ If an application is complete, 
NMFS recommends that the Commission issue a Notice of Acceptance and 
Ready for Environmental Analysis immediately and not wait for the six-
month period to run.\141\ Alternatively, Daybreak recommends that the 
time for the applicants to respond to the Commission staff's deficiency 
requests should not be counted toward the two-year deadline.\142\
---------------------------------------------------------------------------

    \138\ Daybreak's Comment at 3.
    \139\ NMFS' Comment at 3.
    \140\ Nature Conservancy's Comments at 5.
    \141\ NMFS' Comment at 3.
    \142\ Daybreak's Comment at 3.
---------------------------------------------------------------------------

    91. The Nature Conservancy asks the Commission to clarify whether 
the two-year timeframe begins once the Director of OEP determines 
whether the use of the expedited licensing process is appropriate.\143\
---------------------------------------------------------------------------

    \143\ Nature Conservancy's Comment at 5.
---------------------------------------------------------------------------

    92. To clarify, the Director of OEP will act on a request to use 
the expedited licensing process no later than 180 days after an 
application and request to use the expedited process has been filed. 
However, earlier action by the Director of OEP is possible if an 
application clearly demonstrates compliance with the expedited 
licensing eligibility criteria. The timeliness of the Director's action 
on such a request will also be directly tied to the completeness of the 
license application as well as the applicant's prompt resolution of any 
deficiencies and additional information requests. If an applicant is 
unable to correct all deficiencies within 180 days after the 
application filing date, the Director will deny the request to use the 
expedited licensing process, and processing of the application will 
proceed under the Commission's standard licensing process.
    93. If the Director approves a request to use the expedited 
licensing process, the two-year process will be deemed to have begun on 
the date the application was filed. Therefore, whether the Director 
approves an expedited licensing request within 30 days or 180 days from 
the date the application was filed, the two-year schedule commences on 
the date the application was filed. For the sake of precision, we have 
revised Sec. Sec.  7.5 and 7.6 in the final rule to replace ``6 
months'' with ``180 days.''
6. Section 7.6--Notice of Acceptance and Ready for Environmental 
Analysis
    94. As proposed in the NOPR, section 7.6 explained that if the 
Director of OEP approves a request to use the expedited licensing 
process, the Commission will issue a public notice no later than six 
months from the application filing date. The notice will accept the 
application and confirm the acceptance date as the application filing 
date; find the application ready for environmental analysis; request 
comments, protests, and interventions; request recommendations, 
preliminary terms and conditions, and preliminary fishway 
prescriptions; and establish a schedule for the application's expedited 
processing.
    95. The expedited schedule will include date estimates for: (i) The 
filing of recommendations, preliminary terms and conditions, and 
fishway prescriptions; (ii) issuance of the draft NEPA document, or an 
EA not preceded by a draft; (iii) filing of responses, if applicable, 
to requests for concurrence or formal consultation under ESA, or to 
other Commission staff requests to agencies or Indian Tribes under 
other federal laws, including the MSA and the NHPA; (iv) filing of 
comments on a draft NEPA document, if applicable; (v) filing of 
modified recommendations, mandatory terms and conditions, and fishway 
prescriptions in response to a draft NEPA document or, if no draft NEPA 
document is issued, to an EA; and (vi) issuance of a final NEPA 
document, if applicable.
    96. NMFS and Interior request that the Commission, prior to issuing 
public notice of the application, seek concurrence on the proposed 
schedule from the agencies responsible for the various environmental 
reviews and authorizations.\144\ NMFS and Interior also request that 
the Commission issue a final decision on an application as soon as 
possible after the issuance of the final NEPA document to allow 
resource agencies sufficient time within the two-year expedited process 
to complete the requisite environmental reviews and 
authorizations.\145\
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    \144\ NMFS' Comment at 3; Interior's Comment at 4.
    \145\ NMFS' Comment at 3; Interior's Comment at 4.

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[[Page 17075]]

    97. The expedited processing schedule provided for in Sec.  7.6(e) 
will be determined on case-by-case basis. Agencies should memorialize 
any anticipated timing or scheduling concerns during pre-filing 
correspondence with the applicant. In addition, once an application 
with a request for expedited processing is filed with the Commission, 
agencies should strive to promptly notify the Commission of any 
schedule-related concerns or requests. The Commission will consider any 
such agency input prior to issuing the public notice containing a 
project's expedited licensing schedule.
7. Section 7.7--Amendment of Application
    98. Section 7.7 of the NOPR proposed a process for amending a 
pending part 7 application following the Commission's issuance of the 
notice accepting the application and finding it ready for environmental 
analysis.
    99. The Forest Service recommends that amendments to a license 
application filed under part 7 only be permitted before the Commission 
issues a notice of acceptance of the application.\146\ Permitting 
amendments after a notice of acceptance has been issued would not allow 
sufficient time for the applicant and agencies to negotiate and modify 
license terms and conditions.\147\
---------------------------------------------------------------------------

    \146\ Forest Service's Comment at 4.
    \147\ Forest Service's Comment at 4.
---------------------------------------------------------------------------

    100. We agree that a request to amend a part 7 license application 
after the acceptance of the application and issuance of the expedited 
processing schedule may interfere with the Commission's ability to act 
on a license application within two years from the date of application 
filing. Therefore, we have revised Sec.  7.7 to allow the Director of 
OEP to remove an application from the expedited licensing process if 
the applicant files a significant amendment to its application. If an 
application is removed from the expedited licensing process, Commission 
staff will continue to process the application under the Commission's 
standard licensing process.
8. Section 7.8--Other Provisions
    101. Section 7.8, as proposed in the NOPR, authorized the Director 
of OEP to waive or modify provisions of part 7 for good cause. Proposed 
Sec.  7.8 also explained that the Commission may consider late-filed 
recommendations by authorized fish and wildlife agencies under the Fish 
and Wildlife Coordination Act \148\ and FPA section 10(j),\149\ and 
late-filed FPA section 4(e) \150\ terms and conditions or FPA section 
18 \151\ prescriptions as cause to remove the application from the 
expedited licensing process under this part. In addition, proposed 
Sec.  7.8(c)(5) stated that ``[t]he Commission will require the 
construction, maintenance, and operation of such fishways as may be 
timely prescribed by the Secretary of Commerce or the Secretary of the 
Interior, as appropriate, pursuant to section 18 of the [FPA].'' \152\
---------------------------------------------------------------------------

    \148\ 16 U.S.C. 661-666c (2012).
    \149\ Id. section 803(j).
    \150\ Id. section 797(e).
    \151\ Id. section 811.
    \152\ NOPR, 166 FERC ] 61,083 at Sec.  7.8(c)(5) (emphasis 
added).
---------------------------------------------------------------------------

    102. NMFS and Interior recommend that the Commission expand or 
generalize the circumstances listed in proposed Sec.  7.8 that would 
cause the Commission to remove a project from the expedited 
process.\153\ NMFS provides two examples, one in which the an applicant 
fails to provide sufficient information to complete ESA or essential 
fish habitat (EFH) consultation due to unanticipated delays, and 
another in which the scope of the project changes unexpectedly.\154\
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    \153\ NMFS' Comment at 4; Interior's Comment at 4.
    \154\ NMFS' Comment at 4.
---------------------------------------------------------------------------

    103. Once an applicant has received approval to use the expedited 
licensing process, circumstances such as late-filed recommendations, 
terms and conditions, or prescriptions that may cause a project to be 
removed from the expedited licensing process will be evaluated on a 
case-by-case basis. The scenarios posed by NMFS (i.e., insufficient 
information to complete ESA or EFH consultation and unanticipated 
changes to the scope of the project) could impact the aspirational two-
year processing timeline, but depending on the circumstances, may not 
be cause to remove the project from the expedited licensing process. In 
the alternative, rather than removing the project from the expedited 
licensing process, Commission staff may instead choose to document the 
reason for the delay and issue a revised processing schedule that may 
extend the original two year timeline.
    104. NMFS and Interior state that the Commission lacks the 
authority to reject a mandatory license condition prescribed by an 
agency under section 4(e) of the FPA or a fishway prescription 
prescribed by agency under section 18 of the FPA based on a deadline 
set forth by the Commission.\155\ Therefore, NMFS recommends that the 
word ``timely'' be removed from proposed Sec.  7.8(c)(5).\156\
---------------------------------------------------------------------------

    \155\ NMFS' Comment at 4; Interior's Comment at 2 and 5.
    \156\ NMFS' Comment at 4.
---------------------------------------------------------------------------

    105. As NMFS and Interior correctly observe, the Commission has no 
authority to reject mandatory conditions filed under FPA section 4(e) 
or fishway prescriptions filed under FPA section 18 even if the 
mandatory condition or prescription is filed late.\157\ Accordingly, we 
have deleted the word ``timely'' from Sec.  7.8(c)(5).
---------------------------------------------------------------------------

    \157\ See City of Tacoma, WA v. FERC, 460 F.3d 53, 64-65 (D.C. 
Cir. 2006).
---------------------------------------------------------------------------

9. Section 7.9--Transition Provision
    106. The NOPR proposed including a transition provision to clarify 
that the new part 7 would only apply to original license applications 
filed on or after the effective date of the final rule.
    107. The Commission received no comments on this aspect of the 
NOPR. The final rule retains Sec.  7.9 as originally proposed.

C. Other Matters

1. Projects That Require an EIS
    108. The NOPR requested comments on whether the expedited licensing 
process should be available for projects that otherwise meet the 
eligibility criteria, but will require the preparation of an EIS.\158\
---------------------------------------------------------------------------

    \158\ NOPR, 166 FERC ] 61,083 at PP 45-47.
---------------------------------------------------------------------------

    109. The Forest Service, Oregon DFW, Interior, and the Nature 
Conservancy support excluding projects that would require the 
preparation of an EIS from the expedited process because the expedited 
process should only be available for projects that would have limited 
environmental impacts.\159\
---------------------------------------------------------------------------

    \159\ Forest Service's Comment at 4; Oregon DFW's Comment at 2; 
Interior's Comment at 7; Nature Conservancy's Comment at 2.
---------------------------------------------------------------------------

    110. In contrast, Daybreak believes that an expedited process that 
would exclude closed-loop pumped storage projects that would require an 
EIS would be overly restrictive.\160\ Daybreak warns that ``virtually'' 
no closed-loop pumped storage project would qualify for the expedited 
process and would violate the purpose of the statute.\161\
---------------------------------------------------------------------------

    \160\ Daybreak's Comment at 2-3.
    \161\ Id.
---------------------------------------------------------------------------

    111. Rather than categorically excluding projects that will require 
preparation of an EIS, NHA suggests that the Commission should make a 
case-by-case determination at the conclusion of the pre-filing NEPA 
scoping on whether the particular

[[Page 17076]]

circumstances warrant approval of the expedited licensing process.\162\
---------------------------------------------------------------------------

    \162\ NHA's Comment at 18.
---------------------------------------------------------------------------

    112. As further described in the discussion regarding the One 
Federal Decision process,\163\ the final rule will not categorically 
exclude applications for projects that would require the preparation of 
an EIS.\164\ In light of NHA's recommendation, Commission staff will 
decide, on a case-by-case basis, whether to approve a request to use 
the expedited process after completing pre-filing scoping. By waiting 
until more information about a proposal's possible environmental 
effects is available, we ensure that EIS projects that can be licensed 
within two years are not unreasonably excluded from the expedited 
process. Yet, we would also be able to exclude from expedited 
processing EIS projects that would require more resources, thereby 
ensuring that these projects are not hastily licensed under the 
expedited process. Accordingly, the final rule will not restrict part 7 
eligibility to only projects that require preparation of an EA.
---------------------------------------------------------------------------

    \163\ See infra PP 114-115.
    \164\ Under the Commission's existing regulations, an EIS is 
normally prepared for licenses for construction of any unconstructed 
water power projects. 18 CFR 380.6(a)(4) (2018). If, however, the 
Commission finds a license application may not significantly affect 
the quality of the human environment, an EIS may not be required to 
be prepared. Id. 380.6(b).
---------------------------------------------------------------------------

    113. The Forest Service and NMFS request clarification on the 
processing timeline for an application for a project that would be 
eligible for both the expedited licensing process and the One Federal 
Decision process.\165\
---------------------------------------------------------------------------

    \165\ Forest Service's Comment at 4; NMFS' Comment at 1.
---------------------------------------------------------------------------

    114. By signing a Memorandum of Understanding Implementing One 
Federal Decision Under Executive Order 13807,\166\ federal agencies, 
including the Commission, committed to completing within an average of 
two years all required environmental reviews and authorization 
decisions for ``major infrastructure projects.'' \167\ In general for 
hydropower projects, this two-year timeframe starts on the date the 
Commission publishes a Notice of Intent to prepare an EIS and ends with 
the issuance of all federal environmental reviews and authorization 
decisions.\168\
---------------------------------------------------------------------------

    \166\ Establishing Discipline and Accountability in the 
Environmental Review and Permitting Process for Infrastructure 
Projects, Exec. Order No. 13,807, 82 FR 40,463 (Aug. 15, 2017); 
Memorandum of Understanding Implementing the One Federal Decision 
under Executive Order 13807, https://www.ferc.gov/legal/mou/2018/MOU-One-Federal-Decision.pdf (One Federal Decision MOU).
    \167\ A major infrastructure project is defined as an 
infrastructure project for which multiple authorizations by Federal 
agencies will be required to proceed with construction, the lead 
Federal agency has determined that it will prepare an EIS, and the 
project sponsor has identified the reasonable availability of funds 
sufficient to complete the project. Exec. Order No. 13,807, section 
3(e).
    \168\ FERC's One Federal Decision Implementation Plan, 
Attachment C. Under our One Federal Decision Implementation Plan, we 
will issue NOIs to prepare an EIS in post-filing for hydropower 
projects.
---------------------------------------------------------------------------

    115. Projects that qualify as ``major infrastructure projects'' and 
receive approval to use the expedited licensing process will be 
processed under the two-year expedited licensing process set forth in 
part 7 of the Commission's regulations. The two-year timeframe for the 
expedited licensing process will begin on the date of application 
filing, and will follow the procedures set forth in part 7 of the 
Commission's regulations. Under the expedited licensing process, the 
Commission will strive to ensure that a final order is issued within 
two years from the date of application filing, as directed by the AWIA. 
We believe this outcome fulfills the spirit of the One Federal Decision 
MOU.
2. FPA Section 35(c) Exceptions
    116. When issuing or amending a license for a closed-loop pumped 
storage project under the expedited licensing process, FPA section 
35(c) gives the Commission discretion to ``grant an exception from any 
other requirement of [FPA Part I] with respect to any part of the 
closed-loop pumped storage project (not including any dam or other 
impoundment).'' \169\ The NOPR did not propose regulations implementing 
this section of the AWIA.
---------------------------------------------------------------------------

    \169\ 16 U.S.C.A. 823f(c) (West 2019).
---------------------------------------------------------------------------

    117. NHA notes that the NOPR did not discuss FPA section 35(c), and 
asks the Commission to provide guidance on the kinds of exceptions to 
the FPA Part I requirements that it will adopt or consider.\170\ NHA 
posits that section 35(c) allows the Commission to ease the burden of 
license conditions for closed-loop pumped storage projects that qualify 
for expedited processing, noting that the Commission could refrain from 
requiring recreation improvements or could ease monitoring and 
reporting requirements unrelated to dam and project safety for these 
types of projects.\171\
---------------------------------------------------------------------------

    \170\ NHA's Comment at 19.
    \171\ NHA's Comment at 19.
---------------------------------------------------------------------------

    118. Pursuant to section 35(c) of the FPA, any applicant interested 
in pursuing the expedited licensing process may request an exception 
from any of the requirements of Part I of the FPA with respect to any 
part of the applicant's proposed closed-loop pumped storage project 
(not including any dam or other impoundment). An applicant may request 
a section 35(c) exception concurrently with a license application and 
the request for authorization to use the expedited licensing process. A 
request for a section 35(c) exception should clearly identify the 
requirement under Part I of the FPA from which the applicant is seeking 
to be excepted and provide reasoned justification for the request.

IV. Regulatory Requirements

A. Information Collection Statement

    119. The Paperwork Reduction Act \172\ requires each federal agency 
to seek and obtain the Office of Management and Budget's (OMB) approval 
before undertaking a collection of information directed to ten or more 
persons or contained in a rule of general applicability. OMB 
regulations require approval of certain information collection 
requirements contained in final rules published in the Federal 
Register.\173\ Upon approval of a collection of information, OMB will 
assign an OMB control number and an expiration date. Respondents 
subject to the filing requirements of a rule will not be penalized for 
failing to respond to the collection of information unless the 
collection of information displays a valid OMB control number.
---------------------------------------------------------------------------

    \172\ 44 U.S.C. 3501-3521 (2012).
    \173\ See 5 CFR 1320.12 (2018).
---------------------------------------------------------------------------

    120. Public Reporting Burden: In this final rule, the Commission 
establishes an expedited process for issuing original licenses for 
qualifying facilities at nonpowered dams and for closed-loop pumped 
storage projects, as directed by Congress in the AWIA.
    121. This final rule modifies certain reporting and recordkeeping 
requirements included in FERC-500 (OMB Control No. 1902-0058) \174\ and 
FERC-505 (OMB Control No. 1902-0115).\175\
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    \174\ FERC-500 includes the reporting and recordkeeping 
requirements for ``Application for License/Relicense for Water 
Projects with More than 5 Megawatt (MW) Capacity.''
    \175\ FERC-505 includes the reporting and recordkeeping 
requirements for ``Small Hydropower Projects and Conduit Facilities 
including License/Relicense, Exemption, and Qualifying Conduit 
Facility Determination.''
---------------------------------------------------------------------------

    122. The revisions to the Commission's regulations, associated with 
the FERC-500 and FERC-505 information collections, are intended to 
comply with the requirements of the AWIA. While the information to be 
included in the license application and the required federal and state 
authorizations would remain the same under the expedited licensing 
process,

[[Page 17077]]

consultation documentation regarding these authorizations will need to 
be submitted to the Commission at an earlier point in the licensing 
process. Therefore, preparing the request to use the expedited 
licensing process represents a slight increase in the reporting 
requirements and burden information for FERC-500 and FERC-505.
    123. The estimated burden and cost for the requirements contained 
in this final rule follow.
---------------------------------------------------------------------------

    \176\ The estimates for cost per response are derived using the 
following formula: Average Burden Hours per Response * $79 per Hour 
= Average Cost per Response. The hourly cost figure of $79 is the 
2018 average FERC employee wage plus benefits. Commission staff 
assumes that respondents earn at a similar rate to FERC employees.

                                                Revisions Due to the Final Rule in Docket No. RM19-6-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Number of
                                        Number of     responses per   Total number    Average burden hours & cost per      Total annual burden hours &
                                       respondents     respondent     of responses             response \176\                   total annual cost
                                                (1)             (2)     (1) x (2) =  (4)..............................  (3) x (4) = 5
                                                                                (3)
--------------------------------------------------------------------------------------------------------------------------------------------------------
FERC-500...........................               5               1               5  40; $3,160.......................  200 hrs.; $15,800.
FERC-505...........................               5               1               5  40; $3,160.......................  200 hrs.; $15,800.
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................  ..............  ..............              10  .................................  400 hrs.; $31,600.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    124. Titles: FERC-500 (Application for License/Relicense for Water 
Projects with More than 5 Megawatt (MW) Capacity) and FERC-505 (Small 
Hydropower Projects and Conduit Facilities including License/Relicense, 
Exemption, and Qualifying Conduit Facility Determination).
    125. Action: Revisions to information collections FERC-500 and 
FERC-505.
    126. OMB Control Nos.: 1902-0058 (FERC-500) and 1902-0115 (FERC-
505).
    127. Respondents: Municipalities, businesses, private citizens, and 
for-profit and not-for-profit institutions.
    128. Frequency of Information: Ongoing.
    129. Necessity of Information: The revised regulations implement 
the AWIA's directive to establish an expedited licensing process for 
two types of hydropower projects--qualifying facilities at existing 
nonpowered dams and closed-loop pumped storage projects. The revised 
regulations would affect only those entities that opt to request 
authorization to use the expedited process at the time they file a 
license application proposing one of the two aforementioned project 
types. The revised regulations would impose a new, albeit slight, 
information collection requirement.
    130. The new requirement for an applicant to file a request for 
authorization to use the expedited process concurrently with its 
license application is necessary for the Commission to carry out its 
responsibilities under the FPA, as amended by the AWIA. The information 
provided by the applicants will enable the Commission to review the 
features of the proposed project and make a determination on whether 
the proposed project meets the statutory criteria enumerated in the 
AWIA, as well as the early consultation requirements that the 
Commission has determined will help it seek to ensure that the proposed 
project's license application will be acted on no later than two years 
after the date of application filing.
    131. Internal Review: The Commission has reviewed the revisions and 
has determined that they are necessary. These requirements conform to 
the Commission's need for efficient information collection, 
communication, and management within the energy industry. The 
Commission has assured itself, by means of internal review, that there 
is specific, objective support for the burden estimates associated with 
the information collection requirements.
    132. Interested persons may obtain information on the reporting 
requirements by contacting the Federal Energy Regulatory Commission, 
888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, 
Office of the Executive Director], by email to [email protected], 
by phone (202) 502-8663, or by fax (202) 273-0873.
    133. Comments concerning the collections of information and the 
associated burden estimates may also be sent to: Office of Information 
and Regulatory Affairs, Office of Management and Budget, 725 17th 
Street NW, Washington, DC 20503 [Attention: Desk Officer for the 
Federal Energy Regulatory Commission]. Due to security concerns, 
comments should be sent electronically to the following email address: 
[email protected]. Comments submitted to OMB should refer to 
FERC-500 (OMB Control No. 1902-0058) and FERC-505 (OMB Control No. 
1902-0115).

B. Environmental Analysis

    134. The Commission is required to prepare an EA or an EIS for any 
action that may have a significant adverse effect on the human 
environment.\177\ The Commission has categorically excluded certain 
actions from this requirement as not having a significant effect on the 
human environment. Excluded from this requirement are rules that are 
clarifying, corrective, or procedural, or that do not substantially 
change the effect of legislation or the regulations being amended.\178\ 
This final rule establishes an expedited licensing process for 
qualifying facilities at nonpowered dams and for closed-loop pumped 
storage projects, as directed by Congress in the AWIA. Because this 
final rule is procedural in nature and does not substantially change 
the effect of the underlying legislation, preparation of an EA or EIS 
is not required.
---------------------------------------------------------------------------

    \177\ Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. 
] 30,783 (1987) (cross-referenced at 41 FERC 61,284).
    \178\ 18 CFR 380.4(a)(2)(ii) (2018).
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C. Regulatory Flexibility Act

    135. The Regulatory Flexibility Act of 1980 (RFA) \179\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The RFA mandates consideration of regulatory alternatives that 
accomplish the stated objectives of a final rule and minimize any 
significant economic impact on a substantial number of small 
entities.\180\ In lieu of preparing a regulatory flexibility analysis, 
an agency may certify that a final rule will not have a

[[Page 17078]]

significant economic impact on a substantial number of small 
entities.\181\
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    \179\ 5 U.S.C. 601-612 (2012).
    \180\ Id. section 603(c).
    \181\ Id. section 605(b).
---------------------------------------------------------------------------

    136. The Small Business Administration's (SBA) Office of Size 
Standards develops the numerical definition of a small business.\182\ 
The SBA size standard for electric utilities is based on the number of 
employees, including affiliates.\183\ Under SBA's current size 
standards, a hydroelectric power generator (NAICS code 221111) \184\ is 
small if it, including its affiliates, employs 500 or fewer 
people.\185\
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    \182\ 13 CFR 121.101 (2018).
    \183\ Id. section 121.201.
    \184\ The North American Industry Classification System (NAICS) 
is an industry classification system that Federal statistical 
agencies use to categorize businesses for the purpose of collecting, 
analyzing, and publishing statistical data related to the U.S. 
economy. United States Census Bureau, North American Industry 
Classification System, https://www.census.gov/eos/www/naics/.
    \185\ 13 CFR 121.201 (2018) (Sector 22--Utilities).
---------------------------------------------------------------------------

    137. This final rule will directly affect only those entities that 
file an application for a qualifying facility at a nonpowered dam or 
for a closed-loop pumped storage project, and a request to use the 
expedited licensing process. While the information to be included in 
the licensing application and the required federal and state 
authorizations would remain the same, documentation regarding these 
authorizations will need to be submitted at an earlier point in the 
licensing process. Therefore, preparing a request to use the expedited 
licensing process would represent a slight increase (40 hours of 
reporting burden and corresponding wage costs of $3,160 per entity on 
an annual basis) in the information collection reporting requirements 
and burden for FERC-500 and FERC-505. However, we do not anticipate the 
impact of the final rule on affected entities, regardless of their 
status as a small entity or not, to be significant.
    138. Accordingly, pursuant to section 605(b) of the RFA, the 
Commission certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities.

D. Document Availability

    139. In addition to publishing the full text of this document in 
the Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, 
Washington DC 20426.
    140. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number, excluding the last three digits of this document, in 
the docket number field.
    141. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

E. Effective Date and Congressional Notification

    142. These regulations are effective July 23, 2019. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs of OMB, that this rule is not a 
major rule as defined in section 251 of the Small Business Regulatory 
Enforcement Fairness Act of 1996.\186\ This rule is being submitted to 
the Senate, House, Government Accountability Office, and Small Business 
Administration.
---------------------------------------------------------------------------

    \186\ 5 U.S.C. 804(2) (2012).
---------------------------------------------------------------------------

List of Subjects in 18 CFR Part 7

    Administrative practice and procedure, Electric power, Reporting 
and recordkeeping requirements.

    By direction of the Commission. Commissioner McNamee is not 
participating.

    Issued: April 18, 2019.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

0
In consideration of the foregoing, the Commission adds part 7, chapter 
I, title 18, Code of Federal Regulations, as follows:

PART 7--EXPEDITED LICENSING PROCESS FOR QUALIFYING NON-FEDERAL 
HYDROPOWER PROJECTS AT EXISTING NONPOWERED DAMS AND FOR CLOSED-LOOP 
PUMPED STORAGE PROJECTS

Sec.
7.1 Applicability and definitions.
7.2 Use of expedited licensing process.
7.3 Adequacy review of application.
7.4 Additional information.
7.5 Decision on request to use expedited licensing process.
7.6 Notice of acceptance and ready for environmental analysis.
7.7 Amendment of application.
7.8 Other provisions.
7.9 Transition provision.

    Authority: 16 U.S.C. 791a-825r; Pub. L. 115-270, 132 Stat. 3765.


Sec.  7.1   Applicability and definitions.

    (a) Applicability of the expedited licensing process. This part 
applies to the processing of applications for original licenses for 
qualifying non-federal hydropower projects at existing nonpowered dams 
and for closed-loop pumped storage projects pursuant to sections 34 and 
35 of the Federal Power Act.
    (b) Applicability of existing regulations. Except where superseded 
by the expedited licensing process set forth in this part, the 
regulations governing license applications under parts 4 and 5 of this 
chapter, as applicable, also apply to license applications filed under 
this part.
    (c) Definitions. The definitions in Sec.  4.30(b) of this chapter 
apply to this part. In addition, for the purposes of this part--
    (1) Qualifying nonpowered dam means any dam, dike, embankment, or 
other barrier--
    (i) The construction of which was completed on or before October 
23, 2018;
    (ii) That is or was operated for the control, release, or 
distribution of water for agricultural, municipal, navigational, 
industrial, commercial, environmental, recreational, aesthetic, 
drinking water, or flood control purposes; and
    (iii) That, as of October 23, 2018, was not generating electricity 
with hydropower generating works that were licensed under, or exempted 
from the license requirements contained in, Part I of the Federal Power 
Act.
    (2) Qualifying facility means a facility that is determined under 
section 34 of the Federal Power Act to meet the qualifying criteria for 
non-federal hydropower projects at existing nonpowered dams.
    (3) Qualifying criteria for closed-loop pumped storage projects 
means criteria that a pumped storage project must meet in order to 
qualify as a closed-loop pumped storage project eligible for the 
expedited process established under this part. These criteria require 
that the pumped storage project:
    (i) Cause little to no change to existing surface and groundwater 
flows and uses;
    (ii) Is unlikely to adversely affect species listed as a threatened 
species or endangered species, or designated critical habitat of such 
species, under the Endangered Species Act of 1973;
    (iii) Utilize only reservoirs situated at locations other than 
natural waterways,

[[Page 17079]]

lakes, wetlands, and other natural surface water features; and
    (iv) Rely only on temporary withdrawals from surface waters or 
groundwater for the sole purposes of initial fill and periodic recharge 
needed for project operation.
    (d) Who may file. Any citizen, association of citizens, domestic 
corporation, municipality, or state that develops and files a license 
application under 18 CFR parts 4 and 5, as applicable, may request 
expedited processing under this part.
    (e) Use of expedited licensing process. An applicant wishing to use 
this expedited licensing process must apply for and receive 
authorization from the Commission under this part. An applicant under 
this part may elect to use the licensing process provided for in 18 CFR 
part 5 (i.e., integrated license application process), or as provided 
under 18 CFR 5.1:
    (1) 18 CFR part 4, subparts D-H (i.e., traditional process); or
    (2) Section 4.34(i) of this chapter, Alternative procedures.


Sec.  7.2   Use of expedited licensing process.

    (a) In order to pursue the expedited licensing process, an 
applicant must request authorization for the expedited process, as 
provided for in paragraph (b) of this section. The licensing procedures 
in this part do not apply to an application for a new or subsequent 
license.
    (b) An application that accompanies a request for authorization to 
use the expedited licensing process must include the information 
specified below.
    (1) Section 34 of the Federal Power Act qualification--projects at 
nonpowered dams. The application must demonstrate that the proposed 
facility meets the following qualifications pursuant to section 34(e) 
of the Federal Power Act:
    (i) As of October 23, 2018, the proposed hydropower facility was 
not licensed under or exempted from the license requirements contained 
in Part I of the Federal Power Act;
    (ii) The facility will be associated with a qualifying nonpowered 
dam;
    (iii) The facility will be constructed, operated, and maintained 
for the generation of electric power;
    (iv) The facility will use for such generation any withdrawals, 
diversions, releases, or flows from the associated qualifying 
nonpowered dam, including its associated impoundment or other 
infrastructure; and
    (v) The operation of the facility will not result in any material 
change to the storage, release, or flow operations of the associated 
qualifying nonpowered dam.
    (2) Section 35 of the Federal Power Act qualification--closed-loop 
pumped storage projects. The application must demonstrate that the 
proposed closed-loop pumped storage project meets the following 
qualifications pursuant to section 35(g)(2) of the Federal Power Act:
    (i) The project will cause little to no change to existing surface 
and groundwater flows and uses; and
    (ii) The project is unlikely to adversely affect species listed as 
a threatened species or endangered species, or designated critical 
habitat of such species, under the Endangered Species Act of 1973.
    (3) Section 401 of the Clean Water Act. The application must 
include a copy of a request for certification under section 401(a)(1) 
of the Clean Water Act, including proof of the date on which the 
certifying agency received the request; or
    (i) A copy of water quality certification; or
    (ii) Evidence of waiver of water quality certification. A 
certifying agency is deemed to have waived the certification 
requirements of section 401(a)(1) of the Clean Water Act if the 
certifying agency has not denied or granted certification by one year 
after the date the certifying agency received a written request for 
certification. If a certifying agency denies certification, the 
applicant must file a copy of the denial within 30 days after the 
applicant received it.
    (4) Endangered Species Act (ESA). The application must include:
    (i) A no-effect determination that includes documentation that no 
listed species or critical habitat are present in the action area;
    (ii) Documentation of concurrence from the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service (Service(s)), as 
necessary, that the action is not likely to adversely affect ESA-listed 
species or critical habitat; or
    (iii) A draft Biological Assessment that includes documentation of 
consultation with the Service(s).
    (5) Section 106 of the National Historic Preservation Act. 
Documentation that section 106 consultation has been initiated with the 
state historic preservation officer(s) and any Indian Tribes identified 
as having an interest in the project.
    (6) Dam owner documentation. For projects to be located at existing 
nonpowered dams:
    (i) Documentation of consultation with any nonfederal owner of the 
nonpowered dam if the applicant is not the owner and confirmation that 
the owner is not opposed to a hydropower development at the location; 
or
    (ii) Documentation from the federal entity that non-federal 
hydropower development is not precluded at the proposed location and 
confirmation that the federal entity is not opposed to a hydropower 
development at the location.
    (7) Public parks, recreation areas, and wildlife refuges. If the 
project would use any public park, recreation area, or wildlife refuge 
established under state or local law, documentation from the managing 
entity indicating it is not opposed to the site's use for hydropower 
development.


Sec.  7.3   Adequacy review of application.

    (a) Adequacy review of license applications. Review of the original 
license application for which expedited processing under this part is 
requested will be conducted pursuant to 18 CFR part 4 or 5, as 
applicable.
    (b) Deficient license applications. If an original license 
application for which expedited processing is requested under this part 
is rejected under 18 CFR parts 4 and 5, as applicable, the request for 
authorization for the expedited licensing process under this part is 
deemed rejected.


Sec.  7.4   Additional information.

    An applicant may be required to submit any additional information 
or documentation that the Commission considers relevant for an informed 
decision on the application for authorization under this part. The 
information or documents must take the form, and must be submitted 
within the time, that the Commission prescribes. An applicant may also 
be required to provide within a specified time additional copies of the 
application, or any of the additional information or documents that are 
filed, to the Commission or to any person, agency, Indian Tribe or 
other entity that the Commission specifies. If an applicant fails to 
provide timely additional information, documents, or copies of 
submitted materials as required, the Director of the Office of Energy 
Projects (Director) may dismiss the application, hold it in abeyance, 
or take other appropriate action under this chapter or the Federal 
Power Act.


Sec.  7.5   Decision on request to use expedited licensing process.

    When the Commission has determined that the original license 
application is complete insofar as it meets the Commission's 
requirements as

[[Page 17080]]

specified in 18 CFR parts 4, 5, and this part; any deficiencies have 
been cured; and no other additional information is needed, the Director 
will make a decision on the request to use the expedited licensing 
process under this part no later than 180 days after receipt of a 
request for authorization to use the expedited process. If the 
Commission cannot deem the application complete within 180 days of 
application filing, the Director will deny the request to use the 
expedited licensing process. If the Director denies the request to use 
the expedited licensing process, the original license application will 
be processed pursuant to a standard processing schedule under 18 CFR 
parts 4 and 5, as applicable.


Sec.  7.6  Notice of acceptance and ready for environmental analysis.

    If the Director deems the application complete and approves the 
request to use the expedited licensing process under Sec.  7.5, the 
Commission will issue a public notice as required in the Federal Power 
Act, no later than 180 days after application filing, that:
    (a) Accepts the application for filing and specifies the date upon 
which the application was accepted for filing;
    (b) Finds the application ready for environmental analysis;
    (c) Requests comments, protests, and interventions;
    (d) Requests recommendations, preliminary terms and conditions, and 
preliminary fishway prescriptions, including all supporting 
documentation; and
    (e) Establishes an expedited licensing process schedule, including 
estimated dates for:
    (1) Filing of recommendations, preliminary terms and conditions, 
and fishway prescriptions;
    (2) Issuance of a draft National Environmental Policy Act (NEPA) 
document, or an environmental assessment not preceded by a draft;
    (3) Filing of a response, as applicable, to Commission staff's 
request for ESA concurrence or request for formal consultation under 
the ESA, or responding to other Commission staff requests to federal 
and state agencies, or Indian Tribes pursuant to Federal law, including 
the Magnuson-Stevens Fishery Conservation and Management Act and the 
National Historic Preservation Act;
    (4) Filing of comments on the draft NEPA document, as applicable;
    (5) Filing of modified recommendations, mandatory terms and 
conditions, and fishway prescriptions in response to a draft NEPA 
document or environmental assessment, if no draft NEPA document is 
issued; and
    (6) Issuance of a final NEPA document, if any.


Sec.  7.7   Amendment of application.

    (a) Any proposed amendments to the pending license application 
after issuance of the notice of acceptance and ready for environmental 
analysis under this section must include:
    (1) An amended or new section 401 of the Clean Water Act water 
quality certification if the amendment would have a material adverse 
impact on the water quality in the discharge from the proposed project; 
and
    (2) Updates to all other material submitted under Sec.  7.2(b).
    (b) If based on the information provided under paragraph (a) of 
this section, the proposed project under the amended license 
application no longer meets the requirements for expedited processing 
under Sec.  7.2 of this part or if the proposed amendment significantly 
amends the license application, the Director will notify the applicant 
that the application will no longer be processed under the expedited 
licensing process under this part and that further processing of the 
application will proceed under parts 4 and 5 of this chapter, as 
applicable.
    (c) If the Director approves the continued processing of the 
amended application under this part and the amendment to the 
application would materially change the project's proposed plans of 
development, as provided in Sec.  4.35 of this chapter, an agency, 
Indian Tribe, or member of the public may modify the recommendations or 
terms and conditions or prescriptions it previously submitted to the 
Commission pursuant to Sec.  7.6. Such modified recommendations, terms 
and conditions, or prescriptions must be filed no later than the due 
date specified by the Commission for comments on the amendment.
    (d) Date of acceptance. The date of acceptance of an amendment of 
application for an original license filed under this part is governed 
by the provisions of Sec.  4.35 of this chapter.


Sec.  7.8  Other provisions.

    (a) Except for provisions required by statute, the Director may 
waive or modify any of the provisions of this part for good cause.
    (b) Late-filed recommendations by fish and wildlife agencies 
pursuant to the Fish and Wildlife Coordination Act and section 10(j) of 
the Federal Power Act for the protection, mitigation of damages to, and 
enhancement of fish and wildlife affected by the development, 
operation, and management of the proposed project and late-filed terms 
and conditions or prescriptions filed pursuant to sections 4(e) and 18 
of the Federal Power Act, respectively, may be considered by the 
Commission as cause to remove the application from the expedited 
licensing process. If the Director determines that late-filed 
recommendations, terms and conditions, or prescriptions are likely to 
prevent the Commission from issuing a final licensing decision within 
two years from application receipt, the Director will notify the 
applicant that the application will no longer be processed under the 
expedited licensing process under this part and that further processing 
of the application will proceed under 18 CFR parts 4 and 5, as 
applicable.
    (c) License conditions and required findings. (1) All licenses 
shall be issued on the conditions specified in section 10 of the 
Federal Power Act and such other conditions as the Commission 
determines are lawful and in the public interest.
    (2) Subject to paragraph (b) of this section, fish and wildlife 
conditions shall be based on recommendations timely received from the 
fish and wildlife agencies pursuant to the Fish and Wildlife 
Coordination Act.
    (3) The Commission will consider the timely recommendations of 
resource agencies, other governmental units, and members of the public, 
and the timely recommendations (including fish and wildlife 
recommendations) of Indian Tribes affected by the project.
    (4) Licenses for a project located within any Federal reservation 
shall be issued only after the findings required by, and subject to, 
any conditions that may be filed pursuant to section 4(e) of the 
Federal Power Act.
    (5) The Commission will require the construction, maintenance, and 
operation of such fishways as may be prescribed by the Secretary of 
Commerce or the Secretary of the Interior, as appropriate, pursuant to 
section 18 of the Federal Power Act.


Sec.  7.9  Transition provision.

    This part shall only apply to original license applications filed 
on or after July 23, 2019.

[FR Doc. 2019-08239 Filed 4-23-19; 8:45 am]
 BILLING CODE 6717-01-P