A.
Authority. The Administering Agency may approve the proposed
project upon such terms and conditions as are appropriate and reasonable to
protect and preserve the environment and the public's health, safety and
general welfare, including the public interest in replacing fossil fuel-derived
energy with hydroelectric energy. These terms and conditions may include, but
are not limited to:
(1) establishment of a
water level range for the body of water impounded by a hydropower
project;
(2) establishment of
instantaneous minimum flows for the body of water affected by a hydropower
project; and
(3) provisions for the
construction and maintenance of fish passage facilities.
In those cases where the proposed project involves
maintenance, reconstruction or structural alteration at an existing hydropower
project and where the proposed project will not alter historic water levels or
flows after its completion, the Administering Agency may impose temporary terms
and conditions of approval relating to paragraph A or paragraph B of this
subsection but shall not impose permanent terms and conditions that alter
historic water levels or flows.
B.
Nature of Terms and
Conditions. Such case-specific terms and conditions placed by the
Administering Agency on its approval of a proposed project will specify
particular means of satisfying minor or easily corrected problems, or both,
relating to compliance with the Act and shall not substitute for or reduce the
burden of proof of the applicant to demonstrate to the Administering Agency
that each of the standards of the Act has been met.
C.
Standard Conditions of
Approval. Unless otherwise specifically stated in the approval, all
Administering Agency, Commissioner, and Director approvals are subject to the
following standard conditions:
(1)
Limits of Approval. Project approval is limited to and includes
the proposals and plans contained in the application and supporting documents
submitted and affirmed to by the applicant. All variances from the plans and
proposals contained in said documents are subject to the review and approval of
the Administering Agency prior to implementation.
(2)
Noncompliance. Should the
project be found, at any time, not to be in compliance with any of the
conditions of approval, or should the permittee construct or operate the
project in any way other than as specified in the application or supporting
documents, as modified by the conditions of approval, then the terms of
approval will be considered to have been violated.
(3)
Compliance with all Applicable
Laws. The permittee shall secure and appropriately comply with all
applicable federal, state and local licenses, permits, authorizations,
conditions, agreements, and orders prior to or during construction and
operation of the permitted project.
(4)
Inspection and Compliance.
Authorized representatives of the Administering Agency or the Attorney General
must be granted access to the premises of the permittee at any reasonable time
for the purpose of inspecting the construction or operation of the project and
assuring compliance by the permittee with the conditions of approval.
(5)
Initiation and Completion of
Construction. If construction is not commenced within 3 years and
completed within 7 years from the date of issuance of the Authorizing Agency's
permit, the approval will lapse, unless a request for an extension of these
deadlines has been approved by the Administering Agency.
(6)
Construction Schedule. Prior
to the start of construction, the permittee shall submit a final construction
schedule for the project to the Administering Agency.
(7)
Approval Included in Contract
Bids. A copy of the project's approval must be included in or attached
to contract bid specifications for the project.
(8)
Approval Provided to
Contractor. Work done by a contractor pursuant to the project's approval
may not begin before a copy of the approval has been provided to the contractor
by the permittee.
(9)
Notification of Project Operation. The permittee shall notify the
Commissioner or Director of the commencement of commercial operation of the
project within 10 days prior to such commencement.
(10)
Assignment or Transfer of
Approval. Written consent to transfer an approval must be applied for no
later than two weeks after the assignment or transfer of ownership of property
covered by an approval under these Rules. Pending Administering Agency
determination on the application for a transfer or assignment of ownership of
an existing approval, the person(s) to whom such property is assigned or
transferred shall abide by all of the terms and conditions of that approval and
is jointly and severally liable with the original permitee for any violation of
the terms and conditions thereof. To obtain the Administering Agency's approval
of transfer, the proposed assignee or transferee must demonstrate the financial
capability and technical ability to (1) comply with all terms and conditions of
the approval and (2) satisfy all other applicable statutory criteria. As used
in this paragraph, "transfer of ownership" means a change in the legal entity
that owns a project that is the subject of a permit issued pursuant to this
chapter. A sale or exchange of stock (or in the case of a limited liability
corporation, of membership interests), or a merger, is not a transfer of
ownership for the purposes of this rule provided the legal entity that owns the
project remains the same.
