FERC 101, continued - Robert Deibel - USDA Forest Service and Matt Rice, American Rivers

FERC 101

ROBERT H. DEIBEL NATIONAL HYDROPOWER PROGRAM MANAGER /

INSTREAM FLOW COORDINATOR

U.S. FOREST SERVICE WASHINGTON D.C.

(VIA FT. COLLINS, CO)

APRIL 17, 2014 RIVER MANAGEMENT SOCIETY

DENVER, CO

“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know.” Donald Rumsfeld

Overview • What, Who is FERC • FERC regs

• ILP process concepts

• ILP Flow Chart

• Focus areas

Zero Degrees of Freedom Effect

N – 1 = ? d.f.

– Where N = Sample Size; – To calculate your experience - substitute the

number of hydroprojects you’ve worked on for N and then see how much experience you have?

6

Conventional U.S. Hydropower: Federal and FERC-Regulated

U.S. Hydropower Capacity ~ 96,000 MW

Supplying Electricity for 9% of U.S. Demand

U.S. Hydropower Capacity under FERC Regulation ~ 54,000 MW (about half)

Hydropower Capacity onFederal Lands :

NFS lands = ~16,000 MW

Public Land = ~15,000 MW

Significant contribution ~ 60% of total FERC regulated capacity

Constitutional Structure 3 Branches of Govt (?)

Supreme Court

Legislature

Executive 4th Branch?

FERC: 1.Independent

Commission

2.Regulates Non-Federal hydroelectric projects

3.Administers Quasi-legal proceedings

4.Lead decision maker (NEPA/License order)

5.Determines consistency of project with purposes of Federal Reservation

What’s this all about? • WATER!!! It’s the primary currency in a

proceeding

• Knowing and understanding the timing, amount, and availability of water is your silver bullet

• Expectation that your technical staff can tie water volume to the resources they assessed

• Understanding water availability and trade-offs are absolutely necessary to be able to develop a project outcome that meets your strategic vision!

Outside agency review of FS practice in FERC Proceedings

First Bullet in Exec Summary: Recognize that the most deeply contested issues in a FERC relicensing process and Trial Type Hearing will likely involve instream flow.

Basics This is your shot as Licenses are issued from 30

to 50 years

Once a license is granted, the opportunities to change the stipulations within the license are minimal – unless triggered by conditions or formal petition

Federal agencies with mandatory conditioning authority under the Federal Power Act (FPA) cannot use that authority to veto a license

FERC Jurisdiction • All Federal lands

• Interstate and Navigable Waters

• Connected to the grid

FERC Makes & Administers Rules

• Promulgates rules to define processes (ie ILP)

• Sets and regulates schedules and deadlines

• Deadlines matter! – If filing due before 5 PM on X-date, then must

be filed by that time – Eg. Intervention could be rejected if not timely

filed! • Explicit format for filings (esp Studies)

Quasi-legal proceeding

• “if it isn’t in the record, then it doesn’t count!” (ALL repeat) (ref Bangor Decision)

• “ex parte” communication • Filings must be served on formal parties to

a proceeding • Must Intervene to be a formal party to a

proceeding • Advisable to work with an attorney or

someone with FERC process experience

Legal Matters • FERC is the “fact finding” body under the legal

system – analogous to a District Court • First venue to litigate a matter is the Appellate

Court • Remember “if it isn’t in the record, then….. • Can’t supplement the record after FERC issues

a decision • Must intervene (in a timely manner) to be a party

to a legal proceeding before the Appellate Court

Intervention • Advisable to Intervene in a proceeding to

retain legal options • Cooperating Agency under NEPA –

– FS & NPS Policy and Practice is to not “formally” cooperate with FERC on it’s NEPA due to FERC’s Policy;

– FERC prohibits party to be an intervenor if they are a cooperator under NEPA;

FERC Lead Decision Maker

• Defines rules of practice • Maintains administrative record • Issues the decision to license a project via a

“Commission Order” • Determines if project is consistent with the

“purposes of the reservation” not FS, BLM, NPS or FWS!! (ref Rainsong Decision)

• Lead on NEPA – Therefore, lead on ESA consultation, Cultural

Resources

FERC Process = Counter Cultural

• FERC proceedings are litigation from the start • The first point of legal review is the Appellate

Court (FERC analogous to a District Court in developing the record)

• FERC is the decision maker & determines if a project is consistent with the Purposes of the Federal Reservation (not the Land Manager)

• Technical and procedural expertise not readily available at most local agency offices

Detailed Channel Topography (5 cm contour)

Oblique view

Plan view

Technical Aspects

“Default process” FERC adopted the ILP on July 23, 2005

as the default process for filing an application for an original, new, or subsequent license ( 18 CFR Part 5)

Must petition the Commission to use the Traditional or Alternative Processes

• FERC motivated by increased collaboration in the TLP

Fundamental Principals - ILP • Early issue identification and resolution of studies

needed to fill information gaps, thus avoiding studies post-filing

• Integration of state and federal agency and tribal

permitting process needs, including the Commission’s scoping pursuant to the NEPA, the license applicant’s pre-filing consultation, and federal and state permitting needs such as water quality certification pursuant to section 401 of the Clean Water Act and Endangered Species Consultation

• Established timeframes to complete process steps for all stakeholders, including the Commission staff

Preliminary Issues and Studies List:

• Based on resource descriptions and impacts discussion; the PAD must include a list for each resource area identifying:

– Issues pertaining to the resource

– Potential studies of information gathering requirements

associated with issues

– Relevant qualifying Federal or state or tribal

comprehensive waterway plans

– Relevant resource management plans

Tick Tock Tick Tock FERC Notices NOI/PAD 60 days after

Applicant files NOI/PAD (§5.8 – Chart Box 4)

YOU must file your comments and YOUR Study Plan Requests within the 60 day time period following FERC’s Notice of NOI/PAD and SD1 (§5.9 – Chart Box 5)

THE WILD RIDE HAS BEGUN!!

Participant Response • Comments on general information contained in

PAD • Provides suggestions for additional reference

material • Provides initial comments on issues and

additional information needs • Suggest studies to create substantial evidence

record specific to the proposed project • Must file Study Request as per §5.9(b) 1 – 7

(format matters)

ALL IN!

In order to effectively Participate and achieve Desired outcomes, the Following may apply:

Those That Participate - Lead • Have someone at every meeting • Encourage other interested parties to attend • Document the results of the meetings • Expect to participate or track 300 – 500 meetings

(ref: Yuba-Bear/Drum Spaulding – 500 meetings)

Summary of CA FERC project meetings 2000 – 2005

(scheduled days)

Kickoff/ Public Meeting Plenary

Combined Aquatics WG

(with subgroups)

Cultural Resources WG

Land Management WG

Recreation WG (with subgroups) Terrestrial WG

5 28 116 43 34 48 47

- 312 meetings - Aquatics consumed at least 1/3 of effort - Doesn’t include prep or post-meeting discussions

Flow Management Considerations

• Whitewater & flatwater recreation • Aesthetics • Fish habitat • Angling • Channel maintenance • Reservoir access & aesthetics • Riparian vegetation • Aquatic dependent wildlife

EPAct 2005

• Added more “things to do” in the Post-filing process

• Trial Type Hearing – Any Party to a proceeding

• Alternative Conditions – Any Party to a proceeding

FERC Process, Agency Trial Process and Submission of Alternative Conditions

Petition for Trial (45 days)

Submission of Alternative Conditions

and Prescriptions (45 days)

Notices of Intervention

(15 days)

Interagency Review and

Coordination (30 days)

Trial (90 days)

Submission of Modified Alternative

Conditions and Prescriptions (30-60 days)

Focus Areas

• What, Who is FERC • Water is the currency • Quasi-legal proceeding & organize

appropriately • Emphasize study phase of process • Get help on filings!!! • Hang on for the Wild Ride

Questions?

Pre-Filing • Applicant files NOI and Pre-Application Document (PAD) (18 CFR §5.3, §5.5, §5.6)

• Commission notices NOI/PAD and issues Scoping Document 1 (SD1) (60 days to

steps 3) (18 CFR §5.8)

• Commission holds Scoping Meetings/ Site Visit and Discuss issues, management objectives, existing info, info needs, process plan, and schedule (30 days to step 4) (18 CFR §5.8)

• Comments on PAD, SD1 and Study Requests (45 days to step 5) (18 CFR §5.9) – FORMAL COMMENT

• Applicant Files Proposed Study Plan(18 CFR §5.11) (90 days to step 8) (30 days to step 7) (18 CFR §5.10)

• Study Plan Meeting(s) (informal resolution of study issues) (60 days to step 8) (18 CFR §5.11)

• Comments on Proposed Study Plan (30 days to step 9) (18 CFR §5.12) – FORMAL COMMENT

Pre-Filing (cont) • Applicant files revised Study Plan for Commission approval - Agencies may file reply

comments within 15 days (30 days to step 10) (18 CFR §5.13) – FORMAL COMMENT

• Commission issues Study Plan Determination (20 days to step 12) (18 CFR §5.13) – FORMAL COMMENT if dispute SPD

• Study Dispute Resolution Process (70 days to step 13) (18 CFR §5.14)

• Determination on Study Dispute (18 CFR §5.14)

• First season studies and Study Review: 1) Applicant files initial study report 2) Study meeting 3) Requests for study plan modification (18 CFR §5.15)

• Second season studies, if needed, and Study Review (same as first season) (18 CFR §5.15)

Post-Filing • License Application (14 days to step 19a or 30 days to step 19b) (18 CFR §5.17,

§5.18) a. Tendering Notice (60 days to step 20) (18 CFR §5.19) b. Commission decision on any outstanding pre-filing AIR(60 days to step 20) (18 CFR §5.19)

• Notice of Acceptance and Notice of Ready for Environmental Analysis (REA) (60 days to step 21) (18 CFR §5.22)

• Comments, Interventions, preliminary terms and conditions (60 Days to Step 21) (18 CFR §5.19) –MAJOR EFFORT!!!! a. Parties submit alternatives [FERC may refer conditions to FERC's Dispute Resolution Service] (15 days to step 22 OR 22a) b. Parties request trial-type hearing [FERC may refer conditions to FERC's Dispute Resolution Service] (15 days to step 22 or 22a)

Post-Filing (cont) • Reply comments (75 days to step 23a or 135 days to step 23b) (18 CFR §5.23)

a. Interventions and responses [FERC may refer conditions to FERC's Dispute Resolution Service] (30 days to 22b) - FORMAL FILING b. Agency response to trial-type hearing [FERC may refer conditions to FERC's Dispute Resolution Service] (5 days to step 22c c. Agency hearing referral [FERC may refer conditions to FERC's Dispute Resolution Service] (90 days to step 23c)

• a. Commission issues non-draft EA (30-45 days to step 24a) (18 CFR §5.24) b. Commission issues Draft EA or EIS (30-60 days to step 24b) (18 CFR §5.25) c. Trial-type hearing decision [FERC may refer conditions to FERC's Dispute Resolution Service]

• a. Comments on EA (60 days to step 25a) (18 CFR §5.24) b. Comments on Draft EA or EIS (60 days to step 24b) (18 CFR §5.25)

• a. Modified terms and conditions (18 CFR §5.24) b. Modified terms and conditions based on any hearing decision, comments, and proposed alternatives (90 days to step 25) (18 CFR §5.25)

• Commission issues Final EA or EIS (18 CFR §5.25) • Commission issues license order(18 CFR §5.25)