EDO Principal Correspondence Control

FROM: DUE: 06/11/08 EDO CONTROL: G20080341

DOC DT: 04/28/08

FINAL REPLY:

George S. Dunlop

Department of the Army

TO:

L. Reyes, EDO

FOR SIGNATURE OF

L. Reyes, EDO

DESC:

** GRN ** CRC NO:

ROUTING:

Updating the Memorandum of Understanding (MOU)

Between the Army Corps of Engineers and the

Nuclear Regulatory Commission for Regulation of

Nuclear Power Plants (EDATS: OEDO-2008-0384)

Borchardt

Virgilio

Mallett

Ash

Ordaz

Burns

Leeds, NRR

Sheron, RES

Miller, FSME

Weber, NMSS

Cyr, OGC

DATE: 05/13/08

ASSIGNED TO:

NRO

CONTACT:

Johnson

SPECIAL INSTRUCTIONS OR REMARKS:

Prepare response explaining agency's thoughts on

updating MOU.

~~iuq9Lo-oo i)-0 1kEIO -6 /
EDATS Number: OEDO-2008-0384 Source: OEDO,

GenralInfomaio

Assigned To: NRO OEDO Due Date: 6/11/2008 5:00 PM

Other Assignees: SECY Due Date: NONE

Subject: Updating the Memorandum of Understanding (MOU) Between the Army Corps of Engineers and the Nuclear

Regulatory Commission for Regulation of Nuclear Power Plants

Description:

CC Routing: NRR; RES; OGC; FSME; NMSS

ADAMS Accession Numbers - Incoming: NONE Response/Package: NONE

I6te Ifra toI

Cross Reference Number: G20080341

Related Task:

File Routing: EDATS

Staff Initiated: NO

Recurring Item: NO

Agency Lesson Learned: NO

Roadmap Item: NO

Action Type: Letter Priority: Medium

Sensitivity: None

Signature Level: EDO Urgency: NO

OEDO Concurrence: NO

OCM Concurrence: NO

OCA Concurrence: NO

Special Instructions:

Originator Name: George S. Dunlop Date of Incoming: 4/28/2008

Originating Organization: Department of the Army Document Received by OEDO Date: 5/13/2008

Addressee: L. Reyes, EDO Date Response Requested by Originator: NONE

Incoming Task Received: Letter

Page 1 of I
DEPARTMENT OF THE ARMY

OFFICE OF THE ASSISTANT SECRETARY

CIVIL WORKS

108 ARMY PENTAGON

WASHINGTON DC 20310-0108

APR 2 8 2008

Mr. Luis A. Reyes

Executive Director of Operations

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

Mail Stop O-16-E-15

Dear Mr. Reyes:

It is our understanding that the Nuclear Regulatory Commission (NRC) is

interested in updating the Memorandum of Understanding between the Army Corps of

Engineers and the Nuclear Regulatory Commission for Regulation of Nuclear Power

Plants dated August 18, 1975. The Department of the Army and the Corps of

Engineers (Corps) would be pleased to work with you on this important effort,

predicated upon an understanding that any updated agreement is consistent with other

current energy policies including the Memorandum of Understanding (MOU) between

the Army Corps of Engineers and the Federal Energy Regulatory Commission for

Interstate Natural Gas Pipeline Projects (July 11, 2005) and the MOU for

Implementation of Section 365 of the Energy Policy Act of 2005 Pilot Project to Improve

Federal Permit Coordination between the Corps, the Environmental Protection Agency,

the Department of Agriculture and the Department of Interior (October, 2005).

We understand that the purpose of an MOU with the NRC is to more effectively

integrate and streamline our processes, share information, and eliminate redundancies,

in accordance with the Council on Environmental Quality's guidance, while still retaining

each agency's statutory authority to make independent decisions.

The Corps is charged with adminstering Section 404 of the Clean Water Act,

Section 10 of the Rivers and Harbors Act, and Section 103 of the Marine Protection,

Research and Sanctuaries Act. Although its jurisdiction is limited to Waters of the

United States, including wetalnds, as explicitly defined by regulation, we must consider

the effects of proposed projects along with secondary and cumulative impacts under the

National Environmental Policy Act (NEPA) when such impacts are not insignificant.

NEPA, along with our regulations, requires the Corps to consider the effects of single

and complete projects. The Corps cannot "segment" proposed activities. Together,

your agency and the Corps must also consider the purpose and need for the entire

project. The final purpose and need statement must comport with the statutory and

regulatory requirements of both agencies. The Corps cannot authorize a single

alternative or an applicant's preferred alternative. Rather, the Corps can only authorize

the least environmentally damaging practicable alternative (LEDPA). For these

reasons, it is critical that the agencies collaborate early and often through the project

development and permit evaluation process so that at the end of the process the NRC's

EDO -- G20080341
preferred alternative and the Corps LEDPA are the same, if possible. Finally, we are

obliged to clearly demonstrate compliance with the Clean Water Act section 404(b)1

Guidelines which require applicants to sequentially provide for any necessary mitigation:

first, to avoid impacts to wetlands and waters of the U.S.; second, to minimize any

unavoidable impacts, and; third, to compensate for those impacts to aquatic resources

that are unavoidable.

NEPA compliance is required as part of the Section 404 permitting process. The

cornerstone of the 404 NEPA process lies in the early scoping of issues and the

development of acceptable and clearly defined alternatives. NEPA requires lead

agencies to evaluate the environmental impacts associated with federally-funded

projects. The lead agency on nuclear power plants would typically be the NRC.

However, the Corps is required to implement NEPA in conjunction with Department of

the Army permits issued for these projects. Ideally, the two processes can be

conducted concurrently, with the Corps serving as a cooperating agency to avoid

redundancy. As stated in 36 CFR Part 336.1(a), Section 404 of the Clean Water Act

governs the discharge of dredged or fill material into waters of the U.S. The impacts of

each alternative (including "no action") are then determined, and measures to mitigate

potentially adverse impacts are developed. This sequence must be followed to comply

with NEPA. The majority of problems that arise during the NEPA review process are

related to inadequate public involvement and issue identification in the early phase of a

project (scoping), inadequate development of project alternatives, use of poor quality

data in defining baseline conditions for the entire project, and inadequate assessment of

cumulative impacts. The key components to a successful NEPA project are early

planning, effective coordination, and use of quality baseline data for the entire project.

I look forward to working with you and your staff to revise the existing MOU. This

cooperative effort is also supported by Mr. John Paul Woodley, Assistant Secretary of

the Army for Civil Works and Major General Don Riley, Deputy Commanding General

for Civil and Emergency Operations for the Corps Headquarters office. The Corps HQ

staff will be in contact with your office and offer to brief you on the Regulatory Program

and its processes. It would be very helpful if we could be informed about NRC

processes. Should you need any more information please contact Kimberly McLaughlin

at (202) 761-4663 at the Corps Headquarters Regulatory Community of Practice offices.

Thank you for your attention and support of this important undertaking.

Very truly yours,

George S. Dunlop

Principal Deputy Assistant Secretary of the Army

(Civil Works)

Enclosures

2
MEMORANDUM OF UNDERSTANDING

IMPLEMENTATION OF SECTION 365 OF THE ENERGY POLICY ACT OF 2005 PILOT

PROJECT TO IMPROVE FEDERAL PERMIT COORDINATION

United States Department of the Interior

And

United States Department of Agriculture

And

United States Environmental Protection Agency

And

United States Army Corps of Engineers

1. Parties and Participating Agencies.

A. The Parties to this Memorandum of Understanding (MOU) are the United States

Department of the Interior (DOI), the United States Department of Agriculture

(USDA), the United States Environmental Protection Agency (EPA), and the United

States Department of the Army (DOA).

B. Participating agencies include:

1. Within DOI, the Bureau of Land Management (BLM), the U.S. Fish and

Wildlife Service (FWS), the Bureau of Reclamation (Reclamation), the Bureau

of Indian Affairs (BIA), and the Minerals Management Service (MMS);

2. Within USDA, the U.S. Forest Service (USFS);

3. Within DOA, the U.S. Army Corps of Engineers (USACE); and

4. The EPA.

II. Purpose.

A. The purpose of this MOU is to establish policies and procedures to implement

Section 365 of the Energy Policy Act of 2005, Pub. L. 109-58 (hereafter the "Act").

Section 365 establishes a Federal Permit Streamlining Pilot Project ("Pilot Project")

with the intent to improve the efficiency of processing oil and gas use authorizations

on Federal lands. Section 365 specifies that this MOU be signed within 90 days of

enactment of the Act.

B. The Act requires that within 30 days after the date of signing of the MOU, all Federal

signatory Parties shall, if appropriate, assign to each of the Pilot Project BLM Field

Offices identified, an employee with expertise in the regulatory issues relating to the

office in which the employee is employed. The Act also requires that each employee

so assigned report to the BLM Field Manager in the assigned Pilot Project Field

Office not later than 90 days after the date of assignment. The Pilot Project BLM

Field Offices are Rawlins and Buffalo, Wyoming; Miles City, Montana; Farmington

and Carlsbad, New Mexico; Grand Junction/Glenwood Springs, Colorado; and

Vernal, Utah. The Act also requires the Secretary of the Interior to assign to each

Pilot Project Office any additional personnel necessary to ensure the effective

implementation of the Pilot Project and other related programs administered by the

I
Field Office, including oil and gas inspection and enforcement activities related to

energy development on Federal lands.

C.. This agreement represents an expression of intent between the Parties to work

together to further the objectives of Section 365 of the Act with specific emphasis on

developing a multi-agency Pilot Project to aid in the streamlining and coordinating of

federal permit processing for onshore oil and gas operations on Federal lands.

Ill. Authorities.

A. The primary authority for this MOU is Section 365(c) of the Energy Policy Act of

2005 (Public Law 109-5 8). That section specifically references:

I . Consultations and the preparation of biological opinions under section 7 of the

Endangered Species Act of 1973 (16 U.S.C. § 1536);

2. Permits under section 404 of the Federal Water Pollution Control Act (33

U.S.C. § 1344);

3. Regulatory matters under the Clean Air Act (42 U. S.C. § 7401 et seq.);

4. Planning under the National Forest Management Act of 1976 (16 U.S.C. § 472a

et seq.); and

5. Preparation of analyses under the National Environmental Policy Act of 1969

(42 U.S.C. § 4321 et seq.).

B. Section 365(f) of the Act specifies that the Secretary of the Interior shall assign any

additional Department of the Interior personnel to the Pilot Offices necessary to

ensure the effective implementation of the Pilot Project and other programs

administered by the Pilot Offices, including inspection and enforcement related to

energy development on Federal lands in accordance with the Federal Land -Policy and

Management Act of 1976 (43 U.S.C. § 1701 et seq.).

C. Section 365(g) of the Act amends section 35 of the Mineral Leasing Act (30 U.S.C. §

191) to establish the Permit Processing Improvement Fund.

IV. Principles and Goals.

A. Principles for implementing this MOU include:

1 . The Pilot Project Offices will initially focus on interagency coordination and

cooperation in the processing of permnits required to support oil and gas use

authorizations on Federal lands.

2. The Pilot Project Offices will maintain or enhance high standards of safety and

environmental protection through an effective oil and gas inspection and

enforcement program for operations on Federal lands.

3. Process streamlining and increased interagency efficiency, including

elimination of duplication between Federal and state agencies, will be an

important measure of success.

4. All participating agencies will seek improved information sharing and use, as

well as an improved understanding of respective agency roles and

responsibilities.

2
5. An important measure of success will be the increased ability to process

Applications for Permit to Drill (APDs) in a more timely manner.

6. A more rapid response to demands for oil and gas production on Federal lands

will support the Nation's increased need for energy resources.

7. A more consistent approach among IBLM Field Offices, and greater certainty in

processing time requirements, are essential for improved customer service.

8. The financial resources made available through Section 365 should be used to

enhance the capability to process oil and gas use authorizations, not as a

replacement for base agency resources and responsibilities.

9. Interagency coordination mechanisms established through the Pilot Project

should allow for adequate flexibility to adapt to changing demands and

technologies related to oil and gas development.

10. Coordination with State agencies with expertise and responsibilities related to

oil and gas use authorizations are an important component of a successful Pilot

Project.

11. All permitting actions in the Pilot Offices are expected to promote responsible

stewardship of Federal subsurface and surface resources.

B. Goals for implementing this MOU include:

I1. Creation of better staff relationships among the participating agencies to

.improve performance of the Pilot Offices;

2. Placement of participating agency resources in locations that most effectively

promote timely processing of APDs and associated agency approvals;

3. Focusing of appropriate BLM resources on inspection and enforcement

activities;

4. Identification of new or improved interagency practices that should be used in

other offices;

5. Identifying new or improved ways to increase the efficiency of the APD

process;

6. Testing a variety of process improvement concepts in the Pilot Offices;

7. Preparation of a comprehensive Report to Congress that clearly identifies the

lessons learned in the Pilot Offices;

8. Establishment of interagency coordination mechanisms that can adapt to

changing demands or circumstances;

9. Measurement of increases in productivity resulting from additional resources

provided through Section 365 of the Act; and

10. Identification of state agency coordination opportunities that could result in

improved processing of oil and gas authorizations.

3
V. Roles, Responsibilities and Delegation of Authority.

A. Department of the Interior.

I1. The Bureau of Land Management.

a. General regulatory and management responsibilities. The BLM

administers more than 261 million surface acres of public lands and 700

million acres of subsurface mineral estate (Federal land beneath surface

lands owned or managed by other Parties, such as the USDA Forest

Service, National Park Service, and US Fish and Wildlife Service).

b. Pilot Project responsibilities. The BLM will administer the Pilot Project.

In this capacity, the BLM will:

(1) Provideoffice space and general administrative support to other

participating agency personnel assigned to the Pilot Offices;

(2) Establish oil and gas use authorization priorities to effectively

coordinate interagency efforts;

(3) Coordinate periodic interagency contacts and meetings among the

participating agencies to assess progress and resolve issues;

(4) Distribute funds to agencies participating in the Pilot Project;

(5) Prepare, in cooperation with the participating agencies, the required

report to Congress;

(6) Work closely with the participating agencies to identify efficiencies

in processing of oil and gas authorizations;

(7) Evaluate its APD process and work with the other participating

agencies to improve its efficiency; and

(8) Oversee the implementation of this MOU to assure that the

principles and goals of this MOU and the Pilot Project are achieved.

c. Delegation of Authority. The BLM Field Office Manager is the

Authorized Officer with respect to the BLM responsibility for approval of

oil and gas use authorizations and inspection and enforcement on Federal

lands managed by BLM.

d. Anticipated Resource Needs. BLM will provide-additional staff expertise

as necessary to meet the specific needs of the individual Pilot Offices in

satisfying the requirements of the Act. Such expertise may include a wide

variety of physical, biological and technical support positions added as

contract, temporary, term, or permanent positions, plus resources provided

by the other participating agencies.

2. The Fish and Wildlife Service.

a. General regulatory and management responsibilities. FWS is responsible

for assisting other Federal agencies and the public in the conservation,

protection, and enhancement of fish, wildlife, plants, and their habitats. A

myriad of Federal statutes, executive orders, regulations and policies have

4
been enacted to ensure that environmental conservation is given full

weight during project planning and implementation, including: the Fish

and Wildlife Act of 1956 (16 U.S.C. §§ 742a - 742j), Fish and Wildlife

Coordination Act (FWCA; 16 U.S.C. § 661 et seq.), Clean Water Act (33

U.S.C. § 1251 et seq.), Migratory Bird Treaty Act (16 U.S.C. §§ 703 -

712), and the Bald and Golden Eagle Protection Act (16 U.S.C. §668). In

particular, Section 7 of the Endangered Species Act of 1973, as amended

(ESA; 16 U.S.C. §§ 1531 et seq.), requires that Federal agencies ensure

that the actions they authorize, fund, or carry out are not likely to

jeopardize the continued existence of listed species or destroy or adversely

modify their designated critical habitat. Federal regulatory agencies

identified by Section 365 of the Act are required to consult with the FWS

on projects potentially affecting any of these resources. Further, the

Migratory Bird Treaty Act (MBTA; 16 U.S.C. §§ 703-712), prohibits the

taking, killing, possession, and transportation of migratory birds, their

eggs, parts and nests, except when specifically authorized by the Secretary

of the Interior. The FWS consults on projects potentially affecting

freshwater or marine resources and water quality. In accordance with

Section 404(b)(1) of the Clean Water Act, the FWS provides advisory

review for wetland protection. The FWS also has jurisdiction by law for

specific permitting actions and by special expertise for other actions

pursuant to the National Environmental Policy Act. Through these efforts,

the FWS seeks to ensure that impacts to fish and wildlife resources are

adequately described and that mitigation needs are met.

b. Pilot Proiect responsibilities. The FWS will:

(1) Assign appropriate FWS staff to assist and support the BLM Pilot

Offices, as appropriate;

(2) Work in an integrated manner with the appropriate BLM Field

Office to expedite necessary consultation and coordination

procedures, including those required pursuant to Section 7 of the

Endangered Species Act;

(3) Work closely with the participating agencies to identify efficiencies

in processing oil and gas authorizations;

(4) Assist BLM as needed in other components of the oil and gas

management program on Federal lands, including ESA section 7

monitoring;

(5) Coordinate its requisite reviews and integrate its decision making

processes with the various BLM processes, including land use

planning (including development or revision of Resource

Management Plans), oil and gas leasing, and issuance of drilling

permits. This integration will facilitate the development of new

processes and procedures that will help to reduce uncertainty at the

APD stage, resulting in substantially streamlined final reviews; and

5
(6) Expedite its review of APDs, while concurrently engaging with

BLM as a member of its land use planning team.

c. Delegation of Authority.

(1) All FWS Pilot Program staff will be under the direct supervision of

the FWS.

(2) This MOU will not affect signature authority within the FWS.

(3) The FWS staff located within BLM Pilot Project Field Offices, or

pilot program staff located within the FWS Field Office, will have

the authority and responsibility to:

(a) Identify issues and needed information regarding oil and gas

use authorizations;

(b) Identify and implement process streamlining techniques; and

(c) Review and coordinate applicable BLM efforts as they may

affect FWS authorities and responsibilities.

d. Anticipated Resource Needs.

(1) The FWS will provide necessary staff resources to the BLM at the

Pilot Project Offices. This includes FWS expertise regarding

wetland consultation, migratory birds and raptors, NEPA,

environmental contaminants, and ESA. All of these staffing

obligations will not necessarily require any one individual but rather

may require several individuals.

(2) The FWS will provide approximately 10 full time equivalent

employees (FTEs) to fulfill initial obligations under the Pilot Project.

This figure may change as actual workload and capability needs are

more clearly identified for each Pilot Office.

3. The Bureau of Indian Affairs.

a. General regulatory and management responsibilities. BIA is responsible

for the administration and management of 56 million acres of land held in

trust by the United States for American Indians, Indian tribes, and Alaska

Natives. There are 562 federal recognized tribal governments in the

United States. Developing forestlands, leasing assets on these lands,

directing agricultural programs, protecting water and land rights,

developing and maintaining infrastructure and economic development are

all part of the agency's responsibility.

b. Pilot Proiect responsibilities. The BIA will:

(1) Assign appropriate BIA staff to the BLM Farmington Field Office;

(2) Work in an integrated manner with the appropriate BLM Field

Office to expedite the necessary consultation and coordination with

Navajo interests in the checkerboard landownership area;

6
(3) Work closely with the participating agencies to identify efficiencies

in processing oil and gas authorizations; and

(4) Assist BLM, as requested, in other components of the oil and gas

management program on Federal lands or subsurface mineral estate.

c. Delegation of Authority. Authority to act on oil and gas use authorization

issues will be delegated to the lowest appropriate level.

d. Anticipated Resource Needs. BIA will provide one position to BLM for

carrying out its Pilot Project responsibilities. That person will be referred

to as the Navajo Permit Coordinator. The Navajo Permit Coordinator will

be a BIA employee whose function is to coordinate with the Navajo Tribe,

Eastern Navajo Chapters, and Navajo families living in the checkerboard

landownership area.

4. The Minerals Management Service.

a. General regulatory and management responsibilities. The MMS Minerals

Revenue Management (MRM) Division collects, accounts for and

distributes revenues associated with mineral production from leased

Federal and Indian lands.

b. Pilot Project responsibilities. The MRM will be responsible for

transferring 50 percent of the onshore oil and gas rental income from the

United States Treasury to the "BLM Permit Processing Improvement

Fund", established by Section 365(g) of the Act, for the administration of

the Pilot Project Offices.

c. Delegation of Authority. Authority to act on oil and gas related

management actions under the Pilot Project will be delegated as MMS

determines to be appropriate.

d. Anticipated Resource Needs. No additional resource needs, beyond those

already in place for revenue management, have been identified at this

time.

5. The Bureau of Reclamation.

a. General regulatory and management responsibilities. Reclamation is

responsible for administering federal water projects in 17 Western states.

Reclamation is the largest wholesaler of water in the country bringing

water to more than 31 million people and providing one out of five

Western farmers (140,000) with irrigation water for 10 million acres of

farmland. Reclamation is also the second largest producer of

-hydroelectric power in the western United States. Through an existing

national interagency agreement, dated March 25, 1983, the BLM Carlsbad

and Farmington Field Offices lease and approve APDs on Reclamation

lands.

7
b. Pilot Project responsibilities. Reclamation will:

(1) Assign appropriate Reclamation staff to support both the BLM

Carlsbad and Farmington Field Offices;

(2) Work in an integrated manner with the appropriate BLM Field

Office to expedite the necessary consultation and coordination with

Reclamation responsibilities; and

(3) Work closely with the participating agencies to identify efficiencies

in processing oil and gas authorizations.

c. Delegation of Authority. Authority to act on oil and gas related

management actions will be delegated to the lowest appropriate level.

d. Anticipated Resource Needs. Reclamation will provide BLM with one

Reclamation staff position to facilitate and expedite cooperative planning,

compliance with any requirements that must be met in order for

Reclamation lands to be leased, and the processing of APDs. This

position would be a shared position between the Carlsbad Field Office and

the Farmington Field Office.

B. Department of the Army.

1I The U.S. Army Corps of Engineers.

a. General regulatory and management responsibilities. The USACE is

responsible for administering laws for the protection and preservation of

waters of the U.S., pursuant to the requirements of section 10 of the Rivers

and Harbors Act (RHA) of 1899, section 404 of the Clean Water Act

(CWA) of 1972, and section 103 of the Marine Protection, Research, and

Sanctuaries Act (MPRSA) of 1972. Under the RHA, the USACE may

authorize work and or structures in or affecting the course, condition,

location, or capacity of navigable waters of the U.S. Under the CWA, the

USACE may authorize the discharge of dredged or fill material into

waters of the U.S., using the least environmentally damaging practicable

alternative.

b. Pilot Project responsibilities. The USACE will:

(1) Expedite environmental permits in accordance with the purpose,

terms, and conditions of this MOU;

(2) Consult with the BLM regarding an adjustment of priorities under

this MOU or establishment of relative priorities under this MOU if

the current and/or projected workload of priority projects and

activities exceeds the USACE ability to provide the services

specified in this MOU;

(3) Work in an integrated manner with the appropriate BLM Field

Office to expedite the necessary consultation and coordination with

USACE responsibilities;

8
(4) Work closely with the participating agencies to identify efficiencies

in processing oil and gas authorizations;

(5) Assist BLM, as requested, in other components of the oil and gas

management program; and

(6) Provide the BLM an annual summary report of progress made under

this MOU. This report will describe achievements, including any

improvements the USACE has documented in coordinating and

improving the efficiency of environmental reviews and will

summarize expenditures to date. The report also will identify any

recommendations for improving consultation and coordination

among the Parties to this MOU.

c. Delegation of Authority. The District Engineer or his or her designee is

the final decision maker for USACE actions related to oil and gas use

authorizations on Federal lands. If the USACE project manager rendering

final action on a permit application occupies a position funded under

section 365(g) of the Act, the final decision maker will be at least the

supervisor of that person.

d. Anticipated Resource Needs. Given existing and projected workloads, no

single BLM Pilot Field Office requires a full time USACE position to

ensure that the processing of necessary permits under Section 404 of the

Clean Water Act are given high priority over other USACE workloads.

The USACE will, if necessary, provide additional staff resources to

affected USACE State Offices to satisfy its responsibilities under section

365 of the Act.

C. Department of Agriculture.

1. The U.S. Forest Service.

a. General regulatory and management responsibilities. The USFS is

responsible for the surface management of 192 million acres of National

Forest System (NFS) Lands. The Mineral Leasing Act of 1920 as

amended and the Mineral Leasing Act for Acquired Lands define the role

of the Forest Service in the management of leasable energy resources,

including oil and gas. The Forest Service cooperates with the BLM to

ensure that management goals and objectives for oil and gas exploration

and development activities are achieved, that operations are conducted to

minimize effects on surface resources, and that the land affected by

operations is rehabilitated. The BLM issues and administers oil and gas

leases on NFS lands only after the Forest Service has made a leasing

availability decision and taken the action necessary for the BLM to offer

available lands for lease. Once a Federal lease on NFS lands is issued, the

Forest Service has full responsibility and authority to approve and regulate

all surface-disturbing activities associated with oil and gas exploration and

development through analysis and approval of the Surface Use Plan of

Operations (SUPO), a component of an APD.

9
b. Pilot Project responsibilities. The USFS will:

(1) Assign to each Pilot Office that includes NFS lands an employee to

work in partnership with the BLM. This employee will have

responsibility to facilitate the timely processing, implementation, and

inspection of oil and gas-related permits on NFS lands. Duties of

this employee will include:

(a) Providing a communication link between the BLM Pilot Office

and the local Forest Service Office;

(b) Assisting in determining skills and personnel the USFS must

provide to ensure efficient and timely processing of requests

for leases, Surface Use Plans of Operations, and associated

project proposals;

(c) Serving as project manager for proposed oil and gas projects on

NFS lands, including leasing analyses, APDs, pipelines, roads

and other projects required for the development of oil and gas

resources;

(d) Assisting in coordinating and conducting field reviews of

proposed oil and gas projects on NFS lands, including onsite

reviews;

(e) Ensuring that oil and gas-related permit applications on NFS

lands are processed in compliance with the requirements of

Sec. 366 of the Energy Policy Act of 2005 and BLM's Onshore

Order No. 1; and

(f) Ensuring that inspections of all oil and gas drilling and

producing operations on NFS lands are carried out yearly and

that remedial actions are taken when operations are not in

compliance with surface use plans, applicable Land and

Resource Management Plans, and/or statutory and regulatory

requirements.

(2) Develop an action plan within four months of the establishment of

the Pilot Offices. The action plan will:

(a) Identify internal process challenges and propose process

efficiencies; and

(b) Establish USFS procedures for conducting permitting and

administration of oil and gas operations on NFS lands covered

by the Pilot Offices.

(3) Within six months of the establishment of the Pilot Offices, review

pending projects (APD backlog) on NFS lands covered by the Pilot

Project and designate timeframes and checkpoints for progress on

active projects and identify those that are inactive and can be

removed from consideration.

10
(4) Twice yearly the Pilot Project Liaison will report to the Forest

Supervisor and BLM Field Manager successes and challenges

associated with the Pilot Project and make recommendations to

improve efficiencies and cut timeframes for processing APDs on

NFS lands. The report will also include an estimate of pending lease

applications and APDs, and progress on inspection and enforcement

of operations on NFS lands.

c. Delegation of Authority. Signatory authority for approval of actions

related to oil and gas on NFS lands is identified in Forest Service Manual

2820.

d. Anticipated Resource Needs. The USFS anticipates the initial resource

assignment to be four positions. This may change as experience is gained

in the Pilot Offices. The Forest Service will also provide other personnel,

as necessary, to individual Pilot Offices. Other personnel include those

with specific expertise necessary to meet the intent of the Act, such as

planning/NEPA, archeology, wildlife, and inspection and enforcement.

D. Environmental Protection Agency.

1 . General regulatory responsibilities. The EPA is responsible for administering a

wide range of environmental laws. EPA responsibilities relevant to the oil and

gas development permitting process include, but are not limited to, commenting

on an EIS under section 309 of the Clean Air Act (CAA), the authority to

participate in the section 404 Clean Water Act (CWA) permit process, and the

authority to issue, and/or review state- and tribe- issued, permits for activities

that involve discharges of pollutants subject to the requirements of the National

Pollutant Discharge Elimination System or the CAA.

2. Pilot Proiect responsibilities. The EPA will:

a. Work in an integrated manner with the appropriate BLM Field Office to

expedite the necessary consultation and coordination related to EPA

responsibilities;

b. Work closely with the participating agencies to identify efficiencies in

processing oil and gas authorizations;

c. Assist BLM, as requested, in other components of the oil and gas

management program;

d. Continue general coordination and consultation with BLM on oil and gas

activities on Federal lands; and

e. Conduct annual coordination reviews with BLM to analyze changing

workloads and processes to determine if review or process changes are

appropriate to achieve greater efficiency in the processing of oil and gas

use authorizations.

3. Delegation of Authority. Authority to act on areas of EPA responsibility related

to oil and gas development on Federal lands will be delegated to the lowest

appropriate level.

11
4. Anticipated Resource Needs. Assignment of specific personnel to the BLM

Pilot Offices does not appear necessary at this time because a significant portion

of EPA' s responsibilities related to the Clean Water Act and the Clean Air Act

have been authorized to be administered by the respective states.

VI. Measures of Success or Chan-ge for the Pilot Program.

A. Su ccess Measures. Measures of success for the Pilot Program include:

1 . The streamlining of and increased interagency efficiency in processing APDs

and associated agency approvals, including elimination of duplication between

Federal and state agencies;

2. The increased ability to more timely process and issue API~s that will withstand

administrative and judicial challenge; and

3. Maintenance or enhancement of high standards of safety and environmental

protection through an effective oil and gas inspection and enforcement program.

B. Data for Measuring Success. In each Pilot Project Office, the following, at a

minimum, will be tracked and measured:

I . The total number of APDs received, processed, and approved;

2. The elapsed time from receipt to approval, including the time required for major

APD steps or components;

3. Inspections completed and the time and resources needed for each inspection;

4. The number and percentage of leases found to be in substantial compliance with

applicable standards; and

5. Process efficiencies identified and implemented and approximations of time and

resources saved by such efficiencies.

C. The information identified in the preceding paragraph will be collected for three years

after enactment of the Act and will be compared to the same parameters in each Field

Office for the previous three years.

VII. Principal Contacts.

A. U.S. Forest Service.

Director, Minerals and Geology Management

1400 Independence Ave., SW

Washington, DC 20250

B. Department of Interior.

I1. Bureau of Land Management.

Assistant Director, Minerals, Realty, and Resource Protection

U.S. Department of the Interior

1849 C Street, NW

Washington, DC 20240

12
2. U.S. Fish & Wildlife Service.

Assistant Director, Fisheries and Habitat Conservation

U.S. Department of the Interior

1849 C Street, NW

Washington, DC 20240

3. Bureau of Reclamation.

Deputy Commissioner for Operations

U.S. Department of the Interior

1849 C Street, NW

Washington, DC 20240

4. Bureau of Indian Affairs

Regional Director, Navajo Regional Office

Gallup, New Mexico, 87305

5. Minerals Management Service.

Associate Director, Minerals Revenue Management

U.S. Department of the Interior

1849 C Street, NW

Washington, DC 20240

C. Environmental Protection Agency

Director, Office of Federal Activities

1200 Pennsylvania Avenue, NW

Washington, DC 20460

D. U.S. Army Corps of Engineers.

Headquarters

Chief, Regulatory Programs

441 G Street, NW

Washington, DC 20314

VIII. FundingA. Section 365(g) of the Energy Policy Act of 2005 amends Section 35 of the Mineral

Leasing Act (30 U.S.C. 191) by authorizing funding to ". ..the Secretary of the

Interior for expenditure, without further appropriation and without fiscal year

limitation, for the coordination and processing of oil and gas use authorizations on

onshore Federal land under the jurisdiction of the Pilot Project offices...."

B. Section 365(h) of the Energy Policy Act of 2005 authorizes the Secretary of the

Interior to expend or transfer funds as necessary to the identified agencies

participating in the Pilot Project.

13
C. The details of the levels of support to be furnished to the FWS, BIA, Reclamation,

USACE, Forest Service, and EPA by the BLM with respect to funding and personnel

will be developed in specific Interagency Agreements, contingent on the availability

of funding.

IX. Report to Congress. No later than 3 years after the date of enactment of the Act, the

Secretary of Interior is required by Section 365(e) of the Act to submit to Congress a report

that:

A. Outlines the results of the Pilot Project to date, and

B. Makes a recommendation to the President regarding whether the Pilot Project should

be implemented throughout the United States.

X. Duration. The Act mandates the establishment of a Fund for the seven Pilot Project

Offices' expenditures through fiscal year 2015. Expansion of the Pilot Project is dependent

upon the report to Congress required by Section 365(e) of the Act and the Secretary of the

Interior's recommendation and the President's subsequent action on the recommendation.

XI. Modification. If the Parties decide to change the scope of the Pilot Project, this MOU will

be revisited and modified as necessary. All Parties potentially affected by a modification

must sign the modification for it to be effective.

XII. Meetings. The participating agencies plan to meet on a bi-annual basis to discuss the

progress and lessons learned associated with the Pilot Project. Additional coordination

meetings or conference calls may be held as needed.

XIII. Dispute Resolution. If a dispute arises under this MOU that is not resolved informally

between or among the Parties, then any Party may pursue the following dispute resolution

procedure:

A. The Party that seeks resolution will provide a written statement of its dispute, along

with any rationale or supporting documents, to the other interested Parties. The

Parties will engage in discussions in an attempt to arrive at a consensus and resolve

the dispute.

B. If no resolution is reached within thirty (30) calendar days of receipt of the statement

of dispute, then the dispute may be elevated to the Parties' respective headquarterslevel officials, or their designees. The headquarters-level officials for the Parties will

engage in discussions in an attempt to arrive at a consensus. If consensus is not

achieved by the headquarters-level officials within thirty (30) calendar days of their

receipt of the statement of dispute, the Parties will promptly elevate the matter to the

principal policy makers for the respective Parties, who will resolve the matter.

C. The time limits in the preceding paragraph may be extended on the mutual agreement

of the Parties to the dispute.

XIV. Supplemental Agreements. Subsequent to the signing of this MOU, additional Federal or

state interagency agreements may be required for the purposes of outlining more specific

interagency relationships or for transferring funds from the BLM to such state or Federal

agencies.

14
XV. No Private Right of Action and Limited Applicability. This MOU is not intended to, and

does not, create any right, benefit, or trust responsibility, substantive or procedural,

enforceable at law or equity, by a person against the United States, its agencies, its officers,

or any person. This MOU does not direct or apply to any person outside of the signatory

Parties.

ACCORDINGLY, the Parties have signed this Memorandum of Understanding on the

dates set forth below, to be effective for all purposes as of the date last signed. The signatures

may be executed using counterpart original documents.

aa'-'94 rft7-ýýf OCT 2 4 2005

DATE

OCT 19 2005

DATE

DATE

OCT 19 2005

DATE

AL PROTECTION AGENCY

AISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS

15
DEPARTMENT OF THEARMY

OFFICE OFPTHE ASSISTANT SECRETARY

CIVIL WORKS

108 ARMY PENTAGON

WASHINGTON DC 20310-0108

................ i i JU L 2005

MEMORANDUM FOR DIRECTOR OF CIVIL WORKS

SUBJECT: Memorandum of Understanding between the Army Corps of Engineers and

the Federal Energy Regulatory Commission for Interstate Natural Gas Pipeline Projects

On June 30, 2005, the Assistant Secretary of the Army for Civil Works and the

Chairman of the Federal Energy Regulatory Commission (FERC) signed the enclosed

Memorandum of Understanding (MOU) to further streamline respective regulatory

processes through early coordination .to identify project purposes, need, and

alternatives that can be used by each agency in carrying out its respective legal

responsibilities. The MOU acknowledges that FERC is the lead agency for purposes of

complying with the National Environmental Policy Act (NEPA) and that FERC is

responsible for authorizing the construction and operation of interstate natural gas

pipelines. The MOU also acknowledges that the Army Corps of Engineers is

responsible for the protection and preservation of Waters of the United States, including

wetlands, under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean

Water Act.

Although FERC is responsible for determining purpose and need for purposes of

its certificates of public convenience and necessity under Section 7 of the Natural Gas

Act and for the FERC NEPA document, the Corps must exercise independent judgment

in carrying out its regulatory responsibilities under the Clean Water Act and the Rivers

and Harbors Act. The Corps will give deference, to the maximum extent allowable by

law, to the proiect purpose. project need, and proiect alternatives that FERC determines

to be appropriate for the proiect. In according FERC such appropriate deference, the

Corps must identify and use a project's "basic purpose," plus "overall project purposes,"

to satisfy the requirements of the Section 404(b)(1) Guidelines, and specifically to

identify the "least environmentally damaging practicable alternative," the only alternative

that can be permitted by the Corps under Section 404 of the Clean Water Act. In

addition, the Corps must identify and use a project's "public and private need" and a

project's "objective" to determine whether or not a proposed project satisfies the Corp's

public interest review for both 404 and Section 10 permits.

If the Corps cannot concur nor conditionally concur with FERC determinations, as

to purpose, need, alternatives, etc., such disputes shall be resolved at the lowest level

possible and in accordance with the dispute resolution process outlined in Paragraph 8

of the MOU. In such instances, districts and divisions may sequentially elevate the

matter to the Office of the Assistant Secretary of the Army who will address the matter

along with the Director, FERC Office of Energy Projects..

Energy projects are a priority for this Administration in accordance with the

Presidents Executive Order 13212, "Actions to Expedite Energy-Related Projects,"
implemented on May 18, 2001. The Corps should be responsive to FERC timelines.

The Corps should actively engage early in the process with FERC to ensure processes

are integrated to the maximum extent possible and support FERC in the development of

purpose, need, and alternatives so that the FERC documentation is also supported by

Rivers and Harbors Act, Clean Water Act, and NEPA requirements.

The MOU is effective immediately. Please provide this memorandum and the

MOU to all Commanders and regulatory offices. Districts and divisions should post the

MOU on their regulatory web pages. I would like to thank your Headquarters regulatory

staff and others in the Vertical Team for their most excellent work and support as we

developed this MOU in partnership with the FERC.

John Paul Woodley, Jr.

Assistant Secretary of the Army

(Civil Works)

Enclosure
CF:

CRC

SACW (Read, Sign, File)

CECW-O

CECW-OR

J:\shared\smith,chip\Corps-FERC MQU\Mou Distribution Memo 050711 R2
NIEMORANDUM OF UNDERSTANDING

Between

UNITED STATES A RMY CORPS OF ENGINEERS

And

THE FEDERAL ENERGY REGULATORY COMMNINSSION

SUPPILEMENTING THE INTERAGENCY AGREEMENT ON EARLY

COORDINATION OF REQUIRED ENVIRONMENTAL AND

iISTORIC PRESERVATION REVIEWS CONDUCTED IN CONJUNCTION WITH

THE ISSUANCE OF AUTHO.RIZATIONS TO CONSTRUCT AND OPERATE

INTERSTATE NATURAL GAS PIPELINES CERTIFICATED BY TJlE FEDERAI.L

ENERGY REGULATORY COMM ISSION

The United States Army Corps of Engin.eers (Corps) and the Federal Energy.Regulatory

Commission (FERC), as parties to this Memorandum of Understanding (MOU), hereby

acknowledge and declare as follows:

1. In May 2002, the Corps and the FERC, along with other federal agencies,

implemented the."Interagency Agreement on Early Coordination of Required

Environmental and Historic Preservation Reviews Conducted in Conjunction with the

Issuance ofI Authorizations to Construct and Operate Interstate Natural Gas Pipelines

Certificated by the Federal Energy Regulatory Commission" (Interagency Agreement), to

improve the coordination of environmental reviews under the National Environmental.

Policy Act of 1969, as amended, (NEPA) for proposed interstate natural gas facilities.

2. The objective of this MOU is toý supplement the Interagency Agreement to

provide for further streamlining by early involvement and cooperation between the Corps

and the FERC to identify project purpose, need, and alternatives that can be usedby both

the Corps and the FERC in carrying our their respective legal responsibilities to satisfy

the requirements of the Natural Gas Act (NGA), NEPA, section 404 of the Clean Water

Act (CWA, 33 U.SC, 1344, 33 CFR Parts 320-331 and 40 CFR 230) and section 10 of

the Rivers and Harbors Act of 1899 (RHA, 33 U.SC. 403).

3. The FERC is responsible for authorizing, the construction and operation of

interstate natural gas pipelines. FERC issues certificates of public convenience and

necessity for such pipelines under section 7 of the NGA of 1938, as amended, and

authorizes the construction and siting of fhcilities for the import or export of natural gas

(including liquefied natural gas) under NGA section 3. It also authorizes the construction

and operation of natural gas pipelines pursuant to the Natural Gas Policy Act. The FERC

conducts environmental, safety, and.security reviews of LNG plants and related pipeline

facilities, and as the LeadFederal agency prepares the overall NEPA documentation, as

described in the Interagency Agreement.
4. The.Corps is responsible for the administration of laws for the protection and

preservation of waters of the United States, including wetlands, pursuant to section 10 of

the RHA and section 404 of the CWA. All work and or structures in or affecting the

course, condition, location, or capacity of navigable -waters of the United States; and

artificial islands,.installations, or other devices on-the Outer Continental Shelf, require

Corps authorization under the RHA. The Corps authorizes, under the CWA, the

discharge of dredged or fill material into the waters of the United States, including

wetlands. Interstate pipelines and LNG projects normally require one or more permits

from the Corps under these statutes.

5. As the lead agency under NEPA responsible forthe preparation of the analysis

and decisions for the approval of new interstate natural :gas and LNG facilities, theFERC

is responsible for determining the purpose and need of the project for purposes ofthe

FERC NEPA document and of the FERC authorization process. Althoughtthe Corps

must exercise its independent judgment while carrying out its regulatory responsibilities,

the Corps will give deference, to the maximum extent allowed by law, to the project

purpose, project need, and project alternatives that FERC determines to be appropriate for

the project. The FERC shall coordinate early with the Corps to ensure that the purpose

and need,.and the suite of alternatives and evaluation criteria, presented in the NEPA

document are usable by the Corps in carrying out the Corps' legal responsibilities under

binding statutes and regulations (e.g., conducting the Corps' public interest review,

determining the "least environmentally damaging practicable alternative" under the CWA

Section 404(b)(1) Guidelines, and fulfilling other applicable legal requiremnents). If the

Corps cannot concur or conditionally concur with the FERC determinations (e.g., the

FERC formulation of project purpose, need, and alternatives), the matter shall be

resolved pursuant to the dispute resolution process identified in paragraph 8 of this MOU.

The FERC and the Corps will work together and will implement their respective legal

authorities to ensure that the proposal, with or without modifications, and the selected

alternative will mitigate to the maximum extent practicable, any adverse effects on

aquatic resources,

6. To further support this MOU, the signatory agencies shall develop additional

guidance to ensure that the Corps' permit documentation is prepared concurrently with

the NEPA process to themaximum extent practicable. To further support the NEPA

process, when FERC provides preliminary draft FERC NEPA documents, the Corps shall

review and provide written comments on the relevant portions of those, documents, as

appropriate in accordance with the timelines established by FERC under the Interagency

Agreement. Preliminary draft FERC NEPA documents include advance copies of the

purpose, need, and alternatives sections of the FERC.NEPA documents, as well as

advance copies of the draft and final NEPA documents. Corps reviews of FERC NEPA

documents will be completed and coordinated with the FERC as stated in.the FERC EIS

schedule for that project which shall be no more than 30 days friom receipt of the

document,

7. As stated in the Interagency Agreement, the FERC and 'the Corps agree to

2ý
communicate early in the review process, coordinate schedules, share data, identify

concerns, coordinate requests for additional information, and cooperate in the

development of alternate routes and mitigation measures for interstate natural gas and

LNG projects, The FEiRC will notify the appropriate Corps District and Division offices.

as early as possible of the pending start of thle NEPA review of any major pipeline or

LNG facility proposal. The FERC and the Corps will consult early in the process to

reach agreement on the scope of the purpose, need,-and alternatives analysis thatwill

satisfy the Corps' requirements under Section 10 of the RHIA and Section 404 of the

CWA, including the 404(b)(l) Guidelines. FERC and the.Corps agree that the goal of the

process is that the Corps would use the FERC record to the maximum extent practicable

and as allowed by law, so thai the Corps can satisfy the legal requirements of the RHA

and CWA as efficiently and expeditiously as possible.

S. Disputes shall be resolved at the lowest level possible. If a dispute cannot be

resolved at the working level, including at the Division offices, either party. may elevate

the dispute to the level of the Assistant Secretary of the Army (Civil Works) and the

Director, Office of Energy Projects of FERC, for resolution. If the dispute cannot be

resolved within 45 days after elevating the dispute to the Assistant Secretary of the Army

and the Director, Office of Energy Projects of FERC, the issue shall be resolved in

accordance withthe procedures detailed in the Interagency Agreement.

9. This MOU is subject to the requirements of the Interagency Agreement. This

MOU supplements, but does not amend or modify the requirements of the Interagency

Agreement.

10. Both signatory agencies shall make every effo.rt to ensure continuity of staff

representation on a project, as well as participation in. meetings and decisions at the

appropriate level within their respective agencies.

!1. Participation in this MOU does not imply endorsement of a pipeline plan, shoreside facility, or project, Nothing in. this MOU is intendedto diminish, modify, or

otherwise affect the statutory or regulatory authorities of the signatory agencies. The

Corps' participation in this process is not equivalent to serving as a cooperating agency,

which is a separate process. established through a separate formal written agreement with

the FERC.

12, This MIOU is not a fiscal or funds obligation instrument. Nothing in this MOU

will be construed to affect the authorities of the signatory. agencies to act as provided by

statute or regulation, or to bind the signatory agencies beyond their respective authorities.

In addition, nothing in this MOU will be construed to require the signatory agencies to

obligate or expend funids in excess of available appropriations.
13. This MOU does notconfer any right or benefit, substantive or procedural,

enforceable at law or equity, by any party against the United States, its, agencies, its

officers, or any person.

J~ohn P~aul Woodley, Jr. - -

Assistant Secretary

of the Army (Civil Works)

•a~t e . 9. oCommission

4
MEMORAMNDAdM OF UNDERSTANDING

ON EAýLY COORDINATION.OF FEDERAL AUTHORIZATIONS AND RELATED)

ENVIRONMEN "AL REVIEWS REQUIRED IN .ORDER TO SITE ELECTRIC TRANSMISSION

FACILITIES

August 8, 2006

THE DEPARTMEN OF ENERGY

THE DEPARTMENT OF DEFENSE•

THE DEPARh!EN T OF AGRICUILTURE

THE DEPARTMENT OF THE INTERIOR

THE DEPART T0 T: COE .. ERC E

EDE F DERAL ENERGY REGULATORY CO IMISS ION

ENVIRONMENTAL PROTECTION AGENCY

TI COUNCIL on ENVIRONMENTAL QUALITY

THE ADVISORY COUNCIL on HISTORIC PRESERVATION

.PU ROS:

With the signirng oftLr" Memorandum of Understanding (MOU), the D 'pajt crt of Energy (DOE),

the Department of Av iculture (USDA), the Department of Defense (DOD), the Deparct df the

Interior (DOI), the Departnent of Co nerce (DOC), the Federal Energy Regulatory Co ission

(FERC), the Environmental Protection Agency (EPA), the Council on Enviroumental Quality

(CEQ), and the Advisory Council on Historic Preservation (ACHP) (hereinafter collectively refered

,to as the Partiipating -meet Agencies) commit t work together to each Agency's obligations under

the Federal Power AcT (FPA), as amended by section 1221(a)of the Energy Policy Actor 2005, 1.9

Stnt. 594, 946-951 (2005).(to be codified as amended at 16 U.SC. § 824p). Recognizing that:the

Department of Energy and the Federal Energy Regulatory Commission Sare the responsibili.ty to

failitate, implemn on of subsect'in 216(h) .of the FPA with the other Participating Agencies, this

MOU has been prepared to establish a framework for erly cooperation and participation that will

dnhance coordination of all applicable land use authorizations, related environmental, cultural, and

istore preservation reviews, and an other approvals that may be required under Federal law in

order to site an elec tr ansmission facilty1.
11. BACKOROUND

The Energy P olicy Act of 2005, signed by President Bush on August 8, 2005, declares that it Is a

national. policy to enhance and, to the extent possible, to increase the coordination and

communication among Federal agencies with authority to site elect ic ransssioc

policies set forth by Congress in subsection 216(h) of the: FPA reinforce previous Administration

policies doun bythe President in Executive Order 13212 issued on May 18, 2001, by

mandating each agency with authority to issue Federal authorizations to ensure the timely and

coordinated r Yew and permitting of electric transmission faeilities.

The D_: of Energy, pursuant to subsection 216(h)&L th Lor '.A, ia responsible 

coordinating all appicble Federal authorizations and related environmental reviews" as may be

reluired uwder Federal law in order to site an electric transmission fiacility. [216(h(1)-(2)]. "in

consultation with agencies responsible for Federal authorizations and, as appropriaJ: with indian

tribes, multistate entities, and State agencies that are willing to coordinate ther own separate

permitting and environmental reviews," the Secretary of Energy is directed to establish "binding

intermediate milestones and-ultimate deadlines for the review of,. and Federal authotizahon decisions

relating to, thwproposed faýciity" [2 16(h)(4)(A)J. In addition, subsection 216(h) of fthe ýPA directs

thSecret af Energy t esta i h a pre-app, ation mchanism '"for prospective applican s to

confer with the agencies involved" prior to submitting a complete application and to prepare a single

environmental review docuent in consultation with the Participating Agencies.to be "used as the

basis for all decisions on the proposed, project under Federal law;" [216(h)(4)(C), (5)(A)j.

ThI•eOfie of Electricity Delivery and Ener~gy Reliability, withinl DOE, grants Presidential :pe~rmits

te -for constrcton, operation, maintenance, and connection of elect•icMsmision fcities at the

United States itern'ainal border pursuant to Executive Order 104 5, as amended y Executice

Order 12038. The DOE issue s permits pursuant to this authorxiy if, after obtaining favorable

recommendations from the Sreta 'es of St -e IDefense, it d ermines that the project is in the. public interest.

'h *ner yReger atorS, iOnis.responsible for pro essigng ting on applications Sfor permits for th construction or aodification of electric transmission facilities in National Interest

Electric Transmission Corridors designated by the Secretary of Energy. The Secretary of Energy delegated to FERC the authority to act as the lead agency under subsection 216(h), subject to thie ,restrictions contained in id delegation order, in instances when .an a 2piicat or a prospective

ap:plicant has sbi•.nitted an application to .FERC for the cons•trucetion or modifiecatin of" one or more

electric tansmisaion facilities d pursant to subsection 216(b) of the SPA.ee Depament of Energy

Delegation Order No. 00-004.00A. For purposes of this MOU, the term "DOE" shall be construed

* to include FERC, with respect to FERC's exercise of these delegated authorities under subsection

216(h).of the FPA.
The Bureau of Land Management (BLM), within the Department of the Interior, is responsible for

managing approximately 260 million acres. of public lands. The BLM is responsible for issuing

right-of-way grants authorizing electric transmissin: facilities on these lands. Title V 0f the .Federal.

Land Policy and Management Act of 1976, as amended, provides the BLM the authority to issue

right-of-way grants. on the~puiblic lands for the generation, transmission, and distribution of electric

energy.

The National Park Service (NPS), within DOI, is responsible for managing nearly 84 million acres in

390 units of the National Park System.. The NPS mission is to preserve unimpaired the natural and

cultural resources and values; of the National Park, System for the enjoyment, education, and

inspiration of this andffuture generations. In addition to the National Park System,the NPS has some

management responsibility over other areas,. including *the National Wild and Scenic Rivers System,

National Trails System, National Heritage .Areas, and the NPS Affiliated Areas, which are closely

linked in importance and purpose to those areas: directly managed by the NPS. The NPS may issue

right-of-way permits only if the uses or activities are specifically authorized by Congress. One such

authorization, the Act of March 4, 1911, provides the NPS the general authority to issue right-of-way

permits on national park lands for electrical 'poles and lines for the transmission and distribution of

electrical power.

The Bureau of Reclamation (BOR), within DOI, .is responsible for managing, developing, and

protecting water and related resources in an envirdnmentally And economically sound manner in the

interest:of the.public. The BOR may grant rights-of-way for electric transmission facilities and Other

uses where compatible with reclamation or power project purposes as authorized in Section 10 of the.

Act of August 4, 1939, as amended.

The Bureau of Indian Affairs (BIA), within DO!, is charged with the administration of Federal

Indian policy and the implementation of the Federal trust responsibility for American Indians and

American Indian Tribes. The BIA is responsible for; among other things, granting rights-of-Way

across lands held in trust for American Indians or American Indian Tribes. In addition, the B.A and

other Federal-agencies must consult with any Tribe that may be affected.by a proposed right-of-way,

as provided by Executive Order 13'175, 65 Fed.. Reg; 67,249 (Nov. 9, 2000).

The Fish and Wildlife Service (FWS), within DOI, is responsible for the conservation, protection,

and enhancement of fish, wildlife, plants, and their habitats. The FWS has principal trust

responsibility to protect and conserve migratory birds, threatened and endangered species,. certain

marine immanals, and jurisdictional fish. Applicants for electric transmission facility rights-of-way

are required to consult with. the FWS on projects potentially affecting any of these resources. The

FWS manages the National. Wildlife Refuge System and authorizes use by permit for lands within

this. System.

The Minerals Management Service (MMS), within DOI, is responsible for issuing. and enforcing

regulations to promote safeoperations, environmental protection, and resourceeonservationon ihe

2)
USDA

Outer Continental Shelf (OCS). The, MMS is responsible for granting leases, easements, or rightsof-way for electric: transmission facilities pursuant to section 388 of the Energy Policy Act of 2005,

through submerged lands:of the OCS.

The Forest Service (USFS), within the Department of Agriculture, is responsible for the

management. of 193 million acres of National Forest System (NFS) lands. The USFS is responsible

.for isSUing special use authorizations for electric transmission facilities on NFS lands. Title V of the.

Federal Land Policy and Management Act of 1976, as amended, provides the FS the authority to

issue authorizations on NFS lands for the generation, transmission, and distribution of electric

energy.

The Department of Defense is responsible for providing the. military forces needed to deter war and

protect the security of the United States. The major elements of these forces are the Army, Navy,

AirForce,. and Marine Corps. Under the. President, who is also Commander-in-Chief, the Secretary

of.Defense exercises authority, direction, and control over the Department, which includes the Office

of the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, three M ilitary Departments.

nine Unified Combatant Commands, the DoD Inspector General, 15 Defense Agencies, and seven.

DoD. Field Activities.

The. Army Corps of Engineers (USACE), within DoD, is responsible for administering laws for the

protection and preservation of waters of the United States, pursuant to the requirements of section 10

of the Rivers and Harbors.Act.(RHA) of l899,.section 404 of the Clean Water Act (CWA) of 1972, and section 103 of the Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972. Under

the RHA, the USACE may authorize work and/or structures in or affecting the course, condition,

location, or capacity of navigable waters of the United States. Under the CWA, the, USACE may

authorize the discharge of dredged or fill material into waters of the United States, including

wetlands, where:the USACE determines the proposed action is the least environmentally damaging.

practicable alternative. Under the MPRSA, the USACE may authorize the transportatieon of dredged

material excavated from:navigable waters of the United States for the purpose of dumping it in ocean

waters. The USACE shall be considered a Participating Agency, where relevant, for purposes of this

MOU,

The Environmental Protection Agency is responsible for administering, a wide range of

environmental laws. The EPA responsibilities relevant to the siting of electric transmission facilities

include, but.are not, limited to, commenting on an Environmental Impact Statement (EIS) under

section 309 of the Clean Air Act..(CAA), the authority to participate in the sectiont 404 Clean Water

Act (CWA) permit process and to restrict in certain circumstances the use of specific disposal sites

for dredged or fill material pursuant.to section 404 (c) and the authority to issue, and/or review stateand tribe-issuld permits under the CAA or for activities thait involve discharges of pollutants subect

to the requirements of the CWA National Pollutant Discharge Elimination System.

4
The National Oceanic and Atmospheric Administration (NOAA), within, the DOC. is responsible for

addressing a variety of impacts to marine and coastal ecosystems as mandated by several statutes

and-authorities. The:siting of electric transmission lines in coastal. and/or ocean areas may overlap

with several NOAA responsibilities depending on the location and type of project proposed.

The NOAA's.NationalMarine Fisheries Service (N.MFS), within DOC, is responsible for activities.

that include managing, protected species, managing commercial and recreational fisheries, and

protecting marine and. coastal habitats. These activities are conducted pursuant o a number of

envirounmental laws including the Endangered Species Act, Marine IMammal Protection Act,

Magnuson-Stevens Fishery Conservation and Management Act, and the Fish and Wildlife

Coordination Act. Federal agencies authorizing activities may be required to consult with NMFS

regardingadverse effects to these resources and the habitats upon which they depend.

The NOAA'S National Ocean Service (NOS), also within DOC, is. responsible for. various coastal

and ocean programs. that may be relevant to obtaining federal licenses or permits for the siting of

electric transmission lines. The NOS:.administers the Coastal Zone Management Act (CZMA) and

approves, periodically reviews, and provides grants and technical assistance to states for purposes. of

implementing comprehensive Coastal Management Programs and National, Estuarine Research

Reserves. The NOS also mediates certain disputes regarding CZMA issues. Under CZMA section

307(c)(3)(A), applicable, states must concur with consistency certifications submitted with linear

right-of-way applications and any other required applications for federal permits or licenses before

Federal agencies can. issue their approvals. The NOS also manages designated National Marine

Sanctuaries :(NMS) and coastal protection and restoration activities. Pursuant to. section 304(d) of

the National Marine Sanctuaries Act, Federal actions in or near NAMS may require consultation with

the Secretary of Commerce. The.NOS may also be able to provide technical assistance related, to

nautical charts, coastal observing stations, geographic information system (GIS) capabilities, and

tide and current information.

The Cotucil on Environmental Quality was established within the Executive Office of the President

in 1969 by act of Congress as part of the Naitional :Environmental Policy Act (NEPA). Its principal

purpose is -to formulate and recommend national policies to promote the improvement of the. quality

of the environment. The _CEQ has issued regulations applicable to Federal agencies implementing,

NEPA (40 C.F.R. Parts 1500 through 1508).

The Advisor. Council on Historic. Preservation, an independent Federal agency, wascreated bvTitle

I1 of the National Historic Preservation Act of 1966 (N:HPA), to advise the Pre sidentand Congress

on historic preservation matters and to administer the review process established by Section 106 of ,the Act. Under Section 106, Federal agencies are obligated to consider how their actions may affect

historic properties included in or eligible for inclusion in the National Register of Historic Places and:

to afford the ACHP an opportunity to comment. These obligations are met by following the

implementing regulations issued by the ACHP, "Protection, of Historic Properties" (36 C.F.R. Part. 8o0)0Y
II. PARTICIPATING AGENCY COMMITMENTS

The Participating Agencies hereby commit, to the extent practicable, to early involvement and

cooperation to ensure that. timely decisions are made and that the responsibilities of each

Participating Agency are met. The Participating Agencies commit to working together and, as

appropri ate, with Indian tribes, multistate entities; State agencies, and other interested persons in

carrying out.theprovisions of subseetion 216(h).. In particular, the Participating Agencies agree to:

A. Communicate and Coordinate Earlv, Within one week from the date a prospective applicant or

an applicant submits a proposal to a Partitipating Agency that the Participating Agency beliees

is likelyto require a Federal authorization, as that term is defined in FPA subsection.216(h)(1),

the AgencY will assess its potential role in authorizing the proposed project and initiate contact

with DOE and the other affected Participating Agencies if the project is (1) .equal to or greater

than 230 kV; (2) reasonably likely to:require an EIS; or (3) reasonably. likely to require more than

one Federal authorization. Once notified, DOE. will consult with leach relevant Participating

Agency with a potential role in authorizing the proposed project to determine the appropriate

level of coordination required for the.proposed project. Those Participating Agencies contacted

byDOE agree to cooperate with DOE to:

.1. Coordinate their .applicable Federal authorizations and environmental reviews relating to a.

proposed or existing ftacility. This coordination requires consultation, "as appropriate with

Indian tribes, multistate entities, and State agencies that are willing to coordinate their own

separate permiting and environmental reviews with the Federal authorization and

environmental reviews." [216(h)(4)(A)].

2, Adhere to "intermediate milestones and ultimate deadlines for the review-of, and Federal

authorization decisions relating to, the proposed [electric transmission] flacility" as

established by DOE in consultation with the relevanit Participating Agencies and in

accordance with applicable laws. [2.16(h)(4)(.A)].

3. Conduct timely reviews of applications for proposed transmission facilities within

corridors designated under section 503: of the Federal Land Policy and Management Act (43

U.S.C § 1763 et seq.) by fully taking into account prior analyses. and decisions relating to the

corridors. [216(h)(5)(B)].

4. Provide, as appropriate and available, to the applicant or the prospective appiicant relevant

studies, data (such as maps showin- features over which the Agency may have-jurisdiction),

and any other information cncerniing the status of matters the Participating Agencv

considers relevant, including matters that may be under consideration, such as proposing a

,species for listing as endangered or threatened, or proposing an area for wilderness status,

5.. Identify the applicable statutory, regulatory, and policy responsibilities of that Agency;. and

communicate that information to the applicantlor the prospective applicant.

6
B. Participate During .Application. Discussions. Not later than 60 days after receipt of a request for

suclh information by an, .applicant, a prospective applicant, or DOE, each Participating Agency.

witha potential role in authorizing the proposed project will coordinate with DOE to provide

information concerning:

1. The "key issues of concern to the [Participating] agencies and the public" that' need to be

addressed in order for that Agency to meet itsobligations, and communicate those issues and

concerns to the applicant or the prospective applicant. [216(h)(4)(C)(ii)].

2. The likelihood of approval for a potential facility. [21 6(h)(4)(C)(i)].

C. Communicate Informally. The Participating Agencies and principal contacts set forth in section

VIII agree to informally communicate early.and throughout the process to ensure that issues are

raised as. soon as possible. and shared among all Agencies. Each Participating Agency will

identify one or more lead points of contact for a project if other than the principal contact. This

point of contact will notify DOE at least 60 days prior to expiration of:an internediateo r final

deadline established by DOE pursuant to subsection 21 6(h)(4)(A) and/or (B).

D. Share Information and Data. To the extent permitted by. law and regulation, the Participating

Agencies will share the information gathered, considered, and relied upon by each of them with

all other relevant Participating Agen.cies. Specifically, the Participating Agencies. if determined

to have potential roles in authorizing the proposed..project, agree to:

1. Establish, maintain, and utilize, to the extent applicable, a single electronic source to store

and display' information pertaining to one or more authorizations potentially required to site

an electric transmission facility. The FERC's E-library is an example of one such source.

2. Cooperate and coordinate in the preparation of requests for studies or data, avoid

duplicative requests, and compile consistent information on which all of the Participating

Agencies will rely.

•3. Cooperate in identifying and developing the information at the level of detail required to

cornplete environmental and cultural resourceproject reviews.

4. Consult early and as often. as needed with DOE and other applicable Participating

Agencies and, as appropriate, Indian tribes, multistate entities, and State agencies regarding

preparation of a single environmental review document to be "used as the basis for all

decisions on the. proposed [electrictransmissionjproject1 ." The single environmental review

document shall "include consideration by the relevant agencies of any applicable criteria or

other matters as required under applicable law." [216(h)(5)(A), (C)].

7
5, Consult early and as often as needed with DOE and other applicable participatiig Federal

and State agencies.regarding the sufficiency and, data requirements of applications andpre- applications. [2!.6(h)(4)(B)].

6. Notify.the principal contact listed in section VII for the relevant.Participating Agencies

and CEQ once any Participating Agency learns of an applicant or State's intent to appeal :any

matter under subsection 216(h)(6),

IV. SCOPE OF THE MOU

A. This MOU cannot be used to obligate or commit funds or as the basis for the transfer of funds.

Nothing in this MOU, in and of itself, requires any signatory agency to enter into any contract,

grant, or interagency agreement. All provisions, in this MOU are subject to the availability of

funds.

B. This MOU shall be modified or amended upon written request of any party hereto and the

subsequent written. concurrence of all parties.

C. This MOU is to be construed in a manner consistent with all existing laws.

D. This MOU neither expands nor is in derogation of those powers and authorities vested in the

parties by applicable law.

-. The Participating Agencies intend to ftilly carry Out the ternis of this MOU. All provisions in

this.MOU. however, are subject to available appropriations and agency resources.

F. This MOU is strictly for internal management purposes of:the parties. It is not a contract for

acquisition of supplies or serviccs,.:isn ot legally enforceable, and shall not be construed to create

any legal obligation on the part of any of the parties, or any private, right or cause of action for:or

by any person or entity.

G. Participation in this MOU may be terminated 60 days after providing written notice of such

termination to the other Participating Agencies, Upon one party's unilateral withdrawal, this

MOU shall remain in effect for other Participating Agencies unless all of the Participating

Agencies unanimously agree to withdraw.

H. The. Participating Agencies will review this MOU every 5 years from the date the. MOU takes

effect and revise it as necessary.

8
V.: DISPUTE RESOLUTION

If a dispute arises among the Participating Agencies. regarding the terms or the implementation of

this MOU, the following •steps will be taken:

SA. The Participating Ayeny (through its principal contact(s) and/or points of contact(s) identified

in:section II(C) for projects) that seeks resolution will immediately (or within five working

days). provide a written statement of the dispute, along with any rationale or supporting

documents, to other relevant Participating Agencies and DOE in an attempt:to arrive at a

consensus and resolve the dispute.

B. If no.resolution is reached within .10 working days of notification of the dispute, it will be

elevated in writing, along with any rationale or supporting.documents, to the principal contacts

set forth in section V111 at the headquarters-level for the relevant Participating. Agencies and

CEQ..

C. If resolution is. not reached by the headquarters-level officials within 15 working days of their

receipt of the written statement of the dispute, the relevant Participating Agencies will promptly

elevate the matter to their principal policy makers and the CEQ Chairnan who will resolve the

matter within 20 working days.

D. The time, limits in the preceding paragraphs may be extended on the mutual agreement of the

Participating Agencies that the period should be extended. Disputes will be resolved within

sufficient time to enable, completion of any environmental reviews by the deadlines established

by DOE in consultation with the relevant Participating Agencies.

VI. SECURITY AND CLASSIFICATION

All applicable security classifications and guidelines shall apply. Before any classified work tinder

this MOU is. initiated, the Participating Agencies' representatives will establish appropriate seceirity

requirements/proeedures.

All work undertaken pursuantito this .MOU shall be coordinated among. the Participating Agencies,

and, when applicable, shall be subject to confidentiality requirements and exemptions from

disclosure under the Freedom of Information Act, 5 U.S.C. § 552.

9
VII. AUTHORITIES

The Participating Agencies enter into this MOU under subsection 216(h) of the, Federal Power Act,

sec. 1221(a), § 216(h)(7)(B)(i), 119 Stat. 594, 946-951 (2005) (to be codified as amendcd at 16:U.S.C.

§ 824 p).

VIII. PRINCIPAL CONTACTS

Each party hereby designates contacts as the initial principal contacts fbr theagency. [216(h)(7)(C)1.

These contacts may be changed at the Participating Agency's discretion upon written notice to the

other Participating Agencies. The following arethe initial principal contacts for each agency:

DOE:

FERC:

DOCJNOAA:

DOC/NOAA/`NMFS

DOC/'OAA/NOS:

DOD:

DODiUSACE:

EPA:

DO:

CEQ:

USDA/FS:

ACHP:

Director of the Office of Electricity Delivery and Energy Reliability

.Director of the Office:of Energy Projects

Assistant Secretary of Commerce, Oceans and Atmosphere

Assistant Administrator,. N ational Marine Fisheries Service

Assistant Administrator, National Ocean Service

Director, Installations Requirements and Management

Assistant Secretary. of the, Army for Civil Works

Director of the Office of Federal Activities

Principal Deputy Assistant Secretary, Land and Minerals Management

Associate Director for N EPA

Assistant Director of Lands, Forest Service

Director of the Office of Federal Agency Programs

IX. DATE EFFECTIVE

This MOU shall take effect on the date of the last approving signature specified in section X.

X. SIGNATORIES

SA%1! .ODA

f"E UR 1 .AR\ OV 0F1 iRG~

Daic' 7,

10.
By: Date _____

SECRE LSI

ACQUISITION. TECHNNOLOGY &' LOGISTICS

06

By

MIKE JOHANNS

SECRETARY OF AGRICULTURE

AUG

Diate

3 M6

AL 042o

IDtEK KEXI'THORNE

DaTe.-

(CARIOS M. Gi WHT RR-Z SEC.RI AH (ii01 C0OMIM IKJRCEl

CU[LAT ORY C• IM[SSI•N,

II
JUL 18 W

/A'MS L xON~tIO

(I, nuIA I RMiOUNC1,O x' . rNIVIRONNII NrA I Q1 A 1

v~s~y ~)NC~ ~HIS~TRK ~RA'. -ION

12
37110

appropriate order Issued regarding the

disposition of the petitions.

In the event that a hearing is held and a person is permitted to intervene, he be- comes a party to the proceeding and has a right to participate fully in the con- duct of the hearing. For example, he may

present evidence and examine and cross- examine witnesses. , For further details with respect to this

action, see the letter from K. Goller to

G. Rhode dated June 13, 1975 and the

letter from G. Rhode to K. Goller dated

July 2, 1975, which are available for public Inspection at the Commission's Public

Document Room, 1717 H Street, N.W.;

Washington, D.C. and at the Oswego City

Library, 110 E. Second Street, Oswego,

-New York 13126. The proposed license

amendment and the Safety Evaluation,

may be inspected at the above locations

and a copy may be obtained upon re- quest addressed to the U.S. Nuclear

Regulatory Commission. Washington,

D.C. 20555, Attention: Director, Division

of Reactor Licensing.

Dated at Bethesda, Maryland, this

15th day of August 1975.

For the Nuclear Regulatory Commission.

,.GEORGE LEAR,

Chief, Operating Reactors

Branch NO. 3, DivWioir of Reactor Licensing.

IFR Doc.75-22243 riled 8-22-75;58:45 am)

[Docket No. 50-3121

SACRAMENTO MUNICIPAL UTILITY

DISTRICT (RANCHO SECO)

Proposed Issuance of Amendment toFacility Operating License

The Nuclear Regulatory Commission

(the Commission) Is considering the

Issuance of an amendment to Facility

Operating License No. DPR-54 issued toSacrampnto Municipal. Utility District

(the licensee) for operation of the

Rancho Seco Nuclear Generating Station

Unit I (the facility), a pressurized-water

reactor located in Sacramento County,

California, and currently authorized for

operation at power levels up to 2568MWt.

In accordance with the licensee's application for a license amendment dated

July 8, -1975, the amendment would

.modify operating limits in the Technical

Specifications based. upon an evaluation

of ECCS performance calculated in accordance with an acceptable evaluation

model that-conforms to the requirements

of the Commission's regulations in 10

CPR Section 50.46. The amendment

would modify various limits established

In accordance with the Commisslon's Interim Acceptance Criteria, and would,

with respect to the Rancho Seco Nuclear

Generating Station Unit 1, terminate the

further restrictions Imposed.by the Coatmission's December 27, 1974 Order for

Modification of License, and. would. Impose instead, limitations established In

accordance with'the Commission's Ac-'

ceptance Criteria. for Emergency Core

Cooling Systems for Light Water Nu-"

clear Power Reactors, 10 CFR Section

50.46.

NOTICES

In addition, the Commission is con- siderin& the issuance of a license amending which would revise the provisions

in the Technical Specifications to reduce,

surveillance requirements for reactorbuilding tendons as necessitated by

equipment capability limitations, in ac- cordance with the licensee's application

for amendment dated May 23, 1975.

Prior to issuance of the proposed li- cense amendment, .the Commission will

have made the findings required by the

Atomic Energy Act of 1954, as amended

(the Act), and the Commission's rules

and regulations.

By September 24, 1975, the--licensee

may file- a request for a hearing and any

person whose interest may be affected by

this proceeding may file a request for a

hearing in the form of a petition for

leave to intervene with respect to the

Issuance of the amendment to the subject

facility operating license. Petitions for

leave to intervene must, be filed under

oath or affirmation in accordance with

the provisions of § 2.714 of 10 CFR Part 2

of the. Commission's regulations. A petition. for leave to intervene must set forth

the interest of the- petitioner in the proceeding, how that interest may be affected. by the results of the proceeding,

and: the petitioner'r contentions with re- spect to the proposed licensing action.

Such petitions must be filed in accord-. ance with the provisions of this FEDERAL REGXSXSE Notice and Section 2.714, and

must be- filed with the Secretary of. the

Commission, U.a. Tuclear Regulatory

Commission, Washington, D.C. 20555,

Attention: Docketing and Service Section, by the above date. A copy of the

petition and/or request for a hearing

should be sent to the Executive Legal

Director, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 and to

David S. Kaplan, Secretary and General

Counsel, 6201 S Street, Post Office Box

15830, Sacramento, California, the attorney for thelicensee.

A petition for leave to intervene must

be accompanied by a supporting affidavit

which identifies the specific aspect or aspects of the proceedinh as to' which

Intervention Is desired and specifies with

particularity thefacts on which the petitiover relies as to botli his interest and

his contentions with regard to each as- pect on which intervention is requested.

Petitions stating contentions relating

only to matters outside the Commission's

Jurisdiction will be denied.

411 petitions will be acted upon by the

Commission 'or licensing board designated by the Commission or by the

Chairman of the Atomic Safety and Licensing Board Panel. Timely petitions

will be considered to determine&'hether a. hearing should be noticed or another

appropriate order issued regarding thedisposition of the petitions.

Irr the event that a hearing is held

and a person is permitted to intervene,

he becomes a party-to theproceeding and,

haz a right to participate fully in the

conduct of the hearing. For example, he

may present evidence and examine and

cross-examlnewitnesses.

For further details with respect to this

action, see" (1) the application for

amendment dated Jury 8, 1075, and (2)

the Commission's Order for Modification of License and the documents referred to in the Order dated December 27, 1974 published in the FEDrnAL

REGzSTER on January 9, 1975 (40 FR

1776), which are available for public

inspection at the Commission's Public

Document Room, 1717 H Street, NW,,

Washington, D.C., and at the Business

and Municipal-Department, Sacramento

City-County Library, 828 I Street, Sacramento, California. The license amendment and the Safety Evaluation, when

issued, may be Inspected at the above

locations, and a copy may be obtained

upon request addressed to the U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Director,

Division of Reactor Licensing.

Dated at Bethesda, Maryland, this 15th

day of August 1975,

For the Nuclear Regulatory Commission.

RODERTW.Rsm,

Chief, Operating Reactors

Branch No. 4, Division o1 Reactor Licensing.

IFI 3noc.75-22244 Filed 8-22-76;8:45 am)

REGULATION OF NUCLEAR POWER

PLANTS

Memorandum of Understanding

Both the Corps of Engineers, United - States Army, and the United States Nu-.

clear Regulatory Commission have re- sponsibilities for assuring that nuclear

power plants on coastal and inland navlgable waters and at offshore sites aro -built and operated safely and with mini- mum impact on the environment. For the

purpose of coordinating and implementIng consistent and comprehensive re- quirements to assure effective, efincient

andthorough regulation of nuclear power

plants and to avoid conflicting and un- necessary duplication of effort and of

Standards related to overall public health

andsafety and environmental protection,

the Corps of,Engineers, United States

Army, and the United States Nuclear

Regulatory Commission have entered

Into a memorandum, of understanding,

The text of the memorandum is set forth

below.

Dated at Washington, D.C., this l8th

day of August 1975.

For the Nuclear Regulatory Commission.

SAt=UEL J. CHILIS,

Secretary o/the Commission.

MMORANDUtY OF "UXDEnSaTA2WIWQ JEctVwnnz

T= CoRPs or EHNcirxn, Vzi'rTz, SrATvs

AR•r, " . TIM U•IMD STATES9 NUeMil

EGATMoYn CozmxsSON FOR RrGMATION

or NXuclAn PO\VM P1LANtr3

1. Furposu. a. For the purpo~o of coordilnatlng and lmplementlng consistent and corn- prehensive requiremonts to assuro effective,

ellIcient and thorough. regulation of nUltear

power plants and; t, avoid conflictlug and un- necessary duplication, of offort and of standards related to overall pubic health and

-afety and environmontal protection, tile

Corps of Engineers, United States Army (US Army CE) and the United States Nuclear

FEDERAL REGISTER, VOL. 40, NO. 165-I1AONDAY, AUGUST 25, 1975

HeinOnline -- 40 Fed. Reg. 37110 1975
NOTICES 37111l

Regulatory Com-misson (UiS.N.R.C.) have

entered Into this ..Memorandum of Understanding--subject to their respective statu-

*tory authorities. The agreement pertains to

nuclear'power electric generating stations

using nuclear steam supply systems, Including their appurtenant structures, located in or affecting navigable waters. In the case of

a floating nuclear power plant, such struc- tures include the electrical transmission lines

from the plant to a landbased substation, the

protective breakwater and mooring systems,

and all appurtenant supporting facillties.

b. Nothing in this Memorandum of Understanding Is to be Interpreted as contravening the terms of the existing Memorandum. of

Understanding between the Atomic Energy

Commissiom and the Department of Defense

dated. 14/IS Feb 1967, pursuant to Section

91b of the Atomic Energy Act of 1954, as

amended.

2. Statutory Background. a. The Corps of

Engineers, United States Army (US Army

CE). Pursuant to Section 10 of the Rivers

and Harbors Act of 1899 (33 U.S.O. 403), the

Secretary of the Army, acting through the

US Army CE exercises regulatory authority over the construction of any structures in

navigable waters of the United States, the

dredging and/or "lin of any avigable wa- ters of the United States, and any other ac- tIvity wh.ich would alter or modify the course, condition, location or capacity of a navigable water of the United States. This

responsibility encompasses onshore as well as offshore activities when such activities at.

fect the course, condition or capacity of a navigable water of the United States. Navigable waters of the United States bave been

administratively defined by the US Army

CE (33 C.PI. 209.260) to generally Include

those waters, Including the territorial seas, which are subject to the ebb and flow of the

tide or which have been. used, are used, or are susceptible of use is an Instrument to transport Interstate commerce.

The Outer Continental Shelf Lands Act (43

U.S.C. 1333(f)) extends the authority of the

Secretary of the Army, acting through the

US Army OEo to the prevention of obstruction: to navigation in the navigable waters of the United States due to.the construction

of artificial Islands and fixed structures on the outer continental shelf beyond the ter- ritorial sea. . Pursuant to Section 404 of the Federal

Water Pollution Control Act Amendments of

1972 (33 UJS.C. 1344), the Secretary of the

Army, acting through the US Army CE, ex- erclses regulatory authority ovei the discharge of dredged or fill material In navigable waters at specified disposal sites. The selection of disposal sites will be In accordance

with guldelines developed by the Admlnis- trator of the United States Environmental

Protection Agency In conjunction with the

Secretary of the Army. Furthermore, the Administrator can prohibit or restrict the use of any defined area as a disposal slite whenever he determines, after notice and opportunity for public hearings, that the discharge of-such materialas Into such areas will

have an unacceptable adverse effect on mu- nllcpal water supplies, shellfish beds and

fishing areas, wildlife or recreation areas. Under the Marine Protection, Research,

and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.), the Secretary of the Army, acting

through the US Army C1. is authorized to issue permits for the transportation of

dredged material from the United States for

the purpose of dumping Into ocean Waters.

However, as "dumping" Is defined by Section

3(f) of that Act, it does not include the

construction of any fixed structure or art- fIcal Island nor the intentional placement

of any device In ocean waters or onuor in. the

submerged land beneath such waters for a purpose other than disposal when such construotlon or such placement Is otherwiro regulated by Federal law.

Where significant Impacts on the quality

of -the human environment are expected to

result from activities covered by an application for a permit under the above statutory provisions, the US Army OE must prepare an envjrunmental Impact statement

pursuant to the National Environmental

Policy Act of 1069 (NEPA). 42 U.S.C. 4321 at

seq., before the Secretary of the Army, acting

through the US Army CE, may Issue the permit.

b. The United States Nuclear negulatory

Commission (U.S.N.H...). The Energy Reaor

ganizatlon Act.ot 1974 (Pub. Law 03-438 (88

Stat. 1233)) zbollshed the Atomic Energy

Commission, and Section 201 of that Act

created the Nuclear Regulatory Commirlion

and transferrcd to the U.S.NR.O. all the

licensing and related regulatory functions of

the Atomic Energy Commlision. Pursuant

to the Energy Reorganization Act of 1974;

Chapters 6, 7, 8, 10, and 10 of the Atomlo

Energy Act of 1974, as amended. 42 UZ.S.

2011 et seq.; and the rules and regulations

Issued pursuant thereto, the U5IT.R.O. Is

* authorized to license and regulate the construction and operation of. among other

things, nuclear power plants, from the

standpoint of the common defnse and se- curity and public health and safety. In

addition. pursuant to the National Environmental PoUcy Act of 1069 (N-WA), 42 U.S.C.

4321 et seq., the U.S.N.R.O. is required to prepare an environmental impact statement on. and consider In its licensing actions, the

effects on the quality of the human environment caused by the construction and operatIon of such plants. 3. Agency .esponsfbNlitM43. a. Ocneral Arrangements. The U.S.NJM.C. will serve as

'"ead Agency." exercising the primary re.

sponsibilty In conducting environmental reviews and in preparing environmental statements for nuclear power plants covered by

this Memorandum of Understanding. Except as otherwise Indicated, all written communicatIons of US Army 09 to and from a license applcant or licensee relating to environmental analyses and reports will be

transmitted through the U.SM.R.O. Director

of Nuclear ReactoreRegulation or his desig- nee. In particular, any actions requiring partial or complete shutdown of the nuclear

power plant or changes from the design end

operating limitations and conditions ap- proved within the terms of this Memorandum

of Understanding will be transmitted

through the U.SX.R.C. Director of Nuclear

Reactor Regulation or his designee.

Except with respect to any actions re- quiring partial or complete shutdown of a nuclear power plant or changes from the

design and operating conditions approved

by either agency, each agency will separately enforce Its pertinent regulations or orders

and the conditions of the permits and li- ceases which It is3ues. Enforcement, as used

In this Memorandum of Understanding,- means the discovery of a violation of law of

the conditions of a permit or license, the

issuatnce. of a notice of violation. and subsequent actions for the Imposition of sanctions.

To the extent practicable, each agency wil

consult fully with the other with respect to enforcement actions concerning matters

which affect the responsibilities of the other

agency as described In this Memorandum of

Understanding..Coples of correspondence and

other documents relating to such enforce- ment action will be furnished to the other

agency on a timely basis.

The U.S.N.R.O. and the U.S. Army cE Will

exercise the functions described in this agreement 8o as to avoid duplication of regulation

to the maximum extent consistent with their

respective statutory obligatons, public

bealth and sety, and environmental protection.

The US. Army C4 acting through the

ppropriate District Engineer, with the asslatanco of U.S. Army Corps of Engineers recearch and development centers, when such

a.-istanco is appropriate, will participatep

with the U.S.N.IO. In the preparation of the

environmental impact statements to include

the drafting of material for the sections

which consider and evaluate the following

topics, as applicable, and the analysis leadIng thereto.

(1) Coastal erosion and other Shoreline

modifications, choaling, and scouring;

(2) Siltation and sedimentation processes;

(3) Dredging activities and disposal of

dredged materials- and

(4) Location of structures in or affecting

navigable watcr.

The appUcant will comply With US. Army

CE regulations iL developing Information

needed for U.S. Army CE review. As do

U.S21.R.C. re-ulations, these regulations requithe applicatt to sublnt, at his expese.

information required in support of his application, Once such information Is received,

the following procedure will apply to independent analysis of information r;celved in

any of these four areas. (An Independent

analysis 1s one requiring effort In addition to the analysis dona by tha UI,--.R.G. and the --

U.S. Army CE stair.)

(1) U-52ILO. will provide funding for

such an Independent analysis if US.N'.RC.

agrees the independent analysis is needed

and would normally be required byU•S-NI-.C.

If US. Army CE were not involved..

(2) U.S. Army CE will• require that the

applicant.pay contract or other costa or such

analyaLs, as required in Us. Army Cz regulotlons, if US. Army CE determines that the

Independent analysis is needed, but

U.S.N.R.O. does not agree that It Is needed or does not agree that such analysis would

be required under the regulatory procedures

of U.S.NLO. In these cases, the contracting

and collection of atsociated costs from the

appUcant will be the responsibility of the

U.S. Army CE. The US.N..c.O. wil be forniahed copies of the results of the study.

In addliion. the U.S. Army CE will review

and comment on the draft environmental

statement in other areas within its regulatory Jurisdiction and areas in which the U.S.

Army CE has special expertise, as required

by NEPA.

b. Zwpections. Within the scope of this

Memorandum of Understanding, the

U.S.N.B.C. and the US Army CE will exercise

responsibiliUes for the same activities with

respect to inspections as they exercise with

respect to environmental revIews as discussed

In 3.a. above. o. Public Heariygs. The US.N..LC. will con- duct a mandatory adjudicatory public hearing with the opportunity for public participation before an Atomic Safety and LicensLug Board covering all environmental and

radoologjcal health and safety matters relatlng to the proposed Issuance of a US.n.C.

permit for construction of a nuclear power

plant. When U.S.N.TLO. proposes to Issue a limited work authorization for a nuclear

power plant prior to Issuance of a construc- tion permit, a public hearing on site sultabUlty and environmental Issues will be held

pursuant to the applicable UZS.N`-.,C. regnlations. An adjudicatory hearing will be also

conducted prior to Issuance of a UST-_R.C.

license for operation of the nuclear power plant upon request of any person whose in- terest may be affected or if the U.S.•T.I.C on Its own Initiative, decides that such a hearing should be held.

The US Army C= In connection with its

statutory and regulatory requirements, will

conduct public hearings when required (norFEDERAL REGISTER, VOL 40, NO. 16S-MONDAY, AUGUST 25, 1975

HeinOnline -- 40 Fed. Reg. 37111 1975
37112 NOTICE

marly, when the US Army CE permit involves plicable statutes and regulations,, and in ac- force

disposal of dredged or fill materiel). cordance with the provisions of this memo- those

On request. each agency-will participate in randum, correspondencd to license applicants this

any public hearings hold bY the other agency, or licensees pertaining to lleensin& and cer- the

Particularly, in the case of the U.S.N.R.C. lation. or his designee: official U.5.T.R.C. Dnt

hearings, the US Army CE winL provide ex- notices to license applicants or licensees

pert testimony, as required, in these areas effected, by the provisions of this Memeoran-

(sections) covered in the U.S.N.R.C. Environ- tilcation reviews, and correspondence relatmental Statements in whoee preparation the ing to inspection actions. The U.S.NY-BC.

US Army CE participated and those areas of will promptly forward to the US Army CE

special US Army CE expertise, copies of correspondence with the applicant Dal

4. U.S.N.R.O. Permits and Licenses and US and- other documents which affect the reArmy 01 Department of the Army Permits. - sponsibilities of the US' Army CE under the

A U.S.N.R.C. permit to construct a nuclear provision of this Memorandumpower plant must be dbtained prior to any b. Public Isformation. AlU correspondence

commencement of any construction at the 'to or from either agency dealing witE matters proposed site.' For 'certain nuclear power re- thicr areithe sbect of h is mora

actors, such as the floating nuclear power which are the subject of this Memorandum

plants, such a construction permit will not of Understanding will be subject to the Free- S

be issued before the U.S.TR.C. has issued a dom of Information Act. In addition, all corlicense to manufacture these reactors. The respondence flowing through the U.S.N.R.C.

U -S.N.R.C. will prepare an environmental will be subject to § 2.790 of 10' CFI• Part 2,

statement before such a construction permit which provides for routine disclosure of cerIs issued, discussing the environmental ef- tain documents in public document rooms.

fets of construction and operation of the Each agency will consult with the other NotVI

nuclear power plant at the proposed site; agency before Issuing any press releases on Mc

and the' U-S.NI.C. will also evaluate compli- matters assTgned to the other agency within

once with US.Nn-.C. criteria for safe design, this Memorandum of Understanding.

construction and. operation of the nuclear c; Coordination of Reviews. In routine Alab

plant including, if applicable, -a plant menu- matters rclatinguto review of license applica- 600

factured pursuant to a manufacturing 11- tions, the appropriate US. Army Corp' of barn

cense. US Army CE will participate in the Engineers District Engineer Will be the con- corn'

preparation of this environmental statement tact point with the U.S. Army CE; -and the regi

as described. in Section 3, above. This con-' designated Environmental Project Manager,

struction permit will be Issued on the basis Divisionr of Reactor Licensing, will be the app]

of, among other things, the desiLg and-other contact 'point within the U.S.N.R.C. 'Any sUa.

Information presented by the applicant li questions which: cannot be resolved at this Pa.

accordance with requirements of Title 10, level will be referred to intermediate levels Sect

Code of Federal Regulations, Chapter I. of managemrent within the 'U.S. Army and pror

It Is anticipated that, the single US Army the UM .R.C. If any questions cannot be the

CE Department of the Army permit, which resolved at these levels, t]iey will be con- Inte:

authorizes all construction activities to be aldered in direct communications between

performed at the plant site, and the U.S.N. the Executive Director for- Operations,

R.C. construction' permit (or imited work U.S.NT.:C, and the Chief of Engineers, for

authorization, as applicable) will be issued United States Army. tran

approximatey concurrenty for power reac- " d. Coordination of Inspections. In matters A]

tors for which' both agencies are authorized of field inspections, the cognizant Directors subJ

to issue permits. Each agency wili proniptly of U.S.N.R.Cr. Regional Inspection and En- quir

notify the other in writing of its issuance forcement Offices and the cognizant District U, t

of a permit. Xf'the U.ST'.R.C. Issues a limited Engineer will be the contact points for Firs

work authorization or grants a construction routine matters. Any questions which cannot Oct(

exemption in-&, situation where a US Army be resolved at this level will be referred to

CE permit is also required, the U.S.N.R.C. intermediate levels of management within thai

Will promptly notify the US Army CE in writ- US. Army CE and U.S.N.R.C. AnTy questions barn

Ing of the Issuance of such an authorization that cannot be resolved at these levels will boni

or exemption. WVhen the U.S.R'.P.C. decides be referred to the Chief of Engineers, United thee

that It will grant a limited work authorize- States Army, and the Executive Director for the

tion prior to issuance of a construction per-. Operations, U.SII.R.C. (wh

mit; the U.S.T.R.C. will advise the US Army " e. Schedules of Revfews and I'nspections, the

Cri of this decision. Both agencies will then In order to coordinate inspection and review t b

coordinate their schedules of review and activities and to efficiently implement regulssuances of licenses and permits. latory requirements, each agency will advise not

Prior to these issuances, each' agency Will the other Of its schedules for accomplishing of t•

send to the other a letter commenting on Inspections and environmental reviews which dett

the proposed Issuance from the point of view -have an effect on the activities of the other The

of the reviews assigned to the sending agency agency as defined in Section 3.a. of this den'

In Section 3 above and stating Its intention Memorandum of Understanding. Where ap- "twe

to approve or disapprove issuance of its own plicable, these schedules will be incorporated TI-Il

permit.' Into the U.S.N.R.C. licensing project schedEach agency will caution the applicant ule. Representatives of each agency will be

that issuance of its permit does not alleviate invited to coordination meetings held by the plea

the need for permits and licenses of other other agency pertaining to environmental OCt4

agencies, review activities which are to be coordinated, bitic

Following the above agency'-actlons, and Each agency will give priority to keeping the funi

after any requisite public hearings have been agreed'schedules for environmental reviews funi

held, a facility operating license may be and will keep the other agency advised of tere

issued by the U.S.N.I1.C. pursuant to 42 problems which are jeopardizing schedules. A

U.S.C. 2133, 2134, 2232, and 2235. f. Amendment of Assignments. The assign- fro

5. Procedures. a. Correspotdence- The fo1- ment of -responsibilities of this Memorandum

lowing documents, relating, to US Army CE may be amended by exchange of letters be- U

responsibilities as described in Section 3 of tween the Executive Director for Operations. $67,

this Memorandum, will be promptly trans- .U.S.N.T.C0, and the Chief or Engineers, dulr

mitted to the proper recipients by' the United States Army. Cen

U.S.N.R.O. Director of Nuclear-neactor negu- 6. Other Laws and Matters.Nothinginthis 1975

dum, issuances of license pursuant to ap- Memorandum of Understanding shall be isU deemed to restrict, modify, or otherwise limit ce the application or enforcement of any" laws

Some activities may be conducted under of the United States with respect to matters face

a limited work authorization. specified herein, nor the application or on- sale

meat of such law-s to matters other than

specified herein, nor shall anything in

demorandum be construed as inodifying

slating authority of either agency.

te6: July 2, 1075.

Lin V. Gosslic:,

Exccutive Dircetor for Opcraoions,

.Nuclear Regulatory Commission.

ted: July 2, 1975.

WV. C. O•rvmr., Jr.,

Chicl 01 Lin•lncea6 of

US Army 09.

Doe.75-22245 Flied 8-22-7518:45 am]

ECURITIES AND EXCHANGE

COMMISSION

[70-5721 I

ALABAMA POWER CO.

:c of Proposed Issue and Sale of First

irtgage Bonds at Competitive Bidding

OTICE IS HEREBY GIVEN that

'amar Power Company ("Alabama"),

North 18th Street, Birmingham. Alaa 35291, an electric utility subsidiary

pany of The Southern Company, a

stered holding company, has filed an

icatilon with this Commission purit to the Public Utility Holding CornY Act of 1935 ("Act"), deslgnating

ion 6(0,) of the Act and Rule 50

nulgated thereunder as applicable to

following proposed transaction. All

rested persons are referred to the apation, which Is summarized below,

t complete statement of the proposed

Lsaction.

abamra proposes to, Issue and sell,

ect to the competitive bidding reements of Rule 50 under the Act,

o, $35,000,000 principal amount of its

t Mortgage Bonds, -% Series due

ober 1, -, have a term of not less

15 years nor more than 30 years. Alaa. will decide on the term of the now

ds and notify prospective bidders

'eof not less than 72 hours prior to

time of the bidding. The Interest rate.

ich shall be a multiple of •%) and

price, exclusive of accrued interest, e paid to Alabama (which shall be

less than 99% nor more than 1020/4Ao

be principal amount thereof) will be

rained by the competitive bidding.

bonds will be Issued under an Inlure dated as of January 1, 1V,12, been Alabama and Chemical Bank, va

stee, as heretofore supplemented and

a be further supplemented by a Sup-,

ental Indenture to be dated as of

sber 1, 1975, which Includes a prohion until October 1, 1080 against roding the bonds with the proceeds of

ds borrowed at a lower effective inst cost.

labama proposes to use the proceeds

a the sale of the bonds together with:

.) cash coutributions to capital of

,000,000 by the Southern Company

Lng 1975 heretofore authorized by the

enission (HCAR No. 18924 (April 9,

5)), (2) funds provided from bond

eS of public authorities for financing

&in of Alabama't pollution control

Ities, (3) funds provided from the

and leaseback of properties, (4)

FEDERAL REGISTER, VOL. 40, NO. 165-MONDAý, AUGUST 25, 1975

HeinOnline -- 40 Fed, Reg. 37112 1975
-tMr. Luis Reyes

Executive Director of Operations

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

Mail Stop O-16-E-15

/-FýuAn