HANDBOOK

FOR

HYDROELECTRIC PROJECT LICENSING

AND

5 MW EXEMPTIONS FROM LICENSING

______________________________________________________________

Federal Energy Regulatory Commission

Washington, DC 

April 2004

i

NOTICE

The regulations cited in this publication are subject to change. The 

reader may identify any changes in Federal Energy Regulatory

Commission (Commission or FERC) regulations that may affect any

application by monitoring the formal documents issued by the

Commission each business day using the Commission’s website

home page at www.ferc.gov or by using one or more of the services

described below. 

eLibrary. The Commission makes information available to the

public via the Internet through eLibrary, a records information

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Commission’s home page or directly at http://www.ferc.gov/docsfiling/elibrary.asp. Subscribe to specific dockets under

eSubscription and receive notices of issuance and filings by 

email.

Public Reference Room. Applicants also may visit the Public

Reference Room at Room 2-A, Commission Headquarters, 888

First Street, NE, Washington, DC 20246. Filings and other official 

documents may be viewed free of charge. The free publication A 

Guide to Public Information at the Federal Energy Regulatory 

Commission is also available from the Public Reference Room, on 

the Internet, or through the mail. It may be ordered by contacting 

public.referenceroom@ferc.gov, or by calling (202) 502-8371.

Federal Register. Published each business day, the Federal 

Register contains official notices of initial filings and applications, as 

well as the Commission’s proposed and final rulemakings. Online 

access to the Federal Register can be found at

http://www.archives.gov/federal_register/index.html,,or 

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contact the Superintendent of Documents, P.O. Box 371954,

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a.m. to 4 p.m.; or fax orders and inquiries to (202) 512-2250.

Federal Energy Guidelines. FERC Reports and FERC Statutes 

and Regulations are loose leaf, indexed services that contain

proposed and final rulemakings, orders, notices, opinions, initial

decisions, and final decisions. To subscribe, contact Commerce

Clearing House, Inc., 4025 West Peterson Ave., Chicago, IL 60646,

or call (800) 248-3248.

Other Electronic Databases. Several services provide electronic 

access to Commission documents. These include LEXIS and

WESTLAW. For information, write or call the following offices. 

LEXISCAvailable from Mead Data Central, P.O. Box 933, Dayton, 

OH 45401. Phone (800) 544-7390.

WESTLAWCAvailable from West Publishing Company, P.O. Box 

64779, St. Paul, MN 55164. Phone (800) 328-9833.
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iii

FOREWORD

This licensing handbook updates and replaces the previous

Hydroelectric Project Licensing Handbook of April 2001. Changes 

in the handbook reflect revisions to the Commission’s hydroelectric

licensing regulations issued in Order 2002 on July 23, 2003, which 

established a new licensing process---the integrated licensing

process (ILP)---and modified certain other aspects of its filing

requirements. 

The ILP became effective October 23, 2003. The ILP provides a 

predictable, efficient, and timely licensing process that continues to 

ensure resource protection. It is designed to improve efficiency and

timeliness of preparing and processing license applications by:

combining a potential license applicant’s pre-filing consultation with

the Commission’s scoping pursuant to the National Environmental 

Policy Act (NEPA), rather than conducting these activities

sequentially; increasing public participation in pre-filing consultation; 

improving coordination between the Commission’s processes and 

those of other participants; providing for increased staff assistance 

during the preparation of the application; and establishing schedules

for all participants, including Commission staff.

Order 2002 establishes a 2-year transitional period, during which

potential license applicants will be permitted to choose the

traditional licensing process (TLP) or the ILP, or to request

authorization to use the alternative licensing process (ALP). 

Effective July 23, 2005, the ILP process will become the default

licensing process, and Commission approval will be required to use

the TLP or ALP.

Concurrent with Order 2002, the Commission also issued a Tribal 

Consultation Policy, intended to improve consultation with Indian 

tribes. 
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TABLE OF CONTENTS

NOTICE.......................................................................................................................................................................................................... I

FOREWORD................................................................................................................................................................................................ III

1.0 INTRODUCTION............................................................................................................................................................................ 1-1

1.1 Purpose and Overview of This Handbook........................................................................................................................... 1-1

1.2 The Federal Energy Regulatory Commission’s Role in Hydropower Licensing................................................................... 1-1

2.0 APPLYING FOR A LICENSE ........................................................................................................................................................ 2-1

2.1 When is a License Needed?............................................................................................................................................... 2-1

2.2 Who May File for a License? .............................................................................................................................................. 2-1

2.3 When Do I File for a License? ............................................................................................................................................ 2-2

2.4 What Type of License Do I Need?...................................................................................................................................... 2-2

2.5 How Do I Apply for a License? ........................................................................................................................................... 2-3

2.5.1 Notice of Intent to File a License ......................................................................................................................... 2-3

2.5.2 Who Should be Consulted During Application Preparation?................................................................................ 2-6

2.5.3 What Kind of Studies May be Expected?............................................................................................................. 2-7

2.5.4 What Goes in the Application? .......................................................................................................................... 2-11

2.5.5 Third-party Contractor Process.......................................................................................................................... 2-15

2.6 How Do I File?.................................................................................................................................................................. 2-16

2.7 What Happens After the Application is Filed?................................................................................................................... 2-17

2.7.1 Application Review............................................................................................................................................ 2-17

2.7.2 Environmental Review....................................................................................................................................... 2-19

2.7.3 Section 10(j) Processes..................................................................................................................................... 2-20

2.7.4 License Issuance and Monitoring of Terms and Conditions............................................................................... 2-21

2.8 What Does the Commission Consider in its Licensing Decisions? ................................................................................... 2-23

2.8.1 Comprehensive Development Provisions .......................................................................................................... 2-23
vi

2.8.2 Plans and Ability of the Applicant to Comply with the Terms and Conditions of a License ................................ 2-25

2.8.3 Applicant’s Plan to Manage, Operate, and Maintain the Project Safely ............................................................. 2-25

2.8.4 Applicant’s Plan to Manage, Operate, and Maintain the Project to Provide Efficient and 

Reliable Electric Service.................................................................................................................................... 2-26

2.8.5 Need of the Applicant for the Electricity Generated by the Project..................................................................... 2-26

2.8.6 Applicant’s Transmission Services .................................................................................................................... 2-27

2.8.7 Applicant’s Achievement of Cost-Effectiveness ................................................................................................. 2-27

2.8.8 Applicant’s Record of Compliance..................................................................................................................... 2-27

2.8.9 Actions Taken by the Applicant Related to the Project Affecting the Public....................................................... 2-27

3.0 THE INTEGRATED LICENSING PROCESS ................................................................................................................................. 3-1

3.1 Step 1: Decision to File and Initial Actions....................................................................................................................... 3-1

3.2 Step 2: Consultation, Scoping, and Study Plan Development.......................................................................................... 3-3

3.2.1 Consultation, Scoping, and Commencement of Proceedings .............................................................................. 3-3

3.2.2 Tribal Consultation .............................................................................................................................................. 3-4

3.2.3 Comments and Study Requests .......................................................................................................................... 3-4

3.2.4 PURPA Benefits.................................................................................................................................................. 3-5

3.2.5 Study Plan Development ..................................................................................................................................... 3-6

3.2.6 Study Plan Meetings and Comments on Proposed Study Plan ........................................................................... 3-6

3.2.7 Study Plan Determination.................................................................................................................................... 3-7

3.2.8 Formal Study Dispute Resolution ........................................................................................................................ 3-7

3.3 Step 3: Studies and Preliminary Licensing Proposal Preparation..................................................................................... 3-9

3.3.1 Conduct of Studies .............................................................................................................................................. 3-9

3.3.2 Preliminary Licensing Proposal ......................................................................................................................... 3-10

3.4 Step 4: Application Filing ............................................................................................................................................... 3-10

3.4.1 Tendering of the Application.............................................................................................................................. 3-10

3.4.2 Application Contents.......................................................................................................................................... 3-11

3.4.3 Adequacy Review.............................................................................................................................................. 3-12

3.5 Step 5: Application Processing and NEPA Compliance ................................................................................................. 3-13

3.5.1 Ready for Environmental Analysis..................................................................................................................... 3-13
vii

3.5.2 EA or EIS Preparation ....................................................................................................................................... 3-13

3.6 Step 6: Completion of the Section 10(j) Process............................................................................................................ 3-14

3.7 Step 7: License Issuance and Monitoring ...................................................................................................................... 3-14

4.0 THE TRADITIONAL LICENSING PROCESS ................................................................................................................................ 4-1

4.1 Step 1: First Stage Consultation ...................................................................................................................................... 4-1

4.1.1 Notice of Intent and Initial Information ................................................................................................................. 4-1

4.1.2 Meeting ............................................................................................................................................................... 4-4

4.1.3 Comments and Study Requests .......................................................................................................................... 4-5

4.2 Step 2: Beginning of Second Stage Consultation: Studies and Draft Application Preparation......................................... 4-7

4.3 Step 3: Completion of Second Stage Consultation .......................................................................................................... 4-9

4.4 Step 4: Third Stage Consultation: Application Filing and Acceptance by the Commission............................................ 4-10

4.5 Step 5: Application Processing and NEPA Compliance ................................................................................................. 4-13

4.5.1 Scoping ............................................................................................................................................................. 4-13

4.5.2 Additional Information and REA Notice.............................................................................................................. 4-13

4.5.3 EA or EIS Preparation ....................................................................................................................................... 4-13

4.6 Step 6: Completion of the Section 10(j) Process............................................................................................................ 4-14

4.7 Step 7: License Issuance and Monitoring ...................................................................................................................... 4-14

5.0 THE ALTERNATIVE LICENSING PROCESS ............................................................................................................................... 5-1

5.1 Step 1: Decision to File and Formation of Stakeholder Workgroup and Communications Protocol.................................. 5-3

5.2 Step 2: Applicant Requests Permission to use the Alternative Process ........................................................................... 5-3

5.2.1 Request for Authorization .................................................................................................................................... 5-3

5.2.2 Public Notice and Comment ................................................................................................................................ 5-4

5.3 Step 3: Pre-filing Consultation Process and Scoping of Environmental Issues ................................................................ 5-6

5.4 Step 4: Studies and Draft Application Preparation ........................................................................................................... 5-6

5.5 Step 5: NEPA Document and Application Filed and Sent to Agencies............................................................................. 5-7

5.6 Step 6: Application Processing ........................................................................................................................................ 5-7

5.6.1 Tendering and Acceptance.................................................................................................................................. 5-7

5.6.2 EA or EIS Preparation ......................................................................................................................................... 5-9
viii

5.7 Step 7: Completion of the Section 10(j) Process.............................................................................................................. 5-9

5.8 Step 8: License Issuance and Monitoring.......................................................................................................................5-10

6.0 EXEMPTIONS FROM LICENSING................................................................................................................................................ 6-1

6.1 Types of Exemptions and Who Can Apply ......................................................................................................................... 6-1

6.2 Obtaining an Exemption ..................................................................................................................................................... 6-2

6.3 5 MW or Less Exemptions.................................................................................................................................................. 6-2

6.3.1 Application Content ............................................................................................................................................. 6-2

6.3.2 Development of Terms and Conditions................................................................................................................ 6-3

7.0 COMPETING APPLICATIONS ...................................................................................................................................................... 7-1
ix

TABLES

Table 1 Comparison of Three Hydroelectric Licensing Processes....................................................................................... 1-3

Table 2 Guide to Application Contents for Each Exhibit in a License Application by Project Type......................................2-12

FIGURES

Figure 1 Integrated Licensing Process ................................................................................................................................. 3-2

Figure 2 Traditional Licensing Process................................................................................................................................. 4-2

Figure 3 Alternative Licensing Process................................................................................................................................. 5-2

APPENDICES

Appendix A Federal Power Act, Part 1 ......................................................................................................................................A-1

Appendix B Other Federal Statutes ...........................................................................................................................................B-1

Appendix C Definitions and Acronyms.......................................................................................................................................C-1

Appendix D Guidelines for Preparing Exhibit E..........................................................................................................................D-1
INTRODUCTION

1-1

1.0 INTRODUCTION 

1.1 PURPOSE AND OVERVIEW OF 

THIS HANDBOOK

This handbook is for all interested parties involved in the

hydropower authorization process. It provides a step-by-step guide

to applying for an original license, a new license or subsequent

license (relicenses), and 5 MW exemption from licensing, and can 

be used to improve the quality and consistency of license or

exemption applications (see Appendix D for definitions and

acronyms). It also clarifies the responsibilities of the interested

entities in these proceedings: prospective applicants, Commission 

staff, resource agencies, Indian tribes, non-governmental 

organizations, and members of the public.

The handbook presents an overview of the process for obtaining an

original or new license in chapter 2, followed by detailed information

on the steps involved in the integrated, traditional, and alternative 

licensing processes in chapters 3, 4, and 5, respectively. Detailed 

information on the steps for applying for exemptions from licensing 

is provided in chapter 6, and the Commission’s rules of preference 

for competing applications are in chapter 7.

While this handbook provides helpful information about application

procedures, it is not a substitute for the Commission’s implementing

regulations at 18 CFR Subchapter B. For specific guidance,

prospective applicants and other participants in these proceedings 

should rely on the regulations, supplemented as necessary with

legal advice. 

1.2 THE FEDERAL ENERGY 

REGULATORY COMMISSION’S 

ROLE IN HYDROPOWER 

LICENSING

Under the authority of the Federal Power Act (FPA), as amended,1

the Federal Energy Regulatory Commission (Commission) has the 

exclusive authority to license most nonfederal hydropower projects 

located on navigable waterways or federal lands, or connected to 

the interstate electric grid. Appendix A contains the full text of Part 

1 of the FPA.

The Commission is composed of five members appointed by the

President with the advice and consent of the Senate. The

Commission is supported by a staff, with environmental,

engineering, and legal expertise, which evaluates hydropower

license applications and makes recommendations to the

Commission on hydropower licensing matters. 

The Commission may issue an original license for up to 50 years for

constructing, operating, and maintaining jurisdictional projects. 

When a license expires, the federal government can take over the 

project, the Commission can issue a new license (relicense) to

either the existing licensee or a new licensee for a period of 30 to 

50 years, or the project may be decommissioned. 

 

1

 16 U.S.C. ''791(a)-825r.
INTRODUCTION

1-2

Applicants for licenses may use either the integrated, traditional, or 

alternative licensing process.2 Applicants for an exemption from

licensing may use either the traditional or alternative licensing

process.

In the integrated licensing process, Commission staff involvement

begins during the pre-filing consultation process and is sustained

throughout the licensing process. The integrated licensing process 

merges pre-filing consultation and the National Environmental

Policy Act (NEPA) process, brings finality to pre-filing study

disputes, and maximizes the opportunity for the federal and state 

agencies to coordinate their respective processes with the

Commission’s licensing process.

In the traditional licensing process, the Commission conducts

scoping after an application is accepted for filing by the

Commission, and there is little Commission involvement during the

pre-filing consultation process prior to when the application is filed.

 

2 Effective October 23, 2003, applicants can elect to use either 

the integrated or the traditional process or, with approval, the 

alternative licensing process. After July 23, 2005, use of the 

traditional licensing process as well as the alternative 

licensing process will require Commission approval.

In the alternative licensing process, scoping is done prior to filing

the application with the Commission, but Commission staff

involvement during study plan development and other pre-filing 

activities is advisory in nature. The alternative process is flexible 

and collaborative in character, but it lacks the scheduling structure 

and consistent Commission staff assistance offered by the ILP

(table 1).

The following principles, established in the FPA, guide the

Commission’s treatment of natural resources and its licensing

decisions.

In deciding whether to issue a license, the 

Commission must give equal consideration 

to developmental and environmental values. 

Environmental values include: fish and 

wildlife resources, including their spawning 

grounds and habitat, visual resources,

cultural resources, recreational opportunities,

and other aspects of environmental quality. 

Developmental values include power 

generation, irrigation, flood control, and 

water supply.

FPA Section 

4(e)

Equal

Consideration

Standard
INTRODUCTION

1-3

Table 1. Comparison of Three Hydroelectric Licensing Processes.

Traditional Licensing 

Process (TLP)

Alternative Licensing 

Process (ALP)

Integrated Licensing Process

(ILP)

Consultation with 

Resource Agencies and 

Indian Tribes 

Paper driven Collaborative Integrated

Deadlines • Pre-filing - some deadlines for 

participants

• Post-filing - defined deadlines for 

participants

• Pre-filing - deadlines defined by 

collaborative group

• Post-filing - defined deadlines for 

participants

• Defined deadlines for all participants 

throughout the process, including 

FERC

Study Plan Development • No FERC involvement

• Developed by applicant based on 

early agency, tribal, and public 

recommendations

• FERC staff advisory assistance

• Developed by collaborative group

• Plan approved by FERC

• Developed through study plan 

meetings with FERC staff 

involvement

Study Dispute 

Resolution

• OEP Director opinion advisory • OEP Director opinion advisory • Informal dispute resolution available 

to all participants 

• Formal dispute resolution available to 

agencies w/ mandatory conditioning 

authority. 

• OEP Director opinion binding on 

applicant

Application • Draft and final application include 

Exhibit E

• Draft and final application includes 

applicant-prepared EA or 3rd party 

EIS 

• Preliminary licensing proposal (or 

draft application) and final application 

include Exhibit E that has form and 

contents of an EA

Additional Information

Requests 

• Available to participants after filing 

of application

• Available to participants primarily 

before filing of application

• Post-filing requests available but 

should be limited due to 

collaborative approach

• Available to participants before filing 

of application 

• No formal avenue to request 

additional info after application filed

Timing of Resource 

Agency

Terms and Conditions

• Terms and conditions filed 60 

days after REA notice 

• Schedule for filing final terms and 

conditions permitted

• Terms and conditions filed 60 

days after REA notice

• Schedule for filing final terms and 

conditions permitted

• Terms and conditions filed 60 days 

after REA notice

• Modified terms and conditions 60 

days after comments on the single 

EA or draft NEPA document
INTRODUCTION

1-4

The Commission must ensure that the project 

to be licensed is best adapted to a 

comprehensive plan for developing the 

waterway for beneficial public purposes. In 

making this judgment, the Commission 

considers comprehensive plans (including 

those that are resource-specific) prepared by 

federal and state entities, and the 

recommendations of federal and state 

resource agencies, Indian tribes, and the 

public.

FPA Section 

10(a)

Comprehensive 

Development 

Standard

In issuing licenses, the Commission must 

include conditions to adequately and equitably 

protect, mitigate damage to, and enhance fish 

and wildlife (and their habitats), based on 

recommendations of state and federal fish 

and wildlife agencies.

FPA Section 

10(j)

In cases where the proposed licensed project 

would be located on a federal reservation, the 

federal agency responsible for managing that 

land can file conditions to protect the 

reservation, and these conditions are required 

to be included in any license issued.

FPA Section 

4(e)

The Secretaries of Commerce and the Interior 

can prescribe fishways at licensed projects, 

and those conditions are required to be 

included in any license issued.

FPA Section 

18

Exemptions from licensing are subject to 

mandatory terms and conditions from the Fish 

and Wildlife Service, the National Marine 

Fisheries Service, and the state fish and 

wildlife agency.

FPA Section 

30(c)

After a license or exemption from licensing is 

issued, the Commission monitors the 

licensee’s or exemptee’s compliance with the 

conditions of the license or exemption. 

Failure to comply with these conditions would 

subject the licensee or exemptee to civil 

penalties or even, if the non-compliance is 

willful, rescission of the license or exemption. 

FPA Section 

31(a)

! In addition to the requirements set forth in the FPA, many other 

federal laws affect the licensing process. See Appendix B for

key federal laws particularly important to the licensing process.
APPLYING FOR A LICENSE

2-1

2.0 APPLYING FOR A LICENSE

2.1 WHEN IS A LICENSE NEEDED?

A license (or exemption from licensing---see chapter 6) from the

Commission is required to construct, operate, and maintain a nonfederal hydroelectric project that is or would be (a) located on

navigable waters of the United States; (b) occupy U.S. lands; (c) 

utilize surplus water or water power from a U.S. government dam; or

(d) be located on a stream over which Congress has Commerce

Clause3 jurisdiction, where project construction or expansion

occurred on or after August 26, 1935, and the project affects the

interests of interstate or foreign commerce. 

2.2 WHO MAY FILE FOR A LICENSE?

Any individual citizen of the United States, association of U.S. 

citizens, corporation organized under federal or state law, state,

municipality, or Indian tribe may file a hydropower license

application or a competing application for a license. In the case of a 

project under an existing license, the licensee must file an

unequivocal statement of its intention to file or not to file an

 

3 This is the Congress’ broad power "to regulate Commerce with 

foreign Nations, and among the several States, and with 

Indian Tribes." 

application for a new license. This is done through the Notice of

Intent. 18 CFR 4.31(a); 18 CFR 5.1(c); 18 CFR 16.6(b)

The Commission will not accept an application for an original license

for a project that:

! would develop the same water resources that would be

developed by a project for which there is a preliminary

permit in effect. But, if the permittee files an application for 

license, competition is allowed when the application is

accepted by the Commission. 18 CFR 4.33(b)

! is exempted from licensing, although the Commission may 

consider license applications proposing a more

comprehensive development of the exempted site.

18 CFR 4.33(c)

! is precluded by law. 18 CFR 4.32(e)(2)(ii)

An existing licensee may join with other entities to form a new entity

– a “joint venture” – for its application. Such a combined entity,

however, is not considered an existing licensee. 18 CFR 16.13(c)

An existing licensee that files an application for a 

relicense in conjunction with an entity that is not 

currently a licensee of the project will not be considered 

an existing licensee.
APPLYING FOR A LICENSE

2-2

2.3 WHEN DO I FILE FOR A LICENSE?

Original License

An applicant for an original license may file once it completes the

pre-filing license application process. 18 CFR Part5; 18 CFR 4.38

New License

An existing licensee must file for a new license at least 24 months in

advance of the existing license expiration, or it will be barred from 

filing an application for the project. If no acceptable timely

applications are filed, potential applicants other than the existing

licensee may have an additional opportunity to file after the due date

for filing a new license application.

18 CFR 5.17; 18 CFR 16.25; 18 CFR 16.25

If no application for a new license is filed, the existing licensee must

then file an application for surrender of the project.

 18 CFR 16.25(c)

Acceleration of the License Expiration Date

A licensee may file an amendment application to accelerate the

expiration date of its existing license. The request must include a 

detailed explanation of the basis for seeking acceleration, which

could include the licensee’s desire to install new capacity, make

major dam safety modifications, make fish and wildlife

improvements, or for other legitimate purposes. If, after giving

public notice and reviewing comments, the Commission deems that

it is in the public interest, it will issue an order granting the

amendment and accelerating the expiration date to a date not less 

than 5 years and 90 days from the Commission order.

A request for acceleration from a licensee is considered equivalent 

to a Notice of Intent (NOI) to relicense the project; therefore, the

licensee is obligated to make available certain information about the

project within 90 days from the date the Commission grants the

request for acceleration. 18 CFR 5.4; 18 CFR 16.4

2.4 WHAT TYPE OF LICENSE DO I

NEED?

Different types of licensing filings are possible, depending on

specific circumstances:

! an original license for an unconstructed hydroelectric

project; 

The Commission publishes each year both in the Federal 

Register and in its annual report a table showing the 

project licenses expiring in the subsequent 6 years, the

name of the licensee, the license expiration date, and a 

project description. This information is also available on 

the Commission’s web page.
APPLYING FOR A LICENSE

2-3

! an original license or new license (relicense) for an existing 

hydroelectric project;

! a subsequent license for a project with an expiring minor or 

minor part license not subject to Sections 14 and 15 of the 

FPA;

! a temporary nonpower license for winding down generation 

operations, and for purposes of transferring regulatory

authority to state and federal authorities.

2.5 HOW DO I APPLY FOR A LICENSE?

A potential applicant for an original, new, or subsequent license

must file for a license using one of the three licensing processes---

traditional, alternative, or integrated. Prior to July 23, 2005, a

potential applicant may elect to use the traditional or integrated

licensing process, or with approval the alternative licensing process.

Effective July 23, 2005, Commission approval is required to use

either the traditional or alternative licensing process. Additionally, 

the alternative licensing process can be used only if there is

consensus among the interested entities, including the applicant,

that the use of an alternative process is appropriate.

All of the licensing processes are based on consultation procedures 

designed to develop a record on which the Commission bases its

licensing decision and to fulfill its responsibilities under the FPA, 

NEPA, Fish and Wildlife Coordination Act, and other statutes.

18 CFR 5.6-5.19; 18 CFR 4.38(b); 18 CFR 16.8(b)

The following provides a brief summary of required actions common

to all the licensing processes. Nuances specific to each of the

licensing process are discussed in their respective chapters (3, 4,

and 5). 

2.5.1 NOTICE OF INTENT TO FILE A LICENSE

After July 23, 2005, a potential applicant must notify the

Commission of its intent to seek an original, new, or subsequent

license (A subsequent license means a new license for a minor

(=1.5 MW) project not subject to sections 14 and 15 of the FPA). It 

must include in its notice of intent (NOI) a pre-application document

(PAD). The NOI must be filed at least 5 but not more than 5.5 years

before the expiration of the license. An NOI to file an application in 

competition with a license application must be filed not later than the

prescribed intervention deadline for the initial license application. 

Prior to July 23, 2005, a PAD would not be required to be filed, but 

an applicant for a new or subsequent license would still need to file 

its NOI at least 5 but not more than 5.5 years before the expiration 

of the license. 18 CFR 5.5(d) 18 CFR 16.6(c)

The Commission intends to notify existing licensees about 1 year

prior to the NOI deadline date, so that they can make decisions

about licensing process selection. 
APPLYING FOR A LICENSE

2-4

What must the NOI contain?

The NOI, which may be in letter form, should clearly specify:

• the licensee's intention to file or not to file for a license;

• license expiration date (existing license);

• licensee's name and address; 

• project number (or preliminary permit number for an original

license if applicable);

• type of principal project features licensed;

• location of the project;

• plant installed capacity;

• location(s) where information required under 18 CFR 16.6 is

available to the public; and

• the names and mailing addresses of: every county; every city, 

town, or similar local political subdivision in which any part of the 

project is located or has a population of 5,000 or more and is

within 15 miles of the project dam; every irrigation district,

drainage district, or similar special purpose political subdivision; 

and affected Indian tribes. 18 CFR 5.5(b) 18 CFR 16.6(b)

What is the Pre-Application Document and what is its purpose?

Concurrent with filing of the NOI, an applicant must file a preapplication document (PAD), which makes known all existing

engineering, economic, and environmental information relevant to

licensing the project that is reasonably available, or can reasonably 

be obtained with due diligence, when the NOI is filed. The PAD

serves as the foundation for issue identification, study plan

development, and the Commission’s environmental analysis. It will

also set forth the applicant’s proposed schedule for completing

application preparation and filing the application with the

Commission. 18 CFR 5.6

The information contained in the PAD and ultimately produced

throughout the license preparation must be made readily accessible

to the public for review and reproduction at the licensee’s principal 

place of business during regular business hours. The licensee or

potential applicant must make copies of the information, if

requested, and provide those copies either at its principal place of 

business or through the mail. The licensee can require payment of 

reasonable reproduction and postage costs. 

An applicant is not expected to conduct studies to 

develop the PAD. A thorough PAD will permit 

stakeholders to define issues, understand existing 

information, identify information gaps, and better focus 

study requests in the licensing application process.
APPLYING FOR A LICENSE

2-5

An exception to the reimbursement rule is made for the U.S. Fish

and Wildlife Service, the National Marine Fisheries Service, any

state agency responsible for fish and wildlife resources, any affected

federal land managing agencies, and Indian tribes. The required

information must be provided to these entities without charge.

18 CFR 5.2

Anyone can file a petition with the Commission explaining the 

basis for the petitioner's belief that required information is not

being made reasonably available. 18CFR 5.2(d)

What should be included in the PAD?

A potential applicant must include the following information in the

PAD:

! process plan and schedule;

! project location, facilities, and operations (including names,

business address, and phone numbers for each person

authorized to act as an agent); detailed maps of all lands

and waters; 

! detailed description of all existing and proposed project

facilities and components; and

! description of existing environment and impacts with respect

to the following resources:

u geology and soils resources;

u water resources;

u fish and aquatic resources;

u wildlife and botanical resources;

u wetlands, riparian, and littoral habitat;

u rare, threatened, and endangered species;

u recreation and land use; 

u aesthetic resources;

u cultural resources;

u socioeconomic resources;

u tribal resources;

u river basin description;

! a preliminary issues and studies list; and

! summary of contacts.

Specific guidance on the required information for each topic is given

in 18 CFR 5.6. Sensitive cultural resources information should be 
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deleted from information made available to the public in accordance 

with 18 CFR 5.2(c).

2.5.2 WHO SHOULD BE CONSULTED DURING APPLICATION 

PREPARATION?

Consultation with entities other than Commission staff

Prior to filing an application, a potential applicant must consult with 

the relevant federal, state, and interstate resource agencies,

affected Indian tribes, and the public on project design, the impact of

the proposed project, reasonable hydropower alternatives, and

required studies. 18 CFR 5.1(d); 18 CFR 4.38

Some entities that must be consulted include:

! National Marine Fisheries Service (NOAA Fisheries);

! U.S. Fish and Wildlife Service (FWS);

! National Park Service (NPS); 

! U.S. Environmental Protection Agency (EPA);

! the federal agency administering any United States lands or

facilities to be used or occupied by the project;

! any state agency with responsibility for fish, wildlife, and

botanical resources, water quality, coastal zone

management plan consistency certification, shoreline

management, and water resources;

! the State Historic Preservation Officer (SHPO) and Tribal

Historic Preservation Officer (THPO---if applicable);

! local, state, and regional recreation agencies and planning 

commissions;

! local and state zoning agencies;

! any Indian tribe that may be affected by the project; and

! any potentially affected landowners.

Consultation with Commission staff—ex parte communications

An applicant is free and encouraged to seek procedural advice from

Commission staff throughout the licensing process. However, the 

Commission has established rules concerning communications

among persons outside the Commission and the Commission and 

its employees that pertain to the merits of the proceeding. These ex 

parte communication rules govern off-the-record communications

with the Commission in a manner that permits fully informed

A list of federal and state resource agencies, nongovernmental organizations, and tribes that may have an 

interest in the licensing proceedings can be found on the 

Commission’s web page.
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decision making by the Commission while ensuring the integrity and

fairness of the Commission's decisional process. In any contested 

on-the-record proceeding, no person outside the Commission shall 

make or knowingly cause to be made to any decisional employee, 

and no decisional employee shall make or knowingly cause to be

made to any person outside the Commission, any off-the-record 

communication. [18 CFR 385.2201]

Under the ALP, communication between staff and participants

occurs pre-filing, thus off-the-record communications do not present

a problem. Nonetheless, the communications protocol established 

for the proceeding will govern how a record of consultation between

participants and Commission staff will be maintained.

18 CFR 4.34(i)

Under the ILP, the Commission considers the proceeding to have 

begun when it issues the notice of commencement of proceeding 

which is issued within 60 days of when the NOI is filed. Even

though the ex parte rule may not have been triggered, the

regulations require that all communications regarding the merits of

the proceeding must be summarized and put in the record.

18 CFR 5.8(b)(3)(v)

Settlements

Collaborative licensing processes often result in settlement

agreements. Successful teams of interested parties develop

communication patterns that result in cooperative approaches to

problem solving. This cooperative approach happens most often

when trust is established among team members, and the outcome is

often a settlement that is then proposed as the preferred licensing 

alternative. When the process is successful, a common result is

more local control and ownership of the licensing decision, and

ongoing local participation during the term of the license. 

Under Rule 602 (18 CFR 385.602), settlements may be filed by any 

participant at any time during the integrated, traditional, or

alternative licensing processes. Comments on an offer of settlement

may be filed not later than 20 days after the filing of the offer, and 

reply comments may be filed not later than 30 days after the filing of

the offer, unless otherwise provided by the Commission.

The Commission will, where it has an option, include in a license

only those matters included in a settlement that fall within its

jurisdiction. Therefore, the Commission may be supportive of an

entire settlement, but not adopt those elements of a settlement that 

are beyond the Commission’s jurisdiction.

2.5.3 WHAT KIND OF STUDIES MAY BE EXPECTED?

Studies performed for licensing can address a number of subject

areas, but are based on the area’s resource needs and sensitivity, 

and the nature, scope, and effects of the project. Studies are often 

needed to evaluate engineering, economics, and environmental

issues. In the broadest terms, engineering studies for licensing

typically emphasize project operations, safety and condition of the 
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facilities and equipment, and economic evaluations, all leading to a 

decision whether to propose project modifications.

The need for power evaluation should specify the following:

! load requirements and forecasted generating capacity; and

! how the project will:

u stimulate economic growth; 

u support necessary reserve margins;

u provide less expensive power; 

u displace depletable and foreign supplied oil; or

u provide a reliable power source that is owned and controlled

by the applicant and will be used to meet increasing load

requirements and to reduce the applicant’s reliance on an

external power supplier to meet its needs.

Operation and power studies should provide the following

information:

! type of operation – manual or automatic (on-site or remote);

! annual plant factor and dependable capacity;

! average annual energy with minimum, maximum, and mean

recorded flows at the site; flow duration and area-capacity 

curves; estimated hydraulic capacity of units; tailwater rating

curve; and power plant capability vs. head curve;

! resource use and use of power generated;

! power value (capacity and energy); and 

! plans for future developments.

Facility condition assessments should include a cost-effectiveness 

evaluation of upgrading existing equipment, along with an evaluation

of measures taken or planned by the applicant to ensure safe

management, operation, and maintenance of the project.

The safety evaluation should include the following items:

• current engineering assessment sufficient to demonstrate that

project structures are safe and adequate for continued operation,

and that they meet the safety criteria specified in the

Engineering and environmental studies should be 

thoroughly integrated. A review of environmental 

resource values in the project vicinity may dictate 

what scheme of development and operation may be 

most beneficial.
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Commission’s Engineering Guidelines for Evaluation of

Hydropower Projects available on the Commission’s website;

• if the safety of the project structures has been evaluated

pursuant to Part 12 of the Commission’s regulations, a summary

of that evaluation and reference to safety evaluation submittals 

under the Part 12 regulations will suffice;

• a description of existing and planned operation of the project

during floods;

• a description of existing and planned measures taken to ensure 

the safety of operating personnel and the public;

• any proposed modifications to the project that would affect the

Emergency Action Plan or the stability of the structure; and 

• a description of monitoring devices.

Economic studies should provide the following information:

! cost of project power compared to the least cost equivalent 

alternative power;

! sources of economic information assumed such as fuel

costs, escalation rates, growth rates in peak demand, and 

existing and planned generating resources; 

! feasibility of financing a proposed project modification based

upon the size of the economic benefits and the forecasted 

project revenues; 

! estimate of the net present value of the project;

! capital and operations and maintenance costs of project

modifications and all proposed protection, mitigation, and

enhancement measures; and

! an estimate of the cost to prepare the license application 18 

CFR 4.41(e)(9); 18 CFR 4.51(e)(9); 18 CFR 4.61(c)(9).

The environmental studies should concentrate on alternative project

configurations and operations to maximize developmental benefits,

Licensed projects must meet current dam safety 

requirements as defined in the Commission’s 

Engineering Guidelines for Evaluation of Hydropower 

Projects.

Because the Commission’s method of evaluating the 

project economics may differ from the applicant’s, it is 

important to document all assumptions including the year 

basis costs, any escalation factors, and other economic 

parameters used by the applicant to develop costs. 
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minimize adverse environmental effects, and produce valuable

resource benefits. In the environmental report accompanying the

application, an applicant must submit the information required for the

type of project being proposed. In addition, the Commission’s

regulations require an applicant to do any studies and provide any 

information the Commission staff considers necessary or relevant to

determine the project’s effect on the environment and potential

environmental measures. An applicant should attempt to anticipate 

the information needs of a NEPA document and design studies

accordingly. 

Properly conducted environmental studies are those that provide the

applicant, the Commission, and reviewing resource agencies and

tribes clear and substantial information in three primary areas:

! description of the environment affected by the proposed

project and its reasonable alternatives; 

! project effects, both beneficial and adverse; and

! protection, mitigation, and enhancement measures.

This may include the need for studies in some or all of the following 

areas. Water quality should be evaluated and alternatives 

considered that would improve water quality, dissolved oxygen, and

temperature levels and minimize erosion and sedimentation

associated with project operation.

Fisheries studies should evaluate existing resources and alternative

project designs and operations to improve fish habitat and any

needed fish passage.

Recreation studies should be designed to identify current and future

recreational needs and how those needs can be best met. 

Other resources should similarly be assessed to identify resource 

effects and project potentials for satisfying those needs.

The approach to assessing project effects is directed primarily at

describing the existing (baseline) project-related environment and

assessing the beneficial and adverse effects that the proposed 

project and its operation would have on these resources. Potential 

applicants do not have to routinely conduct studies directed at

characterizing resources that existed prior to the original licensing 

and construction of the project. 

Cumulative effect studies are not required of a potential applicant, 

but they will be considered, when appropriate, in the Commission’s 

own environmental document and in the applicant’s Exhibit E under

the ILP. Commission staff may require additional information from 

the applicant to resolve cumulative impact issues. Commission staff

will address and consider cumulative impact issues at original

licensing and relicensing to the fullest extent possible. The

Commission will use the standard Areopener@ license condition to

explore and address cumulative impacts only where such impacts 

were not known at the time of licensing or are the result of changed 

circumstances. 18 CFR 2.23
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2.5.4 WHAT GOES IN THE APPLICATION?

All license applications require certain general information items, an

initial statement, and several specified exhibits. Not all exhibits are 

required for certain types of smaller projects.

The specific contents of a license application depend on the type of

project that is being proposed. The license application content

required for each type of project is specified in detail in the

Commission regulations 18 CFR 5.18, 4.32(a), 4.38(f), 4.41, 4.51, 

4.61, 16.10, and 16.11. Table 2 summarizes the basic content

requirements for each type of project. 

In the case of the integrated or traditional licensing process, the 

environmental report (Exhibit E) must meet the requirements of 18 

CFR 5.18 (b), and 18 CFR 4.38(f), respectively, and as appropriate 

18 CFR 4.41(f), 4.51(f), or 4.61(d), commensurate with the scope of

the project. Additionally, this report must contain specific

information about the affected water course and any designations

under the National Wild and Scenic River System, state wild and

scenic legislation, or the Wilderness Act. An applicant using the

alternative licensing process files a draft environmental assessment

in place of the Exhibit E (see chapter 4 for details).

The license application also must contain various maps and

drawings. All maps and drawings must conform to established

formats, scales, and other specifications. See 18 CFR 4.39 and

4.41(h) for detailed guidance. The Commission has established 

standards and procedures for handling certain maps and drawings it

considers critical energy infrastructure information.

Critical Energy Infrastructure Information

Critical energy infrastructure information (CEII) is information

concerning proposed or existing critical infrastructure (physical or

virtual) that: 

! relates to the production, generation, transmission, or

distribution of energy;

! could be useful to a person planning an attack on critical

infrastructure; 

! is exempt from mandatory disclosure under the Freedom of

Information Act; and 

! gives strategic information beyond the location of the

critical infrastructure.

Examples of hydropower location-related information that the

Commission considers to be CEII include: "(1) general design

drawings of the principal project works (e.g., plan, elevation, profile,

and section of dam and powerplant), such as those found in Exhibit

Although an applicant using the ILP files an Exhibit E, 

the exhibit takes the form and function of a draft 

environmental assessment.
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Table 2. Guide to Application Contents for Each Exhibit in a License Application by Project Type 

PROJECT TYPEa

Application Element

Major Unconstructed

 or Major Modified 

(>5 MW)

Major Project-

 Existing Dam 

(>5 MW)

Minor Water Power 

Project (#1.5 MW), or 

Major Power Project

Existing Dam

 (#5 MW)

Major Unconstructed 

or Major Modified 

(>1.5 MW but < 5 MW)

General Information 4.32(a) 4.32(a) 4.32(a) 4.32(a)

Initial Statement 4.41(a) 4.51(a) 4.61(b) 4.61(b)

Exhibit A Project Description

4.41(b)

Project Description

4.51(b)

Project Description and 

Proposed Operating 

Mode 4.61(c)

Project Description and

Proposed Operating Mode 

4.61(c)

Exhibit B Project Operation and 

Resource Utilization

4.41(c)

Project Operation and 

Resource Utilization

4.51(d)

Not Required Not Required

Exhibit C Proposed Construction 

Schedule 4.41(d)

Construction History 

and Proposed 

Construction 4.51(d)

Not Required Not Required

Exhibit D Statement of Costs 

and Financing 4.41(e)

Statement of Costs 

and Financing 4.51(e)

Not Required Not Required
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Application Element

Major Unconstructed

 or Major Modified 

(>5 MW)

Major Project-

 Existing Dam 

(>5 MW)

Minor Water Power 

Project (#1.5 MW), or 

Major Power Project

Existing Dam

 (#5 MW)

Major Unconstructed 

or Major Modified 

(>1.5 MW but < 5 MW)

Exhibit E

(See Appendix D for 

Guidelines for 

Preparing Exhibit E)

Environmental Report

5.18(b), 4.41(f), 4.38(f)

or draft environmental 

document 4.34(i)

Environmental Report 

5.18(b), 4.51(f) and 

4.38(f) or 16.8(f), or 

draft environmental 

document 4.34(i)

Environmental Report

5.18(b), 4.61(d) and 

4.38(f) or 16.8(f)

or draft environmental 

document 4.34(i)

Environmental Report

5.18(b), 4.41(f), 4.38(f)

or draft environmental 

document 4.34(i)

Exhibit F Design Drawings and

Supporting Design 

Report 4.41(g)

Design Drawings and 

Supporting Design 

Report 4.51(g)

General Drawings

4.61(e)

General Drawings

4.61(e)

Exhibit G Maps of Location, 

Boundary, Federal 

Lands, and Nonfederal 

Land Ownership must be 

GIS based 4.41(h)

Maps of Location, 

Boundary, Federal 

Lands, and Nonfederal 

Land Ownership must 

be GIS based

4.51(h)

Boundary and Project 

Map must be GIS based 

4.61(f)

Boundary and Project Map 

must be GIS based 4.61(f)

Exhibit H N/A Plans and Ability of 

Applicant to Operate 

Project Efficiently for 

relicense 16.10

Plans and Ability of 

Applicant to Operate 

Project Efficiently for 

relicense 16.10

Plans and Ability of 

Applicant to Operate 

Project Efficiently for 

relicense 16.10

a

 Each project type is defined in appendix C, Definitions and Acronyms.
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 F; (2) maps of projects (including location of project works with

respect to water bodies, permanent monuments, or other structures

that can be noted on the map and recognized in the field), such as 

those found in Exhibit G; (3) drawings showing technical details of 

a project, such as plans and specifications, supporting design

reports, Part 12 independent consultant reports, facility details,

electrical transmission systems, and communication and control

center information; (4) locations of critical or vulnerable

components of the project; (5) inundation information; and (6)

global positioning system (GPS) coordinates of any project features

(precise surveyed or GPS coordinates at or above two decimal

points of accuracy of equipment and structures)."

Certain location information is not considered CEII and important to

licensing participants, but should not be posted on the internet: For

example, USGS 7.5 minute topographic maps showing location of 

pipelines, dams, or other above ground facilities, drawings showing

 site or project boundaries, footprints, building locations, and

reservoir extent, and general location maps. Such information is

classified as non-Internet public (NIP) access, and will be available 

in hard copy and through the Commission’s public reference room,

but will not be available for reviewing or downloading from the

Commission’s databases.

Applicants are required to redact CEII from any filing made with

the Commission. Applicants submitting information to the

Commission should identify the information as either public, NIP, 

CEII, or privileged and indicate why it should be treated as such. 

An applicant is strongly encouraged to segregate each type of

information into separate volumes or appendices. An original plus 

the requisite number of copies of both the public and NIP

volumes, if any, should be filed with the Secretary.

Applicants may provide CEII to any person independent of the

Commission’s filing and publication requirements, and are

encouraged to limit distribution to persons who have executed an 

appropriate confidentiality agreement.

18 CFR 4.32(k); 18 CFR 388.113(c); Order No. 2002, para. 428.

If any part of the licensing process requires an applicant to reveal 

CEII, as defined by 18 CFR 388.113(c), to any person, the

applicant shall omit the CEII from the information made available 

and insert the following in its place:

! A statement that CEII is being withheld;

! A brief description of the omitted information that does not

reveal any CEII; and

! This statement: "Procedures for obtaining access to

Critical Energy Infrastructure Information (CEII) may be

found at 18 CFR 388.113. Requests for access to CEII

should be made to the Commission's CEII Coordinator."

18 CFR 4.32(k)
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Additional information about CEII including information on how to 

file a CEII request may be obtained from the Commission’s website

at http://www.ferc.gov/legal/ceii-foia/ceii.asp.

2.5.5 THIRD-PARTY CONTRACTOR PROCESS

The National Energy Policy Act of 1992 allows the Commission to 

permit, at the applicant's request, use of a qualified third-party 

contractor to prepare an EIS for the Commission, with the

Commission establishing the scope of work and procedures.

Applicants for hydropower projects that elect to pay for the

Commission's use of qualified third-party contractors are

contractually responsible for paying the contractor. The 

Commission, however, has sole responsibility for determining the 

scope of work, reviewing and approving the work, and otherwise

managing all third-party contractor activities necessary to complete

the Commission's NEPA document. 

Third-party contracting may be voluntarily implemented at any time

during the consultation process, as part of an alternative or 

integrated process, or after an application has been filed, using the 

following general procedures. 

! The applicant is encouraged to meet with Commission staff

to discuss a potential third-party contract. 

! An applicant must formally request use of the third-party 

contract procedures. At that time, the applicant must

recommend the use of one or more of the qualified thirdparty contractors selected through the following procedure. 

 Applicants will be required to prepare a draft Request for 

Proposal (RFP) for review and approval by the Commission

staff before it is issued. The RFP will be required to include

screening criteria, and an explanation of how the criteria

will be used to select among the contractors who respond 

to the RFP. Subsequently, applicants would issue the

approved RFP and screen all proposals received for

technical adequacy and Organizational Conflict of Interest 

(OCI). The applicant is responsible for reviewing carefully

all OCI materials (submitted for the prime and each

proposed subcontractor as part of each proposal) to

determine whether the candidate is capable of impartially 

performing the environmental services required under the 

third-party contract. The applicant will then submit to

Commission staff the technical and cost proposals and OCI

statements of their three best qualified candidates.

! While staff will give substantial weight to the applicant's

recommendation, staff is ultimately responsible for

selecting the appropriate third-party contractor. 

! The selected third-party contractor will be required to file an

Organizational Conflict of Interest statement (OCI) with the 

Commission in which it certifies that it has no financial or

other interest in the outcome of the project. The

Commission staff will prepare a disclosure statement
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certifying that staff has received and reviewed the OCI and

that the third-party contractor has no financial or other

interest in the project. 

! The Commission staff will initiate a Memorandum of

Agreement (MOA) among the three participants (applicant,

third-party contractor, and Commission staff). If

cooperative agency status is extended to another agency 

for the purpose of preparing the environmental document,

that agency also will sign the MOA. The MOA will detail 

participant responsibilities.

! The applicant and the third-party contractor will determine 

the appropriate form of agreement for payment of the

contractor by the applicant. 

! The Commission staff controls the scope and quality of the

third-party contractor's work. 

Additional information about the third-party contractor process and 

a list of qualified third-party contractors may be obtained from the 

Commission’s website at:

http://www.ferc.gov/industries/hydropower/enviro/thirdparty/tpc.asp.

2.6 HOW DO I FILE?

An original application and 8 copies must be filed with the

Secretary, FERC, 888 First Street, NE, Washington, DC 20426. 

One copy should be served on the Regional Engineer at the

Commission’s regional office for the appropriate region and on

each resource agency, Indian tribe, or member of the public

previously consulted.

18 CFR 5.17(d);18 CFR 4.38(d); 18 CFR 16.8(d)

An applicant must publish a notice twice of the filing of its

application, no later than 14 days after the filing date. The notice 

must be published in a local in a daily or weekly newspaper of

general circulation in which the project is located. The notice must

include the filing date, applicant’s name and address, type of facility

applied for, proposed location, and where the information can be 

obtained. Proof of the notice must be provided to the Commission.

18 CFR 5.17(d); 18 CFR 4.32(b)(6)
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2.7 WHAT HAPPENS AFTER THE

APPLICATION IS FILED?

2.7.1 APPLICATION REVIEW

Tendering Notice

Processing an application begins when the Commission issues a 

public notice of the tendering of the application for filing. The

tendering notice will be published in the Federal Register, local

newspapers, and directly with tribes and agencies. The content of 

the notice will vary slightly among the application processes. 

Regardless of the process, the notice will contain a preliminary

schedule for processing the application.

18 CFR 5.19; 18 CFR 4.32(b)(7)

The tendering notice will also establish procedures and the

deadline for submission of final amendments and a schedule for

processing applications.4

18 CFR 5.19(a); 18 CFR 16.9(d)(2)

In the case of the traditional licensing process, the notice will notify

agencies, tribes, and other persons that they have 60 days to

identify additional scientific studies that they believe is necessary to

 

4

All Commission notices include a clear title to indicate the type 

of notice, the deadline date for responses, and whether any

federal lands are located within the project boundaries.

form an adequate factual basis for completing an analysis of the

application on its merits (see Chapter 4 for more details). 

18 CFR 4.32(b)(7)

No similar provision is provided in the integrated or alternative

licensing processes. Additional study requests are most often

asked for during the second stage of consultation in the alternative

licensing process, and thus are not requested again in the

Commission’s tendering notice.

Notice of Application Deficiencies

Within 30 days of filing the application, the Commission will notify 

the applicant by letter, or in the case of minor deficiencies, by

telephone, describing any deficiencies in the application. The letter

will establish a deadline for deficiency correction, generally 90 days

after the date of the letter.

18 CFR 5.2(a)(2); 18 CFR 4.32(e)(1)

Last Date for Final Amendments

An applicant must make any final amendments to its application no

later than the date specified in the Commission processing

deadline notice or not later than 30 days after issuance of a ready 

for environmental analysis notice.

18 CFR 5.27(d); 18 CFR 16.9(c)

Occasionally, a filed application must be amended during

application processing and before license issuance. If an applicant:
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! amends its filed license application to change the status or 

identity of the applicant; or

! materially amends the proposed plans of development in a

fundamental and significant manner;

Then,

! the official date of acceptance of the application becomes 

the date on which the amendment is filed.

Further, an application amended in these ways is considered a new

filing for:

! the purpose of determining its timeliness with respect to

filing competing applications; deciding among competing 

applications; and

! reissuing public notice of the application.

Additionally, for a material amendment, the applicant must comply 

with the pre-filing consultation requirements described in chapters 3

(integrated licensing process), 4 (traditional process), or 5

(alternative licensing process) of the licensing handbook. In

addition, when an amendment is filed that would significantly

change the proposed project development plans, any resource

agency, Indian tribe, or member of the public may modify the

recommendations, terms and conditions, or mandatory

prescriptions it previously submitted to the Commission. Finally, if 

the Commission’s staff determines that the change in the proposed

plan of development would have a material adverse effect on the 

water quality in the project’s discharge, then a new request for

water quality certification is required. 18 CFR 4.35

Definition of the terms: material amendment; change in the status 

of an applicant; and change in the identity of an applicant are found

in the regulations. 18 CFR 4.35(f)

18 CFR 4.35 does not apply to the following circumstances:

! corrections of deficiencies identified by the Commission in 

reviewing the filed application;

! any amendment made by a state or municipality in a

competitive situation to make the proposed plan of

development as well adapted as that of a nonpriority

applicant; and

! any amendment made to satisfy either requests of resource

agencies or tribes as a result of consultation, or concerns of

the Commission.

Notice of Application Acceptance or Rejection

The Commission will notify the applicant by letter if the application 

has been accepted for filing. The acceptance letter may include

requests for additional information.

18 CFR 4.32(d)(1);18 CFR 5.20, 5.22;18 CFR 16.9(d)
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The Commission can reject the application as patently deficient,

with the understanding that the application cannot be refiled after 

the 24-month deadline for filing. This occurs if the Commission

determines that the application patently fails to comply with basic 

regulatory requirements of content (18 CFR 4.41, 4.51, or 4.61; 18

CFR 5.18) and pre-filing consultation (18 CFR 4.38(f); 18 CFR

16.8(f); 18 CFR 5.6-5.19).

If the application is inadequate but not patently deficient, the

Commission will issue a deficiency letter. The Commission will

notify the applicant of any deficiencies, and the applicant will be

afforded an appropriate period of time in which to correct

deficiencies. 

The applicant is provided an appropriate period of time not to

exceed 90 days, in which to correct deficiencies and to provide the 

requested additional information.

18 CFR 4.32(e)(1); 18 CFR 5.20

Ready for EA Notice

Under the integrated and traditional licensing processes, the

Commission will publish a ready for environment assessment 

(REA) notice requesting comments, recommendations, terms and 

conditions, and prescriptions once it has determined that all studies

have been completed and the record is complete to conduct its

environmental analysis. Under the ILP the notice will be issued

concurrently with the notice accepting the licensing application. 

After the close of the comment period, the Commission then

prepares the NEPA document typically with a draft for public

comment. All comments, including mandatory conditions, must be 

filed no later than 60 days after issuance of the REA notice. All

reply comments by applicants must be filed within 105 days of that

notice. 18 CFR 4.34(b); 18 CFR 5.22

Under an alternative process where the applicant files a

preliminary draft EA, or preliminary draft EIS prepared by a thirdparty contractor, no REA notice need be given by the Commission.

Instead, the Commission will issue a notice requesting that

agencies, affected Indian Tribes, and interested entities file final

comments, recommendations, terms and condition, and

prescriptions. 18 CFR 4.34.(i)

Request for 401 Certification

To comply with Section 401(a)(1) of the Clean Water Act (CWA), 

the Commission requires that within 60 days from the date of

issuance of the REA notice, the applicant must file a copy of the

water quality certification; a copy of the request for certification,

including proof of the date on which the certifying agency received 

the water quality certification request; or evidence of waiver of

water quality certification. 18 CFR 4.34(b)(5)(i); 18 CFR 5.23(b)

2.7.2 ENVIRONMENTAL REVIEW

The National Environmental Policy Act (NEPA) requires federal

agencies to evaluate the effects of their actions on the

environment, disclose those effects, develop possible protection, 
APPLYING FOR A LICENSE

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mitigation, and enhancement measures to minimize those effects,

and make a finding that the action is:

! not a major federal action significantly affecting the quality

of the human environment; or

! a major federal action significantly affecting the quality of 

the human environment, and therefore requires an EIS.

The Commission will scope the issues and level of analysis

required for its licensing action by holding public meetings to solicit

comments; or it may, in the case of less complex and controversial 

projects, solicit comments in writing only. The timing of these

meetings will depend on the licensing process.

The Commission, in light of comments and responses received in 

response to the REA notice and during scoping, evaluates the

license application to determine how it will be processed. If the

Commission determines that an EA is adequate and that a draft 

EA is not required, the Commission will issue a single EA for

comment. No additional EA will be issued. Comments on the EA

will be addressed in any order issuing license. Otherwise, the

Commission will issue a draft EA or EIS for comment and then

prepare a final EA or EIS. The integrated licensing process has 

defined timeframes for completing NEPA documents; the

traditional and alternative licensing processes do not have defined

timeframes. 18 CFR 5.24 and 5.25

Comments on the single EA or draft environmental document,

including comments in response to the Commission’s preliminary 

determination with respect to fish and wildlife agency

recommendations must be filed no later than the time (30 to 60

days) specified in the notice of availability of the environmental

documents. Timeframes for modifying terms and conditions are 

specific to the licensing process and are discussed in their

respective chapters. 18 CFR 5.24, 5.25

2.7.3 SECTION 10(J) PROCESSES

The Commission is required under Section 10(j) of the FPA to

include in any license fish and wildlife measures for the protection,

mitigation of damages to, and enhancement of fish and wildlife 

resources potentially affected by the project based on 

recommendations from the National Marine Fisheries Service, the 

U.S. Fish and Wildlife Service, and state fish and wildlife agencies. 

The Commission will include those recommendedmeasures unless

it believes that they are inconsistent with the FPA or other

applicable law. Submission of recommendations by fish and

wildlife agencies in response to the REA notice marks the

beginning of the process under Section 10(j) of the FPA.

18 CFR 4.34(e)(1); 18 CFR 5.26(a)

In connection with its environmental review of an application for

license, the Commission will analyze all recommended conditions

timely filed by fish and wildlife agencies. The agency must

specifically identify and explain the recommendations and the

relevant resource goals and objectives and their evidentiary or legal
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basis. Commission staff may seek clarification of any

recommendation from the appropriate fish and wildlife agency. If 

Commission staff finds any recommendation inconsistent with the 

Federal Power Act or other applicable law, the staff will make a

preliminary determination, after which the staff shall attempt to

reach with the agencies a mutually acceptable resolution of any

such inconsistency. 18 CFR 4.34(e); 18 CFR 5.26(b)

Any entity, affected resource agency, or Indian tribe may file

comments in response to the preliminary determination of

inconsistency within the allotted time frame. A fish and wildlife

agency may request a meeting, teleconference, or other procedure

to attempt to resolve any preliminary determination of

inconsistency. The Commission staff will attempt to resolve the

differences with the resource agencies, giving due weight to the

expertise and responsibilities of the agencies.

18 CFR 4.34(e) (3) and (4); 18 CFR 5.26(c) and (d)

The Commission will provide notice of any meeting, teleconference,

or other additional procedure at least 15 days in advance. The

Commission will schedule any meeting, teleconference, or

additional procedure within 90 days of the date of the preliminary 

determination of inconsistency.

The Commission is ultimately responsible for ensuring that each

license contains conditions that adequately protect, mitigate for

damages to, and enhance fish and wildlife resources in the project

area. If the Commission decides to use its own conditions in lieu of

those recommended by the agencies, then the Commission must 

be prepared to demonstrate that: 18 CFR 4.34(e)(5); 18 5.26(d)

! the agency recommendation is inconsistent with the

purpose of the FPA or other applicable law; and

! the license conditions selected by the Commission

adequately protect fish and wildlife.

2.7.4 LICENSE ISSUANCE AND MONITORING OF TERMS AND 

CONDITIONS

The final step in the licensing process is the issuance of the

Commission’s decision on the license, which it makes as

expeditiously as possible, consistent with its statutory

responsibilities. In the case of an existing license, the target date 

for issuance of a relicensing decision is the expiration date of the 

original license. If processing extends beyond this date, annual

licenses will be issued to the licensee until action on the new 

license is taken. 18 CFR 16.18

The applicant can help the 10(j) dispute resolution 

process by presenting in its license application a 

complete, organized, and well reasoned justification 

for its proposed protection, mitigation, and

enhancement measures, including the cost of the 

measures and how the measures respond to resource 

needs.
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The license order, which contains the terms and conditions under 

which the project must be operated, is issued by either the

Commission or its delegate.

A license order typically contains the following:

! a description of the project works licensed;

! a description of the project operation;

! a discussion and findings of the issues raised in the

proceeding

! term of license

! environmental conditions;

! engineering conditions; and

! administrative compliance conditions.

The license becomes final 30 days after the order for a license is 

issued, unless requests for rehearings and subsequent appeals are

filed. Even if a request for rehearing and judicial review is filed, the

license goes into effect when issued, unless the Commission

orders otherwise.

If the Commission's review and processing of an application for a 

new major license is not completed at the time of expiration of the 

original license, then the licensee is issued a statutorily mandated 

annual license (extending the terms of the expired license) until the

relicensing proceeding is concluded. The existing licensee is

obligated to continue operating the project as long as annual

licenses are received.

After licensing or relicensing, the Commission administers the

license through its ongoing monitoring of the licensee's compliance

with the terms and conditions of the license. The Division of

Hydropower Administration and Compliance (DHAC) has the

primary responsibility for this task. 

The Commission is empowered to monitor and investigate

compliance and to issue formal orders directing compliance with

license terms and conditions. FPA Section 31

Additionally, the Commission can impose appropriate fines or

revoke a license when it can be shown that the licensee violated a 

license or compliance order. FPA Section 31

If the Commission orders the transfer of a project to 

another licensee, the existing licensee is owed 

compensation equal to the net investment in the 

project plus severance damages.
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2.8 WHAT DOES THE COMMISSION 

CONSIDER IN ITS LICENSING 

DECISIONS?

When the Commission receives one or more acceptable

applications for a license or relicense, it reviews and then evaluates

the proposal(s) within the NEPA framework and according to a set 

of nine factors established by Section 15 of the FPA.

18 CFR 16.13

The Commission:

(1) must evaluate and balance the various public interest

issues to ensure the best comprehensive use of the

waterway. FPA Section 10(a)(1) and 4(e)

The Commission must also find that the applicant: 

(2) can comply with the terms and conditions of a license;

(3) can manage and operate the project safely;

(4) can operate the project to provide efficient and reliable

service;

(5) can demonstrate its need for project power;

(6) has adequate existing and proposed transmission facilities;

and

(7) will operate and maintain the project in a cost-effective 

manner. FPA Section 15(a)(2)

Also, in the case of a relicense application, the Commission will

consider the following: 

(8) the licensee’s record of compliance with the terms and

conditions for the existing license, and

(9) the actions taken by the licensee related to the project that 

affect the public. FPA Section 15(a)(3)

2.8.1 COMPREHENSIVE DEVELOPMENT PROVISIONS

FPA Sections 10(a) and 4(e)

For a project to receive a license or relicense, the Commission

must judge that the project licensed will be best adapted to a

comprehensive plan for the waterway that takes into account the

following:

! potential benefits to interstate or foreign commerce;

! utilization of the site’s hydroelectric potential;

! adequate protection, mitigation, and enhancement of fish

and wildlife (including spawning grounds and habitat); and
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! other beneficial public uses, including energy conservation,

irrigation, flood control, water supply, recreational

opportunities, and other aspects of environmental quality.

The Commission is required by law to give equal consideration to 

both developmental and nondevelopmental values. Equal

consideration does not mean treating all those purposes equally or

requiring that an equal amount of money be spent on each, but it 

does mean that developmental and environmental values must be 

given the same level of reflection and thorough evaluation in

determining that the project licensed is best adapted. In balancing 

developmental and nondevelopmental objectives, the Commission 

will consider the relative value of the existing power generation,

flood control, and other potential developmental objectives in

relation to nondevelopmental objectives such as present and future

needs for improved water quality, recreation, fish, wildlife, and other

aspects of environmental quality.

Several specific considerations guide the Commission’s evaluation

of whether a project is best adapted to a comprehensive plan for 

the waterway:

! The extent to which the project is consistent with qualifying 

comprehensive water resource plans; 

To qualify as a Acomprehensive plan,” a plan must: 

 18 CFR 2.19

(1) be prepared by a federal or state agency

authorized to conduct such planning;

(2) be a comprehensive study of one or more of the

beneficial uses of a waterway or waterways;

(3) include a description of the standards, data, and

methodologies used; and

(4) be filed with the Commission. 

Commission staff will include a list of relevant

comprehensive plans in any scoping document issued 

during a licensing proceeding. If a federal, state, or

regional plan does not qualify as a comprehensive plan, the

Commission will still consider it in its licensing decision, as 

it considers all relevant studies and recommendations. The

weight accorded any plan or recommendation depends on 

the quality and extent of documentation that supports it and

the number of public uses considered. A current list of

Commission-approved Comprehensive Plans is available

from the Commission website.

! Recommendations of federal and state agencies with

expertise on the resource potentially affected,

recommendations of Indian tribes affected by the project, 

and comments from other members of the public; and
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! The applicant’s electricity consumption efficiency

improvement program. This consideration only comes into 

play if the applicant is a state, municipality, or electric utility.

2.8.2 PLANS AND ABILITY OF THE APPLICANT TO COMPLY 

WITH THE TERMS AND CONDITIONS OF A LICENSE 

 FPA Section 15(a)(2)(A)

License terms and conditions require the start and finish of project 

construction within specified time periods and may include

requirements for post-license studies and additional resource

protection measures. Therefore, the Commission may evaluate the

following aspects:

! soundness of the applicant’s project financing plan and the

applicant’s ability to secure financing if a license is issued;

! applicant’s personnel, facilities, and past experience in

hydroelectric development or similar endeavors related to 

the specific license terms and conditions; and 

! whether an applicant and/or its contractors have personnel

adequate in number and training to oversee project

construction and to competently operate and maintain the 

project.

2.8.3 APPLICANT’S PLAN TO MANAGE, OPERATE, AND 

MAINTAIN THE PROJECT SAFELY

 FPA Section 15(a)(2)(B)

This factor encompasses an examination of all safety-related 

aspects of an applicant’s proposal, including the following:

! compliance with the Commission’s Engineering Guidelines

for the Evaluation of Hydropower Projects, prepared by the 

Commission staff;

! plans to improve safety at the site;

! plans for training project personnel as they may affect

safety;

! the safety ramifications of the applicant’s proposed mode of

operation;

! plans to protect employees and the general public; and 

! plans to comply with the Commission’s dam safety

requirements.

In the case of an existing licensee, the Commission will use the

applicant’s past safety record as an indication of whether the

licensee is likely to carry out its plans to manage, operate, and

maintain the project safely.
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2.8.4 APPLICANT’S PLAN TO MANAGE, OPERATE, AND 

MAINTAIN THE PROJECT TO PROVIDE EFFICIENT AND 

RELIABLE ELECTRIC SERVICE

FPA Section 15(a)(2)(C)

The Commission will consider various aspects of the applicant’s

project reliability and system efficiency, such as the following:

! plans and abilities to maintain the project to minimize

downtime, train operation and maintenance personnel,

maximize generation at the site, and automate certain 

project operations; and 

! plans to coordinate the operation of the proposed project

with other projects on the same stream to maximize

generation within the context of overall system efficiency.

2.8.5 NEED OF THE APPLICANT FOR THE ELECTRICITY 

GENERATED BY THE PROJECT

FPA Section 15(a)(2)(D)

The need for power criterion is broad. The Commission may take 

into account the cost and availability of alternative sources of power

and the comparative effects of that power on the applicant’s

operating and load characteristics, on the communities served by 

the project, and on providers of alternative sources of power.

Alternatives

The Commission will consider whether there is a reasonable

alternative source of power that an applicant could use to replace 

the power generated by the project being considered for

relicensing, whether any increased costs would be associated with 

the use of such an alternative, and the alternative’s potential impact

on the environment. The Commission will consider any reasonable

type of alternative, including purchasing power, constructing new 

operating facilities, returning previously retired capacity to service,

using excess reserve capacity, and utilizing conservation

measures.

When the Commission identifies the lowest-cost, reasonably 

available alternative the applicant can use to replace the power

generated by the project under consideration for relicensing,

estimates will be made of the short-term and long-term costs to the 

applicant and its customers of relying on that alternative. This cost

analysis will include any payments associated with the transfer of 

the project from the existing licensee and any potential cost impact

on the existing licensee due to the loss of the project.

Effect on Communities

The Commission will review the effect of the use of alternative

sources of power on recipient communities by comparing the

aggregate costs and benefits to the customers of, and communities 

served by, each alternative source of power.
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Effect on Providers of Alternative Power

In the case of a power purchase alternative, the scope of the

Commission’s assessment will include the effect on the provider of

the alternative power and on that provider’s customers and system.

Effect on Operating and Load Characteristics

The Commission will consider whether the project does or will

provide the applicant with needed and otherwise unavailable

peaking capacity, whether the project power does or will provide

reliability benefits not otherwise available, and whether the load

characteristics of the applicant dictate that a particular type of

resource be used to meet its load. In the case of an existing

licensee that uses the project’s power for its own industrial

operations, the Commission will consider the impact of the

licensee’s obtaining or failing to obtain the relicense on the

operations and efficiency of the industrial facility and on the

facility’s workers and the related community.

2.8.6 APPLICANT’S TRANSMISSION SERVICES 

FPA Section 15(a)(2)(E)

The Commission is required to consider system reliability, costs, 

and other technical and economic factors associated with an

applicant’s existing and planned transmission services related to

the project.

Among other considerations, the Commission will review an

applicant’s plans to maintain and upgrade relevant transmission

facilities and will assess whether obtaining a relicense is likely to 

forestall the need to build additional transmission lines in other

segments of its system. However, the fact that an applicant does 

not have a transmission system is not a criterion in comparing

competing relicense proposals.

2.8.7 APPLICANT’S ACHIEVEMENT OF COSTEFFECTIVENESS

FPA Section 15(a)(2)(F)

The Commission will assess whether the plan proposed by the

applicant is cost-effective, achieving an appropriate balance of

project purposes at reasonable cost.

The final two factors relate only to an applicant who is the existing 

project licensee.

2.8.8 APPLICANT’S RECORD OF COMPLIANCE 

 FPA Section 15(a)(3)(A)

The Commission will evaluate a licensee’s record of compliance

with the terms and conditions of the existing license. 

2.8.9 ACTIONS TAKEN BY THE APPLICANT RELATED TO THE 

PROJECT AFFECTING THE PUBLIC

FPA Section 15(a)(3)(B)

The Commission’s evaluation of compliance and determination for

whether the existing licensee has operated the project in the public 

interest will be affected by both the positive and negative aspects of

a licensee’s operating history. Among such aspects are the

following:
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! compliance with the Commission’s general policies on

recreational use of project land and waters;

! licensee’s cooperation with appropriate resource agencies 

in lessening the project’s detrimental impact on fish,

wildlife, and other resources;

! setting aside land adjacent to the project for future

environmental purposes;

! willingness to adopt measures ensuring the safety of the

public;

! number of license compliance violations, length of time

violations continued, and diligence with which violations

were addressed;

! handling of complaints presented by the public;

! operation of the project for maximum efficiency and overall

benefit to the applicant’s electrical system; and 

! maintenance of the project’s nonpower facilities and

resources, such as recreational facilities and public access.

If the existing licensee is an applicant, the Commission cannot

award the relicense to a competing applicant on the basis of

insignificant differences among the applications, unless the existing

licensee’s performance during the license term has been poor. 

There are two principal aspects of performance:

! Record of compliance with the terms and conditions of the 

existing license; and

! Actions related to the project (either positive or negative)

that have affected the public. 

Congress specified that the plans of an applicant concerning fish 

and wildlife will not be subject to a comparative evaluation. When 

applicants propose different schemes of development for the same

project, the Commission must determine whether the protection,

mitigative, and enhancement measures of each proposal are

adequate under the circumstances of that specific proposal. The 

Commission will specify conditions concerning fish and wildlife in 

the issued license.
INTEGRATED LICENSING PROCESS

3-1

3.0 THE INTEGRATED

LICENSING PROCESS5

This chapter describes the major steps in the integrated licensing 

process (figure 1), which may be used to obtain an original license,

a new license for an existing project subject to sections 14 and 15 

of the FPA, or subsequent license. 18 CFR 5.1

Accompanying each discussion are the appropriate regulatory

citations for reference in boldface type next to the guidelines. Also 

see table 2 in chapter 2 for additional information regarding the

contents of applications for a license specific to size and type of

project. 

This handbook is to be used as guidance. The regulations cited

contain the specific rules governing each aspect of the licensing

process.

 

5 Effective October 23, 2003, an applicant can choose to use 

this process, the traditional licensing process, or, with 

approval the alternative licensing process. Effective July 23, 

2005, all applications must follow the integrated licensing 

process unless they have received the Commission’s 

approval to use the traditional or alternative processes subject 

to 18 CFR 5.6. 

3.1 STEP 1: DECISION TO FILE AND 

INITIAL ACTIONS

The licensing process begins when an applicant for a new,

subsequent, or original license files its NOI and a Pre-Application 

Document (PAD) (see Chapter 2 for details). The NOI and PAD

must be filed at least 5 years, but not more than 5.5 years before an

existing license expires. The NOI and PAD must be distributed to 

federal and state resource agencies, Indian tribes, and members of

the public likely to be interested in the proceeding.

The Commission also encourages applicants, if appropriate, to

request at this time to be designated the Commission’s non-federal 

representative for purposes of conducting consultation pursuant to 

Section 7 of the Endangered Species Act (ESA), Section 305(b) of 

the Magnuson-Stevens Fishery Conservation and Management Act,

and Section 106 of the National Historic Preservation Act (NHPA). 

18 CFR 5.5(e); ESA: 50 CFR; Magnuson-Stevens:

50 CFR 600.920; NHPA: 36 CFR 800.2
INTEGRATED LICENSING PROCESS

3-2

Figure 1. Integrated Licensing Process
INTEGRATED LICENSING PROCESS

3-3

3.2 STEP 2: CONSULTATION,

SCOPING, AND STUDY PLAN 

DEVELOPMENT

3.2.1 CONSULTATION, SCOPING, AND COMMENCEMENT OF 

PROCEEDINGS

In the integrated licensing process, pre-filing consultation is

conducted concurrently with the Commission’s NEPA scoping

process. The filing of the NOI and PAD begins the pre-filing 

consultation, and sets in motion the Commission’s scoping and

tribal consultation efforts. A proposed date and location for the

scoping meeting must be included in the PAD.

18 CFR 5.5; 18 CFR 5.6

Within 60 days of filing the NOI and PAD, the Commission will issue

a notice of commencement of proceeding. This notice makes

known:

! the applicant’s intent to file a license application;

! initiation by the Commission of informal consultation under 

Section 7 of the ESA, Section 305(b) of the MagnusonStevens Fishery Conservation and Management Act, and

Section 106 of the National Historic Preservation Act, and, if

applicable, designation of the applicant as the

Commission’s non-federal representative.

! the filing of the PAD;

! the commencement of the proceeding;

! the time frame for providing comments on the PAD

(including the proposed process plan and schedule);

! the potential for other federal or state agencies or Indian

tribes to request to be cooperating agencies for purposes of

developing an environmental document; 

! the Commission’s intent with respect to preparation of an

EA or EIS; and

! the date, time, and place of the public scoping meeting and

site visit (to be held within 30 days of the notice).

18 CFR 5.8; 18 CFR 4.38

Where applicable, the Commission will also make known its

decision on any request to use the traditional or alternative licensing

process. 18 CFR 5.8 (b)(1)

Concurrently, the Commission staff will issue Scoping Document 1,

which identifies staff’s preliminary list of issues to be addressed in 

A complete and thorough PAD will promote and focus 

issue identification and the development of study 

plans. 
INTEGRATED LICENSING PROCESS

3-4

its NEPA analysis, the level of analysis required, qualifying Federal,

state, and tribal comprehensive waterway plans that would be

considered in the analysis, and a process plan and schedule for

processing the application.

The purpose of the scoping meeting and site visit is to:

! initiate issues scoping pursuant to NEPA;

! review and discuss existing conditions and resource

management objectives;

! review and discuss existing information and make

preliminary identification of information and study needs;

! review, discuss, and finalize the process plan and schedule 

for pre-filing activity; and

! discuss the appropriateness of any federal or state agency 

or Indian tribe acting as a cooperating agency for

development of an environmental document pursuant to

NEPA.

3.2.2 TRIBAL CONSULTATION

The Commission’s policy statement, issued July 23, 2003, commits

to promoting a government-to-government relationship with

federally-recognized tribes potentially affected by a licensing

proceeding. A meeting shall be held no later than 30 days following

the filing of the NOI between Commission staff and each Indian

tribe likely to be affected by a licensing action, if the Indian tribe

agrees to such a meeting. The purpose of the meeting is to assure 

tribal issues and interests are known and considered by the

Commission in its licensing decision and to facilitate the Indian

tribe’s participation in the ILP. 18 CFR 5.7

3.2.3 COMMENTS AND STUDY REQUESTS

Not later than 60 days after the Commission’s notice of

commencement of proceeding and scoping, interested resource

agencies, Indian tribes, and members of the publicmust provide the

Commission with written comments on the PAD and SD1. 

Comments must be accompanied by information needs and study 

requests, and should include information and studies needed for

The process plan is an essential part of the integrated 

licensing process as it incorporates and maximizes 

coordination of federal, state, and tribal permitting and 

certification processes with the Commission’s 

licensing process to ensure process efficiency.

An important outcome of consultation is an 

understanding of the agencies’, tribe’s, and public’s 

present and future resource goals and management 

objectives for the area in which the project is located.
INTEGRATED LICENSING PROCESS

3-5

consultation under Section 7 of the ESA and water quality

certification under section 401 of the Clean Water Act. 

Study requests must be based on the following criteria and include 

an explanation for each:

! describe the goals and objectives of each study proposal

and the information to be obtained;

! explain the relevant resource management goals of the

agencies or Indian tribes with jurisdiction over the resource 

to be studied;

! if the requester is not a resource agency, explain any

relevant public interest considerations in regard to the

proposed study;

! describe existing information concerning the subject of the 

study proposal, and the need for more information;

! explain the nexus between project operations and effects

(direct, indirect, and/or cumulative) on the resource to be

studied, and how the study results would inform the

development of license requirements;

! explain how the study methodology is consistent with

generally accepted practice in the scientific community or as

appropriate, considers relevant tribal values and knowledge;

and

! describe consideration of level of effort and cost and why

the applicant’s proposed alternative studies would not be

sufficient to meet the stated information needs.

18 CFR 5.9(b)

Within 45 days following the deadline for filing scoping comments, 

the Commission staff shall, if necessary, issue a revised scoping

document---Scoping Document 2---that addresses comments on the

scope of issues and analysis. 18 CFR 5.10

3.2.4 PURPA BENEFITS

Congress enacted the Public Utility Regulatory Policies Act of 1978

(PURPA), 16 U.S.C. § 2601 et seq., “to promote long-term 

economic growth by reducing the nation’s reliance on oil and gas, to

encourage the development of alternative energy sources and

thereby to combat a nationwide energy crisis.” If a potential

applicant has stated that it intends to seek PURPA benefits, fish 

and wildlife agency comments on the PAD must also provide the

potential applicant with a reasonable estimate of the total costs the 

agency anticipates it will incur and set mandatory terms and

conditions for the proposed project. An agency may provide a

potential applicant with an updated estimate as it deems necessary.

If it believes that its most recent estimate will be exceeded by more 

than 25 percent, it must supply the potential applicant with a new 

estimate and submit a copy to the Commission. 18 CFR 5.9(c)
INTEGRATED LICENSING PROCESS

3-6

3.2.5 STUDY PLAN DEVELOPMENT

Based on the scope of issues and study requests identified during 

scoping, the applicant must prepare and file a proposed study plan.

The plan shall be filed within 45 days of the close of the 60-day

comment period provided in the notice of commencement of

proceeding and scoping. The applicant’s proposed study plan must

include with respect to each study:

• a detailed description of the study and the methodology to be 

used;

• a schedule for conducting the study;

• provisions for periodic progress reports, including the manner

and extent to which information will be shared; and sufficient

time for technical review of the analysis and results;

• an explanation as to why it did not adopt a requested study,

with reference to the criteria set forth in section 5.9(b); and

• provisions for the initial and updated study reports provided for 

in section 5.15.

Like the study criteria for agency and tribal study requests, an

applicant’s proposed study plan must also:

• describe the goals and objectives of each study and the

information to be obtained;

• address any known resource management goals of the

agencies or Indian tribes with jurisdiction over the resource to 

be studied;

• describe existing information and need for additional

information;

• explain the nexus between project operations and effects

(direct, indirect, and cumulative) on the resource;

• explain how the study methods (including data collection and

analysis techniques, or objectively quantified information, and a

schedule including appropriate field seasons and duration) is

consistent with generally accepted practice in the scientific

community, or as appropriate, considers known tribal interests;

and

• describe the level of effort and cost, as applicable.

18 CFR 5.11

3.2.6 STUDY PLAN MEETINGS AND COMMENTS ON 

PROPOSED STUDY PLAN

The applicant’s proposed study plan must provide for study plan

meetings to discuss its study proposals and try to resolve any

outstanding issues with respect to the proposed study plan. The

meetings must be held no later than 30 days after the deadline date

for filing the proposed study plan with the Commission. 

 18 CFR 5.11(e)
INTEGRATED LICENSING PROCESS

3-7

Interested agencies, Indian tribes, or members of the public have 90

days to file comments after the proposed study plan is filed. Within 

this 90 day period, the agencies, tribes, and public should work with

the applicant to resolve study disputes (as described above). Any

filed comments should include any revised information or study

requests, as well as, an explanation of any study plan concerns and

accommodations worked out with the applicant. 18 CFR 5.12

3.2.7 STUDY PLAN DETERMINATION

Within 30 days from the close of the comment period on the

proposed study plan, the applicant must file a revised study plan for

Commission approval. The revised study plan shall include the

comments provided on the proposed study plan and a description of

the efforts made to resolve differences over study requests. 

Interested agencies, Indian tribes, or members of the public have 15

days to file comments after the revised study plan is filed. Within 30

days from the filing of a revised study plan, the Director of the Office

of Energy Projects will issue a study plan determination that 

approves a study plan with any needed modifications determined to

be necessary in light of the record. The Director will explain its

decision on each dispute in light of the study criteria, and applicable 

Commission policies and practices.

If no notice of study dispute is filed within 20 days of the

determination, the study plan shall be deemed to be approved, and

the applicant shall proceed with the approved studies.

18 CFR 5.13 

3.2.8 FORMAL STUDY DISPUTE RESOLUTION

The Commission’s study plan determination represents the

culmination of an intensive consultation process geared toward

informally resolving study disputes between an applicant and 

agencies, tribes and the public. 

Because agencies with mandatory conditioning authority under 

sections 4(e) and 18 of the FPA and agencies and tribes with

mandatory conditioning authority under section 401 of the Clean

A key focus of the ILP is early resolution of study 

needs. To achieve this, the process provides for the 

applicant, agencies, tribes, public, and Commission 

staff to work through information needs in an informal 

manner within defined time limits.

If a potential applicant fails to conduct a study as 

required by the Director’s study plan determination, its 

license application may be considered deficient.

Applicants should make every effort to resolve study 

disputes during the informal consultation process.
INTEGRATED LICENSING PROCESS

3-8

Water Act must make reasoned decisions based on substantial

evidence, there may arise disputes between these agencies and

tribes and the Commission over studies needed to develop an

evidentiary record to support their recommendations. Therefore, 

these agencies may request the use of a formal dispute resolution

process. The formal dispute resolution process must be concluded 

by 70 days from the filing of the notice requesting formal dispute

resolution.

Within 20 days of the notice of study plan determination, any federal

agency or Tribe with authority to provide mandatory conditions on a

license may file a notice of study dispute with respect to studies

pertaining directly to the exercise of their authorities under sections

4(e) and 18 of the FPA or section 401 of the Clean Water Act. 

Within 20 days of a notice of study dispute, the Commission will

assemble a three person dispute-resolution panel(s) consisting of

! a person from the Commission staff not otherwise involved 

in the proceeding who shall serve as the panel chair;

! a person designated by the federal or state agency or

Indian tribe that filed the dispute who is not otherwise 

involved in the proceeding; and

! a third person selected by the other two panelists from a

pre-established list of persons with expertise in the resource

area.

Within 25 days of the notice of study dispute, the applicant may file 

with the Commission comments and information regarding the

dispute.

Prior to engaging in deliberative meetings, the panel shall hold a

technical conference for the purpose of clarifying the matters in

dispute with reference to the study criteria. The meetings will be

open to all the participants. 

Within 50 days following the notice of study dispute, the panel shall

make and deliver its finding and recommendations to the Director of

the Office of Energy Projects. The panel shall also file all of the

materials available to the panel. Once the panel has concluded, the

Director of the Office of Energy Projects will review the panel’s

recommendations and issue a written determination no later than 70

days from the date of filing the notice of study dispute.

18 CFR 5.14

Studies or portions of study plans approved in the 

study plan determination that are not the subject of a 

notice of study dispute shall be deemed approved, and 

the applicant shall proceed with those studies or 

portions thereof. 18 CFR 5.14(c)

The panel’s findings and recommendations must be 

based on the record in the proceeding.
INTEGRATED LICENSING PROCESS

3-9

3.3 STEP 3: STUDIES AND 

PRELIMINARY LICENSING 

PROPOSAL PREPARATION

3.3.1 CONDUCT OF STUDIES

With study plans finalized, the potential applicant should proceed 

with the studies identified and approved in the final study plan. The

potential applicant must prepare and provide study results to

participants seeking progress reports in accordance with the

approved process plan and schedule. In addition, no later than one

year from the Commission’s approval of the study plan, the

applicant must prepare and file with the Commission an initial study

report describing overall progress, schedule, and data collected,

including an explanation of any variance from the study plan and

schedule. 

Based on results reported in the initial study report, participants may

request modifications to the studies and new studies. However, the

hurdle for requesting and approving study modifications and new

studies gets higher as the process proceeds. Any proposal to

modify an ongoing study must be accompanied by a showing of

good cause why the proposal should be approved and demonstrate

that:

! approved studies were not conducted as provided for in the

approved study plan; or

! the study was conducted under anomalous environmental 

conditions or that environmental conditions have changed in

a material way.

Any proposal for new information gathering or studies must be

accompanied by a showing of good cause why the proposal should

be approved, and include statements explaining:

! any material changes in the law or regulations applicable to

the information request;

! why the goals and objectives of any approved study could 

not be met with the approved study methodology;

! why the request was not made earlier;

! significant changes in the project proposal or that significant

new information material to the study objectives has

become available; and 

! why the new study request satisfies the study criteria in

Section 5.9(b) 18 CFR 5.15

The applicant’s study program should enable all the 

participants in the licensing process to focus on the 

relationships between environmental resources, power 

production, flood control, irrigation, and other potential 

uses of the waterway.
INTEGRATED LICENSING PROCESS

3-10

3.3.2 PRELIMINARY LICENSING PROPOSAL

Once the studies are near completion, but no later than 150 days 

prior to the deadline for filing a new or subsequent license

application, a potential applicant must file a preliminary licensing

proposal. The proposal should clearly describe:

• existing and proposed project facilities;

• existing and proposed project operation and maintenance plan;

• measures for protection, mitigation and enhancement for each 

resource affected by the proposal; and

• and a draft environmental analysis by resource area of

continuing and incremental impacts of the preliminary licensing

proposal, including the results of its studies conducted under

the approved study plan.

A draft license application that includes the contents required by 

18 CFR 5.18 may be filed in lieu of the preliminary licensing

proposal if the potential applicant includes notice of its intent to do 

so in the updated study report required by 18 CFR 5.15(f).

Within 90 days of the filing of a preliminary licensing proposal or 

draft license application, participants and Commission staff may file

comments that include recommendations on whether the

Commission should prepare an EA (with or without a draft) or EIS.

Under certain circumstances, an applicant and the other parties to 

the proceeding may want to forego developing the preliminary

licensing proposal and devote resources to other informative efforts,

such as settlement negotiations. An applicant may request a waiver

to file the preliminary licensing proposal or draft application if there 

is a consensus of the participants in favor of such a waiver.

18 CFR 5.16(f).

3.4 STEP 4: APPLICATION FILING 

3.4.1 TENDERING OF THE APPLICATION

Filing the complete application initiates the post-filing stage of the

integrated licensing process (see Chapter 2 for additional details). 

The application must be filed no later than 24 months before the

existing license expires. The original application and eight copies

must be filed with the Secretary, FERC, 888 First Street, NE,

Washington, DC 20426.

Applicants are encouraged to review the 

Commission’s guidance on preparing environmental 

assessments and to structure their analysis 

accordingly. A copy of the guidance can be found on 

the Commission’s web page or obtained through the 

Commission’s public reference room.
INTEGRATED LICENSING PROCESS

3-11

Concurrent with filing the application, the applicant must provide 

copies of the filed application to all resource agencies, Indian tribes,

and consulted members of the public. 18 CFR 5.17

No later than 14 days after the filing date with the Commission, the 

applicant must publish a notice twice in a daily or weekly newspaper

published in the county or counties in which the project or any part 

thereof or the lands affected are situated. The notice must disclose 

the filing date and briefly summarize the application including the

applicant’s name and address, type of facility, proposed location, and

places where the information can be inspected and reproduced.

The Commission will issue a tendering notice within 14 days of the 

filing date of the application that includes target dates for:

! issuance of the acceptance for filing and ready for

environmental analysis;

! filing of recommendations, preliminary terms and conditions,

and fishway prescriptions;

! issuance of a draft EA or EIS, or an EA not preceded by a 

draft;

! filing of comments on the DEA or DEIS;

! filing of modified recommendations, mandatory terms and 

conditions and fishway prescriptions in response to a draft 

NEPA document;

! issuance of a final NEPA document;

! a deadline of submission of final amendments, if any, to the 

application; and

! readiness for Commission decision.

3.4.2 APPLICATION CONTENTS

The application must contain certain general information and some

specific information dependant on the size and type of the project 

(e.g. minor, or major). See chapter 2 for details.

18 CFR 5.18; and as applicable 18 CFR 4.41, 4.51, 4.61

Under the ILP, the license application contains an Exhibit E that has

the form and contents of an environmental assessment (EA) and is 

prepared in accordance with the Commission’s guidelines for

preparing EAs. The Exhibit E must address the resources listed in 

the PAD provided for in Section 5.6 of the Commission’s regulations

(18 CFR) in addition to the format and content requirements listed in

Section 5.18. Exhibit E must describe the existing and proposed (if

any) project facilities and operations, provide information on the

existing environment and existing data or studies relevant to the

An existing licensee will be precluded from filing an 

application for a relicense if it fails to file its application 

by the 24-month due date.
INTEGRATED LICENSING PROCESS

3-12

existing environment, and any known and potential impacts of the 

proposed project and environmental measures on the specified

resources.

3.4.3 ADEQUACY REVIEW

Upon filing, a team of engineering and environmental specialists

review the application for adequacy. 

Two courses of action are open to the Commission if the application

is deemed deficient in complying with the regulations.

(1) The Commission can reject the application as patently

deficient, with the understanding that the relicense

application cannot be refiled after the 24-month deadline for

filing.

! This occurs if the Commission determines that the 

application patently fails to comply with basic

regulatory requirements of content (18 CFR 5.17,

18 CFR 4.41, 4.51, or 4.61 as applicable) and prefiling consultation (18 CFR Part 5).

! This decision can be appealed, but regardless of

outcome, the existing licensee is obligated to

continue operating the project until the Commission 

disposes of the proceeding.

(2) If the application is deficient but not patently deficient, the 

Commission will issue a deficiency letter. The applicant is 

then provided an appropriate period of time, not to exceed 

90 days, in which to correct deficiencies. 18 CFR 5.20(a)

If responses to requested deficiency corrections or additional

information requests are not timely filed, the Commission may reject

the application. If all deficiencies are corrected, the Commission

issues the applicant a letter of acceptance specifying the date upon 

which the application was accepted for filing. 18 CFR 5.22(a)

Although the content of the application may comply with the

regulations, Commission staff may request additional information or

documents it considers relevant for an informed decision on the

application. The information requested must take the form, and

must be submitted within the time the Commission prescribes. The

applicant may be required to file the information with other

interested agencies, tribes, and the public. If an applicant fails to 

provide the additional information, the Commission may dismiss the

application, hold it in abeyance, or take other appropriate action.

18 CFR 5.21

If the Commission rejects or dismisses an application 

because it is patently deficient or because the applicant 

fails to correct deficiencies or respond to an additional 

information request in a timely manner, the applicant 

cannot refile its application if the 24-month filing 

deadline has passed.
INTEGRATED LICENSING PROCESS

3-13

3.5 STEP 5: APPLICATION 

PROCESSING AND NEPA

COMPLIANCE

3.5.1 READY FOR ENVIRONMENTAL ANALYSIS

Once the Commission has determined that the application meets all

of the filing requirements, the studies have been completed, any

deficiencies have been resolved, and no additional information is

required, the Commission will issue the notice of acceptance and 

ready for environmental analysis (REA). The acceptance/REA 

notice solicits comments, protests, and interventions;

recommendations; preliminary terms and conditions; and 

preliminary fishway prescriptions, including all supporting

documentation. It also must include an updated schedule for

application processing. Comments, protests, interventions,

recommendations, and preliminary terms and conditions or

preliminary fishway prescriptions must be filed within 60 days of the

notice. 18 CFR 5.22(a); 18 CFR 4.32(d)(2)(i);18 CFR 16.9(d)(1)

The applicant then has 45 days to respond to submitted comments

(105 days from the REA notice). Responses should be sent to the 

entity providing the original comment, with a copy to the

Commission. 18 CFR 5.23

No later than 60 days following the notice of acceptance and REA, 

the license applicant must also file a copy of the water quality

certification; a copy of the request for certification, including proof of

the date on which the certifying agency received the water quality 

certification request; or evidence of waiver of water quality

certification. 18 CFR 5.23

3.5.2 EA OR EIS PREPARATION

Unlike the traditional or alternative licensing processes, the

regulations specify how long the Commission has to complete its

NEPA process. The Commission staff will issue a single EA within 

120 days from the date responses are due to the REA notice. The 

EA will include draft license articles, a preliminary determination of 

consistency of each fish and wildlife agency recommendation made 

pursuant to section 10(j) of the FPA (discussed further below) with 

the requirements of the FPA and other applicable law, and any

preliminary mandatory terms and conditions and fishway

prescriptions. All comments on the EA must be filed with the

Commission no later than the time specified in the notice issuing the

EA ( 30 or 45 days). All modified mandatory prescriptions or terms 

and conditions, if any, must be filed no later than 60 days following 

the close of the comment period specified in the notice.

18 CFR 5.24

When the Commission decides that a draft EA or EIS is needed, the 

Commission staff will issue a draft EA or draft EIS within 180 days of

the REA notice. Contents of the NEPA document and the period

and procedures for providing modified mandatory prescriptions or

terms and conditions would be the same as described above for the 

issuance of a single EA, except that time period for filing comments 

on the draft EA or EIS may be longer (30 to 60 days). 18 CFR 5.25
INTEGRATED LICENSING PROCESS

3-14

3.6 STEP 6: COMPLETION OF THE 

SECTION 10(J) PROCESS

The Commission is required under Section 10(j) of the FPA to

include in any license fish and wildlife measures for the protection, 

mitigation of damages to, and enhancement of fish and wildlife

resources potentially affected by the project based on 

recommendations from the National Marine Fisheries Service, the 

U.S. Fish and Wildlife Service, and state fish and wildlife agencies, 

unless it finds the measures to be inconsistent with the FPA or other

applicable law. See chapter 2, section 2.2.10, for guidelines on the

Section 10(j) process, which is same for all three processes.

18 CFR 4.34(e)(1).

3.7 STEP 7: LICENSE ISSUANCE AND 

MONITORING

The licensing process concludes with the issuance of a licensing

order by either the Commission or its delegate. License issuance 

and monitoring is the same for all processes and is discussed in

detail in chapter 2.
TRADITIONAL LICENSING PROCESS

4-1

4.0 THE TRADITIONAL 

LICENSING PROCESS

The traditional licensing process consists of three stages (figure 2).

8 CFR 4.38 (license)

18 CFR 16.8 (relicense)

(1) The first stage is a series of interactions among the

applicant, resource agencies, affected Indian tribes, and the

public sharing the initial information about the project and

notifying all interested parties. First stage consultation ends

when a set of resource-by-resource study plans and

detailed documentation of the agency consultation process

have been completed. 18 CFR 4.38(b); 18 CFR 16.8(b)

(2) The second stage involves the applicant’s distribution of the

draft application to resource agencies with a written request

for review and comment. The applicant may request that 

the Commission review the draft application at this stage as

well. This stage of consultation should be documented by

the applicant in a written summary of agreements reached 

with the resource agencies, as well as remaining

disagreements. 8 CFR 4.38(c); 18 CFR 16.8(c)

(3) Filing the final application with the Commission initiates the

third stage of consultation.

CFR 4.38(d); 18 CFR 16.8(d)

After July 22, 2005, an applicant must submit to the Commission a 

request to use traditional procedures for pre-filing consultation and 

the filing and processing of an application for an original, new, or

subsequent hydropower license. 18 CFR 5.3

This chapter describes the major steps in the traditional licensing 

process. Accompanying each discussion are the appropriate

regulatory citations for applications for projects subject to Sections 

14 and 15 of the FPA. Table 2 in chapter 2 shows the regulatory 

citations for the contents of applications for license.

4.1 STEP 1: FIRST STAGE 

CONSULTATION

4.1.1 NOTICE OF INTENT AND INITIAL INFORMATION

The initial steps and filing requirements of the first stage

consultation depend on whether a potential applicant commences 

pre-filing consultation prior to or after July 23, 2005. 

Prior to July 23, 2005

An applicant for a non-power license or subsequent license, or

applicant that elects to use the traditional process to pursue a new 

or original license and which starts pre-filing consultation prior to

July 23, 2005, must promptly contact each state and federal

resource agency, affected tribe, and the public with an interest in

the project. The applicant must provide them with detailed 

information about the project (boundaries, engineering design, and
TRADITIONAL LICENSING PROCESS

4-2

Figure 2. Traditional Licensing Process
TRADITIONAL LICENSING PROCESS

4-3

 operation), a description of the environmental and anticipated

effects of the proposed project, stream flow and water regime

information, and a detailed list of proposed studies and

methodologies to be employed. The applicant must also provide

notice of its intent to seek a new license (see chapter 2).

8 CFR 4.38; 18 CFR 16.8

After July 23, 2005

Any potential applicant that must file its NOI to seek a new or

subsequent license or begins its pre-filing consultation for an

original license on or after July 23, 2005, must seek authorization to

use the traditional licensing process. The potential applicant’s

request must accompany the NOI and PAD (which describes

existing information about the project, its environs, known project 

effects, and proposed studies – see chapter 2 for details) and

address the following considerations:

! likelihood of timely license issuance;

! complexity of the resource issues;

! level of anticipated controversy;

! relative cost of the traditional process compared to the

integrated process;

! the amount of available information and potential for significant

disputes over studies; and 

! other factors believed pertinent.

18 CFR 5.5; 18 CFR 4.38(b); 18 CFR 16.7(d) 

The authorization request must be provided to all affected resource 

agencies, Indian tribes, and members of the public likely to be

interested in the proceeding. The applicant must also publish notice

of the filing of the NOI, PAD and request to use the TLP in a daily or

weekly newspaper of general circulation in each county in which the

project is located. The request must solicit comments to be filed

with the Commission within 30 days of the filing date of the request.

The solicitation should specify that comments on the request to use

the traditional process should address the likelihood of timely

license issuance, complexity of the resource issues, level of

anticipated controversy, relative cost compared to the integrated

process and any other factors that the commenter believes are

pertinent. 18 CFR 5.3

The decision of the director of the Office of Energy Project on any 

request to use the traditional process will be included in the notice 

of commencement of proceeding, which will be issued within 60

days of the filing of the NOI. 

An applicant wishing to use the traditional process 

after July 23, 2005, should be prepared to proceed 

pursuant to the ILP regulations, in case the 

Commission does not approve the use of the TLP.
TRADITIONAL LICENSING PROCESS

4-4

The Commission shall grant requests to use the traditional process

if they believe that there is good cause shown. The more likely it

appears from the participant’s filings that an application will have

relatively few issues, little controversy, can be expeditiously

processed, and can be processed less expensively under the

traditional process, the more likely the Commission is to approve

the request.

4.1.2 MEETING

Within 30 but no later than 60 days from the Commission’s approval

to use the TLP, the applicant shall consult with the agencies,

Tribes, and public to schedule a joint meeting. The joint meeting 

should be held at a convenient place and time, and the applicant 

must notify all participants. Members of the public are invited to

attend the joint meeting and to participate fully. A potential

applicant that begins pre-filing consultation prior to July 23, 2005, 

must also hold a joint meeting no earlier than 30 days, but no later 

than 60 days from the date the potential applicant’s letter

transmitting the initial information about the project discussed

above.

 18 CFR 4.38(b);18 CFR 16.8(b)

The potential applicant should develop an agenda for the meeting 

and be sure that it includes an opportunity for a site visit. The

objectives of this joint meeting, in association with the site visit, are 

to:

! develop a common understanding of the proposed project;

! discuss current and potential resource needs and

management objectives for the project area;

! decide what information is needed and what studies are to

be done; and

! agree on a time frame and format for discussion of study 

results. 18 CFR 4.38(b)(3)(iii); 18 CFR 16.8(b)(3)(i)

In addition, there are two principal meeting notification

requirements:

! At least 15 days before the scheduled joint meeting date, 

the potential applicant must provide the Commission with 

written notice of the meeting’s time and place and an

agenda.

! At least 14 days before the joint meeting, the potential

applicant must publish the meeting arrangements and

agenda in a daily or weekly newspaper in each county in 

which the project is located.

When applicable, the potential applicant also must make the

information contained in the PAD available to the public for

inspection and copying. It must be made available, at a minimum,

from the date the notice of the joint meeting is published until a 

final order is issued on the license application.

18 CFR 4.38(g)(2)(i); 18 CFR 16.8(i)
TRADITIONAL LICENSING PROCESS

4-5

Additionally, two copies of the consultation package must be made

generally available for review at the joint meeting. 

18 CFR 4.38(g)(2)(iii)

The potential applicant must record the meeting, using either audio

recordings or written transcripts. After the meeting, the applicant 

must, upon request, provide a copy of the meeting record to the

Commission and to any resource agency, Indian tribe, or members

of the public. 18 CFR 4.38(b)(4); 18 CFR 16.8(b)(4)

4.1.3 COMMENTS AND STUDY REQUESTS

Unless otherwise extended by the Commission, not later than 60 

days after the joint meeting each interested resource agency, 

Indian tribe, and members of the public must provide the potential 

applicant with written comments (study requests) that include:

! identifying its determination of necessary studies to be

performed or information to be provided by the potential

applicant;

! the basis for the agency’s determination;

! the agency’s understanding of the resource

issues involved, and its goals and objectives for these

resources;

! justification of recommended study methodology;

! documentation that the use of each study method it

recommends is a generally accepted practice; and

! explanation of how the studies and information requested 

will be useful to the agency, Indian tribe, or members of

the public in furthering its resource goals and objectives as

related to the proposed project.

18 CFR 4.38(b)(4);18 CFR 16.8(b)(4)

If needed, any resource agency, Indian tribe, or member of the

public is given a chance to request an extension of the 60 day

comment period. To request such an extension, which itself

cannot exceed 60 days, the resource agency, Indian tribe, or 

members of the public must send a written notice explaining the

basis for the extension to both the applicant and the Commission 

within 60 days of the joint meeting.

18 CFR 4.38(b)(5);18 CFR 16.8(b)(5)

The agency, Indian tribe, and members of the public comments are

to be provided to the applicant within 60 days after the joint

meeting is held (or up to 120 days, if extended). If a resource

Studies done by applicants must be forward-looking, 

in that they help define desirable and feasible 

conditions for environmental resource protection, 

mitigation, and enhancement, as well as 

developmental interests such as optimum power 

production. 
TRADITIONAL LICENSING PROCESS

4-6

agency fails to participate in the joint meeting, fails to provide

comment within the 60 days allotted, or otherwise fails to comply 

with a consultation requirement, the potential applicant may 

proceed to the next sequential step in the consultation process

without waiting for the resource agency, Indian tribe, or public to 

comply. Failure of an agency, Indian tribe, or public to timely

comply with a consultation requirement does not preclude that 

agency’s participation in subsequent consultation process stages.

18 CFR 4.38(e)(2 and 3); 18 CFR 16.8(e)(2 and 3)

The public may forward its comments directly to the potential

applicant or to the Commission. 

If an applicant and resource agency or Indian tribe disagree on the 

need to do a study or gather information, the applicant, resource 

agency, or Indian tribe may refer the dispute in writing to the

Commission for resolution by following these steps:

 18 FR 4.38(b)(6); 18 CFR 16.8(b)(6)

! The entity referring the dispute must serve a copy of its

written request for resolution on the Commission, the

disagreeing party, and any affected resource agency or

Indian tribe.

! The disagreeing party and any affected resource agency, 

Indian tribe, and members of the public may submit to the 

Commission a written response on the dispute within 15

days of the submittal of the dispute.

! Written referrals to the Commission and written responses 

must be filed with the Secretary of the Commission in

accordance with the Commission's Rules of Practice and 

Procedure (Part 385).

! The Commission will resolve disputes by letter provided to

the potential applicant and all affected resource agencies 

and Indian tribes. Any decision by the Commission on

disputed studies will be made on the basis of two criteria:

u whether the requested study is reasonable and

necessary in relation to the resource goals and

management objectives of the resource agencies, 

and

u whether it is generally accepted practice to use the

study method requested by the agency or tribe.

The Commission’s resolution will be provided by letter to the

potential applicant and to the disagreeing resource agency.

If the Commission finds that a study or information is unnecessary

or use of the study method requested is not a generally accepted 

practice, then the absence of the study or information in a filed

application will not cause a delay in application acceptance, nor

will it cause the application to be considered deficient.

If an applicant does not refer a dispute regarding a request for

information or if an applicant decides to depart from the
TRADITIONAL LICENSING PROCESS

4-7

Commission's decision, the applicant must explain the basis for its

disagreement in its application and fully justify the course pursued.

The risk of proceeding without agreement is the potential rejection 

of the application in the event the Commission deems that the

application lacks essential information.

If an agency, tribe, or member of the public believes that a study 

should be done, even after the Commission finds it unreasonable,

then the agency, tribe, or member of the public may decide to

conduct the study.

The first stage of consultation ends when all participating agencies,

Indian tribes, and members of the public provide written comments

or 60 days after the joint meeting is held (up to 120 days, if

extended), whichever occurs first. 

At the completion of first stage consultation, there should be a set 

of resource-by-resource study plans and detailed documentation of

the agency consultation process including all agreements on

design, steps toward dispute resolution, and a summary of reasons

why the applicant may have elected not to do certain agency

requested studies. Each element of the first stage consultation

record is important for subsequent consultation and license

application steps. It is good practice for potential applicants to

modify their proposed study plans as agreed upon and to provide 

the revised plans to the relevant agencies for their records.

4.2 STEP 2: BEGINNING OF SECOND 

STAGE CONSULTATION: 

STUDIES AND DRAFT 

APPLICATION PREPARATION

With study plans finalized, the potential applicant should proceed 

with all reasonable studies identified during first stage consultation

and obtain all reasonable information requested by resource 

agencies, Indian tribes, and members of the public that is

necessary for the Commission to make an informed decision

regarding the merits of the application. 

18 CFR 4.38(c); 18 CFR 16.8(c)

For an original license, these studies must be completed and the 

information obtained before filing the application, if the results:

! would influence the financial or technical feasibility of the 

project; or 

Post-filing requests for additional information are a 

principal cause of delay. Conversely, minimizing the 

need for additional information requests is the 

applicant’s primary avenue for expediting licensing. 

Participants are encouraged to ask the Commission to 

resolve disputes as soon as possible.
TRADITIONAL LICENSING PROCESS

4-8

! are needed to determine the design or location of project 

features, reasonable alternatives to the project, the impact

of the project on important natural or cultural resources, or 

suitable mitigative and enhancement measures.

A study may be completed after application filing but before license

issuance if:

! the potential applicant initiates formal consultation not later

than 4 years prior to the expiration date of the license;

! the study would take longer to conduct and evaluate than 

the time available between first stage consultation

completion and the application filing deadline; and

! the nature of the study does not dictate it being conducted 

after license issuance.

A study may have to be postponed until after license issuance if 

the study:

! must be performed after construction of new project

facilities or change in operation of the proposed project;

! is designed to determine the success of implemented

measures; or

! would be used to refine project operation or modify project

facilities.

If, after first stage consultation is concluded, a resource agency

requests that the potential applicant do a necessary and

appropriate study not previously identified, the applicant should

promptly initiate the study, or gather the information unless the

study or information is unreasonable or unnecessary for an

informed decision by the Commission on the merits of the

application or use of the methodology is not a generally accepted 

practice. The applicant may refer the request to the Commission 

for dispute resolution. The results of such a study will be treated 

as additional information, and the filing and acceptance of the

application will not be delayed, even if the study is not complete

before the application is filed. However, final action by the

Commission should not be expected until the results of the

additional study are submitted and evaluated. 

 18 CFR 4.38(c)(2); 18 CFR 16.8(c)(2)

A draft license application is the primary document developed

during second stage consultation.

The draft application must:

! indicate the type of application the potential applicant

intends to file;

! respond to any comments and recommendations made by

any resource agency and Indian tribe during the first stage

of consultation;
TRADITIONAL LICENSING PROCESS

4-9

! contain the results of studies requested by the resource

agencies and Indian tribes; and 

! include a discussion of the study results and any proposed 

protection, mitigation, and enhancement measures.

The format of the application depends upon the category of the

projectBmajor, minor, or nonpower (see chapter 2).

Access to the Site

An existing licensee must allow project access to a potential

competing applicant for the purposes of gathering information,

conducting studies, or holding a resource agency site visit. This 

requirement becomes effective when the following occurs:

• the potential competing applicant has complied with the first

stage consultation information requirements, and

• the potential competing applicant has notified the existing

licensee in writing of the need for and extent of required access 

to the project site.

Any disputes relating to the timing and conditions of access, the

need for access, or the reimbursement of reasonable expenses

incurred by existing licensees, may be referred to the Commission.

18 CFR 16.5

4.3 STEP 3: COMPLETION OF 

SECOND STAGE CONSULTATION 

The next major step in the licensing process begins with the

applicant’s distribution of the draft application to resource

agencies, Indian tribes, and other interested parties with a written 

request for review and comment. 

 18 CFR 4.38(c)(4); 18 CFR 16.8(c)(4)

A resource agency, Indian tribe or member of the public is given 90

days to provide written comments on the information provided by 

the potential applicant in the draft application.

18 CFR 4.38(c)(5); 18 CFR 16.8(c)(5)

If the written comments show that a resource agency, Indian tribe, 

or member of the public has a substantive disagreement with a

potential applicant’s conclusions on resource impacts or proposed 

protection, mitigation, or enhancement measures, the potential

applicant must 18 CFR 4.38(c)(6); 18 CFR 16.8 (c)(6)

! within 60 days schedule and hold a joint meeting in

consultation with the disagreeing agency, tribe, members 

of the public and other consulted agencies; and

! provide the Commission with written notice of meeting 

time, place, and agenda at least 15 days in advance.
TRADITIONAL LICENSING PROCESS

4-10

The applicant and any disagreeing resource agency, Indian tribe, 

or member of the public may conclude a joint meeting with a

document embodying any agreement reached and any issues

remaining unresolved.

Second stage consultation should be documented by the applicant

in the form of a written summary of agreements reached with the 

resource agencies, as well as remaining disagreements. 

Particularly when disagreement exists with one or more resource 

agencies or the public, the basis for the applicant’s position should

be clearly presented in the context of the applicant’s consideration 

of the full range of developmental and nondevelopmental values.

 18 CFR 4.38(c)(8);18 CFR 16.8(c)(8)

The applicant should justify its balancing of resource needs to

achieve the best adapted project for improving or developing the 

waterway.

The applicant next finalizes the application in preparation for filing.

18 CFR 4.38(c)(9); 18 CFR 16.8(c)(9)

Exhibit E of the application must include:

18 CFR 4.38(f); 18 CFR 16.8(f)

! evidence of all consultation efforts, including documents

showing the conclusions of second stage consultation;

! evidence of any agency waivers;

! all resource agency letters with comments,

recommendations, and preliminary terms and conditions;

! the consultation summary document outlining any

remaining disagreements;

! explanation of the project’s compliance or lack of

compliance with relevant comprehensive plans, along with

relevant resource agency determinations regarding

consistency. The Commission’s website contains a list of 

Comprehensive Plans in the Licensing Process;

! any letters from the public containing comments and

recommendations; and 

! descriptions of how the applicant’s proposal addresses the

issues raised by the public during the first stage

consultation joint meeting.

4.4 STEP 4: THIRD STAGE 

CONSULTATION: APPLICATION 

FILING AND ACCEPTANCE BY 

THE COMMISSION

Filing the complete application initiates third stage consultation and

is the first activity in step 4 in the TLP. The application must be

filed no later than 24 months before the existing license expires. 
TRADITIONAL LICENSING PROCESS

4-11

The original application and 8 copies must be filed with the

Secretary, FERC, 888 First Street, NE Washington, DC 20426. 

18 CFR 4.38(d)(1); 18 CFR 16.8(d)(1)

Concurrent with filing the application, the applicant provides copies

of the filed application to all resource agencies, Indian tribes, and 

members of the public previously consulted. 

18 CFR 4.38(d)(2); 18 CFR 16.8(d)(2)

The Commission will issue a tendering notice within 14 days of the

filing of the application. The notice will solicit requests for

additional scientific studies and initiate consultation with the State 

Historic Preservation Officer under Section 106 of the National

Historic Preservation Act.

The applicant must subsequently also provide to participants any: 

! deficiency correction, revision, supplement, response to

additional information request, or amendment to the

application; and

! written correspondence from the Commission requesting 

the correction of deficiencies or the submittal of additional 

information.

The filed application is reviewed for adequacy by a Commission

team of engineering and environmental specialists.

The application should contain the following

! minimum content requirements under 18 CFR 4.38;18

CFR 16.8 (18 CFR 4.41, 4.51, or 4.61, and 16.10);

! complete protection, mitigation, and enhancement

proposals;

! evidence of completion of pre-filing consultation; and

! Coastal Zone Management Act (CZMA) compliance. 

The Commission then completes its adequacy review and, if the 

application is deemed acceptable, issues the applicant a letter of 

acceptance. The Commission can proceed along one of two

courses of action.

(1) The Commission can reject the application as patently

deficient, with the understanding that the application

cannot be refiled after the 24-month deadline for filing.

A. This occurs if the Commission determines that the 

application patently fails to comply with basic

regulatory requirements of content (18 CFR 4.41, 

4.51, or 4.61) and pre-filing consultation (18 CFR 

4.38(f);18 CFR 16.8(f)).

An existing licensee will be precluded from filing an 

application for a relicense if it fails to file its 

application by the 24-month due date.
TRADITIONAL LICENSING PROCESS

4-12

B. This decision can be appealed, but regardless of

the outcome, the licensee is obligated to continue 

operating the project until the Commission

disposes of the proceeding.

(2) If the application is inadequate but not patently deficient, 

the Commission will issue a deficiency letter.

The Commission will notify the applicant of any deficiencies, and 

the applicant will be afforded an appropriate period of time in which

to correct deficiencies. 

Additional information may also be requested at this time.

The applicant is provided an appropriate period of time not to

exceed 90 days, in which to correct deficiencies and to provide the

requested additional information. 18 CFR 4.32(e)(1)

Although the content of the application may comply with the

regulations, Commission staff may request additional information 

or documents it considers relevant for an informed decision on the

application. The information requested must take the form, and

must be submitted within the time the Commission prescribes. 

The applicant may be required to file the information on other

interested agencies, tribes, and the public. If an applicant fails to 

provide the additional information, the Commission may dismiss

the application, hold it in abeyance, or take other appropriate

action. 18 CFR 4.32(g)

All amendments, including final amendments, must be filed no

later than the date specified by the Commission in its procedural 

notice of processing deadlines. 18 CFR 16.9 (c)

If responses to requested deficiency corrections or additional

information requests are not timely filed, the application may be

dismissed. If all deficiencies are corrected, the Commission issues

the applicant a letter of acceptance specifying the project number 

assigned and the date upon which the application was accepted

for filing. 18 CFR 4.32(d)(1) and 4.32 (e)(1)

If the application is accepted, the Commission provides public

notice in the Federal Register, local newspapers, and directly to

resources agencies and Indian tribes. It identifies dates for

comment, intervention, and protests.

18 CFR 4.34(b); 18 CFR 16.9(d)(1) 

If the Commission rejects or dismisses an application 

because it is patently deficient or because the applicant 

fails to correct deficiencies or respond to an additional 

information request in a timely manner, the applicant 

cannot refile its application if the 24-month filing 

deadline has passed.
TRADITIONAL LICENSING PROCESS

4-13

4.5 STEP 5: APPLICATION 

PROCESSING AND NEPA

COMPLIANCE

4.5.1 SCOPING

Depending on the nature and extent of comments received in

response to the notice of application accepted for filing, the

Commission may conduct public scoping meetings or just solicit 

written comments. The Commission typically issues a scoping

document (SD) for public comment. The Commission issues the 

SD 30 days prior to any public scoping meeting. The SD will

include a tentative schedule for a REA notice and a list of the

pertinent comprehensive plans. 

4.5.2 ADDITIONAL INFORMATION AND REA NOTICE

Based on additional study requests, and comments received

during scoping, the Commission may request additional

information. If additional information is required, the applicant is 

requested to provide it, usually within 60 to 90 days, but often

longer. Applicants must serve responses to additional information 

requests on commenting agencies and parties to proceedings.

18 CFR 4.32(g)

When resource agencies receive copies of applicant’s responses 

to additional information requests, they should anticipate an REA 

notice issuance. When the information is deemed adequate, the 

Commission issues the REA notice soliciting final comments,

recommendations, terms and conditions, and prescriptions.

Agencies, tribes, and the public will have 60 days to file comments,

recommendations, terms and conditions and prescriptions. The

Any reply comments will be due in 45 days (see chapter 2 for

further details). 18 CFR 4.34(b)

If an applicant has not already done so, within 60 days following 

the notice of acceptance and REA, the license applicant must also 

file a copy of the water quality certification; a copy of the request 

for certification, including proof of the date on which the certifying 

agency received the water quality certification request; or evidence

of waiver of water quality certification pursuant to 18 CFR

4.34(b)(5)(i).

4.5.3 EA OR EIS PREPARATION

The Commission now begins preparing its environmental and

engineering analysis of the applicant’s proposal and alternatives to

that proposal. An EA will typically be the NEPA document

prepared for a license application. Depending on the scope of

issues, or resources affected, the Commission may issue a single 

EA or a draft and final EA, and in specific circumstances and EIS. 

(see chapter 2 for additional details).
TRADITIONAL LICENSING PROCESS

4-14

4.6 STEP 6: COMPLETION OF THE 

SECTION 10(J) PROCESS 

Under Section 10(j) of the FPA, the Commission receives

recommendation s from the National Marine Fisheries Service, the

U.S. Fish and Wildlife Service, and state fish and wildlife agencies

on licensing measures for the protection, mitigation of damages to,

end enhancement of fish and wildlife resources affected by the

project. The Commission will include these measures unless it

finds them inconsistent with the FPA or other applicable law. See 

chapter 2, section 2.2.10, for guidelines on the Section 10(j)

process, which are the same for the integrated and traditional 

licensing processes.

The Commission’s application review process also entails the

specific findings required for relicensing (see chapter 2, section

2.5) and, possibly, consideration of a federal takeover.

4.7 STEP 7: LICENSE ISSUANCE AND 

MONITORING

The licensing process concludes with the issuance of a licensing 

order by either the Commission or its delegate. License issuance

and monitoring is the same for all processes and is discussed in 

detail in chapter 2.
ALTERNATIVE LICENSING PROCESS

5-1

5.0 THE ALTERNATIVE 

LICENSING PROCESS

The alternative licensing process provides the applicant an

opportunity to conduct scoping during the pre-filing consultation 

and to substitute a preliminary draft EA or EIS prepared by a

third-party contractor for Exhibit E of the license or relicense

application. All of the other existing regulatory requirements

discussed in chapter 2 still apply, but the sequence of steps

differs. Figure 3 illustrates the steps in the alternative licensing

process.

An applicant must request and receive Commission approval to 

use alternative procedures for filing an application for an original,

new, or subsequent hydropower license that is subject to 18 CFR

4.38 or 18 CFR 16.8, or for the amendment of a license that is 

subject to the provisions of 18 CFR 4.38. 

The goals of an alternative process are to: 18 CFR 4.34(i)(2)

! coordinate the pre-filing consultation process, the

environmental review process under NEPA, and

administrative processes associated with the CWA and 

other statutes;

! facilitate greater participation by and improve

communication among the applicant, resource agencies,

Indian tribes, the public, and Commission staff in a

flexible pre-filing consultation process tailored to the

circumstances of each case (Note: Even under the

traditional and integrated licensing processes the 

applicant can facilitate and promote greater participation 

by and improve coordination among stakeholders.);

! allow for the preparation of a preliminary draft EA by an 

applicant or its contractor or consultant, or of a draft EIS 

by a contractor or consultant chosen and directed by the 

Commission and funded by the applicant; 

! promote cooperative efforts by the potential applicant

and interested entities and encourage them to share

information about resource impacts and protection,

mitigation, and enhancement proposals and to narrow

any areas of disagreement and reach agreement or

settlement of the issues raised by the hydropower

proposal; and

! facilitate an orderly and expeditious review of an

agreement or offer of settlement of an application for a 

hydropower license, or amendment to a license. (Note: 

settlements can also be reached under the traditional

and integrated licensing procedures.)

The Commission staff may participate in the pre-filing consultation 

of an alternative licensing process and assist in integrating the 

environmental review and pre-filing consultation.

18 CFR 4.34(i)(8)
ALTERNATIVE LICENSING PROCESS

5-2

Figure 3. Alternative Licensing Process 
ALTERNATIVE LICENSING PROCESS

5-3

5.1 STEP 1: DECISION TO FILE AND 

FORMATION OF STAKEHOLDER 

WORKGROUP AND

COMMUNICATIONS PROTOCOL

The decision to file and the initial considerations are the same as 

described in chapter 2. An applicant may also want to consider

recommendations contained in Guidelines to Consider for

Participating in the Alternative Licensing Process prepared by the 

ITF, which is available on the Commission’s website.

An applicant for a new or subsequent license must file its NOI to 

do so, and if applicable, its PAD (see chapter 2).

The initial action taken by the potential applicant is the formation of

a stakeholder work group and the development of a

communications protocol.

5.2 STEP 2: APPLICANT REQUESTS 

PERMISSION TO USE THE

ALTERNATIVE PROCESS

5.2.1 REQUEST FOR AUTHORIZATION

The request for authorization to use the alternative process must:

18 CFR 5.3

! demonstrate that a reasonable effort has been made to

contact all resource agencies, Indian tribes, citizen’s

groups, and others affected by the applicant’s proposal;

! demonstrate that a consensus exists that the use of the

alternative licensing process is appropriate under the

circumstances; 

! submit a written communications protocol, supported by

interested entities, governing how the applicant and other 

participants in the pre-filing consultation of the alternative 

licensing process, including the Commission staff, will

communicate with each other regarding the merits of the 

applicant’s proposal and proposals and recommendations

of interested entities; and 

! serve a copy of the written request on all affected resource 

agencies and Indian tribes and on all entities contacted by 

the applicant that have expressed an interest in the

alternative licensing process.

Commission approval of the potential applicant's 

request to use the alternative procedures prior to the 

deadline date for filing of the notification of intent does 

not waive the potential applicant's obligation to file the 

NOI required by 18 CFR 5.5 and PAD required by 18 

CFR 5.6.
ALTERNATIVE LICENSING PROCESS

5-4

As appropriate under the circumstances of the case, the alternative

licensing process would include provisions for:

 18 CFR 4.34(i)(4)

! distribution of an initial information package (IIP) or PAD

and conduct of an initial information meeting open to the

public;

! the cooperative scoping of environmental issues (including

necessary scientific studies), the analysis of completed

studies, and any further scoping; and 

! the preparation of a preliminary draft EA or preliminary 

draft EIS prepared by a third-party contractor, and related 

application. 

5.2.2 PUBLIC NOTICE AND COMMENT

If the request is filed prior to July 23, 2005, or if it is filed on or after

July 23, 2005 and prior to the deadline for filing the NOI to seek a 

new or subsequent license, the Commission will give public notice

in the Federal Register inviting comment on the applicant’s request

to use an alternative licensing process. The Commission will

consider comments in determining whether to grant or deny the

applicant’s request to use the alternative licensing process, and

the Commission’s decision will not be subject to rehearing or

appeal.

If the request is filed on or after July 23, 2005, and is at the same 

time as the filing of the NOI, the Commission will follow the

notification procedures defined in 18 CFR 5.3, which requires the 

applicant to provide a copy of the request to all participants

interested in the proceeding and to notify the participants that their 

comments on the request to us the alternative procedures must be

filed with the Commission within 30 days of the filing of the

request. The applicant also must publish notice of the NOI, PAD 

and the request to use the alternative procedures no later than the

filing date of the NOI in a daily or weekly newspaper of general

circulation in each county in which the project is located.

 18 CFR 4.34(i)(5); 18 CFR 5.3 

If the Commission accepts the use of an alternative licensing

process, then the following general provisions apply: 

18 CFR 4.34(i)(6)

! To the extent feasible under the circumstances of the case,

the Commission gives notice in the Federal Register and 

the applicant gives notice, in a local newspaper of general

circulation in the county or counties in which the project is 

located, of the initial information meeting and the scoping 

of environmental issues. The applicant also sends notice 

of these stages to a mailing list approved by the

Commission.

! Every 6 months, the applicant files with the Commission a

report summarizing the progress made in the alternative

licensing process and referencing the applicant’s public
ALTERNATIVE LICENSING PROCESS

5-5

file, where additional information on that process can be

obtained. Summaries or minutes of meetings held during 

the alternative licensing process pre-filing consultation may

be filed in lieu of a report. The applicant also files with the 

Commission an original and eight copies of its PAD, each 

scoping document, and the preliminary draft EA or

preliminary draft EIS prepared by a third-party contractor. 

! At a suitable location, the applicant maintains a public file 

of all relevant documents, including scientific studies,

correspondence, and minutes or summaries of meetings, 

compiled during the alternative licensing process. The

Commission maintains a public file of the applicant’s PAD, 

scoping documents, periodic reports on the pre-filing 

consultation process, and the preliminary draft EA or EIS.

! The applicant may substitute a preliminary draft EA, or EIS

prepared by a third-party contractor, and additional

material specified by the Commission in lieu of Exhibit E to

its application. The applicant files with the Commission the 

results of any studies conducted or other documentation as

the Commission directs, either on its own motion or in

response to a motion by a party to the licensing

proceeding. 

! Pursuant to the procedures approved, participants set

reasonable deadlines requiring all resource agencies,

Indian tribes, citizen’s groups, and interested parties to

submit to the applicant requests for scientific studies during

the pre-filing consultation of the alternative licensing

process and may make additional requests to the

Commission after filing of the application only for good

cause.

! During the pre-filing consultation of the alternative licensing

process, the Commission may require the filing of

preliminary fish and wildlife recommendations,

prescriptions, mandatory conditions, and comments, to be

submitted in final form after the filing of the application; no 

notice that the application is ready for environmental

analysis need be given by the Commission after the filing 

of an application under an approved alternative licensing 

process. 

! Any participant in the alternative licensing process may file

a request with the Commission, certifying that the request 

has been served on all participants, to resolve a dispute

concerning the alternative process (including a dispute 

over required studies), but only after reasonable efforts

have been made to resolve the dispute with other

participants in the process and documentation of these

efforts is provided. 

! If any of the stakeholders participating in the pre-filing 

consultation of the alternative licensing process can show 

that it has cooperated in the process but a consensus

supporting the use of the process no longer exists and that

continued use of the alternative process will not be
ALTERNATIVE LICENSING PROCESS

5-6

productive, the participant may petition the Commission,

with copies to the service list, and recommend specific

procedures for an order directing the use by the applicant 

of appropriate procedures to complete its application. 

5.3 STEP 3: PRE-FILING 

CONSULTATION PROCESS AND 

SCOPING OF ENVIRONMENTAL 

ISSUES 

Under an alternative licensing process, the potential applicant

would distribute the PAD, publish notice of an information meeting 

open to the public, and conduct scoping for the environmental

review required under NEPA. To the extent feasible under the

circumstances of the proceeding, the Commission also will give

notice in the Federal Register and local newspaper of the initial

information and scoping meeting. 18 CFR 4.34(i)(4) - 4.34(i)(6) 

The PAD is the first step under each of the three processes and is 

further detailed in section 3.3. The PAD could be the primary

focus of the initial information meeting and, in this case, should

solicit agency, Indian tribe, and other interested parties= comments

on resource values and their relative importance in the region and 

in the project’s immediate locale, resource goals and management

objectives, and the project’s plan for satisfying those goals and

objectives. 

During the scoping process, the applicant and stakeholders identify 

the need for scientific studies. Factors that would be considered in

determining the need for studies would be the same as in the

integrated licensing process and the traditional licensing process 

as described in chapters 3 and 4, section 3.3 and 4.3, respectively.

5.4 STEP 4: STUDIES AND DRAFT 

APPLICATION PREPARATION

The applicant and stakeholders may invest considerable time and 

resources during pre-filing consultation working toward agreement

on the key issues to be addressed during licensing or relicensing. 

The applicant and stakeholders also strive for agreement on the

scope and level of effort necessary. 

Once any necessary studies are completed, the applicant would

proceed with the preparation of a preliminary draft EA, or EIS

prepared by a third-party contractor, and its application. The

specific requirements for information to be included in the license 

application are contained in; 18 CFR 4.41;18 CFR 4.51, 18 CFR 

4.61; or 18 CFR 16.9. Table 2 in chapter 2 provides the specific 

regulatory citation for each of the components of a license

application. 

Any participant in the pre-filing consultation process may file a

request with the Commission to resolve a dispute concerning the 

alternative licensing process (including a dispute over required 

studies) but only after reasonable efforts have been made to

resolve the dispute with other participants in the process. The
ALTERNATIVE LICENSING PROCESS

5-7

request must be served on all other participants and must

document what efforts were made to resolve the dispute.

18 CFR 4.34(i)(7)

Terminating an Alternative Licensing Process

If any participant in the alternative licensing process can show that

it has cooperated in the process but a consensus supporting the 

use of the process no longer exists, and that the continued use of 

the alternative licensing process will not be productive, the

participant may petition the Commission for an order directing the 

use by the potential applicant of appropriate procedures to

complete its application. The request must be served on all other 

participants and must recommend specific procedures that are

appropriate under the circumstances. 

5.5 STEP 5: NEPA DOCUMENT AND 

APPLICATION FILED AND SENT 

TO AGENCIES

Filing the complete application, including the preliminary draft EA,

or EIS prepared by a third-party contractor, completes the pre-filing 

consultation of the alternative licensing process. The original

application and eight copies are filed with the Secretary, FERC,

888 First Street, NE, Washington, DC 20426. The applicant must

provide, concurrently, copies of the filed application and the NEPA

documents to all resource agencies, Indian tribes, and other

entities involved in the collaborative process. 

Application processing milestones are established by the

Commission’s procedural notice. As discussed in chapter 2, no

notice that the application is ready for environmental analysis need

be given by the Commission after the filing of an application

pursuant to an alternative licensing process. 

5.6 STEP 6: APPLICATION 

PROCESSING

5.6.1 TENDERING AND ACCEPTANCE

The filed application is reviewed for adequacy by a Commission

team of engineering and environmental specialists.

The application should contain the following

! minimum content requirements under 18 CFR 4.38;18

CFR 16.8 (18 CFR 4.41, 4.51, or 4.61, and 16.10);

! complete protection, mitigation, and enhancement

proposals;

! evidence of completion of pre-filing consultation;

! Coastal Zone Management Act (CZMA) compliance; and

! documentation satisfying 401 Certification requirements. 
ALTERNATIVE LICENSING PROCESS

5-8

The application also may include a draft preliminary EA, or

preliminary draft EIS prepared by a third-party contractor which

incorporates the preliminary comments, recommendations, terms 

and conditions, and prescriptions filed by fish and wildlife resource 

agencies in response to the Commission notice, if such notice was

issued. 

The Commission then completes its adequacy review and, if the 

application is deemed acceptable, issues the applicant a letter of 

acceptance. Two courses of action are open to the Commission if

the application is deemed inadequate:

(1) The Commission can reject the application as patently

deficient, with the understanding that the application

cannot be refiled after the 24-month deadline for filing.

A. This occurs if the Commission determines that the 

application patently fails to comply with basic

regulatory requirements of content (18 CFR 4.41, 

4.51, or 4.61) and pre-filing consultation (18 CFR 

4.38(f);18 CFR 16.8(f)).

B. This decision can be appealed, but regardless of 

outcome, the licensee is obligated to continue

operating the project until the Commission

disposes of the proceeding.

(2) If the application is inadequate but not patently deficient, 

the Commission will issue a deficiency letter.

! The Commission will notify the applicant of any

deficiencies, and the applicant will be afforded an 

appropriate period of time in which to correct

deficiencies. 

Although the content of the application may comply with the

regulations, Commission staff may requested additional

information or documents it considers relevant for an informed

decision on the application. The information requested must take 

the form, and must be submitted within the time the Commission

prescribes. The applicant may be required to file the information 

on other interested agencies, tribes, and the public. If an applicant

fails to provide the additional information, the Commission may

dismiss the application, hold it in abeyance, or take other

appropriate action. 18 CFR 4.32(g) If the Commission rejects or dismisses an application 

because it is patently deficient or because the applicant 

fails to correct deficiencies or respond to an additional 

information request in a timely manner, the applicant 

cannot refile its application if the 24-month filing 

deadline has passed.
ALTERNATIVE LICENSING PROCESS

5-9

If the application is accepted, the Commission provides public

notice in the Federal Register, local newspapers, and directly to

resources agencies and Indian tribes. It identifies dates for

comment, intervention, and protests.

In its notice, the Commission invites protests and interventions and

requests the final fish and wildlife recommendations, prescriptions,

mandatory conditions, and comments from the resource agencies 

and Indian tribes. 

The Commission will review the preliminary draft EA or EIS to

ensure that it is consistent with the Commission requirements as 

discussed in chapter 3, section 3.3. The Commission need not 

issue a notice that the application is ready for environmental

analysis. 

5.6.2 EA OR EIS PREPARATION

The Commission now begins preparing its environmental and

engineering analysis of the applicant’s proposal and alternatives to

that proposal. An EA will typically be the NEPA document

prepared for a license application. Depending on the scope of

issues, or resources affected, the Commission may issue a single 

EA or a draft and final EA, and in specific circumstances and EIS. 

(see Chapter 2 for additional details).

The Commission makes the environmental documents and 

comments received available to the public at the Commission's

Public Reference Room in Washington, DC; at the Commission's 

Regional Office nearest the project; and on the Commission

website. The applicant also makes all relevant documents,

including scientific studies, correspondence, and minutes or

summaries of meetings, compiled during the pre-filing consultation

process available at a suitable location. 

5.7 STEP 7: COMPLETION OF THE 

SECTION 10(J) PROCESS 

Under Section l0(j) of the FPA, the Commission receives

recommendations from the National Marine Fisheries Service, the 

U.S. Fish and Wildlife Service, and state fish and wildlife agencies 

on measures for the protection, mitigation of damages to, and

enhancement of fish and wildlife resources affected by the project. 

The Commission will include these measures unless it finds them 

inconsistent with the FPA or other applicable law. Under an

alternative licensing process where the application contains a

consensus for the proposed protection, mitigation, and

enhancement measures, the Commission likely could avoid 10(j)

Because of the collaborative efforts prefiling, additional 

information should not be necessary to develop 

protection, mitigation, and enhancement measures. 

One of the goals of the alternative process is to 

facilitate agreement on resource studies to expedite 

Commission review of license applications. 
ALTERNATIVE LICENSING PROCESS

5-10

disputes. See chapter 2 for guidelines on the Section 10(j) process,

which are the same for the integrated, traditional, and alternative

licensing processes.

5.8 STEP 8: LICENSE ISSUANCE AND 

MONITORING 

The licensing process concludes with the issuance of a licensing 

order by either the Commission or its delegate. License issuance 

and monitoring is the same for all processes and is discussed in 

detail in chapter 2.
EXEMPTIONS FROM LICENSING

6-1

6.0 EXEMPTIONS FROM

LICENSING

Exemptions from licensing are exactly that: exemptions from the

licensing provisions of Part I of the FPA, and subject only to the

conditions attached to the exemption. This means that the

exemption is not subject to the comprehensive development 

standard of FPA Section 10(a)(1); mandatory conditions under FPA

sections 4(e) and 18; eminent domain authority of FPA section 21; 

and so forth. 16 USC 823A; 16 USC 2705, 2708

6.1 TYPES OF EXEMPTIONS AND WHO 

CAN APPLY

Two types of small hydroelectric projects are eligible for exemptions 

from licensing:

! A small conduit hydroelectric facility up to 15 MW (up to 40 

MW for certain projects) may be eligible for a Conduit

Exemption (see 18 CFR 4.31(b)(2)). The applicant must

have all the real property interests necessary to develop

and operate the project, or an option to obtain the interests.

 The facility cannot occupy federal lands. The conduit is not

a project work. Applications for exemptions of small

hydroelectric conduits are categorically exempt from the

requirement to prepare an EA or EIS. See Hydroelectric

Project Handbook for Filings Other Than Licenses and 5-

MW Exemptions for information on how to obtain a conduit 

exemption. 

• A small hydroelectric project of 5 MW or less may be

eligible for a 5 MW exemption. The applicant must propose 

to install or add capacity to a project located at a nonfederal, pre-1977 dam, or at a natural water feature. If only 

federal lands are involved, any applicant is eligible. If some 

federal lands are involved, any applicant who has all the

real property interests in the nonfederal lands necessary to 

develop and operate the project or an option to obtain the 

interests is eligible. 18 CFR 4.31(c)(2)

There are several limitations on submission and acceptance of

exemption applications:

• If there is an unexpired preliminary permit in effect for the 

project, an initial exemption application will be accepted

only from the permit holder. q18 CFR 4.33(d)(1)(i)

• If there is an unexpired license in effect for the project, an 

exemption application will be accepted only from the

licensee. 18 CFR 4.33(d)(1)(ii)

• If a license application has been accepted which was

submitted in a timely manner by the holder of a preliminary 

permit, an exemption application will only be accepted from

the former permittee. 18 CFR 4.33(d)(2)
EXEMPTIONS FROM LICENSING

6-2

• If a license application is filed by a qualified exemption

applicant, and that license application is the first (or only)

accepted application, then the applicant may request its

license application be treated as an application for

exemption. 18 CFR 4.33(d)(3) 

6.2 OBTAINING AN EXEMPTION

The procedures for applying for an exemption, including pre-filing 

consultation, are the same as those described for a license (see

chapter 2, section 2.3), with the following specific exceptions: 

! An applicant has less time (up to 45 days instead of 90) to 

correct any deficiencies in the application. 

18 CFR 4.32(e)(1)

! Exemption orders for 5 MW or less exemptions are typically

supported by an EA and seldom require an EIS.

! Procedures for post-filing consultation among the

Commission, fish and wildlife agencies, and Indian tribes

are distinct for exemption applications. All timely fish and 

wildlife recommendations under 30(c) of FPA are

mandatory.

18 CFR 4.94; 18 CFR 4.105;18 CFR 4.34(g)

The applicant is required to submit a fee accompanying the

application to reimburse fish and wildlife agencies for costs incurred

in connection with their review of the application pursuant to section

30(e) of the FPA. 18 CFR 4.302

The procedures for filing competing exemption applications are the

same as those for competing licenses (see chapter 7).

6.3 5 MW OR LESS EXEMPTIONS

This section describes aspects of the regulations that pertain

specifically to exemptions for small hydroelectric projects of 5 MW 

or less. 18 CFR 4.101

6.3.1 APPLICATION CONTENT

An application for exemption for a small hydroelectric project of 5 

MW or less must include the following: 

! Introductory statement.

! Exhibit A describes the small hydroelectric project and its

proposed mode of operation.

! Exhibit B provides a general location map that must show 

the location of the physical structures and their relationship 

to the water body and identifiable landmarks, land

ownership information, and a proposed project boundary.
EXEMPTIONS FROM LICENSING

6-3

! Exhibit E, or a draft preliminary EA if using an alternative

process, is the environmental report and must reflect prefiling consultation requirements. Commensurate with the

scope and degree of environmental impact, it must include 

a description of the project’s environmental setting, the

expected environmental impacts, and proposed measures 

to protect the environment.

! Exhibit G is a set of drawings showing the project structures

and equipment.

! Identification of all Indian tribes potentially affected.

! Appendix containing evidence that the applicant has the

necessary real property interests in any nonfederal lands. 

18 CFR 4.107

! Fish and wildlife agency reimbursement fees must

accompany filed applications. 18 CFR 4.302

6.3.2 DEVELOPMENT OF TERMS AND CONDITIONS

The procedural steps for a 5 MW or less exemption application are 

essentially the same as those that govern applications for license, 

including the three-stage consultation process or alternative

licensing process. See chapters 4 and 5 for descriptions of the

procedures, from initial actions through the public notice declaring 

the application ready for environmental analysis. After completion 

of the EA, the procedural steps for an exemption application differ 

from those for a license application. 

Deadlines and procedures for filing comments and terms and

conditions are the same as those that govern license applications 

(see chapter 2).

The Commission then prepares an EA and determines whether an 

exemption is to be granted. In granting an exemption from

licensing, the Commission will impose certain standard terms and 

conditions (see 18 CFR 4.106)and may set additional non-standard 

terms and conditions. 18 CFR 4.105(b)(2)

If the exemption application is dismissed, the process is terminated.

There is no opportunity to convert the exemption application to an 

application for license.

The Commission must include those terms and conditions 

that the fish and wildlife agencies determine, in a timely 

manner, are appropriate to prevent loss of, or damage to, 

fish and wildlife resources. 18 CFR 4.34(f)(2)
COMPETING APPLICATIONS

7-1

7.0 COMPETING APPLICATIONS

An original license application can be filed in competition with an 

original application for license, but the competing application must

be filed by a specified deadline. The deadline depends on

whether or not the competing applicant files an NOI. 

18 CFR 4.36(b)

An NOI must include:

! the name, business address, and telephone number of

the competing applicant; and

! an unequivocal statement of intent to submit an

application.

Any NOI must be filed no later than the prescribed intervention

deadline for the initial application.

The competing license application, if it is not filed in conjunction 

with a previous NOI, must be submitted no later than the

prescribed intervention deadline. If it is filed in conjunction with a 

previous NOI, then the competing application for license must be 

submitted no later than 120 days after the set intervention

deadline.

Effective July 23, 2005, all applicants will be required to file a NOI

and PAD, and be required to follow the integrated licensing

process to prepare its application, unless the Commission

approves the use of the traditional or alternative licensing

process. 18 CFR 5.5(d) and 5.6(d)(1)

The competing application must:

! conform to all the requirements that apply to an initial

license application; and

! include proof that a copy of the competing application was

served on the persons designated in the Commission’s

public notice of the initial application.

The Commission notifies each applicant to ensure that each is

aware of the identity of the others.

Within 60 days of the Commission notification, each license

applicant must file a thorough statement describing how its project

plans are as well or better adapted than the other plans to

develop the water resource in the public interest.

Upon receipt of the statements, the Commission evaluates the

plans and selects among the competing applications.

The regulations provide rules of preference that determine how 

the Commission selects from among competing applications.
COMPETING APPLICATIONS

7-2

The factors for determining preference of selection between

competing original applications include: 18 CFR 4.37

! whether the applicants have demonstrated the ability to

carry out their plans;

! filing date (order of time in filing the applications);

! whether applicants are private entities or municipalities or

states (municipalities and states have preference); and

! for development applications (exemptions and licenses),

the best adapted plan.

A new or subsequent license can be filed in competition with a new

or subsequent license. An applicant must notify the Commission of

its intent to file a competing application at least five years, but not 

more than five and one-half years, before the existing license for

which it is competing expires. The applicant must include with its 

NOI and PAD and must request to use the traditional or alternative 

licensing process. The competing new or subsequent license

application must be filed at least 24 months before the existing

license expires.

18 CFR 5.5(d) and 5.6(d)(1); 18 CFR 16.9(b); 18 CFR 16.20(c)

The factors for determining preference of selection between

competing new or subsequent license applications include:

• the best adapted plan;

• existing licensee’s record of compliance with the terms and 

conditions of the license; and 

• actions taken by the existing licensee related to the project 

which affects the public.
APPENDIX A

FEDERAL POWER ACT, PART 1

APPENDIX A

A-1

FEDERAL POWER ACT: PART 1

Be it enacted by the Senate and House of Representatives of 

the United States of America assembled, That a commission is 

created and established to be known as the Federal Power 

Commission (hereinafter referred to as the ''Commission'') 

which shall be composed of five commissioners who shall be 

appointed by the President, by and with the advice and consent 

of the Senate, one of whom shall be designated by the 

President as chairman and shall be the principal executive 

officer of the commission. Each chairman, when so designated, 

shall act as such until the expiration of his term of office.

The commissioners first appointed under this section, as 

amended, shall continue in office for terms of one, two, three, 

four, and five years, respectively, from June 23, 1930, the term 

of each to be designated by the President at the time of 

nomination. Their successors shall be appointed each for a 

term of five years from the date of the expiration of the term for 

which his predecessor was appointed and until his successor is 

appointed and has qualified, except that he shall not so 

continue to serve beyond the expiration of the next session of 

Congress subsequent to the expiration of said fixed term of 

office, and except that any person appointed to fill a vacancy 

occurring prior to the expiration of the term for which his 

predecessor was appointed shall be appointed only for the 

unexpired term. Not more than three of the commissioners 

shall be appointed from the same political party. No person in 

the employ of or holding any official relation to any licensee or 

to any person, firm, association, or corporation engaged in the 

generation, transmission, distribution, or sale of power, or 

owning stock or bonds thereof, or who is in any manner 

pecuniarily interested therein, shall enter upon the duties of or 

hold the office of commissioners. Said commissioners shall not 

engage in any other business, vocation, or employment. No 

vacancy in the Commission shall impair the right of the 

remaining commissioners to exercise all the powers of the 

Commission. Three members of the Commission shall 

constitute a quorum for the transaction of business, and the 

Commission shall have an official seal of which judicial notice 

shall be taken. The Commission shall annually elect a vice 

chairman to act in case of the absence or disability of the 

chairman or in case of a vacancy in the office of chairman.

Each commissioner shall receive necessary traveling and 

subsistence expenses, or per diem allowance in lieu thereof, 

within the limitation prescribed by law, while away from the seat 

of government upon official business.

The principal office of the Commission shall be in the District of 

Columbia, where its general sessions shall be held; but 

whenever the convenience of the public or of the parties may be 

promoted or delay or expense prevented thereby, the 
APPENDIX A

A-2

Commission may hold special sessions in any part of the United 

States.

Section 2. The Commission shall have authority to appoint, 

prescribe the duties, and fix the salaries of, a secretary, a chief 

engineer, a general counsel, a solicitor, and a chief accountant; 

and may, subject to the civil service laws, appoint such other 

officers and employees as are necessary in the execution of its 

functions and fix their salaries in accordance with the 

Classification Act. The Commission may request the President 

to detail an officer or officers from the Corps of Engineers, or 

other branches of the United States Army, to serve the 

Commission as engineer officer or officers, or in any other 

capacity, in field work outside the seat of government, their 

duties to be prescribed by the Commission; and such detail is 

authorized. The President may also, at the request of the 

Commission, detail, assign, or transfer to the Commission, 

engineers in or under the Departments of the Interior or 

Agriculture for field work outside the seat of government under 

the direction of the Commission.

The Commission may make such expenditures (including 

expenditures for rent and personal services at the seat of 

government and elsewhere, for law books, periodicals, and books 

of reference, and for printing and binding) as are necessary to 

execute its functions. Expenditures by the Commission shall be 

allowed and paid upon the presentation of itemized vouchers 

therefore, approved by the chairman of the Commission or by 

such other member or officer as may be authorized by the 

Commission for that purpose subject to applicable regulations 

under the Federal Property and Administrative Services Act of 

1949, as amended.

Section 3. The words defined in this section shall have the 

following meanings for purposes of this Act, to wit: 

(1) ''public lands'' means such lands and interest in lands owned 

by the United States as are subject to private appropriation and 

disposal under public land laws. It shall not include ''reservations'', 

as hereinafter defined;

(2) ''reservations'' means national forests, tribal lands embraced 

within Indian reservations, military reservations, and other lands 

and interests in lands owned by the United States, and 

withdrawn, reserved, or withheld from private appropriation and 

disposal under the public land laws; also lands and interests in 

lands acquired and held for any public purposes; but shall not 

include national monuments or national parks;

(3) ''corporation'' means any corporation, joint-stock company, 

partnership, association, business trust, organized group of 

persons, whether incorporated or not, or a receiver or receivers, 

trustee or trustees of any of the foregoing. It shall not include 

''municipalities'' as hereinafter defined;

(4) ''person'' means an individual or a corporation;
APPENDIX A

A-3

(5) ''licensee'' means any person, State, or municipality licensed 

under the provisions of section 4 of this Act, and any assignee or 

successor in interest thereof;

(6) ''State'' means a State admitted to the Union, the District of 

Columbia, and any organized Territory of the United States;

(7) ''municipality'' means a city, county, irrigation district, drainage 

district, or other political subdivision or agency of a State 

competent under the laws thereof to carry on the business of 

developing, transmitting, utilizing, or distributing power;

(8) ''navigable waters'' means those parts of streams or other 

bodies of water over which Congress has jurisdiction under its 

authority to regulate commerce with foreign nations and among 

the several States, and which either in their natural or improved 

condition notwithstanding interruptions between the navigable 

parts of such streams or waters by falls, shallows, or rapids 

compelling land carriage, are used or suitable for use for the 

transportation of persons or property in interstate or foreign 

commerce, including therein all such interrupting falls, shallows, 

or rapids, together with such other parts of streams as shall have 

been authorized by Congress for improvement by the United 

States or shall have been recommended to Congress for such 

improvement after investigation under its authority;

(9) ''municipal purposes'' means and includes all purposes within 

municipal powers as defined by the constitution or laws of the 

State or by the charter of the municipality;

(10) ''Government dam'' means a dam or other work constructed 

or owned by the United States for Government purposes with or 

without contribution from others;

(11) ''project'' means complete unit of improvement or 

development, consisting of a power house, all water conduits, all 

dams and appurtenant works and structures (including navigation 

structures) which are a part of said unit, and all storage, diverting, 

or forebay reservoirs directly connected therewith, the primary line 

or lines transmitting power there from to the point of junction with 

the distribution system or with the interconnected primary 

transmission system, all miscellaneous structures used and useful 

in connection with said unit or any part thereof, and all 

water-rights, rights-of-way, ditches, dams, reservoirs, lands, or 

interest in lands the use and occupancy of which are necessary or 

appropriate in the maintenance and operation of such unit;

(12) ''project works'' means the physical structures of a project;

(13) ''net investment'' in a project means the actual legitimate 

original cost thereof as defined and interpreted in the 

''classification of investment in road and equipment of steam 

roads, issue of 1914, Interstate Commerce Commission'', plus 
APPENDIX A

A-4

similar costs of additions thereto and betterments thereof, minus 

the sum of the following items properly allocated thereto, if and to 

the extent that such items have been accumulated during the 

period of the license from earnings in excess of a fair return on 

such investment: (a) Unappropriated surplus, (b) aggregate credit 

balances of current depreciation accounts, and (c) aggregate 

appropriations of surplus or income held in amortization, sinking 

fund, or similar reserves, or expended for additions or 

betterments or used for the purposes for which such reserves 

were created. The term ''cost'' shall include, insofar as applicable, 

the elements thereof prescribed in said classification, but shall 

not include expenditures from funds obtained through donations 

by States, municipalities, individuals, or others, and said 

classification of investment of the Interstate Commerce 

Commission shall insofar as applicable be published and 

promulgated as a part of the rules and regulations of the 

Commission;

(14) ''Commission'' and ''Commissioner'' means the Federal 

Power Commission, and a member thereof, respectively;

(15) ''State commission'' means the regulatory body of the State 

or municipality having jurisdiction to regulate rates and charges 

for the sale of electric energy to consumers within the State or 

municipality;

(16) ''security'' means any note, stock, treasury stock, bond, 

debenture, or other evidence of interest in or indebtedness of a 

corporation subject to the provisions of this Act;

(17)(A) ''small power production facility'' means a facility which is 

an eligible solar, wind, waste, or geothermal facility, or a facility 

which 

(i) produces electric energy solely by the use, as a primary energy 

source, of biomass, waste, renewable resources, geothermal 

resources, or any combination hereof; and

(ii) has a power production capacity which, together with any 

other facilities located at the same site (as determined by the 

Commission), is not greater than 80 megawatts;

(B) ''primary energy source'' means the fuel or fuels used for the 

generation of electric energy, except that such term does not 

include, as determined under rules prescribed by the 

Commission, in consultation with the Secretary of Energy -

(i) the minimum amounts of fuel required for ignition, startup, 

testing, flame stabilization, and control uses, and

(ii) the minimum amounts of fuel required to alleviate or prevent -

(I) unanticipated equipment outages, and

(II) emergencies, directly affecting the public health, safety, or 

welfare, which would result from electric power outages;

(C) ''qualifying small power production facility'' means a small 

power production facility-

(i) which the Commission determines, by rule, meets such 

requirements (including requirements respecting fuel use, fuel 
APPENDIX A

A-5

efficiency, and reliability) as the Commission may, by rule, 

prescribe; and

(ii) which is owned by a person not primarily engaged in the 

generation or sale of electric power (other than electric power 

solely from cogeneration facilities or small power production 

facilities);

(D) ''qualifying small power producer'' means the owner or 

operator of a qualifying small power production facility;

(E) ''eligible solar, wind, waste or geothermal facility'' means a 

facility which produces electric energy solely by the use, as a 

primary energy source, of solar energy, wind energy, waste 

resources or geothermal resources; but only if -

(i) either of the following is submitted to the Commission not later 

than December 31, 1994:

(I) an application for certification of the facility as a qualifying 

small power production facility; or

(II) notice that the facility meets the requirements for qualification; 

and

(ii) construction of such facility commences not later than 

December 31, 1999, or, if not, reasonable diligence is exercised 

toward the completion of such facility taking into account all 

factors relevant to construction of the facility.

(18)(A) ''cogeneration facility'' means a facility which produces -

(i) electric energy, and

(ii) steam or forms of useful energy (such as heat) which are 

used for industrial, commercial, heating, or cooling purposes;

(B) ''qualifying cogeneration facility'' means a cogeneration facility 

which -

(i) the Commission determines, by rule, meets such requirements 

(including requirements respecting minimum size, fuel use, and 

fuel efficiency) as the Commission may, by rule, prescribe; and

(ii) is owned by a person not primarily engaged in the generation 

or sale of electric power (other than electric power solely from 

cogeneration facilities or small power production facilities);

(C) ''qualifying cogenerator'' means the owner or operator of a 

qualifying cogeneration facility;

(19) ''Federal power marketing agency'' means any agency or 

instrumentality of the United States (other than the Tennessee 

Valley Authority) which sells electric energy;

(20) ''evidentiary hearings'' and ''evidentiary proceeding'' mean a 

proceeding conducted as provided in sections 554, 556, and 557 

of title 5, United States Code;

(21) ''State regulatory authority'' has the same meaning as the 

term ''State commission'', except that in the case of an electric 

utility with respect to which the Tennessee Valley Authority has 

ratemaking authority (as defined in section 3 of the Public Utility 

Regulatory policies Act of 1978), such term means the Tennessee 

Valley Authority;
APPENDIX A

A-6

(22) ''electric utility'' means any person or State agency (including 

any municipality) which sells electric energy; such term includes 

the Tennessee Valley Authority, but does not include any Federal 

power marketing agency.

(23) Transmitting utility. - The term ''transmitting utility'' means 

any electric utility, qualifying cogeneration facility, qualifying small 

power production facility, or Federal power marketing agency 

which owns or operates electric power transmission facilities 

which are used for the sale of electric energy at wholesale.

(24) Wholesale transmission services. - The term ''wholesale 

transmission services'' means the transmission of electric energy 

sold, or to be sold, at wholesale in interstate commerce.

(25) Exempt wholesale generator. - The term ''exempt wholesale 

generator'' shall have the meaning provided by section 32 of the 

Public Utility Holding Company Act of 1935.

Section 4. The Commission is hereby authorized and 

empowered 

(a) To make investigations and to collect and record data 

concerning the utilization of the water resources of any region to 

be developed, the water-power industry and its relation to other 

industries and to interstate or foreign commerce, and concerning 

the location, capacity, development costs, and relation to markets 

of power sites, and whether the power from Government dams 

can be advantageously used by the United States for its public 

purposes, and what is a fair value of such power, to the extent the 

Commission may deem necessary or useful for the purposes of 

this Act.

(b) To determine the actual legitimate original cost of and the net 

investment in a licensed project, and to aid the Commission in 

such determinations, each licensee shall, upon oath, within a 

reasonable period of time to be fixed by the Commission, after the 

construction of the original project or any addition thereto or 

betterment thereof, file with the Commission in such detail as the 

Commission may require, a statement in duplicate showing the 

actual legitimate original cost of construction of such project 

addition, or betterment, and of the price paid for water rights, 

rights-of-way, lands, or interest in lands. The licensee shall grant 

to the Commission or to its duly authorized agent or agents, at all 

reasonable times, free access to such project, addition, or 

betterment, and to all maps, profiles, contracts, reports of 

engineers, accounts, books, records, and all other papers and 

documents relating thereto. The statement of actual legitimate 

original cost of said project, and revisions thereof as determined 

by the Commission, shall be filed with the Secretary of the 

Treasury.

(c) To cooperate with the executive departments and other 

agencies of State or National Governments in such investigations; 

and for such purpose the several departments and agencies of 

the National Government are authorized and directed upon the 

request of the Commission, to furnish such records, papers, and 

information in their possession as may be requested by the 
APPENDIX A

A-7

Commission, and temporarily to detail to the Commission such 

officers or experts as may be necessary in such investigations.

(d) To make public from time to time the information secured 

hereunder, and to provide for the publication of its reports and 

investigations in such form and manner as may be best adapted 

for public information and use. The Commission, on or before the 

3d day of January of each year, shall submit to Congress for the 

fiscal year preceding a classified report showing the permits and 

licenses issued under this Part, and in each case the parties 

thereto, the terms prescribed, and the moneys received if any, or 

account thereof.

(e) To issue licenses to citizens of the United States, or to any 

association of such citizens, or to any corporation organized 

under the laws of the United States or any State thereof, or to 

any State or municipality for the purpose of constructing, 

operating, and maintaining dams, water conduits, reservoirs,

power houses, transmission lines, or other project works 

necessary or convenient for the development and improvement 

of navigation and for the development, transmission, and 

utilization of power across, along, from, or in any of the streams 

or other bodies of water over which Congress has jurisdiction 

under its authority to regulate commerce with foreign nations and 

among the several States, or upon any part of the public lands 

and reservations of the United States (including the Territories), 

or for the purpose of utilizing the surplus water or water power 

from any Government dam, except as herein provided: Provided, 

That licenses shall be issued within any reservation only after a 

finding by the Commission that the license will not interfere or be 

inconsistent with the purpose for which such reservation was 

created or acquired, and shall be subject to and contain such 

conditions as the Secretary of the department under whose 

supervision such reservation falls shall deem necessary for the 

adequate protection and utilization of such reservations: Provided 

further, That no license affecting the navigable capacity of any 

navigable waters of the United States shall be issued until the 

plans of the dam or other structures affecting the navigation have 

been approved by the Chief of Engineers and the Secretary of the 

Army. Whenever the contemplated improvement is, in the 

judgment of the Commission, desirable and justified in the public 

interest for the purpose of improving or developing a waterway or 

waterways for the use or benefit of interstate or foreign 

commerce, a finding to that effect shall be made by the 

Commission and shall become a part of the records of the 

Commission: Provided further, That in case the Commission shall 

find that any Government dam may be advantageously used by 

the United States for public purposes in addition to navigation, no 

license therefore shall be issued until two years after it shall have 

reported to Congress the facts and conditions relating thereto, 

except that this provision shall not apply to any Government dam 

constructed prior to June 10, 1920: And provided further, That 

upon the filing of any application for a license which has not been 

preceded by a preliminary permit under subsection (f) of this 

section, notice shall be given and published as required by the 

proviso of said subsection. In deciding whether to issue any 
APPENDIX A

A-8

license under this Part for any project, the Commission, in 

addition to the power and development purposes for which 

licenses are issued, shall give equal consideration to the 

purposes of energy conservation, the protection, mitigation of 

damage to, and enhancement of, fish and wildlife (including 

related spawning grounds and habitat), the protection of 

recreational opportunities, and the preservation of other aspects 

of environmental quality.

(f) To issue preliminary permits for the purpose of enabling 

applicants for a license hereunder to secure the data and to 

perform the acts required by section 9 hereof: Provided, however, 

That upon the filing of any application for a preliminary permit by 

any person, association, or corporation the Commission, before 

granting such application, shall at once give notice of such 

application in writing to any State or municipality likely to be 

interested in or affected by such application; and shall also 

publish notice of such application once each week for four weeks 

in a daily or weekly newspaper published in the county or 

counties in which the project or any part hereof or the lands 

affected thereby are situated.

(g) Upon its own motion to order an investigation of any 

occupancy of, or evidenced intention to occupy, for the purpose 

of developing electric power, public lands, reservations, or 

streams or other bodies of water over which Congress has 

jurisdiction under its authority to regulate commerce with foreign 

nations and among the several States by any person, 

corporation, State, or municipality and to issue such order as it 

may find appropriate, expedient, and in the public interest to 

conserve and utilize the navigation and water-power resources of 

the region.

Section 5. Each preliminary permit issued under this Part shall 

be for the sole purpose of maintaining priority of application for a 

license under the terms of this Part for such period or periods, not 

exceeding a total of three years, as in the discretion of the 

Commission may be necessary for making examinations and 

surveys, for preparing maps, plans, specifications, and estimates, 

and for making financial arrangements. Each such permit shall set 

forth the conditions under which priority shall be maintained. Such 

permits shall not be transferable, and may be canceled by order 

of the Commission upon failure of permittees to comply with the 

conditions thereof or for other good cause shown after notice and 

opportunity for hearing.

Section 6. Licenses under this Part shall be issued for a period 

not exceeding fifty years. Each such license shall be conditioned 

upon acceptance by the licensee of all of the terms and 

conditions of this Act and such further conditions, if any, as the 

Commission shall prescribe in conformity with this Act, which said 

terms and conditions and the acceptance thereof shall be 

expressed in said license. Licenses may be revoked only for the 

reasons and in the manner prescribed under the provisions of this 

Act, and may be altered or surrendered only upon mutual 

agreement between the licensee and the Commission after thirty 

days' public notice.
APPENDIX A

A-9

Section 7. (a) In issuing preliminary permits hereunder or 

original licenses where no preliminary permit has been issued, 

the Commission shall give preference to applications therefore by 

States and municipalities, provided the plans for the same are 

deemed by the Commission equally well adapted, or shall within 

a reasonable time to be fixed by the Commission be made 

equally well adapted, to conserve and utilize in the public interest 

the water resources of the region; and as between other 

applicants, the Commission may give preference to the applicant 

the plans of which it finds and determines are best adapted to 

develop, conserve, and utilize in the public interest the water 

resources of the region, if it be satisfied as to the ability of the 

applicant to carry out such plans.

(b) Whenever, in the judgment of the Commission, the 

development of any water resources for public purposes should 

be undertaken by the United States itself, the Commission shall 

not approve any application for any project affecting such 

development, but shall cause to be made such examinations, 

surveys, reports, plans, and estimates of the cost of the proposed 

development as it may find necessary, and shall submit its 

findings to Congress with such recommendations as it may find 

appropriate concerning such development.

(c) Whenever, after notice and opportunity for hearing, the 

Commission determines that the United States should exercise 

its right upon or after the expiration of any license to take over 

any project or projects for public purposes, the Commission shall 

not issue a new license to the original licensee or to a new 

licensee but shall submit its recommendation to Congress 

together with such information as it may consider appropriate.

Section 8. No voluntary transfer of any license, or of the rights 

thereunder granted, shall be made without the written approval of 

the Commission; and any successor or assign of the rights of 

such licensee, whether by voluntary transfer, judicial sale, 

foreclosure sale, or otherwise, shall be subject to all the 

conditions of the license under which such rights are held by such 

licensee and also subject to all the provisions and conditions of 

this Act to the same extent as though such successor or assign 

were the original licensee hereunder: Provided, That a mortgage 

or trust deed or judicial sales made thereunder or under tax sales 

shall not be deemed voluntary transfers within the meaning of this 

section.

Section 9. (a) Each applicant for a license hereunder shall 

submit to the Commission -

(1) Such maps, plans, specifications, and estimates of cost as 

may be required for a full understanding of the proposed project. 

Such maps, plans, and specifications when approved by the 

Commission shall be made a part of the license; and thereafter no 

change shall be made in said maps, plans, or specifications until 

such changes shall have been approved and made a part of such 

license by the Commission.

(2) Satisfactory evidence that the applicant has complied with the 

requirements of the laws of the State or States within which the 
APPENDIX A

A-10

proposed project is to be located with respect to bed and banks 

and to the appropriation, diversion, and use of water for power 

purposes and with respect to the right to engage in the business 

of developing, transmitting and distributing power, and in any 

other business necessary to effect the purposes of a license 

under this Act.

(b) Upon the filing of any application for a license (other than a 

license under section 15) the applicant shall make a good faith 

effort to notify each of the following by certified mail:

(1) Any person who is an owner of record of any interest in the 

property within the bounds of the project.

(2) Any Federal, State, municipal or other local governmental 

agency likely to be interested in or affected by such application.

(c) Such additional information as the Commission may require.

Section 10. All licenses issued under this Part shall be on the 

following conditions:

(a) (1) That the project adopted, including the maps, plans, and 

specifications, shall be such as in the judgment of the 

Commission will be best adapted to a comprehensive plan for 

improving or developing a waterway or waterways for the use or 

benefit of interstate or foreign commerce, for the improvement 

and utilization of water-power development, for the adequate 

protection, mitigation, and enhancement of fish and wildlife 

(including related spawning grounds and habitat), and for other 

beneficial public uses, including irrigation, flood control, water 

supply, and recreational and other purposes referred to in section 

4(e); and if necessary in order to secure such plan the 

Commission shall have authority to require the modification of any 

project and of the plans and specifications of the project works 

before approval.

(2) In order to ensure that the project adopted will be best 

adapted to the comprehensive plan described in paragraph (1), 

the Commission shall consider each of the following:

(A) The extent to which the project is consistent with a 

comprehensive plan (where one exists) for improving, developing, 

or conserving a waterway or waterways affected by the project 

that is prepared by -

(i) an agency established pursuant to Federal law that has the 

authority to prepare such a plan; or

(ii) the State in which the facility is or will be located.

(B) The recommendations of Federal and State agencies 

exercising administration over flood control, navigation, irrigation, 

recreation, cultural and other relevant resources of the State in 

which the project is located, and the recommendations (including 

fish and wildlife recommendations) of Indian tribes affected by the 

project.

(C) In the case of a State or municipal applicant, or an applicant 

which is primarily engaged in the generation or sale of electric 

power (other than electric power solely from cogeneration 

facilities or small power production facilities),the electricity 

consumption efficiency improvement program of the applicant, 

including its plans, performance and capabilities for encouraging 

or assisting its customers to conserve electricity cost-effectively, 

taking into account the published policies, restrictions, and 
APPENDIX A

A-11

requirements of relevant State regulatory authorities applicable to 

such applicant.

(3) Upon receipt of an application for a license, the Commission 

shall solicit recommendations from the agencies and Indian tribes 

identified in subparagraphs (A) and (B) of paragraph (2) for 

proposed terms and conditions for the Commission's 

consideration for inclusion in the license.

(b) That except when emergency shall require for the protection 

of navigation, life, health, or property, no substantial alteration or 

addition not in conformity with the approved plans shall be made 

to any dam or other project works constructed hereunder of an 

installed capacity in excess of two thousand horsepower without 

the prior approval of the Commission; and any emergency 

alteration or addition so made shall thereafter be subject to such 

modification and change as the Commission may direct.

(c) That the licensee shall maintain the project works in a 

condition of repair adequate for the purposes of navigation and 

for the efficient operation of said works in the development and 

transmission of power, shall make all necessary renewals and 

replacements, shall establish and maintain adequate depreciation 

reserves for such purposes, shall so maintain, and operate said 

works as not to impair navigation, and shall conform to such rules 

and regulations as the Commission may from time to time 

prescribe for the protection of life, health, and property. Each 

licensee hereunder shall be liable for all damages occasioned to 

the property of others by the construction, maintenance, or 

operation of the project works or of the works appurtenant or 

accessory thereto, constructed under the license and in no event 

shall the United States be liable therefore.

(d) That after the first twenty years of operation, out of surplus 

earned thereafter, if any, accumulated in excess of a specified 

reasonable rate of return upon the net investment of a licensee in 

any project or projects under license, the licensee shall establish 

and maintain amortization reserves, which reserves shall, in the

discretion of the Commission, be held until the termination of the 

license or be applied from time to time in reduction of the net 

investment. Such specified rate of return and the proportion of 

such surplus earnings to be paid into and held in such reserves 

shall be set forth in the license. For any new license issued under 

section 15, the amortization reserves under this subsection shall 

be maintained on and after the effective date of such new license.

(e) (1) That the licensee shall pay to the United States reasonable 

annual charges in an amount to be fixed by the Commission for 

the purpose of reimbursing the United States for the costs of the 

administration of this Part, including any reasonable and 

necessary costs incurred by Federal and State fish and wildlife 

agencies and other natural and cultural resource agencies in 

connection with studies or other reviews carried out by such 

agencies for purposes of administering their responsibilities under 

this Part; for recompensing it for the use, occupancy, and 

enjoyment of its lands or other property; and for the expropriation 

to the Government of excessive profits until the respective States 

shall make provision for preventing excessive profits or for the 

expropriation thereof to themselves, or until the period of 
APPENDIX A

A-12

amortization as herein provided is reached, and in fixing such 

charges the Commission shall seek to avoid increasing the price 

to the consumers of power by such charges, and any such 

charges may be adjusted from time to time by the Commission 

as conditions may require: Provided,

That, subject to annual appropriations Acts, the portion of such 

annual charges imposed by the Commission under this 

subsection to cover the reasonable and necessary costs of such 

agencies shall be available to such agencies (in addition to other 

funds appropriated for such purposes) solely for carrying out such 

studies and reviews and shall remain available until expended:

Provided, That when licenses are issued involving the use of 

Government dams or other structures owned by the United 

States or tribal lands embraced within Indian reservations the 

Commission shall, subject to the approval of the Secretary of the 

Interior in the case of such dams or structures in reclamation 

projects and, in the case of such tribal lands, subject to the 

approval of the Indian tribe having jurisdiction of such lands as 

provided in section 16 of the Act of June 18, 1934 (48 Stat. 984), 

fix a reasonable annual charge for the use thereof, and such 

charges may with like approval be readjusted by the Commission 

at the end of twenty years after the project is available for service 

and at periods of not less than ten years thereafter upon notice 

and opportunity for hearing:

Provided further, That licenses for the development, 

transmission, or distribution of power by States or municipalities 

shall be issued and enjoyed without charge to the extent such 

power is sold to the public without profit or is used by such State 

or municipality for State or municipal purposes, except that as to 

projects constructed or to be constructed by States or 

municipalities primarily designed to provide or improve navigation, 

licenses therefore shall be issued without charge; and that 

licenses for the development, transmission, or distribution of 

power for domestic, mining, or other beneficial use in projects of 

not more than two thousand horsepower installed capacity may 

be issued without charge, except on tribal lands within Indian 

reservations; but in no case shall a license be issued free of 

charge for the development and utilization of power created by 

any Government dam and that the amount charged therefore in 

any license shall be such as determined by the Commission: 

Provided however, That no charge shall be assessed for the use 

of any Government dam or structure by any licensee if, before 

January 1, 1985, the Secretary of the Interior has entered into a 

contract with such licensee that meets each of the following 

requirements:

(A) The contract covers one or more projects for which a license 

was issued by the Commission before January 1, 1985.

(B) The contract contains provisions specifically providing each of 

the following:

(i) A powerplant may be built by the licensee utilizing irrigation 

facilities constructed by the United States.

(ii) The powerplant shall remain in the exclusive control, 

possession, and ownership of the licensee concerned.

(iii) All revenue from the powerplant and from the use, sale, or 

disposal of electric energy from the powerplant shall be, and 

remain, the property of such licensee.(C) The contract is an 
APPENDIX A

A-13

amendatory, supplemental and replacement contract between 

the United States and: (i) the Quincy-Columbia Basin Irrigation 

District (Contract No. 14-06-100-6418); (ii) the East Columbia 

Basin Irrigation District (Contract No. 14-06-100-6419); or, (iii) the 

South Columbia Basin Irrigation District (Contract No. 

14-06-100-6420).

This paragraph shall apply to any project covered by a contract 

referred to in this paragraph only during the term of such contract 

unless otherwise provided by subsequent Act of Congress. In the 

event an overpayment of any charge due under this section shall 

be made by a licensee, the Commission is authorized to allow a 

credit for such overpayment when charges are due for any 

subsequent period.

(2) In the case of licenses involving the use of Government dams 

or other structures owned by the United States, the charges fixed 

(or readjusted) by the Commission under paragraph (1) for the 

use of such dams or structures shall not exceed 1 mill per 

kilowatt-hour for the first 40 gigawatt-hours of energy a project 

produces in any year, 1 1/2 mills per kilowatt-hour for over 40 up 

to and including 80 gigawatt-hours in any year, and 2 mills per 

kilowatt-hour for any energy the project produces over 80 

gigawatt-hours in any year. Except as provided in subsection (f) 

of this section, such charge shall be the only charge assessed by 

any agency of the United States for the use of such dams or 

structures.

(3) The provisions of paragraph (2) shall apply with respect to -

(A) all licenses issued after the date of enactment of this 

paragraph; and

(B) all licenses issued before such date, which -

(i) did not fix a specific charge for the use of the Government dam 

or structure involved; and

(ii) did not specify that no charge would be fixed for the use of 

such dam or structure.

(4) Every 5 years, the Commission shall review the 

appropriateness of the annual charge limitations provided for in 

this subsection and report to Congress concerning its 

recommendations thereon.

(f) That whenever any licensee hereunder is directly benefited by 

the construction work of another licensee, a permittee, or of the 

United States of a storage reservoir or other headwater 

improvement, the Commission shall require as a condition of the 

license that the licensee so benefited shall reimburse the owner 

of such reservoir or other improvements for such part of the 

annual charges for interest, maintenance, and depreciation 

thereon as the Commission may deem equitable. The proportion 

of such charges to be paid by any licensee shall be determined by 

the Commission. The licensees or permittees affected shall pay 

to the United States the cost of making such determination as 

fixed by the Commission.

Whenever such reservoir or other improvement is constructed by 

the United States the Commission shall assess similar charges 

against any licensee directly benefited thereby, and any amount 

so assessed shall be paid into the Treasury of the United States, 
APPENDIX A

A-14

to be reserved and appropriated as a part of the special fund for 

headwater improvements as provided in section 17 hereof.

Whenever any power project not under license is benefited by the 

construction work of a licensee or permittee, the United States or 

any agency thereof, the Commission, after notice to the owner or 

owners of such unlicensed project, shall determine and fix a 

reasonable and equitable annual charge to be paid to the 

licensee or permittee on account of such benefits, or to the 

United States if it be the owner of such headwater improvement.

(g) Such other conditions not inconsistent with the provisions of 

this Act as the Commission may require.

(h) (1) Combinations, agreements, arrangements, or 

understandings, express or implied, to limit the output of 

electrical energy, to restrain trade, or to fix, maintain, or increase 

prices for electrical energy or service are hereby prohibited. (2) 

That conduct under the license that: (A) results in the 

contravention of the policies expressed in the antitrust laws; and 

(B) is not otherwise justified by the public interest considering 

regulatory policies expressed in other applicable law (including 

but not limited to those contained in Part II of this Act) shall be 

prevented or adequately minimized by means of conditions 

included in the license prior to its issuance. In the event it is 

impossible to prevent or adequately minimize the contravention, 

the Commission shall refuse to issue any license to the applicant 

for the project and, in the case of an existing project, shall take 

appropriate action to provide thereafter for the operation and

maintenance of the affected project and for the issuing of a new 

license in accordance with section 15 of this Part.

(i) In issuing licenses for a minor part only of a complete project, 

or for a complete project of not more than two thousand 

horsepower installed capacity, the Commission may in its 

discretion waive such conditions, provisions, and requirements of 

this Part, except the license period of fifty years, as it may deem 

to be to the public interest to waive under the circumstances: 

Provided, That the provisions hereof shall not apply to annual 

charges for use of lands within Indian reservations.

(j)(1) That in order to adequately and equitably protect, mitigate 

damages to, and enhance, fish and wildlife (including related 

spawning grounds and habitat) affected by the development, 

operation, and management of the project, each license issued 

under this Part shall include conditions for such protection, 

mitigation, and enhancement. Subject to paragraph (2), such 

conditions shall be based on recommendations received pursuant 

to the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) 

from the National Marine Fisheries Service, the United States 

Fish and Wildlife Service, and State fish and wildlife agencies.

(2) Whenever the Commission believes that any recommendation 

referred to in paragraph (1) may be inconsistent with the purposes 

and requirements of this Part or other applicable law, the 

Commission and the agencies referred to in paragraph (1) shall 

attempt to resolve any such inconsistency, giving due weight to 

the recommendations, expertise, and statutory responsibilities of 

such agencies. If, after such attempt, the Commission does not 

adopt in whole or in part a recommendation of any such agency, 

the Commission shall publish each of the following findings 

(together with a statement of the basis for each of the findings):
APPENDIX A

A-15

(A) A finding that adoption of such recommendation is 

inconsistent with the purposes and requirements of this Part or 

with other applicable provisions of law.

(B) A finding that the conditions selected by the Commission 

comply with the requirements of paragraph (1). Subsection (i) of 

this section shall not apply to the conditions required under this 

subsection.

Section 11. That if the dam or other project works are to be 

constructed across, along, or in any of the navigable waters of 

the United States, the Commission may, insofar as it deems the 

same reasonably necessary to promote the present and future 

needs of navigation and consistent with a reasonable investment 

cost to the licensee, include in the license any one or more of the 

following provisions or requirements:

(a) That such licensee shall, to the extent necessary to preserve 

and improve navigation facilities, construct, in whole or in part, 

without expense to the United States, in connection with such 

dam, a lock or locks, booms, sluices, or other structures for 

navigation purposes, in accordance with plans and specifications 

approved by the Chief of Engineers and the Secretary of the 

Army and made part of such license.

(b) That in case such structures for navigation purposes are not 

made a part of the original construction at the expense of the 

licensee, then whenever the United States shall desire to 

complete such navigation facilities the licensee shall convey to 

the United States, free of cost, such of its land and its 

rights-of-way and such right of passage through its dams or other 

structures, and permit such control of pools as may be required to 

complete such navigation facilities.

(c) That such licensee shall furnish free of cost to the United 

States power for the operation of such navigation facilities, 

whether constructed by the licensee or by the United States.

Section 12. That whenever application is filed for a project 

hereunder involving navigable waters of the United States, and 

the Commission shall find upon investigation that the needs of 

navigation require the construction of a lock or locks or other 

navigation structures, and that such structures cannot, consistent 

with a reasonable investment cost to the applicant, be provided in 

the manner specified in section 11, subsection (a) hereof, the 

Commission may grant the application with the provision to be 

expressed in the license that the licensee will install the 

necessary navigation structures if the Government fails to make 

provision therefore within a time to be fixed in the license and 

cause a report upon such project to be prepared, with estimates 

of cost of the power development and of the navigation 

structures, and shall submit such report to Congress with such 

recommendations as it deems appropriate concerning the 

participation of the United States in the cost of construction of 

such navigation structures.

Section 13. That the licensee shall commence the construction 

of the project works within the time fixed in the license, which 
APPENDIX A

A-16

shall not be more than two years from the date thereof, shall 

thereafter in good faith and with due diligence prosecute such 

construction, and shall within the time fixed in the license 

complete and put into operation such part of the ultimate 

development as the Commission shall deem necessary to supply 

the reasonable needs of the then available market, and shall from 

time to time thereafter construct such portion of the balance of 

such development as the Commission may direct, so as to supply 

adequately the reasonable market demands until such 

development shall have been completed. The periods for the 

commencement of construction may be extended once but not 

longer than two additional years and the period for the completion 

of construction carried on in good faith and with reasonable 

diligence may be extended by the Commission when not 

incompatible with the public interests. In case the licensee shall 

not commence actual construction of the project works, or of any 

specified part thereof, within the time prescribed in the license or 

as extended by the Commission, then, after due notice given, the 

license shall, as to such project works or part thereof, be 

terminated upon written order of the Commission. In case the 

construction of the project works, or of any specified part thereof, 

has been begun but not completed within the time prescribed in 

the license, or as extended by the Commission, then the Attorney 

General, upon the request of the Commission, shall institute 

proceedings in equity in the district court of the United States for 

the district in which any part of the project is situated for the 

revocation of said license, the sale of the works constructed, and 

such other equitable relief as the case may demand, as provided 

for in section 26 hereof.

Section 14. (a) Upon not less than two years' notice in writing 

from the Commission the United States shall have the right upon 

or after the expiration of any license to take over and thereafter to 

maintain and operate any project or projects as defined in section 

3 hereof, and covered in whole or in part by the license, or the 

right to take over upon mutual agreement with the licensee all 

property owned and held by the licensee then valuable and 

serviceable in the development, transmission, or distribution of 

power and which is then dependent for its usefulness upon the 

continuance of the license, together with any lock or locks or other 

aids to navigation constructed at the expense of the licensee, 

upon the condition that before taking possession it shall pay the 

net investment of the licensee in the project or projects taken, not 

to exceed the fair value of the property taken, plus such 

reasonable damages, if any, to property of the licensee valuable, 

serviceable, and dependent as above set forth but not taken, as 

may be caused by the severance therefrom of property taken, and 

shall assume all contracts entered into by the licensee with the 

approval of the Commission. The net investment of the licensee 

in the project or projects so taken and the amount of such 

severance damages, if any, shall be determined by the 

Commission after notice and opportunity for hearing. Such net 

investment shall not include or be affected by the value of any 

lands, rights-of-way, or other property of the United States 

licensed by the Commission under this Act, by the license or by 
APPENDIX A

A-17

good will, going value, or prospective revenues; nor shall the 

values allowed for water rights, rights-of-way, lands, or interest in 

lands be in excess of the actual reasonable cost thereof at the 

time of acquisition by the licensee: Provided, That the right of the 

United States or any State or municipality to take over, maintain, 

and operate any project licensed under this Act at any time by 

condemnation proceedings upon payment of just compensation 

is expressly reserved.

(b) In any relicensing proceeding before the Commission any 

Federal department or agency may timely recommend, pursuant 

to such rules as the Commission shall prescribe, that the United 

States exercise its right to take over any project or projects. 

Thereafter, the Commission, if its does not itself recommend 

such action pursuant to the provisions of section 7(c) of this part, 

shall upon motion of such department or agency stay the 

effective date of any order issuing a license, except an order 

issuing an annual license in accordance with the proviso of 

section 15(a), for two years after the date of issuance of such 

order, after which period the stay shall terminate, unless 

terminated earlier upon motion of the department or agency 

requesting the stay or by action of Congress. The Commission 

shall notify the Congress of any stay granted pursuant to this 

subsection.

Section 15. (a) (1) If the United States does not, at the 

expiration of the existing license, exercise its right to take over, 

maintain, and operate any project or projects of the licensee, as 

provided in section 14 hereof, the Commission is authorized to 

issue a new license to the existing licensee upon such terms and 

conditions as may be authorized or required under the then 

existing laws and regulations, or to issue a new license under said 

terms and conditions to a new licensee, which license may cover 

any project or projects covered by the existing license, and shall 

be issued on the condition that the new licensee shall, before 

taking possession of such project or projects, pay such amount, 

and assume such contracts as the United States is required to do 

in the manner specified in section 14 hereof: Provided, That in the 

event the United States does not exercise the right to take over or 

does not issue a license to a new licensee, or issue a new license 

to the existing licensee, upon reasonable terms, then the 

Commission shall issue from year to year an annual license to the 

then licensee under the terms and conditions of the existing 

license until the property is taken over or a new license is issued 

as aforesaid.

(2) Any new license issued under this section shall be issued to 

the applicant having the final proposal which the Commission 

determines is best adapted to serve the public interest, except 

that in making this determination the Commission shall ensure 

that insignificant differences with regard to subparagraphs (A) 

through (G) of this paragraph between competing applications are 

not determinative and shall not result in the transfer of a project.

In making a determination under this section (whether or not more 

than one application is submitted for the project), the Commission 

shall, in addition to the requirements of section 10 of this Part, 
APPENDIX A

A-18

consider (and explain such consideration in writing) each of the 

following:

(A) The plans and abilities of the applicant to comply with (i) the 

articles, terms, and conditions of any license issued to it and (ii) 

other applicable provisions of this Part.

(B) The plans of the applicant to manage, operate, and maintain 

the project safely.

(C) The plans and abilities of the applicant to operate and 

maintain the project in a manner most likely to provide efficient 

and reliable electric service.

(D) The need of the applicant over the short and long term for the 

electricity generated by the project or projects to serve its 

customers, including, among other relevant considerations, the 

reasonable costs and reasonable availability of alternative 

sources of power, taking into consideration conservation and 

other relevant factors and taking into consideration the effect on 

the provider (including its customers) of the alternative source of 

power, the effect on the applicant's operating and load 

characteristics, the effect on communities served or to be served 

by the project, and in the case of an applicant using power for the 

applicant's own industrial facility and related operations, the 

effect on the operation and efficiency of such facility or related 

operations, its workers, and the related community. In the case of 

an applicant that is an Indian tribe applying for a license for a 

project located on the tribal reservation, a statement of the need 

of such tribe for electricity generated by the project to foster the 

purposes of the reservation may be included.

(E) The existing and planned transmission services of the 

applicant, taking into consideration system reliability, costs, and 

other applicable economic and technical factors.

(F) Whether the plans of the applicant will be achieved, to the 

greatest extent possible, in a cost effective manner.

(G) Such other factors as the Commission may deem relevant, 

except that the terms and conditions in the license for the 

protection, mitigation, or enhancement of fish and wildlife 

resources affected by the development, operation, and 

management of the project shall be determined in accordance 

with section 10, and the plans of an applicant concerning fish and 

wildlife shall not be subject to a comparative evaluation under this 

subsection.

(3) In the case of an application by the existing licensee, the 

Commission shall also take into consideration each of the 

following:

(A) The existing licensee's record of compliance with the terms 

and conditions of the existing license.

(B) The actions taken by the existing licensee related to the 

project which affect the public.

(b) (1) Each existing licensee shall notify the Commission whether 

the licensee intends to file an application for a new license or not. 

Such notice shall be submitted at least 5 years before the 

expiration of the existing license.

(2) At the time notice is provided under paragraph (1), the existing 

licensee shall make each of the following reasonably available to 

the public for inspection at the offices of such licensee: current 

maps, drawings, data, and such other information as the 
APPENDIX A

A-19

Commission shall, by rule, require regarding the construction and 

operation of the licensed project. Such information shall include, 

to the greatest extent practicable pertinent energy conservation, 

recreation, fish and wildlife, and other environmental information. 

Copies of the information shall be made available at reasonable 

costs of reproduction. Within 180 days after the enactment of the 

Electric Consumers Protection Act of 1986, the Commission shall 

promulgate regulations regarding the information to be provided 

under this paragraph.

(3) Promptly following receipt of notice under paragraph (1), the 

Commission shall provide public notice of whether an existing 

licensee intends to file or not to file an application for a new 

license. The Commission shall also promptly notify the National 

Marine Fisheries Service and the United States Fish and Wildlife 

Service, and the appropriate State fish and wildlife agencies.

(4) The Commission shall require the applicant to identify any 

Federal or Indian lands included in the project boundary, together 

with a statement of the annual fees paid as required by this Part 

for such lands, and to provide such additional information as the 

Commission deems appropriate to carry out the Commission's 

responsibilities under this section.

(c) (1) Each application for a new license pursuant to this section 

shall be filed with the Commission at least 24 months before the 

expiration of the term of the existing license. Each applicant shall 

consult with the fish and wildlife agencies referred to in 

subsection (b) of this section and, as appropriate, conduct 

studies with such agencies. Within 60 days after the statutory 

deadline for the submission of applications, the Commission shall 

issue a notice establishing expeditious procedures for relicensing 

and a deadline for submission of final amendments, if any, to the 

application.

(2) The time periods specified in this subsection and in subsection 

(b) of this section shall be adjusted, in a manner that achieves the 

objectives of this section, by the Commission by rule or order with 

respect to existing licensees who, by reason of the expiration 

dates of their licenses, are unable to comply with a specified time 

period.

(d) (1) In evaluating applications for new licenses pursuant to this 

section, the Commission shall not consider whether an applicant 

has adequate transmission facilities with regard to the project.

(2) When the Commission issues a new license (pursuant to this 

section) to an applicant which is not the existing licensee of the 

project and finds that it is not feasible for the new licensee to 

utilize the energy from such project without provision by the 

existing licensee of reasonable services, including transmission 

services, the Commission shall give notice to the existing licensee 

and the new licensee to immediately enter into negotiations for 

such services and the costs demonstrated by the existing 

licensee as being related to the provision of such services. It is 

the intent of the Congress that such negotiations be carried out in 

good faith and that a timely agreement be reached between the 

parties in order to facilitate the transfer of the license by the date 

established when the Commission issued the new license. If such 

parties do not notify the Commission that within the time 
APPENDIX A

A-20

established by the Commission in such notice (and if appropriate, 

in the judgment of the Commission, one 45-day extension 

thereof), a mutually satisfactory arrangement for such services 

that is consistent with the provisions of this Act has been 

executed, the Commission shall order the existing licensee to file 

(pursuant to section 205 of this Act) with the Commission a tariff, 

subject to refund, ensuring such services beginning on the date 

of transfer of the project and including just and reasonable rates 

and reasonable terms and conditions. After notice and 

opportunity for a hearing, the Commission shall issue a final 

order adopting or modifying such tariff for such services at just 

and reasonable rates in accordance with section 205 of this Act 

and in accordance with reasonable terms and conditions. The 

Commission, in issuing such order, shall ensure the services 

necessary for the full and efficient utilization and benefits for the 

license term of the electric energy from the project by the new 

licensee in accordance with the license and this Part, except that 

in issuing such order the Commission -

(A) shall not compel the existing licensee to enlarge generating 

facilities, transmit electric energy other than to the distribution 

system (providing service to customers) of the new licensee 

identified as of the date one day preceding the date of license 

award, or require the acquisition of new facilities, including the 

upgrading of existing facilities other than any reasonable 

enhancement or improvement of existing facilities controlled by 

the existing licensee (including any acquisition related to such 

enhancement or improvement) necessary to carry out the 

purposes of this paragraph;

(B) shall not adversely affect the continuity and reliability of 

service to the customers of the existing licensee;

(C) shall not adversely affect the operational integrity of the 

transmission and electric systems of the existing licensee;

(D) shall not cause any reasonably quantifiable increase in the 

jurisdictional rates of the existing licensee; and

(E) shall not order any entity other than the existing licensee to 

provide transmission or other services.

Such order shall be for such period as the Commission deems 

appropriate, not to exceed the term of the license. At any time,

the Commission, upon its own motion or upon a petition by the 

existing or new licensee and after notice and opportunity for a 

hearing, may modify, extend, or terminate such order.

(e) Except for an annual license, any license issued by the 

Commission under this section shall be for a term which the 

Commission determines to be in the public interest but not less 

than 30 years, nor more than 50 years, from the date on which 

the license is issued.

(f) In issuing any licenses under this section except an annual 

license, the Commission, on its own motion or upon application of 

any licensee, person, State, municipality, or State commission, 

after notice to each State commission and licensee affected, and 

after opportunity for hearing, whenever it finds that in conformity 

with a comprehensive plan for improving or developing a 

waterway or waterways for beneficial public uses all or part of any 

licensed project should no longer be used or adapted for use for 

power purposes, may license all or part of the project works for 

nonpower use. A license for nonpower use shall be issued to a 
APPENDIX A

A-21

new licensee only on the condition that the new licensee shall, 

before taking possession of the facilities encompassed 

thereunder, pay such amount and assume such contracts as the 

United States is required to do, in the manner specified in section 

14 hereof. Any license for nonpower use shall be a temporary 

license. Whenever, in the judgment of the Commission, a State, 

municipality, interstate agency, or another Federal agency is 

authorized and willing to assume regulatory supervision of the 

lands and facilities included under the nonpower license and 

does so, the Commission shall thereupon terminate the license. 

Consistent with the provisions of the Act of August 15, 1953 (67 

Stat; 16 U.S.C. 828-828c), every licensee for nonpower use shall 

keep such accounts and file such annual and other periodic or 

special reports concerning the removal, alteration, nonpower use, 

or other disposition of any project works or parts thereof covered 

by the nonpower use license as the Commission may by rules 

and regulations or order prescribe as necessary or appropriate.

Section 16. When in the opinion of the President of the United 

States, evidenced by a written order addressed to the holder of 

any license hereunder, the safety of the United States demands 

it, the United States shall have the right to enter upon and take 

possession of any project or part thereof, constructed, 

maintained, or operated under said license, for the purpose of 

manufacturing nitrates, explosives, or munitions of war, or for any 

other purpose involving the safety of the United States, to retain 

possession, management, and control thereof for such length of 

time as may appear to the President to be necessary to 

accomplish said purposes, and then to restore possession and 

control to the party or parties entitled thereto; and in the event 

that the United States shall exercise such right it shall pay to the 

party or parties entitled thereto just and fair compensation for the 

use of said property as may be fixed by the Commission upon the 

basis of a reasonable profit in time of peace, and the cost of 

restoring said property to as good condition as existed at the time 

of the taking over thereof, less the reasonable value of any 

improvements that may be made thereto by the United States and 

which are valuable and serviceable to the licensee.

Section 17. (a) All proceeds from any Indian reservation shall be 

placed to the credit of the Indians of such reservation. All other 

charges arising from licenses hereunder, except charges fixed by 

the Commission for the purpose of reimbursing the United States 

for the costs of administration of this Part, shall be paid into the 

Treasury of the United States, subject to the following distribution: 

12 1/2 per centum thereof is hereby appropriated to be paid into 

the Treasury of the United States and credited to ''Miscellaneous 

receipts''; 50 per centum of the charges arising from licenses 

hereunder for the occupancy and use of public lands and national 

forests shall be paid into, reserved, and appropriated as a part of 

the reclamation fund created by the Act of Congress known as the 

Reclamation Act, approved June 17, 1902; and 37 1/2 per centum 

of the charges arising from licenses hereunder for the occupancy 

and use of national forests and public lands from development 
APPENDIX A

A-22

within the boundaries of any State shall be paid by the Secretary 

of the Treasury to such State; and 50 per centum of the charges 

arising from all other licenses hereunder is reserved and 

appropriated as a special fund in the Treasury to be expended 

under the direction of the Secretary of the Army in the 

maintenance and operation of dams and other navigation 

structures owned by the United States or in the construction, 

maintenance, or operation of headwater or other improvements 

of navigable waters of the United States. The proceeds of 

charges made by the Commission for the purpose of reimbursing 

the United States for the costs of the administration of this Part 

shall be paid into the Treasury of the United States and credited 

to miscellaneous receipts.

(b) In case of delinquency on the part of any licensee in the 

payment of annual charges a penalty of 5 per centum of the total 

amount so delinquent may be added to the total charges which 

shall apply for the first month or part of month so delinquent with 

an additional penalty of 3 per centum for each subsequent month 

until the total of the charges and penalties are paid or until the 

license is canceled and the charges and penalties satisfied in 

accordance with law.

Section 18. The Commission shall require the construction, 

maintenance, and operation by a licensee at its own expense of 

such lights and signals as may be directed by the Secretary of 

the Department in which the Coast Guard is operating, and such 

fishways as may be prescribed by the Secretary of the Interior or 

the Secretary of Commerce, as appropriate. The operation of any 

navigation facilities which may be constructed as a part of or in 

connection with any dam or diversion structure built under the 

provisions of this Act, whether at the expense of a licensee 

hereunder or of the United States, shall at all times be controlled 

by such reasonable rules and regulations in the interest of 

navigation, including the control of the level of the pool caused by 

such dam or diversion structure as may be made from time to 

time by the Secretary of the Army; and for willful failure to comply 

with any such rule or regulation such licensee shall be deemed 

guilty of a misdemeanor, and upon conviction thereof shall be 

punished as provided in section 316 hereof.

Section 19. That as a condition of the license, every licensee 

hereunder which is a public-service corporation, or a person, 

association, or corporation owning or operating any project and 

developing, transmitting, or distributing power for sale or use in 

public service, shall abide by such reasonable regulation of the 

services to be rendered to customers or consumers of power, and

of rates and charges of payment therefor, as may from time to 

time be prescribed by any duly constituted agency of the State in 

which the service is rendered or the rate charged. That in case of 

the development, transmission, or distribution, or use in public 

service of power by any licensee hereunder or by its customer 

engaged in public service within a State which has not authorized 

and empowered a Commission or other agency or agencies 

within said State to regulate and control the services to be 

rendered by such licensee or by its customer engaged in public 

service, or the rates and charges of payment therefor, or the 
APPENDIX A

A-23

amount or character of securities to be issued by any of said 

parties, it is agreed as a condition of such license that jurisdiction 

is conferred upon the Commission, upon complaint of any person 

aggrieved or upon its own initiative, to exercise such regulation 

and control until such time as the State shall have provided a 

Commission or other authority for such regulation and control: 

Provided, That the jurisdiction of the Commission shall cease and 

determine as to each specific matter of regulation and control 

prescribed in this section as soon as the State shall have 

provided a Commission or other authority for the regulation and 

control of that specific matter.

Section 20. That when said power or any part thereof shall enter 

into interstate or foreign commerce the rates charged and the 

service rendered by any such licensee, or by any subsidiary 

corporation, the stock of which is owned or controlled directly or 

indirectly by such licensee, or by any person, corporation, or 

association purchasing power from such licensee for sale and 

distribution or use in public service shall be reasonable, 

nondiscriminatory, and just to the customer and all unreasonable 

discriminatory and unjust rates or services are prohibited and 

declared to be unlawful; and whenever any of the States directly 

concerned has not provided a Commission or other authority to 

enforce the requirements of this section within such State or to 

regulate and control the amount and character of securities to be 

issued by any of such parties, or such States are unable to agree 

through their properly constituted authorities on the services to be 

rendered, or on the rates or charges of payment therefore, or on 

the amount or character of securities to be issued by any of said 

parties, jurisdiction is conferred upon the Commission, upon 

complaint of any person, aggrieved, upon the request of any State 

concerned, or upon its own initiative to enforce the provisions of 

this section, to regulate and control so much of the services 

rendered, and of the rates and charges of payment therefore as 

constitute interstate or foreign commerce and to regulate the 

issuance of securities by the parties included within this section, 

and securities issued by the licensee subject to such regulations 

shall be allowed only for the bona fide purpose of financing and 

conducting the business of such licensee. The administration of 

the provisions of this section, so far as applicable, shall be 

according to the procedure and practice in fixing and regulating 

the rates, charges, and practices of railroad companies as 

provided in the Act to regulate commerce, approved February 4, 

1887, as amended, and that the parties subject to such regulation 

shall have the same rights of hearing, defense, and review as 

said companies in such cases.

In any valuation of the property of any licensee hereunder for 

purposes of rate making, no value shall be claimed by the 

licensee or allowed by the Commission for any project or projects 

under license in excess of the value or values prescribed in 

section 14 hereof for the purposes of purchase by the United 

States, but there shall be included the cost to such licensee of the 

construction of the lock or locks or other aids of navigation and all 

other capital expenditures required by the United States, and no 
APPENDIX A

A-24

value shall be claimed or allowed for the rights granted by the 

Commission or by this Act.

Section 21. That when any licensee cannot acquire by contract 

or pledges an unimproved dam site or the right to use or damage 

the lands or property of others necessary to the construction, 

maintenance, or operation of any dam, reservoir, diversion 

structure, or the works appurtenant or accessory thereto, in 

conjunction with any improvement which in the judgment of the 

Commission is desirable and justified in the public interest for the 

purpose of improving or developing a waterway or waterways for 

the use or benefit of interstate or foreign commerce, it may 

acquire the same by the exercise of the right of eminent domain 

in the district court of the United States for the district in which 

such land or other property may be located, or in the State 

courts. The practice and procedure in any action or proceeding 

for that purpose in the district court of the United States shall 

conform as nearly as may be with the practice and procedure in 

similar action or proceeding in the courts of the State where the 

property is situated: Provided, That United States district courts 

shall only have jurisdiction of cases when the amount claimed by 

the owner of the property to be condemned exceeds $3,000. 

Provided further, That no licensee may use the right of eminent 

domain under this section to acquire any lands or other property 

that, prior to October 24, 1992, were owned by a State or political 

subdivision thereof and were part of or included within any public 

park, recreation area or wildlife refuge established under State or 

local law. In the case of lands or other property that are owned 

by a State or political subdivision and are part of or included 

within a public park, recreation area or wildlife refuge established 

under State or local law on or after October 24, 1992, no licensee 

may use the right of eminent domain under this section to acquire 

such lands or property unless there has been a public hearing 

held in the affected community and a finding by the Commission, 

after due consideration of expressed public views and the 

recommendations of the State or political subdivision that owns 

the lands or property, that the license will not interfere or be 

inconsistent with the purposes for which such lands or property 

are owned.

Section 22. That whenever the public interest requires or justifies 

the execution by the licensee of contracts for the sale and delivery 

of power for periods extending beyond the date of termination of 

the license, such contracts may be entered into upon the joint 

approval of the Commission and of the public-service 

Commission or other similar authority in the State in which the 

sale or delivery of power is made, or if sold or delivered in a State 

which has no such public-service commission, then upon the 

approval of the Commission, and thereafter, in the event of failure 

to issue a new license to the original licensee at the termination of 

the license, the United States or the new licensee, as the case 

may be, shall assume and fulfill all such contracts.

Section 23. (a) The provisions of this Part shall not be construed 

as affecting any permit or valid existing right-of-way heretofore 

granted or as confirming or otherwise affecting any claim, or as 
APPENDIX A

A-25

affecting any authority heretofore given pursuant to law, but any 

person, association, corporation, State, or municipality holding or 

possessing such permit, right-of-way or authority may apply for a 

license under this Act, and upon such application the 

Commission may issue to any such applicant a license in 

accordance with the provisions of this Part and in such case the 

provisions of this Act shall apply to such applicant as a licensee 

hereunder: Provided, That when application is made for a license 

under this section for a project or projects already constructed the 

fair value of said project or projects determined as provided in 

this section, shall for the purposes of this Part and of said license 

be deemed to be the amount to be allowed as the net investment 

of the applicant in such project or projects as of the date of such 

license, or as of the date of such determination, if license has not 

been issued. Such fair value shall be determined by the 

Commission after notice and opportunity for hearing.

(b)(1) It shall be unlawful for any person, State, or municipality, 

for the purpose of developing electric power, to construct, 

operate, or maintain any dam, water conduit, reservoir, power 

house, or other works incidental thereto across, along, or in any 

of the navigable waters of the United States, or upon any part of 

the public lands or reservations of the United States (including 

the Territories), or utilize the surplus water or water power from 

any Government dam, except under and in accordance with the 

terms of a permit or valid existing right-of-way granted prior to 

June 10, 1920, or a license granted pursuant to this Act. Any 

person, association, corporation, State, or municipality intending 

to construct a dam or other project works, across, along, over, or 

in any stream or part thereof, other than those defined herein as 

navigable waters, and over which Congress has jurisdiction under 

its authority to regulate commerce with foreign nations and 

among the several States shall before such construction file 

declaration of such intention with the Commission, whereupon the 

Commission shall cause immediate investigation of such 

proposed construction to be made, and if upon investigation it 

shall find that the interests of interstate or foreign commerce 

would be affected by such proposed construction, such person, 

association, corporation, State, or municipality shall not construct, 

maintain, or operate such dam or other project works until it shall 

have applied for and shall have received a license under the 

provisions of this Act. If the Commission shall not so find, and if 

no public lands or reservations are affected, permission is granted 

to construct such dam or other project works in such stream upon 

compliance with State laws.

(2) No person may commence any significant modification of any 

project licensed under, or exempted from, this Act unless such 

modification is authorized in accordance with terms and 

conditions of such license or exemption and the applicable 

requirements of this Part. As used in this paragraph, the term 

''commence'' refers to the beginning of physical on-site activity 

other than surveys or testing.
APPENDIX A

A-26

Section 24. Any lands of the United States included in any 

proposed projection under the provisions of this Part shall from 

the date of filing of application therefor be reserved from entry, 

location, or other disposal under the laws of the United States 

until otherwise directed by the Commission or by Congress. 

Notice that such application has been made, together with the 

date of filing thereof and a description of the lands of the United 

States affected thereby, shall be filed in the local land office for 

the district in which such lands are located. Whenever the 

Commission shall determine that the value of any lands of the 

United States so applied for, or heretofore or hereafter reserved 

or classified as power sites, will not be injured or destroyed for 

the purposes of power development by location, entry, or 

selection under the public-land laws, the Secretary of the Interior, 

upon notice of such determination, shall declare such lands open 

to location, entry, or selection, for such purpose or purposes and 

under such restrictions as the Commission may determine, 

subject to and with a reservation of the right of the United States 

or its permittees or licensees to enter upon, occupy, and use any 

part or all of said lands necessary, in the judgment of the 

Commission, for the purposes of this Part, which right shall be 

expressly reserved in every patent issued for such lands; and no 

claim or right to compensation shall accrue from the occupation 

or use of any of said lands for said purposes. The United States 

or any licensee for any such lands hereunder may enter 

thereupon for the purposes of this Part, upon payment of any 

damages to crops, buildings, or other improvements caused 

thereby to the owner thereof, or upon giving a good and sufficient 

bond to the United States for the use and benefit of the owner to 

secure the payment of such damages as may be determined and 

fixed in an action brought upon the bond in a court of competent 

jurisdiction, said bond to be in the form prescribed by the 

Commission: Provided, That locations, entries, selections, or 

filings heretofore made for lands reserved as water-power sites, 

or in connection with water-power development, or electrical 

transmission may proceed to approval or patent under and 

subject to the limitations and conditions in this section contained: 

Provided further, That before any lands applied for, or heretofore 

or hereafter reserved, or classified as power sites, are declared 

open to location, entry, or selection by the Secretary of the 

Interior, notice of intention to make such declaration shall be 

given to the Governor of the State within which such lands are 

located, and such State shall have ninety days from the date of 

such notice within which to file, under any statute or regulation 

applicable thereto, an application for the reservation to the State, 

or any political subdivision thereof, of any lands required as a 

right-of-way for a public highway or as a source of materials for 

the construction and maintenance of such highways, and a copy 

of such application shall be filed with the Federal Power 

Commission; and any location, entry, or selection of such lands, 

or subsequent patent thereof, shall be subject to any rights 

granted the State pursuant to such application.

Section 25. [Repealed August 26, 1935.]
APPENDIX A

A-27

Section 26. That the Attorney General may, on request of the 

Commission or of the Secretary of the Army, institute 

proceedings in equity in the district court of the United States in 

the district in which any project or part thereof is situated for the 

purpose of revoking for violation of its terms any permit or license 

issued hereunder, or for the purpose of remedying or correcting 

by injunction, mandamus, or other process any act of commission 

or omission in violation of the provisions of this Act or of any 

lawful regulation or order promulgated hereunder. The district 

courts shall have jurisdiction over all of the above-mentioned 

proceedings and shall have power to issue and execute all 

necessary process and to make and enforce all writs, orders and 

decrees to compel compliance with the lawful orders and 

regulations of the Commission and of the Secretary of the Army, 

and to compel the performance of any condition imposed under 

the provisions of this Act. In the event a decree revoking a 

license is entered, the court is empowered to sell the whole or 

any part of the project or projects under license, to wind up the 

business of such licensee conducted in connection with such 

project or projects, to distribute the proceeds to the parties 

entitled to the same, and to make and enforce such further orders 

and decrees as equity and justice may require. At such sale or 

sales the vendee shall take the rights and privileges belonging to 

the licensee and shall perform the duties of such licensee and 

assume all outstanding obligations and liabilities of the licensee 

which the court may deem equitable in the premises; and at such 

sale or sales the United States may become a purchaser, but it 

shall not be required to pay a greater amount than it would be 

required to pay under the provisions of section14 hereof at the 

termination of the license.

Section 27. That nothing contained herein shall be construed as 

affecting or intending to affect or in any way to interfere with the 

laws of the respective States relating to the control, appropriation, 

use, or distribution of water used in irrigation or for municipal or 

other uses, or any vested right acquired therein.

Section 28. That the right to alter, amend, or repeal this Act is 

expressly reserved; but no such alteration, amendment, or repeal 

shall affect any license theretofore issued under the provisions of 

this Act or the rights of any licensee thereunder.

Section 29. That all Acts or parts of Acts inconsistent with this 

Act are repealed: Provided, That nothing contained herein shall 

be held or construed to modify or repeal any of the provisions of 

the Act of Congress approved December 19, 1913, granting 

certain rights-of-way to the city and county of San Francisco, in 

the State of California. Provided further, That section 18 of an Act 

making appropriations for the construction, repair and 

preservation, of certain public works on rivers and harbors, and 

for other purposes, approved August 8, 1917, is hereby 

repealed.''
APPENDIX A

A-28

Section 30. (a) Except as provided in subsection (b) or (c), the 

Commission may grant an exemption in whole or in part, from the 

requirements of this part, including any license requirements 

contained in this part, to any facility (not including any dam or 

other impoundment) constructed, operated, or maintained for the 

generation of electric power which the Commission determines, 

by rule or order -

(1) is located on non-Federal lands, and

(2) utilizes for such generation only the hydroelectric potential of 

a manmade conduit, which is operated for the distribution of 

water for agricultural, municipal, or industrial consumption and 

not primarily for the generation of electricity.

(b) The Commission may not grant any exemption under 

subsection (a) to any facility the installed capacity of which 

exceeds 15 megawatts (40 megawatts in the case of a facility 

constructed, operated, and maintained by an agency or 

instrumentality of a State or local government solely for water 

supply for municipal purposes).

(c) In making the determination under subsection (a) of this 

section the Commission shall consult with the United States Fish 

and Wildlife Service, National Marine Fisheries Service and the 

State agency exercising administration over the fish and wildlife 

resources of the State in which the facility is or will be located, in 

the manner provided by the Fish and Wildlife Coordination Act 

(16 U.S.C. 661, et seq.), and shall include in any such exemption 

-(1) such terms and conditions as the Fish and Wildlife Service, 

National Marine Fisheries Service and the State agency each 

determine are appropriate to prevent loss of, or damage to, such 

resources and to otherwise carry out the purposes of such Act, 

and

(2) such terms and conditions as the Commission deems 

appropriate to insure that such facility continues to comply with 

the provisions of this section and terms and conditions included in 

any such exemption.

(d) Any violation of a term or condition of any exemption granted 

under subsection (a) shall be treated as a violation of a rule or 

order of the Commission under this Act.

(e) The Commission, in addition to the requirements of section 

10(e), shall establish fees which shall be paid by an applicant for 

a license or exemption for a project that is required to meet terms 

and conditions set by fish and wildlife agencies under subsection 

(c). Such fees shall be adequate to reimburse the fish and wildlife 

agencies referred to in subsection (c) for any reasonable costs 

incurred in connection with any studies or other reviews carried 

out by such agencies for purposes of compliance with this 

section. The fees shall, subject to annual appropriations Acts, be 

transferred to such agencies by the Commission for use solely for 

purposes of carrying out such studies and shall remain available 

until expended.

Section 31. Enforcement

(a) Monitoring and investigation.--The Commission shall monitor 

and investigate compliance with each license and permit issued 

under this Part and with each exemption granted from any 

requirement of this Part. The Commission shall conduct such 

investigations as may be necessary and proper in accordance 
APPENDIX A

A-29

with this Act. After notice and opportunity for public hearing, the 

Commission may issue such orders as necessary to require 

compliance with the terms and conditions of licenses and permits 

issued under this Part and with the terms and conditions of 

exemptions granted from any requirement of this Part.

(b) Revocation orders.--After notice and opportunity for an 

evidentiary hearing, the Commission may also issue an order 

revoking any license issued under this Part or any exemption 

granted from any requirement of this Part where any licensee or 

exemptee is found by the Commission:

(1) to have knowingly violated a final order issued under 

subsection (a) after completion of judicial review (or the 

opportunity for judicial review); and

(2) to have been given reasonable time to comply fully with such 

order prior to commencing any revocation proceeding. In any 

such proceeding, the order issued under subsection (a) shall be 

subject to de novo review by the Commission. No order shall be 

issued under this subsection until after the Commission has 

taken into consideration the nature and seriousness of the 

violation and the efforts of the licensee to remedy the violation.

(c) Civil penalty.--Any licensee, permittee, or exemptee who 

violates or fails or refuses to comply with any rule or regulation 

under this Part, any term, or condition of a license, permit, or 

exemption under this Part, or any order issued under subsection 

(a) shall be subject to a civil penalty in an amount not to exceed 

$10,000 for each day that such violation or failure or refusal 

continues. Such penalty shall be assessed by the Commission 

after notice and opportunity for public hearing. In determining the 

amount of a proposed penalty, the Commission shall take into 

consideration the nature and seriousness of the violation, failure, 

or refusal and the efforts of the licensee to remedy the violation, 

failure, or refusal in a timely manner. No civil penalty shall be 

assessed where revocation is ordered.

(d) Assessment.--(1) Before issuing an order assessing a civil 

penalty against any person under this section, the Commission 

shall provide to such person notice of the proposed penalty. Such 

notice shall, except in the case of a violation of a final order 

issued under subsection (a), inform such person of his opportunity 

to elect in writing within 30 days after the date of receipt of such 

notice to have the procedures of paragraph (3) (in lieu of those of 

paragraph (2)) apply with respect to such assessment.

(2)(A) In the case of the violation of a final order issued under 

subsection (a), or unless an election is made within 30 calendar 

days after receipt of notice under paragraph (1) to have paragraph 

(3) apply with respect to such penalty, the Commission shall 

assess the penalty, by order, after a determination of violation has 

been made on the record after an opportunity for an agency 

hearing pursuant to section 554 of title 5, United States Code, 

before an administrative law judge appointed under section 3105 

of such title 5. Such assessment order shall include the 

administrative law judge's findings and the basis for such 

assessment.

(B) Any person against whom a penalty is assessed under this 

paragraph may, within 60 calendar days after the date of the 
APPENDIX A

A-30

order of the Commission assessing such penalty, institute an 

action in the United States court of appeals for the appropriate 

judicial circuit for judicial review of such order in accordance with 

Act 7 of title 5, United States Code. The court shall have 

jurisdiction to enter a judgment affirming, modifying, or setting 

aside in whole or in Part, the order of the Commission, or the 

court may remand the proceeding to the Commission for such 

further action as the court may direct.

(3)(A) In the case of any civil penalty with respect to which the 

procedures of this paragraph have been elected, the Commission 

shall promptly assess such penalty, by order, after the date of the 

receipt of the notice under paragraph (1) of the proposed penalty.

(B) If the civil penalty has not been paid within 60 calendar days 

after the assessment order has been made under subparagraph 

(A), the Commission shall institute an action in the appropriate 

district court of the United States for an order affirming the 

assessment of the civil penalty. The court shall have authority to 

review de novo the law and the facts involved, and shall have 

jurisdiction to enter a judgment enforcing, modifying, and 

enforcing as so modified, or setting aside in whole or in Part,

such assessment.

(C) Any election to have this paragraph apply may not be 

revoked except with the consent of the Commission.

(4) The Commission may compromise, modify, or remit, with or 

without conditions, any civil penalty which may be imposed under 

this subsection, taking into consideration the nature and 

seriousness of the violation and the efforts of the licensee to 

remedy the violation in a timely manner at any time prior to a final 

decision by the court of appeals under paragraph (2) or by the 

district court under paragraph (3).

(5) If any person fails to pay an assessment of a civil penalty after 

it has become a final and unappealable order under paragraph 

(2), or after the appropriate district court has entered final 

judgment in favor of the Commission under paragraph (3), the 

Commission shall institute an action to recover the amount of 

such penalty in any appropriate district court of the United States. 

In such action, the validity and appropriateness of such final 

assessment order or judgment shall not be subject to review.

(6)(A) Notwithstanding the provisions of title 28, United States 

Code, or of this Act, the Commission may be represented by the 

general counsel of the Commission (or any attorney or attorneys 

within the Commission designated by the Chairman) who shall 

supervise, conduct, and argue any civil litigation to which 

paragraph (3) of this subsection applies (including any related 

collection action under paragraph (5)) in a court of the United 

States or in any other court, except the Supreme Court. However, 

the Commission or the general counsel shall consult with the 

Attorney General concerning such litigation, and the Attorney 

General shall provide, on request, such assistance in the conduct 

of such litigation as may be appropriate.

(B) The Commission shall be represented by the Attorney 

General, or the Solicitor General, as appropriate, in actions under 

this subsection, except to the extent provided in subparagraph (A) 

of this paragraph.
APPENDIX A

A-31

Section. 32. Alaska State Jurisdiction over Small Hydroelectric 

Projects.

(a) DISCONTINUANCE OF REGULATION BY THE 

COMMISSION- Notwithstanding sections 4(e) and 23(b), the 

Commission shall discontinue exercising licensing and regulatory 

authority under this part over qualifying project works in the State 

of Alaska, effective on the date on which the Commission 

certifies that the State of Alaska has in place a regulatory 

program for water-power development that--

(1) protects the public interest, the purposes listed in paragraph 

(2), and the environment to the same extent provided by licensing 

and regulation by the Commission under this part and other 

applicable Federal laws, including the Endangered Species Act 

(16 U.S.C. 1531 et seq.) and the Fish and Wildlife Coordination 

Act (16 U.S.C. 661 et seq.);

(2) gives equal consideration to the purposes of--

(A) energy conservation;

(B) the protection, mitigation of damage to, and enhancement of, 

fish and wildlife (including related spawning grounds and habitat);

(C) the protection of recreational opportunities;

(D) the preservation of other aspects of environmental quality;

(E) the interests of Alaska Natives; and

(F) other beneficial public uses, including irrigation, flood control, 

water supply, and navigation; and

(3) requires, as a condition of a license for any project works--

(A) the construction, maintenance, and operation by a licensee at 

its own expense of such lights and signals as may be directed by 

the Secretary of the Department in which the Coast Guard is 

operating, and such fishways as may be prescribed by the 

Secretary of the Interior or the Secretary of Commerce, as 

appropriate;

(B) the operation of any navigation facilities which may be 

constructed as part of any project to be controlled at all times by 

such reasonable rules and regulations as may be made by the 

Secretary of the Army; and

(C) conditions for the protection, mitigation, and enhancement of 

fish and wildlife based on recommendations received pursuant to 

the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) 

from the National Marine Fisheries Service, the United States 

Fish and Wildlife Service, and State fish and wildlife agencies.

(b) DEFINITION OF `QUALIFYING PROJECT WORKS'- For 

purposes of this section, the term `qualifying project works' means 

project works--

(1) that are not part of a project licensed under this part or 

exempted from licensing under this part or section 405 of the 

Public Utility Regulatory Policies Act of 1978 prior to the date of 

the enactment of this section;

(2) for which a preliminary permit, a license application, or an 

application for an exemption from licensing has not been 

accepted for filing by the Commission prior to the date of the 

enactment of subsection (c) (unless such application is withdrawn 

at the election of the applicant);

(3) that are part of a project that has a power production capacity 

of 5,000 kilowatts or less;
APPENDIX A

A-32

(4) that are located entirely within the boundaries of the State of 

Alaska; and

(5) that are not located in whole or in part on any Indian 

reservation, a conservation system unit (as defined in section 

102(4) of the Alaska National Interest Lands Conservation Act 

(16 U.S.C. 3102(4))), or segment of a river designated for study 

for addition to the Wild and Scenic Rivers System.

(c) ELECTION OF STATE LICENSING- In the case of 

nonqualifying project works that would be a qualifying project 

works but for the fact that the project has been licensed (or 

exempted from licensing) by the Commission prior to the 

enactment of this section, the licensee of such project may in its 

discretion elect to make the project subject to licensing and 

regulation by the State of Alaska under this section.

(d) PROJECT WORKS ON FEDERAL LANDS- With respect to 

projects located in whole or in part on a reservation, a 

conservation system unit, or the public lands, a State license or 

exemption from licensing shall be subject to--

(1) the approval of the Secretary having jurisdiction over such 

lands; and

(2) such conditions as the Secretary may prescribe.

(e) CONSULTATION WITH AFFECTED AGENCIES- The 

Commission shall consult with the Secretary of the Interior, the 

Secretary of Agriculture, and the Secretary of Commerce before 

certifying the State of Alaska's regulatory program.

(f) APPLICATION OF FEDERAL LAWS- Nothing in this section 

shall preempt the application of Federal environmental, natural 

resources, or cultural resources protection laws according to their 

terms.

(g) OVERSIGHT BY THE COMMISSION- The State of Alaska 

shall notify the Commission not later than 30 days after making 

any significant modification to its regulatory program. The 

Commission shall periodically review the State's program to 

ensure compliance with the provisions of this section.

(h)RESUMPTION OF COMMISSION AUTHORITYNotwithstanding subsection (a), the Commission shall reassert its 

licensing and regulatory authority under this part if the 

Commission finds that the State of Alaska has not complied with 

one or more of the requirements of this section.

(i) DETERMINATION BY THE COMMISSION- (1) Upon 

application by the Governor of the State of Alaska, the 

Commission shall within 30 days commence a review of the State 

of Alaska's regulatory program for water-power development to 

determine whether it complies with the requirements of 

subsection (a).

(2) The Commission's review required by paragraph (1) shall be 

completed within 1 year of initiation, and the Commission shall 

within 30 days thereafter issue a final order determining whether 

or not the State of Alaska's regulatory program for water-power 

development complies with the requirements of subsection (a).

(3) If the Commission fails to issue a final order in accordance 

with paragraph (2) the State of Alaska's regulatory program for 

water-power development shall be deemed to be in compliance 

with subsection (a).
APPENDIX B

OTHER FEDERAL STATUTES

APPENDIX B

B-1

In addition to the powers and responsibilities granted to the

Federal Energy Regulatory Commission (FERC) by the Federal 

Power Act (FPA), several other laws and executive orders affect

the licensing process. Seven federal laws are particularly

prominent in their influence. What follows are brief summaries of

these laws, which do not substitute for examination of the actual

statutory language. 

NATIONAL ENVIRONMENTAL POLICY 

ACT

The National Environmental Policy Act of 1969 (NEPA) identified

environmental protection as a major national policy objective. 

The NEPA requires all federal agencies involved in the

permitting of activities affecting the environment to evaluate

environmental impacts and the significance of these impacts. 

The NEPA process is to be used to identify and assess the

reasonable alternatives to proposed actions, and federal

agencies are to use all practical means to restore and enhance 

the quality of the human environment and to avoid or minimize 

any possible adverse effects of their actions upon the quality of 

the human environment. FERC is bound by the statutory

requirements of the NEPA and maintains a policy adhering to the

objectives of the NEPA.

FISH AND WILDLIFE COORDINATION 

ACT

The Fish and Wildlife Coordination Act (FWCA) requires federal

agencies granting a license or permit for the control,

impoundment, or modification of streams and water bodies to

first consult with the U.S. Department of the Interior, Fish and

Wildlife Service (FWS) and the appropriate state fish agencies 

regarding conservation of these resources.

A federal agency licensing a water-resource development project

is required under the FWCA to give full consideration to the

recommendations of FWS and the state fish and wildlife agency 

Aon the wildlife aspects of such projects.@ FERC is now directed

to not only consult with FWS and the state agencies but also to 

include in each license conditions for the protection, mitigation, 

and enhancement of fish and wildlife. Those conditions are to be

based on recommendations received pursuant to the FWCA from

the National Marine Fisheries (NOAA FISHERIES), FWS, and

state fish and wildlife agencies.

As a result of the work of the ITF, the Commission and the

Secretaries of the Interior, Agriculture, and Commerce signed an

agreement to improve and accelerate hydropower licensing. The

agreement includes commitments by the resource agencies to

seek public input on mandatory conditions and to participate in 

the alternative licensing process. 
APPENDIX B

B-2

NATIONAL HISTORIC PRESERVATION 

ACT

The National Historic Preservation Act (NHPA) was enacted and

amended to require the federal government to accelerate its historic

preservation programs and to encourage such efforts on state,

local, and private levels. Compliance with the NHPA may be

coupled with FERC’s NEPA compliance where a federal action such

as licensing affects a historical or cultural resource. In licensing,

FERC is bound by the provisions of the NHPA, which requires it to 

take into account the effect of the action on any district, site,

building, structure, or object that is included in or eligible for

inclusion in the National Register of Historic Places, and to give the

Advisory Council on Historic Preservation (ACHP) a reasonable

opportunity to comment on a proposed action. ACHP promulgated 

revised regulations at 36 CFR 800 on May 18, 1999 and again on 

January 11, 2001. 

ENDANGERED SPECIES ACT

The purpose of the Endangered Species Act (ESA) is to provide a 

system for protecting and conserving endangered and threatened 

species and protecting the ecosystems upon which they depend. 

Under the ESA, based on the best scientific and commercial data 

available, various species are categorized by regulation as

endangered or threatened species. In addition, the critical habitat 

for endangered and threatened species is also designated based on

best available scientific data and consideration of the economic

impact of such a designation.

In hydropower project licensing, FERC must consult with FWS or 

NOAA FISHERIES to determine whether the agency action is likely 

to jeopardize the continued existence of any endangered or

threatened species or result in critical habitat destruction. Where 

endangered or threatened species may be present in the area of a 

hydroelectric project proposed for licensing, FERC may be required

to prepare a biological assessment for the purpose of identifying

any endangered or threatened species likely to be affected by

licensing. This biological assessment may be undertaken as an

integral part of NEPA compliance.

CLEAN WATER ACT

Under Section 401 of the Clean Water Act (CWA), a license

applicant must obtain certification from the state or interstate

pollution control agency verifying compliance with the CWA. 

FERC’s licensing process requires an applicant for a hydropower

project to consult with the Acertifying agency@ under Section 401 of 

the CWA. Evidence of a request for water quality certification must

be filed with the Commission no later than 60 days after the

Commission issues its ready for environmental analysis notice. 
APPENDIX B

B-3

WILD AND SCENIC RIVERS ACT

The Wild and Scenic Rivers Act provides for the protection and

preservation of certain rivers and their immediate environments by

instituting a national wild and scenic rivers system. Rivers may be

included in this system either by an act of Congress or by the

Secretary of the Interior, upon application by a governor. 

Section 7(a) of the Wild and Scenic Rivers Act provides that the

Commission shall not license the construction of project works on 

or directly affecting any river which is designated as a component 

of the Wild and Scenic River system. Moreover, all departments 

and agencies of the United States are precluded from assisting (by

loan, grant, license, or other method) the construction of any water

resources project that would have a direct and adverse effect on 

the values for which a component of the wild and scenic rivers

system was established. Section 7(a) further provides that the

foregoing provisions do not preclude the licensing of, or assistance

to, "developments below or above a wild, scenic, or recreational 

river area or on any tributary thereto which will not invade the area 

or unreasonably diminish the scenic, recreational, and fish and

wildlife values present in the area on the date of designation of a 

river as a component of the National Wild and Scenic Rivers

System." 

Section 7(b) provides the same protection for rivers being studied 

for inclusion in the wild and scenic rivers system (for limited

periods while the rivers are being studied), except that the word

"unreasonably" does not appear before "diminish."

AMERICANS WITH DISABILITIES ACT 

(ADA)

The Americans with Disabilities Act was created to protect the 

civil rights of persons with disabilities. Titles II and III of the ADA 

apply to licensee’s recreation facilities. This law required public 

and private entities which have Apublic accommodations@ to be 

accessible to persons with disabilities. Although FERC does not

specifically require ADA-compliant facilities, licensees must 

consider the disabled when planning recreational facilities, and 

new recreational facilities and access areas at hydropower 

projects must comply with the requirements of the ADA. 

PACIFIC NORTHWEST POWER PLANNING 

AND CONSERVATION ACT

Under Section 4(h) of the Pacific Northwest Power Planning and 

Conservation Act (Act), the Pacific Northwest Planning Council

(Council) developed the Columbia River Basin Fish and Wildlife

Program (Program) to protect, mitigate, and enhance the fish and 

wildlife resources associated with development and operation of 

hydroelectric projects within the Columbia River Basin. Section

4(h) of the Act states that responsible federal and state agencies 

should provide equitable treatment for fish and wildlife resources, 
APPENDIX B

B-4

in addition to other purposes for which hydropower is developed, 

and that these agencies shall take into account, to the fullest

extent practicable, the Program adopted under the Act.

The program directs agencies to consult with federal and state fish

and wildlife agencies, appropriate Indian tribes, and the Council

during the study, design, construction, and operation of any

hydroelectric development in the basin. Section 12.1A of the

Program outlines conditions that should be provided for in any

original or new license. The program also designates certain river 

reaches as protected from development. If the project is not within

the Columbia River Basin, this section would not be included.
APPENDIX C

DEFINITIONS AND ACRONYMS

APPENDIX C

C-1

Adequate License 

Application:

a determination by the FERC that a license application conforms to the requirements for the 

particular project type as specified in 18 CFR Part 4 and 16.

APEA: Applicant Prepared Environmental Assessment.

CEA: Cumulative Effects Analysis

Competing development 

application:

any application for a license or exemption from licensing for a proposed water power project that 

would develop, conserve, and utilize, in whole or in part, the same or mutually exclusive water 

resources that would be developed, conserved, and utilized by a proposed water power project for 

which an initial preliminary permit or initial development application has been filed and is pending 

before the Commission.

Comprehensive 

plan:

those comprehensive plans referenced in Section 10(a)(2)(A) of the Federal Power Act, as defined 

by FERC regulations (18 CFR 2.19).

Conduit: any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar constructed water conveyance that is 

operated for the distribution of water for agricultural, municipal, or industrial consumption and not 

primarily for the generation of electricity. The term Anot primarily for the generation of electricity@

includes but is not limited to a conduit:

-which was built for the distribution of water for agricultural, municipal, or industrial consumption

and is operated for such a purpose; and

-to which a hydroelectric facility has been or is proposed to be added.

Cumulative impacts: the effect on the environment which results from the incremental impact of the action when added 

to other past, present, and reasonably foreseeable future actions. Cumulative impacts can result 

from individually minor, but collectively significant actions taking place over a period of time.

CWA: Clean Water Act

for the purposes of provisions governing application for license of a major project existing dam, 
APPENDIX C

C-2

Dam: means any structure for impounding or diverting water.

for the purposes of provisions governing application for exemption of a small conduit hydroelectric 

facility, means any structure that impounds water.

for the purposes of provisions governing application for exemption of a small hydroelectric power 

project, means any structure for impounding water, including any diversion structure that is 

designed to obstruct all or substantially all of the flow of a natural body of water.

Deficient: License 

Application:

a determination by the Director, OEP that an application does not fully conform to the requirements 

for the particular project type as specified in 18 CFR Parts 4 and 16. An applicant having a 

deficient application is afforded additional time to correct the deficiencies.

Development application: any application for either a license or exemption from licensing for a proposed water power project.

Dismissal: the termination of license application processing resulting from a determination by FERC that an 

applicant has failed to provide timely additional information or documents that the Commission 

requires as being relevant for an informed decision.

EA: environmental assessment

EIS: environmental impact statement

EPA: United States Environmental Protection Agency

EPAct: Energy Policy Act of 1992

ESA: Endangered Species Act

Existing dam: for the purposes of provisions governing application for license of a major project, existing dam,

means any dam that has already been constructed and which does not require any construction or 

enlargement of impoundment structures other than repairs or reconstruction.
APPENDIX C

C-3

for the purposes of provisions governing application for exemption of a small hydroelectric power 

project, means any dam, the construction of which was completed on or before April 20, 1977, and 

which does not require any construction or enlargement of impoundment structures (other than 

repairs or reconstruction) in connection with the installation of any small hydroelectric power 

project.

Existing impoundment: for the purposes of provisions governing application for license of a major project C existing dam, 

means any body of water that an existing dam impounds.

Federal lands: for the purposes of provisions governing application for exemption of a small hydroelectric power 

project, means any lands to which the United States holds fee title. [18 CFR 4.30(8)].

FERC: Federal Energy Regulatory Commission

Fish and wildlife agencies: the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the state 

agency in charge of administrative management over fish and wildlife resources of the state in 

which a proposed hydropower project is located.

Fish and wildlife 

recommendation:

any recommendation designed to protect, mitigate damages to, or enhance any wild member of the 

animal kingdom, including any migratory or nonmigratory mammal, fish, bird, amphibian, reptile, 

mollusk, crustacean, or other invertebrate, whether or not bred, hatched, or born in captivity, and 

includes any egg or offspring thereof, related breeding or spawning grounds, and habitat. A Afish 

and wildlife recommendation@ includes a request for a study which cannot be completed prior to 

licensing, but does not include a request that the proposed project not be constructed or operated, 

a request for additional pre-licensing studies or analysis or, as the term is used in Sections 

4.34(e)(2) and 4.34(f)(3) of the Commission’s regulations, a recommendation for facilities, 

programs, or other measures to benefit recreation or tourism. [18 CFR 4.30(9)]

Fishway: The items which may constitute a `fishway' under section 18 for the safe and timely upstream and 

downstream passage of fish shall be limited to physical structures, facilities, or devices necessary 
APPENDIX C

C-4

to maintain all life stages of such fish, and project operations and measures related to such 

structures, facilities, or devices which are necessary to ensure the effectiveness of such structures, 

facilities, or devices for such fish.(Pub. L. No. 102-486 [Oct. 24, 1992], 106 Stat. 3096.)

FLMA: Federal Land Management Agency

FPA: Federal Power Act

FWCA: Fish and Wildlife Coordination Act

IFIM: Instream Flow Incremental Methodology

Indian tribe: in reference to a proposal to apply for a license or exemption for a hydropower project, an Indian 

tribe which is recognized by treaty with the United States, by federal statute, or by the U.S. 

Department of the Interior in its periodic listing of tribal governments in the Federal Register in 

accordance with 25 CFR 83.6(b), and whose legal rights as a tribe may be affected by the 

development and operation of the hydropower project proposed (as where the operation of the 

proposed project could interfere with the management and harvest of anadromous fish or where 

the project works would be located within the tribe’s reservation).

Initial development 

application:

any acceptable application for either a license or exemption from licensing for a proposed water 

power project that would develop, conserve, and utilize, in whole or in part, water resources for 

which no other acceptable application for a license or exemption from licensing has been submitted 

for filing and is pending before the Commission.

Install or increase: means to add new generating capacity at a site that has no existing generating units, to replace or 

rehabilitate an abandoned or unused existing generating unit, or to increase the generating 

capacity of any existing power plant by installing an additional generating unit or by rehabilitating 

an operable generating unit in a way that increases its rated electric power output.

Interagency Task Force (ITF): work group formed to improve relations with federal and state agencies.
APPENDIX C

C-5

Licensed water power project: a project, as defined in Section 3(11) of the Federal Power Act, that is licensed under Part I of the 

Federal Power Act.

Major modified project: any major project (existing dam) that would include:

-any repair, modification or reconstruction of an existing dam that would result in a significant 

change in the normal maximum surface area or the normal maximum surface elevation of an 

existing impoundment; or

-any change in existing project works or operations resulting in a significant environmental impact.

Major unconstructed project: any unlicensed water power project that would:

-have a total installed generating capacity of more than 1.5 MW; and

-use the water power potential of a dam and impoundment which, at the time application is filed, 

have not been constructed.

Major project existing dam: a licensed or unlicensed, existing or proposed water power project that would:

-have a total installed generating capacity or more than 2,000 horsepower (1.5 MW); and

-not use the water power potential provided by any dam except an existing dam.

Major project 5 MW or less: any major project/existing dam or any major unconstructed project or major modified project that 

has a total installed capacity of 5 MW or less.

Minor water power project: any licensed or unlicensed, existing or proposed water power project that would have a total 

installed generation capacity of 2,000 horsepower (1.5 MW), or less.

Mitigation: the act of making a potential impact from a major modification, new project, or nonpower project 

less severe.
APPENDIX C

C-6

Mitigation includes but is not limited to:

-avoiding the impact altogether by not taking a certain action or parts of an action;

-minimizing impacts by limiting the degree or magnitude of the action and its implementation;

-rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

-reducing or eliminating the impact over time by preservation and maintenance operations during 

the life of the action; and

-compensating for the impact by replacing or providing substitute resources or environments.

MW: megawatts

MOA: Memorandum of Agreement

NEPA: National Environmental Policy Act

New development: for the purposes of provisions governing application for license of a major project-existing dam, 

means any construction installation, repair, reconstruction, or other change in the existing state of 

project works or appurtenant facilities, including any dredging and filling in project waters.

NGO: Non Governmental Organization

NHPA: National Historic Preservation Act of 1966 as amended

NOI: Notice of Intent to file a license application

Non-Federal lands: for the purposes of provisions governing application for exemption of a small conduit hydroelectric 

facility, any lands except lands to which the United States holds fee title.

for the purposes of provisions governing application for exemption of a small hydroelectric power 

project, any lands other than federal lands defined in paragraph (b)(8) of Commission regulations.

Nonpower license: a temporary license for a project that is in transition from power generation to termination of 

Commission regulation there over.
APPENDIX C

C-7

NOPR: Notice of Proposed Rulemaking

NPS: National Park Service

OEP: Office of Energy Projects

Original license: the first license issued for an existing or proposed hydroelectric project.

PAD Pre-Application Document , which contains existing, relevant and reasonably available information 

to enable issue identification, information needs, and study request and plan preparation.

Patently deficient: a determination by the Commission staff that an application substantially fails to comply with the 

requirements specified in 18 CFR Parts 4 and 16, or that the application is for a project that is 

precluded by law. 

An application determined to be patently deficient may be denied.

Person: any individual and, as defined in Section 3(4) of the Federal Power Act, any corporation, 

municipality, or state.

Project: for the purposes of provisions governing application for exemption of a small hydroelectric power 

project, means: (i) The impoundment and any associated dam, intake, water conveyance facility, 

power plant, primary transmission line, and other appurtenant facility if a lake or similar natural 

impoundment or a constructed impoundment is used for power generation; or (ii) Any diversion 

structure other than a dam and any associated water conveyance facility, power plant, primary 

transmission line, and other appurtenant facility if a natural water feature other than a lake or 

similar natural impoundment is used for power generation. [18 CFR 4.30(22)]

PURPA benefits: means benefits under section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA). 

Section 210(a) of PURPA requires electric utilities to purchase electricity from, and to sell electricity 

to, qualifying facilities, which may include hydroelectric projects.
APPENDIX C

C-8

Qualified exemption 

applicant:

any person who meets the requirements specified in Section 4.31(c)(2) of the Commission’s

regulations with respect to a small hydroelectric power project for which exemption from licensing is 

sought.

Qualified license applicant: any person to whom the Commission may issue a license, as specified in section 4(e) of the 

Federal Power Act.

Ready for environmental 

analysis (REA): 

the point in the processing of an application for an original or new license or exemption from 

licensing which has been accepted for filing, where substantially all additional information 

requested by the Commission has been filed and found adequate.

Rejection: the response of the FERC to an application determined by the Commission to be patently deficient. 

An application that is rejected may be resubmitted, but the date the rejected application is 

resubmitted is considered the filing date.

Resource agency: a federal, state, or interstate agency exercising administration over the areas of flood control, 

navigation, irrigation, recreation, fish and wildlife, water resource management (including water 

rights), or cultural or other relevant resources of the state or states in which a project is or will be 

located.

SCORP: State Comprehensive Outdoor Recreation Plan 

SD Scoping Document 

Section 106: refers to Section 106 of the National Historic Preservation Act

SHPO: State Historic Preservation Officer

Small hydroelectric project: any project in which capacity will be installed or increased after the date of notice of exemption or 

application under Subpart K of 18 CFR Parts 4and 16, which will have a total installed capacity of 

not more than 5 MW and which meets the specific criteria of 18 CFR 4.30(b)(27).
APPENDIX C

C-9

SMP: Shoreline Management Plan

Subsequent license: A license for a hydroelectric project issued under Part I of the Federal Power Act after a minor or 

minor part license that is not subject to sections 14 and 15 of the Federal Power Act expires.

WQC: Water Quality Certification (401 Certification)

APPENDIX D

GUIDELINES FOR PREPARING EXHIBIT E

APPENDIX D

D-1

GUIDELINES FOR PREPARING 

EXHIBIT E

The exact form and content of the environmental report (Exhibit 

E) will depend on the licensing process followed (ILP, ALP, TLP 

2), and the size and type of project (i.e. major or minor,

constructed or un-constructed, etc.)(See Chapter 2). 

Nonetheless, certain information is commonly needed by the

Commission to evaluate a project. Inclusion of this information 

will expedite licensing decisions and decrease the potential for 

deficient applications. For applicants using the integrated

licensing process, the contents of the Exhibit E build upon the

information contained in the pre-application document. See 18 

CFR 5.6 for detailed information that should be included in the 

pre-application document.

The Exhibit E should clearly explain the applicant’s overall

assessment of the resource needs in the project area and how 

the applicant proposes to satisfy those needs in a balanced way 

through the proposed set of project modifications, protection,

mitigation, and enhancement measures, including:

• the view of agencies, affected Indian tribes, and the public 

with respect to resource needs in the project vicinity and

region;

• the applicant’s position with respect to resource needs and 

the applicant’s proposal for addressing project-related effects

on the resources. The applicant should address the relative 

importance of the various resources to the nation, region,

and immediate locale and the basis for agreement or

disagreement with agencies and tribes; and

• detailed protection, mitigation, and enhancement plans for

each affect resource area, as appropriate, including a full

discussion of any differences between the applicant’s

proposals and recommendations of the agencies, tribes, and

the public.

The level of treatment of each resource should be

commensurate with the area's resource needs, the sensitivity of

the resource issues, and the nature, scope, and size of the

project.

Environmental issues are typically the most complex 

aspects of relicensing. Appropriate consideration of the 

types of information contained in this appendix will 

assist in the development of focused studies, issue 

identification, and a complete application.

The Exhibit E that is prepared following the integrated 

licensing process must address the resources listed in 

the pre-application document, and meet certain format 

and content requirements.
APPENDIX D

D-2

The Commission recommends that applicants rely on six

principal guides in deciding on content and extent of Exhibit E:

1. the applicable sections of 18 CFR Part 5; Part 4 and as 

identified in 16 for the minimum information items

necessary for license application acceptance;

2. dialogue with resource agencies, Indian tribes, and the

public, through the consultation process and possibly

public meetings, to determine the relative importance and

sensitivity of the area's environmental resources and

management objectives for those resources;

3. recognition that the Commission process is subject to

NEPA and therefore an EA or EIS will need to be

prepared. The Commission's NEPA documents are

detailed and must include staff-developed 

recommendations based on a thorough evaluation of the 

project effects, the applicant's proposal, and agency

protection, mitigation, and enhancement

recommendations and conditions as well as other factors;

4. recognition that the Commission considers the applicant 

responsible to provide information necessary for the

Commission to determine license conditions;

5. the Commission's March 2001, APreparing Environmental

Assessments: Guidelines for Applicants, Contractors, and

Staff@(see the Commission web page), as applicable; and

6. the Commission staff suggestions compiled for this

handbook.

The items are organized according to the topics addressed by the 

Commission staff in an EA or EIS, beginning with a general

description of the river basin.

General Description of the River Basin

The Exhibit E should begin with a description of the river system,

including its tributaries, the basin and length of river (identify river 

mile markers), general topography and climate, major land and

water uses, proximity to cities, and economic activity within the

basin. The information should promote an understanding of the

Exhibit E should be characterized as an open-minded

attempt to identify the existing environment, the 

potential effects of the project, resource needs, and 

the project's ability to satisfy those needs relative to 

project effects.

In deciding on the adequacy of Exhibit E, the applicant 

should ask: "Will the Commission be able to prepare an 

EA or EIS on the basis of Exhibit E information being 

submitted?"
APPENDIX D

D-3

environmental setting of the project. The most important

environmental matters you discuss here will be treated more

extensively in subsequent resource sections.

Cumulative Effects

Applicants should identify resources that may be cumulatively

affected by the proposed action. Applicants should structure their 

discussion on cumulative effects around a logical geographic and 

temporal scope of analysis for those resources and describe how 

resources are cumulatively affected. The discussion should

identify past, present and future actions and their effects on

resources based on the new license term (30-50) years. (See

Commission’s publication: Guidelines for Preparing Environmental 

Assessments for more detail).

Applicable Laws 

The Exhibit E should include a discussion of the status of

compliance with or consultation under the following laws:

• Section 401 of the Clean Water Act. Applicants must file

no later than 60 days from the REA notice, a request for 

water quality certification (WQC), as required by section

401 of the Clean Water Act.

• Endangered Species Act (ESA). Applicants must briefly

describe the process used to address project effects on

Federally listed or proposed species in the project vicinity

and summarize any anticipated environmental effects on 

these species while providing the status of the consultation

process.

• Magnuson-Stevens Fishery Conservation and

Management Act. The applicant must document any

essential fish habitat (EFH) that may be affected by the

project. Within the context of this discussion, the applicant

must address each managed species and life stage for

which EFH was designated.

• Coastal Zone Management Act (CZMA). If the project is 

located within a designated coastal zone or if a project

affects a resource located in the designated coastal zone, 

the applicant must certify that the project is consistent with 

the state Coastal Zone Management Program, and receive

the state’s concurrence in the consistency certification.

• National Historic Preservation Act (NHPA). The applicant 

must document its efforts to identify historic properties

eligible for listing on National Register of Historic Places

(NRHP), potential effects, and mitigation measures to

minimize those effects. If there would be an adverse effect

on historic properties, the applicant may include a Historic 

Properties Management Plan (HPMP) to avoid or mitigate 

the effects. The applicant must include documentation of 

consultation with the Advisory Council, the State Historic 

Preservation Officer, Tribal Historic Preservation Officer,
APPENDIX D

D-4

National Park Service, members of the public, and affected

Indian tribes, where applicable.

• Pacific Northwest Power Planning and Conservation Act. If 

the project is located within the Columbia River Basin,

applicants should demonstrate that they have consulted

with Northwest Power Planning Council and explain how 

their proposal is consistent with purposes of the Pacific

Northwest Power Planning and Conservation Act.

• Wild and Scenic River and Wilderness Act. Include a

description of any areas within or in the vicinity of the

proposed project boundary that are (1) included in, or have

been designated for study for inclusion in, the National

Wild and Scenic Rivers System; or (2) that are designated 

as wilderness area, have been recommended for such

designation, or have been designated as a wilderness

study area under the Wilderness Act.

Project Facilities and Operation

In the case of the Exhibit E prepared under the integrated or

alternative licensing process, the exhibit should also provide a

description of the project that includes:

• Maps showing existing and proposed project facilities,

lands, and waters within the project boundary;

• Configuration of any dams, spillways, penstocks, canals, 

powerhouses, tailraces, and other structures;

• The normal maximum water surface area and normal

maximum water surface elevation (mean sea level), gross 

storage capacity of any impoundments;

• Number, type, and minimum and maximum hydraulic

capacity and installed capacity of existing and proposed

turbines or generators to be included as part of the project; 

• An estimate of the dependable capacity, and average

annual energy production in kilowatt hours; and

• A description of the current and proposed operation of the 

project, including any daily or seasonal ramping rates,

flushing flows, reservoir operations, and flood control

operations.

Proposed Action and Action Alternatives

Irrespective of the licensing process, the environmental document

must contain an explanation of the effects the applicant’s proposal

would have on resources. This analysis should extend to the 

effects of any alternatives to the applicant’s proposal (i.e., any

preliminary terms and conditions filed with the Commission), and 

any unavoidable adverse impacts. 
APPENDIX D

D-5

Geology and Soils

! a description of the geologic features, including bedrock

lithology, stratigraphy, structural features, glacial features,

unconsolidated deposits, and mineral resources at the

project site. This should include a description of soils in

the project area, including soil types, occurrence,

erodability, and potential for mass soil movement, and a

description of the geology of the project area, including

bedrock type, unconsolidated deposits, and active or

dormant mass movements;

! description of the reservoir shorelines and stream banks, 

including the steepness, composition and vegetative cover;

existing erosion, mass soil movement, slumping, or other 

forms of instability, including identification of project

facilities or operations that are known to or may cause

these conditions;

! if there are existing areas of continuing erosion or slope

instability, include a plan to stabilize these areas. This

plan should include a narrative describing the soil types

and geologic characteristics which could contribute to

future erosion or slope instability, including streambank or 

reservoir shoreline erosion; the type of control measures to

be used; and a topographic map showing the specific

locations of the proposed control measures;

! discussion of the need for periodic removal of accumulated

sediments and associated spoil disposal plans;

! discussion of sediment transport and deposition,

particularly in the reservoir and bypassed reach,

associated with any proposed project modifications;

! applicable, discussion of toxic sediments, including plans 

for testing and proper disposal if necessary; and

! for construction activities (including fishways or

recreational development), specific plans for disposal of

excavated materials and control of erosion and

sedimentation. This plan should be self contained and

must include the following:

u detailed topographic maps showing project features

and site conditions;

u detailed descriptions of the existing topography,

bedrock lithology, groundwater, vegetation, drainage, 

and soils;

u descriptions of the nature and extent of proposed landdisturbing activities;

u detailed descriptions of control measures, including the

types and locations of control measures;
APPENDIX D

D-6

u descriptions of how restored disposal sites would be

visually compatible with the surrounding landscape

characteristics;

u plan and section drawings of the proposed disposal

sites showing existing and post-disposal conditions;

u a specific implementation schedule;

u project construction period and during project

operation; 

u documentation of consultation with the agencies prior 

to preparing the plan;

u copies of agency comments or recommendations on

the completed plan after it has been prepared and

provided to the agencies; and

u specific descriptions of how all agency comments and 

recommendations are accommodated by the plan.

Water Use and Quality

Include a description of the quality and quantity of all waters

affected by the project including, but not limited to, project

reservoir(s), tributaries thereto, bypassed reach, and tailrace. 

Components include: 

! Drainage Area;

! Monthly minimum, mean, and maximum recorded flows in 

cubic feet per second of the stream or other body of water 

at the powerplant intake or point of diversion, specifying

any adjustments made for evaporation, leakage, minimum

flow releases, or other reductions available flow;

! monthly, not just yearly, flow duration curves and data

indicating the period of record and the location of gauging 

station(s), including identification number(s), used in

deriving the curve; and a specification of the critical

streamflow used to determine the project’s dependable

capacity;

! data on mainstem and tributary inflows to the project

reservoir, tailrace area and any bypassed reach, including 

seasonal quantities, and information of existing water uses

and rights and water rights applications potentially

affecting or affected by the project; and if quality differs

from the mainstream, tributary water quality data;

! at least two years of actual gaged flow data to allow

verification of any synthetic hydrographs submitted;

! description of the local groundwater regime; for example, 

the hydraulic connection between the reservoir and

surrounding area;
APPENDIX D

D-7

! specific information on the state and federal water quality 

standards (including seasonal variability) that apply to the 

project site and a detailed explanation of how the project 

meets the standards. This should include data on

dissolved oxygen, temperature (including seasonal vertical

profiles in the reservoir), total dissolved gas, pH, total

hardness, specific conductance, chlorophyll a, suspended

sediment concentrations, alkalinity, nutrients (total

phosphorus and nitrogen), fecal coliform (E. Coli) and

contaminants as applicable;

! where there is a lengthy bypassed reach, water quality

data at the dam, near the downstream end of the bypassed

reach, and at any intermediate point where water quality

changes abruptly;

! existing and proposed uses of project waters for irrigation,

domestic water supply, industrial and other purposes,

including any upstream of downstream requirements or

constraints to accommodate those purposes.

! results of temperature modeling where necessary to

characterize impacts and identify protection, mitigation,

and enhancement measures. Any model used should be 

justified, calibrated, and tested, and supporting

documentation should be provided;

! results of modeling the project's impact on downstream

dissolved oxygen levels, supported by model

documentation where necessary to characterize impacts 

and identify protection, mitigation, and enhancement

measures; 

! surface area, volume, maximum depth, mean depth,

flushing rate, shoreline length, substrate composition;

gradient for downstream reaches directly affected by the

proposed project; and

! identification of other water-related facilities in the

immediate project area, such as sewage treatment and

water withdrawals

! environmental measures proposed or recommended to

address any water quality effects.

Fish and Aquatic Resources

! a description of the fisheries management (e.g., stocking) 

and resource goals of the agencies;

! a description of fish and macroinvertebrate assemblages, 

including invasive species in the project vicinity;

! temporal and special distribution of fish and aquatic

communities, and any associated trends, species and life 

stage composition, standing crop, age and growth data,

spawning run timing, and extent and location of spawning,

rearing, feeding, and wintering habitat;
APPENDIX D

D-8

! intake velocities, screen or trashrack spacing, and

description of any passage information;

! plans and functional design drawings of all fish passage

and screening facilities, including proposed design criteria;

and an assessment of flow needs (e.g., results of flow

studies for different life history stages of target species

over a full range of candidate flows, not just the applicant's 

proposed flow, including applicant-developed fish habitat 

curves, if applicable and where none exist;

! environmental measures proposed or recommended to

address any effects on fish and aquatic communities.

Wildlife and Botanical Resources

! detailed information on the existing project-related 

environment, e.g., cover types and species (plant and

animal) including invasive species, habitat extent, and

habitat use. 

! wildlife management plan for enhancement of transmission

corridor habitat, including characterization of the wildlife,

present management, and proposed changes in

management plans; and

! temporal or spatial distribution of species considered

important because of their commercial, recreational, or

cultural value;

! environmental measures proposed or recommended to

address any effects on wildlife and botanical communities.

Wetlands, Riparian, and Littoral Habitat

! Description of the floodplain, wetlands, riparian habitats, 

and littoral resources in the project vicinity;

! List the plant and animal species, including invasive

species, that use the wetland, riparian and littoral habitat;

! A map delineating the wetlands, riparian, and littoral

habitat

! Estimates of acreage for each type of wetland, riparian, or 

littoral habitat, including variability in such availability as a 

function of storage at a project that is not operated in runof-river mode

! environmental measures proposed or recommended to

address any effects on wetland and riparian communities.
APPENDIX D

D-9

Rare, Threatened and Endangered Species

! A list of Federal and state-listed, or proposed to be listed, 

threatened and endangered species known to be present 

in the project vicinity;

! Identification of habitat requirements;

! References to any known biological opinion, status reports,

or recovery plan pertaining to a listed species;

! Extent and location of any federally-designated critical

habitat, or other habitat for listed species in the project

area; and temporal and spatial distribution of the listed

species within the project vicinity

! environmental measures proposed or recommended to

address any effects on threatened and endangered

species.

Recreation Resources

! existing and potential recreational uses in the project area,

including downstream use, whether or not facilities have

been developed to support such uses, capacity, ownership

and management;

! existing and potential future recreation use data, not

merely unsubstantiated estimates;

! evaluation of recreation needs identified in current State

Comprehensive Outdoor Recreation Plans, other

applicable plans on file with the Commission, or other

relevant local, state, or regional conservation and

recreation plans; and a determination of whether the need 

can be accommodated by existing facilities or by additional

recreational facilities at the project;

! adequacy and condition of existing recreation facilities;

! Existing shoreline buffer zones within the project boundary;

! maps showing the location and nature of existing and

proposed recreation facilities, public access areas,

undeveloped informal use locations, and areas set aside

for future recreational development;

! identification of existing and proposed handicappedaccessible recreational facilities;

! construction schedule for new or expanded recreation

facilities and identification of the entity responsible for

construction, operation, and maintenance;

! impacts of any proposed project modifications and project 

operations on downstream or reservoir-based recreation; 

and
APPENDIX D

D-10

! identification of safety features to protect the public

engaged in recreation;

! discussion of whether the project is located within or

adjacent to National Wild and Scenic River systems and/or

state protected river segments;

! discussion of how proposed or recommended recreational

facilities would address any current or future demands of 

project facilities.

Aesthetics

! identification of viewer locations and evaluation of the

sensitivity of visual quality to any proposed modifications to

project facilities and, if applicable, altered flows in the

bypassed reach;

! description of the visual compatibility of proposed project 

modifications with the surrounding landscape, including

linear features such as transmission lines, penstocks, and 

canals;

! assessment of the visual impacts of modifications of the 

project facilities;

! as appropriate, narrated color video cassette tape

recording and/or color photographs of the exterior of all 

project facilities and of the range of streamflows in the

bypassed reach. The video and photographs should

show the overall land character using both large and

small scale views, proposed construction sites, if any,

and proposed minimum flow levels compared to

seasonal flows from the same vantage point;

! discussion of alternative ways to enhance the visual

quality of the project facilities and streamflows to

minimize the visual contrast of the project with the

surrounding landscape; and

! estimate of the construction, operation, and maintenance

costs of each visual enhancement alternative and the

effect of these costs on the economics of the project.

Cultural Resources

! Identification of any historic or archaeological site in the 

proposed project vicinity, with particular emphasis on

sites or properties either listed in, or recommended by

the State Historic Preservation Officer or Tribal Historic

Preservation Officer for inclusion in, the National

Register of Historic Places;

! Existing discovery measures, such as surveys,

inventories, and limited subsurface testing work, for the 

purpose of locating, identifying, and assessing the

significance of historic and archaeological resources that
APPENDIX D

D-11

have been undertaken within or adjacent to the project 

boundary; and

! Identification of Indian tribes that may attach religious

and cultural significance to historic properties within the 

project boundary or in the project vicinity; as well as

available information on Indian traditional cultural and

religious properties, whether on or off of any Federallyrecognized Indian reservation (A potential applicantmust 

delete from any information made available under this

section specific site or property locations, the disclosure 

of which would create a risk of harm, theft, or destruction 

of archaeological or Native American cultural resources 

or to the site at which the resources are located, or

would violate any Federal law, including the

Archaeological Resources Protection Act of 1979, 16

U.S.C. 470w-3, and the National Historic Preservation

Act of 1966, 16 U.S.C. 470hh).

! a description of project construction and operation

effects on historic properties, including traditional cultural

properties;

! a description of any proposed environmental measures 

(including any cultural resource management plans) to

address any environmental effects, or if sites are found 

during operation.

Socioeconomics

! For original construction and larger projects where some

facility modification is being proposed, a socioeconomic

report should be provided that includes a delineation of the

socioeconomic area; a description of general land use, 

employment, population, and personal income trends in

the impact area; an evaluation of impact of any substantial

in-migration on the impact area's government facilities and

services; on-site manpower requirements and payroll

during and after project construction; source of project

construction personnel and forecasted residence

arrangements during construction; housing availability

assessment; discussion of residences and businesses

displaced, property acquisition procedures and relocation 

assistance; and a local governmental fiscal impact

analysis;

! For smaller projects without major construction, the

socioeconomic report can be limited to a discussion of the 

project's ongoing effects on the local economy and

government fiscal position; and

! Estimates should be provided for changes in employment 

or income associated with any anticipated modifications to

recreation use in the project area, such as whitewater

rafting, boating, or fishing.
APPENDIX D

D-12

Tribal Resources

! Identification of information on resources specified above 

to the extent that existing project construction and

operation affecting those resources may impact tribal

cultural or economic interests; and

! Identification of impacts on Indian tribes of existing project

construction and operation that may affect trial interests

not necessarily associated with the above resource e.g.,

tribal fishing practices or agreements between the tribe

and other entities other than the potential applicant that

have a connection to project construction and operation.

Land Use and Comprehensive Plans

! Identification of all relevant comprehensive plans and

land management plans, and a discussion of the

project's consistency or lack of consistency with each

plan 

! if not consistent, justification for accepting the lack of

consistency;

! depiction of uses of land and resources adjacent to the 

project using maps, air photos, or drawings that clearly 

delineate the project boundary and boundaries of public 

lands;

! description of shoreline and reservoir management plans

and their relation to adjacent uses of land and resources;

and

! documentation of consultation with agencies having land

management or planning/zoning authority in the area.

The Commission encourages potential applicants to develop

shoreline management plans (SMPs), in cooperation with resource

agencies, adjoining property owners, local governments, and other

interested entities. An SMP helps the applicant and the

Commission to reach a reasonable balance between

developmental and recreational interests and wildlife and fisheries 

resource values. These plans would be revised periodically after 

licensing, with Commission approval, to accommodate changes to

environmental and economic circumstances.

Economic Analysis

Irrespective of the licensing process, an applicant must provide in 

the Exhibit E an estimate of the cost of any proposed facilities and 

for implementing each proposed resource protection, mitigation, or

enhancement measure, including any specific measure filed with 

the Commission by agencies, Indian tribes, or members of the

public when the application is filed. 

Under the integrated licensing process, these costs must include

annualized, current cost-based information. For an applicant
APPENDIX D

D-13

seeking a new or subsequent license using the integrated licensing

process, the applicant must include the cost of operating and

maintaining the project under the existing license. For an original 

license, the applicant must estimate the cost of constructing,

operating, and maintaining the proposed project. For an existing 

license, the applicant's economic analysis must estimate the value

of developmental resources associated with the project under the 

current license and the applicant's proposal. For an original

license, the applicant must estimate the value of the

developmental resources for the proposed project. As applicable, 

these developmental resources may include power generation,

water supply, irrigation, navigation, and flood control. Where

possible, the value of developmental resources must be based on 

market prices. If a protection, mitigation, or enhancement measure

reduces the amount or value of the project's developmental

resources, the applicant must estimate the reduction.