167 FERC ¶ 61,050

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Part 7

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

Hydroelectric Licensing Regulations Under the

America’s Water Infrastructure Act of 2018

(Issued April 18, 2019)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final Rule.

SUMMARY: In this final rule, the Federal Energy Regulatory Commission 

(Commission) is establishing an expedited process for issuing original licenses for 

qualifying facilities at existing nonpowered dams and for closed-loop pumped storage 

projects, pursuant to sections 3003 and 3004 of the America’s Water Infrastructure Act of 

2018. Under the expedited licensing process, the Commission will seek to ensure that a 

final decision is issued no later than two years after the Commission receives a completed 

license application. The final rule will be codified in a new part that will be added to the 

Commission’s regulations. 

EFFECTIVE DATE: The rule will become effective [INSERT DATE 90 DAYS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]

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FOR FURTHER INFORMATION CONTACT:

Shana Wiseman (Technical Information) 

Office of Energy Projects

Federal Energy Regulatory Commission

888 First Street NE

Washington, DC 20426

(202) 502-8736

shana.wiseman@ferc.gov 

Kenneth Yu (Legal Information) 

Office of the General Counsel

Federal Energy Regulatory Commission

888 First Street NE

Washington, DC 20426

(202) 502-8482

kenneth.yu@ferc.gov

Tara DiJohn (Legal Information) 

Office of the General Counsel

Federal Energy Regulatory Commission

888 First Street NE

Washington, DC 20426

(202) 502-8671

tara.dijohn@ferc.gov

SUPPLEMENTARY INFORMATION:

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UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Hydroelectric Licensing Regulations Under the 

America’s Water Infrastructure Act of 2018

Docket No. RM19-6-000

ORDER NO. 858

FINAL RULE

TABLE OF CONTENTS

Paragraph Numbers

I. Background ..................................................................................................................... 3.

II. Notice of Proposed Rulemaking .................................................................................... 6.

III. Discussion..................................................................................................................... 7.

A. Scope of the Expedited Licensing Process................................................................ 7.

1. Pre-filing Process................................................................................................. 11.

2. Relicense Proceedings......................................................................................... 15.

3. Amendment Proceedings..................................................................................... 18.

B. Expedited Licensing Process................................................................................... 22.

1. Section 7.1 – Applicability and Definitions ........................................................ 22.

2. Section 7.2 – Use of Expedited Licensing Process ............................................. 32.

3. Section 7.3 – Adequacy Review of Application ................................................. 85.

4. Section 7.4 – Additional Information .................................................................. 87.

5. Section 7.5 – Decision on Request to Use Expedited Licensing Process ........... 89.

6. Section 7.6 – Notice of Acceptance and Ready for Environmental Analysis..... 94.

7. Section 7.7 – Amendment of Application ........................................................... 98.

8. Section 7.8 – Other Provisions.......................................................................... 101.

9. Section 7.9 – Transition Provision .................................................................... 106.

C. Other Matters......................................................................................................... 108.

1. Projects that Require an EIS.............................................................................. 108.

2. FPA Section 35© Exceptions............................................................................ 116.

IV. Regulatory Requirements......................................................................................... 119.

A. Information Collection Statement......................................................................... 119.

B. Environmental Analysis ........................................................................................ 134.

C. Regulatory Flexibility Act..................................................................................... 135.

D. Document Availability .......................................................................................... 139.

E. Effective Date and Congressional Notification..................................................... 142.

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167 FERC ¶ 61,050

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Neil Chatterjee, Chairman;

 Cheryl A. LaFleur and Richard Glick.

 

Hydroelectric Licensing Regulations Under the 

America’s Water Infrastructure Act of 2018

Docket No. RM19-6-000

ORDER NO. 858

FINAL RULE

(Issued April 18, 2019)

On October 23, 2018, the America’s Water Infrastructure Act (AWIA)1 was 

signed into law. The AWIA requires the Federal Energy Regulatory Commission 

(Commission or FERC) to establish an expedited process for issuing and amending 

licenses for qualifying facilities at existing nonpowered dams and for closed-loop 

pumped storage projects. Under the expedited process, the Commission will seek to 

ensure that a final decision on a license application is issued no later than two years after 

the Commission receives a completed license application. 

To comply with the AWIA, the Commission issues this final rule to amend its 

regulations governing hydroelectric licensing under the Federal Power Act (FPA) by

establishing an expedited licensing process for qualifying facilities at existing 

 

1 Pub. L. No. 115-270, 132 Stat. 3765.

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nonpowered dams and for closed-loop pumped storage projects. The final rule will be 

codified in a new part 7 that will be added to Title 18 of the Code of Federal Regulations. 

I. Background

Sections 3003 and 3004 of the AWIA amended the FPA by adding new 

sections 34 and 35. Section 34 of the FPA gives the Commission discretion to issue or 

amend licenses, as appropriate, for any facility that the Commission determines is a 

qualifying facility at an existing nonpowered dam. Section 35 of the FPA gives the 

Commission discretion to issue or amend licenses, as appropriate, for closed-loop 

pumped storage projects. Congress directed the Commission to issue a rule, no later than 

180 days after October 23, 2018, establishing an expedited licensing process for issuing 

and amending licenses for projects covered by FPA sections 34 and 35. In establishing 

the expedited licensing process, Congress directed the Commission to convene an 

interagency task force (ITF), with appropriate federal and state agencies and Indian 

Tribes represented, to coordinate the regulatory processes associated with the 

authorizations required to construct and operate qualifying facilities at nonpowered dams 

and closed-loop pumped storage projects. 

On November 13, 2018, the Commission issued a notice inviting federal agencies, 

state agencies, and Indian Tribes to participate on the ITF.

2

 The notice directed interested 

 

2 See Notice Inviting Federal and State Agencies and Indian Tribes to Request 

Participation in the Interagency Task Force Pursuant to America’s Water Infrastructure 

Act of 2018, 83 FR 58,245 (Nov. 19, 2018).

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agencies and Indian Tribes to file a statement of interest with the Commission by 

November 29, 2018. On December 6, 2018, the Commission issued a notice identifying 

28 federal agencies, state agencies, and Indian Tribes as ITF participants.

3

 

On December 12, 2018, the Commission convened a meeting with the ITF 

participants at the Commission’s headquarters to discuss the Commission’s preliminary 

proposal to coordinate the regulatory processes associated with the authorizations 

required to construct and operate qualifying facilities at nonpowered dams and closedloop pumped storage projects. At the meeting, Commission staff presented for the ITF 

participants’ consideration and comment a flowchart illustrating a draft expedited 

licensing process.4In addition to soliciting comments at the meeting, Commission staff 

invited ITF participants to file comments on the process in Docket No. RM19-6-000 by

December 26, 2018. Seven post-session comments were filed. The Commission’s 

coordination and discussion with appropriate federal and state agencies and Indian 

Tribes, as part of the ITF, have informed this final rule.

II. Notice of Proposed Rulemaking

On January 31, 2019, the Commission issued a Notice of Proposed Rulemaking 

proposing to promulgate rules to establish an expedited process to license eligible 

 

3 See Notice of Interagency Task Force (Dec. 6, 2018); see also FERC, Office of 

Energy Projects, Summary of Interagency Task Force Activities (Jan. 10, 2019) 

(Appendix A identifies the ITF participants).

4 See Commission staff’s Letter to ITF Participants, Summary of Interagency Task 

Force Activities (Jan. 10, 2019).

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projects at existing nonpowered dams and closed-loop pumped storage projects.5 In 

response to the NOPR, the Commission received 11 comments. Consumers Energy 

Company (Consumers),6 Daybreak Power, Inc. (Daybreak),7 Dominion Energy Services, 

Inc. (Dominion),8the U.S. Department of Agriculture’s Forest Service (Forest Service), 

the U.S. Department of the Interior (Interior),9the National Hydropower Association 

(NHA),10 the National Marine Fisheries Service (NMFS), the Oregon Department of Fish 

and Wildlife (Oregon DFW), the Nature Conservancy, the Pennsylvania State Historic 

Preservation Office (PA SHPO), and Rye Development, LLC (Rye Development) filed 

 

5 Hydroelectric Licensing Regulations Under the America’s Water Infrastructure 

Act of 2018, 84 FR 2469, 166 FERC ¶ 61,083 (2019) (NOPR).

6 Consumers is a public utility that owns and operates thirteen FERC-licensed 

hydroelectric projects.

7 Daybreak is a developer of pumped storage projects.

8 Dominion holds a preliminary permit for the proposed Tazewell Hybrid Energy 

Center Project No. 14854, and states that it is currently investigating whether the 

Tazewell Project, or a similar project, could be configured as a closed-loop pumped 

storage project. 

9

Interior represents the U.S. Bureau of Reclamation, the National Park Service, 

and U.S. Fish and Wildlife Service in its comment.

10 NHA represents the Edison Electric Institute, the National Rural Electric 

Cooperative Association, the American Public Power Association, and the Northwest 

Hydropower Association in its comment.

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comments.

11

 The proposal set forth in the NOPR, the comments received in response to 

the NOPR, and the Commission’s determinations are discussed below.

III. Discussion

A. Scope of the Expedited Licensing Process

The NOPR explained that the Commission’s current regulations provide three prefiling process options for hydropower developers to use in preparing license applications: 

(i) the integrated licensing process (ILP), which is the default process, as described in 

part 5;12 (ii) the traditional licensing process (TLP), as described in part 4, subparts D to 

H;13 or (iii) the alternative procedures (i.e., the alternative licensing process (ALP)), as 

described in section 4.34(i) of part 4.14 The NOPR did not propose to alter these existing 

licensing processes. Rather, the NOPR proposed to establish procedures for the 

Commission to determine, on a case-by-case basis, whether original license applications 

for qualifying hydropower projects at nonpowered dams or for closed-loop pumped 

storage projects, as defined in sections 34 and 35 of the FPA and the eligibility criteria 

below, qualify for expedited processing. 

 

11 Rye Development is developing a number of hydroelectric projects, including 

one that was licensed under the Commission’s Two-Year Pilot Licensing Process, FFP 

Project 92, LLC, 155 FERC ¶ 62,089 (2016). 

12 18 CFR pt. 5 (2018).

13 18 CFR pt. 4, subpt. D-H (2018).

14 Id. 4.34(i).

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As stated in the NOPR, the use of the expedited licensing process is voluntary. To 

apply for consideration under the expedited process, an applicant for an original license 

for a qualifying hydropower project or closed-loop pumped storage project must

supplement its license application with a request for authorization to use the expedited 

licensing process. 

The NOPR proposed that the expedited licensing process would begin with the 

receipt of a completed license application. Consistent with the statute, the proposed 

expedited licensing process envisioned a two-year framework that did not include the

pre-filing stages of application development (i.e., all process milestones and consultation 

to obtain necessary authorizations that must occur before an applicant files a license 

application). For pre-filing activities, the NOPR explained that any applicant interested 

in pursuing authorization to use the expedited licensing process must use the default ILP, 

or request authorization to the use TLP or ALP, as required under our current regulations. 

Finally, the scope of the NOPR was limited to original license applications. 

However, the Commission requested comments on whether the expedited licensing 

process should apply to applications for a new or subsequent license for a project that 

was originally licensed under the expedited licensing process.15 

 

15 NOPR, 166 FERC ¶ 61,083 at P 7. 

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1. Pre-filing Process 

NHA, Consumers, Dominion, and Rye Development encourage the Commission 

to improve the overall process to authorize hydroelectric facilities, which includes 

streamlining the pre-filing process.16 Rye Development estimates that the NOPR may 

not reduce the overall licensing time, which it calculates to be at least three years for the 

pre-filing process and two years for the post-filing process for a total of at least five 

years, because the NOPR does not address the pre-filing process time.

17

 This, it alleges,

is contrary to Congressional intent.18 Rye Development explains that a shorter and more 

certain licensing schedule, which includes pre-filing process “reforms” and allows for

off-ramps for more problematic projects, would allegedly make hydroelectric generation 

cost competitive with other types of power generation and help attract investors.19

NHA proposes, and Dominion supports, an alternative two-step pre-filing process 

that NHA posits will allow the Commission to determine, during pre-filing, whether a 

project would be eligible for the expedited licensing process.

20

 If the Commission finds a 

 

16 See NHA’s March 11, 2019 Comment at 4-6; Consumers’ March 11, 2019 

Comment at 2; Dominion’s March 11, 2019 Comment at 1-2; Rye Development’s 

March 8, 2019 Comment at 2.

17 See Rye Development’s Comment at 2. 

18 See id. at 2-3.

19 See id. at 3-4.

20 See NHA’s Comment at 6-9 (proposing a two-step pre-filing eligibility 

determination that would culminate in Commission action on a request for authorization 

 

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project eligible, NHA recommends that the Commission also grant preliminary approval 

of draft study plans and establish milestones and a schedule for the expedited licensing 

process during pre-filing.

21

 Noting that the success of the expedited licensing process 

depends on the cooperation of all parties to the process, NHA and Dominion also 

encourage other federal and state agencies to align their policies and regulations with the 

expedited licensing process and urge consideration of an interagency memorandum of 

understanding.22

The Commission understands the importance of a clear process schedule. It is for 

this reason that the Commission has made publicly available on its website diagrammatic 

representations of the ILP and TLP.

23 We will provide the same for the expedited 

licensing process under the new part 7.24 This rulemaking, however, is limited to the 

 

to use the expedited licensing following issuance of the Scoping Document 1); 

Dominion’s Comment at 2-4. 

21 NHA’s Comment at 6-7; Dominion’s Comment at 4. 

22 NHA’s Comment at 7-8; Dominion’s Comment at 4. 

23 See FERC, the Integrated Licensing Process (ILP) – Tutorial, 

https://www.ferc.gov/industries/hydropower/gen-info/licensing/ilp/ilptutorial/overview.asp (updated Oct. 10, 2012); FERC, Processes for Hydropower 

Licenses – Traditional Licensing Process (Applicant’s Pre-Filing Process), 

https://www.ferc.gov/resources/processes/flow/hydro-1.asp; FERC, Processes for 

Hydropower Licenses – Traditional Licensing Process (FERC Application Process), 

https://www.ferc.gov/resources/processes/flow/hydro-2.asp.

24 Commission staff will provide a flowchart on the Commission’s website shortly 

after the final rule is issued. 

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post-filing period as mandated by the AWIA. Congress required the Commission to issue

a rule establishing a two-year expedited licensing process that begins from the receipt of 

a completed license application.25 Completion of the pre-filing process is necessary to 

develop a completed application. We therefore decline to revise the established pre-filing 

schedule in our existing regulations in this rulemaking. Furthermore, the Commission’s 

existing ALP framework provides the flexibility that could accommodate, on a case by 

case basis, the type of pre-filing schedule NHA has proposed.26

While we encourage federal and state agencies to cooperate with the 

Commission’s licensing schedules, we have no authority to require other agencies to 

modify their own regulations or policies to suit our licensing process as encouraged by 

NHA and Dominion. Nor will we dictate to other agencies how their regulations or 

policies should be interpreted. Expedited processing is possible when applicants and 

stakeholders work closely during pre-filing to gather information, conduct studies, and 

address information gaps. Expedited licensing is further aided by well-developed license 

applications that provide a detailed project proposal, a comprehensive summary of 

existing facilities and natural resources, and a thorough examination of the resource 

issues at hand and study needs.

 

25 See 16 U.S.C.A. §§ 823e(a)(4), 823f(a)(4) (West 2019).

26 The ALP framework was designed to be flexible in order for an applicant to 

tailor the pre-filing consultation process to the circumstances of each case. See 

Regulations for the Licensing of Hydroelectric Projects, Order No. 596, FERC Stats &

Regs ¶ 31,057, at P 6 (1997) (cross-referenced at 81 FERC ¶ 61,103). 

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2. Relicense Proceedings

The NOPR requested comments on whether the expedited licensing process 

should be available for applications for new or subsequent licenses,27 provided that the 

project was originally licensed under the expedited licensing process.28

Daybreak and Consumers recommend that the proposed rule be expanded to 

include relicensing of projects licensed under the expedited licensing process.29 NHA did 

not explicitly express opposition or support in response to the Commission’s relicensing 

inquiry, but observed that the first new or subsequent license applications for projects 

originally licensed under the expedited licensing process would not be filed for another 

40 years.30 Absent a significant change in the regulatory landscape, NHA finds it highly 

unlikely that future relicensing of a project that was originally licensed under the 

expedited licensing process could not be completed within two years.31 

 

27 A new license is a license that is issued under FPA section 15(a) after an 

original license expires. A subsequent license is a license that is issued under FPA Part I 

after a minor or minor-part license that was not subject to FPA sections 14 and 15 

expires. Both new and subsequent licenses are considered relicenses. See 18 CFR 

16.2(a), (d) (2018). 

28 NOPR, 166 FERC ¶ 61,083 at P 7. 

29 Daybreak’s February 25, 2019 Comment at 1; Consumers’ Comment at 1-2.

30 See NHA’s Comment at 17.

31 Id. at 17. NHA further states that a new or subsequent license application for a 

project previously licensed at an existing dam would not qualify for the expedited 

licensing process because it would not satisfy the requirement set forth in 

section 34(e)(1)(A) of the FPA that the project not already be licensed.

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The AWIA’s eligibility criteria for qualifying facilities at existing nonpowered 

dams exclude facilities that are already licensed or exempted from license requirements 

in the FPA.32 Thus, future new or subsequent license applications for projects at existing 

nonpowered dams that were originally licensed under the expedited process would be 

ineligible to participate in the expedited process. Furthermore, we agree with NHA’s 

observation that, in most cases, a relicense proceeding for a project that was originally 

licensed under the expedited licensing process should be completed within an average of 

two years under the Commission’s existing regulations. Accordingly, the expedited 

licensing process set forth in this final rule remains limited in scope to original license 

applications for projects at qualifying facilities at existing nonpowered dams and for 

closed-looped pumped storage projects. 

3. Amendment Proceedings 

The NOPR explained that FPA sections 34(a)(1) and 35(a)(1) give the 

Commission discretion to amend licenses, as appropriate, for any facility that the 

Commission determines is a qualifying facility. As part of this rulemaking, the 

Commission is required to establish an expedited process for amending licenses for 

qualifying facilities. FPA sections 34(a)(4) and 35(a)(4) explicitly define the expedited 

process for license applications as a two-year process for the Commission to issue a final 

decision on a license application once it receives a completed license application. These 

 

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

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sections, however, are silent on the length of time to process applications to amend 

licenses. 

Because the Commission already processes the majority of amendments within 

two years, the NOPR proposed to process applications to amend licenses for projects 

located at qualifying nonpowered dams and for closed-loop pumped storage projects 

under the Commission’s existing regulations for amendments in 18 CFR part 4, subpart 

L.33 

NHA contends that once a project is licensed, there is no reason that applications 

to amend licenses issued under the expedited licensing process should receive 

preferential treatment over applications to amend licenses issued under the ILP, TLP, or 

ALP framework.34 No other comments addressed or advocated for an expedited 

amendment process separate and apart from the Commission’s existing procedures for 

license amendment applications. 

Therefore, we are satisfied that the Commission’s existing procedures will 

continue to result in expeditious action on any application to amend a license originally 

licensed under the expedited process, well within the two-year benchmark established in 

the AWIA. Accordingly, the final rule does not establish a separate process for acting on 

applications to amend licenses issued under the expedited licensing process. 

 

33 NOPR, 166 FERC ¶ 61,083 at PP 42-44 (estimating that about 98 percent of 

amendment-related filings were processed in two years during the past five years). 

34 NHA’s Comment at 18. 

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B. Expedited Licensing Process

1. Section 7.1 – Applicability and Definitions

In § 7.1(c)(3) of the NOPR, the Commission restated the Commission’s current 

definition of a closed-loop pumped storage project as “a pumped storage project that is 

not continually connected to a naturally-flowing water feature.”35 The NOPR also 

incorporated the statutorily-defined “qualifying criteria,” “qualifying nonpowered dam,” 

and “qualifying facility.”

We received several comments that the key terms, such as “continually,” 

“connected,” and “naturally-flowing water features” are unclear, which could potentially 

result in the expeditious licensing of an environmentally-harmful pumped storage 

project.36 Some commenters argue that a pumped storage project may not be 

“continually” connected to a naturally-flowing water feature, but those intermittent 

periods when the project is connected to the naturally-flowing water feature could result 

in substantial resource impacts.37 On the other hand, NHA, Consumers, and Dominion 

 

35 NOPR, 166 FERC ¶ 61,083 at PP 21 & 36. The NOPR’s preamble mistakenly 

used “continuously” instead of “continually” to describe the Commission’s current 

definition of closed-loop pumped storage.

36 See Interior’s March 8, 2019 Comment at 2-3, Forest Service’s March 8, 2019 

Comment at 2, Oregon DFW’s March 11, 2019 Comment at 1-2. 

37 See Forest Service’s Comment at 2; Interior’s Comment at 3; Oregon DFW’s 

Comment at 1.

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encourage the Commission to generously interpret terms, such as closed-loop pumped 

storage, in order to allow more projects to be eligible for the expedited process.38 

In addition, commenters contend that the term “connected” is ambiguous as to 

whether the connection only refers to a physical hydraulic connection or includes a 

separate and independent hydrologic connection.39 Some commenters suggest that for a 

project to qualify for expedited processing as a closed-loop pumped storage project, there 

should be no hydrologic connection between the project and surface or groundwater 

features.

40 Interior notes that subsurface or surface hydrologic connections might 

adversely affect lake levels and associated recreational use and access on lakes which 

would lead to longer processing times.

41

 NHA and Dominion allege that excluding 

projects from eligibility based on a mere physical hydraulic or a hydrologic connection to 

surface waters or groundwater would disqualify almost all closed-loop pumped storage 

projects, and therefore request that our definition focus on how the water would be used 

by the project rather than how the project is connected to the water feature.

42

 

38 See NHA’s Comment at 10-15; Consumers’ Comment at 2; Dominion’s 

Comment at 4-8.

39 See, e.g., Forest Service’s Comment at 2.

40 See Oregon DFW’s Comment at 2; Nature Conservancy’s March 11, 2019 

Comment at 4; Forest Service’s Comment at 2.

41 See Interior’s Comment at 3.

42 See NHA’s Comment at 14; Dominion’s Comment at 7.

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As for “naturally-flowing water features,” the Forest Service asks whether such 

water features include groundwater aquifers, existing lakes, or other isolated 

waterbodies.43 Commenters note that although flow is generally not significant in the 

hydrologic mass balance of lakes or other isolated, surface water features,

44 use of the 

term “naturally-flowing” could result in eligibility for projects that would significantly 

adversely affect lakes, endorheic basins,45 and other isolated surface water features,

46 as 

well as wildlife that inhabit these areas.47

We received several proposed alternative definitions of a closed-loop pumped 

storage project.

The Forest Service recommends that a closed-loop pumped storage project be 

defined as a pumped storage project “whose operation causes little to no change in 

discharge, flow, water quality, or other hydrologic characteristics of naturally-occurring 

surface or groundwater features, or the species and habitats that depend on these 

features.”48 Oregon DFW suggests defining closed-loop pumped storage as “projects that 

 

43 See Forest Service’s Comment at 2.

44 See id.

45 Endorheic basins are hydrologically-landlocked drainage basins that do not 

discharge to other bodies of water. 

46 See Forest Service’s Comment at 2; Interior’s Comment at 3; Oregon DFW’s 

Comment at 2.

47 See Oregon DFW’s Comment at 2.

48 Forest Service’s Comment at 1.

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utilize artificial reservoirs that have been constructed and operated for purposes 

authorized in the original license; that rely on temporary connections to flowing water 

features or groundwater for initial fill and periodic recharge; and whose construction and 

operation causes little to no change in discharge, flow, water quality, or other hydrologic 

characteristics of naturally occurring surface or groundwater features, or to the fish and 

wildlife and their habitats associated with these features.”49 NHA and Dominion

encourage the Commission to expand its definition, and suggest that the Commission 

define a closed-loop pumped storage project as: “a pumped storage project that: (1) does 

not obtain its principal water supply from a naturally-flowing water feature; (2) obtains 

its water from a naturally-flowing surface water feature only for the purpose of initial fill 

and periodic replenishment, or (3) is not located on a navigable waterway.”50

As noted by the resource agencies, we recognize that use of the term “not 

continually connected” in our definition might capture pumped storage projects that 

would potentially require additional time and agency resources to determine their 

environmental effects, and may not be appropriate for expedited processing. Therefore, 

in the final rule, we adopt a definition of a closed-loop pumped storage project that

focuses on the extent and type of a project’s use of surface waters or groundwater rather 

 

49 Oregon DFW’s Comment at 2. 

50 NHA’s Comment at 15; see Dominion’s Comment at 7. NHA contends that the 

location of a proposed project on non-navigable waterways (e.g., small creeks or streams 

which do not contain or affect significant environmental resources) should not disqualify 

the project from the expedited licensing process. 

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than on its physical, hydraulic connection to such features. Further, we agree with the 

resource agencies that the term “naturally-flowing water features” in terms of a connected 

use is overly narrow and does not account for the environmental significance of water 

withdrawals from such features as groundwater, lakes, and wetlands. We see the benefit 

in specifying in our definition how we expect closed-loop pumped storage projects would 

utilize water from these water features (i.e., initial fill and periodic recharge), as 

suggested by many commenters.51 

In addition, as required by section 35(g)(2) of the FPA, a request to use the 

expedited licensing process must demonstrate that a closed-loop pumped storage project 

will cause little to no change to existing surface and groundwater flows and uses, and is 

unlikely to adversely affect species listed as threatened or endangered under the 

Endangered Species Act of 1973 (ESA).52 If the proposed project does not meet these 

two aforementioned statutory criteria, then the project will not qualify under the AWIA

for use of the expedited process. Therefore, we have incorporated these criteria into the 

final rule’s definition of a closed-loop pumped storage project.

As to the statutory requirement that the project cause little to no change to the 

existing surface flows and uses, the mere presence of a pumped storage project reservoir 

on a surface water feature, such as a natural waterway, lake, or wetland would undeniably

 

51 See, e.g., NHA’s Comment at 11, 14-15; Dominion’s Comment at 5; Oregon 

DFW’s Comment at 2.

52 16 U.S.C. §§ 1531-1544 (2012).

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change existing surface water flows and uses in direct contravention of FPA 

section 35(g)(2)(A). For this reason and for clarification, the revised definition requires

closed-loop pumped storage projects to use reservoirs that are not located on natural 

surface water features.

Therefore, informed by the comments received on the NOPR, and for the purposes 

of expediting processing under the AWIA, § 7.1(c)(3) is revised, as follows: “pumped 

storage projects that: (1) cause little to no change to existing surface and groundwater 

flows and uses; (2) are unlikely to adversely affect species listed as a threatened species 

or endangered species, or designated critical habitat of such species, under the 

Endangered Species Act of 1973; (3) utilize only reservoirs situated at locations other 

than natural waterways, lakes, wetlands, and other natural surface water features; and (4) 

rely only on temporary withdrawals from surface waters or groundwater for the sole 

purposes of initial fill and periodic recharge needed for project operation.” 

2. Section 7.2 – Use of Expedited Licensing Process

Section 7.2 of the NOPR described the information that an applicant must include 

in any license application that accompanies a request to use the expedited licensing 

process. The information includes design and environmental criteria mandated by 

sections 34 and 35 of the FPA and documentation demonstrating early consultation with 

relevant agencies, Indian Tribes, and dam owners.

53

 

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

(NHPA). 

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a. Statutory Criteria for Qualifying Facilities at 

Nonpowered Dams

FPA section 34(e)(1) sets forth the “qualifying criteria” that a proposed project at 

an existing “qualifying nonpowered dam” must meet in order to be considered a 

“qualifying facility”54 eligible to apply for the expedited licensing process. 

Section 34(e)(1) states that such a facility must: (A) as of October 23, 2018, not be 

licensed under, or exempted from, the license requirements contained in Part I of the 

FPA; (B) be associated with a qualifying nonpowered dam; (C) be constructed, operated, 

and maintained for the generation of electric power; (D) generate electricity by using any 

withdrawals, diversions, releases, or flows from the associated qualifying nonpowered 

dam, including its associated impoundment or other infrastructure; and (E) not result, due 

to operation of the facility, in any material change to the storage, release, or flow 

operations of the associated qualifying nonpowered dam.55

Section 34(e)(3) defines “qualifying nonpowered dam” as any dam, dike, 

embankment, or other barrier, constructed on or before October 23, 2018, that is or was 

operated for the control, release, or distribution of water for agricultural, municipal, 

navigational, industrial, commercial, environmental, recreational, aesthetic, drinking 

water, or flood control purposes, and that, as of October 23, 2018, is not generating 

 

54 FPA section 34(e)(2) defines “qualifying facility” as any facility that is 

determined to meet the “qualifying criteria” under section 34(e)(1). 

55 16 U.S.C.A. § 823e(e)(1) (West 2019).

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electricity with hydropower generating works licensed under, or exempted from, the 

license requirements of Part I of the FPA.56

NHA and the Nature Conservancy ask the Commission to define the term 

“material change” contained in FPA section 34(e)(1)(E).

57

 Concerned that the 

Commission’s interpretation of this statutory qualifying criterion might unnecessarily 

preclude from the expedited process projects that would have only minor effects on 

existing dam operations,58 NHA proposes to define a “material change” as a change that 

would “(1) significantly modify the pre-license storage, release, or flow operations of the 

associated qualifying nonpowered dam, or (2) would impair the ability of the dam owner 

to control operation of the dam.”59 The Nature Conservancy proposes an alternative 

definition: “little or no change to the subdaily, daily, seasonal and interannual operations, 

or to the sediment, nutrient, dissolved oxygen, and temperature components of water 

quality upstream and downstream of the facility, unless it is clearly demonstrated that 

 

56 Id. § 823e(e)(3).

57 FPA section 34(e)(1)(E) states that “the operation of the facility will not result 

in any material change to the storage, release, or flows from the associated qualifying 

nonpowered dam, including associated impoundment or other infrastructure.” 16 

U.S.C.A. § 823e(e)(1)(E) (emphasis added). 

58 NHA’s and Dominion’s comments generally advocate that the Commission 

interpret statutory language generously and broadly in order to capture more projects in 

the expedited licensing process. See, e.g., NHA’s Comment at 11; Dominion Comment 

at 5 (interpret “cause little to no change” in FPA section 35(g)(2)(A) broadly).

59 NHA’s Comment at 10. 

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such changes will not conflict with the existing public uses and will also result in a new 

ecological benefit.”60

NHA also requests that the final rule identify operational regimes, such as “run-ofriver” or “run-of-release,” that would categorically not rise to the level of a “material 

change” to the storage, release, or flow operations.61 

We decline to define “material change” as requested by NHA and the Nature 

Conservancy. The statute provides sufficiently clear guidance, such that a further 

definition is unnecessary. The term “material” is well understood to mean significant or 

consequential. Further, we do not believe that it would be possible to develop a 

definition of “material” that could be applied in all cases. We will examine the facts of 

any case in which the materiality of changes that be may caused by a proposed project is 

at issue, and make a case-by-case decision.

Rye Development recommends that we create alternative eligibility criteria for 

projects at nonpowered dams, to include projects that will (i) add new generating capacity 

to nonpowered dams, (ii) not include new dams or impoundments, (iii) not materially 

change any existing storage and release regimes, (iv) not include federal lands except for 

those associated with an existing federal dam, and (v) not require more than one 

 

60 Nature Conservancy’s Comment at 3.

61 NHA’s Comment at 10. 

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environmental study season.62 Nature Conservancy recommends that an eligible facility 

not materially change water quality and that qualifying nonpowered dams exclude those 

that it terms “obsolete.”

63

 Because section 34 of the FPA does not authorize the 

Commission to replace or revise the statutory eligibility criteria that Congress established 

for qualifying facilities at nonpowered dams, we will not make the additions 

recommended by Rye Development and Nature Conservancy. 

b. Qualifying Criteria for Closed-Loop Pumped Storage 

Projects 

FPA section 35(g)(1) directs the Commission to establish criteria that a pumped 

storage project must meet to be eligible for the expedited licensing process. FPA 

section 35(g)(2) further instructs the Commission to include criteria that an eligible 

closed-loop pumped storage project cause little to no change to existing surface and 

groundwater flows and uses, and is unlikely to adversely affect species listed as 

threatened or endangered under the ESA.

We received several comments requesting that the final rule include additional or 

revised qualifying criteria for closed-loop pumped storage projects to be eligible for the 

expedited licensing process under FPA section 35(g)(2). Specifically, we received 

recommendations that the final rule include additional qualifying criteria to ensure that a 

 

62 Rye Development’s Comment at 7.

63 See Nature Conservancy’s Comment at 3 (recommending the addition of a 

criterion to ensure that an associated nonpowered dam actively serves a public purpose).

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closed-loop pumped storage project eligible for the expedited licensing process will: (i) 

not be hydrologically connected to natural water bodies;64 (ii) cause little to no change to 

existing aquatic habitats, water quality, and water quantity;65 (iii) cause little to no change 

to river, lacustrine, and groundwater-dependent ecosystems;66 (iv) cause little to no 

change to existing recreational access and uses;67 (v) meet the intent of comprehensive 

land management plans for all applicable resources if the project will be located on 

federal reservations;

68 and (vi) not degrade or act as a source of contaminants to surface 

or groundwater features if the project will use abandoned mines as storage reservoirs.69

 

64 See Oregon DFW’s Comment at 2; Nature Conservancy’s Comment at 4. 

65 See Oregon DFW’s Comment at 2; Nature Conservancy’s Comment at 4; 

NMFS’ February 15, 2019 Comment at 2; Forest Service’s Comment at 2-3; Interior’s 

Comment at 3.

66 See Forest Service’s Comment at 3; Oregon DFW’s Comment at 2.

67 See Interior’s Comment at 3.

68 See Forest Service’s Comment at 3; Interior’s Comment at 3; Nature 

Conservancy’s Comment at 4. Nature Conservancy also recommends a qualifying 

criterion that the project not be located on a river reach protected under the National Wild 

and Scenic Rivers Act, or similar state statute. However, pursuant to section 7(a) of the 

Wild and Scenic Rivers Act, the Commission is already prohibited from licensing the 

construction of any “dam, water conduit, reservoir, powerhouse, transmission line, or 

other project works . . . on or directly affecting” a river segment that Congress has 

designated as component of the National Wild and Scenic Rivers System. 16 U.S.C. 

§ 1278(a) (2012). 

69 See Forest Service’s Comment at 3; Nature Conservancy’s Comment at 4.

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We believe that the Commission’s revised definition of a “closed-loop pumped 

storage project,”70 in combination with the Commission’s existing licensing 

requirements, will ensure that only projects meeting the Congressional criteria qualify for 

expedited treatment, and that therefore no additional definition is needed. 

With regard to the qualifying criteria, we also received requests to clarify the 

statutory language. NMFS, Interior, and Oregon DFW recommend that the qualifying 

criteria set forth in FPA section 35(g)(2)(i) be revised to specify “the construction and 

operation” of the project will cause little to no change to existing surface and 

groundwater flows and uses.71

We cannot revise the criteria established by Congress. However, we note that 

Congress did not exclude project construction and operation from the criteria in 

section 35(g)(2)(i).

Pursuant to the authority in FPA section 35(g)(2) that directs the Commission to

establish additional qualifying criteria for closed-loop pumped storage projects, we 

proposed in the NOPR to add “designated critical habitat of species of [threatened or 

endangered] species” in § 7.2(b)(2)(ii) to ensure the qualifying criterion conforms with 

the ESA.72

 

70 See supra PP 28-31.

71 See NMFS’ Comment at 2; Interior’s Comment at 3; Oregon DFW’s Comment 

at 2.

72 NOPR, 166 FERC ¶ 61,083 at P 22 (explaining that section 7(a)(2) of the ESA, 

16 U.S.C. § 1536(a)(2) (2012), requires agencies to ensure that their actions are not likely 

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NHA does not oppose this additional criterion because it assumes that an applicant 

would be unlikely to request use of the expedited licensing process if a proposed project 

would require preparation of a Biological Opinion.73 Forest Service endorses the 

addition.74 We therefore have retained the additional critical habitat criterion in 

§ 7.2(b)(2)(ii) of the final rule.

c. Commission-Defined Criteria for the Expedited Licensing

Process

The NOPR established criteria for applications to be eligible for the new expedited 

licensing process. The FERC-defined criteria for the expedited process, as set forth in 

§§ 7.2(b)(3) to 7.2(b)(7), modify the timing of existing licensing requirements by 

requiring an applicant interested in pursuing the expedited process to submit certain 

documentation of consultation at the same time that an application is filed. 

i. Early Consultation with Agencies 

Several commenters recommended early and frequent consultation with federal 

and state agencies. The Nature Conservancy recommends that § 7.2(b) include a 

requirement that applicants engage in early coordination with mandatory conditioning 

agencies and any resource agencies with jurisdiction over resources that may be affected 

 

to result in the destruction or adverse modification of designated critical habitat of such 

species).

73 NHA’s Comment at 13. 

74 See Forest Service’s Comment at 3.

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by the proposed project.75 Interior also requests additional guidance on the form and 

content of the required pre-filing documentation.76 

Consultation with agencies will be crucial to the success of the expedited licensing 

process. Moreover, the consultation criteria discussed below are designed to promote 

early engagement between applicants and agencies. However, because the Commission’s 

existing regulations already require applicants to consult with these agencies prior to 

filing a license application,77 we decline to include Nature Conservancy’s suggested 

requirement in § 7.2(b) of the final rule. 

ii. Clean Water Act Documentation 

In the NOPR, § 7.2(b)(3) proposed to require an applicant, as part of its

application, to provide its request for certification under section 401(a)(1) of the Clean 

Water Act, including proof of the date on which the certifying agency received the 

request; and one of the following: (1) a copy of water quality certification, (2) evidence 

of a waiver of the certification, or (3) documentation from the state certifying agency that 

the water quality certification application is complete, or in the event a certifying agency 

denies certification, a copy of the denial within 30 days after the applicant receives it.

 

75 See Nature Conservancy’s Comment at 5.

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

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Daybreak contends that section 401 of the Clean Water Act does not require that a 

state certify a water quality certification application is complete in order to start the clock 

on the one-year statutory deadline for a state to act on an application.78

Daybreak is correct. Section 401(a)(1) of the Clean Water Act states that “[i]f the 

State . . . fails or refuses to act on a request for certification, within a reasonable period of 

time (which shall not exceed one year) after receipt of such request, the certification 

requirements . . . shall be waived with respect to such Federal application.”79 A state’s 

one-year review period begins when the applicable state agency receives the request for 

water quality certification, not when the state agency deems an application “complete.”80 

The purpose of proposed § 7.2(b)(3)(iii) was not to inform the Commission when 

to start the one-year clock for state action on a section 401 application. Rather, proposed

§ 7.2(b)(3)(iii) sought to ensure that all of the necessary authorizations, including water 

quality certification, could be obtained in a timely enough manner so as to enable the 

Commission to act on a license application within two years from the date of application

filing. 

However, recognizing that requiring applicants to submit documentation from a

state certifying agency that the water quality certification application is “complete” may 

 

78 Daybreak’s Comment at 2.

79 33 U.S.C. § 1341(a)(1) (2012). 

80 N.Y. State Dep’t of Environmental Conservation v. FERC, 884 F.3d 450, 455-

456 (2d Cir. 2018).

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prove difficult, we have revised § 7.2(b)(3)(iii) to remove this requirement. Accordingly, 

at the time of application filing, an applicant will be required to submit a copy of the 

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

received the request; a copy of water quality certification; or evidence of waiver of water 

quality certification. This information will still enable us to assess the likelihood that a

water quality certification will be obtained in a timely enough manner so as to facilitate

Commission action on a license application within two years from the date of application 

filing. 

iii. ESA Documentation 

NMFS recommends that the Commission require that applicants, in proposed 

§ 7.2(b)(4), begin early coordination with NMFS during pre-filing if the project would 

affect resources protected under the ESA or Magnuson-Stevens Fishery Conservation and 

Management Act (MSA).81 NMFS states that the benefits of early coordination include 

improved license applications, efficient environmental reviews, and a higher likelihood of

a settlement.82 Interior requests that the same requirement be added with regard to early 

coordination with FWS and lists similar benefits.83 

Pursuant to § 4.38 of the Commission’s regulations, a potential applicant must 

consult with the relevant federal, state, and interstate resource agencies, including NMFS 

 

81 16 U.S.C. §§ 1801 et seq. (2012); See NMFS’ Comment at 2.

82 See id.

83 See Interior’s Comment at 3.

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and FWS, prior to filing an application for an original license. We agree with NMFS and 

Interior that early consultation on resources protected under the ESA or MSA would 

allow applicants to avoid or minimize effects to listed species by negotiating protection, 

mitigation, and enhancement measures. However, this request for pre-filing consultation 

does not differ from the Commission’s existing licensing requirements. Moreover, in the 

NOPR,

84 the Commission proposed to require that any application filed with a request for 

authorization to use the expedited licensing process include: a no-effect determination 

that includes documentation that no listed species or critical habitat are present at the 

proposed project site; (ii) documentation of concurrence from FWS and NMFS, as 

necessary, on a not likely to adversely affect determination; or (iii) a draft biological 

assessment that includes documentation of consultation with FWS and NMFS, as 

necessary. Therefore, we find it unnecessary to add NMFS and Interior’s request as a 

requirement of the expedited licensing process.85

Interior recommends that the applicant file concurrently with its application 

written concurrence from applicable stakeholders concerning potential project impacts on 

natural, cultural, or recreation resources.

86

 

 

84 NOPR, 166 FERC ¶ 61,083 at P 11.

85 We also decline to issue guidance pertaining to how to consult with the FWS or 

how to interpret FWS’s or NMFS’ regulations and policies, as requested by Interior and 

NMFS. 

86 Interior’s Comment at 1-2.

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After a license application is filed and accepted as complete, the Commission will 

issue a Ready for Environmental Analysis (REA) notice to seek input from stakeholders 

on an applicant’s license application in advance of preparing the Environmental 

Assessment (EA) or Environmental Impact Statement (EIS) required by the National 

Environmental Policy Act of 1969 (NEPA). In terms of the licensing process, seeking 

input from stakeholders at the time of the REA notice does not delay or slow down the 

license process timeline. Therefore, we find the recommendation that the applicant 

include with its application written concurrence from applicable stakeholders concerning 

potential project impacts on natural, cultural, or recreation resources unduly burdensome 

and unnecessary to expedite the licensing process.

To conform to ESA regulations, NMFS and Interior recommend that the 

Commission revise § 7.2(b)(4)(i) to replace “at the proposed project site” with “in the 

action area, as defined by the ESA regulations at 50 CFR 402.02.”

87

 Interior explains 

that limiting evaluation to a “proposed project site” would not adequately consider 

impacts to National Park Services (NPS) resources and recreational use.88 All aspects of 

the project, Interior suggests, should be evaluated, such as staging and construction 

laydown areas, roads and other conduits and/or transmission line or interconnections.89 

 

87 NMFS’ Comment at 2; Interior’s Comment at 4. 

88 See Interior’s Comment at 2.

89 See id.

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Interior recommends that the Commission evaluate a proposal and determine the impacts 

in “action areas” under the ESA and/or “area of potential effects” under the National 

Historic Preservation Act (NHPA)

90 in order to identify the potential adverse effects on 

natural and recreational resources near a NPS unit.91

We accept NMFS’ and Interior’s recommendation and replace the term “at the 

proposed project site” with the term “in the action area” in § 7.2(b)(4)(i) to bring the 

language into accord with the ESA. With respect to commenters’ other concerns about 

the Commission’s responsibilities under the ESA and the NHPA, the expedited licensing 

process does not change the Commission’s responsibilities under existing federal laws, 

such as the ESA and the NHPA, and Commission staff will continue to comply with all 

pertinent federal laws during the review of a license application.

NMFS and Interior request that the Commission clarify in § 7.2(b)(4)(i) that the 

Commission has the responsibility to determine whether ESA consultation is necessary 

under section 7 of the ESA.92 Both assert that the Commission has the ultimate 

responsibility to ensure compliance with section 7 of the ESA.

93

 

 

90 36 CFR 800.16(d) (2018).

91 See Interior’s Comment at 2 and n.2. 

92 NMFS’ Comment at 2; Interior’s Comment at 4.

93 NMFS’ Comment at 3; Interior’s Comment at 4.

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Section 7 of the ESA speaks for itself and there is thus no need for the requested 

clarification in § 7.2(b)(4)(i). 

NMFS and Interior request that the Commission clarify in § 7.2(b)(4)(ii) that the 

Commission will designate an applicant to be a non-federal representative under ESA 

regulations94 at the beginning of the expedited process in order for the applicant to 

participate in informal ESA consultation.

95

 

Section 5.5(e) of the Commission’s regulations96 provides that a potential license 

applicant may, as early as the same time it files its notification of intent and distributes its 

pre-application document (PAD) at the beginning of the pre-filing period, request to be 

designated as the Commission’s non-federal representative for purposes of consultation 

under section 7 of the ESA and the joint agency regulations thereunder at 50 CFR part 

402, section 305(b) of the MSA and the implementing regulations at 50 CFR 600.902. 

Even if it chooses not to request such designation at the time of the filing of the 

notification of intent, an applicant could make such a request at any time later in the prefiling period. The Commission typically grants such requests as a routine process matter. 

Therefore, there is no need for the requested clarification to § 7.2(b)(4)(ii).

 

94 See 50 CFR 402.02, 402.08, 402.13 (2018).

95 NMFS’ Comment at 2; Interior’s Comment at 3.

96 18 CFR 5.5(e). 

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NMFS recommends that the Commission, with the assistance of NMFS, develop 

guidance on informal ESA consultations and preparation of biological assessments to 

provide to the designated non-federal representative.97 NMFS and Interior further 

recommend that we provide a template letter for the Commission to use to designate a 

non-federal representative to conduct consultation or prepare a draft biological 

assessment.98

Commission staff typically prepares guidance documents for use by prospective 

license applicants, federal and state resource agencies, and the public regarding various 

aspects of the licensing process.99 We will instruct our staff to review the license process 

guidance material to determine what modifications and additional guidance are needed to 

facilitate the efficient implementation of the new part 7 regulations.

Interior recommends that proposed § 7.2(b)(4)(ii) should require consultation 

documentation “that the action is not likely to adversely affect ESA-listed species or 

critical habitat.”100 We agree that Interior’s recommended revision is more precise, and 

have revised § 7.2(b)(4)(ii) accordingly. 

 

97 See NMFS’ Comment at 3.

98 NMFS’ Comment at 3 and Attachment 1 (providing a sample template letter); 

Interior’s Comment at 3-4 and Attachment 1 (providing a sample template letter).

99 Commission staff’s licensing guidance material is available on the 

Commission’s web site at http://www.ferc.gov/industries/hydropower/geninfo/licensing.asp.

100 Interior’s Comment at 4.

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NMFS requests clarification of the language “documentation of consultation with 

the Service(s)” in proposed § 7.2(b)(4)(iii). NMFS explains that the Commission must be 

involved with the applicant’s ESA consultation with NMFS, as required by ESA 

regulations.101 Interior requests that the phrase should be revised to “documentation of 

communication.”102

We decline to make this change. As the ESA regulations allow, the intent here is 

that the applicant will act as our designated non-federal representative in seeking the 

documentation of consultation specified by § 7.2(b)(4)(iii).

NHA submits that Commission action on the request to use the expedited process 

comes too late in the process if it coincides with the REA notice.103 Instead, NHA 

contends, a request for expedited processing should be approved during the pre-filing 

process if an applicant is able to provide, concurrent with its Notice of Intent to File a 

License Application and PAD submittal, a no effect determination, FWS and/or NMFS 

concurrence on a not likely to adversely affect determination, or a draft biological 

assessment with documentation of consultation and draft mitigation measures.104

As noted above, the clear mandate of the AWIA is that the expedited licensing 

process begin with the filing of a completed license application, and therefore, we make 

 

101 NMFS’ Comment at 3 (citing 50 CFR 402.08).

102 Interior’s Comment at 4.

103 NHA’s Comment at 13. 

104 NHA’s Comment at 13; Dominion’s Comment at 6. 

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no changes to the existing pre-filing processes. If an applicant requesting to use the 

expedited licensing process is able to demonstrate that its project satisfies the eligibility 

criteria and submits a complete license application without the need for Commission staff 

to request additional information or correct deficiencies, then Commission staff will be 

able to approve the request sooner than 180 days from the date the application was filed. 

Generally, Commission staff issues an REA notice when it determines that the contents 

of a license application meet the Commission’s requirements and no additional 

information is needed to process the application.105 In the context of the expedited 

licensing process, if Commission staff determines a request and application are 

satisfactory, then we will issue an REA notice no later than 180 days from the date of 

receipt of a completed application. 

iv. NHPA Documentation 

PA SHPO contends that the requirement in proposed § 7.2(b)(5) that an applicant 

provide documentation demonstrating that consultation with a SHPO or Tribal Historic 

Preservation Office has been initiated is insufficient to satisfy section 106 of the 

NHPA.

106

 In addition to consultation, PA SHPO requests that the Commission provide 

guidance to applicants regarding the consultation procedures for each state SHPO. PA 

 

105 18 CFR 5.22.

106 PA SHPO’s March 5, 2019 Comment at 1.

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SHPO recommends hiring consultants that meet Interior’s standards.107 PA SHPO 

further encourages applicants to initiate consultation early and to identify potentially 

affected historic properties as soon as possible.108 PA SHPO also notes some projects 

may be more likely to affect historic properties, which would require more consultation 

time under section 106 and may warrant exclusion from the expedited process.109 PA 

SHPO also requests that we consider the impacts on historic properties of transmission 

lines associated with projects eligible for the expedited process.110

PA SHPO states that existing nonpowered dams may be eligible to be listed as 

historic properties in the National Register.111 For a dam to be eligible in Pennsylvania, 

PA SHPO explains that the dam must have engineering significance or retain its historic 

setting and integrity in a surrounding historic district.112 PA SHPO also recommends that 

applicants should begin, and if possible finish, locating National Register significant 

archaeological properties during pre-filing.113

 

107 Id. (citing Secretary of Interior, Archeology and Historic Preservation; 

Secretary of the Interior’s Standards and Guidelines, 48 FR 44,738-39 (1983)).

108 PA SHPO’s Comment at 1.

109 Id.

110 Id.

111 Id. at 2.

112 See id.

113 See id.

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PA SHPO recommends that the Commission, with the intent to improve 

efficiency, provide guidance on the anticipated effects and alternatives to adverse effects 

typically caused by projects located at nonpowered dams and closed-loop pumped

storage projects.114 

As we acknowledged in the NOPR,115 the requirement that a part 7 applicant 

provide documentation demonstrating that section 106 consultation has been initiated 

does not differ from the Commission’s existing licensing requirements.116 We expect our 

applicants, as the project proponents, to work collaboratively with a SHPO and any 

affected tribes to conduct information gathering and to complete any studies the 

Commission determines necessary to support its section 106 decision-making as the 

Commission will make the final determination. However, because consultation practices 

vary, we do not believe this rulemaking is the appropriate forum to provide guidance on 

each state SHPO’s section 106 consultation procedures and preferences. Moreover, 

because projects at nonpowered dams and closed-loop pumped storage projects can vary 

drastically in size and scope, the Commission prefers to analyze anticipated impacts on 

historic properties and resolution of any adverse impacts on a project-by-project basis, 

rather than providing a generalized or over-simplistic forecast of anticipated effects and 

 

114 Id.

115 NOPR, 166 FERC ¶ 61,083 at PP 23-24. 

116 See 18 CFR 4.41(f)(4), 5.18(b)(3)(v). 

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alternatives for projects to be proposed at nonpowered dams and for closed-loop pumped 

storage projects. 

v. Dam Owner Documentation 

The NOPR proposed to require an applicant to provide confirmation that the 

federal or non-federal dam owner is not opposed to hydropower development at the dam

if the proposed project would be located at an existing nonpowered dam.117 

The Forest Service requests clarification concerning the requirement in proposed 

§ 7.2(b)(6)(ii) that an applicant provide confirmation that the federal entity is not opposed 

to hydropower development at the location.118 The Forest Service recommends that the 

documentation include confirmation that the applicant and federal entity discussed the 

possible license conditions that may be required by the federal entity, as well as 

confirmation of discussions about planning, permitting, and management issues related to 

all aspects of the development and operation of a hydropower facility, not only the 

location.119 According to the Forest Service, the requirement should also apply to 

applicants for closed-loop pumped storage projects.120 

 

117 See NOPR, 166 FERC ¶ 61,083 at P 25. 

118 Forest Service’s Comment at 3.

119 See id.

120 See id.

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In contrast, Rye Development recommends that the final rule exclude the proposed 

requirement in § 7.2(b)(6)(ii) that the federal dam owner must state the project is 

feasible.121 Rye Development states that the U.S. Army Corps of Engineers’ (Army 

Corps) practice is to refuse to provide such documentation and it does not favor projects 

at its facilities.122 In effect, Rye Development contends the requirement would exclude 

many projects from the expedited process.123

NHA also opposes the requirement that an applicant must submit documentation 

demonstrating that the federal dam owner does not oppose project development.124 NHA 

states that the federal dam owner’s opposition to the project should not be determinative, 

but also notes that the federal entity could prevent project development even after 

issuance of a Commission license by denying necessary authorizations under its 

purview.125 According to NHA, a federal dam owner’s concerns about a proposed project 

should be addressed by the applicant outside of the Commission’s licensing process.126 

 

121 Rye Development’s Comment at 7.

122 See id.

123 See id.

124 NHA’s Comment at 16. 

125 See id.

126 See id. 

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Moreover, NHA observes that if the federal agency opposes the project, it is unlikely that 

an application will ever be filed.127 

Dominion supports the NOPR’s proposal to require applicants to provide 

documentation of consultation with a non-federal dam owner that confirms the owner is 

not opposed to project development.128 Dominion notes that allowing a developer to 

obtain an expedited license at an existing non-federal dam without the owner’s consent 

could impair the intended use of the dam and water resource.129

The Commission’s intent is to avoid significant staff expenditures of time and 

effort that would be needed to shepherd an application through the expedited licensing 

process to ensure a license decision can be made two years from application filing, only 

to have a project stalled by a federal dam owner’s general opposition to hydropower 

development at its facility. The required documentation must demonstrate a preliminary

confirmation that the federal dam owner is not opposed to use of the facility for 

hydropower development; there is no need for the federal entity to agree to specific 

design components or specifications at the time of application filing. We also note that 

neither the Army Corps nor Interior (on behalf the Bureau of Reclamation) commented 

on this documentation requirement. 

 

127 See id.

128 Dominion’s Comment at 8. 

129 See id. 

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Accordingly, the final rule retains the requirement that an applicant provide 

documentation demonstrating that the dam owner, whether a federal or non-federal 

entity, is not opposed to project development.

vi. Public Parks, Recreation Areas, and Wildlife Areas

Documentation

If a proposed project would use any public park, recreation area, or wildlife refuge 

established under state or local law, the NOPR proposed in § 7.2(b)(7) to require an 

expedited licensing applicant to provide, at the time of application filing, documentation 

from the managing entity demonstrating that it is not opposed to use of the park, area, or 

wildlife refuge for hydropower development.130

Referencing § 7.2(b)(7) as proposed in the NOPR, Interior recommends that any 

license application submitted alongside a request to use the expedited licensing process 

address the following areas of interest to the National Park Service (NPS): (1) NPS 

areas; (2) Wild and Scenic Rivers; (3) Nationwide Rivers Inventory and eligible/suitable 

rivers; (4) recreation grant programs, and (5) recreation management.

131

 Specifically, 

Interior requests that if the project or any appurtenant structure or conduit is located in 

the vicinity of a NPS unit, consultation with NPS should begin as soon as possible and an 

 

130 NOPR, 166 FERC ¶ 61,083 at P 26 (explaining that section 21 of the FPA, as 

amended by the Energy Policy Act of 1992, limits the use of eminent domain to acquire 

any lands included within any public park, recreation area, or wildlife refuge established 

under state or local law). 

131 Interior’s Comment at 5-6.

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application should include a concurrence from the NPS that the project is not likely to 

adversely affect NPS-managed lands, or natural, cultural, or recreational resources.132 

Interior also reminds the Commission that it must comply with the Wild and Scenic 

Rivers Act if a project is proposed to be located in the proximity of a designated Wild 

and Scenic River or Congressionally-authorized study segments.133 Further, if the project 

would require a conversion under various NPS-administered recreation grant programs,

Interior recommends that an application identify a suitable replacement property 

approved by NPS.134 Lastly, Interior recommends that an application include an 

explanation of a recreation strategy, a draft or final recreation management plan, and 

documentation of consultation with interested stakeholders.135

Pursuant to § 4.38 of the Commission’s regulations,

136 a potential applicant must 

consult with the relevant federal, state, and interstate resource agencies, including NPS, 

prior to filing an application for an original license. Further, §§ 4.41 and 5.18 of our 

 

132 Id. at 5.

133 Id. Interior also recommends that an application for a project proposed to be 

located on eligible or suitable wild and scenic rivers, including Nationwide Rivers 

Inventory, should include a determination from the NPS as to whether the project would 

preclude Wild and Scenic Rivers designation for Nationwide Rivers Inventory segments 

and other eligible and suitable river segments.

134 Id. at 5-6 (citing 36 CFR 59.3, 72.72, and 40 U.S.C. §§ 550(b) and (e)).

135 Interior’s Comment at 6.

136 18 CFR 4.38. 

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regulations require an application to include documentation of consultation; describe

existing recreation facilities, existing and potential recreational use, and any new 

recreation development proposed by the applicant (e.g., recreation management plan);

and identify any designated waters and lands including any areas within or in the vicinity 

of the proposed project boundary that are included in, or have been designated for the 

study for inclusion in, the National Wild and Scenic Rivers System, or that have been 

designated as wilderness area, recommended for such designation, or designated as a 

wilderness study area under the Wilderness Act.137 Therefore, with the exception of the 

need for an application to identify suitable replacement property under NPS-administered 

grant programs, Interior’s requests do not differ from the Commission’s existing 

requirements with respect to the recreation-related content of a license application. 

Identifying suitable replacement property under NPS-administered grant programs is not 

a prerequisite for issuance of a Commission license. The Commission does not anticipate 

that this information, or the lack thereof, will preclude the Commission’s expedited 

processing of the license application. Therefore, we will not require the additional 

information requested by Interior. 

3. Section 7.3 – Adequacy Review of Application

In the NOPR, the Commission proposed to review a license application that is 

accompanied by a request to use the expedited licensing process under part 4 (TLP or 

ALP) or part 5 (ILP) of the Commission’s regulations, depending on the applicant’s 

 

137 See 18 CFR 4.41, 5.18. 

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elected licensing process. If the application is deemed deficient and rejected under part 4 

or 5, the NOPR explained that the request to use the expedited licensing process would

likewise be rejected. 

We received no comments on this aspect of the NOPR. The final rule retains § 7.3 

as originally proposed. 

4. Section 7.4 – Additional Information

In the NOPR, the Commission proposed to include § 7.4, requiring an applicant 

under part 7 to submit additional information or documentation to the Commission in the 

form and time frame prescribed by the Commission. As proposed, § 7.4 would also 

allow the Commission to direct a part 7 applicant to submit copies of the application or 

other filed materials to any person, agency, Indian Tribe, or other entity specified by the 

Commission. Failure to provide the requested information or documentation as specified 

may result in dismissal or abeyance of the license application. 

We received no comments on this aspect of the NOPR. The final rule retains § 7.4

as originally proposed. 

5. Section 7.5 – Decision on Request to Use Expedited Licensing 

Process

In the NOPR, the Commission proposed that the Director of the Office of Energy 

Projects (OEP) would act on a request to use the expedited licensing process within six 

months from the date of application filing. If Commission staff is unable to find that the 

application meets the requirements of parts 4, 5, and 7, deficiencies remain, or additional 

information is still needed six months after the date the application is filed, the Director 

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will deny the request to use the expedited licensing process. If the expedited licensing 

request is denied, proposed § 7.5 explained that the license application would be 

processed pursuant to a standard processing schedule under parts 4 or 5 of the 

Commission’s regulations, as appropriate. 

Daybreak recommends that the Director of OEP should only have 60 to 90 days, 

not six months as proposed in § 7.5, to review a request to use the expedited process to 

determine whether the project is eligible for the expedited process.138 Similarly, NMFS 

recommends 30 to 60 days to make this determination,

139 while the Nature Conservancy 

recommends 60 days.

140

 If an application is complete, NMFS recommends that the 

Commission issue a Notice of Acceptance and Ready for Environmental Analysis 

immediately and not wait for the six-month period to run.141 Alternatively, Daybreak 

recommends that the time for the applicants to respond to the Commission staff’s 

deficiency requests should not be counted toward the two-year deadline.142

 

138 Daybreak’s Comment at 3.

139 NMFS’ Comment at 3.

140 Nature Conservancy’s Comments at 5. 

141 NMFS’ Comment at 3.

142 Daybreak’s Comment at 3.

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The Nature Conservancy asks the Commission to clarify whether the two-year 

timeframe begins once the Director of OEP determines whether the use of the expedited 

licensing process is appropriate.

143

To clarify, the Director of OEP will act on a request to use the expedited licensing 

process no later than 180 days after an application and request to use the expedited 

process has been filed. However, earlier action by the Director of OEP is possible if an 

application clearly demonstrates compliance with the expedited licensing eligibility 

criteria. The timeliness of the Director’s action on such a request will also be directly 

tied to the completeness of the license application as well as the applicant’s prompt 

resolution of any deficiencies and additional information requests. If an applicant is 

unable to correct all deficiencies within 180 days after the application filing date, the 

Director will deny the request to use the expedited licensing process, and processing of 

the application will proceed under the Commission’s standard licensing process. 

If the Director approves a request to use the expedited licensing process, the twoyear process will be deemed to have begun on the date the application was filed. 

Therefore, whether the Director approves an expedited licensing request within 30 days 

or 180 days from the date the application was filed, the two-year schedule commences on

the date the application was filed. For the sake of precision, we have revised §§ 7.5 and 

7.6 in the final rule to replace “6 months” with “180 days.” 

 

143 Nature Conservancy’s Comment at 5. 

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6. Section 7.6 – Notice of Acceptance and Ready for Environmental 

Analysis

As proposed in the NOPR, section 7.6 explained that if the Director of OEP 

approves a request to use the expedited licensing process, the Commission will issue a 

public notice no later than six months from the application filing date. The notice will

accept the application and confirm the acceptance date as the application filing date; find 

the application ready for environmental analysis; request comments, protests, and 

interventions; request recommendations, preliminary terms and conditions, and

preliminary fishway prescriptions; and establish a schedule for the application’s 

expedited processing. 

The expedited schedule will include date estimates for: (i) the filing of 

recommendations, preliminary terms and conditions, and fishway prescriptions; 

(ii) issuance of the draft NEPA document, or an EA not preceded by a draft; (iii) filing of 

responses, if applicable, to requests for concurrence or formal consultation under ESA, or 

to other Commission staff requests to agencies or Indian Tribes under other federal laws, 

including the MSA and the NHPA; (iv) filing of comments on a draft NEPA document, if 

applicable; (v) filing of modified recommendations, mandatory terms and conditions, and 

fishway prescriptions in response to a draft NEPA document or, if no draft NEPA 

document is issued, to an EA; and (vi) issuance of a final NEPA document, if applicable.

NMFS and Interior request that the Commission, prior to issuing public notice of 

the application, seek concurrence on the proposed schedule from the agencies responsible 

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for the various environmental reviews and authorizations.144 NMFS and Interior also

request that the Commission issue a final decision on an application as soon as possible 

after the issuance of the final NEPA document to allow resource agencies sufficient time 

within the two-year expedited process to complete the requisite environmental reviews

and authorizations.145

The expedited processing schedule provided for in § 7.6(e) will be determined on 

case-by-case basis. Agencies should memorialize any anticipated timing or scheduling 

concerns during pre-filing correspondence with the applicant. In addition, once an 

application with a request for expedited processing is filed with the Commission, 

agencies should strive to promptly notify the Commission of any schedule-related 

concerns or requests. The Commission will consider any such agency input prior to 

issuing the public notice containing a project’s expedited licensing schedule. 

7. Section 7.7 – Amendment of Application

Section 7.7 of the NOPR proposed a process for amending a pending part 7

application following the Commission’s issuance of the notice accepting the application 

and finding it ready for environmental analysis. 

The Forest Service recommends that amendments to a license application filed 

under part 7 only be permitted before the Commission issues a notice of acceptance of 

 

144 NMFS’ Comment at 3; Interior’s Comment at 4.

145 NMFS’ Comment at 3; Interior’s Comment at 4.

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the application.146 Permitting amendments after a notice of acceptance has been issued 

would not allow sufficient time for the applicant and agencies to negotiate and modify 

license terms and conditions.147

We agree that a request to amend a part 7 license application after the acceptance 

of the application and issuance of the expedited processing schedule may interfere with 

the Commission’s ability to act on a license application within two years from the date of 

application filing. Therefore, we have revised § 7.7 to allow the Director of OEP to 

remove an application from the expedited licensing process if the applicant files a 

significant amendment to its application. If an application is removed from the expedited 

licensing process, Commission staff will continue to process the application under the 

Commission’s standard licensing process.

8. Section 7.8 – Other Provisions

Section 7.8, as proposed in the NOPR, authorized the Director of OEP to waive or 

modify provisions of part 7 for good cause. Proposed § 7.8 also explained that the 

Commission may consider late-filed recommendations by authorized fish and wildlife 

agencies under the Fish and Wildlife Coordination Act148 and FPA section 10(j),149 and 

 

146 Forest Service’s Comment at 4.

147 Forest Service’s Comment at 4.

148 16 U.S.C. §§ 661-666c (2012).

149 Id. § 803(j).

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late-filed FPA section 4(e)150 terms and conditions or FPA section 18151 prescriptions as 

cause to remove the application from the expedited licensing process under this part. In 

addition, proposed § 7.8(c)(5) stated that “[t]he Commission will require the construction, 

maintenance, and operation of such fishways as may be timely prescribed by the 

Secretary of Commerce or the Secretary of the Interior, as appropriate, pursuant to 

section 18 of the [FPA].”152 

NMFS and Interior recommend that the Commission expand or generalize the 

circumstances listed in proposed § 7.8 that would cause the Commission to remove a 

project from the expedited process.153 NMFS provides two examples, one in which the 

an applicant fails to provide sufficient information to complete ESA or essential fish 

habitat (EFH) consultation due to unanticipated delays, and another in which the scope of 

the project changes unexpectedly.154 

Once an applicant has received approval to use the expedited licensing process, 

circumstances such as late-filed recommendations, terms and conditions, or prescriptions

that may cause a project to be removed from the expedited licensing process will be 

evaluated on a case-by-case basis. The scenarios posed by NMFS (i.e., insufficient 

 

150 Id. § 797(e).

151 Id. § 811.

152 NOPR, 166 FERC ¶ 61,083 at § 7.8(c)(5) (emphasis added). 

153 NMFS’ Comment at 4; Interior’s Comment at 4.

154 NMFS’ Comment at 4.

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information to complete ESA or EFH consultation and unanticipated changes to the scope 

of the project) could impact the aspirational two-year processing timeline, but depending 

on the circumstances, may not be cause to remove the project from the expedited 

licensing process. In the alternative, rather than removing the project from the expedited 

licensing process, Commission staff may instead choose to document the reason for the 

delay and issue a revised processing schedule that may extend the original two year 

timeline. 

NMFS and Interior state that the Commission lacks the authority to reject a 

mandatory license condition prescribed by an agency under section 4(e) of the FPA or a 

fishway prescription prescribed by agency under section 18 of the FPA based on a 

deadline set forth by the Commission.155 Therefore, NMFS recommends that the word 

“timely” be removed from proposed § 7.8(c)(5).156

As NMFS and Interior correctly observe, the Commission has no authority to 

reject mandatory conditions filed under FPA section 4(e) or fishway prescriptions filed 

under FPA section 18 even if the mandatory condition or prescription is filed late.157 

Accordingly, we have deleted the word “timely” from § 7.8(c)(5).

 

155 NMFS’ Comment at 4; Interior’s Comment at 2 and 5.

156 NMFS’ Comment at 4.

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

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9. Section 7.9 – Transition Provision

The NOPR proposed including a transition provision to clarify that the new part 7 

would only apply to original license applications filed on or after the effective date of the 

final rule. 

The Commission received no comments on this aspect of the NOPR. The final 

rule retains § 7.9 as originally proposed. 

C. Other Matters 

1. Projects that Require an EIS

The NOPR requested comments on whether the expedited licensing process 

should be available for projects that otherwise meet the eligibility criteria, but will require 

the preparation of an EIS.158 

The Forest Service, Oregon DFW, Interior, and the Nature Conservancy support 

excluding projects that would require the preparation of an EIS from the expedited 

process because the expedited process should only be available for projects that would 

have limited environmental impacts.159 

In contrast, Daybreak believes that an expedited process that would exclude 

closed-loop pumped storage projects that would require an EIS would be overly 

 

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

159 Forest Service’s Comment at 4; Oregon DFW’s Comment at 2; Interior’s 

Comment at 7; Nature Conservancy’s Comment at 2.

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restrictive.160 Daybreak warns that “virtually” no closed-loop pumped storage project 

would qualify for the expedited process and would violate the purpose of the statute.161

Rather than categorically excluding projects that will require preparation of an 

EIS, NHA suggests that the Commission should make a case-by-case determination at the 

conclusion of the pre-filing NEPA scoping on whether the particular circumstances 

warrant approval of the expedited licensing process.162 

As further described in the discussion regarding the One Federal Decision 

process,163 the final rule will not categorically exclude applications for projects that 

would require the preparation of an EIS.164 In light of NHA’s recommendation, 

Commission staff will decide, on a case-by-case basis, whether to approve a request to 

use the expedited process after completing pre-filing scoping. By waiting until more 

information about a proposal’s possible environmental effects is available, we ensure that 

EIS projects that can be licensed within two years are not unreasonably excluded from 

 

160 Daybreak’s Comment at 2-3.

161 Id.

162 NHA’s Comment at 18. 

163 See infra PP 114-115.

164 Under the Commission’s existing regulations, an EIS is normally prepared for 

licenses for construction of any unconstructed water power projects. 18 CFR 380.6(a)(4) 

(2018). If, however, the Commission finds a license application may not significantly 

affect the quality of the human environment, an EIS may not be required to be prepared. 

Id. 380.6(b).

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the expedited process. Yet, we would also be able to exclude from expedited processing 

EIS projects that would require more resources, thereby ensuring that these projects are 

not hastily licensed under the expedited process. Accordingly, the final rule will not 

restrict part 7 eligibility to only projects that require preparation of an EA. 

The Forest Service and NMFS request clarification on the processing timeline for 

an application for a project that would be eligible for both the expedited licensing process 

and the One Federal Decision process.165 

By signing a Memorandum of Understanding Implementing One Federal Decision 

Under Executive Order 13807,166 federal agencies, including the Commission, committed 

to completing within an average of two years all required environmental reviews and 

authorization decisions for “major infrastructure projects.”

167 In general for hydropower 

projects, this two-year timeframe starts on the date the Commission publishes a Notice of 

 

165 Forest Service’s Comment at 4; NMFS’ Comment at 1. 

166 Establishing Discipline and Accountability in the Environmental Review and 

Permitting Process for Infrastructure Projects, Exec. Order No. 13,807, 82 FR 40,463 

(Aug. 15, 2017); Memorandum of Understanding Implementing the One Federal 

Decision under Executive Order 13807, https://www.ferc.gov/legal/mou/2018/MOUOne-Federal-Decision.pdf (One Federal Decision MOU). 

167 A major infrastructure project is defined as an infrastructure project for which 

multiple authorizations by Federal agencies will be required to proceed with construction, 

the lead Federal agency has determined that it will prepare an EIS, and the project

sponsor has identified the reasonable availability of funds sufficient to complete the 

project. Exec. Order No. 13,807, § 3(e).

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Intent to prepare an EIS and ends with the issuance of all federal environmental reviews 

and authorization decisions.

168

 

Projects that qualify as “major infrastructure projects” and receive approval to use 

the expedited licensing process will be processed under the two-year expedited licensing 

process set forth in part 7 of the Commission’s regulations. The two-year timeframe for 

the expedited licensing process will begin on the date of application filing, and will 

follow the procedures set forth in part 7 of the Commission’s regulations. Under the 

expedited licensing process, the Commission will strive to ensure that a final order is 

issued within two years from the date of application filing, as directed by the AWIA. We 

believe this outcome fulfills the spirit of the One Federal Decision MOU. 

2. FPA Section 35(c) Exceptions 

When issuing or amending a license for a closed-loop pumped storage project 

under the expedited licensing process, FPA section 35(c) gives the Commission 

discretion to “grant an exception from any other requirement of [FPA Part I] with respect 

to any part of the closed-loop pumped storage project (not including any dam or other 

impoundment).”169 The NOPR did not propose regulations implementing this section of 

the AWIA.

 

168 FERC’s One Federal Decision Implementation Plan, Attachment C. Under our 

One Federal Decision Implementation Plan, we will issue NOIs to prepare an EIS in postfiling for hydropower projects.

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

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NHA notes that the NOPR did not discuss FPA section 35(c), and asks the 

Commission to provide guidance on the kinds of exceptions to the FPA Part I 

requirements that it will adopt or consider.170 NHA posits that section 35(c) allows the 

Commission to ease the burden of license conditions for closed-loop pumped storage 

projects that qualify for expedited processing, noting that the Commission could refrain 

from requiring recreation improvements or could ease monitoring and reporting 

requirements unrelated to dam and project safety for these types of projects.171

Pursuant to section 35(c) of the FPA, any applicant interested in pursuing the 

expedited licensing process may request an exception from any of the requirements of 

Part I of the FPA with respect to any part of the applicant’s proposed closed-loop pumped 

storage project (not including any dam or other impoundment). An applicant may request 

a section 35(c) exception concurrently with a license application and the request for 

authorization to use the expedited licensing process. A request for a section 35(c) 

exception should clearly identify the requirement under Part I of the FPA from which the 

applicant is seeking to be excepted and provide reasoned justification for the request. 

 

170 NHA’s Comment at 19. 

171 NHA’s Comment at 19. 

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IV. Regulatory Requirements 

A. Information Collection Statement

The Paperwork Reduction Act172 requires each federal agency to seek and obtain 

the Office of Management and Budget’s (OMB) approval before undertaking a collection 

of information directed to ten or more persons or contained in a rule of general 

applicability. OMB regulations require approval of certain information collection 

requirements contained in final rules published in the Federal Register.

173

 Upon approval 

of a collection of information, OMB will assign an OMB control number and an 

expiration date. Respondents subject to the filing requirements of a rule will not be 

penalized for failing to respond to the collection of information unless the collection of 

information displays a valid OMB control number.

Public Reporting Burden: In this final rule, the Commission establishes an 

expedited process for issuing original licenses for qualifying facilities at nonpowered 

dams and for closed-loop pumped storage projects, as directed by Congress in the AWIA. 

 

172 44 U.S.C. §§ 3501-3521 (2012).

173 See 5 CFR 1320.12 (2018).

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This final rule modifies certain reporting and recordkeeping requirements included 

in FERC-500 (OMB Control No. 1902-0058)

174 and FERC-505 (OMB Control No. 1902-

0115).175 

The revisions to the Commission’s regulations, associated with the FERC-500 and 

FERC-505 information collections, are intended to comply with the requirements of the 

AWIA. While the information to be included in the license application and the required 

federal and state authorizations would remain the same under the expedited licensing 

process, consultation documentation regarding these authorizations will need to be 

submitted to the Commission at an earlier point in the licensing process. Therefore, 

preparing the request to use the expedited licensing process represents a slight increase in 

the reporting requirements and burden information for FERC-500 and FERC-505. 

The estimated burden and cost for the requirements contained in this final rule

follow. 

 

174 FERC-500 includes the reporting and recordkeeping requirements for 

“Application for License/Relicense for Water Projects with More than 5 Megawatt (MW) 

Capacity.”

175 FERC-505 includes the reporting and recordkeeping requirements for “Small 

Hydropower Projects and Conduit Facilities including License/Relicense, Exemption, and 

Qualifying Conduit Facility Determination.”

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Revisions Due to the Final Rule in Docket No. RM19-6-000

No. of 

Respondents

(1)

No. of 

Responses 

per 

Respondent

(2)

Total No. of 

Responses

(1)x(2)=(3)

Avg. 

Burden 

Hrs. & 

Cost Per 

Response

176

(4)

Total Annual 

Burden Hours 

& Total 

Annual Cost 

(3)X(4)=5

FERC500 5 1 540

$3,160

200 hrs.;

$15,800

FERC505 5 1 540

$3,160

200 hrs.;

$15,800

TOTAL

10

400 hrs.;

$31,600

Titles: FERC-500 (Application for License/Relicense for Water Projects with 

More than 5 Megawatt (MW) Capacity) and FERC-505 (Small Hydropower Projects and 

Conduit Facilities including License/Relicense, Exemption, and Qualifying Conduit 

Facility Determination).

Action: Revisions to information collections FERC-500 and FERC-505.

OMB Control Nos.: 1902-0058 (FERC-500) and 1902-0115 (FERC-505).

Respondents: Municipalities, businesses, private citizens, and for-profit and notfor-profit institutions. 

Frequency of Information: Ongoing.

 

176 The estimates for cost per response are derived using the following formula: 

Average Burden Hours per Response * $79 per Hour = Average Cost per Response. The 

hourly cost figure of $79 is the 2018 average FERC employee wage plus benefits. 

Commission staff assumes that respondents earn at a similar rate to FERC employees. 

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Necessity of Information: The revised regulations implement the AWIA’s 

directive to establish an expedited licensing process for two types of hydropower projects 

– qualifying facilities at existing nonpowered dams and closed-loop pumped storage 

projects. The revised regulations would affect only those entities that opt to request 

authorization to use the expedited process at the time they file a license application

proposing one of the two aforementioned project types. The revised regulations would 

impose a new, albeit slight, information collection requirement.

The new requirement for an applicant to file a request for authorization to use the 

expedited process concurrently with its license application is necessary for the 

Commission to carry out its responsibilities under the FPA, as amended by the AWIA. 

The information provided by the applicants will enable the Commission to review the 

features of the proposed project and make a determination on whether the proposed 

project meets the statutory criteria enumerated in the AWIA, as well as the early 

consultation requirements that the Commission has determined will help it seek to ensure 

that the proposed project’s license application will be acted on no later than two years 

after the date of application filing. 

Internal Review: The Commission has reviewed the revisions and has 

determined that they are necessary. These requirements conform to the Commission’s 

need for efficient information collection, communication, and management within the 

energy industry. The Commission has assured itself, by means of internal review, that 

there is specific, objective support for the burden estimates associated with the 

information collection requirements.

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Interested persons may obtain information on the reporting requirements by 

contacting the Federal Energy Regulatory Commission, 888 First Street, NE, 

Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], by 

email to DataClearance@ferc.gov, by phone (202) 502-8663, or by fax (202) 273-0873. 

Comments concerning the collections of information and the associated burden 

estimates may also be sent to: Office of Information and Regulatory Affairs, Office of 

Management and Budget, 725 17th Street, NW, Washington, DC 20503 [Attention: Desk 

Officer for the Federal Energy Regulatory Commission]. Due to security concerns, 

comments should be sent electronically to the following email address: 

oira_submission@omb.eop.gov. Comments submitted to OMB should refer to FERC500 (OMB Control No. 1902-0058) and FERC-505 (OMB Control No. 1902-0115).

B. Environmental Analysis

The Commission is required to prepare an EA or an EIS for any action that may 

have a significant adverse effect on the human environment.177 The Commission has 

categorically excluded certain actions from this requirement as not having a significant 

effect on the human environment. Excluded from this requirement are rules that are 

clarifying, corrective, or procedural, or that do not substantially change the effect of 

legislation or the regulations being amended.178 This final rule establishes an expedited 

 

177 Regulations Implementing the National Environmental Policy Act, Order 

No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987) (crossreferenced at 41 FERC 61,284).

178 18 CFR 380.4(a)(2)(ii) (2018).

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licensing process for qualifying facilities at nonpowered dams and for closed-loop 

pumped storage projects, as directed by Congress in the AWIA. Because this final rule is 

procedural in nature and does not substantially change the effect of the underlying 

legislation, preparation of an EA or EIS is not required. 

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA)179 generally requires a description 

and analysis of final rules that will have significant economic impact on a substantial 

number of small entities. The RFA mandates consideration of regulatory alternatives that 

accomplish the stated objectives of a final rule and minimize any significant economic 

impact on a substantial number of small entities.180 In lieu of preparing a regulatory 

flexibility analysis, an agency may certify that a final rule will not have a significant 

economic impact on a substantial number of small entities.181

The Small Business Administration’s (SBA) Office of Size Standards develops the 

numerical definition of a small business.182 The SBA size standard for electric utilities is 

based on the number of employees, including affiliates.183 Under SBA’s current size 

 

179 5 U.S.C. §§ 601-612 (2012).

180 Id. § 603(c).

181 Id. § 605(b).

182 13 CFR 121.101 (2018).

183 Id. § 121.201.

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standards, a hydroelectric power generator (NAICS code 221111)184 is small if it, 

including its affiliates, employs 500 or fewer people.185 

This final rule will directly affect only those entities that file an application for a 

qualifying facility at a nonpowered dam or for a closed-loop pumped storage project, and

a request to use the expedited licensing process. While the information to be included in 

the licensing application and the required federal and state authorizations would remain 

the same, documentation regarding these authorizations will need to be submitted at an 

earlier point in the licensing process. Therefore, preparing a request to use the expedited 

licensing process would represent a slight increase (40 hours of reporting burden and 

corresponding wage costs of $3,160 per entity on an annual basis) in the information 

collection reporting requirements and burden for FERC-500 and FERC-505. However, 

we do not anticipate the impact of the final rule on affected entities, regardless of their 

status as a small entity or not, to be significant.

Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that 

this final rule will not have a significant economic impact on a substantial number of 

small entities. 

 

184 The North American Industry Classification System (NAICS) is an industry 

classification system that Federal statistical agencies use to categorize businesses for the 

purpose of collecting, analyzing, and publishing statistical data related to the U.S. 

economy. United States Census Bureau, North American Industry Classification System, 

https://www.census.gov/eos/www/naics/.

185 13 CFR 121.201 (2018) (Sector 22 - Utilities).

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D. Document Availability

In addition to publishing the full text of this document in the Federal Register, the 

Commission provides all interested persons an opportunity to view and/or print the 

contents of this document via the Internet through the Commission’s Home Page 

(http://www.ferc.gov) and in the Commission’s Public Reference Room during normal 

business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, 

Washington DC 20426.

From the Commission’s Home Page on the Internet, this information is available 

on eLibrary. The full text of this document is available on eLibrary in PDF and 

Microsoft Word format for viewing, printing, and/or downloading. To access this 

document in eLibrary, type the docket number, excluding the last three digits of this 

document, in the docket number field.

User assistance is available for eLibrary and the Commission’s website during 

normal business hours from the Commission’s Online Support at (202) 502-6652 (toll 

free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference 

Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at 

public.referenceroom@ferc.gov.

E. Effective Date and Congressional Notification

These regulations are effective [INSERT DATE 90 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. The Commission has determined, 

with the concurrence of the Administrator of the Office of Information and Regulatory 

Affairs of OMB, that this rule is not a major rule as defined in section 251 of the Small 

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Business Regulatory Enforcement Fairness Act of 1996.186 This rule is being submitted 

to the Senate, House, Government Accountability Office, and Small Business 

Administration.

List of Subjects in 18 CFR Part 7

Administrative practice and procedure, Electric power, Reporting and 

recordkeeping requirements 

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

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.

 

186 5 U.S.C. § 804(2) (2012).

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In consideration of the foregoing, the Commission adds Part 7, Chapter I, Title 18, Code 

of Federal Regulations, as follows:

PART 7 – EXPEDITED LICENSING PROCESS FOR QUALIFYING NONFEDERAL HYDROPOWER PROJECTS AT EXISTING NONPOWERED DAMS 

AND FOR CLOSED-LOOP PUMPED STORAGE PROJECTS 

Sec.

7.1 Applicability and Definitions.

7.2 Use of Expedited Licensing Process.

7.3 Adequacy Review of Application.

7.4 Additional Information.

7.5 Decision on Request to Use Expedited Licensing Process.

7.6 Notice of Acceptance and Ready for Environmental Analysis.

7.7 Amendment of Application.

7.8 Other Provisions.

7.9 Transition Provision.

Authority: 16 U.S.C. 791a-825r; Pub. L. No. 115-270, 132 Stat. 3765.

§ 7.1 Applicability and definitions.

(a) This part applies to the processing of applications for original licenses for 

qualifying non-federal hydropower projects at existing nonpowered dams and for closedloop pumped storage projects pursuant to sections 34 and 35 of the Federal Power Act.

(b) Applicability of Existing Regulations. Except where superseded by the 

expedited licensing process set forth in this part, the regulations governing license 

applications under parts 4 and 5 of this chapter, as applicable, also apply to license 

applications filed under this part. 

(c) Definitions. The definitions in § 4.30(b) of this chapter apply to this part. In 

addition, for the purposes of this part –

(1) Qualifying nonpowered dam means any dam, dike, embankment, or other 

barrier –

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(i) the construction of which was completed on or before October 23, 2018;

(ii) that is or was operated for the control, release, or distribution of water for 

agricultural, municipal, navigational, industrial, commercial, environmental, recreational, 

aesthetic, drinking water, or flood control purposes; and

(iii) that, as of October 23, 2018, was not generating electricity with hydropower 

generating works that were licensed under, or exempted from the license requirements 

contained in, Part I of the Federal Power Act. 

(2) Qualifying facility means a facility that is determined under section 34 of the 

Federal Power Act to meet the qualifying criteria for non-federal hydropower projects at 

existing nonpowered dams. 

(3) Qualifying Criteria for Closed-Loop Pumped Storage Projects means criteria 

that a pumped storage project must meet in order to qualify as a closed-loop pumped 

storage project eligible for the expedited process established under this part. These 

criteria require that the pumped storage project:

(i) cause little to no change to existing surface and groundwater flows and uses; 

(ii) is unlikely to adversely affect species listed as a threatened species or 

endangered species, or designated critical habitat of such species, under the Endangered 

Species Act of 1973; 

(iii) utilize only reservoirs situated at locations other than natural waterways, 

lakes, wetlands, and other natural surface water features; and 

(iv) rely only on temporary withdrawals from surface waters or groundwater for 

the sole purposes of initial fill and periodic recharge needed for project operation.

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(d) Who may file. Any citizen, association of citizens, domestic corporation, 

municipality, or state that develops and files a license application under 18 CFR parts 4 

and 5, as applicable, may request expedited processing under this part.

(e) Use of expedited licensing process. An applicant wishing to use this expedited 

licensing process must apply for and receive authorization from the Commission under 

this part. An applicant under this part may elect to use the licensing process provided for 

in 18 CFR part 5 (i.e., integrated license application process), or as provided under 18 

CFR § 5.1: 

(1) 18 CFR part 4, subparts D-H (i.e., traditional process); or

(2) § 4.34(i) of this chapter, Alternative procedures.

§ 7.2 Use of Expedited Licensing Process.

(a) In order to pursue the expedited licensing process, an applicant must request 

authorization for the expedited process, as provided for in paragraph (b) of this section. 

The licensing procedures in this part do not apply to an application for a new or 

subsequent license.

(b) An application that accompanies a request for authorization to use the 

expedited licensing process must include the information specified below.

(1) Section 34 of the Federal Power Act Qualification – Projects at Nonpowered 

Dams. The application must demonstrate that the proposed facility meets the following 

qualifications pursuant to section 34(e) of the Federal Power Act:

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(i) as of October 23, 2018, the proposed hydropower facility was not licensed 

under or exempted from the license requirements contained in Part I of the Federal Power 

Act;

(ii) the facility will be associated with a qualifying nonpowered dam;

(iii) the facility will be constructed, operated, and maintained for the generation of 

electric power;

(iv) the facility will use for such generation any withdrawals, diversions, releases, 

or flows from the associated qualifying nonpowered dam, including its associated 

impoundment or other infrastructure; and

(v) the operation of the facility will not result in any material change to the 

storage, release, or flow operations of the associated qualifying nonpowered dam.

(2) Section 35 of the Federal Power Act Qualification – Closed-Loop Pumped 

Storage Projects. The application must demonstrate that the proposed closed-loop 

pumped storage project meets the following qualifications pursuant to section 35(g)(2) of 

the Federal Power Act:

(i) the project will cause little to no change to existing surface and groundwater 

flows and uses; and

(ii) the project is unlikely to adversely affect species listed as a threatened species 

or endangered species, or designated critical habitat of such species, under the 

Endangered Species Act of 1973.

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(3) Section 401 of the Clean Water Act. The application must include a copy of a 

request for certification under section 401(a)(1) of the Clean Water Act, including proof 

of the date on which the certifying agency received the request; or

(i) a copy of water quality certification; or

(ii) evidence of waiver of water quality certification. A certifying agency is 

deemed to have waived the certification requirements of section 401(a)(1) of the Clean 

Water Act if the certifying agency has not denied or granted certification by one year 

after the date the certifying agency received a written request for certification. If a 

certifying agency denies certification, the applicant must file a copy of the denial within 

30 days after the applicant received it.

(4) Endangered Species Act (ESA). The application must include:

(i) A no-effect determination that includes documentation that no listed species or 

critical habitat are present in the action area; 

(ii) Documentation of concurrence from the U.S. Fish and Wildlife Service and the 

National Marine Fisheries Service (Service(s)), as necessary, that the action is not likely 

to adversely affect ESA-listed species or critical habitat; or

(iii) A draft Biological Assessment that includes documentation of consultation 

with the Service(s). 

(5) Section 106 of the National Historic Preservation Act. Documentation that 

section 106 consultation has been initiated with the state historic preservation officer(s)

and any Indian Tribes identified as having an interest in the project.

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(6) Dam Owner Documentation. For projects to be located at existing 

nonpowered dams: 

(i) Documentation of consultation with any nonfederal owner of the nonpowered 

dam if the applicant is not the owner and confirmation that the owner is not opposed to a 

hydropower development at the location; or

(ii) Documentation from the federal entity that non-federal hydropower 

development is not precluded at the proposed location and confirmation that the federal 

entity is not opposed to a hydropower development at the location. 

(7) Public Parks, Recreation Areas, and Wildlife Refuges. If the project would use 

any public park, recreation area, or wildlife refuge established under state or local law, 

documentation from the managing entity indicating it is not opposed to the site’s use for 

hydropower development. 

§ 7.3 Adequacy Review of Application.

(a) Adequacy Review of License Applications. Review of the original license 

application for which expedited processing under this part is requested will be conducted 

pursuant to 18 CFR part 4 or 5, as applicable.

(b) Deficient License Applications. If an original license application for which 

expedited processing is requested under this part is rejected under 18 CFR parts 4 and 5, 

as applicable, the request for authorization for the expedited licensing process under this 

part is deemed rejected. 

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§ 7.4 Additional information.

An applicant may be required to submit any additional information or 

documentation that the Commission considers relevant for an informed decision on the 

application for authorization under this part. The information or documents must take the 

form, and must be submitted within the time, that the Commission prescribes. An 

applicant may also be required to provide within a specified time additional copies of the 

application, or any of the additional information or documents that are filed, to the 

Commission or to any person, agency, Indian Tribe or other entity that the Commission 

specifies. If an applicant fails to provide timely additional information, documents, or 

copies of submitted materials as required, the Director of the Office of Energy Projects

(Director) may dismiss the application, hold it in abeyance, or take other appropriate 

action under this chapter or the Federal Power Act.

§ 7.5 Decision on request to use expedited licensing process.

When the Commission has determined that the original license application is 

complete insofar as it meets the Commission’s requirements as specified in 18 CFR parts 

4, 5, and this part; any deficiencies have been cured; and no other additional information 

is needed, the Director will make a decision on the request to use the expedited licensing 

process under this part no later than 180 days after receipt of a request for authorization 

to use the expedited process. If the Commission cannot deem the application complete 

within 180 days of application filing, the Director will deny the request to use the 

expedited licensing process. If the Director denies the request to use the expedited 

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licensing process, the original license application will be processed pursuant to a standard 

processing schedule under 18 CFR parts 4 and 5, as applicable.

§ 7.6 Notice of acceptance and ready for environmental analysis.

If the Director deems the application complete and approves the request to use the 

expedited licensing process under § 7.5, the Commission will issue a public notice as 

required in the Federal Power Act, no later than 180 days after application filing, that: 

(a) Accepts the application for filing and specifies the date upon which the 

application was accepted for filing; 

(b) Finds the application ready for environmental analysis;

(c) Requests comments, protests, and interventions; 

(d) Requests recommendations, preliminary terms and conditions, and preliminary 

fishway prescriptions, including all supporting documentation; and

(e) Establishes an expedited licensing process schedule, including estimated dates 

for: 

(1) Filing of recommendations, preliminary terms and conditions, and fishway 

prescriptions; 

(2) Issuance of a draft National Environmental Policy Act (NEPA) document, or 

an environmental assessment not preceded by a draft;

(3) Filing of a response, as applicable, to Commission staff’s request for ESA

concurrence or request for formal consultation under the ESA, or responding to other 

Commission staff requests to federal and state agencies, or Indian Tribes pursuant to

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Federal law, including the Magnuson-Stevens Fishery Conservation and Management 

Act and the National Historic Preservation Act; 

(4) Filing of comments on the draft NEPA document, as applicable; 

(5) Filing of modified recommendations, mandatory terms and conditions, and 

fishway prescriptions in response to a draft NEPA document or environmental 

assessment, if no draft NEPA document is issued; and

(6) Issuance of a final NEPA document, if any. 

§ 7.7 Amendment of application.

(a) Any proposed amendments to the pending license application after issuance of 

the notice of acceptance and ready for environmental analysis under this section must 

include:

(1) an amended or new section 401 of the Clean Water Act water quality 

certification if the amendment would have a material adverse impact on the water quality 

in the discharge from the proposed project; and

(2) updates to all other material submitted under § 7.2(b).

(b) If based on the information provided under paragraph (a) of this section, the 

proposed project under the amended license application no longer meets the requirements 

for expedited processing under § 7.2 of this part or if the proposed amendment 

significantly amends the license application, the Director will notify the applicant that the 

application will no longer be processed under the expedited licensing process under this 

part and that further processing of the application will proceed under parts 4 and 5 of this 

chapter, as applicable.

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(c) If the Director approves the continued processing of the amended application 

under this part and the amendment to the application would materially change the 

project’s proposed plans of development, as provided in § 4.35 of this chapter, an agency, 

Indian Tribe, or member of the public may modify the recommendations or terms and 

conditions or prescriptions it previously submitted to the Commission pursuant to § 7.6. 

Such modified recommendations, terms and conditions, or prescriptions must be filed no 

later than the due date specified by the Commission for comments on the amendment.

(d) Date of acceptance. The date of acceptance of an amendment of application 

for an original license filed under this part is governed by the provisions of § 4.35 of this 

chapter.

§ 7.8 Other provisions.

(a) Except for provisions required by statute, the Director may waive or modify 

any of the provisions of this part for good cause. 

(b) Late-filed recommendations by fish and wildlife agencies pursuant to the Fish 

and Wildlife Coordination Act and section 10(j) of the Federal Power Act for the 

protection, mitigation of damages to, and enhancement of fish and wildlife affected by 

the development, operation, and management of the proposed project and late-filed terms 

and conditions or prescriptions filed pursuant to sections 4(e) and 18 of the Federal 

Power Act, respectively, may be considered by the Commission as cause to remove the 

application from the expedited licensing process. If the Director determines that latefiled recommendations, terms and conditions, or prescriptions are likely to prevent the 

Commission from issuing a final licensing decision within two years from application 

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receipt, the Director will notify the applicant that the application will no longer be 

processed under the expedited licensing process under this part and that further 

processing of the application will proceed under 18 CFR parts 4 and 5, as applicable.

(c) License conditions and required findings. (1) All licenses shall be issued on 

the conditions specified in section 10 of the Federal Power Act and such other conditions 

as the Commission determines are lawful and in the public interest.

(2) Subject to paragraph (b) of this section, fish and wildlife conditions shall be 

based on recommendations timely received from the fish and wildlife agencies pursuant 

to the Fish and Wildlife Coordination Act.

(3) The Commission will consider the timely recommendations of resource 

agencies, other governmental units, and members of the public, and the timely

recommendations (including fish and wildlife recommendations) of Indian Tribes 

affected by the project.

(4) Licenses for a project located within any Federal reservation shall be issued 

only after the findings required by, and subject to, any conditions that may be filed 

pursuant to section 4(e) of the Federal Power Act.

(5) The Commission will require the construction, maintenance, and operation of 

such fishways as may be prescribed by the Secretary of Commerce or the Secretary of the 

Interior, as appropriate, pursuant to section 18 of the Federal Power Act.

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§ 7.9 Transition provision.

This part shall only apply to original license applications filed on or after 

[INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER].

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Document Content(s)

RM19-6-000.DOCX.......................................................1-80

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