REPORT ON THE PILOT TWO-YEAR HYDROELECTRIC LICENSING

PROCESS FOR NON-POWERED DAMS AND CLOSED-LOOP PUMPED 

STORAGE PROJECTS AND RECOMMENDATIONS

PURSUANT TO SECTION 6 OF THE HYDROPOWER REGULATORY 

EFFICIENCY ACT OF 2013

REPORT

Submitted to the

United States Congress

Prepared by the Staff of

The Federal Energy Regulatory Commission

May 2017
This page intentionally left blank.
Report on the Pilot Two-Year Hydroelectric Licensing Process for 

Non-Powered Dams and Closed-Loop Pumped Storage Projects

and Recommendations Pursuant to Section 6 of the Hydropower 

Regulatory Efficiency Act of 2013

May 26, 2017
This page intentionally left blank.
Table of Contents

EXECUTIVE SUMMARY ................................................................................................i

I. BACKGROUND .................................................................................................... 1

a. Hydropower Regulatory Efficiency Act of 2013..................................... 1

b. Hydropower Program Descriptions and Functions ............................... 2

c. Statutory and Regulatory Framework of Hydropower Licensing ........ 3

d. Available Licensing Processes .................................................................. 4

II. IMPLEMENTATION OF THE HREA.................................................................. 6

a. Initial Workshop........................................................................................ 6

b. Notice Soliciting Proposed Pilot Projects ................................................ 6

c. Proposed Pilot Projects ............................................................................. 8

III. OUTCOMES OF THE PILOT TWO-YEAR LICENSING PROCESS .............. 10

a. Pilot Project Not Implemented: Wild Flower Project.......................... 10

b. Pilot Project Implemented: L&D 11 Project........................................ 11

1. Pre-filing Milestones ...................................................................... 11

2. Post-filing Milestones..................................................................... 15

IV. STAKEHOLDER COMMENTS AND RECOMMENDATIONS ...................... 24

a. Benefits of Expedited Licensing ............................................................. 24

b. Feasibility and Practicability .................................................................. 25

c. Criteria for Expedited Licensing............................................................ 26

1. Design Criteria................................................................................ 26

2. Environmental Effects Criteria and Information Needs................. 27

3. Implementation of a Two-Year Process on a National Scale......... 29

4. Best Practices and Recommendations............................................ 31

V. TIMELINESS OF EXISTING LICENSING PROCESSES ................................ 33

a. Processing Times for New Projects........................................................ 33

b. Characteristics of Projects Processed in Two Years............................ 34

c. Site Selection and Project Design Characteristics................................ 37

d. PAD Development, Pre-filing Consultation, and Study Needs............ 38

e. Application Quality.................................................................................. 38

f. Commission Processing Timelines ......................................................... 40

g. Other Statutory and Regulatory Factors .............................................. 41

1. Timing of Receipt of Mandatory Section 4(e), 18, and 30(c) 

Conditions....................................................................................... 41

2. Time to Receive Water Quality Certification................................. 41

3. Time to Complete ESA Consultation ............................................. 42
4. Time to Complete Section 106 Consultation.................................. 44

VI. CONCLUSIONS

APPENDICES

APPENDIX A Summary of Statutory and Regulatory Requirements of the Commission’s 

Hydropower Licensing Process

APPENDIX B Summary Table and Descriptions of the Commission’s Existing 

Hydropower Licensing Processes and the Pilot Two-Year Process

APPENDIX C Copy of the May 27, 2014 Letter to Wild Flower Water, LLC regarding 

the request to test the two-year pilot process for the Wild Flower Water Pumped 

Storage Hydro Project (FERC No. 13842)

APPENDIX D Copy of the Process Plan and Schedule for the Pilot Two-Year Process: 

Kentucky River Lock & Dam No. 11 Hydroelectric Project (FERC No. 14276)

APPENDIX E Summary of Progress on Pre-Construction and Operation License 

Requirements for the Kentucky River Lock & Dam No. 11 Hydroelectric Project 

(FERC No. 14276)
List of Tables

Table 1. Projects Licensed or Exempted from Licensing in Two Years or 

Less (2003-2016). ............................................................................................ 34

Table 2. Characteristics of Projects Licensed or Exempted from 

Licensing in Greater Than Two Years and Two Years or Less 

(2003-2016). .................................................................................................... 35
This page intentionally left blank.
TECHNICAL ACRONYMS AND ABBREVIATIONS

AIR Additional Information Request

ALP Alternate Licensing Process

BO Biological Opinion

Commission, or FERC Federal Energy Regulation Commission

Conservation Fund Imperiled Bat Conservation Fund

Conservation Strategy Conservation Strategy for Forest Dwelling Bats

Corps U.S. Army Corps of Engineers

CWA Clean Water Act

EA Environmental Assessment

EDP Existing Dam Process

EIS Environmental Impact Statement

ESA Endangered Species Act

Forest Service U.S. Forest Service

FPA Federal Power Act

FWPA Federal Water Power Act

FWS U.S. Fish and Wildlife Service

HPMP Historic Properties Management Plan

HREA Hydropower Regulatory Efficiency Act of 2013

ILP Integrated Licensing Process

Interior U.S. Department of the Interior

Kentucky DEP Kentucky Department of Environmental Protection

Kentucky DWFR Kentucky Department of Fish and Wildlife Resources

Kentucky SHPO Kentucky State Historic Preservation Office

KRA Kentucky River Authority

kV kilovolt

L&D 11 Project Kentucky River Lock and Dam No. 11 Hydroelectric 

Project No. 14276

Lock 12 Lock 12 Hydro Partners, LLC

MOA Memorandum of Agreement

MOU Memorandum of Understanding

MW megawatt

MWh megawatt-hour

National Register National Register of Historic Places

NEPA National Environmental Policy Act

New York State DEC New York State Department of Environmental 

Conservation

NHA National Hydropower Association

NHPA National Historic Preservation Act

NMFS National Marine Fisheries Service

NOI Notice of Intent

Oncor Oncor Electric Delivery Company
PA Programmatic Agreement

PAD Pre-Application Document

PM&E protection, mitigation, and enhancement

REA Ready for Environmental Analysis

Recreation Plan Recreation Resources Management Plan

RTE Rare, Threatened, and Endangered 

Rye Rye Development, LLC

SHPO State Historic Preservation Officer

THPO Tribal Historic Preservation Officer

TLP Traditional Licensing Process

Wild Flower Project Wild Flower Water Pumped Storage Hydro Project

Wild Flower Water Wild Flower Water, LLC
AD13-9-000

i

EXECUTIVE SUMMARY

Background

This report was prepared by the staff of the Federal Energy Regulatory 

Commission (Commission) pursuant to section 6 of the Hydropower Regulatory 

Efficiency Act (HREA) of 2013.

1 Section 6 requires the Commission to investigate the 

feasibility of the issuance of a license for hydropower development at non-powered dams 

and closed-loop pumped storage projects in a two-year period (pilot two-year licensing 

process), and prepare a report describing the outcome of the Commission’s efforts in

implementing a pilot two-year licensing process. The report is to include a description of 

public comments on the effectiveness of each tested two-year pilot process. In addition, 

the report is to outline how the Commission will adopt policies or issue new regulations

that result in a two-year licensing process for appropriate projects, or identify hindrances 

that justify a determination by the Commission that a two-year licensing process is not 

practicable. The recommendations herein reflect the views only of Commission staff.

After gathering initial public comments and recommendations in the fall of 2013, 

staff, via public notice, solicited interest in testing a two-year licensing process in 

January, 2014. The Commission’s notice identified criteria specifying that a proposed 

pilot project: be located at a non-powered dam or be a closed-loop pumped storage 

project; have a well-developed project proposal including descriptions of project facilities 

and operation; would cause little to no change to environmental resources; and be located 

in areas where there is substantial existing information on environmental resources and 

effects.

Two project proponents, Wild Flower Water, LLC (Wild Flower Water) and Rye 

Development (Rye)2 filed timely Notices of Intent (NOI) to file applications for original 

licenses, pre-application documents (PADs), and requests to test a two-year licensing 

process. Wild Flower Water’s proposed pumped storage project did not meet the 

Commission’s specified criteria for testing a two-year process. Staff determined that 

Rye’s proposed project (L&D 11 Project) met the criteria for a project at an existing nonpowered dam, and granted Rye’s request to test the two-year licensing process in August, 

2014.

 1 Hydropower Regulatory Efficiency Act of 2013, Pub. L. 113-23, § 6, 

127 Stat. 493 (2013) (HREA). 2 Free Flow Power Project 92, LLC filed the initial Notice of Intent (NOI) and 

application for the L&D 11 Project. On August 22, 2014, Rye filed with the Commission 

a letter indicating that it was the successor entity to Free Flow Power Corporation, and 

would replace Free Flow Power Project 92, LLC as manager of the L&D 11 Project.
AD13-9-000

ii

Rye’s May 5, 2014 filing of its NOI, PAD, and request to use test a two-year 

licensing process set May 5, 2016 as the Commission’s two-year deadline to issue Rye’s 

license. As will be discussed in more detail below, staff worked with Rye to address

information gaps in Rye’s PAD in advance of Rye’s filing of its license application on 

April 16, 2015. Upon receiving Rye’s application, staff continued to work with Rye to 

correct deficiencies in Rye’s application, and obtain from Rye additional information 

necessary to enable staff to issue a ready for environmental analysis notice.

On February 12, 2016, staff issued an Environmental Assessment analyzing the 

potential environmental effects of constructing and operating the project and concluding

that licensing the L&D 11 Project, as proposed by Rye and with some additional staffrecommended environmental measures, would not constitute a major federal action 

significantly affecting the quality of the human environment. On May 5, 2016, the 

Commission issued an original license to Rye for the L&D 11 Project, meeting the twoyear process target date for completing the licensing process.3

 

In accordance with the HREA, staff held a public workshop to solicit comments

on the effectiveness of the tested two-year pilot licensing process, as well as the 

feasibility and practicability of implementing such a process programmatically. 

The comments are discussed in section IV of this report. The majority of the 

stakeholders4 and commenters felt that the pilot two-year licensing process was a success, 

and that it is both feasible and practicable for the Commission to implement a formal 

two-year licensing process. Rye felt that the specificity of the pilot licensing process, 

including the detailed schedule set by Commission staff, was particularly helpful. 

Commenters further encouraged staff to identify and incorporate a set of specific criteria 

that projects would need to satisfy in order to use the two-year licensing process. Such 

criteria, the commenters felt, would limit the applicability of the two-year licensing 

process to projects without significant environmental or design challenges and would be 

able to proceed through licensing smoothly. Concerns were raised, however, about the 

ability of state and federal resource agencies to process multiple projects utilizing a twoyear licensing process simultaneously.

Because of the small sample size of projects testing the pilot two-year process, to 

assess the necessity of a two-year licensing process, this report also examines processing 

times for the 83 projects that completed pre-filing activities and were issued original 

licenses or small hydropower exemptions between 2003 and 2016. During this period, 

23 projects, or approximately 28 percent of all of the projects that were authorized, were 

 3

 FFP Project 92, LLC., 155 FERC ¶ 62,089 (2016) (Rye License Order). 4 “Stakeholders” typically refers federal and state agencies, conservation groups, 

and the public.
AD13-9-000

iii

completed in two years or less. The median processing time for these projects was

1.36 years, including pre-filing consultation. The projects in the sample set that were not 

licensed in two years tended to be larger capacity projects that presented increased 

complexity and/or controversy, a larger scope of issues, and a higher likelihood of the 

need for additional information. These factors often increase licensing time.

Based on this analysis, staff believes it is feasible under the Commission’s current 

regulations for developers to complete the licensing process in two years. Staff remains

convinced that site selection, a well-defined project proposal, thorough pre-filing 

consultation, and a complete application are the most important elements to ensuring a 

project is authorized in an expeditious manner. 

However, staff is also aware of actions it can take to further aid applicants in the 

site selection, pre-filing, and post-filing processes. In large part, this will involve 

updating and improving the small/low-impact hydropower portion of the Commission’s 

website which was developed in 2010 as a tool to assist applicants in expediting projects. 

Staff also commits to providing more frequent processing updates, when appropriate, to 

provide additional clarity and certainty during the licensing process.
AD13-9-000

iv

This page intentionally left blank.
AD13-9-000

1

Report on the Pilot Two-Year Hydroelectric Licensing Process for Non-Powered 

Dams and Closed-Loop Pumped Storage Projects and Recommendations

Pursuant to Section 6 of the Hydropower Regulatory Efficiency Act of 2013

Federal Energy Regulatory Commission

Office of Energy Projects

Washington, DC

FERC Docket AD13-9-000

I. BACKGROUND

a. Hydropower Regulatory Efficiency Act of 2013

The Hydropower Regulatory Efficiency Act (HREA) was signed into law on 

August 9, 2013.

5

 The HREA was designed to promote the development of hydropower

across the United States by encouraging the addition of hydropower facilities at existing 

dams and conduits, and streamlining the regulatory process for license-seekers.

Section 6 of the HREA directed the Federal Energy Regulatory Commission 

(FERC or Commission) to investigate the feasibility of issuing a license for hydropower 

development at non-powered dams and closed-loop pumped storage6 projects in a twoyear period, including any of the Commission’s pre-filing consultation requirements.

To assess the feasibility of a two-year licensing process, the HREA directed the 

Commission to hold an initial workshop, no later than 60 days after the HREA was 

enacted, and solicit public comment and recommendations on how to implement a twoyear licensing process. After the workshop, the Commission was required to develop 

criteria for identifying projects that may be appropriate for a two-year process, and, if 

practicable, use these criteria to develop and implement pilot projects to test a two-year 

process no later than 180 days after the HREA was enacted. To the extent possible, the 

Commission was to enter into memoranda of understanding (MOUs) with any applicable 

federal or state agencies to facilitate the implementation of a pilot project.

The HREA further stipulated that, after implementing the two-year process(es), 

the Commission was to hold a final workshop to solicit public comment on the 

effectiveness of each tested two-year process, and ultimately submit a report to the 

 5 See HREA.

6

 “Closed-loop” pumped storage refers to pumped storage projects not connected 

to a continually flowing natural water feature. For more information, see 

https://www.ferc.gov/industries/hydropower/gen-info/licensing/pump-storage.asp.
AD13-9-000

2

Committee on Energy and Commerce of the House of Representatives and the 

Committee on Energy and Natural Resources of the Senate. The final workshop was to 

be held no later than 3 years after the date of implementation of the two-year process 

pilot project, with the report submitted no later than 60 days after the final workshop, and 

to include:

A. a description of the outcomes of the pilot projects;

B. a description of the public comments from the final workshop on the 

effectiveness of each tested two-year process; and 

C. i. an outline of how the Commission will adopt policies under existing 

law (including regulations) that result in a two-year process for 

appropriate projects;

ii. an outline of how the Commission will issue new regulations to 

adopt a two-year process for appropriate projects; or

iii. identification of the process, legal, environmental, economic, and 

other issues that justify a determination of the Commission that no twoyear process is practicable, with recommendations on how Congress may 

address or remedy the identified issues.

b. Hydropower Program Descriptions and Functions

The Commission currently regulates approximately 1,665 hydropower projects at 

over 2,518 dams pursuant to Part I of the Federal Power Act (FPA).

7 Those projects have 

a combined installed capacity of about 56 gigawatts, representing more than half of the 

Nation's approximately 101 gigawatts of hydroelectric generating capacity and about five 

 7 Federal Power Act, 16 U.S.C. §§ 791(a) – 825(r) (2012) (FPA). The FPA 

defines a project as “a complete unit of development.” 16 U.S.C. § 796 (2012). This 

generally refers to all lands, water, and facilities needed to carry out project purposes, 

which, besides electric generation, can include any other public interest purposes the 

Commission designates. A typical project will consist of a dam, the reservoir it 

impounds, a penstock diverting water from the impoundment to the turbines, the

powerhouse containing the turbines and generators, a channel or pipe returning diverted

water downstream, a transmission line connecting the project power to a grid, the lands or 

interests in lands encompassing the above facilities, and the necessary water rights to

operate the project as authorized. There is, however, great diversity in project size and

operating regimes, and in the resources affected.
AD13-9-000

3

percent of the Nation’s approximately 1,191 gigawatts of all electric generating capacity

combined.

The Commission’s hydropower work generally falls into three categories of 

activities: (1) licensing, which includes processing applications for preliminary permits 

and applications for original and new licenses; (2) administration and compliance, which 

includes providing regulatory oversight of licensed projects to ensure compliance with

license requirements and processing applications to amend licenses; and (3) dam safety 

and inspections, which includes protecting life, health, property and the environment of 

licensed projects. This report focuses on licensing.

c. Statutory and Regulatory Framework of Hydropower Licensing

The Commission's licensing processes have evolved over the years in response to 

changes in the law, heightened interest by resource agencies and other stakeholders, and 

increased competition for resources affected by projects. A brief summary follows 

herein.

With the Federal Water Power Act of 1920 (FWPA),8 Congress ended several 

decades of piecemeal development of hydroelectric power on federal land and on waters 

subject to federal jurisdiction by vesting in the Commission the authority to license nonfederal projects determined by the Commission to be "best adapted to a comprehensive 

scheme for improvement and utilization" of a river basin for navigation, water power 

development, and other beneficial public uses. Typical (and sometimes competing) uses 

for a waterway include power generation, irrigation, flood control, navigation, fish and 

wildlife, municipal water supply, and recreation.9

The FWPA was re-enacted in 1935 as Part I of the FPA.10 Since that time, many 

pieces of legislation have been enacted that bear on the Commission’s process of 

reviewing and authorizing hydropower projects. In addition to the requirements of the 

FPA, other statutes including the National Environmental Policy Act (NEPA),11 section 

 8 Federal Water Power Act of 1920, P.L. 66-280, 41 Stat. 1063 (1920).

9

 Section 15(a)(2) of the FPA provides that, with respect to new license 

applications, the Commission must consider, in addition to the requirements of FPA 

section 10, various other factors, including the applicant's ability to comply with the

license terms; plans to manage, operate, and maintain the project safely; ability to operate 

the project to provide efficient and reliable electric service; and existing and planned

transmission services. An existing licensee's compliance record must also be considered. 

16 U.S.C. § 808(a)(2) (2012).

10 See FPA, 16 U.S.C. §§ 791(a) – 825(r) (2012).

11 42 U.S.C. §§ 4321, et. seq. (2012).
AD13-9-000

4

401 of the Clean Water Act (CWA),12 the Endangered Species Act (ESA),13 the National 

Historic Preservation Act (NHPA),

14 the Wild and Scenic Rivers Act,15 and others, can 

affect the timing and outcome of hydropower licensing decisions. The requirements of 

the FPA and other relevant statutes and regulations relevant to hydropower licensing are 

summarized in Appendix A.

d. Available Licensing Processes

The Commission is authorized to issue original licenses for terms of up to 

50 years.16 New licenses, issued following the expiration of an original license, may be 

issued for terms from 30 to 50 years. The Commission’s jurisdiction applies regardless 

of project size. In addition, the Commission issues exemptions, in perpetuity, for projects 

under 40 megawatts (MW) utilizing man-made conduits,

17 and projects under 10 MW 

located at existing non-federal dams or natural water features.18

An applicant for an original or new license may use one of three existing 

licensing processes: integrated, traditional, or alternative. Commission approval is 

required to use either the Traditional Licensing Process (TLP) or Alternative Licensing 

Process (ALP); the Integrated Licensing Process (ILP) is the default process for all 

license requests.19 Projects that qualify for a small hydropower (10 MW or less) 

exemption from licensing must use the TLP.

 12 33 U.S.C. § 1341(a)(1) (2012).

13 16 U.S.C. § 1531 et. seq. (2012).

14 54 U.S.C. § 300101 et. seq. (2014). The National Historic Preservation Act 

was recodified in Title 54 in December 2014.

15 16 U.S.C. § 1271 et. seq. (2012).

16 16 U.S.C. § 799 (2012). Not all original licenses are for undeveloped projects. 

Historically, many projects were constructed without Commission authorization that were 

later determined to be subject to the Commission's jurisdiction by reason of judicial 

decisions clarifying the ambit of the Commission's authority, or because facts 

establishing jurisdiction were subsequently developed.

17 A “conduit” is defined as “any tunnel, canal, pipeline, aqueduct, flume, ditch, 

or similar manmade water conveyance that is operated for the distribution of water for 

agricultural, municipal, or industrial consumption and not primarily for the generation of 

electricity.” 18 C.F.R. § 4.32 (b)(2) (2016).

18 For more information, please visit: https://www.ferc.gov/industries/

hydropower/gen-info/licensing/small-low-impact/get-started/exemp-licens.asp. 19 18 C.F.R. § 5.6 (2016).
AD13-9-000

5

Each of the licensing processes requires consultation designed to develop a 

record on which the Commission can base its licensing decision and fulfill its 

responsibilities under the FPA, and aforementioned statutes.

While each licensing process features its own information collection and 

application review process, all processes share certain features. The licensing process 

begins with the filing of a Notice of Intent (NOI) and pre-application document (PAD), 

the content of which is the result of pre-application activity.20 Once filed, the applicant, 

with the assistance of Commission staff, stakeholders, and federal and state resource 

agencies, identify and gather information in order to assess the effects of the proposed 

project. Once sufficient information has been collected, the applicant files a license

application with the Commission. Commission staff conducts an environmental review 

of the project proposed in the application, pursuant to NEPA, and ultimately makes a 

licensing decision based upon the application and staff’s NEPA review.

The pilot two-year process, developed in response to the requirements of the 

HREA, is described in further detail, in section II and compared with the existing 

licensing processes in Appendix B.

 20 Prior to filing an NOI and PAD, a potential applicant can seek a preliminary 

permit from the Commission for the site being developed. A preliminary permit is issued 

for up to three years, with a maximum two-year extension. A preliminary permit does 

not authorize construction; rather, it maintains priority of application for license while the 

permittee studies the site and prepares to apply for a license. However, it is not necessary 

to obtain a permit in order to apply for or receive a license.
AD13-9-000

6

II. IMPLEMENTATION OF THE HREA

a. Initial Workshop

As directed by the HREA, the Commission held an initial workshop on October 

22, 2013, to solicit public comment and recommendations on how to implement a twoyear process. By notice issued October 8, 2013,21 the Commission requested that 

comments be filed by November 21, 2013. Federal and state agencies, hydropower 

developers, and non-governmental organizations provided input at the workshop. Sixteen

comment letters were filed.22

b. Notice Soliciting Proposed Pilot Projects

On January 6, 2014, the Commission issued a notice23 soliciting proposals from 

potential applicants wishing to test a two-year licensing process. The notice included 

criteria for identifying projects that may be appropriate for a pilot two-year licensing 

process. Prior to requesting the use of a two-year process, prospective applicants were 

expected to meet with federal and state resource agencies, Indian tribes, nongovernmental organizations, and the public about the project and potential pilot process 

proposal, potential project-related environmental effects, the availability of existing 

information, and the need for studies to supplement existing information. Prospective 

applicants were to request written comments on the adequacy of available information 

and the need for studies, including the anticipated scope and duration of the studies.

Based on the Commission’s experience with expediting projects, the comments 

received at the initial workshop, and comments filed in response to the October 8, 2013 

notice, the Commission identified the following criteria and process plan for projects that 

may be appropriate for licensing within a two-year process:

• The project must cause little to no change to existing surface and groundwater

flows and uses;

• The project must be unlikely to adversely affect federally listed threatened and

endangered species;

 21 See October 8, 2013 notice filed in Docket No. AD13-9. 78 Fed. Reg. 62,322 

(October 10, 2013).

22 All comments filed in response to both the initial workshop and the final 

workshop are on the Commission’s eLibrary site (https://elibrary.ferc.gov), under Docket 

No. AD13-9-000.

23 See January 6, 2014 notice filed in Docket No. AD13-9. 79 Fed. Reg. 2164 

(January 13, 2014).
AD13-9-000

7

• If the project is proposed to be located at or use a federal dam, the request to

use the two-year process must include a letter from the dam owner that the

applicant’s plan of development is conceptually feasible;24

• If the project would use any public park, recreation area, or wildlife refuge

established under state or local law, the request to use the two-year process

must include a letter from the managing entity indicating its approval of the

site’s use for hydropower development;25 and

• For a closed-loop pumped storage project, the project must not be continuously

connected to a naturally-flowing water feature.

Prospective applicants that wanted to test a two-year process were to file a request 

to do so no earlier than February 5, 2014, and no later than May 5, 2014. The request 

was to include:

(1) A demonstration that the proposed project met the above criteria;

(2) Documentation that the prospective applicant had met with, described, and 

consulted with the affected federal and state resource agencies, Indian tribes, nongovernmental organizations, and the public regarding its project and pilot process 

proposal along with a summary of verbal comments and copies of any written comments

received in response to the meeting;

(3) Copies of written comments from the affected federal and state agencies and 

Indian tribes regarding the availability of existing information and the need for studies to 

supplement the existing information, including the anticipated scope and duration of the

studies;

(4) A PAD and Proposed Study Plan that met the content requirements of 

18 C.F.R. § 5.6 and 5.11, respectively. The PAD was to include a defined and welldeveloped project proposal [emphasis included in January 6, 2014 notice]. If a 

prospective applicant determined that a Proposed Study Plan was not needed, the 

 24 The intent of this requirement was to ensure that applicants had discussed the 

project proposal with the federal dam owner and there were no issues with the dam that 

would preclude the Commission from authorizing the project. 

25 Section 21 of the FPA, as amended by the Energy Act of 1992, states that no 

licensee may use the right of eminent domain to acquire any lands or other property that, 

prior to October 24, 1992 (the date of enactment of the FPA), were owned by a state or 

political subdivision thereof and were part of, or included within, any public park, 

recreation area, or wildlife refuge established under state or local law.
AD13-9-000

8

prospective applicant was to demonstrate that the PAD contained sufficient information 

to address its list of potential environmental effects for environmental analysis;

(5) A list of potential environmental effects, including effects on geologic, aquatic, 

terrestrial, recreational, and cultural resources, as applicable; and

(6) A process plan and schedule.

Based on the comments received at the initial workshop and comments filed in 

response to the October 8, 2013 notice, staff developed a process plan and schedule for 

use by prospective applicants. Prospective applicants had the option of filing an 

alternative two-year process plan and schedule to test under the HREA; however, the 

Commission reserved the right to modify any filed process plan and schedule as 

necessary to ensure that the Commission could fulfill its responsibilities under the FPA

and other applicable laws. The Commission’s process plan and schedule for two-year 

pilots was modeled after the ILP and is described in more detail in section III.

c. Proposed Pilot Projects

In response to the January 6, 2014 notice, two entities filed NOIs to file 

applications for original licenses and requests to test a two-year process.

On May 1, 2014, Wild Flower Water, LLC (Wild Flower Water) filed an NOI and 

PAD to construct, operate, and maintain the proposed Wild Flower Water Pumped

Storage Hydro Project No. 13842 (Wild Flower Project).

26 Wild Flower Water proposed 

to construct a new closed-loop pumped storage project that would be located on the 

Kiamichi River near the town of Clayton in Pushmataha County, Oklahoma.

On May 5, 2014, Rye Development, LLC (Rye)27 filed an NOI and PAD to 

construct, operate, and maintain the proposed Kentucky River Lock and Dam No. 11 

Hydroelectric Project No. 14276 (L&D 11 Project).

28 Rye proposed to develop a 

 26 See Wild Flower Water’s May 1, 2014 Two-Year Licensing Process 

Application in Docket No. P-13842-001 (Wild Flower License Process Application).

27 Free Flow Power Corporation, on behalf of its subsidiary Free Flow Power 

Project 92, LLC, filed the initial NOI and application for the L&D 11 Project. On August 

22, 2014, Rye filed with the Commission a letter indicating that it was the successor 

entity to Free Flow Power Corporation, acting as manager of FFP New Hydro, LLC's 

portfolio of hydropower development projects, including the L&D 11 Project.

28 See Rye’s (then operating as Free Flow Power Corporation and filing on behalf 

of FFP Project 92, LLC) May 5, 2014 Two-Year Licensing Process Application in 

Docket No. P-14276-001 (Rye License Process Application).
AD13-9-000

9

conventional hydropower project at the existing Kentucky River Lock and Dam No. 11,

which is owned by the Commonwealth of Kentucky and operated by the Kentucky River 

Authority (KRA). The proposed project would be located on the Kentucky River in Estill 

and Madison Counties, Kentucky.
AD13-9-000

10

III. OUTCOMES OF THE PILOT TWO-YEAR LICENSING PROCESS

a. Pilot Project Not Implemented: Wild Flower Project

On May 27, 2014, staff issued a letter responding to Wild Flower Water’s request

that its proposed Wild Flower Project be selected as a pilot project to test a two-year 

licensing process.

29 Based on staff’s review of the NOI and PAD, the proposed Wild 

Flower project did not meet the criteria set forth in the Commission’s January 6, 2014 

notice soliciting pilot projects.

Commission staff determined that Wild Flower Water’s proposed project was not 

sufficiently developed because it only generally described the project facilities and 

operations, and was not a complete unit of development as defined by the FPA.

30 In 

particular, section 3(11) of the FPA states that a project must include a primary 

transmission line in order to be considered a complete unit of development. Wild Flower 

Water’s proposed project did not include a primary transmission line, nor did it 

adequately describe how the project would connect to the regional electric distribution 

system. Instead, Wild Flower Water proposed that the project connect to the distribution 

system via a new 120-mile-long, 340-kilovolt (kV) transmission line to be constructed, 

owned, and operated by a separate entity, Oncor Electric Delivery Company (Oncor).

In its May 27, 2014 letter, Commission staff also determined that the information 

in the PAD was insufficient to enable staff to evaluate the potential environmental effects

of the project. In addition, the PAD contained no documentation of consultation to gather 

existing information or discuss the project with interested parties, nor did the PAD 

propose studies to fill information gaps. Finally, to the limited extent that the PAD 

showed Oncor’s proposed transmission line, there was no information describing 

environmental resources within the transmission line corridor, the effects of constructing 

and operating the transmission line, or whether interested agencies and the public were

aware of this project feature.

31 Therefore the Wild Flower Project was not accepted as a 

pilot for testing the two-year process.

 29 See May 27, 2014 Letter to Wild Flower Power, filed in Docket No. 

P-13842-001, and attached in Appendix C. 30 See supra note 7.

31 Commission staff determined that Wild Flower Water’s project proposal was 

incomplete because Wild Flower Water had no control as to the timing of project 

development, potential environmental impact studies, and the constructability and 

operation of Oncor’s proposed transmission line project.
AD13-9-000

11

b. Pilot Project Implemented: L&D 11 Project

The L&D 11 Project includes: (1) an existing dam and 579-acre reservoir; (2) a 

new 275-foot-long, 75-foot-wide reinforced concrete intake channel equipped with trash 

racks; (3) a new 140-foot-long, 64.5-foot-wide powerhouse built within the existing lock 

structure, with two turbine generator units each rated at 2.5 MW for a total installed 

capacity of 5 MW; (4) a new 190-foot-long, 78-foot-wide tailrace; (5) a new 69-kV

substation; (6) a new, 212-foot-long, 4.16-kV underground transmission cable from the 

generators to the substation; and (7) a new, approximately 4.5-mile-long, 69-kV

transmission line extending from the powerhouse to an existing substation located near 

Waco, Kentucky. The project will be operated as a run-of-river facility while 

maintaining current water surface elevations in the upstream pool. The project will

generate about 18,500 MWh annually, which will be sold to a local utility. The project 

does not occupy federal land.

1. Pre-filing Milestones

A. Notice of Request to Use the Two-Year Process and Technical Meeting

On June 3, 2014, in response to Rye’s NOI and PAD, the Commission issued 

notice of Rye’s intent to file a license application and request to be selected as a pilot 

project to test a two-year licensing process.

32 The notice solicited comments on the use 

of the two-year licensing process, the PAD, the list of environmental issues and proposed 

studies, as well as any stakeholder study requests. Any stakeholder request for additional 

studies or modifications to the proposed studies were to conform to the requirements of 

the Commission’s regulations.33 The notice also informed stakeholders that Commission 

staff would hold a technical meeting via teleconference to discuss the identified issues 

and study needs, as well as discuss the process plan and schedule. Comments were due 

by July 3, 2014.

The technical meeting was held on June 19, 2014, and focused on information 

gaps that needed to be filled to ensure that sufficient information existed for the 

Commission to make a determination on whether the proposed project met the criteria for 

a pilot project and for processing a license application once filed with the Commission. 

All interested individuals, organizations, and agencies were invited to participate in the 

technical meeting. Participants in the technical meeting included the National Park 

Service, the Kentucky Department of Fish and Wildlife Resources (Kentucky DFWR), 

the Kentucky Heritage Council, the Kentucky State Historic Preservation Office

 32 See June 3, 2014 notice filed in Docket Nos. AD13-9-000 and P-14276-001. 

79 Fed. Reg. 32,929 (June 9, 2014).

33 18 C.F.R. § 5.9 (b) (2016).
AD13-9-000

12

(Kentucky SHPO), the Kentucky Riverkeeper, Commission staff, and representatives of 

Rye. A summary of the meeting was issued on July 1, 2014.34 The following entities

filed comments: Kentucky DFWR,

35 U.S. Fish and Wildlife Service (FWS),36 KRA,37

Kentucky Heritage Council,38 National Park Service,39 Rye,40 and Lock 12 Hydro 

Partners, LLC (Lock 12).

41 None of the participants objected to testing a two-year 

licensing process for the project.42

B. Use of Two-Year Process Granted and Approval of Studies

On August 4, 2014, the Commission issued a letter43 and notice44 granting Rye’s 

request to use the two-year process. In the letter, Commission staff stated that, based on 

a review of the information in the PAD, Rye’s proposed project appeared to meet the 

criteria outlined in the Commission’s January 6, 2014 notice. The letter also provided a 

 34 See July 1, 2014 Technical Meeting Summary in Docket Nos. AD13-9-000 and 

P-14276-001.

35 See Kentucky DFWR’s June 6, 2014 filing in Docket No. P-14276-001. 36 See U.S. Fish and Wildlife Service’s June 26, 2014 filing in Docket No. 

P-14276-001. 37 See KRA’s July 1, 2014 filing in Docket No. P-14276-001. 38 See Kentucky Heritage Council’s July 2, 2014 filing in Docket No. 

P-14276-001. 39 See National Park Service’s July 3, 2014 filing in Docket No. P-14276-001. 40 See Rye’s July 25, 2014 filing in Docket No. P-14276-001. 41 See Lock 12’s July 29, 2014 comments filed in Docket No. P-13214-003. Lock 

12 is the licensee for the proposed Ravenna Hydroelectric Project (Ravenna Project) 

(FERC No. 13214) at the Kentucky River Lock and Dam No. 12, located upstream from 

the proposed L&D 11 Project. At the time of this filing, Lock 12 was the applicant for 

the Ravenna Hydroelectric Project.

42 The Kentucky DFWR stated that it did not anticipate any substantive 

controversy or disputes over the proposed project. However, the request for timely 

license issuance should not take precedence over the proposed studies on project related 

effects to the resource and its users.

43 See August 4, 2014 letter filed in Docket Nos. AD13-9-000 and P-14276-001.

44 See August 4, 2014 notice filed in Docket Nos. AD13-9-000 and P-14276-001. 

79 Fed. Reg. 46,796 (August 11, 2014). This notice also designated Rye as the 

Commission’s non-federal representative for carrying out informal consultation pursuant 

to section 7 of the ESA and section 305(b) of the Magnuson-Stevens Fishery 

Conservation and Management Act; and consultation pursuant to section 106 of the 

NHPA.
AD13-9-000

13

list of approved study plans, a process plan and schedule,45 and requests for additional 

information.

Of the six studies proposed by Rye, three were approved with staff-recommended 

modifications: a Project Hydraulics Study, Aquatic Habitat Assessment, and Fish 

Entrainment and Survival Study. In addition, three were approved as filed by Rye: a

Water Quality Study, Terrestrial Habitat and Rare, Threatened, and Endangered (RTE) 

Species Survey,46 and Cultural Resource Assessments. Commission staff also requested 

additional information regarding the project design,47 including information about the 

originally-proposed, 3.5-foot-high adjustable crest gate and existing water quality data for 

the Kentucky River. Staff recommended that Rye consider both land- and water-based 

recreation and conduct consultation with the National Park Service, Kentucky DFWR, 

the Kentucky Heritage Council, KRA, and the Kentucky Riverkeeper in the development 

of its proposed Recreation Resources Management Plan (recreation plan).48 Staff also 

 45 See Rye’s approved schedule with target deadlines and actual completion dates 

for each milestone in the pilot two-year process attached in Appendix D. 46 Rye originally proposed to conduct its proposed Terrestrial Habitat and RTE 

Species Survey after license issuance, but prior to the start of construction to ensure that 

potential effects on habitat and species, including federally listed species, present at that 

time within the project area would be addressed. During the technical meeting, Rye also 

stated that it intended to finalize the precise route of the proposed transmission line closer 

to the deadline for filing its license application, but Rye indicated that it would conduct 

the study during pre-filing if there was stakeholder interest in doing so. To ensure there 

was sufficient information on which to base a determination on effects to federally listed 

species, Commission staff issued a letter on June 26, 2014, requiring Rye to conduct the 

study during pre-filing and include the results with its license application. In addition, to 

ensure the adequacy of the data collected, the Commission advised Rye to consult with 

the FWS and Kentucky DFWR in developing survey protocols for the RTE species 

potentially occurring in the project area. 47 Specifically, the Commission requested: (1) the dimensions of the existing 

dam, trashrack, and intake structure; (2) the length of the proposed buried voltage cable 

from the powerhouse to the new substation; (3) the composition of the proposed crest 

gates; (4) confirmation that information regarding (a) maximum depth, (b) mean depth, 

(c) flushing rate, (d) shoreline length, and (e) substrate composition of the upper reservoir 

is not currently available; (5) confirmation that the gradient of the affected downstream 

reach is not currently available; and (6) an explanation of why the proposed 3.5-foot-high 

crest gate was needed.

48 In particular, Rye was to explain how the Kentucky River Water Trail and 

associated recreation facilities were considered in the development of the recreation plan. 

In 2012, the Kentucky River Water Trail, a National Water Trail stretching the entire 
AD13-9-000

14

requested that Rye respond to Lock 12’s comments, including its concern regarding the 

potential effects of the L&D 11 project on the Ravenna Project.

C. Implementation of Studies and Information Gathering

The two-year process plan and schedule allowed 180 days, or 6 months, during

pre-filing for the completion of studies and other information gathering, as well as to 

apply for water quality and coastal zone certifications.49 On August 25, 2014, Rye filed a 

response to the Commission’s August 4, 2014 additional information requests (AIR)

regarding project design50 and a preliminary response to Lock 12’s comments. Rye 

clarified that an adjustable crest gate was proposed for the entire length of the spillway as 

a means of ensuring that the project is able to minimize changes to the existing water 

surface elevations in the upper impoundment.51

Regarding study results, Rye filed a partial response regarding existing water 

quality data on November 17, 2014.

52 On January 15, 2015, Rye requested an extension 

of time to complete the approved studies and to apply for water quality certification. 

Because the extension of time to file study reports was not expected to delay the 

development and filing of a license application within the approved two-year timeframe, 

it was granted on January 20, 2015.53 However, staff advised that the delay in filing an 

 

length of the mainstem Kentucky River, was designated a model project for the Secretary 

of Interior’s America’s Great Outdoor initiative. The National Park Service, in 

conjunction with the Commonwealth of Kentucky, local government agencies, and the 

Kentucky Riverkeeper (collectively the Kentucky Water Trail Partners), developed plans 

for improving river access for recreational boating and interpreting the ecology and 

cultural history along the river.

49 The Commonwealth of Kentucky does not have a Coastal Zone Management

Act program; therefore, no coastal zone certification was necessary. 50 See Rye’s August 25, 2014 response filed in Docket No. P-14276-001.

51 The maximum hydraulic capacity of the proposed turbines is 4,000 cfs. Rye 

stated that diverting river flows through the proposed turbines, in the existing condition 

and without the installation of a crest gate, would have the effect of reducing the 

elevation of upper pool for a large percentage of time. Instead, Rye proposed to install 

and operate the crest gate to mitigate the impact of diverting flows through turbines. 52 See Rye’s November 17, 2014 response filed in Docket No. P-14276-001.

53 Rye proposed to file: (1) existing water quality data by January 30, 2015; 

(2) the results of the Fish Entrainment and Survival Study by February 27, 2015; (3) the

results of the Project Hydraulics Study, Aquatic Habitat Assessment, Terrestrial Habitat 

and Rare, Threatened, and Endangered Species Survey, and Cultural Resource 

Assessment by March 31, 2015; and (4) an application for water quality certification by 

May 5, 2015, to ensure consistency with the information and the proposal in the license 
AD13-9-000

15

application for water quality certification could prevent the processing of Rye’s license 

application within the one-year timeframe contemplated in the two-year process schedule 

if the state of Kentucky took a full year to process the water quality certification, as 

provided by law.54 Subsequently, Rye filed existing water quality data55 and draft reports 

for the Fish Entrainment and Survival Study,56 Aquatic Habitat Study,57 Terrestrial 

Habitat and RTE Species Survey,58 and Hydraulics Study.

59 Rye filed its draft Cultural 

Resource Assessments concurrently with its license application on April 16, 2015;

60 prior 

to the established May 5, 2015 deadline.

2. Post-filing Milestones

A. Tendering Notice and Review of the License Application

The two-year process plan and schedule provided one year to complete the postfiling milestones, including 30 days for staff to review the license application. On 

May 1, 2015, the Commission issued notice of the application’s filing and established a

procedural schedule for licensing and deadline for submission of final amendments.61 

The procedural schedule matched the post-filing milestones in the approved two-year 

process plan and schedule.62 Final amendments to the application were to be filed with

the Commission no later than 30 days from the issuance date of the ready for 

environmental analysis (REA) notice. Commission staff reviewed the license application 

for consistency with its content requirements.

63 All of Rye's proposed measures and 

plans to protect, mitigate, or enhance environmental resources were to be provided with 

the license application.64

 

application.

54 33 U.S.C. § 1341 (2012).

55 See Rye’s January 30, 2015 filing in Docket No. P-14276-001.

56 See Rye’s February 25, 2015 filing in Docket No. P-14276-001.

57 See Rye’s March 31, 2015 filing in Docket No. P-14276-001.

58 Id.

59 See Rye’s April 1, 2015 filing in Docket No. P-14276-001.

60 See Rye’s April 16, 2015 application and cultural resources assessment in

Docket No. 14276-001.

61 See May 1, 2015 notice filed in Docket No. P-14276-002. 80 Fed. Reg. 26,428 

(May 7, 2015).

62 The May 1, 2015 notice stated that revisions to the schedule may be made as 

appropriate. 63 18 C.F.R. §§ 5.17 – 5.18 (2016).

64 See Appendix A of August 4, 2014 letter filed in Docket Nos. AD13-9-000 and 

P-14276-001; and 18 C.F.R. § 5.18(b)(5)(ii)(C) (2016).
AD13-9-000

16

B. Supplemental Filings

As staff commenced its review of the license application, Rye filed a number of 

documents to supplement and support its application. On May 5, 2015, Rye filed revised 

Exhibit F drawings and final reports on its Water Quality Study, Aquatic Habitat 

Assessment, Fish Entrainment and Survival Study, Project Hydraulics Study, and 

Terrestrial Habitat and RTE Species Survey.65 On May 29, 2015, Rye filed 

documentation of its application for water quality certification, which was stamped as 

received by the Kentucky Department for Environmental Protection on May 6, 2015.66 

On June 3, 2015, Rye filed a final recreation plan for the project.67 On June 8, 2015, Rye 

filed revised Cultural Resource Assessments with documentation of consultation with the 

Kentucky SHPO.68 On June 10, 2015, Rye filed its Preliminary Supporting Design 

Report.69 On June 11, 2015, Rye filed a response to Lock 12’s comments.70

C. Adequacy of the License Application and Additional Information 

Requests

In reviewing Rye’s license application and supplemental filings, staff identified 

deficiencies and the need for additional information before action could be taken on the 

license application, which extended the review period beyond the original 30 days 

contemplated in the two-year process plan and schedule. On June 12, 2015, staff issued a 

letter with preliminary deficiencies and AIRs based on Rye’s April 16, 2015 license 

application.

71 The deficiencies included proof of notification of the filing of the 

application to land owners and government agencies, and documentation of consultation 

with stakeholders. The AIRs were related to Rye’s estimated project costs, aquatic 

resources, terrestrial resources, threatened and endangered species, recreation, cultural 

resources, and proposed measures to protect, mitigate, and enhance environmental 

resources.

After reviewing Rye’s Preliminary Supporting Design Report and other 

supplemental filings, staff identified additional deficiencies and information needed

 65 See Rye’s May 6, 2015 filings in Docket No. P-14276-001.

66 See Rye’s May 29, 2015 filing in Docket No. P-14276-001.

67 See Rye’s June 3, 2015 filing in Docket No. P-14276-001.

68 See Rye’s June 8, 2015 filing in Docket No. P-14276-001.

69 Section 4.61(e) of the Commission’s regulations requires, in part, that a license 

application includes an Exhibit F that contains information demonstrating that existing 

and proposed structures are safe and adequate to fulfill their stated functions.

18 C.F.R. § 4.61(e) (2016).

70 See Rye’s June 11, 2015 filing in Docket No. P-14276-001.

71 See June 12, 2015 letter filed in Docket No. P-14276-001.
AD13-9-000

17

before action could be taken on the license application. On July 29, 2015, staff issued a 

second letter listing the additional deficiencies and AIRs.

72 Deficiencies included the 

following: details about the existing and proposed project structures; information to be 

included in the Preliminary Supporting Design Report, including a site suitability

assessment, geological information, stability and stress analysis on major structures, and 

seismic and spillway design flood information; and Exhibit G drawings that identify all 

the principal project features. The AIRs were related to engineering and dam safety, 

aquatic resources, and recreation.

Rye filed responses to staff’s June 12 and July 29, 2015 letters on July 1, July 21,

August 14, August 27, and September 23, 2015. As part of its first response on 

July 1, 2015, Rye modified its original proposal to exclude the adjustable crest gate on 

top of the existing dam.73 On July 21, 2015, Rye filed documentation of consultation 

with the United Keetoowah Band of Cherokee Indians in Oklahoma. The tribe’s acting 

Tribal Historic Preservation Officer (THPO) stated that tribe had reviewed the project

under section 106 of the NHPA, and had no comments or objections.

74 On August 14, 

2015, Rye filed its final resource protection plans which incorporated comments and 

recommendations from resource agencies. These plans included the Erosion and 

Sediment Control Plan, Avian Protection Plan, Invasive Species and Noxious Weed 

Control Plan, and Transmission Line Corridor Management Plan.

75 On August 27, 2015, 

Rye filed a revised Preliminary Supporting Design Report.76 On September 23, 2015, 

Rye filed additional Cultural Resource Assessments.77 Subsequently, Rye provided 

several other filings with supplemental information to support their license application.78

 72 See July 29, 2015 letter filed in Docket No. P-14276-001.

73 See Rye’s July 1, 2015 filing in Docket No. P-14276-001.

74 See Rye’s July 21, 2015 filing in Docket No. P-14276-001. 75 See Rye’s August 14, 2015 filing in Docket No. P-14276-001.

76 See Rye’s August 27, 2015 filing in Docket No. P-14276-001. On September 

28, 2015, the Commission’s Division of Dam Safety staff held a teleconference with the 

applicant representatives to clarify information presented in Rye’s revised Preliminary 

Supporting Design Report and explain the Commission’s requirements for this report. A 

summary of the teleconference and a list of action items for Rye was issued on 

October 14, 2015 in Docket No. P-14276-001.

77 See Rye’s September 23, 2015 filing in Docket No. P-14276-001.

78 See Rye’s additional filings on September 28, 2015 (cost clarifications), 

October 28, 2015 (Architectural Report clarifications), November 2, 2015 (Inflow Design 

Flood and Stability Analysis), December 9, 2015 (documentation of consultation with 

Kentucky Heritage Council), and January 20, 2016 (draft Historic Properties 

Management Plan (HPMP)).
AD13-9-000

18

D. Notice of Ready for Environmental Analysis and Environmental 

Assessment

On September 25, 2015, the Commission issued a notice that the application had 

been accepted for filing and was ready for environmental analysis.

79 The notice also 

solicited motions to intervene and protests, and solicited comments, recommendations, 

preliminary terms and conditions, and preliminary fishway prescriptions. Consistent with 

the timeframes in the two-year process plan and schedule, the deadline for filing motions 

to intervene and protests, comments, recommendations, preliminary terms and 

conditions, and preliminary fishway prescriptions was 60 days from the issuance of the 

REA notice, or November 24, 2015. In response, Lock 12 filed a motion to intervene80

and comments. The U.S. Department of the Interior (Interior)81 and the Kentucky 

Heritage Council82 filed comments and recommendations.

On February 12, 2016, Commission staff issued an Environmental Assessment 

(EA) analyzing the potential environmental effects of constructing and operating the 

project. In the EA, staff concluded that licensing the L&D 11 Project, as proposed by 

Rye and with some additional staff-recommended environmental measures, would not 

constitute a major federal action significantly affecting the quality of the human 

environment.

E. Other Statutory Requirements

As part of the NEPA review of project proposals, staff also examined the project’s 

consistency with the statutory requirements under the FPA, CWA, ESA, and the NHPA. 

Neither the Secretary of Commerce nor the Secretary of Interior filed section 18 fishway 

prescriptions or requested that a reservation of authority to prescribe fishways under 

section 18 of the FPA be included in any license issued for the L&D 11 Project. In 

addition, no recommendations were filed under section 10(j) of the FPA for the L&D 11 

Project.

 79 See September 25, 2015 notice filed in Docket Nos. AD13-9-000 and 

P-14276-002. 80 Fed. Reg. 59,763-59,764 (October 2, 2015).

80 See Lock 12’s November 16, 2015 filing in Docket No. P-14276-001. Timely, 

unopposed motions to intervene are granted by operation of Rule 214(c) of the 

Commission’s Rules of Practice and Procedure. 18 C.F.R. § 385.214(c) (2015).

81 See Interior’s November 20, 2015 filing in Docket No. P-14276-002. 82 See the Kentucky Heritage Council’s December 9, 2015 filing in Docket No. 

P-14276-002. In the comments the Kentucky SHPO requested additional information 

about historic properties in the project’s transmission line corridor, which Rye provided 

on January 20, 2016.
AD13-9-000

19

i. Section 401 of the CWA

On January 29, 2016, the Kentucky Department of Environmental Protection 

(Kentucky DEP) issued a water quality certification with 21 conditions to comply with

section 401 of the CWA. Fourteen of the conditions are project or process descriptions, 

administrative requirements, and general conditions.

83 The remaining seven conditions 

require Rye to: (1) meet state water quality standards for dissolved oxygen and water 

temperature;84 (2) monitor water quality in accordance with the conditions of the final 

water quality certification; (3) notify downstream water users prior to any activities that 

may affect water quality; (4) prevent the direct or indirect discharges of pollutants to the 

waters of Kentucky; (5) develop and implement a BMPs inspection and maintenance 

plan; (6) locate staging areas and access points in open upland areas and minimize 

disturbance of existing wetlands; and (7) develop and implement a Stormwater Pollution 

Prevention Plan that includes sediment and erosion control measures. Condition T-2 of 

the water quality certification establishes the requirements for dissolved oxygen and 

temperature during project operations. The Commission determined that the water 

quality certification is sufficient for the Commission to issue a license for the project; 

however, the water quality certification does not authorize project construction and 

operation.85

 83 The administrative and general terms and conditions provide: (1) the historical 

context for the license application (T-1); (2) a project description (T-2); (3) the basis for 

issuing the certification (T-4); (4) for amendments to, or revocation of, the certification 

(T-7); (5) that Kentucky DEP may modify or revoke the certification (T-8); (6) that Rye

92 notify Kentucky DEP of any changes in ownership, scope, or construction methods of 

the project (T-9); (7) that any new owner request that Kentucky DEP transfer of the 

certification to the new owner (T-10); (8) that FFP 92 provide Kentucky DEP personnel 

access to the site (T-11); (9) that Rye is responsible for work done by contractors (T-12); 

(10) that project areas be clearly marked in the field (T-13); (11) for the suspension or 

revocation of the certification if conditions are not adhered to or if significant degradation 

to water occurs as a result of permitted activities (T-16); (12) that the certification does

not constitute authorization of other entities’ permitted activities (T- 17); (13) that Rye

provide Kentucky DEP a certification from any other jurisdiction where a discharge 

originates, or will originate (T-19); and (14) for the Energy and Environment Cabinet’s 

certification of compliance with applicable provisions of the CWA (T-20).

84 Rye is required to maintain: (1) DO at a minimum concentration of 5.0 mg/L as 

a 24-hour average, with an instantaneous minimum of not less than 4.0 mg/L; and 

(2) water temperatures that do not exceed 31.7 degrees Celsius (89 degrees Fahrenheit).

85 Kentucky DEP refers to the certification issued as “interim,” and requires Rye 

to apply to Kentucky DEP for a “final” certification after license issuance. Condition T-4 

explains that the interim certification was issued in this instance to allow a license to be 
AD13-9-000

20

The Kentucky DEP reviewed the EA and provided comments and 

recommendations regarding potential impacts to water quality and aquatic resources.86 

Given that fish habitat would be reduced downstream from the project during periods of 

low flow, Kentucky DEP recommended that baffles be used to increase aeration of water 

coming out of the turbines to reduce the potential for low dissolved oxygen concentration 

in this area. Kentucky DEP also stated that it had no major concerns from the review of 

the proposed project as presented other than those provided as conditions or comments. 

However, Kentucky DEP clarified that this finding did not imply the acceptance or 

issuance of any permits, certifications or approvals that the Kentucky DEP may require.

ii. ESA

In compliance with ESA, staff examined the potential project’s effects on federally 

listed species, including the endangered Indiana bat, gray bat, running buffalo clover, 

Short’s bladderpod, and threatened northern long-eared bat. In the EA, staff determined 

that licensing the project, as proposed with the staff-recommended measures, was not 

likely to adversely affect the above-referenced federally listed endangered or threatened 

species, because the applicant’s proposed surveys would identify occurrences of both the 

species and any suitable habitat within the project boundary, any adverse impacts to 

which would be mitigated by the specific measures included in staff’s recommended 

endangered species protection plan. Staff also concluded that licensing the L&D 11 

Project, as proposed with staff-recommended measures, was not likely to jeopardize the 

continued existence of the Kentucky arrow darter, a fish species proposed for federal 

listing as threatened, because the effects of proposed project’s construction and operation 

would be limited to the mainstem of the Kentucky River where the species is not found. 

On February 17, 2016, Commission staff issued a letter requesting that FWS concur with 

these determinations.

The FWS87 and Rye88 filed comments on the EA related to ESA. FWS concurred 

with staff’s determinations of effect on the Kentucky darter, northern long-eared bat,89

 

issued within the tested two-year process timeframe. Condition T-3 explains that 

Kentucky DEP expects to issue a “final” certification authorizing project construction 

and operation after Rye submits certain information.

86 See Kentucky DEP’s March 10, 2016 filing in Docket No. P-14276-002.

87 See FWS’s March 9, 2016 filing in Docket No. P-14276-002. 88 See Rye’s March 10, 2016 filing in Docket No. P-14276-002. 89 FWS also agreed that the proposed project was consistent with the final 4(d) 

rule for northern long-eared bat and FWS’s January 5, 2016 intra-Service Programmatic 

BO on the final 4(d) rule for the northern long-eared bat. The 4(d) rule identifies 

prohibitions that focus on protecting the bat’s sensitive life stages in areas affected by the 

disease white-nose syndrome. See 81 Fed. Reg. 1900 (2016).
AD13-9-000

21

gray bat, and Virginia big-eared bat. However, FWS required additional information in 

order to evaluate staff’s determination on running buffalo clover, Short’s bladderpod, and 

Indiana bat. For running buffalo clover and Short’s bladderpod, FWS stated it could not 

concur with staff’s determination without the results of a presence/absence survey, an 

analysis of potential impacts based on the survey results, and a final plan to minimize 

potential effects to these species. For Indiana bat, FWS stated that it could not concur 

with staff’s determination until Rye decided between one of two options to address 

potential effects to the species. FWS indicated Rye could either (1) conduct surveys to 

determine whether Indiana bats are present in the project area,

90 or (2) assume the 

presence of Indiana bat in the project area and contribute to the Imperiled Bat 

Conservation Fund (Conservation Fund), created under a programmatic biological 

opinion (BO) covering the potential impacts to the Indiana bat summer habitat in 

Kentucky.91

In its comments on the EA, Rye stated it was in consultation with FWS regarding 

federally listed species. Rye confirmed it was considering the cost and time implications 

of conducting surveys for Indiana bat versus assuming presence of this species and 

contributing to the Conservation Fund. In addition, to address potential project effects on 

running buffalo clover and Short’s bladderpod, Rye requested that staff consider 

including language in the license requiring post-license, pre-construction botanical 

surveys which would avoid impacts to land containing the two botanical species and/or, 

allow certain non-invasive construction activities during an approved season, such as 

winter.

FWS filed two subsequent comments regarding ESA consultation.92 In its March 

22, 2016 letter, FWS stated that it concurred with staff’s determination that the project 

was not likely to adversely affect running buffalo clover and Short’s bladderpod, based 

on a clarification of the results of Rye’s pre-filing surveys, as well as Rye’s commitment 

to perform an additional survey of the project area prior to construction, avoid 

 90 See FWS’s June 26, 2014 filing in Docket No. P-14276-001, which describes 

the recommended Indiana bat surveys and alternatives to surveys based on FWS’s 

guidance in effect at that time.

91 See FWS’s April 21, 2015 BO, entitled Kentucky Field Office’s Participation 

in Conservation Memoranda of Agreement for the Indiana Bat and/or Northern 

Long-eared Bat at 3, 34. The Conservation Fund is administered by the Kentucky 

Natural Lands Trust, an independent non-profit land trust, and use of these funds is a 

collaborative effort among the Kentucky Natural Lands Trust, FWS’s Kentucky Field 

Office, and several federal, state, and private conservation organizations that are involved 

with bat and/or forest conservation in Kentucky.

92 See FWS’s March 22, 2016 and April 1, 2016 filings in Docket No. 

P-14276-002.
AD13-9-000

22

occurrences of these plant species, if identified, and consult with FWS if avoidance is not 

feasible. Subsequently, on March 30, 2016, Rye contributed to the Conservation Fund to 

address potential project effects on Indiana bats. In its April 1, 2016 letter, FWS stated 

that Rye’s contribution followed the Kentucky Field Office’s 2015 BO as well as its 

Conservation Strategy for Forest Dwelling Bats (Conservation Strategy).93 FWS 

concluded that the L&D 11 Project was not likely to jeopardize the continued existence 

of the Indiana bat or result in the destruction or adverse modification of designated 

critical habitat.94 With FWS’s April 1, 2016 concurrence on staff’s determination for the 

Indiana bat, the Commission fulfilled the requirements of section 7 of the ESA for the 

L&D 11 Project.

iii. Section 106 of the NHPA

In compliance with section 106 of the NHPA, staff took into account how the 

project undertaking could affect historic properties, such as districts, sites, buildings, 

structures, traditional cultural properties, and objects significant in American history, 

architecture, engineering, and culture that are eligible for inclusion in the National 

Register of Historic Places (National Register). In the EA, staff stated its intent to 

execute a Programmatic Agreement (PA) for the protection of historic properties from the 

effects of construction, operation, and maintenance of the L&D 11 Project. A draft PA 

was issued on February 10, 2016, in advance of the EA to ensure that parties to the PA 

would have sufficient time to review and finalize it prior to the target two-year process 

completion date. The terms of the PA were designed to ensure that Rye addresses and 

treats all historic properties identified within the project’s area of potential effects

through development of a Historic Properties Management Plan. To satisfy its 

responsibilities under section 106 of the NHPA, the Commission executed a final PA 

 93 The Conservation Strategy supersedes the Revised Indiana Bat Mitigation 

Guidance for the Commonwealth of Kentucky and can be found at 

http://www.fws.gov/frankfort/pdf/2015%20KY%20ForestDwelling%20Bat%20Conservation%20Strategy.pdf. Currently, the FWS Kentucky Field

Office’s 2015 BO and Conservation Strategy cover impacts to, and mitigation for, 

Indiana bats as well as northern long-eared bats because these forest dwelling bats have 

similar habitat requirements. The Conservation Strategy contemplates future expansion 

of the species list.

94 FWS noted that any incidental take of Indiana (and/or northern long-eared) bats 

that results from the removal of forest habitat associated with the project is authorized 

under the BO, except for tree clearing during the bats’ non-volancy period (when bat 

pups are incapable of flight, from June 1 through July 31). FWS also clarified that if 

additional forested areas not previously considered are to be removed, Rye should 

coordinate with FWS to determine if additional compensation is necessary to be in ESA 

compliance.
AD13-9-000

23

with the Kentucky SHPO on April 22, 2016.

95 Rye signed the PA as a concurring party. 

The PA requires Rye to prepare and implement a final Historic Properties Management 

Plan for the project. Execution of the PA demonstrates the Commission’s compliance 

with section 106 of the NHPA.

F. Licensing Decision

Having met all statutory requirements with the execution of the PA on 

April 22, 2016, the Commission made its licensing decision and issued an original license 

to Rye for the L&D 11 Project on May 5, 2016, meeting the two-year process target date 

for completing the licensing process.96 The license requires, among other things, that 

Rye implement the environmental and protective measures as proposed by Rye and 

modified by staff in the EA. To coordinate the license term of the L&D 11 Project with 

the upstream Heidelberg Project and Ravenna Project97 license terms, expiring on 

December 31, 2055, the license for the L&D 11 Project was issued for a 39-year, 

8-month license term.

The license is subject to a number of standard and environmental requirements. In 

addition, the license for the L&D 11 Project is subject to the conditions submitted by the

Kentucky DEP under section 401(a)(1) of the CWA.

98 The Commission must ensure that 

any future conditions for the project are accounted for in the license. Therefore, Ordering 

Paragraph (D) of the license reserves the Commission’s authority to modify the license, 

as necessary, to incorporate the water quality certification conditions as may be required 

by the Kentucky DEP upon issuance of a water quality certification for construction and 

operation of the project, and to modify existing conditions of the license, as necessary, to 

achieve consistency with any such additional certification conditions.99 Rye’s progress in 

meeting the license requirements before construction and operation can be approved is

summarized in Appendix E.

 95 See May 5, 2016 transmittal of the executed PA in Docket No. P-14276-002.

96 See Rye License Order, 155 FERC ¶ 62,089 (2016).

97 Lock 14 Hydro Partners, LLC and FFP Project 106, LLC, 153 FERC ¶ 62,219 

(2015).

98 33 U.S.C. § 1341(a)(1) (2012). The Kentucky DEP’s conditions are provided 

in Appendix A of the order.

99 See Kentucky DEP’s January 29, 2016 filing in Docket No. 14276-002 and 

Appendix A of the Rye License Order.
AD13-9-000

24

IV. STAKEHOLDER COMMENTS AND RECOMMENDATIONS

As required by section 6(b)(4) of the HREA, the Commission held a final

workshop on March 30, 2017, to solicit public comment of the effectiveness of the twoyear licensing process. The workshop included two-panels. The first panel focused 

specifically on the effectiveness of the Kentucky River L&D 11 licensing process, and 

consisted of representatives from Rye, the Kentucky SHPO, FWS, the KRA, and the 

Kentucky DEP. The second panel focused on the feasibility and implications of a twoyear process if implemented at a national level, and consisted of representatives from

private industry, the U.S. Army Corps of Engineers (Corps), the U.S. Forest Service

(Forest Service), the New York State Department of Environmental Conservation (New 

York State DEC), and American Whitewater/ Hydropower Reform Coalition. The 

workshop was open to the public, and attendees were encouraged to submit verbal

comments on the two-year process. With the notice of the workshop, Commission staff 

provided an agenda including a list of issues for commenter and panelist consideration. 

The Commission also invited written comments, to be filed within 15 days of the final 

workshop, or by April 14, 2017. Written comments were filed by 12 organizations and 

individuals. This section summarizes the stakeholder comments.100

a. Benefits of Expedited Licensing

One purpose of the HREA was to foster development of original hydropower 

projects by addressing the regulatory timeframe for licensing two specific classes of new

projects: those at non-powered dams and closed-loop pumped storage projects. In 

general, commenters support the assumption that expedited processing of license 

applications would encourage greater investment in hydropower development. 

Developers including Rye, Aquanovis, Klickitat Public Utility District #1, and the 

National Hydropower Association (NHA), assert that the length of time it takes to license 

new projects under the Commission’s existing licensing processes is a barrier to 

investment.

Resource agency staff also commented on the benefits of expedited processing for 

specific projects. Those benefits include maintaining the relevancy of data collected for a 

project, reduced potential for agency staff turnover during the licensing process, and 

better retention of process- and project- specific information for members of the public 

involved in the licensing process.

 100 Full text of all comments provided on the final workshop, including transcripts 

of verbal comments provided during the workshop, are available on the Commission’s 

eLibrary website (https://elibrary.ferc.gov), under docket no. AD13-9-000.
AD13-9-000

25

b. Feasibility and Practicability

In general, all commenters affirm that licensing new projects in two years or less

is both feasible and practicable, with some caveats. Rye and the participants in the L&D 

11 Project found the tested pilot process to be successful from the standpoint that the goal 

of a license within two years of filing the NOI and PAD was achieved. However, some 

Kentucky agency staff commented that for their agency’s purposes, work on the project is 

not yet complete and that Rye will need to complete additional consultation postlicensing. In particular, the KRA commented that consultation will occur as a lease 

agreement is negotiated for the site, and the Kentucky DEP and Kentucky SHPO 

commented that additional consultation will occur regarding resource protection 

measures for water quality and historic resources, respectively.101 In each case, a more 

final project design is required before agency staff can complete all necessary reviews to 

ensure that the project is developed with minimal effects to existing resources. Rye 

indicated that the additional consultation and requirements post-licensing is an acceptable 

trade-off for a shorter, better-defined licensing process.

At a programmatic scale, commenters acknowledge that a two-year process is 

feasible for a certain subset of projects, although there is no consensus on what criteria, if 

any, are appropriate for determining whether a project, or class of projects, can be 

expedited. Some commenters, including New York State DEC and Hydropower Reform 

Coalition, noted that the experiences of the participants of the L&D 11 Project were 

informative for how the process could work in a favorable situation, but that it was 

difficult to draw conclusions from a single test case. 

These same commenters outlined hypothetical situations where factors such as 

AIRs, consultation requirements, or other issues surfaced during the licensing process, 

requiring more time than an expedited process would allow. Rye, Noesis, and NHA 

suggest that for such situations, the Commission create “off-ramps” to the process if a 

project encounters technical or environmental factors that render the project infeasible for 

licensing within two years. In general, commenters recognized that for any project, 

unknown factors could contribute to a process taking longer than two years, and agree 

that “off-ramps” should be available if a project cannot continue along an expedited 

licensing timeline. This particularly relates to information needs identified during the 

process. NHA states that off-ramps could be built into the two-year process and triggered 

when there is a change in circumstances from those anticipated by the NOI/PAD filing

such as: significant changes to project design or operation; new information or issues 

that arise after filing of the PAD and early NEPA scoping that require information 

 101 In addition to advancing the final engineering design and construction 

contracting, Rye also indicated it needs to finalize take off arrangements and line up 

project financing.
AD13-9-000

26

gathering beyond one study season; or the applicant and stakeholders agree, for some 

other reason, on the need to extend the two-year process. NHA also recommends that 

projects be allowed to resume a two-year licensing process or be eligible for other 

process streamlining if the issue(s) that caused an off-ramp are later resolved.

Commenters also noted that there is limited data for expedited processing of 

closed-loop pumped storage projects and there were no qualifying applications to use the 

pilot two-year process for closed-loop pumped storage projects. Given this lack of data, 

several commenters recommended additional study before the feasibility or practicability 

of an expedited process for closed-loop pumped storage is determined.

c. Criteria for Expedited Licensing

Despite the lack of consensus, many commenters provided recommendations for 

the types of projects that could be licensed in two years or fewer, whether under an 

existing licensing process or under a new licensing process. These generally fell into 

four major categories: (1) design criteria, (2) environmental criteria and information 

needs, (4) implementation, and (5) best practices.

1. Design Criteria

Many commenters recommend that developers meet specific design criteria if they 

wish to pursue expedited licensing. These criteria, which are supported by several 

developers as well as the Nature Conservancy include:

• The project is at an existing dam.

• The project adds generating capacity.

• The project causes no material change to the existing reservoir’s storage 

capacity or flow release regime.

• The project occupies no federal lands other than that associated with an 

existing federal dam.

The Nature Conservancy further recommends that projects be sited only at federal 

dams that are currently serving their congressionally authorized purpose or non-federal 

dams that are meeting public needs for purposes such as flood control, water supply (all 

sectors), hydropower and/or navigation. Hydropower Reform Coalition supports 

hydropower on existing dams used for navigation and flood control/storage and states

that the Commission’s criteria for the pilot process made sense and are important in 

establishing the privilege to use an accelerated licensing process.

NHA and Hydro Green Energy recommended that there be no specific restrictions 

on capacity for projects that wish to pursue expedited licensing. Aquanovis states that 

small hydropower projects (under 1 MW) would particularly benefit from streamlined 
AD13-9-000

27

regulation to reduce the costs of licensing. NHA recommends that there be no specific 

criteria and that the Commission decide if a project qualifies for a two-year process on a 

case-by-case basis.

Several developers, including Rye, Noesis Engineering Services, and Mavel 

Americas, filed comments in response to the criterion that required that any project 

proposed for the pilot two-year process that would be located at or use a federal dam 

obtain a letter from the dam owner that the applicant’s plan of development was

conceptually feasible. In general, the commenters asserted that this criterion was a 

barrier to using the pilot process at Corps or Reclamation dams, because the dam-owning 

agencies would not review conceptual plans for feasibility. Rather, the developers 

asserted that to obtain such a finding would require final design drawings, which 

typically are developed after receiving a license from the Commission. The Hydropower 

Reform Coalition recommended that the Commission define “conceptually feasible”102

and conduct additional outreach to ascertain whether the Corps or Reclamation actually 

received requests for conceptual feasibility that were denied.

2. Environmental Effects Criteria and Information Needs

In the notice soliciting pilot projects, the Commission identified specific resource 

impacts that should be considered when requesting use of the pilot process: (1) that the 

project was unlikely to adversely affect federally listed threatened or endangered species;

and (2) that if the project would use a public park, recreation area, or wildlife refuge 

established under state or local law, the request to use the pilot process was to include a 

letter from the managing entity indicating it was not opposed to the site’s use for 

hydropower development.

In comments provided during the workshop, FWS stated that effects on federallylisted aquatic species are more difficult to address than effects on terrestrial species, and 

the presence of federally-listed terrestrial species might not be an impediment to 

expedited licensing of hydropower projects. FWS explained that it gave a conditional 

“not likely to adversely affect” determination for federally listed threatened and 

endangered species to expedite the issuance of the L&D 11 Project license, and required 

Rye to survey for listed plant species after license issuance, but prior to construction, 

because Rye didn’t have access to the full project area to complete the surveys before

license issuance. FWS stated that it typically expects an entire site be surveyed for the 

presence-absence of threatened and endangered species before making a determination on 

the project’s effects.

 102 The intent of this requirement was to ensure that applicants had discussed the 

project proposal with the federal dam owner and there were no issues with the dam that 

would preclude the Commission from authorizing the project.
AD13-9-000

28

Similarly, Kentucky DEP commented that Rye was not able to provide all of the 

environmental data for a complete application for a water quality certificate. Without a 

complete application, Kentucky DEP stated that it cannot publicly notice the application, 

which is the beginning of the agency’s process for issuing a final water quality 

certification. In order to meet the Commission and Rye’s target timeframes of the twoyear pilot process and still comply with state regulations, Kentucky DEP issued an 

interim water quality certification103 for the L&D 11 Project.

At a programmatic scale, commenters generally do not agree on environmental 

criteria to use for expedited processing. For example, regarding effects on recreation and 

environmental resources, as noted above, Hydropower Reform Coalition concurs with the 

Commission’s environmental criteria used in the pilot but requests that the criteria be 

expanded to exclude projects that would affect trails and recreation areas established 

under federal law or that exist in a protected stream reach. Conversely, NHA states that 

the only criterion that should be used to determine if a project is eligible for expedited 

processing is the adequacy of the information presented in the PAD and, that if data gaps 

exist, they can be addressed within one study season. 

Regarding consultation, commenters universally recommend consulting with 

agencies early and often during the licensing process as a key to successfully expediting

the process. Agency staff involved in the L&D 11 project commented that early 

consultation with both Rye and Commission staff was critical to understanding the 

process and meeting the compressed schedule. New England Power furthered this 

assertion, stating that one factor determining the success of a project is the level of initial 

consultation and other pre-filing work done to prepare the PAD or initial consultation 

document under the TLP.

Rye, the Forest Service, New York State DEC, and the Nature Conservancy agree

that projects requiring more than one study season would not be good candidates for a 

two-year process. To reduce the burden for information gathering, several commenters 

provided recommendations about streamlining the study development process or 

reducing requirements for pre-filing studies. Hydro Green Energy recommended that the 

Commission streamline study requirements if existing studies (for another project) can be 

applied to address the potential effects of a project at another site. Hydropower Reform 

Coalition recommends that the Commission identify a list of required studies for projects 

seeking expedited licensing and develop a best practices guide for licensing studies to 

assist applicants in meeting information needs. In addition, Hydropower Reform 

Coalition recommends that the Commission require studies that other agencies deem to 

be necessary to exercise their statutory authorities within the licensing process, even if 

 103 The requirements of the Kentucky DEP’s interim water quality certification 

are described in more detail in section III.
AD13-9-000

29

the Commission does not need the information to complete its own review. Hydropower 

Reform Coalition believes that implementing these recommendations would shorten the 

overall regulatory timeframe.

3. Implementation of a Two-Year Process on a National Scale

Commenters have diverse opinions about whether, or how, the Commission 

should implement a two-year licensing process. Absaroka Energy and the Hydropower 

Reform Coalition state that a two-year process is possible under the Commission’s 

existing regulations and there is no need to modify to the FPA. Absaroka Energy added

that it declined to request the pilot two-year process for its recently licensed Gordon 

Butte Project, but used the TLP because it felt the TLP gave it more control over the 

overall licensing process. New England Power states that it also considered using the 

pilot process, but didn’t have any difficulty completing the processes for its projects in 

two to two and a half years under the TLP. The Forest Service states that, rather than 

developing a fourth licensing process, it prefers that the Commission consider modifying

the ILP to support a two year process.

Several commenters state that the Commission should formalize a new two-year 

licensing process to provide clarity and certainty in the licensing timeline and 

requirements. Rye proposes a new process, called the “Existing Dam Process” (EDP). 

Several other commenters supported the adoption of the proposed EDP. The EDP is a 

variation of the pilot two-year process that would last approximately two years and two 

months and consist essentially of: fewer eligibility criteria;

104 much shorter timeframes 

for the Commission and other stakeholders to act during pre-filing review; more time 

during pre-filing for developers to conduct studies; and off-ramps to allow time to 

address unexpected environmental issues.

Some commenters express concern that it would be difficult to process multiple 

projects on a two-year schedule simultaneously. The Kentucky SHPO states that it would 

be burdensome to provide input within the condensed schedule for L&D 11 for a larger 

group of projects given the small size of the agency and its current workload. The 

Hydropower Reform Coalition is also concerned that it would be difficult to handle 

multiple projects in the same basin at the same time under a two-year schedule. The 

FWS states that multiple project processing could work for projects like L&D 11 where 

there was early and frequent consultation, which would allow FWS to work with the 

 104 Rye’s proposed eligibility criteria for the EDP include: (1) new generating 

capacity added to non-powered dams; (2) no new dams or impoundments; (3) no material 

change in any existing storage and release regime; (4) no federal lands other than those 

associated with an existing federal dam; (5) all environmental studies supporting the 

application must be able to be completed within a single study season.
AD13-9-000

30

applicant on avoidance and minimization measures to reach a “not likely to adversely 

affect” determination on listed species. However, FWS states that processing multiple 

projects simultaneously that require formal consultation might not be feasible given the 

standard ESA timeframes and other workload. The KRA added that it is currently 

working on multiple hydropower projects at the same time and does not foresee this to be 

an issue. The Corps states there are no anticipated barriers for the Corps Regulatory 

Program to process multiple projects concurrently. The Forest Service wondered whether 

applicants using the existing licensing processes would be satisfied if two-year projects 

become the priority over processing other project applications.

Many commenters offered suggestions as to ways the Commission could use its 

existing authorities and processes to shorten the licensing timeframe. These suggestions 

include:

• Reducing the length of mandated comment periods, shortening noticing 

timeframes, and/or combining notices;

• Allowing early/shortened NEPA scoping; 

• Issuing a single scoping document instead of two; 

• Implementing early/accelerated study plan approval;

• Granting a waiver of the requirement for a draft license application; 

• Issuing a single NEPA document concurrently with a license order;

• Expediting NEPA document drafting by Commission staff especially if all 

agencies’ study requests are required, allowing for adequacy of information;

• Applying the Commission’s ILP study criteria in a critical manner;

• Coordinating ESA consultation with the FWS and National Marine Fisheries 

Service (NMFS) in a more efficient manner;

• Developing and revising new MOUs with stakeholder agencies;

• Coordinating NEPA review among federal agencies to reduce redundancies;

• Moving the front end risks associated with acquiring 401 certifications, historic 

preservation concurrences, etc. to post-licensing, pre-construction conditions, 

as demonstrated at the pilot project; 

• Developing standard license articles for non-powered dam and closed-loop 

storage projects and making the articles easily available for applicants to use in 

describing the project, its operations and impacts, along with standard 

mitigation measures in the NOI/PAD; and
AD13-9-000

31

• Applying more stringent standards in issuing and processing preliminary 

permits to facilitate agencies’ ability to manage expedited processes 

concurrently, so that agency time and resources are not spent on processing 

projects that aren’t appropriate for expedited processing. 

Hydropower Reform Coalition, however, commented that expediting licensing 

processes should not occur at the expense of opportunities to improve environmental

resources, such as temperature, dissolved oxygen concentration, and fish passage issues. 

Hydro Reform Coalition and the Nature Conservancy also noted that the Commission

still has a responsibility under the FPA to balance the interests to find the best adapted for 

the comprehensive development of the waterway.

The Corps states that it is feasible to complete both the Commission and Corps’ 

processes together using the procedures in the revised MOU which outlines how the 

processes can be aligned to arrive at a decision concurrently. However, the Corps noted 

that aligning the two agency processes requires a larger initial investment in project 

design from developers. The Corps also commented that small projects with less 

complexity and controversy are more feasible for the Commission and the Corps to 

process simultaneously.

4. Best Practices and Recommendations 

Commenters pointed to a number of best practices that have contributed to

successful completion of shortened licensing proceedings. The most commonly cited 

best practice is early and frequent consultation by applicants with agencies and other 

stakeholders. Having a hands-on, problem-solving approach and not being afraid to call 

regulators to ask questions were identified as keys for successful expedited licensing 

regardless of which process was selected. Absaroka Energy emphasized that flexibility 

in the process is a key factor in successful expedited licensing because every project has 

unique characteristics and challenges. New England Power and other commenters 

generally agree that if applicants, stakeholders, and the Commission can be flexible in 

terms of the timing of process milestones, two-year processing becomes much more 

feasible and likely because it allows stakeholders to address unforeseen issues that can 

arise in the middle of a process.

Multiple commenters stressed the importance of having adequate baseline data at 

the start of pre-filing to facilitate agency and stakeholder review and avoid the need for 

additional information gathering and associated delays.

New England Power commented that early initial consultation with agencies, 

particularly the 401 certifying agency, can help applicants identify issues that could delay 

processing. Similarly, Absaroka Energy identified two key elements of expediting that 

do not require new legislation. First, early consultation with all interested stakeholders 
AD13-9-000

32

allowed the company to get agreement on study needs, ensure that only one study season 

was necessary, and allow the Commission to do NEPA scoping early. Studies and 

scoping for the Gordon Butte Project were completed in one year. Second, Absaroka 

Energy used study reports to negotiate mitigation measures with agencies and included

the measures in a draft EA filed with the final license application as Exhibit E. By doing 

this, Absaroka Energy avoided the draft license application step, which minimized the 

risk that stakeholders would identify new issues and saved time. Absaroka Energy stated 

that accomplishing their goal efficiently was a matter of intelligent pre-planning, prenegotiating, and pre-directing the process by the applicant.

Agencies and Nongovernmental Organizations offered a number of best practices 

and recommendations for expediting licensing processes. The Forest Service noted that it 

streamlines its review process by tiering off of the Commission’s NEPA documents 

whenever possible. The Forest Service and Corps also both suggest that developers reach 

out to them directly, via telephone or email. Hydropower Reform Coalition/American 

Whitewater’s recommended best practices included: (1) Commission continuing to 

engage stakeholders early in the licensing process; (2) maintaining licensing guidance on 

the Commission’s website, (3) the Commission showing more deference to agencies by 

requiring all agency-requested studies or including a disclaimer in study determinations 

that additional studies may be required by other agencies; (4) processing multiple projects 

in a river basin in a comprehensive, integrated way; (5) continuing to refine existing 

MOUs and exploring opportunities for new MOUs to facilitate parallel agency 

processing; (6) consulting with Congress about reducing the Commission and Corps’ 

duplicative authorities by allowing the Corps to have exclusive authority to regulate nonfederal hydropower at its dams; and (7) developing more stringent criteria for preliminary 

permits. New York State DEC suggests the use of generic and/or formatted and 

automated document preparation to streamline licensing, as with the agency’s electronic 

form for initial EAs that can be completed if there is sufficient information.
AD13-9-000

33

V. TIMELINESS OF EXISTING LICENSING PROCESSES

Given that only one case was able to be tested under the pilot process,

Commission staff reviewed its records to ascertain whether there is sufficient flexibility 

within the current regulations to facilitate a two-year process. These results are presented 

below. 

Because the primary goal of section 6 of the HREA is to promote the development 

of new projects, staff limited its analysis to proceedings for new projects, and did not take 

into account relicensing proceedings. This analysis includes projects authorized from 

2003 to 2016, and focuses on the characteristics of the cases that were completed in two 

years or less.

a. Processing Times for New Projects

Between 2003 and 2016, 83 new hydropower projects completed pre- and postfiling activities and were issued original licenses or small hydropower project exemptions

from licensing105 by the Commission.

106 These 83 projects comprise the sample set used 

for the analysis discussed below. Applicants used the TLP for 52 of the projects, the ILP 

for 7, and the ALP for 4. Additionally, 19 projects were granted exemptions from 

licensing under the small hydropower project exemption process which uses the TLP.107 

The remaining project, the L&D 11 Project, was licensed with the pilot two-year 

licensing process.

For all projects in the sample set, the median time from the filing of the NOI and 

PAD until license issuance was 3.34 years. The median time spent in the pre-filing phase 

developing the license application was 1.55 years. Once an application was received by 

the Commission, the median time until license issuance was 1.79 years. The median time 

for the small hydropower exemption projects was 1.86 years. Staff notes that it did not 

include in the processing time the period between when an initial preliminary permit was 

issued and the NOI/PAD was filed, because (1) a preliminary permit is not a prerequisite 

to filing an NOI/PAD, and (2) staff does not believe it is reasonable to count this time 

because it is the filing of the NOI/PAD that initiates the licensing process. 

 105 The sample set only included 10 MW or less exemptions. Conduit exemptions 

were not included because such projects are categorically exempt from NEPA. 106 The Commission issued more than 63 original licenses from 2003 through 

2016, however these 63 licenses represent those projects for which the Commission 

received an NOI and PAD after the first day of 2003, and issued a licensed through the 

end of 2016.

107 18 C.F.R. §§ 4.101 – 4.106 (2016).
AD13-9-000

34

During the 13-year period examined, the Commission authorized 22 projects 

(27 percent) in two years or less using existing processes. All used the TLP or ALP. No 

projects that were processed in less than 2 years used the ILP, which, per the process plan 

identified in the Commission’s regulations, is designed to take longer than two years.108

Table 1 shows the licensing processes used in the proceedings that were completed 

in two years or less. The median licensing time for these projects, from the filing of the 

NOI and PAD to license issuance, was 1.36 years. The L&D 11 Project was also 

licensed within two years, using the pilot two-year process.109

Table 1. Projects Licensed or Exempted from Licensing in Two Years or Less (2003-

2016).

b. Characteristics of Projects Processed in Two Years

As discussed previously, Commission staff and commenters have asserted that 

certain projects have characteristics that make them better candidates for processing in 

two years or less. In this section, we compare the characteristics of the 23 projects 

licensed (or exempted from licensing) in two years with the 60 projects licensed (or 

exempted) in more than two years to determine what, if any, factors contribute to or 

hinder expedited processing. Table 2 summarizes the characteristics that can affect these

timeframes. The characteristics are discussed in greater detail in the sections that follow.

 108 18 C.F.R. §§ 5.3 – 5.25 (2016).

109 As discussed in Appendix B, the pilot two-year process’s process plan and 

schedule was based on the ILP, with a compressed schedule for both pre-filing and postfiling activities. A copy of the pilot two-year process plan and schedule is provided in 

Appendix D.

Licensing process Total number 

of projects

Number licensed 

in 2 years or less

Percent licensed

in 2 years or less

TLP 52 11 22

ALP 4 1 25

ILP 7 0 0

10 MW or less exemption 19 10 53

Pilot two-year process 1 1 100

Total 83 23 28
AD13-9-000

35

Table 2. Characteristics of Projects Licensed or Exempted from Licensing in Greater 

Than Two Years and Two Years or Less (2003-2016).

Characteristic Greater than 2 years 2 years or less

Number of 

projects 60 23

Process

83% TLP license or exemptions 

(50 projects)

91% TLP license or exemptions 

(21 projects)

5% ALP

(3 projects)

4% ALP

(1 project)

12% ILP

(7 projects)

4% Pilot Two-Year Process

(1 project)

Median 

Processing 

Time

3.91 years 1.36 years

Project 

Capacity

30% 1 MW or less

(18 projects)

74% 1 MW or less

(17 projects)

30% > 1 and ≤ 5 MW

(18 projects)

13% > 1 and ≤ 5 MW

(3 projects)

15% > 5 and ≤ 10 MW

(9 projects)

13% > 5 and ≤ 10 MW

(3 projects)

25% > 10 MW

(15 projects)

0% > 10 MW

(0 projects)

Post-Filing 

AIRs or 

Deficiencies

87% Required AIR

(52 projects)

65% Required AIR

(15 projects)

67% had one or more deficiencies

(40 projects)

43% had one or more deficiencies

(10 projects)

8% no AIRs or deficiencies

(5 projects)

30% no AIRs or deficiencies

(7 projects)

Median Time 

from 

Application 

Filed to REA 

Notice 

8.5 months

(0.71 years)

2.3 months

(0.19 years)
AD13-9-000

36

Characteristic Greater than 2 years 2 years or less

Median Time 

from REA 

Notice to final 

EA issuance

0.81 years

(10 of 60 projects had both a draft 

and final EA and the remaining 50 

projects had only a single EA)

0.36 years

(all projects required only a single 

EA)

FPA

4(e) 

Conditions, 

Section 18 

Prescriptions, 

and 30(c) 

Conditions

33% 4(e) Conditions received 

before deadline set in 

Commission notice

(3 projects of 51 received 

4(e) conditions)

100% 4(e) Conditions received 

before deadline set in 

Commission notice

(4 projects of 13 received 

4(e) conditions)

78% Section 18 Prescriptions 

received before deadline set in 

Commission notice

(18 projects of 51 received 

Section 18 Prescriptions)

100% Section 18 Prescriptions 

received before deadline set in 

Commission notice

(4 projects of 13 received 

Section 18 Prescriptions)

71% 30(c) Conditions received 

before deadline set in

Commission notice

(7 projects of 9 received 

30(c) Conditions)

100% 30(c) Conditions received 

before deadline set in 

Commission notice

(8 projects of 10 received 

30(c) Conditions)

CWA

401

Certification

80% 401 Certification received or 

waived in one year

(48 projects)

100% 401 Certification received or 

waived in one year

(23 projects)

ESA

Consultation

43% required informal consultation

(26 projects)

26% required informal consultation

(6 projects)

10% required formal consultation

(6 projects)

4% required formal consultation

(1 project)

47% required no consultation 

(28 projects)

70% required no consultation 

(16 projects)

NHPA

Section 106

28% no historic properties

(17 projects)

35% no historic properties

(8 projects)

35% no adverse effects

(21 projects)

43% no adverse effects

(10 projects)
AD13-9-000

37

Characteristic Greater than 2 years 2 years or less

37% adverse effect – PA or MOA 

needed

(22 projects)

22% adverse effect– PA or MOA 

needed

(5 projects)

c. Site Selection and Project Design Characteristics

Overwhelmingly, projects that the Commission has licensed or exempted from 

licensing in two years or less are small, low-capacity projects at existing infrastructure. 

For all new projects studied, 42 percent were designed with capacities of 1 MW or less. 

A larger percentage (74 percent) of all projects licensed or exempted in two years or less 

had capacities of 1 MW or less. No projects licensed in two years or less had a capacity

greater than 10 MW.

This result is due, in part, to the applicability of the small hydropower exemption 

to low-capacity projects. However, it is also related to the increased complexity, scope of 

issues, and likelihood of the need for additional information that can arise as project size 

increases.

Site selection is an important factor in determining if a project is a candidate for 

expedited processing. Many potential obstacles to expedited processing can be avoided 

or substantially reduced if the site selected requires little to no change to environmental 

resources and is located in an area where there is substantial existing information on 

environmental resources and effects. 

In particular, projects that affect existing flow regimes in a river basin will likely 

take longer to license. Project complexity can be directly related to the other issues that 

affect license timing because more complex projects can require more information for the 

Commission and other agencies to fulfill their statutory requirements. Therefore, we 

conclude that the projects that are best suited for expedited processing are low-capacity 

projects with relatively few complex issues that must be addressed during the licensing 

process.

Regarding dam safety, all license applicants and licensees of hydropower projects 

are subject to inspection and evaluation by Commission staff pursuant to Commission 

safety regulations.

110 An applicant must use sound and prudent engineering practices in 

any action relating to the design, construction, operation, maintenance, use, repair, or 

modification of a water power project or project works. Projects sited at existing dams 

 110 18 C.F.R. Part 12 (2016).
AD13-9-000

38

are expected to satisfy the Commission’s Dam Safety Guidelines111 prior to licensing or 

post-licensing through planned remediation. A proposed project and project works that 

meet the guidelines may reduce the applicant’s design time and expense.

d. PAD Development, Pre-filing Consultation, and Study Needs

Development of a PAD is the first step an applicant takes to initiate licensing 

proceedings. The PAD provides the Commission and stakeholders with the applicant’s 

proposal as well as the existing, reasonably available information relevant to the project 

proposal that the applicant can obtain with the exercise of due diligence. This existing, 

relevant, and reasonably available information is distributed to the stakeholders to assist 

with identifying issues and information needs, developing study requests and study plans, 

and preparing documents analyzing any license application that may be filed.112

As a starting point for consultation between an applicant and stakeholders, a 

complete and accurate PAD upon filing with the Commission increases the likelihood 

that any additional information needs will be identified and addressed early and 

efficiently. In response to the Commission’s initial workshop, multiple agencies 

commented that they are unable to request appropriate studies that may be needed if the 

applicant’s PAD does not fully explain the project proposal and the environmental 

resources that it may affect. Filing PADs with insufficient information can lead to 

prolonged stakeholder deliberations during pre-filing or unnecessary study requests from 

stakeholders. Disagreements between the applicant and stakeholders about the need for 

studies or data collection can add significant amounts of time to the pre-filing phase. 

Projects that are likely to have such disagreements are not good candidates for expedited 

processing. On the other hand, a robust PAD that documents a clear proposal and 

presents available environmental information tends to lead to diligent and effective

consultation from the beginning of the process and results in quicker processing by

Commission staff. During the final public workshop, New England Power and Absaroka 

Energy attested that providing a PAD with all the required elements allowed their 

projects to be licensed in a much quicker manner.

e. Application Quality

Upon receipt of a final license application, Commission staff reviews the 

application to ensure it contains the information required by the Commission’s 

regulations. Any missing information is termed a deficiency and, if present, staff issues a 

letter to the applicant requesting the required information. During the review process, 

 111 Available at https://www.ferc.gov/industries/hydropower/safety/guidelines/engguide.asp. 112 18 C.F.R. § 5.6(b)(1) (2016).
AD13-9-000

39

Commission may need additional environmental, engineering, or economic information 

to analyze effects specific to the proposed project. Any information that is missing that 

staff needs is requested in a formal AIR letter to the applicant. Once the deficiencies 

have been corrected and Commission staff has all of the information needed to conduct 

its environmental analysis, Commission staff can then develop and issue an 

environmental document.

Of the 83 new projects in the sample set, the Commission needed to issue a letter 

requesting information to remedy a deficiency or obtain additional information in 71 of 

the proceedings (86 percent). Applications that were able to be processed in two years or 

less had a lower rate of deficiencies and/or AIRs. Of the projects that took longer than 

two years to authorize, 67 percent had at least one deficiency in the application, while 

only 43 percent of projects authorized in less than two years had deficiencies in the 

application. Of the projects that took longer than two years to authorize, 87 percent

required additional information, while only 65 percent of projects authorized in less than 

two years required additional information. The median time from the filing of the 

application until all AIRs or deficiencies were corrected (REA notice) was 0.60 years. It 

is very unlikely that a project can be authorized in two-years or less when it takes over 

seven months to obtain the information needed to conduct a basic NEPA analysis.

In the case of the L&D 11 Project, Rye filed its license application prior to the 

two-year target, but then supplemented its application with 18 filings over a period of 9 

months to correct deficiencies, respond to AIRs, and revise its proposed project design 

and environmental protection measures.113 These additional and unanticipated filings 

caused significant delays in Commission staff’s review of the application and in writing 

the EA (see Appendix D). On various occasions staff debated internally about whether 

the two-year process remained feasible, or if an “off ramp” to a standard TLP was more 

appropriate. However, in the interest of testing at least one complete pilot process, 

Commission staff worked diligently and coordinated with other stakeholders as needed to 

complete the target milestones within two years. While preserving the stakeholder 

comment periods, Commission staff absorbed the delays associated with information 

gathering by investing an atypical amount of staff time to complete the EA and license 

order under the two year schedule. Staff question whether this level of post-filing 

coordination with other agencies and information gathering would be feasible with a 

large number of projects.

Even with all the supplemental filings, several stakeholders in L&D 11 Project 

process identified outstanding information gaps that hindered completion of their 

statutory and regulatory responsibilities and resulted in conditional concurrences and

 113 See section III.b.2. for detailed descriptions of the deficiencies, information 

gaps, and supplemental filings.
AD13-9-000

40

requirements for subsequent (post-licensing) reviews. As summarized in section IV, 

despite limited staff and heavy workloads, agency stakeholders prioritized the processing 

of Rye’s proposal in order to meet the two-year process targets. Prioritizing the 

processing of proposals with significant information gaps can come at the expense of 

processing other projects. 

Obtaining complete and thorough license applications at the time of filing without 

deficiencies or significant additional data gathering will be critical in maximizing the 

expedited and/or efficient processing of the entire pool of hydropower license 

applications and promoting the development and maintenance of U.S. hydropower 

projects in general.

f. Commission Processing Timelines

The Commission’s regulations set certain timelines for processing license 

applications (see Appendix B for descriptions of the timing associated with each 

licensing process). In general, the timelines reflect required review periods to provide 

opportunities for stakeholders’ comments and recommendations on: information gaps in 

the PAD, use of a particular licensing process, study plans and study results, the scope of 

the project and issues to be addressed in the environmental document, the applicant’s 

licensing proposal, and staff’s environmental analysis. However, the regulations also 

recognize that not all steps are needed in every case. For example, pursuant to section 

4.38(e) of the Commission’s regulations, an applicant for a license may request waiver of 

certain pre-filing consultation requirements.

Many of the projects the Commission has licensed in two years or less have been 

processed by waiving portions of these regulations that were not needed based on the 

circumstances of the particular proceeding or where waiver requests were supported by 

the stakeholders, and therefore, would have unnecessarily prolonged the proceeding. The 

portions of the regulations that are most typically waived to expedite the process have 

included solicitation of additional study requests, and the preparation and distribution of a

draft license application. In addition, where appropriate, Commission staff may expedite 

licensing by allowing an early, shortened NEPA scoping process. 

In addition, the timeline for completing NEPA during the processing of license 

and exemption applications is affected by the nature and complexity of the project. For 

projects licensed in two years or less, the actual time between REA and 

license/exemption issuance was significantly shorter than for projects that were licensed 

in more than two years (0.19 years compared with 0.71 years).
AD13-9-000

41

g. Other Statutory and Regulatory Factors

As discussed in section I.c of this report, there are a number of federal statutes that 

the Commission must abide by before it can license a project. Often times, the 

Commission cannot act until it receives input from other federal and state agencies or 

other stakeholders. The influence of these factors on the licensing timeline are discussed 

below.

1. Timing of Receipt of Mandatory Section 4(e), 18, and 30(c) Conditions

Following issuance of the REA notice, the Commission provides parties 60 days

to submit recommendations, terms and conditions, and fishway prescriptions. However, 

it is not uncommon for agencies with authority under sections 4(e), 18, and 30(c) of the 

FPA to provide conditions and prescriptions later than the requested date. Pursuant to 

18 CFR § 4.34 (b)(1) (2016), agencies that are not able to file their conditions and 

prescriptions in a timely manner must explain why, file preliminary conditions, and 

provide a schedule for providing the final conditions. In order to determine the actual 

timeframe for receiving these terms and conditions, Commission staff evaluated the

timeframes from the sample set for projects that received preliminary and/or final 

conditions. In the sample set of 64 licenses, land management agencies filed 4(e) 

conditions for 7 projects, while the Departments of Interior or Commerce filed section 18 

prescriptions for 22 projects. In the sample set of 19 small hydropower exemptions, fish 

and wildlife agencies filed 30(c) conditions for 15 of the projects.

The 23 projects that were authorized in two years or less were not subject to 

delays caused by untimely filings from mandatory conditioning agencies. Conditions 

filed under various sections of the FPA (4(e), 18, and 30(c)) were filed within the 

timeframe set by Commission notice for all projects authorized in two years or less in our 

sample. Projects that were licensed in more than two years were more likely to be 

delayed because of late filing of these conditions. For the 60 projects licensed in more 

than two years, 67 percent of projects with 4(e) conditions had late filings, 22 percent of 

the projects with section 18 prescriptions had late filings, and 29 percent of projects with 

section 30(c) conditions had late filings.

2. Time to Receive Water Quality Certification

Section 401 of the CWA water quality certification process can be timeconsuming. An applicant can request a water quality certification from a state agency or 

tribe at any time throughout the Commission’s licensing process, but the latest an 

applicant can request a water quality certification for a licensing proposal is 60 days after 

the Commission issues its REA notice. 
AD13-9-000

42

To determine if the receipt of a water quality certification is a factor in delayed 

licensing, staff reviewed the sample set and looked at the time between when the 

applicant formally made its first or only114 request for a water quality certification and 

when the state agency or tribe either issued or waived water quality certification, or the 

water quality certification was deemed waived due to agency inaction by the one-year 

statutory deadline. The average time was 411 days,

115 and the median time was 356

days. All 23 projects licensed in two years or less either received a water quality 

certification or a waiver within one year of the applicant’s request.

116 

During the final public workshop, participants of the two-year process were 

unanimous in recommending early and frequent consultation among stakeholders, 

including a special focus on communication between applicants and 401 certifying 

agencies. New England Power suggested that early initial consultation with agencies, 

particularly the 401 certifying agency, serve essentially as a litmus test by helping

applicants identify issues that could delay processing. In some cases, 401 certifying 

agencies or tribes are new to processing hydropower projects. For example, Kentucky 

DEP staff was relatively new to Commission licensing processes and were among the 

first and only agency staff testing the pilot process. Therefore, the Kentucky DEP relied 

heavily upon consultation with Rye and guidance from Commission staff to navigate the 

process. The earlier and more collaboratively the applicant works with 401 certifying 

agencies or tribes, the more quickly licensing may proceed. 

3. Time to Complete ESA Consultation

Under the ESA, the Commission must ensure that its actions do not jeopardize 

protected species or their habitat and must consult with the FWS or NMFS when 

determining what protection measures to take. The consultation process can vary in 

length according to the level of effect on listed species. If the Commission determines its 

action will have no effect on a listed species or its habitat, no further consultation is 

 114 An applicant may withdraw and refile a request for certification, thereby, 

resetting the statutory deadline for agency action. However, for purposes of assessing 

how the certification process affects the overall licensing process time, our calculation of 

certification process time in this report begins with the first or only formal request for 

certification, and does not reset where an applicant subsequently withdrew and refiled its 

request. 

115 The average (mean) contains both requests where a certification was granted 

and requests where the Commission deemed the certification was waived because no 

response from the water quality agencies was provided within one year of an initial or 

subsequent request, as applicable.

116 In all 23 cases, the applicant made one formal request for certification, and did 

not subsequently withdraw and refile that request.
AD13-9-000

43

required. If the Commission believes its action is not likely to adversely affect a listed 

species or its habitat, staff will send a letter to the appropriate service seeking its 

concurrence. If FWS or NMFS agrees with the Commission’s finding, consultation is 

finalized with a letter from the appropriate service indicating its concurrence. The 

Commission usually seeks concurrence upon issuance of an EA or environmental impact 

statement (EIS) for a project and the Services typically respond in 30 days or less.

If the FWS or NMFS do not agree with the Commission conclusion that its action 

is not likely to adversely affect a species or its habitat, formal consultation would be 

required under section 7 of the ESA. Additionally, the Commission may determine that 

its action is likely to adversely affect a species or its habitat, in which case the 

Commission will initiate formal consultation with the appropriate service. The 

Commission usually does this by sending the FWS and/or NMFS its EA or EIS for a 

project, which includes a section of analysis on federally listed species. The Commission 

will request that FWS or NMFS provide it with a list of protection and mitigation 

measures to protect the listed species or its habitat within 135 days in a BO. The 

Commission will make the protection and mitigation measures from the Services’ BO a 

part of any license that may be issued for a project.

The formal consultation process can be lengthy and can hinder the Commission’s

ability to issue a license in a timely manner. Often, FWS or NMFS will determine that 

the agency does not have all the information it needs to complete a BO upon request to 

do so. Requests for additional information associated with BO preparation can take the 

form of simple clarifications and data requests, which can be resolved fairly quickly, to 

additional field studies or surveys which can lead to significant delays during a licensing 

proceeding.

Seventy percent of all projects licensed in two years or less required no 

consultation under the ESA. Six projects required informal consultation. Only one 

project required formal consultation; the L&D 11 Project.117 Of the seven projects 

licensed in two years or less that required consultation under ESA, all of the consultations 

were completed in less than 48 days. This compares with a median time of 76 days for 

informal consultation and 187 days for formal consultation across the 83 projects in the 

sample set.

During the final public workshop, FWS commented that if “not likely to adversely 

affect” determinations could not be reached, it may not have the resources to handle 

multiple formal consultations in an expedited manner. However, FWS also stated that 

 117 During the pilot two-year process for the L&D 11 Project, formal consultation 

was required for one species, the Indiana bat. Staff conducted informal consultation for 

the other six federally listed species potentially occurring in the project area.
AD13-9-000

44

applicants that consult with FWS early and frequently have more options and flexibility

in addressing ESA issues in an efficient manner. This is because FWS can assist them in 

identifying listed species that may occur in the project area, plan surveys to ensure they 

will be conducted during the appropriate season and be valid for inclusion in the 

Commission’s NEPA analysis, and thereby not delay the overall licensing process. Early 

ESA consultation also allows applicants to build in time to avoid or minimize effects to 

listed species by negotiating protection, mitigation, and enhancement measures. 

4. Time to Complete Section 106 Consultation

Section 106 of the NHPA118 requires the Commission to take into account the 

effect of its undertakings on properties included in or eligible for inclusion in the 

National Register and to afford the Advisory Council a reasonable opportunity to 

comment with regard to the undertaking. Compliance with section 106 is a four-stage 

process, as defined by the Advisory Council’s implementing regulations:

119 (1) an 

applicant defines the project’s area of potential effects, in consultation with the relevant 

SHPO, or THPO for projects on tribal lands; (2) an applicant collects data to identify if 

historic properties are present; (3) Commission staff determines whether the project 

would adversely affect historic properties, if any are present, and seek concurrence from 

the SHPO/THPO(s) about the determination of effect; and (4) Commission staff reaches

agreement with the SHPO/THPO(s) to resolve any adverse effects on historic properties.

Typically, in situations where an undertaking would adversely affect a historic 

property, Commission staff makes a determination of effects in the environmental 

document. The environmental document may also describe treatment measures proposed 

by an applicant, SHPO/THPO, or Commission staff to resolve the adverse effect. Final 

agreement on treatment measures to resolve adverse effects to historic properties are 

described in a PA or memorandum of agreement (MOA)120 between the Commission and 

the applicable SHPO or THPO. Licensees, tribes, and other stakeholders may be asked to 

sign the agreement document (PA or MOA) as concurring parties, although the 

agreement document is considered executed with the signatures of both the Director of 

the Commission’s Division of Hydropower Licensing and the applicable 

SHPO/THPO(s). Should the Commission and applicable SHPO/THPO(s) fail to agree, 

the alternative is to terminate further consultation and ask the Advisory Council to

provide formal comments on the dispute. Although a licensing proceeding may continue 

 118 54 U.S.C. § 306108 (2012).

119 36 C.F.R. Part 800 (2016). 120 Typically, PAs are used for licensed projects where potential effects on 

historic resources would be ongoing over the term of a license; MOAs are used for 

one-time actions, like exemptions.
AD13-9-000

45

if agreement is not achieved, the goal of the section 106 process is reaching mutually 

agreeable outcomes that protect historic resources at a project.

Of the 83 licensed or exempted projects, 25 were proposed at sites with no historic 

properties present; 31 were proposed at sites with historic properties present, but where it 

was determined that construction, operation, and maintenance of the project would have 

no adverse effect on historic properties; and 27 projects were proposed at sites with 

historic properties that that had the potential to be adversely affected by the proposed 

project. These 27 projects required PAs or MOAs to resolve adverse effects on historic 

properties. Projects licensed in two years or less were more likely either have no historic 

properties present or not cause adverse effects to known historic properties (78 percent 

compared with 63 percent for projects that took longer than two years). 

If a proposed project would be located at a dam that meets the criteria for listing 

on the National Register, or if the construction site has not been previously disturbed, an 

applicant should be prepared to provide a detailed and well-developed proposal 

explaining the area affected by project construction and should expect to conduct surveys 

within the project’s area of potential effects, including the transmission line corridor. If 

resources are found, more in-depth surveys may be required. The more collaboratively 

the applicant works with a SHPO and affected tribes, the more quickly licensing may 

proceed. The most lengthy section 106 consultation processes occur when an applicant, 

Commission staff, SHPOs and/or tribes disagree on: (1) the area affected by the project; 

(2) the need for surveys; (3) whether actions included in the project proposal will affect 

historic properties; and/or (4) how to resolve any adverse effects.
AD13-9-000

46

VI. CONCLUSIONS

Based on the outcomes of the tested two-year pilot process, public comments from 

the final workshop on the effectiveness of the tested two-year pilot process, and the 

Commission staff’s experience with licensing (or exempting from licensing) new projects 

as described in section V of this report, we provide the following conclusions.

How the Commission will adopt policies under existing law (including 

regulations) that result in a two-year process for appropriate projects

Commission staff has found that two-year license processing for new projects is 

feasible, and can occur within the existing legal and regulatory framework. As discussed, 

expedited license processing is feasible under the existing TLP or small hydro exemption 

processes without modifications to the Commission’s standard practices with some 

regulation waivers depending on the specifics of each case. Two-year processing could 

also be feasible under the ILP, with waivers, or with agreement among all stakeholders as 

part of the ALP.

From 2003 through 2016, the Commission successfully licensed, or exempted 

from licensing, 23 projects in two years or less, comprising 28 percent of all licensed or 

exempted new projects during the same timeframe. 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 PADs and license applications that provide a detailed project proposal, a 

comprehensive summary of the existing facilities and natural resources, and a thorough

examination of the resource issues at hand and study needs.

As discussed in section V and reinforced by comments provided by the public (as 

summarized in section IV), there are certain characteristics of projects that enhance the 

likelihood that a two-year process will be feasible for any given project. These include 

both design and environmental characteristics, as well as characteristics related to 

information-gathering and consultation.

Developers wishing to receive a license in an expedited manner should be aware 

of these characteristics and approach the licensing of their projects accordingly. 

Expedited licensing occurs most readily when projects have the following characteristics:

Design Characteristics

• The project would not alter existing flow regimes or cause significant 

impoundment fluctuations (i.e., operate in run-of-river or run-of-release 

mode);

• Minimal land clearing would be required; and
AD13-9-000

47

• For projects at non-federal dams, the existing structures satisfy the 

Commission’s Dam Safety Guidelines.

Environmental Characteristics

• There are few, or only minor environmental concerns, for example:

o There would be no significant change to water quality parameters such 

as dissolved oxygen concentration and temperature;

o The project would not significantly alter the flow regime at the project

site;

o There would be little or no potential for project effects on migratory 

fish; and

o There would be no adverse effects on federally listed species and/or 

habitat.

Information Gathering and Consultation

• Sufficient existing information about environmental and cultural resources 

exists and little new data collection is needed;

• Stakeholders, especially agencies, are consulted early, and frequently 

during the term of the preliminary permit and pre-filing to identify, and 

reach a consensus on, appropriate environmental protection, mitigation, and 

enhancement (PM&E) measures that address project-related impacts; and

• The applicant includes pre-negotiated environmental PM&E measures in its 

license application.

The Commission has worked within its own authorities to expedite licensing for 

certain projects and we expect to continue to do so, whenever possible. Some of the 

strategies that can be employed include:

• Waiving some pre-filing consultation requirements;

• Allowing pre-filing consultation to serve as the Commission’s NEPA 

scoping process;

• Combining public noticing requirements;

• Shortening comment periods;

• Issuing a single environmental document (as opposed to using draft and 

final documents); and

• Issuing the licensing decision concurrently with an EA.
AD13-9-000

48

Commission staff believes that the goal of reducing the time and effort it takes 

applicants to receive a license can be advanced with improved guidance. As noted above, 

the time it takes for applicants to correct application deficiencies and provide additional 

information can be significant. The better the Commission’s regulatory requirements can

be clearly communicated to applicants, the fewer the instances of incomplete PADs and 

applications.

It is also important that applicants are fully aware of the types of projects that are 

good candidates for expedited licensing, what they can do to facilitate the process, and, 

when appropriate, what the Commission can do to shorten the process, under specific 

circumstances. As a start, the small/low impact portion of the Commission’s public 

hydropower website (www.ferc.gov) will be made more prominent, and will be updated

more frequently with recent examples of projects that were expedited. Staff will also 

explore whether a stand-alone best practices guidance document would be of value to 

developers.

Commission staff does not believe that Congress needs to make statutory changes 

to the FPA or otherwise amend the Commission’s authority to ensure expedited 

processing of license applications for the types of projects where the Commission is able 

to move quickly to a licensing decision. However, as identified in comments provided on 

the tested two-year process and in Commission staff’s analysis of its own workflow 

history, factors outside of the Commission’s jurisdiction can delay license processing. 

These include the statutory authorities granted to other federal or state agencies under the 

CWA, ESA, and NHPA. The degree to which these other agency timelines extend the 

Commission’s licensing schedule will continue to affect the feasibility of a two-year 

process in certain cases.

Finally, while the focus of this report is on the time it takes for developers to 

receive the Commission’s authorization for a new project, Commission authorization is 

just the first of several steps a project must take before it goes into operation. If the goal 

of Congress is to expedite and increase new hydropower project generation delivery to 

the nation’s power grid, we believe additional attention could be given to those factors 

that can delay the start of project construction and operation that are outside of the 

Commission’s jurisdiction.
AD13-9-000

APPENDICES
AD13-9-000

This page intentionally left blank.
AD13-9-000

APPENDIX A

Summary of Statutory and Regulatory Requirements of the Commission’s 

Hydropower Licensing Process
AD13-9-000

This page intentionally left blank.
AD13-9-000

A-1

APPENDIX A

Summary of Statutory and Regulatory Requirements of the Commission’s 

Hydropower Licensing Process

Statute/

Regulation

Agency Summary of Requirements

Section 4(e) 

of the FPA1

FERC Section 4(e) of the FPA gives the Commission the 

authority to issue licenses for hydropower projects that: 

(1) are located on navigable waters; (2) are located on 

non-navigable waters over which Congress has 

Commerce Clause jurisdiction, were constructed after 

1935, and affect the interests of interstate or foreign 

commerce (e.g., are connected to the interstate grid); 

(3) are located on public lands or reservations of the U.S. 

(excluding national parks); or (4) use surplus water or 

water power from a federal dam (usually a U.S. Army 

Corps of Engineers (Corps) or Bureau of Reclamation 

(Reclamation) dam).2

 As amended,3 section 4(e) requires 

the Commission to give equal consideration to, but not 

necessarily equal treatment of, developmental and nondevelopmental values.4

 1

 16 U.S.C. § 797(e) (2012).

2

 Licensed projects at federal facilities do not include the facilities themselves.

The Commission has Memoranda of Understanding (MOU) with the Corps of Engineers 

(Corps) and Bureau of Reclamation (Reclamation) to coordinate the exercise of their 

respective authorities.

3 Electric Consumers Protection Act of 1986, P.L. 99-495, 100 Stat. 1243 (1986), 

codified at 16 U.S.C. § 791a, et. seq. (2012)

4 “Developmental” benefits of a project include power generation, water supply, 

flood control, irrigation, and river navigation. “Non-developmental” values of a 

waterway include fish and wildlife resources, recreational opportunities, and other 

aspects of environmental quality.
AD13-9-000

A-2

Statute/

Regulation

Agency Summary of Requirements

NEPA5 FERC6 Requires that the Commission, as the federal agency 

permitting and licensing non-federal hydropower projects, 

evaluate the environmental impact and significance of 

these impacts, as part of its permitting/licensing 

processes. The Commission is bound by the statutory 

requirements of NEPA and maintains a policy of adhering 

to the objectives of NEPA.

Section 10 of 

the FPA7

FERC Establishes the comprehensive development standard 

which each project must meet to be licensed. Pursuant to 

this standard, the Commission must explore all issues 

relevant to the public interest, including, but not limited 

to: (1) the need for project power; (2) the cost of project 

power relative to other energy sources; (3) compliance 

with antitrust laws;8 (4) the project’s consistency with 

state or federal comprehensive plans which address 

beneficial uses of a waterway; (5) federal and state fish 

and wildlife agencies’ and tribes’ conditions to protect 

fish and wildlife; and (6) the Commission's assessment of 

the proposed project's environmental impacts.

 5

 42 U.S.C. §§ 4321, et. seq. (2012). 6

 Federal agencies with 4(e) authority may perform an environmental analysis 

pursuant to NEPA, independent of the Commission's NEPA analysis.

7

 16 U.S.C. § 803 (2012). 8 16 U.S.C. § 803(h)(2) (2012).
AD13-9-000

A-3

Statute/

Regulation

Agency Summary of Requirements

Section 4(e) 

of the FPA

Federal Land –

Administering 

Agencies

Authorizes federal land-administering agencies, such as 

the Department of Agriculture and the Department of the 

Interior,9 to impose mandatory conditions on projects 

located on Federal reservations10 they supervise.11 The 

Commission must either include these conditions in the 

license without modification or, if it believes the license 

as conditioned would not satisfy the section 10(a) 

comprehensive development standard, it may decline to 

issue a license.12 Alternatively, the Commission may 

issue a license and explain why it believes the conditions 

should be deleted or modified.

 9

 As examples, the Secretary of the Interior prescribes mandatory conditions for 

projects on Indian reservations, and the Secretary of Agriculture does so for projects in 

national forests.

10 Federal "reservations" are a subset of federal lands. Reservations are defined in 

section 3(2) of the FPA as "national forest, tribal lands embraced within Indian 

reservations, military reservations, and other lands and interests in lands owned by the

United States, and withdrawn, reserved, or withheld from private appropriation and

disposal under the public land laws; also lands and interests in lands acquired and held 

for any public purposes; but shall not include national monuments or national parks." 

16 U.S.C. § 796 (2012).

11 Section 4(e) conditioning applies to new as well as original licensing. See

S. Cal. Edison Co. v. FERC, 116 F.3d 507 (D.C. Cir. 1997).

12 See Escondido Mut. Water Co. v. LaJolla Band of Mission Indians, 

466 U.S. 765 (1984).
AD13-9-000

A-4

Statute/

Regulation

Agency Summary of Requirements

Section 10(j) 

of the FPA13

Federal and 

State Fish and 

Wildlife 

Agencies

Requires that the Commission base fish and wildlife 

conditions in licenses on recommendations received from 

federal and state fish and wildlife agencies. The 

Commission must attempt to resolve any inconsistencies 

of the recommendations with the FPA or other applicable 

law. If the Commission does not adopt an agency's 

recommendation, it must explain why it disagrees with the 

agency, why the agency's recommendation is inconsistent 

with the law, and how the measures included in the 

license provide adequate protection for fish and wildlife 

resources.

Section 18 of 

the FPA14

Interior or U.S. 

Department of 

Commerce 

(Commerce)

Requires that the Commission require licensees to 

construct, maintain, and operate fishways,15 prescribed by 

the Secretaries of Commerce and Interior. Commerce and 

Interior have the authority to prescribe fishways for new 

licenses as well as original licenses.16

Section 401 

of the

CWA17

State, Tribe or 

Interstate 

Pollution 

Control (Water 

Quality 

Certifying) 

License applicants must obtain certification from the state, 

tribe or interstate pollution control agency verifying 

compliance with the CWA.18 The Commission’s 

licensing process requires hydropower applicants to 

consult with the certifying agency and file evidence of a 

request for water quality certification no later than 

 13 16 U.S.C. § 803 (j) (2012).

14 16 U.S.C. § 811 (2012). 15 Section 18 of the FPA also requires that the Commission require licensees to 

construct, maintain, and operate such lights and signals as may be directed by the 

Secretary of the Department in which the Coast Guard is operating.

16 See Hydroelectric Relicensing Regulations Under the Federal Power Act,

Order No. 513, 54 Fed. Reg. 23,756 (June 2, 1989), FERC Stats. & Regs. ¶ 30,854;

Order 513-A (1989), 55 Fed. Reg. 4-02 (January 2, 1990), FERC Stats & Regs. ¶ 30,869.

17 33 U.S.C. § 1341(a)(1) (2012).

18 States acting under the CWA could regulate not only water quality (such as the 

physical and chemical composition of the water), but water quantity (the amount of water 

released by a project), as well as State-designated water uses (fishing, boating, etc.). 

PUD No. 1 of Jefferson Cty v. Wash. Dep’t of Ecology, 511 U.S. 700 (1994).
AD13-9-000

A-5

Statute/

Regulation

Agency Summary of Requirements

Agencies 60 days after the Commission issues its REA notice. The 

Commission cannot determine whether conditions 

submitted by state agencies pursuant to section 401 of the 

CWA are beyond the scope of that section.19 In addition, 

the Commission cannot license a hydroelectric project 

unless the project has first obtained water quality 

certification or the water quality certifying agency has 

waived certification.20

ESA21 FWS or National 

Marine Fisheries 

Service (NMFS)

Requires that the Commission ensure that its actions do 

not jeopardize protected species or their habitat and must 

consult with FWS or NMFS when determining what 

protection measures to take. A project that would pose 

such jeopardy could not be authorized.

Marine 

Mammal 

Protection 

Act

(MMPA)22

NMFS Prohibits, with certain exceptions, the “take” (defined 

under statute to include harassment) of marine mammals 

in U.S. waters and the high seas. In 1986, Congress 

amended both the MMPA, under the incidental take 

program, and the ESA, to authorize incidental takings of 

depleted, endangered, or threatened marine mammals, 

provided the “taking” (defined under the statute as actions 

that are or may be lethal, injurious, or harassing) was 

small in number and had a negligible impact on marine 

mammals. With this relationship between the MMPA and 

the ESA, NMFS cannot complete section 7 consultation 

under the ESA and issue an Incidental Take Permit for 

listed marine mammals until an Incidental Harassment 

Authorization23 has been issued. This requires that 

 19 Disputes concerning whether conditions submitted under section 401 are lawful 

are to be resolved by the courts. American Rivers v. FERC, 129 F.3d 99 (2nd Cir. 1997)

20 The intent of the CWA is that a State should act on a certification request in a 

year or less.

21 16 U.S.C. § 1531 et. seq. (2012).

22 16 U.S.C. § 1361 et. seq. (2012).

23 In 1994, MMPA section 101(a)(5) was amended to establish an expedited 

process by which citizens of the United States can apply for an authorization, referred to 
AD13-9-000

A-6

Statute/

Regulation

Agency Summary of Requirements

Commission staff analyzes effects of a project on marine 

mammals, if there is a likelihood of their occurrence in 

the project area. This analysis occurs during the 

preparation of the environmental document for a proposed 

licensing, amendment, or exemption action.

Fish and 

Wildlife 

Coordination 

Act24

Interior, FWS, 

and NMFS

Requires the Commission, prior to granting a license or 

permit for the control, impoundment, or modification of 

streams and water bodies, to consult with Interior, FWS,

and the appropriate state fish and wildlife agencies 

regarding conservation of these resources. Pursuant to the 

Fish and Wildlife Coordination Act, the Commission is 

also directed to include in each license conditions for the 

protection, mitigation, and enhancement of fish and 

wildlife that are to be based on recommendations received 

from the NMFS, FWS, and state fish and wildlife 

agencies.

Migratory 

Bird Treaty 

Act 

(MBTA);25 

Executive 

Order 13186

Interior; FWS Protecting over 800 species of birds that occur in the U.S., 

MBTA provides that it is unlawful to pursue, hunt, take,26

capture, kill, possess, sell, purchase, barter, import, 

export, or transport any migratory bird, or any part, nest, 

or egg or any such bird, unless authorized under a permit 

issued by the Secretary of the Interior. Some regulatory 

exceptions apply.

Under Executive Order 13186, federal agencies, whose 

direct activities will likely result in the take of migratory 

birds, were directed to further implement the MBTA, by 

developing and implementing a Memorandum of 

 

as an Incidental Harassment Authorization, to incidentally take small numbers of marine 

mammals by harassment.

24 16 U.S.C. §§ 661 – 667e (2012).

25 16 U.S.C. §§ 703-712 (2012).

26 Take is defined as: “pursue, hunt, shoot, wound, kill, trap, capture, or collect, 

or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 16 U.S.C. § 1532 

(2016).
AD13-9-000

A-7

Statute/

Regulation

Agency Summary of Requirements

Understanding (MOU) with the FWS to promote the 

conservation of bird populations. Although regulatory 

agencies, like the Commission, are not covered by the 

order, the Commission agreed to develop a MOU and it 

was issued on March 30, 2011.

Bald and 

Golden Eagle 

Protection 

Act27

FWS Prohibits the take, possession, sale, purchase, barter, or 

offer to sell, purchase, or barter, export or import" of the 

bald eagle "at any time or in any manner." Covers golden 

eagles too, but the golden eagle, however, is accorded 

somewhat lighter protection under the Act than the bald 

eagle. The Commission has indicated that compliance 

with this act is the responsibility of the licensee and it will 

not impose any license requirement regarding future 

compliance with the Eagle Act permitting process.

MagnusonStevens 

Fisheries

Conservation 

and 

Management 

Act28

NMFS Requires the Commission to consult with NMFS on all 

actions that may adversely affect essential fish habitat 

(EFH). If EFH for species managed by NMFS occurs in 

the project area, Commission staff must analyze the 

effects of the project on EFH, and if adverse effects are 

predicted, must consult with NMFS to determine 

appropriate measures to reduce those effects. 

Commission staff completes the EFH analysis and 

consultations during the preparation of the environmental 

document for a proposed licensing, amendment, or 

exemption action.

 27 16 U.S.C. §§ 668-668c (2012).

28 16 U.S.C. § 1851 et seq. (2012).
AD13-9-000

A-8

Statute/

Regulation

Agency Summary of Requirements

Coastal Zone 

Management 

Act 

(CZMA)29

State Coastal 

Zone 

Management 

Program

The Commission cannot authorize development of a 

hydropower project within or affecting a state's coastal 

zone, unless the state concurs with the applicant's 

certification of consistency with the state's CZMA

program. The state's concurrence is conclusively 

presumed if it fails to act within 180 days of its receipt of 

the applicant's completed certification.

NHPA30 Advisory 

Council on 

Historic 

Preservation 

(Advisory 

Council)

Requires the Commission, before authorizing a project, to 

consider the project's effects on any site, structure, or 

object included in, or eligible to be included in, the 

National Register, and to afford the Advisory Council an 

opportunity to comment. In practice, this is generally 

handled through the State Historic Preservation Officer 

(SHPO).

Pacific 

Northwest 

Electric 

Power 

Planning and 

Conservation 

Act31

Northwest 

Power and 

Conservation 

Planning 

Council

Requires the Commission to: (1) provide "equitable 

treatment" to fish and wildlife; (2) take into account "to 

the fullest extent practicable" the Council's fish and 

wildlife program; and (3) in carrying out its 

responsibilities, consult with a variety of entities and, to 

the "greatest extent practicable," coordinate actions with 

other federal agencies.

Federal Land

Policy and 

Management 

Act32

U.S. Forest 

Service or 

Bureau of Land 

Management 

(BLM)

Most Commission licensees and exemptees (some are 

grandfathered)33 must obtain from the Forest Service or 

BLM, as appropriate, the necessary rights-of-way to build 

and operate projects on public land. Any Forest Service 

or BLM conditions on such rights-of-way are mandatory.

 29 16 U.S.C. § 1451 et. seq. (2012).

30 54 U.S.C. § 300101 et. seq. (2014). The National Historic Preservation Act 

was recodified in Title 54 in December 2014.

31 16 U.S.C. § 839 et. seq. (2012).

32 43 U.S.C. § 1701 et. seq. (2012).

33 The Federal Land Policy and Management Act (FLPMA) was amended in 

1992, reversing a court decision which had excluded Commission licensed projects from 
AD13-9-000

A-9

Statute/

Regulation

Agency Summary of Requirements

Wild and 

Scenic 

Rivers Act34

Federal river 

administrating 

agencies

Bars the Commission from licensing hydropower projects 

on river segments congressionally designated as Wild or 

Scenic, or on river segments congressionally selected to 

be studied for possible designation.

Wilderness 

Act35

Forest Service, 

National Park 

Service, and 

FWS

Section 4 prohibits the establishment of power projects, 

transmission lines, and other facilities in a federally

designated wilderness area. Section 4 doesn't prohibit 

issuance of a preliminary permit for a proposed project.

The Commission is prohibited from issuing licenses 

authorizing the construction or operation of projects

within wilderness areas.

Energy 

Policy Act 

(EPAct) of 

200536

Interior, 

Commerce, and 

Agriculture

The Commission worked with Interior, Commerce, and 

Agriculture, pursuant to section 241, which required the 

departments to establish procedures allowing parties to 

hydropower licensing proceedings, including license 

applicants, to request trial-type hearings concerning 

disputed issues of material fact regarding fishway 

prescriptions and other mandatory conditions proffered by 

the departments, and to provide parties the opportunity to 

propose alternative conditions and fishway 

prescriptions. The departments published an interim final 

rule implementing section 241, which applies to any 

license proceeding for which the license was not issued as 

of November 17, 2005.37 

The Commission also issued a guidance document to help 

hydropower licensees seeking renewable tax credit 

certification for incremental energy gains from efficiency 

improvements.

 

FLPMA's terms. See Energy Policy Act of 1992, P.L. 102-46, 106 Stat. 2776.

34 16 U.S.C. § 1271 et. seq. (2012).

35 16 U.S.C. § 1131 et seq. (2012).

36 Energy Policy Act of 2005, P.L. 109-58, 119 Stat. 594 (2005).

37 Resource Agency Procedures for Conditions and Prescriptions in Hydropower 
AD13-9-000

A-10

Statute/

Regulation

Agency Summary of Requirements

Energy Act 

of 200038

FERC Added section 32 to the FPA, which removed from 

Commission jurisdiction projects 5 MW or less in Alaska, 

effective on the date on which the Commission certifies 

that the State of Alaska has in place a regulatory program 

for water-power development that meets three tests.39 

Section 603 required that the Commission, in consultation 

with other appropriate agencies, immediately undertake a 

comprehensive review of policies, procedures, and 

regulations for the licensing of hydroelectric projects to 

determine how to reduce the cost and time of obtaining a 

license. The Commission submitted "Section 603" report 

to Congress on May 8, 2001.

EPAct of 

199240

FERC Section 1701(a) requires the Commission to include in 

annual charges “subject to annual appropriations acts,” 

“reasonable and necessary costs” incurred by fish and 

wildlife agencies and other natural resources and cultural 

resource agencies “in connection with studies or other 

reviews carried out by such agencies for purposes of 

administering their responsibilities under” Part I of the 

FPA. 

Section 1701(d) bars licensees from using eminent 

domain to condemn state-owned land managed for parks, 

recreation, or wildlife that was owned on October 10, 

1992. For such lands designated by the state for these 

purposes after October 10, 1992, the licensee may not use 

eminent domain unless a public hearing was held in the 

community and the Commission finds the license won't be 

inconsistent with the purposes for which the lands are 

owned. 

 

Licenses, 70 Fed. Reg. 69804 (Nov. 17, 2005).

38 Energy Act of 2000, P.L. 106-469 (2000).

39 For further detail, see section 501 of the Energy Act of 2000.

40 Energy Policy Act of 1992, P.L. 102-486, 106 Stat. 3096 (1992).
AD13-9-000

A-11

Statute/

Regulation

Agency Summary of Requirements

Section 2401 amended the Federal Land Policy and 

Management Act to require, prospectively, that licensees 

and exemptees for projects on federal lands must also 

obtain a right-of-way from the federal land managing 

agency, but also permanently grandfathered all projects 

that had not received a right-of-way prior to the date of 

enactment, and the project, as relicensed, would not 

involve the use of additional public lands. 

Section 2402 bars the Commission from issuing an 

original license for a new project located within the 

boundaries of a national park “that would have a direct 

adverse effect on federal lands within” the park.

Section 2403 allows the Commission to permit, at the 

applicant's elective, a contractor funded by the applicant 

and chosen by the Commission from a list of qualified 

contractors to prepare an EIS for the Commission, with 

the Commission establishing the scope of work and 

procedures. The Commission may permit an applicant or 

its contractor to prepare an EA, but the Commission must 

institute procedures, including pre-application 

consultations, to advise potential applicants of studies or 

data reasonably foreseen to be required.

Section 2407 authorizes the Commission to grant 

exemptions to certain projects in Alaska.

Section 2408 required the Commission to study whether 

jurisdiction over hydropower in the State of Hawaii 

should be transferred to the State. The report was 

approved by the Commission and forwarded to the 

Committee on April 13, 1994.
AD13-9-000

This page intentionally left blank.
AD13-9-000

APPENDIX B

Summary Table and Descriptions of the Commission’s Existing Hydropower 

Licensing Processes and the Pilot Two-Year Process
AD13-9-000

This page intentionally left blank.
AD13-9-000

B-1

APPENDIX B

Summary Table of Existing Licensing Processes

Integrated 

Licensing 

Process

Traditional 

Licensing 

Process

Alternative 

Licensing 

Process

10-MW 

Exemption

Availability Default 

Process

Available by 

request of 

applicant, with 

Commission

approval; 

stakeholders 

may comment 

on 

appropriateness

Available by 

request of 

applicant, with 

Commission

approval; 

requires 

agreement of 

stakeholders

Available for 

projects that 

meet the 

requirements in 

18 C.F.R 

§ 4.30(29) 

(2016)

Recommended 

Project Type

Projects with 

complex 

issues and 

study needs

Projects with 

less complex 

issues and study 

needs

Projects that 

effectively 

promote a selfdriven 

collaborative 

pre-filing process

Projects for 

which, given

their size and 

location, have 

minimal 

environmental 

impacts

Schedule Predictable 

schedule in 

both prefiling and 

post-filing 

stages

Paper-driven 

process; threestage pre-filing 

consultation 

with no set 

timeframes

Collaborativelydetermined 

schedule in prefiling stage

Paper-driven 

process; no set 

timeframes

FERC 

Involvement

Pre-filing 

involvement; 

sustained

No pre-filing 

involvement; 

involved postfiling

Pre-filing

involvement for 

scoping and as 

requested by 

applicant and 

stakeholders; 

involved postfiling

No pre-filing 

involvement; 

involved postfiling

Deadlines For all 

participants 

Some pre-filing 

deadlines; postPre-filing deadlines are 

Post-filing 

deadlines 
AD13-9-000

B-2

Integrated 

Licensing 

Process

Traditional 

Licensing 

Process

Alternative 

Licensing 

Process

10-MW 

Exemption

during 

process, 

including the 

Commission

filing deadlines 

defined by the 

Commission

collaboratively 

defined; postfiling deadlines 

determined by 

the Commission

defined by the 

Commission

Study Plan 

Development

Study plan 

meetings; 

Commission

approval for 

study plan

Applicant 

develops; no 

Commission

involvement

Collaboratively 

developed; 

Commission

assistance, as 

requested

Applicant 

develops; no 

Commission

involvement

Opportunities 

for Study 

Dispute 

Resolution

Formal: 

Mandatory 

agency

Informal: Yes

Formal: 

Advisory 

Informal: If 

requested

Formal: 

Advisory 

Informal: Yes

Formal: 

Advisory 

Informal: No

Section of 

Application

that Includes 

Environmental 

Information

Preliminary 

Licensing 

Proposal, or 

Exhibit E that 

follows EA 

format

Exhibit E Applicantprepared EA, or 

3rd Party 

Environmental 

Impact Statement 

(EIS)

Exhibit E

Additional 

Information 

Requests and 

Studies

Pre-filing;

Post-filing 

study 

requests are 

unlikely

Post-filing, 

including 

studies as 

necessary

Pre-filing;

Post-filing 

requests are 

limited

Post-filing, 

including 

studies as 

necessary

Timing of 

Resource 

Agency Terms 

& Conditions

60 days after 

REA;

Modified 60 

days after due 

date for 

comments on 

draft NEPA 

document

60 days after 

REA;

Schedule for 

final

60 days after 

REA; 

Schedule for 

final

30 or 60 days 

after REA
AD13-9-000

B-3

Descriptions of the Commission’s Existing Hydropower Licensing Processes

and the Pilot Two-Year Process

a. Integrated Licensing Process

1. Pre-filing

For a new project, licensing commences when a prospective applicant files a 

Notice of Intent (NOI) and Pre-Application Document (PAD). The NOI and PAD must 

be distributed to federal and state resource agencies, tribes, and members of the public 

likely to be interested in the proceeding (stakeholders).1

 At the same time, an applicant 

may also request Commission approval for use of either the TLP or ALP, which are 

described in greater detail below.

In the ILP, pre-filing consultation, which includes all steps in the licensing process 

prior to the filing of a final license application, is conducted concurrently with the 

Commission’s NEPA scoping process. The filing of the NOI and PAD begins pre-filing 

consultation and sets in motion the Commission’s scoping and tribal consultation efforts.2

 

Pre-filing consultation includes the development of a preliminary list of issues to be 

addressed in the NEPA document (EA or EIS), as well as identification of studies that 

may be necessary to address gaps in existing information about the project and its effects 

on environmental, recreation, and cultural resources.3

The ILP involves a consultation process where applicants and stakeholders meet to 

discuss the need for studies and develop a study plan for the project. Following the 

conclusion of the study planning process, the Director of the Commission’s Office of 

Energy Projects issues a study plan determination that approves the applicant’s study 

plan, with any needed modifications determined to be necessary in light of the record.4

 

Once approved, typically, an applicant has two years to complete the approved studies.5

 

Upon completion of the studies, an applicant prepares a preliminary licensing proposal,

or draft license application, for review and comment.6

 The preliminary licensing 

proposal, or draft license application, will contain an applicant’s detailed project 

description, including facilities and operation information, as well as protection, 

mitigation, and enhancement (PM&E) measures designed to address resource issues 

 1 18 C.F.R. § 5.5 (e) (2016).

2 18 C.F.R. §§ 5.5, 5.6 (2016).

3 18 C.F.R. §§ 5.9 (b), 5.11, 5.12 (2016).

4 18 C.F.R. § 5.13 (2016).

5 18 C.F.R. § 5.15 (2016).

6 18 C.F.R. §§ 5.16, 5.18 (2016).
AD13-9-000

B-4

identified during the pre-filing consultation process. The period of pre-filing ends with 

the filing of a final license application for a proposed project; the ILP regulations allow 

between 2.5 and 3 years for the pre-filing phase of licensing.

2. Post-filing

Filing a final license application initiates the post-filing stage of the ILP. Upon 

receipt of a final license application, Commission staff reviews it for deficiencies, 

based on the applicable sections of the Commission’s regulations.7

 An application

with major deficiencies which cannot be quickly cured may be considered patently

deficient and rejected.8

 If an application lacks some required information, but does 

not have major deficiencies, the Commission keeps the application on file, sends the 

applicant a list of the deficiencies, and establishes a schedule for the missing 

information to be supplied.9

 When an applicant has cured any deficiencies, the 

Commission issues notice accepting the application for filing and setting deadlines 

for comments, interventions, and protests.10

Although an application may meet the standards set forth in the Commission’s 

regulations, at any time, Commission staff may also request additional information, or 

documents it considers relevant for an informed decision on the application.

11 For 

example, additional information requests (AIRs) may include: clarification of an 

applicant’s proposal if the project proposal is unclear or inconsistently described; 

additional studies or data to address information gaps raised in comments or during 

review of the application; additional consultation with stakeholders if comments from 

consulted entities are not adequately addressed in the application, or if the application 

does not adequately document consultation with relevant entities.

 7

 18 C.F.R. § 5.6 and, as applicable, 18 C.F.R. §§ 4.41, 4.51, or 4.61 (2016). 

18 C.F.R. § 5.41 relates to licenses for major unconstructed projects and major modified 

projects; 18 C.F.R. § 5.51 relates to licenses for major projects at existing dams; and 

18 C.F.R. § 5.61 relates to licenses for minor water power projects and major water 

power projects of 5-MW or less.

8

 18 C.F.R. § 5.22(a) (2016).

9

 18 C.F.R. § 5.20(a) (2016).

10 Commission regulations state that the notice accepting the filing shall be 

published in the Federal Register, local newspapers, and be mailed to federal and state

agencies. 18 C.F.R. § 16.9(d)(1) (2016).

11 18 C.F.R. §5.21 (2016).
AD13-9-000

B-5

If or when no additional information is required, the Commission issues the REA 

notice.

12 Once the REA notice is issued, the stakeholders are given an opportunity to file 

additional comments or recommendations based on the applicant’s complete proposal. 

Agencies with designated statutory authority, including state agencies under section 401 

of the CWA13 and federal land management agencies under sections 4(e) and 1814 of the 

FPA, may file preliminary terms and conditions, or fishway prescriptions. The applicant 

is also given the opportunity to reply to all such filings.

When these filings are complete, Commission staff will prepare a NEPA 

document for the project that analyzes the effects of the project on environmental, 

recreation, and cultural resources. The NEPA document compares a minimum of three 

alternatives: a no-action alternative (license denial), the applicant’s proposal, and a staff 

alternative. For a typical new project, the Commission will issue a NEPA document in 

both draft and final format. At this time, the Commission will also initiate ESA 

consultation, if necessary, and begin to prepare any agreement documents that may be 

necessary to resolve adverse effects on historic properties within a project’s area of 

potential effects pursuant to section 106 of the National Historic Preservation Act.

Following the issuance of a draft NEPA document, the Commission will solicit 

comments. At that time, stakeholders will also have an opportunity to modify their 

recommendations and prescriptions in light of the Commission staff's analysis and draft 

recommendations.15 Also, if the Commission staff proposes not to adopt any of the 

recommendations of the federal or state fish and wildlife agencies, a meeting is held 

pursuant to section 10(j) of the FPA for the purpose of attempting to resolve those 

differences. If warranted, the Commission will issue a final NEPA document that 

includes a summary of comments received on the draft document, and how those 

comments have been addressed in the final.

The licensing process concludes with the issuance of a license order by either 

Commission or its delegate. License orders are issued as expeditiously as possible; 

however, license orders cannot be issued until the Commission has fulfilled all of its 

responsibilities under the FPA and other applicable statutes, including section 401 of the 

CWA, section 7 of the ESA, and section 106 of the NHPA.

 12 18 C.F.R. § 5.22 (2016).

13 33 U.S.C. § 1341 (2012).

14 16 U.S.C. §§ 797, 811 (2012)

15 18 C.F.R. § 4.34(b)(4) (2016).
AD13-9-000

B-6

b. Traditional Licensing Process

1. Pre-filing

Concurrently with filing an NOI and PAD, an applicant may request use of the 

TLP instead of pursuing the ILP. The request must address the following considerations: 

likelihood of timely license issuance; complexity of resource issues; level of anticipated 

controversy; relative cost of the TLP as compared to the ILP; the amount of available 

information and potential for significant disputes over studies; and other pertinent 

factors.16 If the level of complexity and/or anticipated controversy for a project is 

relatively low, and no significant objections to use of the TLP are raised by stakeholders, 

the Commission may approve use of the TLP.

The fundamental difference between the ILP and TLP is the level of 

involvement of the Commission in the pre-filing phase of project development. In the 

TLP, the applicant is responsible for initiating and maintaining communication with the 

stakeholders without involvement from the Commission. NEPA scoping is not initiated 

until the post-filing phase of licensing in the TLP. An applicant is expected to conduct, 

and document, three-stage consultation before filing a final license application.17

First-stage consultation commences when an applicant provides initial 

notification to stakeholders about a proposed project. The applicant will also host a 

joint meeting to discuss the proposal with stakeholders and discuss any study needs. 

First stage consultation ends when a set of resource-by-resource study plans and 

detailed documentation of consultation have been assembled.18

During second stage consultation, an applicant proceeds with all reasonable 

studies identified during the first stage of consultation, if any. For an original license, 

these studies must be completed, and the information obtained, before filing the 

application if the results would influence the financial or technical feasibility of the 

project, or are needed to determine the design or location of project features, reasonable 

alternatives to the project, the impact of the project on important natural or cultural 

resources, or suitable mitigation and enhancement measures. Based on existing 

information and any information developed through pre-filing studies, an applicant 

 16 18 C.F.R. § 4.38(b)(3)(iii) (2016). 17 18 C.F.R. § 4.38(f) (2016).

18 18 C.F.R. § 4.38(a) and (b) (2016).
AD13-9-000

B-7

prepares and distributes a draft license application to the consulted entities and the 

Commission for review and comment.19

2. Post-filing

An applicant initiates the third stage of consultation with the filing of the final 

license application,

20 which also marks the start of the post-filing stage of the TLP. As 

in the ILP, the applicant must provide copies of its final license application to all 

resource agencies, tribes, and members of the public previously consulted.21 Once 

received, the Commission reviews the final license application and, if needed, issues a 

list of deficiencies and/or requests for additional information.

Once all deficiencies are cured and the application is accepted, the Commission 

will provide public notice in the Federal Register, local newspapers, and directly to 

resource agencies and tribes that identifies dates for comment, intervention, and 

protests.22 Commission staff also issues a scoping document for the project that 

contains a preliminary list of issues to be addressed in the NEPA document. In the 

TLP, the Commission may conduct public scoping meetings, or may only solicit written 

comments on the scoping document, based on comments received after issuing the 

acceptance notice.

When the applicant has satisfied any Commission requests for additional 

information, the Commission issues the REA notice. From the issuance of the REA 

notice until final action is taken on the licensing proceeding, the TLP does not differ 

significantly from the ILP.

c. Alternative Licensing Process

1. Pre-filing

As with the TLP, an applicant must request and receive Commission approval to 

use alternative procedures (the ALP) for filing an application for license. The goals of 

the ALP are to: (1) combine into a single process the pre-filing consultation process, the 

environmental review process under NEPA, and the administrative processes associated 

with the CWA and other statutes; (2) facilitate greater participation by, and improve 

communication among, the applicant, resource agencies, tribes, the public, and 

 19 18 C.F.R. § 4.38(c)(2) (2016).

20 18 C.F.R. § 4.38(d) (2016). Basic application content requirements are specific 

to the kind of project in question (i.e., 18 C.F.R. 4.41, 18 C.F.R. 4.51, or 18 C.F.R. 4.61).

21 18 C.F.R. § 4.38(d)(2) (2016).

22 18 C.F.R. § 4.34(b) (2016).
AD13-9-000

B-8

Commission staff; (3) allow for an applicant-prepared EA, or third-party preparation of a 

preliminary draft environmental document as a substitute for exhibit E of a license 

application; (4) promote cooperative efforts by the applicant and stakeholders to narrow 

areas of disagreement, and to reach agreement or settlement on issues raised in the 

proposal; and (5) facilitate orderly and expeditious review of an agreement, or offer of 

settlement of an application for a license.23

A request to use the ALP should be filed concurrently with the NOI and PAD, 

demonstrate that an applicant has made a reasonable effort to contact all stakeholders that 

may be affected by the proposal, and document that stakeholders agree that the use of the 

ALP is appropriate under the circumstances. Before filing a request to use the ALP, an 

applicant should develop a written communications protocol, supported by the 

stakeholders, describing how the applicant and other participants in pre-filing 

consultation (including Commission staff) will communicate with each other regarding 

the merits of the applicant’s proposal, as well as the recommendations of interested 

entities.24

As described above, the ILP sets firm deadlines for study planning, comments, and 

execution. Under the ALP, by comparison, the pre-filing consultation and environmental 

review processes can be integrated and proceed concurrently. This streamlining of the 

process is possible if the participants can agree on what information must be developed 

for the record, and on deadlines for steps such as the completion of studies and the filing 

of comments and proposed conditions.

2. Post-filing

As under the other licensing processes, post-filing proceedings begin when the 

applicant files a complete application with the Commission. Because of the collaborative 

efforts during pre-filing, additional information should not be necessary to develop 

PM&E measures under the ALP process. One of the goals of the ALP is to facilitate 

agreement on resource studies to expedite Commission review of the license application. 

If the applicant or third-party environmental document meets Commission requirements, 

the timeline for environmental review can be significantly shortened, compared with the 

other processes. Following issuance of the final NEPA document, the Commission will 

issue a license order as expeditiously as possible.

 23 18 C.F.R. 4.34(i)(2) (2016).

24 18 C.F.R. 5.3 (2016).
AD13-9-000

B-9

d. 10 MW or Less Exemption Process

The Commission also issues exemptions from licensing. An exemption is not 

deregulation; rather, it is a less comprehensive form of regulation, intended for projects 

which should, by their size and location, have minimal environmental impacts. A 

10 MW exemption can be granted to a project proposing additional capacity (for a total 

of 10 MW or less) and using an existing dam or natural water feature. Exemptions have 

no statutory maximum term, and the Commission issues exemptions in perpetuity. 

Exemptions are subject to mandatory fish and wildlife conditions by federal and state fish

and wildlife agencies. Water quality certifications are not required for 10 MW 

exemptions. Unlike a license, an exemption does not confer federal power of eminent 

domain, so exemptees must already own the necessary land, or for a project on federal 

lands, must get a use permit from the land managing agency.

The extent of information required in an exemption application is generally much 

less than that required in a license application; however, most of the same procedural 

steps apply to both types of development applications.

1. Pre-filing

The applicant is responsible for initiating and maintaining communication with 

the stakeholders without involvement from the Commission. As with a license 

application, an applicant is expected to conduct, and document, three-stage consultation 

before filing a final exemption application.25

2. Post-filing

An applicant initiates the third stage of consultation with the filing of the 

exemption application;

26 which also marks the start of the post-filing stage of an 

exemption proceeding. As in the TLP and ILP, the applicant must provide copies of its 

exemption application to all resource agencies, tribes, and members of the public 

previously consulted.27 Once received, the Commission reviews the exemption 

application and, if needed, issues a list of deficiencies and/or requests for additional 

information.

 25 18 C.F.R. § 4.38(f) (2016).

26 18 C.F.R. § 4.38(d) (2016). Basic application content requirements are specific 

to the kind of project in question.

27 18 C.F.R. § 4.38(d)(2) (2016).
AD13-9-000

B-10

Once all deficiencies are cured and the application is accepted, the Commission 

will provide public notice in the Federal Register, local newspapers, and directly to 

resource agencies and tribes that identifies dates for comment, intervention, and 

protests.28 When the applicant has satisfied any Commission requests for additional 

information, the Commission issues the REA notice. From the issuance of the REA 

notice until final action is taken on the exemption proceeding, the process does not 

differ significantly from the TLP or ILP.

e. Pilot Two-Year Process

3. Pre-filing

The process plan approved to test the pilot two-year process was divided into a 

one-year pre-filing period and a one-year post-filing period. To accommodate all prefiling activities in one year, the scoping and study-planning phases that are typically part 

of the ILP were compressed, with greater responsibility placed on a potential applicant 

for consultation with stakeholders before filing a PAD. When preparing the PAD, an 

applicant was expected to consult with stakeholders about the project proposal, potential 

project-related environmental effects, the availability of existing information, and the 

need for studies to supplement existing information. As described in section II of this 

document and the notice soliciting pilot projects, an applicant’s PAD was expected to 

contain a defined and well-developed project proposal that adequately addressed issues 

raised during consultation and included a proposed study plan. This early consultation 

process was intended to help an applicant and stakeholders identify issues and resolve 

conflicts that could potentially delay the development and processing of a license 

application.

Upon receipt of the NOI, PAD, and request to use the two-year process, the 

Commission issued notice of a technical conference to discuss the project with the 

applicant and stakeholders. The notice also solicited written comments on the PAD, 

proposed studies, and use of the pilot two-year process. Stakeholders were allowed 30 

days to provide comments. This comment period compressed both the scoping and study 

plan meeting process into a single technical teleconference and reduced the written 

comment periods from three29 to one that addressed both project scope and study needs.

Concurrent with Commission approval to use the pilot two-year process, the 

Director, Office of Energy Projects also made a determination about required studies. To 

 28 18 C.F.R. § 4.34(b) (2016).

29 Typically, written comments are accepted on the first scoping document, the 

proposed study plan, and the revised study plan.
AD13-9-000

B-11

maintain a two-year timeframe, all required studies needed to be short enough in duration 

to be completed within one year of the NOI and PAD filing. Reducing the timeline from 

two full study seasons to less than one significantly reduced the pilot two-year process’s 

pre-filing timeframe; however, it also required that sufficient existing information exist 

about project effects on resources to allow for rapid completion of any necessary studies.

Once approved to use the pilot two-year process, the applicant was expected to: 

(1) complete the required studies; (2) conduct informal consultation regarding threatened 

or endangered species, if necessary; (3) conduct any necessary consultation required by 

section 106 of the NHPA; (4) file for certification as required section 401 of the CWA; 

and (5) prepare a license application.

4. Post-filing

One year from the filing of the NOI, PAD, and request to use the pilot two-year 

process, an applicant was expected to file its final license application. To maintain the 

one-year post-licensing schedule, the approved process plan assumed no deficiencies and 

no need to issue AIRs. Commission staff was provided 30 days to review the license 

application and issue a combined acceptance and REA notice, which is compressed from 

30 days for acceptance and 60 days for REA in the ILP. The process plan also set a 180-

day timeframe for issuance of a single environmental document following the REA 

notice. The goal of the pilot two-year process was issuance of a license within two years 

of the NOI and PAD filing date. The Commission was required to fulfill all of its 

responsibilities under the FPA and other applicable statutes within the two-year 

timeframe. To the extent possible, the processes for meeting the Commission’s statutory 

responsibilities (e.g., section 401 of the CWA, ESA, and section 106 of the NHPA) were

expedited, with assistance from the implementing agencies.
AD13-9-000

This page intentionally left blank.
APPENDIX C

Copy of the May 27, 2014 Letter to Wild Flower Water, LLC regarding the request to test 

the two-year pilot process for the Wild Flower Water Pumped Storage Hydro Project 

(FERC No. 13842)
AD13-9-000

This page intentionally left blank.
AD13-9-000

C-1

APPENDIX C

FEDERAL ENERGY REGULATORY COMMISSION

Washington, D.C. 20426

May 27, 2014

OFFICE OF ENERGY PROJECTS

Project No. 13842-001– Oklahoma

Wild Flower Water Pumped Storage Project

Wild Flower Water, LLC

Mr. Fred Brown

Tomlin Infrastructure Group, LLC

4265 Kellway Circle

Addison, TX 75001

Reference: Application for Pilot Project to test Two-Year Licensing Process

Dear Mr. Brown: 

On May 1, 2014 you filed a Notice of Intent (NOI) to file a license application for 

the Wild Flower Water Pumped Storage Project and a request that the closed-loop 

pumped storage project be selected as a pilot project to test a two-year licensing process. 

You also filed a Pre-Application Document (PAD) to support your request. Based on 

staff’s review of the NOI and PAD, the proposed project does not meet the criteria set 

forth in our January 6, 2014 notice soliciting pilot projects. A detailed description of the 

deficiencies is provided in the enclosed Attachment A and summarized below. 

As explained in the January 6, 2014 notice and during our January 30, 2014 

teleconference, a pilot project must be a well-developed proposal as to project facilities 

and operation. However, your project proposal is not sufficiently developed because it 

only generally describes the project facilities and operations, and would not be a 

complete unit of development as defined by section 3(11) of the Federal Power Act. To 

be a complete unit of development, the project must include the project’s primary 

transmission line. Your proposed project does not include a primary transmission line, 

nor does it adequately describe how the project would connect to the distribution system. 

Instead, you propose that the project connect to the distribution system via a new 120-

mile-long, 340-kilovolt transmission line that would be constructed and operated by 

another entity, Oncor. 
AD13-9-000

C-2

In addition, to qualify as a two-year pilot, the proposal must show that the project 

would cause little to no change to environmental resources, would not be likely to 

adversely affect federally listed species, and would be located in areas where there is 

substantial existing information on environmental resources and effects. To support its 

request, the project proponent must also show that it has met with federal and state 

resource agencies, Indian tribes, non-governmental agencies, and the public regarding the 

project and the availability of existing information and the need for studies to supplement 

existing information. The information in the PAD is insufficient for staff to evaluate 

potential project effects on the environment or federally listed species. There is no 

documentation of consultation to gather existing information or discuss the project with 

interested parties, nor does the PAD propose studies to fill information gaps. Finally, to 

the very limited extent that the PAD shows Oncor’s proposed transmission line, there is 

no information describing environmental resources within the transmission line corridor, 

the effects of constructing and operating the transmission line, or whether interested 

agencies and the public are aware of this project feature.

Your filing indicates that if your project is rejected as a pilot project for the twoyear process, you intend to develop a license application using the integrated licensing 

process (ILP). If you choose to do so, you should be aware that the PAD is patently 

deficient and must be more fully developed to initiate the ILP. The PAD should enable 

entities to identify issues, develop study requests, and prepare documents analyzing any 

license application that may be filed. A specific list of deficiencies is enclosed as 

Attachment B. If you intend to file a license application for the project, you should refile 

your NOI and PAD only after resolving the deficiencies in the PAD described in the 

enclosed Attachment B.

Additional information that could assist you in preparing an acceptable PAD and 

conducting pre-filing consultation is available on the Commission’s website at 

http://www.ferc.gov/industries/hydropower/gen-info/licensing.asp. If you have any 

questions, please contact Monte TerHaar at (202) 502-6035 or monte.terhaar@ferc.gov.

Sincerely,

Jeff C. Wright

Director

Office of Energy Projects

Enclosures: Attachment A, Attachment B

cc: Public Files, 

Mailing List
C-3

ATTACHMENT A

TWO-YEAR LICENSING PROCESS CRITERIA CHECK LIST

Wild Flower Pumped Storage Project

Criterion Adequate Comments

(1) Demonstration that it meets the 

following criteria:

• The project must cause little to no 

change to existing surface and 

groundwater flows and uses.

Deficient By purchasing existing water withdrawal rights, and staging 

fill during high flow periods, the project is not likely to change 

existing surface water flows in the Kiamichi River. However, 

the proposed upper reservoir would be located on Long Creek, 

an intermittent stream. Because the Pre-Application 

Document (PAD) contains no information on the hydrology of 

Long Creek, we are unable to determine whether or not project 

operations would affect Long Creek flows. Ground water is 

not proposed to be used for initial fill or make-up water; 

however, indirect effects on groundwater may occur and are 

unknown at this time.

• The project must be unlikely to 

adversely affect federally listed 

threatened and endangered species.

Deficient The assertion that the project is unlikely to adversely affect 

federally listed species is unsubstantiated. Nine federally 

listed species occur in Pushmataha County where the project 

reservoir and powerhouse would be located and 10 occur in 

the Oklahoma and Texas counties crossed by the transmission 

line. Studies would be needed to determine the potential 

effect of the project on these species. Because the 

transmission line is 120 miles long, it is unlikely the necessary 

studies along the transmission line could be completed in time 

to file a license application within 1 year.

• If the project is to be located at or use N/A
AD13-9-000

C-4

a federal dam, the request must 

include a letter from the dam owner 

that the applicant’s plan of 

development is conceptually feasible.

• If the project would use any public 

park, recreation area, or wildlife 

refuge established under state or local 

law, the request must include a letter 

from the managing entity indicating 

its approval of the site’s use for 

hydropower development

Deficient Because the project would be located on private land, no 

public parks, recreation areas, or wildlife refuges would be 

affected. Inadequate information was provided to determine if 

public parks or recreation areas occur within the 120-milelong transmission line corridor.

• For a closed loop pumped storage 

project, the project must not be 

continuously connected to a 

naturally-flowing water feature

Adequate The project would not be continuously connected to the 

Kiamichi River. A pipeline between the Kiamichi River and 

the lower reservoir would supply the initial fill and periodic 

make-up water (needed due to evaporation and losses). 

(2) Documentation of Consultation, 

including summary of verbal comments and 

copy of written comments

Deficient The distribution list is incomplete and inconsistent; no 

documentation of consultation provided. 

(3) Copies of written comments from the 

affected federal and state agencies and 

Indian tribes regarding the availability of 

existing information and the need for studies 

to supplement the existing information, 

including the anticipated scope and duration 

of the studies

Deficient No copies of written comments from the agencies (or a 

statement that none were received) were provided. No 

specific studies were identified or proposed.

(4) A PAD and Proposed Study Plan that 

meet the content requirements of 18 CFR § 

5.6 and 5.11, respectively. The PAD must 

include a defined and well-developed 

Deficient The PAD does not meet the requirements of 18 CFR § 5.6 

because: (1) it is unclear whether the PAD was distributed to 

appropriate agencies, tribes, and members of the public likely 

to be interested in the proceeding, particularly as it relates to 
AD13-9-000

C-5

project proposal. If a prospective 

applicant determines that a Proposed Study 

Plan is not needed, then the prospective 

applicant must demonstrate that the PAD 

contains sufficient information to address its 

list of potential environmental effects for 

environmental analysis.

the transmission line; (2) the description of existing 

information is sparse and does not demonstrate due diligence 

in obtaining available information; and (3) elements of the 

project and project operation are not adequately described. 

The PAD does not meet the requirements of 18 CFR § 5.11 

because there are no proposed studies. The applicant instead 

proposes to consult with the agencies to define information 

needs or mitigation measures to address effects.

The PAD does not include a well-developed proposal because 

(1) the project as proposed would not be a complete unit of 

development, as it would rely on another party (Oncor) to 

construct and operate the 120-mile-long transmission line that 

would connect the project to the grid; (2) there is no 

description of the transmission line; and (3) there is no 

description of the intake weir or conduit that would be used 

divert water from the Kiamichi River to the lower reservoir for 

initial fill and make-up water. 

(5) List of potential environmental effects, 

including effects on geologic, aquatic, 

terrestrial, recreational, and cultural 

resources, as applicable

Deficient The PAD does not discuss potential environmental effects. 

Rather, it provides an incomplete list of questions which 

warrant further consideration.

(6) A process plan and schedule. Deficient The applicant states it will follow the process plan and 

schedule described in the January 6, 2014 Notice. However, 

the specific timeframe and dates are not described. We are 

unable to determine if the interested parties are fully aware of 

the timeframe under the proposal. 
AD13-9-000

C-6

Attachment B

Pre Application Document (PAD) Adequacy Review Checklist

PURSUANT TO 18 CFR § 5.6

Wild Flower Pumped Storage Project (P-13842) 

SUBJECT ADEQUATE COMMENTS

§ 5.6 (d)(1) - Process plan and schedule

Timeframes for pre-application consultation, 

information gathering, and studies

Deficient The applicant states it will follow the process plan and 

schedule described in the January 6, 2014 Notice. 

However, the specific timeframe and dates are not 

described. We are unable to determine if the interested 

parties are fully aware of the timeframe under the 

proposal. If an ILP is pursued, the timeline would need 

to be revised to reflect the requirements of § 5.6 (d)(1).

Proposed location and date for scoping meeting 

and for the site visit § 5.8 (b)(3)(viii)

N/A Not required in an application for the two-year 

licensing process. If an ILP is pursued, a proposed 

location(s) and date for a scoping meeting and site visit 

would need to be identified.

§ 5.6 (d)(2) - Project location, facilities, and 

operations

(i) Contact information for applicant’s agents 

(name, address and phone numbers)

Adequate

(ii) Maps of land use within project boundaries 

(township, range and section, state, county, 

river, river mile, and closest town) and, if 

applicable, Federal and Tribal lands, and 

Deficient The PAD does not provide a detailed map(s) showing: 

(a) the location of Long Creek with respect to proposed 

project facilities; and (b) the location of the pipeline 

that is being proposed to provide make-up water to the 
AD13-9-000

C-7

SUBJECT ADEQUATE COMMENTS

location of proposed facilities reservoirs, and the location of other associated 

structures for filling and refilling the reservoirs (e.g., 

any in-channel weir, or off-channel wet well that might 

be proposed). The project boundary drawing and 

description does not include the proposed 120-milelong transmission line. All primary transmission lines 

should be included in the project boundary. 

(iii) Detailed description of proposed facilities

(A) Composition, dimensions, and 

configuration of dams, spillways, penstocks, 

powerhouses, tailraces, etc.

(B) Reservoir area, gross and usable capacity, 

and elevation.

(C) Number, type and capacities of turbines 

and generators, and installed (rated) capacity of 

proposed turbines or generators

(D) Transmission line numbers, lengths, 

voltage, and interconnections (including 

diagrams) 

(E) Energy production (estimate of dependable 

capacity, average annual, and average monthly 

energy production)

Deficient

Adequate

Adequate

Deficient

Deficient

The upper and lower reservoirs are generally described. 

There is no description of the proposed conduit which 

would transport fill water and make-up water from the 

river to the lower reservoir. 

There is no description of the transmission line. It’s not 

clear what portion of the transmission line would be 

part of the FERC project. It is not clear where it would 

interconnect with the grid.

Only average annual generation is provided.

(iv) Current and proposed project operation Deficient The PAD does not provide a detailed description of 
AD13-9-000

C-8

SUBJECT ADEQUATE COMMENTS

proposed project operation. This description should 

include the estimated extent, frequency, and duration of 

fluctuations in reservoir elevations so that staff can 

analyze potential environmental effects.

Information provided by applicants when there is an existing license

(v) Existing license and project operations (if 

applicable) 

N/A

(1) Description of current license requirements

(2) Generation and outflow records (5 years)

(3) Current net investment

(4) Project compliance history

Information provided by all applicants

(vi) Description of proposed physical and 

operational changes to project

N/A

§ 5.6 (d)(3) - Existing environment and 

resource impacts (based on existing, relevant 

and reasonably available information)

(A) Description of existing environment (See 

ii-xiii)

Deficient The PAD does not provide much detail on the existing 

environment, or evidence of due diligence to acquire 

existing information, such as a detailed consultation 

record. 

(B) Summaries of existing data or studies Deficient The PAD does not reflect some reasonably available 

sources of this information (e.g., national wetland 

inventory maps, Oklahoma and Texas SHPO web-based 

data, and FWS endangered species recovery plans). 

(C) Potential adverse impacts and issues related 

to project construction, operation, or 

maintenance 

Deficient The PAD does not discuss in adequate detail potential 

adverse environmental impacts and issues related to 

project construction, operation, or maintenance. 
AD13-9-000

C-9

SUBJECT ADEQUATE COMMENTS

Rather, the PAD provides a list of issues for further 

consideration. The applicant proposes to conduct 

studies as necessary to quantify potential effects (e.g. to 

water resources, fish and aquatic resources, wildlife and 

botanical resources, wetlands, and riparian and littoral 

habitat), but does not define those studies.

(D) Existing or proposed resource protection 

and mitigation measures (facilities, operations, 

and management activities)

Adequate

§ 5.6 (d)(3)(ii) - Geology, topography, and 

soils (descriptions and maps)

(A) Description of geological features, 

including bedrock lithology, stratigraphy, 

structural features, glacial features, 

unconsolidated deposits, and mineral resources

Adequate

(B) Description of soil types, occurrence, 

physical and chemical characteristics, 

erodability and potential for mass soil 

movement, and soil characteristics

Adequate

(C) Description of reservoir shorelines and 

stream banks, including

(1) Steepness, composition, and vegetative 

cover

(2) Existing soil instability

Deficient The PAD does not provide a description of the 

proposed reservoirs’ shorelines and stream banks, 

including the steepness, composition, vegetative cover, 

and existing soil instability.

§ 5.6 (d)(3)(iii) - Water resources (quality and 

quantity) 

Deficient The PAD does not fully describe the water resources of 

the proposed project and surrounding area. 

Components of the description not included in the PAD, 
AD13-9-000

C-10

SUBJECT ADEQUATE COMMENTS

include: (a) the quantity and quality of water in Long 

Creek; (b) the drainage area of the project at the 

location where water will be withdrawn and/or diverted 

from the Kiamichi River to fill and refill the reservoirs; 

(c) the monthly minimum, mean, and maximum 

recorded flows (in cubic feet per second) of the 

Kiamichi River at the location where water will be 

withdrawn and/or diverted from the Kiamichi River to 

fill and refill the reservoirs; (d) monthly flow duration 

curves for the Kiamichi River, indicating the period of 

record and the location and identification number(s) of 

gauging station(s), used in deriving the curves; and (e) 

any federally-approved water quality standards 

applicable to project waters. The PAD did not provide 

evidence of due diligence in acquiring this information, 

or a statement indicating that were not able to find such 

information after soliciting it from the agencies and 

other sources.

(A) Drainage area

(B) Adjusted minimum, mean, and maximum 

recorded flows at powerplant intake or 

diversion

(C) Monthly flow duration curves and critical 

stream flow used to determine the project’s 

dependable capacity

(D) Existing and proposed water uses and 

upstream or downstream requirements
AD13-9-000

C-11

SUBJECT ADEQUATE COMMENTS

(E) Existing instream flow uses and water 

rights

(F) Relevant federally-approved water quality 

standards

(G) Project effects on seasonal variation of 

water quality data, including

The PAD indicates that there are no readily available 

surface water quality data for streams “running off” the 

proposed Wild Flower Project. Although the Kiamichi 

River does not “run off” of the proposed project area, 

the proposal to withdraw and/or divert water from the 

Kiamichi River could affect this body of water. 

Therefore, the PAD is deficient because it does not 

describe the seasonal variation of existing water quality 

data for the Kiamichi River, including, as appropriate, 

information on water temperature and dissolved 

oxygen, and other physical and chemical parameters 

such as total dissolved oxygen, pH, total hardness, 

specific conductance, chlorophyll a, suspended 

sediment concentrations, total nitrogen, total 

phosphorus, and fecal coliform (E. coli) concentrations. 

The PAD did not provide evidence of due diligence in 

acquiring this information, or a statement indicating 

that were not able to find such information after 

soliciting it from the agencies and other sources.

(1) Water temperature and dissolved oxygen

(2) Other physical and chemical parameters 

(H) Existing or proposed lake and reservoir 

information (surface area, volume, maximum 
AD13-9-000

C-12

SUBJECT ADEQUATE COMMENTS

depth, mean depth, flushing rate, shoreline 

length, substrate composition)

(I) Gradient for affected downstream reaches

§ 5.6 (d)(3)(iv) - Fish and aquatic resources: 

description and impacts

Deficient The PAD describes the biology, habitat, and 

distribution of three federally endangered mussels. 

However, the PAD is deficient because it does not 

describe the fish and other aquatic resources, including 

invasive species, in the project vicinity. Components of 

the description must include: (a) identification of 

existing fish and aquatic communities; (b) temporal and 

spatial distribution of fish and aquatic communities; and 

(c) any known or potential upstream or downstream 

impacts of the project on the aquatic community. The 

PAD did not provide evidence of due diligence in 

acquiring this information, or a statement indicating 

that were not able to find such information after 

soliciting it from the agencies and other sources.

(A) Identification of existing fish and aquatic 

communities

(B) Identification of essential fish habitat

(C) Temporal and spatial distribution of fish 

and aquatic communities and trends with 

respect to:

(1) Species life stage composition

(2) Standing crop

(3) Age and growth data

(4) Spawning run timing
AD13-9-000

C-13

SUBJECT ADEQUATE COMMENTS

(5) Extent and location of spawning, rearing, 

feeding, and wintering habitat

§ 5.6 (d)(3)(v) - Wildlife and botanical 

resources including invasive species

Deficient The PAD provides broad descriptions of ecological 

systems/habitat types in the project vicinity, but it is 

unclear what wildlife and botanical resources, including 

invasive species occur within the proposed project 

boundary. The PAD did not provide evidence of due 

diligence in acquiring this information, or a statement 

indicating that were not able to find such information 

after soliciting it from the agencies and other sources.

(A) Description of upland habitat(s) and plant 

and animal species that use the habitat(s).

(B) Temporal or special distribution of 

commercially, recreationally, or culturally 

important species

Other than mentioning a few common fish species in 

the project vicinity, the PAD does not provide the 

temporal or special distribution of commercially, 

recreationally, or culturally important species. The 

PAD did not provide evidence of due diligence in 

acquiring this information, or a statement indicating 

that were not able to find such information after 

soliciting it from the agencies and other sources.

§ 5.6(d)(3)(vi) Description of floodplains, 

wetlands, riparian, and littoral habitat

Deficient The PAD states that there is no riparian, wetland, or 

littoral habitat identified within the proposed project 

boundary. However it is not clear how this conclusion 

was reached. On the U.S. Fish and Wildlife Service’s 

(FWS’) National Wetland Inventory (NWI), it appears 

that forested and scrub-shrub wetlands do occur within 

the proposed project boundary.

(1) List of plant and animal species using the The PAD does not provide a list of plant and animal 
AD13-9-000

C-14

SUBJECT ADEQUATE COMMENTS

habitat species using the habitat (presumably because no 

wetland habitat within the project boundary exists).

(2) Map of wetlands, riparian and littoral 

habitat

The PAD includes a table of wetlands instead of a map; 

therefore we cannot determine where the wetlands are 

located in relation to the project or potential project 

effects on these habitats. The maps of the proposed 

120-mile-long transmission line do not show wetlands. 

Wetland data and maps are readily available on FWS’ 

NWI website. 

(3) Acreage estimate for each type of wetland 

riparian and littoral habitat, including 

variability in availability as a function of 

storage at a project not operated in run-of-river 

mode

The PAD does not provide acreage estimates for each 

type of wetland.

§ 5.6 (d)(3)(vii) - Rare, threatened, and 

endangered species 

(A) Description of listed rare, threatened and 

endangered, candidate, or special status species 

in the project vicinity. 

Adequate

(B) Identification of habitat requirements Adequate

(C) References to known biological opinion, 

status reports, or recovery plans pertaining to a 

listed species

Deficient The PAD does not provide references to known 

biological opinions, status reports, or recovery plans 

pertaining to any of the listed species potentially 

occurring in the project area. For example, there are 

recovery plans for all three mussels that may occur in 

the vicinity of the project weir, the whooping crane, 

interior least tern, red-cockaded woodpecker, and the 

American burying beetle. 
AD13-9-000

C-15

SUBJECT ADEQUATE COMMENTS

(D) Extent and location of federally-designated 

critical habitat or other habitat for listed species 

Adequate

(E) Temporal and spatial distribution of the 

listed species

Deficient The PAD describes the large-scale spatial distribution 

of the Ouachita rock pocketbook mussel, scaleshell 

mussel, and winged mapleleaf mussel in the United 

States and Oklahoma; however, the PAD is deficient 

because it does not describe the temporal and spatial 

distribution of these species within the project vicinity, 

specifically the Kiamichi River. A google search found 

a survey report published in 2008 documenting two 

listed mussels 22 to 30 miles downstream of the project

§ 5.6 (d)(3)(viii) - Recreation and land use

(A) Description and illustration of existing 

recreational facilities, uses, location, 

ownership, capacity and management

Deficient The PAD states there are no existing recreation 

facilities in the project area, but it is not clear if the 

applies to the 120-mile-long transmission corridor.

(B) Recreational use of lands and waters 

compared to facility or resource capacity

N/A

(C) Existing shoreline buffer zones N/A

(D) Current and future recreation needs from 

existing state or regional plans

Deficient The PAD references the Oklahoma State Outdoor 

Recreation Plan but does not discuss future recreation 

needs based on the information in the plan. The PAD 

did not provide evidence of due diligence in acquiring 

this information, or a statement indicating that were not 

able to find such information after soliciting it from the 

agencies and other sources.

(E) Existing shoreline management policies N/A

(F) Project’s location within or adjacent to a 

river segment that is:
AD13-9-000

C-16

SUBJECT ADEQUATE COMMENTS

(1) Designated or under study for inclusion in 

the National Wild and Scenic River system

(2) A state-protected river segment

Deficient The PAD states that there are no specially-designated 

lands within the project boundary, but it is uncertain if 

the applicant considered the 120-mile-long transmission 

corridor.

(G) Description of project lands under study for 

inclusion in the National Trails System or as a 

Wilderness Area

(H) Regionally or nationally important 

recreation areas

Adequate

(I) Non-recreational land use and management 

within the project boundary

Adequate

(J) Recreational and non-recreational land use 

and management adjacent to the project 

boundary

§ 5.6 (d)(3)(ix) – Aesthetic Resources Adequate

 Description of the visual characteristics of 

facilities, 

 affected lands, and affected waters

§ 5.6 (d)(3)(x) - Cultural Resources

(A) Identification of any historic or 

archaeological site in the proposed project 

vicinity especially those listed in or 

recommended for the National Register of 

Historic Places

Deficient The PAD does not provide any information regarding 

historical or archeological resources nor does it provide 

evidence of consultation with the Oklahoma Historical 

Society, the Oklahoma Archeological Survey, or the 

Texas Historical Commission regarding cultural 

resources within the project’s area of potential effects 

(including the proposed transmission line corridor).
AD13-9-000

C-17

SUBJECT ADEQUATE COMMENTS

(B) Description of existing discovery measures 

for locating, identifying, and assessing the 

significance of resources

Deficient The PAD provides no information about efforts to 

locate, identify, or assess cultural resources at the site. 

Preliminary information can easily be located by 

searching the public databases managed by the 

Oklahoma SHPO (http://www.seic.okstate.edu/shpo/) 

or the Texas SHPO 

(http://www.thc.state.tx.us/preserve/texas-historic-sitesatlas).

(C) Identification of Indian tribes that may 

attach religious and cultural significance to 

historic properties, and available information 

on Indian traditional cultural and religious 

properties.

Deficient The PAD identifies the Choctaw Nation of Oklahoma 

and the Chickasaw Nation as having interest in 

Pushmataha County. However, the Quapaw Tribe of 

Oklahoma is also listed in the National Park Service’s 

Indian Land Cessions 1784-1894 as having historic 

interest in Pushmataha, Choctaw, and Bryan counties in 

Oklahoma and should be consulted.

§ 5.6 (d)(3)(xi) - Socio-economic resources Deficient The PAD does not describe existing socioeconomic 

conditions in the project vicinity. There is minimal

information on the effect of the project on local 

socioeconomic resources.

Description of socio-economic conditions in 

the project vicinity including patterns of land 

use and population and sources of employment

§ 5.6 (d)(3)(xii) - Tribal Resources The PAD identifies the Choctaw Nation of Oklahoma 

and the Chickasaw Nation as having interest in 

Pushmataha County. The Quapaw Tribe of Oklahoma 

is also listed in the National Park Service’s Indian Land 
AD13-9-000

C-18

SUBJECT ADEQUATE COMMENTS

Cessions 1784-1894 as having historic interest in 

Pushmataha, Choctaw, and Bryan counties in 

Oklahoma. 

(A) Identification of how existing project 

construction and operations, and their affects 

(on water resources, fish and aquatic resources, 

wildlife and botanical resources, wetland, rare 

species, recreation and land use, aesthetic 

resources, cultural resources and socioeconomic resources) may impact tribal cultural 

or economic interests

Adequate

(B) Identify other impacts of existing projects 

on Indian tribes

§ 5.6 (d)(3)(xiii) - Description of river basin 

and sub-basin including information on:

(A) Area of river basin and sub-basin and 

length of stream reaches

Adequate

(B) Major land and water use in project area Adequate

(C) All dams and diversion structures Adequate

(D) Potentially affected tributary rivers and 

streams

Deficient The transmission line would cross over 62 

rivers/streams which were not identified in the PAD.

§ 5.6 (d)(4) - Preliminary issues and studies list 

for each resource area

Deficient The PAD includes a general list of preliminary issues, 

but no studies or list of studies that would be conducted. 

(i) Issues pertaining to the identified resources Page 10 of the PAD states that the proposed project is 

unlikely to adversely affect federally or state listed 

species. This conclusion is premature because the PAD 

does not provide any support for this statement. On 
AD13-9-000

C-19

SUBJECT ADEQUATE COMMENTS

page 67 of the PAD the applicant quotes a local FWS 

representative who states that “evidence of federally 

listed species (especially the Ouachita rock pocketbook) 

may be encountered in the project area, and ‘a 

determination of the effects of the proposed project on 

state and federally listed threatened and endangered 

species’ would be required.”

(ii) Potential studies and information gathering 

requirements

(iii) Relevant Federal, state or tribal waterway 

plans

(iv) Relevant resource management plans The PAD did not provide information about relevant 

resource management plans. The PAD did not provide 

evidence of due diligence in acquiring this information,

or a statement indicating that were not able to find such 

information after soliciting it from the agencies and 

other sources.

§ 5.6 (d)(5) - Summary of contacts used to 

prepare the PAD including: 

Deficient The PAD mentions agency consultation in various 

places but did not provide copies of letters documenting 

this consultation.

Federal, state and interstate resource agencies

Indian tribes

Non-governmental organizations and members 

of the public

§ 5.6 (e) PURPA Benefit – List if the PURPA 

benefits are sought 

Adequate No benefits sought.

ADDITIONAL COMMENTS:
AD13-9-000

This page intentionally left blank.
AD13-9-000

APPENDIX D

Copy of the Process Plan and Schedule for the Pilot Two-Year Process: Kentucky River 

Lock & Dam No. 11 Hydroelectric Project (FERC No. 14276)
AD13-9-000

This page intentionally left blank.
AD13-9-000

D-1

APPENDIX D

KENTUCKY RIVER LOCK & DAM NO. 11 HYDROELECTRIC 

PROJECT (FERC No. 14276)

PROCESS PLAN AND SCHEDULE

(if a due date falls on a weekend or holiday, the due date is the following business day)

Responsible

Party Action or Milestone Description Time

Target 

Deadline Actual Date

Pre-filing Milestones

Rye Prior to filing a request to use a 

two-year pilot process, prospective 

applicants must meet with 

Commission staff to discuss the 

nature of the project, the status of 

the applicant’s consultation efforts, 

and the status of the applicant’s 

efforts in obtaining the information 

described below. 

Prospective applicant files a request 

to use a pilot two-year process; and

a pre-application document,

including a detailed project 

description, a list of potential 

environmental effects for 

environmental analysis, a proposed 

study plan with schedule, and 

certification that the prospective 

applicant has met with the affected 

federal and state resource and land 

management agencies to discuss its 

project proposal.

0 May 5, 2014 May 5, 2014

Commission 

staff

Issue notice of request to use the 

pilot two-year process, and notice 

of public technical meeting to 

discuss the two-year pilot process 

proposal (if needed); or issue a 

letter rejecting the pilot process 

30 

days

June 4, 2014 June 3, 2014
AD13-9-000

D-2

Responsible

Party Action or Milestone Description Time

Target 

Deadline Actual Date

request if the request does not meet 

the criteria or filing requirements, 

or if the request is otherwise 

deficient pursuant to the 

instructions in this notice.

Commission 

staff, Rye, 

and 

interested 

parties

Hold public technical meeting to 

discuss the proposed pilot process 

(if needed, as determined by 

Commission staff).

45 

days

June 19, 2014 June 19, 2014

Commission 

staff

Issue determinations on the request 

to use the pilot process, study plan, 

and environmental effects list; and 

if the pilot process is approved, 

designate the applicant to conduct 

informal section 106 of the NHPA 

and section 7 of the ESA 

consultations, as needed.

90 

days

August 3, 2014 August 4, 2014

Rye Complete studies, and apply for 

water quality and coastal zone 

certifications.1

270 

days

January 30, 

2015

January 30,

February 25, 

March 31,

April 1, 

April 16, 

and 

May 6, 20152

 1

 The Commonwealth of Kentucky does not have a Coastal Zone Management 

Act program; therefore, the Kentucky River Lock & Dam No. 11 Hydroelectric Project is 

not located within a state-designated coastal management zone.

2

 As described in section II of this report, Rye requested, and was granted 

extensions of time to file its various study reports and proof of application for water 

quality certification.
AD13-9-000

D-3

Responsible

Party Action or Milestone Description Time

Target 

Deadline Actual Date

Post-filing Milestones

Rye File license application.3 1 

year

May 5, 2015 April 16, 20154

Commission 

staff

Review license application and 

issue deficiency or additional 

information letter, if necessary.

395 

days

June 4, 2015 June 12 and 

July 29, 2015

Commission 

staff

Issue combined acceptance and 

ready for environmental analysis 

(REA) notice.

425 

days

July 4, 2015 September 25, 

2015

Interested 

parties

File comments, recommendations, 

preliminary terms and conditions.

485 

days

September 2, 

2015

November 16, 

November 20, 

and December 

9, 2015

Kentucky 

DEP

File draft water quality certification 

conditions.

485 

days

September 2, 

2015

January 29, 

2016

Rye File reply comments. 500 

days

September 

17, 2015

Commission 

staff

Issue EA and draft PA, section 

10(j) letter, and section 7 ESA 

informal consultation letter, as 

necessary.

605 

days

December 31, 

2016

February 12, 

2016

 3 The filing of the license application and license application content requirements 

should be consistent with the Commission’s existing regulations, including 18 C.F.R. 

§§ 5.17 and 5.18, except as otherwise stipulated in the approved process plan and 

schedule, or other Commission issuance for the proposed pilot process. As a reminder, 

all of an applicant's proposed measures and plans to protect, mitigate, or enhance 

environmental resources must be provided by the time the license application is filed 

(18 C.F.R. § 5.18(b)(5)(ii)(C)). Measures that contain sensitive information (e.g., the 

location of an archaeological site) should be submitted separately and marked "Not for 

Public Disclosure” (18 C.F.R. § 388.107 (c)).

4

 Supplemental filings to address application deficiencies and additional 

information requests are described in section III.
AD13-9-000

D-4

Responsible

Party Action or Milestone Description Time

Target 

Deadline Actual Date

Interested 

parties

File comments on EA and draft PA, 

final terms and conditions, water 

quality certification, and response 

to section 10(j) and informal ESA 

consultation letters.

635 

days

January 30, 

2016

March 9, March 

10, and March 

11, 2016

Commission 

staff

Issue final PA and hold section 

10(j) meeting, if necessary.

655 

days

February 19, 

2016

April 22, 2016

Commission 

staff

Issue decision on the license 

application.

May 5, 2016 May 5, 2016
AD13-9-000

APPENDIX E

Summary of Progress on Pre-Construction and Operation License Requirements for the 

Kentucky River Lock & Dam No. 11 Hydroelectric Project (FERC No. 14276)
AD13-9-000

This page intentionally left blank.
AD13-9-000

E-1

APPENDIX E

Summary of Progress on Pre-Construction and Operation License Requirements 

for the Kentucky River Lock & Dam No. 11 Hydroelectric Project 

(FERC No. 14276)

Since license issuance on May 5, 2016, Rye has begun to fulfill the requirements 

of its license for the Kentucky L&D 11 Project. Some of the license requirements must 

be completed before Rye can be approved to begin construction and/or operation of the 

project. These pre-construction and operation requirements, the due dates, extension of 

time (EOT) requests, and Rye’s progress towards completing each requirement are 

summarized below.

Timing and Status of Pre-Construction and Operation License Requirements for the 

Kentucky L&D 11 Project.

1

Article No. and Name Original Due Date Current Status

 Administrative Articles (200 Series)

Approved Exhibit 

Drawings 

(article 202)

Within 45 days of license 

issuance (June 9, 2016)

June 9, 2016 – Response filed

June 13, 2016 – Drawings filed

Documentation of 

Project Financing 

(article 204)

At least 90 days before 

starting construction

Response not yet filed

Project Land Rights 

Progress Report 

(article 206)

No later than 4 years after 

license issuance 

(May 5, 2020)

Response not yet filed

 Dam Safety Articles (300 Series)

Start of Construction 

(article 301)

Within 2 years from 

license issuance (May 5, 

2018); and completion of 

construction within 5 years 

from license issuance 

(May 5, 2021)

Pending approval of construction

 1

 This table includes status updates based on filings and issuances through May 

24, 2017, but it does not include all articles included in the license for the project. The 

articles discussed in this table are those that would affect timing of project construction or 

commencement of operations. See Rye license order for a complete listing of license

requirements.
AD13-9-000

E-2

Article No. and Name Original Due Date Current Status

Contract Plans and 

Specifications2

(article 302)

At least 60 days prior to 

the start of any 

construction

Response not yet filed

Cofferdam Construction 

Drawings and Deep 

Excavation 

(article 303)

At least 30 days before 

starting construction of any 

cofferdams or deep 

excavations

Response not yet filed

Inspection by 

Independent Consultant 

(article 304)

Within two years of the 

issuance date of the license 

(May 5, 2018)

Response not yet filed

Project Owner’s Dam 

Safety Program 

(article 305)

Within 90 days of the 

issuance date of the license 

(August 3, 2016; then 

December 14, 2016)

- August 18, 2016 – Filed draft program

- September 28, 2016 – Staff commented 

on draft program

- December 6, 2016 – Filed revised 

program

- May 24, 2017 – Program accepted

Public Safety Plan 

(article 306)

At least 60 days prior to 

the start of construction

Response not yet filed

Proof of Adequate 

Property Rights 

(article 307)

Within 90 days of the date 

of this license 

(August 3, 2016; extended 

to November 1, 2016)

- August 18, 2016 – Filed request for 

180-day EOT

- September 19, 2016 – Staff granted 

(reduced) 90-day EOT to facilitate timely 

dam safety inspections

- October 17, 2016 – Filed subpart A 

- Pending Requirements: File subpart B.

 Environmental Articles (400 Series)

Operation Compliance 

Monitoring Plan 

(article 402)

Within one year of the 

issuance date of the license 

(May 5, 2017; extended to 

August 3, 2017)

- April 5, 2017 – Filed request for 90-day 

EOT

- April 28, 2017 – Staff granted EOT

 2

 The contract plans and specifications article includes requirements for a Quality 

Control and Inspection Program, Temporary Construction Emergency Action Plan, and 

Soil Erosion and Sediment Control Plan.
AD13-9-000

E-3

Article No. and Name Original Due Date Current Status

Sediment Contaminant 

Testing and Solid Waste 

Disposal Plan 

(article 403)

Within 6 months of license 

issuance

(November 5, 2016; for the

final Solid Waste Disposal 

Plan, due date extended to 

December 8, 2017)

- November 7, 2016 – Filed plan

- December 08, 2016 – Staff approved

plan 

- Pending Requirements: (1) finalize its 

contaminant testing methodology in 

consultation with resource agencies; 

(2) prepare and file, for Commission 

approval, a more detailed Solid Waste 

Disposal Plan; and (3) implement the plan

after approvals for construction.

Post-Construction 

Erosion Monitoring 

Plan 

(article 404)

Within one year of the 

issuance date of the license 

(May 5, 2017)

Response not yet filed

Spill Prevention, 

Containment, and 

Countermeasures Plan 

(article 405)

Within 6 months of license 

issuance

(November 5, 2016)

- November 7, 2016 – Filed draft plan,

with request for 60-day EOT

- March 2, 2017 – Staff approved plan

- Pending Requirements: Implement plan 

after approvals for construction.

Water Quality 

Monitoring Plan 

(article 406)

Within 6 months of license 

issuance

(November 5, 2016; 

extended to January 7, 

2017)

- November 7, 2016 – Filed draft plan,

with request for 60-day EOT

- November 23, 2016 – Filed final plan

- November 30, 2016 – Staff granted EOT

- February 15, 2017 – Staff modified and 

approved plan

- Pending Requirements: Implement plan 

after approvals for construction and 

operation.

Trashrack Design and 

Maintenance Plan 

(article 407)

Within 6 months of license 

issuance

(November 5, 2016; 

extended to January 7, 

2017)

- November 7, 2016 – Filed draft plan,

with request for 60-day EOT

- November 30, 2016 – Staff granted EOT

- December 9, 2016 – Filed final plan

- March 15 , 2017 – Staff approved plan

- Pending Requirements: Implement plan 

after approvals for construction.
AD13-9-000

E-4

Article No. and Name Original Due Date Current Status

Revegetation and NonNative Invasive Species 

Management Plan 

(article 409)

Within 6 months of license 

issuance

(November 5, 2016)

- November 7, 2016 – Filed plan

- February 15, 2017 – Staff modified and 

approved plan

- Pending Requirements: Implement plan

after approvals for construction. 

Avian Protection Plan 

(article 410)

Within 6 months of license 

issuance

(November 5, 2016; 

final plan due within 90 

days of after determining 

the specific voltage of the 

proposed overhead 

transmission line)

- November 3, 2016 – Filed plan

- January 27, 2017 – Staff modified and 

approved plan

- Pending Requirements: (1) finalize 

project design, including the transmission 

line voltage; (2) prepare and submit a final

plan with voltage-specific measures to 

FWS and Kentucky DFWR for review 

and comment; (3) file final plan with the 

Commission for approval; and 

(4) implement plan.

Endangered Species 

Protection Plan3 

(article 411)

Within 6 months of license 

issuance (November 5, 

2016; pre-construction 

surveys to be conducted at

least 90 days prior to the 

start of any grounddisturbing or land-clearing 

activities; final survey 

report to be filed with the 

Commission by the end of 

August 2017)

- November 3, 2016 – Filed plan

- February 22, 2017 – Staff approved plan

- Pending Requirements: (1) conduct preconstruction surveys for endangered 

species; (2) prepare and submit a survey 

report to FWS and Kentucky DFWR;

(3) file final survey report with the 

Commission; and (4) implement plan to 

avoid effects to endangered species during 

project construction and operation.

 3

 This plan consolidates measures related to federally listed species into a separate 

plan, rather than being combined with Rye’s proposed transmission line corridor 

management plan.
AD13-9-000

E-5

Article No. and Name Original Due Date Current Status

Revised Recreation 

Resources Management 

Plan 

(article 412)

Within 6 months of license 

issuance

(November 5, 2016; 

extended to January 7, 

2017)

- November 7, 2016 – Filed draft plan,

with request for 60-day EOT

- November 21, 2016 – Staff approved 

60-day EOT

- January 3, 2017 – Filed revised plan

- May 10, 2017 – Staff approved plan,

with modifications.

- Pending Requirement: Implement plan.

Programmatic 

Agreement and Historic 

Properties Management 

Plan

(article 414)

File the HPMP, for 

Commission approval 

within one year of license 

issuance (May 5, 2017).

- March 6, 2017 – Filed final HPMP

- Pending Requirements: Additional 

Information Request issued by 

Commission on April 4, 2017; acceptance 

of HPMP pending documentation of 

Kentucky SHPO concurrence.