RM19-6-000 NOPR (published)

Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules
(e) Reason
This AD was prompted by an event where
the airplane did not respond to the
flightcrew’s flight control inputs because the
pitch trim switches did not disconnect the
autopilot. We are issuing this AD to address
events where the airplane does not respond
to the flightcrew’s flight control inputs
because the autopilot remains engaged,
possibly resulting in loss of control of the
airplane.
(f) Compliance
Comply with this AD within the
compliance times specified, unless already
done.
(g) Modification
Within 3,000 flight hours or 24 months
after the effective date of this AD, whichever
occurs first: Modify the wiring for the
autopilot disconnect logic, in accordance
with the Accomplishment Instructions of
Saab Service Bulletin 2000–22–008, dated
June 15, 2018.
(h) Other FAA AD Provisions
The following provisions also apply to this
AD:
(1) Alternative Methods of Compliance
(AMOCs): The Manager, International
Section, Transport Standards Branch, FAA,
has the authority to approve AMOCs for this
AD, if requested using the procedures found
in 14 CFR 39.19. In accordance with 14 CFR
39.19, send your request to your principal
inspector or local Flight Standards District
Office, as appropriate. If sending information
directly to the International Section, send it
to the attention of the person identified in
paragraph (i)(2) of this AD. Information may
be emailed to: [email protected]. Before using any
approved AMOC, notify your appropriate
principal inspector, or lacking a principal
inspector, the manager of the local flight
standards district office/certificate holding
district office.
(2) Contacting the Manufacturer: For any
requirement in this AD to obtain corrective
actions from a manufacturer, the action must
be accomplished using a method approved
by the Manager, International Section,
Transport Standards Branch, FAA; or the
European Aviation Safety Agency (EASA); or
Saab AB, Saab Aeronautics’ EASA Design
Organization Approval (DOA). If approved by
the DOA, the approval must include the
DOA-authorized signature.

(i) Related Information
(1) Refer to Mandatory Continuing
Airworthiness Information (MCAI) EASA AD
2018–0240, dated November 7, 2018, for
related information. This MCAI may be
found in the AD docket on the internet at
http://www.regulations.gov by searching for
and locating Docket No. FAA–2018–1067.
(2) For more information about this AD,
contact Shahram Daneshmandi, Aerospace
Engineer, International Section, Transport
Standards Branch, FAA, 2200 South 216th
St., Des Moines, WA 98198; telephone and
fax: 206–231–3220.
(3) For service information identified in
this AD, contact Saab AB, Saab Aeronautics,
SE–581 88, Linko¨ping, Sweden; telephone
+46 13 18 5591; fax +46 13 18 4874; email
[email protected];
internet http://www.saabgroup.com. You
may view this service information at the
FAA, Transport Standards Branch, 2200
South 216th St., Des Moines, WA. For
information on the availability of this
material at the FAA, call 206–231–3195.
Issued in Des Moines, Washington, on
January 28, 2019.
Michael Kaszycki,
Acting Director, System Oversight Division,
Aircraft Certification Service.
[FR Doc. 2019–01243 Filed 2–6–19; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 7
[Docket No. RM19–6–000]

Hydroelectric Licensing Regulations
Under the America’s Water
Infrastructure Act of 2018
Federal Energy Regulatory
Commission, Department of Energy.
ACTION: Notice of proposed rulemaking.
AGENCY:

Pursuant to the America’s
Water Infrastructure Act, the Federal
Energy Regulatory Commission
(Commission) is proposing rules to
establish an expedited process for
issuing original licenses for qualifying
facilities at existing nonpowered dams

SUMMARY:

2469

and closed-loop pumped storage
projects. Under the expedited process,
the Commission will seek to ensure a
final decision will be issued no later
than two years after the Commission
receives a completed license
application. The Commission proposes
to codify the rules in a new part that
will be added to the Commission’s
regulations.
DATES:

Comments are due March 11,

2019.
You may send comments,
identified by RM19–6–000, by either of
the following methods:
• Agency website: Electronic Filing
through http://www.ferc.gov.
Documents created electronically using
word processing software should be
filed in native applications or print-toPDF format and not in a scanned format.
• Mail: Those unable to file
electronically may mail or hand-deliver
comments to: Federal Energy Regulatory
Commission, Secretary of the
Commission, 888 First Street NE,
Washington, DC 20426.
Instructions: For detailed instructions
on submitting comments and additional
information on the rulemaking process,
see the Comment Procedures section of
this document.
FOR FURTHER INFORMATION CONTACT:
Shana Wiseman (Technical
Information), Office of Energy
Projects, Federal Energy Regulatory
Commission, 888 First Street NE,
Washington, DC 20426, (202) 502–
8736, [email protected].
Kenneth Yu (Legal Information), Office
of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, (202) 502–8482, kenneth.yu@
ferc.gov.
Tara DiJohn (Legal Information), Office
of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, (202) 502–8671, tara.dijohn@
ferc.gov.
ADDRESSES:

SUPPLEMENTARY INFORMATION:

Table of Contents
Paragraph
Nos.

I. Background ..........................................................................................................................................................................................
II. Discussion ..........................................................................................................................................................................................
A. Eligibility Criteria .......................................................................................................................................................................
1. Statutory Criteria for Qualifying Facilities .........................................................................................................................
2. FERC-Defined Criteria for Expedited Process ....................................................................................................................
B. Expedited Licensing Process ......................................................................................................................................................
1. Section 7.1—Applicability and Definitions .......................................................................................................................
2. Section 7.2—Use of Expedited Licensing Process .............................................................................................................
3. Section 7.3—Adequacy Review of Application .................................................................................................................
4. Section 7.4—Additional Information ..................................................................................................................................

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Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules
Paragraph
Nos.

5. Section 7.5—Decision on Request To Use Expedited Licensing Process .........................................................................
6. Section 7.6—Notice of Acceptance and Ready for Environmental Analysis ...................................................................
7. Section 7.7—Amendment of Application ..........................................................................................................................
8. Section 7.8—Other Provisions ............................................................................................................................................
9. Section 7.9—Transition Provision ......................................................................................................................................
C. Key Issues and Goals for an Expedited Licensing Process ......................................................................................................
1. Definition of Closed-Loop Pumped Storage .......................................................................................................................
2. License Amendments ..........................................................................................................................................................
3. Projects That Require the Preparation of an EIS ................................................................................................................
III. Regulatory Requirements .................................................................................................................................................................
A. Information Collection Statement .............................................................................................................................................
B. Environmental Analysis .............................................................................................................................................................
C. Regulatory Flexibility Act ..........................................................................................................................................................
D. Comment Procedures .................................................................................................................................................................
E. Document Availability ................................................................................................................................................................

1. On October 23, 2018, the America’s
Water Infrastructure Act of 2018 1 was
signed into law. The AWIA, among
other things, requires the Federal Energy
Regulatory Commission (Commission or
FERC) to establish an expedited process
for issuing and amending licenses for
qualifying facilities at existing
nonpowered dams and closed-loop
pumped storage projects. Under the
expedited process, the Commission will
seek to ensure that a final decision on
a license application will be issued no
later than two years after the
Commission receives a completed
application for a license.
2. To comply with the AWIA, the
Commission proposes to amend its
regulations governing hydroelectric
licensing under the Federal Power Act
(FPA) by establishing a new expedited
licensing process for qualifying facilities
at existing nonpowered dams and for
closed-loop pumped storage projects.
Under the proposal, a new part 7 will
be added to Title 18 of the Code of
Federal Regulations. The Commission’s
coordination and discussion with
appropriate federal and state agencies
and Indian Tribes, as part of an
interagency task force (ITF), have
informed these proposed regulations.
I. Background
3. Sections 3003 and 3004 of the
AWIA amended the FPA by adding new
sections 34 and 35. Section 34 of the
FPA gives the Commission discretion to
issue or amend licenses, as appropriate,
for any facility that the Commission
determines is a qualifying facility at an
existing nonpowered dam. Section 35 of
the FPA gives the Commission
discretion to issue or amend licenses, as
appropriate, for closed-loop pumped
storage projects. Congress directed the
Commission to issue a rule, no later
than 180 days after October 23, 2018,
1 Public

Law 115–270, 132 Stat. 3765 (2018)

(AWIA).

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establishing an expedited licensing
process for issuing and amending
licenses for qualifying facilities at
nonpowered dams and for closed-loop
pumped storage projects under sections
34 and 35. In establishing the expedited
licensing process, Congress directed the
Commission to convene an ITF, with
appropriate Federal and State agencies
and Indian Tribes represented, to
coordinate the regulatory processes
associated with the authorizations
required to construct and operate
qualifying facilities at nonpowered
dams and closed-loop pumped storage
projects.
4. On November 13, 2018, the
Commission issued a notice inviting
federal agencies, state agencies, and
Indian Tribes to participate on the ITF.2
The notice directed interested agencies
and Tribes to file a statement of interest
with the Commission by November 29,
2018. On December 6, 2018, the
Commission issued a notice identifying
28 federal agencies, state agencies, and
Tribes as ITF participants.3
5. On December 12, 2018, the
Commission convened a coordination
session with the ITF participants at the
Commission’s headquarters to discuss
the Commission’s preliminary proposal
to coordinate the regulatory processes
associated with the authorizations
required to construct and operate
qualifying facilities at nonpowered
dams and closed-loop pumped storage
projects. At the session, Commission
staff presented for the ITF participants’
consideration and comment a flowchart
illustrating a draft expedited licensing
2 See Notice Inviting Federal and State Agencies
and Indian Tribes to Request Participation in the
Interagency Task Force Pursuant to America’s
Water Infrastructure Act of 2018, 83 FR 58,245
(Nov. 19, 2018).
3 See Notice of Interagency Task Force (Dec. 6,
2018); see also FERC, Office of Energy Projects,
Summary of Interagency Task Force Activities (Jan.
10, 2019) (Appendix A identifies the ITF
participants).

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33
35
36
37
38
39
42
45
48
48
63
64
68
72

process.4 In addition to soliciting
comments at the coordination session,
Commission staff invited ITF
participants to file comments on the
process in Docket No. RM19–6–000 by
December 26, 2018. Seven post-session
comments were filed.
II. Discussion
6. The Commission’s current
regulations provide three prefiling
process alternatives for hydropower
developers to use in preparing license
applications: (i) The integrated licensing
process (ILP), which is the default
process, as described in part 5; (ii) the
traditional licensing process (TLP), as
described in part 4, subparts D to H; and
(iii) the alternative procedures (i.e., the
alternative licensing process (ALP)), as
described in § 4.34(i) of part 4. The
Commission does not propose to alter
these existing licensing processes.
Instead, these proposed regulations
establish procedures for the
Commission to determine, on a case-bycase basis, whether applications for an
original license at qualifying
hydropower projects at nonpowered
dams or closed-loop pumped storage
projects, as defined in sections 34 and
35 of the FPA and the eligibility criteria
below, qualify to participate in the
Commission’s new expedited licensing
process.
7. To be considered under the
expedited process, applicants for
original licenses at qualifying
hydropower projects at nonpowered
dams or closed-loop pumped storage
projects must include with their
application a request for authorization
to use the expedited licensing process.
The Commission may grant the request
if the applicant demonstrates
compliance with the procedures set
forth in the proposed regulations. The
4 See Commission staff’s Letter to ITF
Participants, Summary of Interagency Task Force
Activities (Jan. 10, 2019).

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Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules
use of the expedited licensing process is
voluntary. The proposed expedited
licensing process would only apply to
original license applications; it would
not apply to applications for a new or
subsequent license. However, the
Commission seeks comments on
whether the expedited licensing process
should apply to applications for a new
or subsequent license for a project that
was originally licensed under the
expedited licensing process. The
expedited licensing process would
begin with the filing of a license
application, that is, the prefiling process
is not included in the two-year time
frame governed by the expedited
process. For the purposes of prefiling
activities, any applicant interested in
pursuing authorization to use the
expedited licensing process must use
the default ILP, or request authorization
to the use TLP or ALP, as required
under the current regulations.
Therefore, the focus of this Notice of
Proposed Rulemaking (NOPR) is solely
on the process milestones and necessary
authorizations that occur after an
applicant files a license application.
A. Eligibility Criteria
8. An applicant interested in
requesting authorization to use the
expedited licensing process must
demonstrate that its proposed project
design meets the statutory criteria for
qualifying facilities that Congress
enumerated in sections 34 and 35 of the
FPA. In addition, the applicant must
demonstrate compliance with the FERCdefined criteria to use the expedited
process, which include providing
documentation of consultation at the
time of application filing, verifying that
the applicant has engaged in
consultation with agencies, Indian
Tribes, and, if applicable, the existing
dam owner, sufficient to facilitate
Commission action on the application
within two years. The statutory criteria
for qualifying facilities and the FERCdefined documentation requirements for
the expedited process are described
below.
1. Statutory Criteria for Qualifying
Facilities
9. Section 34(e) of the FPA sets forth
the qualifying criteria for a facility to be
located at an existing nonpowered dam,
and defines the term ‘‘qualifying
nonpowered dam.’’ Section 35(g) of the
FPA, as amended by the AWIA, directs
the Commission to establish qualifying
criteria for closed-loop pumped storage
projects that will be eligible for the
expedited licensing process. The
statutory criteria for qualifying facilities
are further described below.

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a. Qualifying Facilities at Nonpowered
Dams
10. Section 34(e)(1) of the FPA
provides that ‘‘qualifying criteria,’’ with
respect to a facility, are: (A) As of the
October 23, 2018, the facility is not
licensed under, or exempted from, the
license requirements contained in Part I
of the FPA; (B) the facility is associated
with a qualifying nonpowered dam; (C)
the facility will be constructed,
operated, and maintained for the
generation of electric power; (D) the
facility will generate electricity by using
any withdrawals, diversions, releases, or
flows from the associated qualifying
nonpowered dam, including its
associated impoundment or other
infrastructure; and (E) the operation of
the facility will not result in any
material change to the storage, release,
or flow operations of the associated
qualifying nonpowered dam.
11. Section 34(e)(2) defines
‘‘qualifying facility’’ as any facility that
is determined to meet the ‘‘qualifying
criteria’’ under section 34(e)(1).
12. Section 34(e)(3) defines
‘‘qualifying nonpowered dam’’ as any
dam, dike, embankment, or other
barrier, constructed on or before October
23, 2018, that is or was operated for the
control, release, or distribution of water
for agricultural, municipal, navigational,
industrial, commercial, environmental,
recreational, aesthetic, drinking water,
or flood control purposes, and that, as
of October 23, 2018, is not generating
electricity with hydropower generating
works licensed under, or exempted
from, the license requirements of Part I
of the FPA.
b. Closed-Loop Pumped Storage Projects
13. Section 35(g)(1) mandates that the
Commission establish criteria that a
pumped storage project must meet in
order to qualify as a closed-loop
pumped storage project eligible for the
expedited process. In defining the
criteria to qualify as an eligible closedloop pumped storage project, section
35(g)(2) requires that the Commission
include criteria that the pumped storage
project cause little to no change to
existing surface and groundwater flows
and uses, and is unlikely to adversely
affect species listed as a threatened
species or endangered species under the
Endangered Species Act of 1973 (ESA).5
2. FERC-Defined Criteria for Expedited
Process
14. In addition to complying with the
license application requirements set
forth in part 4, subparts D to H and part
5 of the Commission’s regulations, an
5 16

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application filed with a request for
authorization to use the expedited
licensing process must include
documentation of consultation. Through
experience and the implementation of
the pilot two-year licensing process,6
Commission staff has determined that
this consultation, and documentation
thereof, will best ensure that the
Commission will be able to act on a
completed license application within
two years from the date it is received.
As described below, this documentation
of consultation must be filed
concurrently with the license
application and the request for
authorization to use the expedited
licensing process.
a. Clean Water Act
15. Under section 401(a)(1) of the
Clean Water Act (CWA), the
Commission may not issue a license
authorizing the construction or
operation of a hydroelectric project that
results in a discharge into the navigable
waters of the United States unless the
state water quality certifying agency
either has issued water quality
certification for the project or has
waived certification by failing to act on
a request for certification within a
reasonable period of time, not to exceed
one year.7 Section 401(d) of the CWA
provides that the water quality
certification shall become a condition of
the license.8
16. Under the Commission’s existing
licensing processes, an applicant must
file a copy of the water quality
certification; a copy of the request for
certification, including proof of the date
on which the certifying agency received
the request; or evidence of waiver of
water quality certification no later than
60 days from the date that the
Commission issues public notice
accepting an application for filing and
finding it ready for environmental
analysis.9 The Commission’s Pilot TwoYear Licensing Report noted that all
projects licensed within two years either
received a water quality certification or
a waiver within one year of the
applicant’s request.10
6 See FERC, Report on the Pilot Two-Year Pilot
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 31, 2017), https://www.ferc.gov/legal/staffreports/2017/final-2-year-process.pdf (Pilot TwoYear Licensing Report).
7 See 33 U.S.C. 1341(a)(1) (2012).
8 Id. 1341(d).
9 See 18 CFR 4.34(b)(5) and 5.23(b) (2018).
10 Pilot Two-Year Licensing Report at 42. As part
of the Pilot Two-Year Licensing Report,
Commission staff examined the processing times for

U.S.C. 1531–1544 (2012).

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Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules

17. To increase the likelihood that a
license application can be acted on
within two years, the Commission
proposes to require an applicant to
submit, at the time of application filing,
a copy of the applicant’s request for
certification under section 401(a)(1) of
the CWA, including proof of the date on
which the certifying agency received the
request, and: (i) A copy of the water
quality certification, (ii) evidence of
waiver of water quality certification, or
(iii) documentation from the state
certifying agency that no additional
information is needed to complete the
water quality certification application.
b. ESA
18. Section 7(a)(2) of the ESA requires
the Commission to ensure that its
actions are not likely to jeopardize the
continued existence of federally-listed
threatened or endangered species, or
result in the destruction or adverse
modification of designated critical
habitat of such species.11 The
Commission, in determining what
protective measures to incorporate into
a license, must consult with the U.S.
Fish and Wildlife Service (FWS) or the
National Marine Fisheries Service
(NMFS), as applicable. The length of
this consultation process varies based
on the Commission’s determination of
effect on a federally-listed species or its
critical habitat.12
19. Under the Commission’s current
licensing processes, the Commission
issues its effect determination as part of
the National Environmental Policy Act
of 1969 (NEPA) 13 document prepared
on the license application. The NEPA
document is used as the Commission’s
biological assessment on listed species
for ESA consultation purposes. The
Commission’s Pilot Two-Year Licensing
Report found that seventy percent (i.e.,
83 projects that completed prefiling activities and
were issued original licenses or small hydropower
exemptions between 2003 and 2016. During this
period, 23 projects (i.e., 28 percent) were licensed
within two years from the filing of a Notice of Intent
to file a license application and a pre-application
document.
11 See 16 U.S.C. 1536 (2012).
12 For example, if the Commission determines
that its actions will have no effect on a listed
species or habitat, no further consultation is
required. If the Commission determines that its
action is not likely to adversely affect a listed
species or its habitat, Commission staff will seek
concurrence from FWS or NMFS. If FWS or NMFS
agrees with the Commission’s determination,
consultation is complete once the appropriate
service provides a letter of concurrence. However,
if FWS or NMFS does not agree with the
Commission’s finding that its action is not likely to
adversely affect a federally listed species or its
critical habitat or if the Commission determines its
action is likely to adversely affect a federally-listed
species or its critical habitat, formal consultation is
required under section 7 of the ESA.
13 42 U.S.C. 4321 et seq. (2012).

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16 of 23) of projects licensed in two
years or less required no consultation
under the ESA.14 In addition, the report
found that of the seven projects that
required ESA consultation, all of the
consultations were completed in less
than 48 days.15
20. To increase the likelihood that an
expedited license application may be
acted on within two years, the
Commission proposes to require that
any application filed with a request for
authorization to use the expedited
licensing process include: (i) A no-effect
determination that includes
documentation that no listed species or
critical habitat are present at the
proposed project site; (ii)
documentation of concurrence from
FWS and NMFS, as necessary, on a not
likely to adversely affect determination;
or (iii) a draft biological assessment that
includes documentation of consultation
with FWS and NMFS, as necessary.
21. New FPA sections 34 and 35 do
not refer to the critical habitat of listed
species. However, if there were critical
habitat that would likely be adversely
affected by a proposed project, formal
ESA consultation would be required,
which may make it difficult to issue a
license within a two-year period.
Accordingly, the documentation
referred to above must cover not only
listed species but also their critical
habitat.
22. Moreover, FPA section 35(g)(1) is
silent on whether a closed-loop pumped
storage project would be eligible for the
expedited licensing process if it were to
result in adverse effects to habitat
designated as critical habitat under the
ESA. Because the AWIA does not alter
the ESA and ESA section 7(a)(2) also
requires the Commission to ensure that
its actions are not likely to result in the
destruction or adverse modification of
designated critical habitat of such
species,16 we propose to include in the
qualifying criteria for closed-loop
pumped storage projects the
requirement that the proposed project is
not likely to adversely affect threatened
or endangered species, or habitat
designated as critical habitat, under the
ESA.
c. National Historic Preservation Act
23. Under section 106 of the National
Historic Preservation Act (NHPA) 17 and
its implementing regulations,18 the
Commission must take into account the
effect of any proposed undertaking on
14 Pilot

Two-Year Licensing Report at 43.

15 Id.
16 16

U.S.C. 1536(a)(2) (2012).
U.S.C. 306108 (2012).
18 36 CFR pt. 800 (2018).

properties listed or eligible for listing in
the National Register of Historic Places
and afford the Advisory Council on
Historic Preservation a reasonable
opportunity to comment on the
undertaking.
24. To increase the likelihood that an
expedited license application may be
acted on within two years, the
Commission proposes to require an
applicant to provide, at the time of
application filing, documentation that
section 106 consultation has been
initiated with the relevant State Historic
Preservation Officer(s) and any Indian
Tribes identified as having an interest in
the proposed project. This requirement
does not differ from requirements in our
current regulations.
d. Dam Owner Documentation
25. For projects at existing
nonpowered dams, the Commission
proposes to require an applicant to
provide, at the time of application filing,
documentation verifying consultation
with the owner of the dam and the
results of the consultation. For a
proposal at a non-federal nonpowered
dam, the applicant would be required to
provide documentation of consultation
with the non-federal dam owner,
including confirmation that the nonfederal dam owner does not oppose the
project development. For a proposal at
a federal nonpowered dam, the
applicant would be required to provide
documentation from the federal dam
owner confirming that non-federal
hydropower is not precluded at the
proposed location and that the federal
owner does not oppose project
development. This documentation and
confirmation requirement seeks to
ensure that applicants discuss the
project proposal with dam owners early
in the process to verify that there are no
issues that would preclude the
Commission from authorizing a
hydropower project at the dam or would
require an applicant to significantly
amend its proposal. Substantial
amendments to a license application,
especially when made late in the
licensing process, decrease the
likelihood that the application could be
acted on in two years.
e. Public Parks, Recreation Areas, and
Wildlife Areas
26. Section 21 of the FPA, as amended
by the Energy Policy Act of 1992,19
limits the use of eminent domain to
acquire any lands included within any
public park, recreation area, or wildlife
refuge established under state or local

17 54

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Law 102–486, 106 Stat. 2776 (1992).

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Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules
law.20 Waiting until after a license
application is filed to identify a
proposal for a project that uses any
public park, recreation area, or wildlife
refuge in a manner that would be
acceptable to the managing entity could
extend the license application
processing time and decrease the
likelihood of meeting the two-year
target. Therefore, if the proposed project
would use any public park, recreation
area, or wildlife refuge established
under state or local law, the
Commission proposes to require an
applicant to provide, at the time of
application filing, documentation from
the managing entity demonstrating that
it is not opposed to use of the park,
recreation area, or wildlife refuge for
hydropower development.
B. Expedited Licensing Process
27. As directed by FPA sections 34
and 35, the Commission is proposing an
expedited licensing process for
qualifying facilities at nonpowered
dams and for closed-loop pumped
storage projects. The proposed
regulations, if enacted, will be codified
as part 7 of the Commission’s
regulations.
1. Section 7.1—Applicability and
Definitions
28. Proposed § 7.1 explains that the
expedited licensing process would be
restricted to applicants that apply for
and receive authorization to use the
process. Unless superseded by the
expedited licensing process regulations,
the Commission’s existing regulations
governing license applications would
also apply to license applications filed
pursuant to part 7. This section also
defines the following key terms used
throughout this proposed part:
‘‘qualifying nonpowered dam,’’
‘‘qualifying facility,’’ and ‘‘closed-loop
pumped storage project.’’ Finally,
proposed § 7.1 explains that an
applicant under part 7 may elect to use
any of the Commission’s three licensing
processes: the ILP,21 the TLP,22 or the
ALP.23
2. Section 7.2—Use of Expedited
Licensing Process
29. Proposed § 7.2 explains that an
applicant must submit a request for
authorization to use the expedited
licensing process. Proposed § 7.2(b)
identifies the information that must be
included in any original license
application that accompanies a request
20 16

U.S.C. 814 (2012).
CFR pt. 5 (2018).
22 Id. pt. 4, subpts. D–H.
23 Id. 4.34(i).
21 18

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to use the expedited licensing process.
The information pertains to the design
and environmental criteria statutorily
mandated by sections 34 and 35 of the
FPA, as well as the early consultation
documentation described above in
section II.A (Eligibility Criteria).
3. Section 7.3—Adequacy Review of
Application
30. Proposed § 7.3 describes how
Commission staff will conduct an
adequacy review of an application
submitted under part 7. Commission
staff will review a license application
that is accompanied by a request to use
the expedited licensing process under
part 4 (TLP or ALP) or part 5 (ILP) of
the Commission’s regulations,
depending on the applicant’s elected
licensing process. If the application is
deemed deficient and rejected under
part 4 or 5, the request to use the
expedited licensing process will
likewise be rejected.
4. Section 7.4—Additional Information
31. Proposed § 7.4 states that an
applicant under part 7 may be required
to submit additional information or
documentation to the Commission in
the form and time frame prescribed by
the Commission. The Commission may
also require the applicant to submit
copies of the application or other filed
materials to any person, agency, Indian
Tribe, or other entity specified by the
Commission. Failure to provide the
requested information or documentation
as specified may result in dismissal of
the license application.
5. Section 7.5—Decision on Request To
Use Expedited Licensing Process
32. Proposed § 7.5 explains that the
Director of the Office of Energy Projects
(Director) will act on the request to use
the expedited licensing process within
six months from the date of application
filing. If Commission staff is unable to
find that the application meets the
requirements of parts 4, 5, and 7, all
deficiencies have been cured, and no
additional information is required, the
Director will deny the request to use the
expedited licensing process. If the
expedited licensing request is denied,
proposed § 7.5 explains that the license
application will be processed pursuant
to a standard processing schedule under
parts 4 or 5 of the Commission’s
regulations, as appropriate.
6. Section 7.6—Notice of Acceptance
and Ready for Environmental Analysis
33. If the Director approves the
request to use the expedited licensing
process, proposed § 7.6 describes the
components of the public notice that the

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2473

Commission will issue no later than six
months after the date of application
filing. The notice will accept the
application and confirm the acceptance
date as the application filing date; find
the application ready for environmental
analysis; request comments, protests,
and interventions; request
recommendations, preliminary terms
and conditions, and preliminary
fishway prescriptions; and establish a
schedule for the application’s expedited
processing.
34. The expedited licensing process
schedule will include the estimated
dates for: (i) The filing of
recommendations, preliminary terms
and conditions, and fishway
prescriptions; (ii) issuance of the draft
NEPA document, or an environmental
assessment not preceded by a draft; (iii)
filing of responses, if applicable, to
Commission staff’s request for ESA
concurrence or request for formal
consultation under ESA, or to other
Commission staff requests to federal and
state agencies, or Indian Tribes under
other federal laws, including the
Magnuson-Stevens Fishery
Conservation and Management Act 24
and the NHPA; (iv) filing of comments
on a draft NEPA document, if
applicable; (v) filing of modified
recommendations, mandatory terms and
conditions, and fishway prescriptions in
response to a draft NEPA document or,
if no draft NEPA document is issued, to
an environmental assessment; and (vi)
issuance of a final NEPA document, if
applicable.
7. Section 7.7—Amendment of
Application
35. Proposed § 7.7 prescribes the
requirements for an application that
proposes to amend a pending
application filed under the expedited
licensing process, after the Commission
has already issued a notice of
acceptance and ready for environmental
analysis for the application. This section
also explains the right of an agency,
Indian Tribe, and member of the public
to modify its previously-submitted
recommendations or terms and
conditions or prescriptions if an
applicant files, and the Commission
accepts, an amendment to the
application that would materially
change the proposed project’s plans of
development.
8. Section 7.8—Other Provisions
36. Proposed § 7.8 authorizes the
Director to waive or modify provisions
of this part for good cause. The
Commission may consider late-filed
24 16

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recommendations by authorized fish
and wildlife agencies under the Fish
and Wildlife Coordination Act 25 and
FPA section 10(j),26 and late-filed FPA
section 4(e) 27 terms and conditions or
FPA section 18 28 prescriptions as cause
to remove the application from the
expedited licensing process under this
part.
9. Section 7.9—Transition Provision
37. Proposed § 7.9 provides that this
part only applies to original license
applications filed on or after the
effective date of the final rule.
C. Key Issues and Goals for an
Expedited Licensing Process
38. In addition to the structure and
information requirements of the
expedited licensing process, the
Commission requests comments on
certain issues, discussed below.
1. Definition of Closed-Loop Pumped
Storage
39. Absent the inclusion requirement
in FPA section 35(g)(2), FPA section 35
does not define the term ‘‘closed-loop
pumped storage project.’’ The
Commission’s existing regulations also
do not provide a definition. In the past,
the Commission or Commission staff
has defined closed-loop pumped storage
projects as pumped storage projects that
are ‘‘not continuously connected to a
naturally-flowing water feature.’’ 29 The
Commission has also licensed five
projects with proposed operational
features that could be considered to be
closed-loop pumped storage projects,
depending on how the term is defined:
• The Eagle Mountain Pumped
Storage Hydroelectric Project No. 13123:
A closed-loop pumped storage project
that will rely on groundwater wells to
provide the project’s initial reservoir fill
and future replenishment.30
Construction of the project has not
commenced.
• The Gordon Butte Pumped Storage
Project No. 13642: A closed-loop
pumped storage project that will use an
existing, privately-owned irrigation
system connected to Cottonwood Creek
to supply initial reservoir fill and future
replenishment due to evaporation
25 16

U.S.C. 661–666c (2012).
803(j).
27 Id. 797(e).
28 Id. 811.
29 See Wyco Power and Water, Inc., 139 FERC
¶ 61,124, at n.11 (2012) (providing the definition in
an order denying rehearing of a dismissed
preliminary permit). See generally FERC, Pumped
Storage Projects, https://www.ferc.gov/industries/
hydropower/gen-info/licensing/pump-storage.asp.
See also Pilot Two-Year Licensing Report at 7.
30 See Eagle Crest Energy Co., 147 FERC ¶ 61,220
(2014).
26 Id.

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loss.31 Construction of the project has
not commenced.
• The Summit Pumped Storage
Hydroelectric Project No. 9423: A
pumped storage facility that would have
used off-stream reservoirs filled by a
municipal water supply.32 The license
was terminated for failure to commence
timely construction.33
• The Mount Hope Pumped Storage
Project Nos. 9401, 8595, 9105: A
pumped storage facility that was to be
located at a rock quarry site, with fill
water supplied by water from an
abandoned iron mine.34 The license was
terminated for failure to commence
timely construction.35
• The Blue Diamond Pumped Storage
Project No. 10756: A pumped storage
facility with off-stream reservoirs that
were dependent on the local water
district for the initial fill and future
replenishment.36 The license was
terminated for failure to commence
timely construction.37
40. In addition, the Commission is
currently reviewing an application for
an original license for the Mineville
Energy Storage Project No. 12635, a
pumped storage project that would
include facilities located in a
decommissioned mine, and an
application for an original license for
the Swan Lake North Pumped Storage
Project No. 13318, a pumped storage
project near Klamath Falls, Oregon.
Both proposals would rely on
groundwater for initial reservoir fill.38
41. Based on a review of these
licenses and related applications, the
Commission proposes to retain the
Commission’s previous definition of a
closed-loop pumped storage project (i.e.,
a pumped storage project that is not
continuously connected to a naturallyflowing water feature). We encourage
comments on the proposed definition,
including proposals for alternative
definitions and discussion of how terms
in the definition, such as ‘‘continuously
connected,’’ should be construed.
31 See

GB Energy Park, LLC, 157 FERC ¶ 62,196

(2016).
32 Summit Energy Storage, Inc., 55 FERC ¶ 62,026
(1991).
33 Summit Energy Storage, Inc., 95 FERC ¶ 62,035
(2001).
34 Halecrest Co., 60 FERC ¶ 61,121 (1992).
35 Mt. Hope Waterpower Project, LLP, 113 FERC
¶ 61,258 (2005).
36 Blue Diamond South Pumped Storage Power
Co., Inc., 79 FERC ¶ 62,184 (1997).
37 Blue Diamond South Pumped Storage Power
Co., Inc., 112 FERC ¶ 62,110 (2005).
38 See Moriah Hydro Corporation’s February 13,
2015 Application at 17–18; Exhibit A of Swan Lake
North Hydro LLC’s October 28, 2015 Application at
A–19.

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2. License Amendments
42. FPA sections 34(a)(1) and 35(a)(1)
give the Commission discretion to
amend licenses, as appropriate, for any
facility that the Commission determines
is a qualifying facility. As part of this
rulemaking, the Commission is required
to establish an expedited process for
amending licenses for qualifying
facilities. FPA sections 34(a)(4) and
35(a)(4) specifically define the
expedited process for license
applications as a two-year process for
the Commission to issue a final decision
on a license application once it receives
a completed license application. The
amended statute, however, is silent on
the length of time to process
applications to amend licenses.
43. Any change to an issued license
is considered a license amendment, and
proposed amendments can vary greatly
in type and complexity. A simple
amendment might consist of changing
the frequency of fish passage
monitoring, whereas a complex
amendment might include building a
new dam or powerhouse or changing a
project’s basic mode of operation.
44. Over the last five fiscal years,
Commission staff has reviewed and
processed over 18,000 post-license
related filings, approximately 7,500 of
which were considered amendmentrelated filings. Ninety-eight percent of
these 7,500 filings resulted in the
issuance of a Commission final decision
within two years from receipt of the
filing. Because the Commission already
processes the vast majority of
amendments within two years, the
Commission proposes to process
applications to amend licenses for
projects located at qualifying
nonpowered dam and for closed-loop
pumped storage projects under the
Commission’s existing regulations for
amendments in 18 CFR part 4, subpart
L.
3. Projects That Require the Preparation
of an EIS
45. When the Commission believes a
proposed project may not be a major
federal action significantly affecting the
quality of the human environment, the
Commission may first prepare an
environmental assessment to determine
whether an EIS needs to be prepared.39
However, § 380.6(a)(4) of the
Commission’s regulations identifies
licenses of any unconstructed water
power project as a category of project
that will normally require the
preparation of an EIS.40
39 18
40 Id.

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380.6(a)(4).

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Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules
46. Because the preparation of an EIS
typically involves projects that are more
complex, thereby requiring more
resources from all involved stakeholders
and Commission staff, the Commission
requests comment on whether the twoyear expedited licensing process should
be available to proposed projects that
would require the Commission to
prepare an EIS.
47. Additionally, then FERC
Chairman McIntyre signed a
Memorandum of Understanding
Implementing One Federal Decision
Under Executive Order 13807,41 in
which the Commission committed to
completing within an average of two
years all environmental reviews and
authorization decisions for ‘‘major
infrastructure projects,’’ 42 starting from
the date the Commission publishes a
Notice of Intent to prepare an EIS and
ending with the issuance of a final
order.43 Projects that are authorized for
expedited processing and qualify as
‘‘major infrastructure projects,’’ will be
designated under both programs.

III. Regulatory Requirements
A. Information Collection Statement
48. The Paperwork Reduction Act 44
requires each federal agency to seek and
obtain the Office of Management and
Budget’s (OMB) approval before
undertaking a collection of information
directed to ten or more persons or
contained in a rule of general
applicability. OMB regulations require
approval of certain information
collection requirements contemplated
by proposed rules.45 Upon approval of
a collection of information, OMB will
assign an OMB control number and an
expiration date. Respondents subject to
the filing requirements of a rule will not
be penalized for failing to respond to the
collection of information unless the
collection of information displays a
valid OMB control number.
49. Public Reporting Burden: In this
NOPR, the Commission proposes to
establish an expedited process for
issuing original licenses for qualifying
facilities at nonpowered dams and for
closed-loop pumped storage projects, as
directed by Congress in the AWIA.

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50. This proposed rule would modify
certain reporting and recordkeeping
requirements included in FERC–500A 46
(OMB Control No. TBD) 47 and FERC–
505 (OMB Control No. 1902–0115).48
51. The proposed revisions to the
Commission’s regulations, associated
with the FERC–500A and FERC–505
information collections, are intended to
comply with the requirements of the
AWIA. While the information to be
included in the license application and
the required federal and state
authorizations would remain the same
under the expedited licensing process,
consultation documentation regarding
these authorizations will need to be
submitted to the Commission at an
earlier point in the licensing process.
Therefore, preparing the request to use
the expedited licensing process would
represent a slight increase in the
reporting requirements and burden
information for FERC–500A and FERC–
505.
52. The estimated burden and cost for
the requirements contained in this
NOPR follow.

ANNUAL CHANGES PROPOSED BY THE NOPR IN DOCKET NO. RM19–6–000
Number of
respondents

Number of
responses 49
per
respondent

Total number
of responses

Average burden hours
& cost per
response 50

Total annual burden
hours & total
annual cost

(1)

(2)

(1) × (2) = (3)

(4)

(3) × (4) = 5

FERC–500A .................................................
FERC–505 ...................................................

51 5
52 5

1
1

5
5

40; $3,160 .................
40 hrs.; $3,160 ..........

200 hrs.; $15,800.
200 hrs.; $15,800.

Total ......................................................

........................

........................

10

....................................

400 hrs.; $31,600

53. Titles: FERC–500A (Application
for License/Relicense for Water Projects
with More than 5 Megawatt (MW)
Capacity) and FERC–505 (Small
Hydropower Projects and Conduit
Facilities including License/Relicense,
Exemption, and Qualifying Conduit
Facility Determination).

54. Action: Revisions to information
collections FERC–500A and FERC–505.
55. OMB Control Nos.: TBD (FERC–
500A) and 1902–0115 (FERC–505).
56. Respondents: Municipalities,
businesses, private citizens, and forprofit and not-for-profit institutions.

57. Frequency of Information:
Ongoing.
58. Necessity of Information: The
revised regulations implement the
AWIA’s directive to establish an
expedited licensing process for two
types of hydropower projects—
qualifying facilities at existing

41 Establishing Discipline and Accountability in
the Environmental Review and Permitting Process
for Infrastructure Projects, Exec. Order No. 13,807,
82 FR 40,463 (Aug. 15, 2017).
42 A major infrastructure project is defined as an
infrastructure project for which multiple
authorizations by Federal agencies will be required
to proceed with construction, the lead Federal
agency has determined that it will prepare an EIS,
and the project sponsor has identified the
reasonable availability of funds sufficient to
complete the project. Id. 3(e).
43 Memorandum of Understanding Implementing
the One Federal Decision under Executive Order
13807, https://www.ferc.gov/legal/mou/2018/MOUOne-Federal-Decision.pdf.
44 44 U.S.C. 3501–3521 (2012).
45 See 5 CFR 1320.11 (2018).

46 The new reporting requirements and burden
that would normally be submitted to OMB under
FERC–500 (OMB Control No 1902–0058) will be
submitted under a ‘‘placeholder’’ information
collection number (FERC–500A). FERC–500 is
currently under OMB review for an unrelated FERC
activity.
47 FERC–500A includes the reporting and
recordkeeping requirements for ‘‘Application for
License/Relicense for Water Projects with More
than 5 Megawatt (MW) Capacity.’’
48 FERC–505 includes the reporting and
recordkeeping requirements for ‘‘Small Hydropower
Projects and Conduit Facilities including License/
Relicense, Exemption, and Qualifying Conduit
Facility Determination.’’
49 We consider the filing of an application to be
a ‘‘response.’’
50 The estimates for cost per response are derived
using the following formula: Average Burden Hours

per Response * $79 per Hour = Average Cost per
Response.
The hourly cost figure of $79 is the 2018 average
FERC employee wage plus benefits. Commission
staff assumes that respondents earn at a similar rate
to FERC employees.
51 After implementation of this rule, we estimate
five applications for closed-loop pumped storage
projects will be filed, alongside a request to use the
expedited licensing process, per year. We estimate
that all of these applications will be for projects
with more than 5 MW capacity.
52 After implementation of this rule, we estimate
five applications for qualifying facilities at existing
nonpowered dams will be filed, alongside a request
to use the expedited licensing process, per year. We
estimate that all of these applications will be for
projects with 5 MW or less capacity.

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nonpowered dams and closed-loop
pumped storage projects. The revised
regulations would affect only the
number of entities that would file
applications with the Commission for
these two project types, and would
impose a new, albeit slight, information
collection requirement.
59. The new requirement for an
applicant interested in using the
expedited process to file a request for
authorization to use the expedited
process concurrently with its license
application is necessary for the
Commission to carry out its
responsibilities under the FPA, as
amended by the AWIA. The information
provided to the Commission enables the
Commission to review the features of
the proposed project and make a
determination on whether the proposed
project meets the statutory criteria
enumerated in the AWIA, as well as the
early consultation requirements that the
Commission has determined will help it
seek to ensure that the proposed
project’s license application will be
acted on no later than two years after
the date of application filing.
60. Internal Review: The Commission
has reviewed the proposed revisions
and has determined that they are
necessary. These requirements conform
to the Commission’s need for efficient
information collection, communication,
and management within the energy
industry. The Commission has assured
itself, by means of internal review, that
there is specific, objective support for
the burden estimates associated with the
information collection requirements.
61. Interested persons may obtain
information on the reporting
requirements by contacting the Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC 20426
[Attention: Ellen Brown, Office of the
Executive Director], by email to
[email protected], by phone (202)
502–8663, or by fax (202) 273–0873.
62. Comments concerning the
collections of information and the
associated burden estimates may also be
sent to: Office of Information and
Regulatory Affairs, Office of
Management and Budget, 725 17th
Street NW, Washington, DC 20503
[Attention: Desk Officer for the Federal
Energy Regulatory Commission]. Due to
security concerns, comments should be
sent electronically to the following
email address: oira_submission@
omb.eop.gov. Comments submitted to
OMB should refer to FERC–500A (OMB
Control No. TBD) and FERC–505 (OMB
Control No. 1902–0115).

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B. Environmental Analysis
63. The Commission is required to
prepare an environmental assessment or
an EIS for any action that may have a
significant adverse effect on the human
environment.53 The Commission has
categorically excluded certain actions
from this requirement as not having a
significant effect on the human
environment. Excluded from this
requirement are rules that are clarifying,
corrective, or procedural, or that do not
substantially change the effect of
legislation or the regulations being
amended.54 This proposed rule
proposes to establish an expedited
licensing process for qualifying facilities
at nonpowered dams and for closedloop pumped storage projects, as
directed by Congress in the AWIA.
Because this proposed rule is
procedural in nature and does not
substantially change the effect of the
underlying legislation, preparation of an
environmental assessment or EIS is not
required.
C. Regulatory Flexibility Act
64. The Regulatory Flexibility Act of
1980 (RFA) 55 generally requires a
description and analysis of proposed
rules that will have significant
economic impact on a substantial
number of small entities. The RFA
mandates consideration of regulatory
alternatives that accomplish the stated
objectives of a proposed rule and
minimize any significant economic
impact on a substantial number of small
entities.56 In lieu of preparing a
regulatory flexibility analysis, an agency
may certify that a proposed rule will not
have a significant economic impact on
a substantial number of small entities.57
65. The Small Business
Administration’s (SBA) Office of Size
Standards develops the numerical
definition of a small business.58 The
SBA size standard for electric utilities is
based on the number of employees,
including affiliates.59 Under SBA’s
current size standards, a hydroelectric
power generator (NAICS code 221111) 60
53 Regulations Implementing the National
Environmental Policy Act, Order No. 486, FERC
Stats. & Regs. ¶ 30,783 (1987) (cross-referenced at
FERC ¶ 61,284).
54 18 CFR 380.4(a)(2)(ii) (2018).
55 5 U.S.C. 601–612 (2012).
56 Id. 603(c).
57 Id. 605(b).
58 13 CFR 121.101 (2018).
59 Id. 121.201.
60 The North American Industry Classification
System (NAICS) is an industry classification system
that Federal statistical agencies use to categorize
businesses for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S.
economy. United States Census Bureau, North

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is small if it, including its affiliates,
employs 500 or fewer people.61
66. If enacted, this proposed rule
would directly affect only those entities
that file an application for a qualifying
facility at a nonpowered dam or for a
closed-loop pumped storage project, and
a request to use the expedited licensing
process. While the information to be
included in the licensing application
and the required federal and state
authorizations would remain the same,
documentation regarding these
authorizations will need to be submitted
at an earlier point in the licensing
process. Therefore, preparing a request
to use the expedited licensing process
would represent a slight increase (40
hours of reporting burden and
corresponding wage costs of $3,160 per
entity on an annual basis) in the
information collection reporting
requirements and burden for FERC–
500A and FERC–505. However, we do
not anticipate the impact of the
proposed rule on affected entities,
regardless of their status as a small
entity or not, to be significant.
67. Accordingly, pursuant to section
605(b) of the RFA, the Commission
certifies that this proposed rule will not
have a significant economic impact on
a substantial number of small entities.
D. Comment Procedures
68. The Commission invites interested
persons to submit comments on the
matters and issues proposed in this
notice to be adopted, including any
related matters or alternative proposals
that commenters may wish to discuss.
Comments are due March 11, 2019.
Comments must refer to Docket No.
RM19–6–000, and must include the
commenters’ name, the organization
they represent, if applicable, and their
address.
69. The Commission encourages
comments to be filed electronically via
the eFiling link on the Commission’s
website at http://www.ferc.gov. The
Commission accepts most standard
word processing formats. Documents
created electronically using word
processing software should be filed in
native applications or print-to-PDF
format and not in a scanned format.
Commenters filing electronically do not
need to make a paper filing.
70. Commenters that are not able to
file comments electronically must send
an original of their comments to:
Federal Energy Regulatory Commission,
Secretary of the Commission, 888 First
Street NE, Washington, DC 20426.
American Industry Classification System, https://
www.census.gov/eos/www/naics/.
61 13 CFR 121.201 (2018) (Sector 22—Utilities).

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Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules
71. All comments will be placed in
the Commission’s public files and may
be viewed, printed, or downloaded
remotely as described in the Document
Availability section below. Commenters
on this proposal are not required to
serve copies of their comments on other
commenters.
E. Document Availability

List of Subjects in 18 CFR Part 7
Administrative practice and
procedure, Electric power, Reporting
and recordkeeping requirements.
By direction of the Commission.
Issued: January 31, 2019.
Kimberly D. Bose,
Secretary.

In consideration of the foregoing, the
Commission proposes to add part 7,
chapter I, title 18, Code of Federal
Regulations, as follows:

■

PART 7—EXPEDITED LICENSING
PROCESS FOR QUALIFYING NONFEDERAL HYDROPOWER PROJECTS
AT EXISTING NONPOWERED DAMS
AND FOR CLOSED-LOOP PUMPED
STORAGE PROJECTS
Applicability and Definitions.
Use of Expedited Licensing Process.
Adequacy Review of Application.
Additional Information.

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7.6
7.7
7.8
7.9

Decision on Request To Use Expedited
Licensing Process.
Notice of Acceptance and Ready for
Environmental Analysis.
Amendment of Application.
Other Provisions.
Transition Provision.

Authority: 16 U.S.C. 791a-825r; Pub. L.
115–270, 132 Stat. 3765.
§ 7.1

72. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the internet through the
Commission’s Home Page (http://
www.ferc.gov) and in the Commission’s
Public Reference Room during normal
business hours (8:30 a.m. to 5:00 p.m.
Eastern time) at 888 First Street NE,
Room 2A, Washington, DC 20426.
73. From the Commission’s Home
Page on the internet, this information is
available on eLibrary. The full text of
this document is available on eLibrary
in PDF and Microsoft Word format for
viewing, printing, and/or downloading.
To access this document in eLibrary,
type the docket number, excluding the
last three digits of this document, in the
docket number field.
74. User assistance is available for
eLibrary and the Commission’s website
during normal business hours from the
Commission’s Online Support at (202)
502–6652 (toll free at 1–866–208–3676)
or email at [email protected],
or the Public Reference Room at (202)
502–8371, TTY (202) 502–8659. Email
the Public Reference Room at
[email protected].

Sec.
7.1
7.2
7.3
7.4

7.5

Jkt 247001

Applicability and definitions.

(a) This part applies to the processing
of applications for original licenses for
qualifying non-federal hydropower
projects at existing nonpowered dams
and for closed-loop pumped storage
projects pursuant to sections 34 and 35
of the Federal Power Act.
(b) Applicability of Existing
Regulations. Except where superseded
by the expedited licensing process set
forth in this part, the regulations
governing license applications under
parts 4 and 5 of this chapter, as
applicable, also apply to license
applications filed under this part.
(c) Definitions. The definitions in
§ 4.30(b) of this chapter apply to this
part. In addition, for the purposes of this
part–
(1) Qualifying nonpowered dam
means any dam, dike, embankment, or
other barrier–
(i) The construction of which was
completed on or before October 23,
2018;
(ii) That is or was operated for the
control, release, or distribution of water
for agricultural, municipal, navigational,
industrial, commercial, environmental,
recreational, aesthetic, drinking water,
or flood control purposes; and
(iii) That, as of October 23, 2018, was
not generating electricity with
hydropower generating works that were
licensed under, or exempted from the
license requirements contained in, Part
I of the Federal Power Act.
(2) Qualifying facility means a facility
that is determined under section 34 of
the Federal Power Act to meet the
qualifying criteria for non-federal
hydropower projects at existing
nonpowered dams.
(3) Closed-loop pumped storage
project means a pumped storage project
that is not continually connected to a
naturally-flowing water feature.
(d) Who may file. Any citizen,
association of citizens, domestic
corporation, municipality, or state that
develops and files a license application
under 18 CFR parts 4 and 5, as
applicable, may request expedited
processing under this part.
(e) Use of expedited licensing process.
An applicant wishing to use this
expedited licensing process must apply
for and receive authorization from the

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Commission under this part. An
applicant under this part may elect to
use the licensing process provided for in
18 CFR part 5 (i.e., integrated license
application process), or as provided
under § 5.1 of this chapter:
(1) 18 CFR part 4, subparts D–H (i.e.,
traditional process); or
(2) § 4.34(i) of this chapter,
Alternative procedures.
§ 7.2

Use of Expedited Licensing Process.

(a) In order to pursue the expedited
licensing process, an applicant must
request authorization for the expedited
process, as provided for in paragraph (b)
of this section. The licensing procedures
in this part do not apply to an
application for a new or subsequent
license.
(b) An application that accompanies a
request for authorization to use the
expedited licensing process must
include the information specified
below.
(1) Section 34 of the Federal Power
Act Qualification—Projects at
Nonpowered Dams. The application
must demonstrate that the proposed
facility meets the following
qualifications pursuant to section 34(e)
of the Federal Power Act:
(i) As of October 23, 2018, the
proposed hydropower facility was not
licensed under or exempted from the
license requirements contained in Part I
of the Federal Power Act;
(ii) The facility will be associated
with a qualifying nonpowered dam;
(iii) The facility will be constructed,
operated, and maintained for the
generation of electric power;
(iv) The facility will use for such
generation any withdrawals, diversions,
releases, or flows from the associated
qualifying nonpowered dam, including
its associated impoundment or other
infrastructure; and
(v) The operation of the facility will
not result in any material change to the
storage, release, or flow operations of
the associated qualifying nonpowered
dam.
(2) Section 35 of the Federal Power
Act Qualification—Closed-Loop
Pumped Storage Projects. The
application must demonstrate that the
proposed closed-loop pumped storage
project meets the following
qualifications pursuant to section
35(g)(2) of the Federal Power Act:
(i) The project will cause little to no
change to existing surface and
groundwater flows and uses, and
(ii) The project is not likely to
adversely affect species listed as a
threatened species or endangered
species, or designated critical habitat of
such species, under the Endangered
Species Act of 1973.

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Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules

(3) Section 401 of the Clean Water
Act. The application must include a
copy of a request for certification under
section 401(a)(1) of the Clean Water Act,
including proof of the date on which the
certifying agency received the request;
and
(i) A copy of the water quality
certification;
(ii) Evidence of waiver of water
quality certification. A certifying agency
is deemed to have waived the
certification requirements of section
401(a)(1) of the Clean Water Act if the
certifying agency has not denied or
granted certification by one year after
the date the certifying agency received
a written request for certification; or
(iii) Documentation from the state
certifying agency that the water quality
certification application is complete. If
a certifying agency denies certification,
the applicant must file a copy of the
denial within 30 days after the applicant
receives it.
(4) Endangered Species Act (ESA).
The application must include:
(i) A no-effect determination that
includes documentation that no listed
species or critical habitat are present at
the proposed project site;
(ii) Documentation of concurrence
from the U.S. Fish and Wildlife Service
and the National Marine Fisheries
Service (Service(s)), as necessary, on a
not likely to adversely affect
determination; or
(iii) A draft Biological Assessment
that includes documentation of
consultation with the Service(s).
(5) Section 106 of the National
Historic Preservation Act.
Documentation that section 106
consultation has been initiated with the
state historic preservation officer(s) and
any Indian Tribes identified as having
an interest in the project.
(6) Dam Owner Documentation. For
projects to be located at existing
nonpowered dams:
(i) Documentation of consultation
with any nonfederal owner of the
nonpowered dam if the applicant is not
the owner and confirmation that the
owner is not opposed to a hydropower
development at the location; or
(ii) Documentation from the federal
entity that non-federal hydropower
development is not precluded at the
proposed location and confirmation that
the federal entity is not opposed to a
hydropower development at the
location.
(7) Public Parks, Recreation Areas,
and Wildlife Refuges. If the project
would use any public park, recreation
area, or wildlife refuge established
under state or local law, documentation
from the managing entity indicating it is

VerDate Sep<11>2014

16:10 Feb 06, 2019

Jkt 247001

not opposed to the site’s use for
hydropower development.

to a standard processing schedule under
18 CFR parts 4 and 5, as applicable.

§ 7.3

§ 7.6 Notice of acceptance and ready for
environmental analysis.

Adequacy Review of Application.

(a) Adequacy Review of License
Applications. Review of the original
license application for which expedited
processing under this part is requested
will be conducted pursuant to 18 CFR
part 4 or 5, as applicable.
(b) Deficient License Applications. If
an original license application for which
expedited processing is requested under
this part is rejected under 18 CFR parts
4 and 5, as applicable, the request for
authorization for the expedited
licensing process under this part is
deemed rejected.
§ 7.4

Additional information.

An applicant may be required to
submit any additional information or
documentation that the Commission
considers relevant for an informed
decision on the application for
authorization under this part. The
information or documents must take the
form, and must be submitted within the
time, that the Commission prescribes.
An applicant may also be required to
provide within a specified time
additional copies of the application, or
any of the additional information or
documents that are filed, to the
Commission or to any person, agency,
Indian Tribe or other entity that the
Commission specifies. If an applicant
fails to provide timely additional
information, documents, or copies of
submitted materials as required, the
Director of the Office of Energy Projects
(Director) may dismiss the application,
hold it in abeyance, or take other
appropriate action under this chapter or
the Federal Power Act.
§ 7.5 Decision on request to use expedited
licensing process.

When the Commission has
determined that the original license
application meets the Commission’s
requirements as specified in 18 CFR
parts 4, 5, and this part; any deficiencies
have been cured; and no other
additional information is needed, the
Director will approve the request to use
the expedited licensing process under
this part. If the Commission cannot
deem the application meets the
Commission’s requirements as specified
in 18 CFR parts 4, 5, and this part; has
deficiencies; or additional information
is needed within 6 months of
application filing, the Director will deny
the request to use the expedited
licensing process. If the Director denies
the request to use the expedited
licensing process, the original license
application will be processed pursuant

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If the Director approves the request to
use the expedited licensing process
under § 7.5, the Commission will issue
a public notice as required in the
Federal Power Act, no later than 6
months after application filing, that:
(a) Accepts the application for filing
and specifies the date upon which the
application was accepted for filing;
(b) Finds that the application is ready
for environmental analysis;
(c) Requests comments, protests, and
interventions;
(d) Requests recommendations,
preliminary terms and conditions, and
preliminary fishway prescriptions,
including all supporting documentation;
and
(e) Establishes an expedited licensing
process schedule, including estimated
dates for:
(1) Filing of recommendations,
preliminary terms and conditions, and
fishway prescriptions;
(2) Issuance of a draft National
Environmental Policy Act (NEPA)
document, or an environmental
assessment not preceded by a draft;
(3) Filing of a response, as applicable,
to Commission staff’s request for ESA
concurrence or request for formal
consultation under the ESA, or
responding to other Commission staff
requests to Federal and State agencies,
or Indian Tribes pursuant to Federal
law, including the Magnuson-Stevens
Fishery Conservation and Management
Act and National Historic Preservation
Act;
(4) Filing of comments on the draft
NEPA document, as applicable;
(5) Filing of modified
recommendations, mandatory terms and
conditions, and fishway prescriptions in
response to a draft NEPA document or
environmental assessment, if no draft
NEPA document is issued; and
(6) Issuance of a final NEPA
document, if any.
§ 7.7

Amendment of application.

(a) Any proposed amendments to the
pending license application after
issuance of the notice of acceptance and
ready for environmental analysis under
this section must include:
(1) An amended or new section 401 of
the Clean Water Act water quality
certification if the amendment would
have a material adverse impact on the
water quality in the discharge from the
proposed project; and
(2) Updates to all other material
submitted under § 7.2(b)(1).

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Federal Register / Vol. 84, No. 26 / Thursday, February 7, 2019 / Proposed Rules
(b) If based on the information
provided under paragraph (a) of this
section, the proposed project under the
amended license application no longer
meets the requirements for expedited
processing under § 7.2, the Director will
notify the applicant that the application
will no longer be processed under the
expedited licensing process under this
part and that further processing of the
application will proceed under 18 CFR
parts 4 and 5, as applicable.
(c) If the Director approves the
continued processing of the amended
application under this part and the
amendment to the application would
materially change the project’s proposed
plans of development, as provided in
§ 4.35 of this chapter, an agency, Indian
Tribe, or member of the public may
modify the recommendations or terms
and conditions or prescriptions it
previously submitted to the Commission
pursuant to § 7.6. Such modified
recommendations, terms and
conditions, or prescriptions must be
filed no later than the due date specified
by the Commission for comments on the
amendment.
(d) Date of acceptance. The date of
acceptance of an amendment of
application for an original license filed
under this part is governed by the
provisions of § 4.35 of this chapter.
§ 7.8

(a) Except for provisions required by
statute, the Director may waive or
modify any of the provisions of this part
for good cause.
(b) Late-filed recommendations by
fish and wildlife agencies pursuant to
the Fish and Wildlife Coordination Act
and section 10(j) of the Federal Power
Act for the protection, mitigation of
damages to, and enhancement of fish
and wildlife affected by the
development, operation, and
management of the proposed project
and late-filed terms and conditions or
prescriptions filed pursuant to sections
4(e) and 18 of the Federal Power Act,
respectively, may be considered by the
Commission as cause to remove the
application from the expedited licensing
process. If late-filed recommendations,
terms and conditions, or prescriptions
would delay or disrupt the expedited
licensing proceeding, the Director will
notify the applicant that the application
will no longer be processed under the
expedited licensing process under this
part and that further processing of the
application will proceed under 18 CFR
parts 4 and 5, as applicable.
(c) License conditions and required
findings. (1) All licenses shall be issued
on the conditions specified in section 10
of the Federal Power Act and such other

16:10 Feb 06, 2019

§ 7.9

Transition provision.

This part shall only apply to original
license applications filed on or after
May 8, 2019.
[FR Doc. 2019–01256 Filed 2–6–19; 8:45 am]

Other provisions.

VerDate Sep<11>2014

conditions as the Commission
determines are lawful and in the public
interest.
(2) Subject to paragraph (b) of this
section, fish and wildlife conditions
shall be based on recommendations
timely received from the fish and
wildlife agencies pursuant to the Fish
and Wildlife Coordination Act.
(3) The Commission will consider the
timely recommendations of resource
agencies, other governmental units, and
members of the public, and the timely
recommendations (including fish and
wildlife recommendations) of Indian
Tribes affected by the project.
(4) Licenses for a project located
within any Federal reservation shall be
issued only after the findings required
by, and subject to, any conditions that
may be filed pursuant to section 4(e) of
the Federal Power Act.
(5) The Commission will require the
construction, maintenance, and
operation of such fishways as may be
timely prescribed by the Secretary of
Commerce or the Secretary of the
Interior, as appropriate, pursuant to
section 18 of the Federal Power Act.

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2479

definitions throughout the regulation.
This action is necessary for clarification
of terms and geographic application of
security zones in Sector Key West and
Sector Miami ports allowing for more
effective implementation of these
regulations to protect the public and
ports from potential subversive acts. We
invite your comments on this proposed
rulemaking.
DATES: Comments and related material
must be received by the Coast Guard on
or before March 11, 2019.
ADDRESSES: You may submit comments
identified by docket number USCG–
2018–0007 using the Federal
eRulemaking Portal at http://
www.regulations.gov. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this proposed
rulemaking, call or email Lieutenant
Samuel Rodriguez-Gonzalez, Sector
Miami Waterways Management
Division, U.S. Coast Guard; telephone
(305) 535–4307, email
[email protected];
or BMC Greg Bergstrom, Sector Key
West Waterways Management Division,
U.S. Coast Guard; telephone (305) 292–
8772, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations

DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2018–0007]
RIN 1625–AA87

Security Zones; Port of Palm Beach,
Port Everglades, Port of Miami, and
Port of Key West, Florida
Coast Guard, DHS.
Supplemental notice of
proposed rulemaking.

AGENCY:
ACTION:

On September 16, 2016, the
Coast Guard published a notice of
proposed rulemaking (NPRM) to
establish security zones on the
navigable waters of the Seventh Coast
Guard District to allow the Coast Guard
to restrict vessels from entering or
transiting certain waters. The Coast
Guard proposes amendments to its
regulation by modifying the security
zones in the Port of Palm Beach, Port
Everglades, Port of Miami, and Port of
Key West, Florida and updating

SUMMARY:

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CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code

II. Background, Purpose, and Legal
Basis
A. Regulatory History and Information
The purpose of this proposed
amendment is to protect the public and
ports from potential subversive acts.
The amendments establish a new
section for Sector Key West security
zones that previously were annotated as
belonging to Sector Miami; clarify when
the Port Everglades fixed security zones
will be in effect, modify and lengthen a
portion of one Port Everglades fixed
security zone; and update language and
definitions throughout the regulation.
B. Discussion of Comments on NPRM
and Changes
On September 16, 2016, the Coast
Guard published a notice of proposed
rulemaking (NPRM) entitled ‘‘Security
Zones; Port of Palm Beach, Port
Everglades, Port of Miami, and Port of

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