
[Federal Register Volume 84, Number 26 (Thursday, February 7, 2019)]
[Proposed Rules]
[Pages 2469-2479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01256]


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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

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: 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 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.

ADDRESSES: 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-to-PDF 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, shana.wiseman@ferc.gov.
Kenneth Yu (Legal Information), Office of the General Counsel, Federal 
Energy Regulatory Commission, 888 First Street NE, Washington, DC 
20426, (202) 502-8482, kenneth.yu@ferc.gov.
Tara DiJohn (Legal Information), Office of the General Counsel, Federal 
Energy Regulatory Commission, 888 First Street NE, Washington, DC 
20426, (202) 502-8671, tara.dijohn@ferc.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

 
                                                              Paragraph
                                                                 Nos.
 
I. Background..............................................            3
II. Discussion.............................................            6
    A. Eligibility Criteria................................            8
        1. Statutory Criteria for Qualifying Facilities....            9
        2. FERC-Defined Criteria for Expedited Process.....           14
    B. Expedited Licensing Process.........................           27
        1. Section 7.1--Applicability and Definitions......           28
        2. Section 7.2--Use of Expedited Licensing Process.           29
        3. Section 7.3--Adequacy Review of Application.....           30
        4. Section 7.4--Additional Information.............           31

[[Page 2470]]

 
        5. Section 7.5--Decision on Request To Use                    32
         Expedited Licensing Process.......................
        6. Section 7.6--Notice of Acceptance and Ready for            33
         Environmental Analysis............................
        7. Section 7.7--Amendment of Application...........           35
        8. Section 7.8--Other Provisions...................           36
        9. Section 7.9--Transition Provision...............           37
    C. Key Issues and Goals for an Expedited Licensing                38
     Process...............................................
        1. Definition of Closed-Loop Pumped Storage........           39
        2. License Amendments..............................           42
        3. Projects That Require the Preparation of an EIS.           45
III. Regulatory Requirements...............................           48
    A. Information Collection Statement....................           48
    B. Environmental Analysis..............................           63
    C. Regulatory Flexibility Act..........................           64
    D. Comment Procedures..................................           68
    E. Document Availability...............................           72
 

    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.
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    \1\ Public Law 115-270, 132 Stat. 3765 (2018) (AWIA).
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    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, 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\
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    \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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    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 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.
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    \4\ See Commission staff's Letter to ITF Participants, Summary 
of Interagency Task Force Activities (Jan. 10, 2019).
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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 Sec.  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-by-case 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

[[Page 2471]]

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 FERC-defined 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 FERC-defined 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.
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 closed-loop 
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\
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    \5\ 16 U.S.C. 1531-1544 (2012).
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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 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.
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    \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/staff-reports/2017/final-2-year-process.pdf 
(Pilot Two-Year Licensing Report).
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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\
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    \7\ See 33 U.S.C. 1341(a)(1) (2012).
    \8\ Id. 1341(d).
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    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 Two-Year 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\
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    \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 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.

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[[Page 2472]]

    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\
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    \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.
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    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., 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\
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    \13\ 42 U.S.C. 4321 et seq. (2012).
    \14\ Pilot Two-Year Licensing Report at 43.
    \15\ Id.
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    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.
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    \16\ 16 U.S.C. 1536(a)(2) (2012).
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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 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.
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    \17\ 54 U.S.C. 306108 (2012).
    \18\ 36 CFR pt. 800 (2018).
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    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 non-federal 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

[[Page 2473]]

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.
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    \19\ Public Law 102-486, 106 Stat. 2776 (1992).
    \20\ 16 U.S.C. 814 (2012).
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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 Sec.  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 Sec.  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\
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    \21\ 18 CFR pt. 5 (2018).
    \22\ Id. pt. 4, subpts. D-H.
    \23\ Id. 4.34(i).
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2. Section 7.2--Use of Expedited Licensing Process
    29. Proposed Sec.  7.2 explains that an applicant must submit a 
request for authorization to use the expedited licensing process. 
Proposed Sec.  7.2(b) identifies the information that must be included 
in any original license application that accompanies a request 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  7.6 describes the components of the 
public notice that the 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.
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    \24\ 16 U.S.C. 1801 et seq. (2012).
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7. Section 7.7--Amendment of Application
    35. Proposed Sec.  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 Sec.  7.8 authorizes the Director to waive or modify 
provisions of this part for good cause. The Commission may consider 
late-filed

[[Page 2474]]

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.
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    \25\ 16 U.S.C. 661-666c (2012).
    \26\ Id. 803(j).
    \27\ Id. 797(e).
    \28\ Id. 811.
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9. Section 7.9--Transition Provision
    37. Proposed Sec.  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:
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     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.
---------------------------------------------------------------------------

    \30\ See Eagle Crest Energy Co., 147 FERC ] 61,220 (2014).
---------------------------------------------------------------------------

     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 loss.\31\ Construction of the project has not commenced.
---------------------------------------------------------------------------

    \31\ See GB Energy Park, LLC, 157 FERC ] 62,196 (2016).
---------------------------------------------------------------------------

     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\
---------------------------------------------------------------------------

    \32\ Summit Energy Storage, Inc., 55 FERC ] 62,026 (1991).
    \33\ Summit Energy Storage, Inc., 95 FERC ] 62,035 (2001).
---------------------------------------------------------------------------

     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\
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    \34\ Halecrest Co., 60 FERC ] 61,121 (1992).
    \35\ Mt. Hope Waterpower Project, LLP, 113 FERC ] 61,258 (2005).
---------------------------------------------------------------------------

     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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 naturally-flowing 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.
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 amendment-related 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, Sec.  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 CFR 380.6(b) (2018).
    \40\ Id. 380.6(a)(4).

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[[Page 2475]]

    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 two-year 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.
---------------------------------------------------------------------------

    \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/MOU-One-Federal-Decision.pdf.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \44\ 44 U.S.C. 3501-3521 (2012).
    \45\ See 5 CFR 1320.11 (2018).
---------------------------------------------------------------------------

    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.
    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\
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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
                                        Number of    responses \49\   Total number    Average burden hours & cost per      Total annual burden hours &
                                       respondents   per respondent   of responses             response \50\                    total annual cost
                                                (1)             (2)     (1) x (2) =  (4)..............................  (3) x (4) = 5
                                                                                (3)
                                    --------------------------------------------------------------------------------------------------------------------
FERC-500A..........................          \51\ 5               1               5  40; $3,160.......................  200 hrs.; $15,800.
FERC-505...........................          \52\ 5               1               5  40 hrs.; $3,160..................  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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 
for-profit 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

[[Page 2476]]

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 DataClearance@ferc.gov, 
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).

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 closed-loop 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \55\ 5 U.S.C. 601-612 (2012).
    \56\ Id. 603(c).
    \57\ Id. 605(b).
---------------------------------------------------------------------------

    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\ is 
small if it, including its affiliates, employs 500 or fewer people.\61\
---------------------------------------------------------------------------

    \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 American Industry 
Classification System, https://www.census.gov/eos/www/naics/.
    \61\ 13 CFR 121.201 (2018) (Sector 22--Utilities).
---------------------------------------------------------------------------

    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.

[[Page 2477]]

    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

    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 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
public.referenceroom@ferc.gov.

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.

0
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 NON-FEDERAL 
HYDROPOWER PROJECTS AT EXISTING NONPOWERED DAMS AND FOR CLOSED-LOOP 
PUMPED STORAGE PROJECTS

Sec.
7.1 Applicability and Definitions.
7.2 Use of Expedited Licensing Process.
7.3 Adequacy Review of Application.
7.4 Additional Information.
7.5 Decision on Request To Use Expedited Licensing Process.
7.6 Notice of Acceptance and Ready for Environmental Analysis.
7.7 Amendment of Application.
7.8 Other Provisions.
7.9 Transition Provision.

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


Sec.  7.1   Applicability and definitions.

    (a) This part applies to the processing of applications for 
original licenses for qualifying non-federal hydropower projects at 
existing nonpowered dams and for 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 Sec.  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 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 Sec.  5.1 of this chapter:
    (1) 18 CFR part 4, subparts D-H (i.e., traditional process); or
    (2) Sec.  4.34(i) of this chapter, Alternative procedures.


Sec.  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.

[[Page 2478]]

    (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 not opposed to the site's use for hydropower 
development.


Sec.  7.3   Adequacy Review of Application.

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


Sec.  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.


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


Sec.  7.6   Notice of acceptance and ready for environmental analysis.

    If the Director approves the request to use the expedited licensing 
process under Sec.  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.


Sec.  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 Sec.  7.2(b)(1).

[[Page 2479]]

    (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 Sec.  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 Sec.  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 Sec.  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 Sec.  4.35 of this chapter.


Sec.  7.8   Other provisions.

    (a) Except for provisions required by statute, the Director may 
waive or modify any of the provisions of this part for good cause.
    (b) Late-filed recommendations by fish and wildlife agencies 
pursuant to the Fish and Wildlife Coordination Act and section 10(j) of 
the Federal Power Act for the protection, mitigation of damages to, and 
enhancement of fish and wildlife affected by the development, 
operation, and management of the proposed project and late-filed terms 
and conditions or prescriptions filed pursuant to sections 4(e) and 18 
of the Federal Power Act, respectively, may be considered by the 
Commission as cause to remove the application from the expedited 
licensing process. If 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 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.


Sec.  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]
 BILLING CODE 6717-01-P


