Regulations for the Licensing of Hydroelectric Projects; Final Rule

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 4 and 375

[Docket No. RM95-16-000; Order No. 596]

Regulations for the Licensing of Hydroelectric Projects; Final

Rule

Issued October 29, 1997.

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is

revising its procedural regulations governing applications for licenses

and exemptions for hydroelectric projects. The regulations offer an

alternative administrative process whereby in appropriate circumstances

the pre-filing consultation process and the environmental review

process will be combined. This alternative process is designed to

improve communication among affected entities and to be flexible and

tailored to the facts and circumstances of the particular proceeding.

The final rule does not delete or replace any existing regulations.

EFFECTIVE DATE: December 5, 1997.

FOR FURTHER INFORMATION CONTACT:

Edward Abrams, Office of Hydropower Licensing, 888 First Street, N.E.,

Washington, DC 20426, (202) 219-2773

Merrill Hathaway, Office of the General Counsel, 888 First Street,

N.E., Washington, DC 20426, (202) 208-0825

[[Page 59803]]

SUPPLEMENTARY INFORMATION: In addition to publishing the full text of

this document in the Federal Register, the Commission provides all

interested persons an opportunity to inspect or copy the contents of

this document during normal business hours in Room 2A, 888 First

Street, N.E., Washington DC 20426.

The Commission Issuance Posting System (CIPS), an electronic

bulletin board service, provides access to the texts of formal

documents issued by the Commission. CIPS is available at no charge to

the user and may be accessed using a personal computer with a modem by

dialing 202-208-1397 if dialing locally or 1-800-856-3920 if dialing

long distance. To access CIPS, set your communications software to

19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex,

no parity, 8 data bits and 1 stop bit. The full text of this order will

be available on CIPS in ASCII and WordPerfect 6.1 format. CIPS user

assistance is available at 202-208-2474.

CIPS is also available on the Internet. Telnet software is

required. To access CIPS via the Internet, point your browser to the

URL address: http://www.ferc.fed.us and select the Bulletin Board

System. Read instructions on the next page, select FedWorld Dialup/

Telnet. A screen will appear presenting you with several options,

select option 1. There will be a welcome message from FedWorld and a

log on prompt. Enter your user ID and password (if you already have an

account). To establish an account, type the word NEW and answer the

questions which follow. Upon establishing an account, the FedWorld Main

Menu will appear. From the Main Menu, type /go ferc.

Finally, the complete text on diskette in WordPerfect format may be

purchased from the Commission's copy contractor, La Dorn Systems

Corporation. La Dorn Systems Corporation is also located in the Public

Reference Room at 888 First Street, N.E., Washington, DC 20426.

Before Commissioners: James J. Hoecker, Chairman; Vicky A.

Bailey, and William L. Massey.

I. Introduction

On November 26, 1996, the Federal Energy Regulatory Commission

(Commission) issued a Notice of Proposed Rulemaking (NOPR) to revise

its procedural regulations governing applications for licenses for

hydroelectric projects.\1\ In response to the comments received,\2\ the

Commission adopts a final rule in this proceeding which offers an

alternative administrative process in which the pre-filing consultation

and the environmental review processes will be combined. This

alternative process is designed to improve communication between

affected entities and to be flexible and tailored to the facts and

circumstances of the particular proceeding. The final rule does not

delete or replace any existing regulations.

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\1\ 77 FERC para. 61,209 (1996).

\2\ The commenters are listed in Appendix A.

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II. Purpose of the Final Rule

The NOPR was issued in response to a petition by the National

Hydropower Association (NHA), seeking completely new Commission

regulations to improve the licensing process for hydropower applicants.

The Commission agreed with commenters on NHA's petition, that adoption

of its proposed rules would not be fair to other entities interested in

the licensing process, such as resource agencies, Indian tribes and

citizens' groups, and would not in fact expedite licensing proceedings.

The Commission noted, however, that the collaborative option in NHA's

proposal resembled the alternative procedures that the Commission had

been developing for use on a case-by-case basis as requested by the

applicant, pursuant to waivers granted by the Office of Hydropower

Licensing. The Commission determined that the experience with the

alternative procedures had been positive, that many applicants and

interested entities appeared to be interested in pursuing the

alternative procedures, and that it would be helpful to refine,

clarify, and codify the procedures in the regulations.

A wide range of entities, representing the hydropower industry,

state and federal resource agencies, citizens' groups, and an Indian

tribe, filed comments generally supporting adoption of the rule

proposed in the NOPR. The commenters made a number of recommendations

for improving the proposed rule, many of which are adopted in the final

rule, as discussed in detail below.

The final rule offers alternative administrative procedures for the

processing of applications for licenses to construct, operate, and

maintain hydropower projects, including applications for certain major

amendments to such licenses, and for applications for exemption. Under

the final rule, in appropriate circumstances pre-filing consultation

and environmental review can be combined into a single process. This

alternative process can be used only if there is a consensus among the

interested entities to make use of it (consent of the applicant is

required but agreement of everyone interested is not), and is designed

to be flexible and tailored to the facts and circumstances of the

particular proceeding. The final rule does not delete or replace any

existing regulations, but would supplement the existing regulations by

offering applicants an opportunity to use the alternative procedures.

The present regulations require applicants for a license to engage

in consultation with federal and state resource agencies and Indian

tribes during the preparation of the application for the license and

prior to filing it. Thereafter the Commission performs an environmental

review of the application pursuant to the National Environmental Policy

Act (NEPA) 3 and related statutes. The final rule is

intended to simplify and expedite the licensing process by combining

the pre-filing consultation and environmental review processes into a

single process, and by improving communication among the participants

in the licensing process. We hope that adoption and use of the

alternative procedures, on a voluntary basis by applicants, will result

in expedited licensing proceedings before the Commission, including the

narrowing of contested issues and the submission of offers of

settlement that can be used as a basis for licensing orders.

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\3\ 42 U.S.C. 4321 et seq.

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III. Discussion

A. Application for and Scope of Alternative Procedures

In proposed Sec. 4.34(i)(1) we set forth the scope of the

alternative procedures and who could request them. The proposed

regulatory text stated that the applicant could submit a request to the

Commission to use the alternative procedures where it intended to file

an application for a hydropower license or for the amendment of a

license subject to the provisions of the pre-filing consultation

regulations at Sec. 4.38.

Some commenters pointed out that the title of the rule in the

notice in the Federal Register indicated it only applied to

applications for relicense and that it should be changed to include all

applications for license. A commenter recommended that an applicant be

required to join with other interested entities, such as resource

agencies, in making such a request.4 Commenters also have

asked whether the alternative

[[Page 59804]]

procedures apply to applications for preliminary permits or exemption.

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\4\ Comments of U.S. Department of Commerce, National Marine

Fisheries Service (NMFS), at 5.

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We will not require the applicant to obtain the express consent of

others in order to submit a request to use alternative procedures in

preparing its application. An applicant may voluntarily request to use

the alternative procedures. As provided in the final rule and discussed

below, the Commission will give public notice of, and interested

entities may submit comments on, the applicant's request to use

alternative procedures. If an applicant for a hydropower license wishes

to use the standard procedures in preparing its application, it may

comply with the pre-filing consultation requirements of Sec. 4.38 or

Sec. 16.8 of the regulations and need not prepare a preliminary draft

NEPA document.

The title of the notice accompanying this final rule in the Federal

Register accurately describes the application of the new rule,

extending to all applications for the licensing of hydroelectric

projects. The alternative procedures apply only to applications for

license and amendments to licenses that are subject to the pre-filing

consultation rules contained in Sec. 4.38 and Sec. 16.8 of the

regulations. Since applications for preliminary permit are not subject

to such requirements, we see no reason to make the alternative

procedures available to such applicants. On the other hand,

applications for exemption are subject to the pre-filing consultation

requirements of Sec. 4.38, and we conclude that these alternative

procedures should be available to applicants for exemption, if they

wish to take advantage of them and meet the applicable requirements of

the final rule. Accordingly, we are making changes in the rule to

clarify that it also applies to applicants for exemption.

B. Objectives of Process

In the proposed regulatory text at Sec. 4.34(i)(2), we set forth

the goals of the alternative procedures, which included integrating the

pre-filing consultation process and the environmental review process,

facilitating greater participation by Commission staff and the public

in the pre-filing consultation process, allowing the applicant to

prepare an environmental assessment (EA) or a contractor to prepare an

environmental impact statement (EIS), encouraging the applicant and

interested persons to narrow any areas of disagreement, and promoting

settlement of the issues raised by the hydropower proposal.

Commenters have recommended that these statements of objective be

broadened in the final rule. They have asked that the interests of

Indian tribes be kept in mind.5 A commenter has also asked

that the stated objectives include providing for effective

participation in the process by citizens' groups, including the

provision of financial assistance where appropriate, and allowing such

participants a role in selecting contractors to conduct scientific

studies and prepare required documents.6 Commenters have

asked the Commission to keep in mind in regard to the proposed

regulations the goal of promoting competition between rival applicants

for proposed hydropower facilities.7 A commenter was

concerned that the proposed rule may suggest that under the alternative

procedures the Commission would delegate to an outside party its

responsibility for NEPA documents.8

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\5\ Comments of Penobscot Nation (Penobscots), U.S. Dept. of the

Interior (Interior) at 4, 10.

\6\ Hydropower Reform Coalition (HRC) Comments at 8-10.

\7\ Comments of Holyoke Gas & Electric Dept. and the Northern

California Power Agency.

\8\ Comments of NMFS at 3.

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We believe that the language of the objectives of the alternative

procedures should be revised. We have changed proposed

Sec. 4.34(i)(2)(i) to reflect the goal of combining into one process

not only the pre-filing consultation procedures and the environmental

review process under NEPA, but also those administrative processes

associated with section 401(a) of the Clean Water Act 9 and

other statutes. We are revising proposed Sec. 4.34(i)(2)(ii) to make

clear that the goal of the alternative procedures includes greater

participation in the process by and improved communication among all

concerned entities, including the applicant, resource agencies, Indian

tribes, the public and Commission staff. While meeting certain minimum

requirements of openness and fairness, the process is designed to be as

flexible as possible, tailored to the circumstances of each case.

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\9\ 33 U.S.C. 1341(a)(1).

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Section 4.34(i)(2)(iv) is revised to state that the rule is

designed to promote cooperative efforts by the applicant and interested

entities, including the sharing of pertinent information about the

resource impacts of the applicant's hydropower proposal and appropriate

mitigation and enhancement measures. The goal of encouraging settlement

is not confined to submitting a formal offer of settlement among

parties on the application when it is filed, but includes any agreement

that can be reached that narrows the range of contested issues, both on

necessary studies and on mitigation and enhancement measures.

We decline to modify the goal statement in the regulations as

recommended by HRC. We have no objection to an applicant voluntarily

deciding to provide financial assistance to citizens' groups to

facilitate their effective participation in the alternative process or

to allowing such groups an appropriate role in choosing contractors to

do necessary studies. We believe that if any participant believes such

measures are important and would further the successful completion of

the process and the achievement of its other objectives, these

questions should be discussed among the participants. But we do not

believe it would be appropriate or helpful for the Commission to

attempt to force participants to make such arrangements, which should

be strictly voluntary and arise from the particular circumstances and

dynamics of each case.

The final rule establishing alternative procedures for hydropower

applications is neutral in regard to its impact on potential rival

applicants for hydropower facilities, such as an applicant seeking to

renew its license for such facilities and a municipal competitor

seeking a license for the same facilities. No applicant in a

competitive proceeding has asked the Commission to use the alternative

procedures. However, nothing in the final rule precludes granting such

a request. If it is made, we will consider whether it should be

granted, considering all the relevant factors presented.

We are changing the language of Sec. 4.34(i)(2)(iii) to state that

the applicant or its contractor or consultant will only prepare a

preliminary draft EA or a preliminary draft EIS, which after filing

(with the related application) will be subject to complete review,

revision and issuance for comment by the Commission.

Finally, we are adding a Sec. 4.34(i)(2)(v) to the rules, to make

it clear that another objective of the alternative procedures is the

orderly and expeditious review by the Commission of any agreement or

offer of settlement filed to resolve issues raised by an application

for hydropower license, amendment, or exemption. We hope that

involvement of the Commission's staff, prior to the filing of an

application and agreement or offer of settlement with the Commission,

together with the preparation of preliminary draft NEPA documents

during the pre-filing consultation process, will result in filings that

the Commission can expeditiously review. These filings should include

water quality certification under section 401 of the Clean Water Act,

with any

[[Page 59805]]

applicable conditions, and (after filing of the application) a final

decision by any land management agency under section 4(e) of the

Federal Power Act (FPA),10/ with mandatory conditions,

should be submitted to the Commission so that we can make a prompt

decision on the license or exemption application.

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\10\ 16 U.S.C. 791a et seq.

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C. Demonstration Required of Applicant

The NOPR proposed in Sec. 4.34(i)(3)(i) to require that the

applicant, in its request to the Commission for use of the alternative

procedures, demonstrate that it had made a reasonable effort to contact

all resource agencies, Indian tribes, citizens' groups and others

affected by the hydropower proposal, and that a ``consensus'' exists

that the use of alternative procedures is appropriate.

This proposed regulatory text generated the most controversy in the

rulemaking. Commenters disagreed vigorously as to what ``consensus''

should mean, with some arguing that it should mean unanimous agreement

by all concerned,11/ and others arguing that it should mean

the preponderance of views, at least by the major participants in the

process.12/ Some commenters have proposed elaborate voting

schemes in this regard,13/ while others have claimed that

certain entities, such as resource agencies, should have a veto power

over use of the alternative procedures.14/ Some commenters

have asked the Commission to specify in the rule exactly what the

requester should include in its showing.15/

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\11\ E.g., Comments of HRC at 4-5, Interior at 3-4.

\12\ E.g., Comments of NHA at 4, 15-18, Alabama Power Co. and

Georgia Power Co. at 3-5.

\13\ E.g., Comments of Public Generating Pool at 6-8.

\14\ Comments of U.S. Dept. of Agriculture, Forest Service, at

2.

\15\ Comments of NMFS at 5.

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The term ``consensus'' in ordinary usage means ``general

agreement'' or ``collective opinion: the judgment arrived at by most of

those concerned.'' 16/ That is how the Commission employs

the term here. While unanimous views obviously reflect consensus,

unanimity is not always essential to a fundamentally consensual

approach in a multi-party situation. The final rule does not require

the applicant, in the request for use of the alternative procedures, to

show that everyone concerned supports the use of these procedures. The

applicant need only show that the weight of opinions expressed make it

reasonable to conclude that under the circumstances it appears that use

of the alternative procedures will be productive. We do not require the

applicant to make any formal showing, such as a signed agreement

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\16\ Webster's Third New International Dictionary (1981), or use

of a particular voting procedure, to memorialize the consensus on

use of the procedures. We do not give any single interested entity a

veto power over the applicant's use of alternative procedures.

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We envision a series of interactions between the applicant and

participants that goes beyond an exchange of letters. Such interactions

could include teleconferences and meetings involving Commission staff

to explore the alternative procedures. In some cases the applicant's

showing may rely on a lack of objections raised in such meetings. This

situation may arise at the outset of the pre-filing consultation

process, when interested entities are unsure of how the alternative

procedures may compare to those otherwise required under Commission

regulations and are unaware of the relative benefits of the

alternative. The Commission believes that in these situations it is

worth allowing the applicant and participants to try the alternative

process rather than closing the door on this option.

To protect the rights of all interested entities to be advised of

the request for alternative procedures and to file comments on the

request in order to make their views known directly to the Commission,

the final rule specifies, as proposed in the NOPR, that in all cases

the Commission will give public notice in the Federal Register of the

filing by an applicant of a request to use alternative procedures.

Comments may be filed in response to this notice, and the Commission

will take them into account in deciding whether or not to grant the

request. The decision on the request will be final and not subject to

interlocutory rehearing or appeal.17

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\17\ The Commission will place a copy of the decision (on the

request to use alternative procedures) on the Commission Issuance

Posting System (CIPS), so that it can readily be found by anyone

interested.

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D. Required Steps to Follow

In Sec. 4.34(i)(4), the NOPR set forth certain minimum steps that

all alternative procedures should include as appropriate: (1) The

initial information meeting; (2) the scoping of environmental issues;

(3) the analysis of scientific studies and further scoping; and (4) the

preparation of a preliminary draft NEPA document and related

application. Participants would be free, under the communications

protocol to be submitted with the request to use alternative

procedures, to describe those steps in greater detail or to agree to

steps in addition to those set forth in the proposed rule.

Some commenters objected to the statement that these steps would

only be included ``as appropriate,'' and expressed their stongly held

views that the steps were the minimum that should be required in any

alternative procedure.18 Others argued in general for more

flexibility.19 Some commenters wanted more requirements in

the regulatory text, to make clear that the alternative process must

include distribution by the applicant of an initial information

package, that the initial information meeting should be open to the

public, and that there should be cooperation between the applicant and

interested persons on the determination of necessary studies and their

design and scope.20

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\18\ E.g., Comments of Interior at 4, Forest Service at 3.

\19\ NMFS Comments at 4-5.

\20\ HRC Comments at 9-10, 13.

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Commenters also requested that the Commission specify in detail in

the regulations the deadlines that would apply during the alternative

process.21

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\21\ E.g., Comments of Forest Service at 4.

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We have set forth in the final rule a list of the minimum steps we

think should be a part of any alternative process, if it is to serve

its objectives of expediting the completion of the administrative

process, while at the same time being fair to all participants. The

final rule adopted provides for the inclusion of three steps by

combining the second and third steps (dealing with the scoping and

study processes, as outlined above) that were proposed in the NOPR. We

do not believe that the requirement that these three steps be included

restricts the flexibility of the alternative process.

We do not, however, make the inclusion of these three steps

mandatory in every alternative process, as there may be special

circumstances where some of them are not possible or necessary.

The best example of such a case is if the alternative process

begins after the applicant has already completed the first step in the

standard pre-filing consultation process (the initial information

meeting open to the public). The Commission will entertain requests to

use the alternative process at any reasonable time, and they need not

be submitted before the commencement of the standard pre-filing

consultation process. In such a case, if the Commission grants the

request, it would make no sense to require by rule that the applicant

repeat a step that is the same as or substantially similar to a step it

[[Page 59806]]

has already taken under the standard process. The Commission is

sensitive to the concerns expressed in the comments and will not

abridge procedures allowed in the alternative process in a way that

would curtail notice to or participatory rights of any interested

entity. We wish to be flexible and fair to all concerned.

We agree with the comments asking for changes in the regulatory

text to clarify the basic requirements for the completion of these

minimum steps in the alternative process. Accordingly, Sec. 4.34(i)(4)

of the final rule makes clear that the applicant must distribute an

initial information package and conduct an initial information meeting

open to the public, as required in the standard process, and that the

approved procedures must include provisions for the cooperative scoping

of environmental issues with all participants, including the selection

and design of required scientific studies and any further scoping. Our

goal is to promote as much candid communication as possible among the

participants about the applicant's proposal, its resource impacts, and

the proposals and views of the other participants.

We do not think it is necessary or appropriate to spell out, in

greater detail in the regulations, deadlines for the alternative

process. The establishment of these deadlines should be done

cooperatively by the participants in a manner that fits the

circumstances and needs of each case, with the guidance and support of

Commission staff. We believe that the successful use of the alternative

procedures is predicated on a climate of cooperation among the

applicant and interested entities. Therefore we do not believe that the

Commission should mandate by rule exactly how the alternative process

may unfold in every case. To do so would unnecessarily repeat

requirements in the standard pre-filing consultation process, which

remains available for use in appropriate cases, and would undercut the

flexibility and spirit of cooperation and open communiciation that lie

at the heart of the alternative process.

E. Notice, Filings and Service Requirements

The NOPR proposed in Sec. 4.34(i)(5) that the Commission would give

public notice of the filing of the applicant's request to use the

alternative procedures, inviting comment on the request. Proposed

Sec. 4.34(6)(i) would require the Commission and the applicant to give

public notice of each of the four steps required in the alternative

process under proposed Sec. 4.34(i)(4). The applicant would be required

to give notice of each of these stages to entities on a mailing list

approved by the Commission. The proposal required the applicant to file

with the Commission quarterly reports on the progress of the

alternative process, pursuant to Sec. 4.34(i)(6)(ii), and implied in

Sec. 4.34(i)(6)(iii) that the applicant would also have to file with

the Commission the critical documents generated in the process, namely

the initial information package, scoping documents, and the preliminary

draft environmental review document.

Some commenters have urged the Commission to add language to the

rule in order to make it clear how the Commission and the applicant

would give notice.22 A commenter urged that, in the case of

an applicant seeking a new license, the applicant be required to give

notice at the outset to (1) any entity that had contacted the

Commission during the period of the previous license about the project

in question and (2) published lists of citizens' groups that may have

an interest.23 The Commission was also asked to require that

various filings made by the applicant in the course of the alternative

process be served on all participants in the process.24

Resource agencies requested that the Commission require the applicant,

at the conclusion of the alternative process, to index its public file

(which documents the pre-filing consultation and environmental review

processes) and submit all of these documents, together with the index,

to the Commission with its application.25 Commenters also

expressed concern that omission of Exhibit E would eliminate important

information from the Commission's record.26

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\22\ E.g., Comments of Interior at 5.

\23\ HRC Comments at 5-6.

\24\ Comments of Interior at 6-7.

\25\ Comments of Interior at 6-7 and Forest Service at 1.

\26\ Comments of Interior at 7.

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We agree that revisions should be made in the final rule about the

requirements for notice, filings and service of documents. New

Sec. 4.34(i)(3)(iii) requires the applicant, when it files its request

for alternative procedures with the Commission, to serve copies on all

affected resource agencies and Indian tribes and all entities that have

expressed an interest in the alternative process. As provided in

Sec. 4.34(i)(5), the Commission will give notice in the Federal

Register of receipt of the request. We believe that these requirements,

together with the rule's requirement that the applicant must have made

reasonable efforts to contact interested entities prior to the filing

of its request (see Sec. 4.34(i)(3)(i)), will be sufficient to put the

public on notice of the request. As discussed in section III.C above,

the Commission will consider any comments received in determining

whether to grant the request.

Section 4.34(6)(i) is also revised from the proposal to make clear

that the Commission's public notice of each of the first two stages in

the alternative process, described in Sec. 4.34(i)(4), will appear in

the Federal Register, and that the applicant's public notice of these

stages is required to appear in local newspapers in the county or

counties in which the project is located. Section 4.34(i)(6)(ii) is

revised to make clear that reports to the Commission on the pre-filing

consultation process are required only every six months, and that this

requirement can be satisfied by the submission of documents already

available, such as summaries or minutes of meetings held. This section

also clarifies what critical documents in the process the applicant

must file with the Commission and provides that copies of these

documents must be served on each participant in the process that

requests a copy.27

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\27\ Applicants should note that in order to have sufficient

copies for internal distribution, the Commission requires the

submission of an original and eight copies of all filings in

hydropower matters. See 18 CFR 4.34(h). The final rule makes clear

that this requirement applies to filings with the Commission that

are made in the course of the alternative pre-filing process

described in Sec. 4.34(i). See Sec. 4.34(i)(6)(ii).

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When the applicant files its application and preliminary draft

environmental review document with the Commission, these filings, and

such additional material as will be specified by the Commission in each

case, will replace the Exhibit E material that is required in the

standard process. We will not permit applicants to omit material

necessary for the Commission's review in these filings.

We do not think it necessary to require the applicant to index all

of the documents in its public file compiled during the alternative

process and to submit those documents, together with the index, to the

Commission with its application.28 Any party to the

proceeding before the Commission may file any material it wishes as

part of its comments on the application, or the party may request that

materials in the possession of the applicant be filed with the

Commission. The Commission may order such filings if it believes they

[[Page 59807]]

would be in the public interest. See the final rule

Sec. 4.34(i)(6)(iv).

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\28\ The final rule requires the applicant to maintain a public

file of all relevant documents in the pre-filing consultation

process. See Sec. 4.34(i)(6)(iii).

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F. Requests for Scientific Studies

Under the proposed rule Sec. 4.34(i)(6)(v), the procedures approved

in the alternative process may require all participants in the process

to submit during the pre-filing consultation period their requests for

scientific studies by the applicant. The proposal also allowed requests

for such studies to be filed with the Commission after the filing of

the application for good cause, with an explanation of why it was not

possible to request the study during the pre-filing period.

This proposal was controversial. Some commenters pointed out that

it was too restrictive, and that any party should be able to file a

request for scientific studies by the applicant after the filing of its

application, so long as good cause is shown. The Commission was also

asked to give examples of situations in which a party would be able to

show good cause.29 Other commenters wanted the rule to be

tightened to eliminate in whole or in part the right of any party to

request scientific studies after the filing of the

application.30

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\29\ HRC Comments at 11-12, U.S. Environmental Protection Agency

at 1, Washington Dept. of Fish and Wildlife at 3-4.

\30\ Reply Comments of EEI at 4-6.

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We believe that an important result of the alternative process, and

the greater participation and communication among participants it

encourages, should be the amicable resolution among participants of

disputes about necessary scientific studies during the pre-filing

consultation period, not after the application is filed with the

Commission. With improved communication among the participants and the

availability of dispute resolution in the alternative process, we do

not expect to receive frequent requests for additional studies after

the filing of an application that is subject to the alternative

process. We understand, however, that not all such disputes will be so

resolved, and that some participants, even though they have

participated actively and in good faith in the alternative process, may

be unwilling thereby to waive their requests for certain studies, even

if the other participants in the process do not think they are

necessary. The alternative process does not require such a waiver. We

hope that through the alternative process, with the assistance of

Commission staff, participants will be able to resolve all important

differences about a hydropower proposal, including disputes about

necessary studies. If the participants cannot resolve such a dispute,

even with the dispute resolution procedure discussed in the next

section, a party may raise it to the Commission's attention after the

filing of the application. In such a case, the Commission will rule on

the request, either by separate order or when issuing a decision on the

application.

The requirement of good cause is self-explanatory, and the

Commission does not wish to bind by rule the discretion of future

Commissions to do justice in a particular case. We will not, therefore,

encumber the final rule or include in this preamble additional language

that would attempt to explain what would suffice to make a showing of

good cause in a particular case.

G. Dispute Resolution

The proposed rule was silent on whether the Commission's provisions

for dispute resolution, available in the standard pre-filing

consultation process, would apply to the alternative process.

Commenters asked whether they could seek resolution of disputes by the

Commission in the alternative process, should it be

necessary.31

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\31\ Comments of Interior at 8.

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We believe that participants should be able to ask the Commission

to resolve disputes arising during the alternative process, but only if

they have first made reasonable efforts to resolve the disputes with

other participants, using any mechanisms established by agreement among

the participants and the help of Commission staff, where appropriate.

Any such request should be served on all participants and must document

what efforts have been made to resolve the dispute.

H. Collapse of Consensus

The NOPR asked the commenters to address what they thought should

happen if the consensus that had appeared to exist when the Commission

granted an applicant's request for alternative procedures subsequently

collapsed.

Many commenters attempted to answer this question. Most seemed to

recognize that in certain circumstances it would make no sense to

continue with the alternative process,32 and some asked the

Commission to direct what should happen in such circumstances.\33\

---------------------------------------------------------------------------

\32\ Comments of Duke Power Co. at 2-3, Pacific Gas & Electric

Co. at 4; HRC Comments at 7, Reply Comments at 11-12. asked the

Commission to direct what should happen in such circumstances.

\33\ Comments of Forest Service at 4, Montana Power Co. at 6-7,

EEI Reply Comments at 6.

---------------------------------------------------------------------------

Despite the best of intentions of the participants, it is possible

in some instances for the consensus supporting the continued use of the

alternative procedures to collapse. We do not mean by this loss of

consensus a disagreement on what studies should be conducted or what

mitigation or enhancement measures should be required in response to

the applicant's proposal, or loss of confidence on the part of one

participant or a few participants in the process. We believe that a

consensus will collapse if the weight of opinion of the applicant and

the other participants is that the process has become a waste of their

valuable time and resources and that the public interest would be

better served under the circumstances by the Commission's directing a

completion of the pre-filing process and what further steps are

required of the applicant. In such a situation an alternative pre-

filing process directed by the Commission would be required in order to

clarify what steps the applicant would have to take in the time

remaining to file an acceptable application.

Accordingly, the final rule adds Sec. 4.34(i)(7) to allow a

participant (including the applicant), in the event that a consensus

supporting the alternative process is lost, to file a request that the

Commission direct what steps should be taken to complete the pre-filing

consultation process.

I. Grandfather Provision

The NOPR asked what should be done about alternative processes

already approved by the Commission, pursuant to case-by-case waivers of

current regulatory requirements, if the Commission adopts a final rule

establishing alternative procedures.

All commenters addressing this question felt that the rule should

grandfather such already approved processes.

We agree and are adding Sec. 4.34(i)(9) to the final rule to

grandfather existing alternative processes. Steps already taken do not

have to be repeated, and applicants are not required to act

inconsistently with written agreements already reached by participants

in such cases. Other provisions of the new rule, however, such as

public file requirements or requirements to file materials with the

Commission (consisting of an original and eight copies) and serve

copies on other participants, that may be in addition to those already

agreed to in cases where waivers have been granted, will apply to all

such cases after the effective date of the final rule.

J. Miscellaneous

NHA asked the Commission to improve its public noticing of

[[Page 59808]]

hydropower applications, by including the licensee name and the name of

the project in addition to the project number, and to use public

libraries to facilitate notice to the public. NHA also asked the

Commission to explain what the NOPR meant in stating that staff could

participate in cases where there was no alternative process proposed

and approved, pursuant to proposed Sec. 4.34(i)(7).

Resource agencies were concerned about the impact of the

alternative procedures on the Commission's obligations under NEPA,

section 10(j) of the FPA and the Endangered Species Act

(ESA).34 Federal agencies were concerned about whether the

alternative procedures would affect their participation as cooperating

agencies for NEPA purposes.35 A number of commenters asked

the Commission to explain how the alternative pre-filing procedures

would affect the Commission's conduct of the hearing process on the

application when it is filed.36

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\34\ 16 U.S.C. 1531-1544. Comments of Interior at 9 and NMFS at

4.

\35\ Comments of Forest Service at 4, Interior at 10.

\36\ Comments of NMFS at 3, Western Urban Water Coalition at 4,

Public Generating Pool at 14-29, Sacramento Municipal Utility

District at 18-36, and the City and County of Denver at 2-3.

---------------------------------------------------------------------------

Regarding notices concerning a hydropower project, the Commission

agrees with NHA that all public notices of a hydropower application

should include not only the project number but also the name of the

licensee and the name of the project. Participants in the alternative

process may agree to use public libraries to facilitate notice and to

provide information to the public, in addition to complying with the

notice and public file requirements contained in the final rule.

The final rule contains a provision at Sec. 4.34(i)(8) making it

clear that, at the Commission's discretion, its staff may participate

not only in the pre-filing consultation process where alternative

procedures are in use, but also in other cases where these procedures

are not being used. The Commission may commit its staff, upon request

and on a case-by-case basis, to limited participation in the pre-filing

consultation process in connection with the preparation of any

application for license, exemption, or license amendment. The goals of

such participation may include exploring whether the participants in

the process should consider the use of alternative procedures and, to

the extent feasible and appropriate, assisting in the informal

resolution of disputes and the combination of the pre-filing

consultation process with the NEPA process and related processes, such

as the grant of water quality certification under the Clean Water Act

and the issuance of mandatory conditions pursuant to section 4(e) of

the FPA.

In such cases, on request and at its discretion, the Commission may

approve suitable modifications to the procedures otherwise applicable

during the pre-filing and post-filing periods, similar to those made

for alternative procedures set forth in the proposed rule. If the

applicant subsequently requests and is granted permission to use

alternative procedures, the Commission may direct how the applicant and

interested entities may shift from the standard pre-filing consultation

process to the alternative process.

The final rule does not affect the Commision's compliance with

NEPA, section 10(j) of the FPA, or the ESA, nor does it in any way

deprive a party of the right to contest issues before the Commission

and obtain a decision on these issues based on the administrative

record before the Commission. The Commission will review the

application for adequacy, and if it is accepted for filing the

Commission will invite interventions and set a deadline for the

submission of final recommendations, prescriptions, mandatory

conditions, and comments. Upon receipt of the application the

Commission will not issue a notice inviting additional study requests,

and the Commission will not issue a notice that the application is

ready for environmental analysis, as would occur under the standard

procedures. The Commission will review the preliminary draft NEPA

document, prepared in the course of the pre-filing consultation period

under the alternative procedures, and issue a draft NEPA document for

comment. The Commission will take any steps required to examine

contested issues and comply in its usual manner with statutory mandates

applicable to the case, such as section 10(j) of the FPA and the ESA.

The Commission will then issue the NEPA document in final form and an

order on the application for license, exemption, or license amendment.

If an agreement or offer of settlement is filed in connection with

an application that the Commission grants, the order will address the

agreement or offer of settlement. If contested issues remain, as

determined by the position of the parties and resource agencies before

the Commission, the order will resolve the issues based on the

administrative record before the Commission.

Finally, an agency, such as a federal land management agency with

authority over the proposed project under FPA section 4(e) or a state

agency with responsibility for issuing a certification for the project

under the Clean Water Act, is free to participate fully in any

alternative procedures under the final rule and subsequently to elect

to be a cooperating agency with the Commission for NEPA purposes. The

Commission will continue to enforce its policy, however, that such an

agency cannot intervene as a party in the proceeding and at the same

time be a cooperating agency for NEPA purposes. We believe that

allowing an agency to pursue both of these roles simultaneously could

raise concerns about compliance by the Commission with its ex parte

rule.37

---------------------------------------------------------------------------

\37\ 18 CFR 385.2201.

---------------------------------------------------------------------------

IV. Environmental Analysis

Commission regulations describe the circumstances where preparation

of an environmental assessment or an environmental impact statement

will be required.\38\ The Commission has categorically

excluded certain actions from this requirement as not having a

significant effect on the human environment.\39\ No

environmental consideration is necessary for the promulgation of a rule

that is clarifying, corrective, or procedural, or that does not

substantially change the effect of legislation or regulations being

amended.\40\

---------------------------------------------------------------------------

\\38\\ Regulations Implementing National Environmental Policy

Act, 52 FR 47897 (Dec. 17, 1987), codified at 18 CFR Part 380.

\\39\\ 18 CFR 380.4(a)(2)(ii).

\\40\\ 18 CFR 380.4.

---------------------------------------------------------------------------

This final rule is procedural in nature. It proposes alternative

procedures that participants to a hydroelectric licensing or exemption

proceeding may wish to use. Thus, no environmental assessment or

environmental impact statement is necessary for the requirements

proposed in the rule.

V. Regulatory Flexibility Certification

The Regulatory Flexibility Act of 1980 (RFA) \41\

generally requires a description and analysis of final rules that will

have significant economic impact on a substantial number of small

entities. Pursuant to section 605(b) of the RFA, the Commission hereby

certifies that the regulations promulgated will not have a significant

economic impact on a substantial number of small entities.

---------------------------------------------------------------------------

\\41\\ 5 U.S.C. 601-612.

---------------------------------------------------------------------------

The procedures adopted herein are purely voluntary in nature, and

are designed to reduce burdens on small entities (as well as large

entities) rather

[[Page 59809]]

than to increase them. More fundamentally, the alternative process we

are proposing herein is voluntary. The procedures constitute an

alternative to the procedures currently prescribed in our regulations,

and will not be available unless it is the consensus of the persons and

entities interested in the proceeding, as discussed herein, to use the

alternative procedures. Under this approach, each small entity will be

able to evaluate for itself whether the alternative procedures are

beneficial or burdensome, and oppose their adoption if they appeared to

be more burdensome than beneficial. Under these circumstances, the

economic impact of the proposed rule will be either neutral or

beneficial to the small entities affected by it.

VI. Information Collection Requirements

The Office of Management and Budget (OMB) regulations require OMB

to approve certain reporting and recordkeeping requirements

(collections of information) imposed by agency rule.\42\ OMB

has reviewed the NOPR without comment. The final rule adopted herein

will impose reporting burdens only on those applicants that voluntarily

choose to use the alternate procedures. Respondents subject to the

filing requirements of this final rule will not be penalized for

failing to respond to these collections of information unless the

collections of information display a valid OMB control number. The

Final Rule will affect two existing data collections, FERC-500 and

FERC-505. Most of the reporting burdens associated with preparing and

filing an application for a hydropower license, exemption, or amendment

to license are imposed by existing regulations.

---------------------------------------------------------------------------

\\42\\ 5 CFR 1320.11.

---------------------------------------------------------------------------

Public Reporting Burden

The alternative procedures will only require minor additional

filing requirements with the Commission. The other additional burdens

of the alternative procedures, as compared to the standard procedures,

do not involve filings with the Commission, but will consist of various

outreach efforts of the applicant and related interactions with

entities interested in its hydropower proposal. An applicant would

presumably only incur such additional burdens if it believed that, in

the long run, it would save on litigation and other costs incurred to

pursue the standard procedures.

The Commission has made approximate estimates of the additional

time that may be required of an applicant to comply with the

alternative procedures, as compared with the standard procedures. It is

difficult to be precise about such estimates, because the time required

for one applicant could vary considerably from the time required for

other applicants, depending upon the circumstances involved, including

the complexity of the issues raised, the total number of participants

in the pre-filing process, and how cooperatively those participants

worked together. If the alternative procedures were successful and

resulted, for example, in the filing of an agreement or offer of

settlement with the Commission, the applicant may be able to save

substantially more time by avoiding litigation than was invested in the

alternative procedures. If an applicant requested and was allowed to

use the alternative procedures, the main additional burden, with the

estimated hours to comply with each, are estimated to be:

------------------------------------------------------------------------

Burden

Process (hours of

effort)

------------------------------------------------------------------------

(1) Contact interested entities........................... 80

(2) Prepare and submit request, including communications

protocol................................................. 80

(3) Prepare and distribute scoping and hold related

meetings................................................. 50

(4) Develop agenda and other documents, including minutes,

for all meetings and prepare and distribute them (only

additional time as compared to presently required

meetings................................................. 600

(5) Prepare and publish public notices.................... 24

(6) Prepare and submit semi-annual progress reports and

make other required Commission filings................... 48

(7) Maintain a complete record of the pre-filing

consultation proceedings that would be open to the public 250

------------------------------------------------------------------------

It is estimated that to prepare and distribute the preliminary

draft environmental review document would not take any more time than

to prepare Exhibit E under the standard process. Therefore, the

estimated additional burden of the tasks required of an applicant if it

voluntarily undertakes the alternative process totals 1132 hours.

The OMB regulations require OMB to approve certain information

collection requirements imposed by agency rule. Accordingly, pursuant

to OMB regulations, the Commission is providing notice of its proposed

information collections to OMB.

Title: FERC-500 ``Application for License for Water Projects with

More than 5MW Capacity''; FERC-505 ``Application for Water Projects 5MW

or Less Capacity''.

Action: Proposed Data Collections.

OMB Control No.: 1902-0058; 1902-0115.

Respondents: Businesses or other for profit.

Frequency of Responses: On Occasion.

Necessity of Information: There are approximately 1,021 hydropower

licenses issued by the Commission that are currently outstanding. These

licenses all expire at the completion of fixed terms, and at expiration

the license holders may apply for a new licenses. Other applicants may

apply for exemptions or original licenses to construct and operate new

or existing hydropower projects.

The final rule authorizes a potential applicant for a license,

exemption or certain major amendments to a license to file a request

for alternative procedures if the applicant wants to use such

procedures, as authorized by the rule. The rule also requires the

filing of a communications protocol with the request for alternative

procedures. The applicant will have to do a number of other things in

the pre-filing consultation process, including distribution of an

initial information package and conduct an initial public meeting,

which are required under existing Commission regulations. The

applicant, possibly with a contractor's assistance, would have to

conduct the scoping of environmental issues; this is a new requirement,

not now imposed on applicants, but which is related to currently

required pre-filing consultation duties of the applicant and would

substitute in part for the environmental review process traditionally

done by the Commission after the filing of an application for

hydropower license or for certain major license amendments.

The applicant would have to do studies of the resource impacts of

its proposal, as it now must do under current Commission regulations

governing the pre-filing consultation process. The applicant or the

contractor would also have to prepare a preliminary draft NEPA document

and submit additional information in lieu of what is now required as

Exhibit E to a hydropower application. These two filing requirements--

what is now required and what would be required under the regulations

for the alternative procedures--are similar.

The applicant would have to file with the Commission semi-annual

reports on

[[Page 59810]]

the progress of the pre-filing consultation process under the

alternative procedures. No such reports are now required, although the

filing of these reports under the alternative procedures avoids the

requirement in the current regulations for the applicant to document

the entire pre-filing consultation process when the application is

filed. Under the alternative procedures the applicant would have to

maintain a public file of the pre-filing process and to give various

public notices during this process, while current regulations do not

require maintenance of a public file containing all this information or

the issuance of as many such notices during the pre-filing consultation

period.

Internal Review: The Commission has assured itself, by means of its

internal review, that there is specific, objective support for the

burden estimates associated with the information requirements. The

Commission's Office of Hydropower Licensing will upon receipt of the

application review it to determine the broad impact of the license

application. Commission staff conducts a systematic review of the

prepared application with supplemental documentation provided by the

solicitation of comments from other agencies and the public. The

Commission will take any steps required to examine contested issues and

comply with statutory mandates applicable to the case. These reviews

ensure that the Federal Power Act as amended by other statutory

provisions is formally administered to ensure compliance by the

licensee. These requirements conform to the Commission's plan for

efficient information collection, communication, and management within

the hydroelectric industry.

Interested persons may obtain information on the reporting

requirements by contacting the following: Federal Energy Regulatory

Commission, 888 First Street, NE., Washington, DC 20426. [Attention:

Michael Miller, Division of Information Services Phone: (202) 208-1415,

fax: (202) 273-0873, email: [email protected]]

Comments are solicited on the Commission's need for this

information, whether the information will have practical utility, the

accuracy of the provided burden estimates, ways to enhance the quality,

utility, and clarity of the information to be collected, and any

suggested methods for minimizing respondents' burden, including the use

of automated information techniques. For submitting comments concerning

the collections of information and the associated burden estimates,

please send your comments to the contact listed above and to the Office

of Management and Budget, Office of Information and Regulatory Affairs,

Washington, DC 20503. [Attention: Desk Officer for the Federal Energy

Regulatory Commission, phone (202) 395-3087, fax: (202) 395-7285]

Estimated Annual Burden (includes burden hours already approved for

standard procedures):

----------------------------------------------------------------------------------------------------------------

Number of Number of Hours per Total annual

Data collection respondents responses response hours

----------------------------------------------------------------------------------------------------------------

FERC-500........................................ 6 6 853 5,120

FERC-505........................................ 10 10 182 1,818

----------------------------------------------------------------------------------------------------------------

Total Annual Hours for collections (Reporting + Recordkeeping, (if

appropriate)) = 6,938.

Information Collection Costs: The Commission seeks comments on the

costs to comply with these requirements. It has projected the average

annualized cost for all respondents to be:

----------------------------------------------------------------------------------------------------------------

Annualized

Annualized costs Total

Data collection capital/start- (operations & annualized

up costs maintenance) costs

----------------------------------------------------------------------------------------------------------------

FERC-500........................................................ $269,861 $0.00 $269,861.00

FERC-505........................................................ 95,822 0.00 95,822.00

---------------

Total..................................................... .............. .............. 365,683.00

----------------------------------------------------------------------------------------------------------------

VII. Effective Date

This rule is effective December 5, 1997. If OMB has not approved

the information collection provisions at that time, the Commission will

issue a notice delaying the effective date until OMB approval of the

final rule.

List of Subjects

18 CFR Part 4

Electric power, Reporting and recordkeeping requirements.

18 CFR Part 375

Authority delegations (Government agencies), Seals and insignia,

Sunshine Act.

By the Commission.

Lois D. Cashell,

Secretary.

In consideration of the foregoing, the Commission amends parts 4

and 375 of Chapter I, Title 18, Code of Federal Regulations, as set

forth below.

PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT

COSTS

1. The authority citation for part 4 continues to read as follows:

Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.

2. In Sec. 4.34, the section heading is revised and a new paragraph

(i) is added to read as follows:

Sec. 4.34 Hearings on applications; consultation on terms and

conditions; motions to intervene; alternative procedures.

* * * * *

(i) Alternative procedures. (1) An applicant may submit to the

Commission a request to approve the use of alternative procedures for

pre-filing consultation and the filing and processing of an application

for an original, new or subsequent hydropower license or exemption that

is subject to Sec. 4.38 or Sec. 16.8 of this chapter, or for the

amendment of a license that is subject to the provisions of Sec. 4.38.

(2) The goal of such alternative procedures shall be to:

(i) Combine into a single process the pre-filing consultation

process, the

[[Page 59811]]

environmental review process under the National Environmental Policy

Act and administrative processes associated with the Clean Water Act

and other statutes;

(ii) Facilitate greater participation by and improve communication

among the potential applicant, resource agencies, Indian tribes, the

public and Commission staff in a flexible pre-filing consultation

process tailored to the circumstances of each case;

(iii) Allow for the preparation of a preliminary draft

environmental assessment by an applicant or its contractor or

consultant, or of a preliminary draft environmental impact statement by

a contractor or consultant chosen by the Commission and funded by the

applicant;

(iv) Promote cooperative efforts by the potential applicant and

interested entities and encourage them to share information about

resource impacts and mitigation and enhancement proposals and to narrow

any areas of disagreement and reach agreement or settlement of the

issues raised by the hydropower proposal; and

(v) Facilitate an orderly and expeditious review of an agreement or

offer of settlement of an application for a hydropower license,

exemption or amendment to a license.

(3) A potential hydropower applicant requesting the use of

alternative procedures must:

(i) Demonstrate that a reasonable effort has been made to contact

all resource agencies, Indian tribes, citizens' groups, and others

affected by the applicant's proposal, and that a consensus exists that

the use of alternative procedures is appropriate under the

circumstances;

(ii) Submit a communications protocol, supported by interested

entities, governing how the applicant and other participants in the

pre-filing consultation process, including the Commission staff, may

communicate with each other regarding the merits of the applicant's

proposal and proposals and recommendations of interested entities; and

(iii) Serve a copy of the request on all affected resource agencies

and Indian tribes and on all entities contacted by the applicant that

have expressed an interest in the alternative pre-filing consultation

process.

(4) As appropriate under the circumstances of the case, the

alternative procedures should include provisions for:

(i) Distribution of an initial information package and conduct of

an initial information meeting open to the public;

(ii) The cooperative scoping of environmental issues (including

necessary scientific studies), the analysis of completed studies and

any further scoping; and

(iii) The preparation of a preliminary draft environmental

assessment or preliminary draft environmental impact statement and

related application.

(5) The Commission will give public notice in the Federal Register

inviting comment on the applicant's request to use alternative

procedures. The Commission will consider any such comments in

determining whether to grant or deny the applicant's request to use

alternative procdures. Such a decision will not be subject to

interlocutory rehearing or appeal.

(6) If the Commission accepts the use of alternative procedures,

the following provisions will apply.

(i) To the extent feasible under the circumstances of the

proceeding, the Commission will give notice in the Federal Register and

the applicant will give notice, in a local newspaper of general

circulation in the county or counties in which the project is located,

of the initial information meeting and the scoping of environmental

issues. The applicant will also send notice of these stages to a

mailing list approved by the Commission.

(ii) Every six months, the applicant shall file with the Commission

a report summarizing the progress made in the pre-filing consultation

process and referencing the applicant's public file, where additional

information on that process can be obtained. Summaries or minutes of

meetings held in the process may be used to satisfy this filing

requirement. The applicant must also file with the Commission a copy of

its initial information package, each scoping document, and the

preliminary draft environmental review document. All filings with the

Commission under this section must include the number of copies

required by paragraph (h) of this section, and the applicant shall send

a copy of these filings to each participant that requests a copy.

(iii) At a suitable location, the applicant will maintain a public

file of all relevant documents, including scientific studies,

correspondence, and minutes or summaries of meetings, compiled during

the pre-filing consultation process. The Commission will maintain a

public file of the applicant's initial information package, scoping

documents, periodic reports on the pre-filing consultation process, and

the preliminary draft environmental review document.

(iv) An applicant authorized to use alternative procedures may

substitute a preliminary draft environmental review document and

additional material specified by the Commission instead of Exhibit E to

its application and need not supply additional documention of the pre-

filing consultation process. The applicant will file with the

Commission the results of any studies conducted or other documentation

as directed by the Commission, either on its own motion or in response

to a motion by a party to the licensing or exemption proceeding.

(v) Pursuant to the procedures approved, the participants will set

reasonable deadlines requiring all resource agencies, Indian tribes,

citizens' groups, and interested persons to submit to the applicant

requests for scientific studies during the pre-filing consultation

process, and additional requests for studies may be made to the

Commission after the filing of the application only for good cause

shown.

(vi) During the pre-filing process the Commission may require the

filing of preliminary fish and wildlife recommendations, prescriptions,

mandatory conditions, and comments, to be submitted in final form after

the filing of the application; no notice that the application is ready

for environmental analysis need be given by the Commission after the

filing of an application pursuant to these procedures.

(vii) Any potential applicant, resource agency, Indian tribe,

citizens' group, or other entity participating in the alternative pre-

filing consultation process may file a request with the Commission to

resolve a dispute concerning the alternative process (including a

dispute over required studies), but only after reasonable efforts have

been made to resolve the dispute with other participants in the

process. No such request shall be accepted for filing unless the entity

submitting it certifies that it has been served on all other

participants. The request must document what efforts have been made to

resolve the dispute.

(7) If the potential applicant or any resource agency, Indian

tribe, citizens' group, or other entity participating in the

alternative pre-filing consultation process can show that it has

cooperated in the process but a consensus supporting the use of the

process no longer exists and that continued use of the alternative

process will not be productive, the participant may petition the

Commission for an order directing the use by the potential applicant of

appropriate procedures to complete its application. No such request

shall be accepted for filing unless the entity submitting it certifies

that it has been served on all other participants. The

[[Page 59812]]

request must recommend specific procedures that are appropriate under

the circumstances.

(8) The Commission may participate in the pre-filing consultation

process and assist in the integration of this process and the

environmental review process in any case, including appropriate cases

where the applicant, contractor, or consultant funded by the applicant

is not preparing a preliminary draft environmental assessment or

preliminary draft environmental impact statement, but where staff

assistance is available and could expedite the proceeding.

(9) In all cases where the Commission has approved the use of

alternative pre-filing consultation procedures prior to December 5,

1997, during the pre-filing process the potential applicant need not

follow any additional requirements imposed by paragraph (i) of this

section, if in so doing the applicant would repeat any steps already

taken in the preparation of its application and supporting

documentation or act inconsistently with any written agreement signed

before December 5, 1997 by the applicant and the other participants in

the alternative process.

PART 375--THE COMMISSION

3. The authority citation for part 375 continues to read as

follows:

Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16

U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.

4. In Sec. 375.314, paragraph (u) is added to read as follows:

Sec. 375.314 Delegations to the Director of the Office of Hydropower

Licensing.

* * * * *

(u) Approve, on a case-specific basis, and issue such orders as may

be necessary in connection with the use of alternative procedures,

under Sec. 4.34(i) of this chapter, for the development of an

application for an original, new or subsequent license, exemption, or

license amendment subject to the pre-filing consultation process, and

assist in the pre-filing consultation and related processes.

Note: The appendix will not appear in the Code of Federal

Regulations.

Appendix A

Comments

Citizens' Groups

Adirondack Mountain Club

American Rivers

Appalachian Mountain Club

California Hydropower Reform Coalition

Conservation Law Foundation

Hydropower Reform Coalition

Idaho Rivers United

Michigan Hydro Relicensing Coalition

New England FLOW

New York Rivers United

Trout Unlimited

Federal Agencies

U.S. Department of Agriculture, U.S. Forest Service

U.S. Department of Commerce, National Marine Fisheries Service

U.S. Department of the Interior

U.S. Environmental Protection Agency

Indian Tribes

Penobscot Nation

Industry Associations

American Public Power Association

Edison Electric Institute

National Hydropower Association

Public Generating Pool

Western Urban Water Coalition

State Agencies

Georgia Department of Natural Resources

New York State Department of Environmental Conservation

Washington Department of Fish and Game

Licensees

Adirondack Hydro Development Corporation

Alabama Power Company and Georgia Power Company

Denver Water

Duke Power Company

Holyoke Gas & Electric Company and Northern California Water Power

Agency

Minnesota Power & Light Company

Montana Power Company

Pacific Gas and Electric Company

Portland General Electric Company

Sacramento Municipal Utility District

Seattle City Light

Reply Comments

Alabama Power Company and Georgia Power Company

City of Holyoke, Massachusetts Gas & Electric Department

Duke Power Company

Edison Electric Institute

Hydropower Reform Coalition

National Hydropower Association

Sacramento Municipal Utility District

[FR Doc. 97-29196 Filed 11-4-97; 8:45 am]

BILLING CODE 6717-01-P