On January 31, 2019, pursuant to Public Law No. 115-270, the America’s Water Infrastructure Act (“AWIA”), FERC issued a notice soliciting comments on proposed rules to establish expedited licensing processes for qualifying projects at existing nonpowered dams and closed-loop pumped storage facilities.

On October 23, 2018, President Trump signed the AWIA, which, among other things, required FERC to initiate two rulemaking processes within 180 days of enactment of the AWIA, establishing expedited processes to issue and amend licenses for qualifying projects at existing nonpowered dams and for closed-loop pumped storage projects (see October 16, 2018 edition of the WER).  On November 13, 2018, FERC issued a notice providing a schedule for implementing the AWIA to meet the 180-day deadlines and inviting federal and state agencies and interested Native American Tribes to participate in an interagency task force to coordinate the regulatory processes and authorizations required to construct and operate qualifying projects at existing nonpowered dams and closed-loop pumped storage projects (see November 20, 2018 edition of the WER).

The January 31 notice describes and seeks comments on proposed rules to implement AWIA section 3003, which creates a new section 34 of the Federal Power Act (“FPA”) and AWIA section 3004, which creates a new section 35 of the FPA.

To be considered for the expedited process under either section 34 or 35, as amended, applicants for licenses at qualifying projects must include with their application a request for authorization to use the expedited process, which is voluntary and only applies to applications for original licenses, not new or subsequent licenses.  These sections also set forth statutory eligibility criteria for qualifying projects.

Section 34 pertains to nonpowered dams, which are defined 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 works licensed under, or exempted from the license requirements of Part 1 of the FPA.”  Under section 34(e), the criteria for a facility to be located at a nonpowered dam are that: as of October 23, 2018, the facility is not licensed under, or exempted from, the license requirements of, Part I of the FPA; the facility is associated with a qualifying nonpowered dam; the facility will generate electricity using withdrawals, diversions, releases, or flows from the associated qualifying nonpowered dam; and 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.

Section 35 pertains to closed-loop pumped storage facilities.  Section 35(g)(2) requires that the FERC develop criteria that a pumped storage project must meet to qualify under the AWIA, including that it cause little to no change to existing surface and groundwater flows and uses and is unlikely to adversely affect species listed as threatened or endangered under the Endangered Species Act (“ESA”).

In addition to the statutory requirements, FERC has developed additional criteria that applicants under the amended sections 34 and 35 of the FPA must comply with, including documentation of consultation pursuant to other statutes—including the Clean Water Act, ESA, and National Historic Preservation Act—to ensure that FERC will be able to act on a completed license application within two years.  FERC also proposes to require that an applicant provide documentation verifying consultation with the dam owner that non-federal hydropower development is not precluded at the site, and that the owner does not oppose project development.  Finally, if a proposed project would use any public park, recreation area, or wildlife refuge established under state or local law, FERC proposes to require an applicant to provide documentation from the managing entity demonstrating that it is not opposed to use of the park, recreation area, or wildlife refuge.

Public comments on FERC’s Notice of Proposed Rulemaking must be submitted by March 4, 2019.  The notice is available here.