[Federal Register Volume 84, Number 79 (Wednesday, April 24, 2019)]
[Rules and Regulations]
[Pages 17064-17080]
[FR Doc No: 2019-08239]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 7

[Docket No. RM19-6-000; Order No. 858]

Hydroelectric Licensing Regulations Under the America's Water
Infrastructure Act of 2018

AGENCY:  Federal Energy Regulatory Commission.

ACTION:  Final rule.

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SUMMARY:  In this final rule, the Federal Energy Regulatory Commission
(Commission) is establishing an expedited process for issuing original
licenses for qualifying facilities at existing nonpowered dams and for
closed-loop pumped storage projects, pursuant to sections 3003 and 3004
of the America's Water Infrastructure Act of 2018. Under the expedited
licensing process, the Commission will seek to ensure that a final
decision is issued no later than two years after the Commission
receives a completed license application. The final rule will be
codified in a new part that will be added to the Commission's
regulations.

DATES: The rule is effective July 23, 2019.

FOR FURTHER INFORMATION CONTACT:
Shana Wiseman (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426,<PHONE_NUMBER>, [email protected].
Kenneth Yu (Legal Information), Office of the General Counsel, Federal
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426,<PHONE_NUMBER>, [email protected].
Tara DiJohn (Legal Information), Office of the General Counsel, Federal
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426,<PHONE_NUMBER>, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

                                                              Paragraph
                                                                 Nos.

I. Background..............................................            3
II. Notice of Proposed Rulemaking..........................            6
III. Discussion............................................            7
    A. Scope of the Expedited Licensing Process............            7
        1. Pre-filing Process..............................           11
        2. Relicense Proceedings...........................           15
        3. Amendment Proceedings...........................           18
    B. Expedited Licensing Process.........................           22
        1. Section 7.1--Applicability and Definitions......           22
        2. Section 7.2--Use of Expedited Licensing Process.           32
        3. Section 7.3--Adequacy Review of Application.....           85
        4. Section 7.4--Additional Information.............           87
        5. Section 7.5--Decision on Request to Use                    89
         Expedited Licensing Process.......................
        6. Section 7.6--Notice of Acceptance and Ready for            94
         Environmental Analysis............................
        7. Section 7.7--Amendment of Application...........           98
        8. Section 7.8--Other Provisions...................          101
        9. Section 7.9--Transition Provision...............          106
    C. Other Matters.......................................          108
        1. Projects that Require an EIS....................          108
        2. FPA Section 35(copyright) Exceptions............          116
IV. Regulatory Requirements................................          119
    A. Information Collection Statement....................          119
    B. Environmental Analysis..............................          134
    C. Regulatory Flexibility Act..........................          135
    D. Document Availability 139...........................
    E. Effective Date and Congressional Notification.......          142

Order No. 858

Final Rule

(Issued April 18, 2019)

    1. On October 23, 2018, the America's Water Infrastructure Act
(AWIA) \1\ was signed into law. The AWIA 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 for closed-loop pumped storage projects.
Under the expedited process, the Commission will seek to ensure that a
final decision on a license application is issued no later than two
years after the Commission receives a completed license application.
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    \1\ Public Law 115-270, 132 Stat. 3765.
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    2. To comply with the AWIA, the Commission issues this final rule
to amend its regulations governing hydroelectric licensing under the
Federal Power Act (FPA) by establishing an expedited licensing process
for qualifying facilities at existing nonpowered dams and for closed-
loop pumped storage projects. The final rule will be codified in a new
part 7 that will be added to Title 18 of the Code of Federal
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 projects
covered by FPA sections 34 and 35. In establishing the expedited
licensing process, Congress directed the Commission to convene an
interagency task force (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 Indian 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 Indian 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 meeting 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 meeting, 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 meeting, 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. The Commission's
coordination and discussion with appropriate federal and state agencies
and Indian Tribes, as part of the ITF, have informed this final rule.
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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. Notice of Proposed Rulemaking

    6. On January 31, 2019, the Commission issued a Notice of Proposed
Rulemaking proposing to promulgate rules to establish an

expedited process to license eligible projects at existing nonpowered
dams and closed-loop pumped storage projects.\5\ In response to the
NOPR, the Commission received 11 comments. Consumers Energy Company
(Consumers),\6\ Daybreak Power, Inc. (Daybreak),\7\ Dominion Energy
Services, Inc. (Dominion),\8\ the U.S. Department of Agriculture's
Forest Service (Forest Service), the U.S. Department of the Interior
(Interior),\9\ the National Hydropower Association (NHA),\10\ the
National Marine Fisheries Service (NMFS), the Oregon Department of Fish
and Wildlife (Oregon DFW), the Nature Conservancy, the Pennsylvania
State Historic Preservation Office (PA SHPO), and Rye Development, LLC
(Rye Development) filed comments.\11\ The proposal set forth in the
NOPR, the comments received in response to the NOPR, and the
Commission's determinations are discussed below.
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    \5\ Hydroelectric Licensing Regulations Under the America's
Water Infrastructure Act of 2018, 84 FR 2469, 166 FERC ] 61,083
(2019) (NOPR).
    \6\ Consumers is a public utility that owns and operates
thirteen FERC-licensed hydroelectric projects.
    \7\ Daybreak is a developer of pumped storage projects.
    \8\ Dominion holds a preliminary permit for the proposed
Tazewell Hybrid Energy Center Project No. 14854, and states that it
is currently investigating whether the Tazewell Project, or a
similar project, could be configured as a closed-loop pumped storage
project.
    \9\ Interior represents the U.S. Bureau of Reclamation, the
National Park Service, and U.S. Fish and Wildlife Service in its
comment.
    \10\ NHA represents the Edison Electric Institute, the National
Rural Electric Cooperative Association, the American Public Power
Association, and the Northwest Hydropower Association in its
comment.
    \11\ Rye Development is developing a number of hydroelectric
projects, including one that was licensed under the Commission's
Two-Year Pilot Licensing Process, FFP Project 92, LLC, 155 FERC ]
62,089 (2016).
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III. Discussion

A. Scope of the Expedited Licensing Process

    7. The NOPR explained that the Commission's current regulations
provide three pre-filing process options 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;
\12\ (ii) the traditional licensing process (TLP), as described in part
4, subparts D to H; \13\ or (iii) the alternative procedures (i.e., the
alternative licensing process (ALP)), as described in section 4.34(i)
of part 4.\14\ The NOPR did not propose to alter these existing
licensing processes. Rather, the NOPR proposed to establish procedures
for the Commission to determine, on a case-by-case basis, whether
original license applications for qualifying hydropower projects at
nonpowered dams or for closed-loop pumped storage projects, as defined
in sections 34 and 35 of the FPA and the eligibility criteria below,
qualify for expedited processing.
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    \12\ 18 CFR part 5 (2018).
    \13\ 18 CFR part 4, subpt. D-H (2018).
    \14\ Id. 4.34(i).
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    8. As stated in the NOPR, the use of the expedited licensing
process is voluntary. To apply for consideration under the expedited
process, an applicant for an original license for a qualifying
hydropower project or closed-loop pumped storage project must
supplement its license application with a request for authorization to
use the expedited licensing process.
    9. The NOPR proposed that the expedited licensing process would
begin with the receipt of a completed license application. Consistent
with the statute, the proposed expedited licensing process envisioned a
two-year framework that did not include the pre-filing stages of
application development (i.e., all process milestones and consultation
to obtain necessary authorizations that must occur before an applicant
files a license application). For pre-filing activities, the NOPR
explained that 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 our
current regulations.
    10. Finally, the scope of the NOPR was limited to original license
applications. However, the Commission requested 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.\15\
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    \15\ NOPR, 166 FERC ] 61,083 at P 7.
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1. Pre-filing Process
    11. NHA, Consumers, Dominion, and Rye Development encourage the
Commission to improve the overall process to authorize hydroelectric
facilities, which includes streamlining the pre-filing process.\16\ Rye
Development estimates that the NOPR may not reduce the overall
licensing time, which it calculates to be at least three years for the
pre-filing process and two years for the post-filing process for a
total of at least five years, because the NOPR does not address the
pre-filing process time.\17\ This, it alleges, is contrary to
Congressional intent.\18\ Rye Development explains that a shorter and
more certain licensing schedule, which includes pre-filing process
``reforms'' and allows for off-ramps for more problematic projects,
would allegedly make hydroelectric generation cost competitive with
other types of power generation and help attract investors.\19\
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    \16\ See NHA's March 11, 2019 Comment at 4-6; Consumers' March
11, 2019 Comment at 2; Dominion's March 11, 2019 Comment at 1-2; Rye
Development's March 8, 2019 Comment at 2.
    \17\ See Rye Development's Comment at 2.
    \18\ See id. at 2-3.
    \19\ See id. at 3-4.
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    12. NHA proposes, and Dominion supports, an alternative two-step
pre-filing process that NHA posits will allow the Commission to
determine, during pre-filing, whether a project would be eligible for
the expedited licensing process.\20\ If the Commission finds a project
eligible, NHA recommends that the Commission also grant preliminary
approval of draft study plans and establish milestones and a schedule
for the expedited licensing process during pre-filing.\21\ Noting that
the success of the expedited licensing process depends on the
cooperation of all parties to the process, NHA and Dominion also
encourage other federal and state agencies to align their policies and
regulations with the expedited licensing process and urge consideration
of an interagency memorandum of understanding.\22\
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    \20\ See NHA's Comment at 6-9 (proposing a two-step pre-filing
eligibility determination that would culminate in Commission action
on a request for authorization to use the expedited licensing
following issuance of the Scoping Document 1); Dominion's Comment at
2-4.
    \21\ NHA's Comment at 6-7; Dominion's Comment at 4.
    \22\ NHA's Comment at 7-8; Dominion's Comment at 4.
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    13. The Commission understands the importance of a clear process
schedule. It is for this reason that the Commission has made publicly
available on its website diagrammatic representations of the ILP and
TLP.\23\ We will provide the same for the expedited licensing process
under the new part 7.\24\ This rulemaking, however, is limited to the
post-filing period as mandated by the AWIA. Congress required the
Commission to issue a rule establishing a two-year expedited licensing
process that begins from the receipt of a

completed license application.\25\ Completion of the pre-filing process
is necessary to develop a completed application. We therefore decline
to revise the established pre-filing schedule in our existing
regulations in this rulemaking. Furthermore, the Commission's existing
ALP framework provides the flexibility that could accommodate, on a
case by case basis, the type of pre-filing schedule NHA has
proposed.\26\
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    \23\ See FERC, the Integrated Licensing Process (ILP)--Tutorial,
https://www.ferc.gov/industries/hydropower/gen-info/licensing/ilp/ilp-tutorial/overview.asp (updated Oct. 10, 2012); FERC, Processes
for Hydropower Licenses--Traditional Licensing Process (Applicant's
Pre-Filing Process), https://www.ferc.gov/resources/processes/flow/hydro-1.asp; FERC, Processes for Hydropower Licenses--Traditional
Licensing Process (FERC Application Process), https://www.ferc.gov/resources/processes/flow/hydro-2.asp.
    \24\ Commission staff will provide a flowchart on the
Commission's website shortly after the final rule is issued.
    \25\ See 16 U.S.C.A. 823e(a)(4), 823f(a)(4) (West 2019).
    \26\ The ALP framework was designed to be flexible in order for
an applicant to tailor the pre-filing consultation process to the
circumstances of each case. See Regulations for the Licensing of
Hydroelectric Projects, Order No. 596, FERC Stats & Regs ] 31,057,
at P 6 (1997) (cross-referenced at 81 FERC ] 61,103).
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    14. While we encourage federal and state agencies to cooperate with
the Commission's licensing schedules, we have no authority to require
other agencies to modify their own regulations or policies to suit our
licensing process as encouraged by NHA and Dominion. Nor will we
dictate to other agencies how their regulations or policies should be
interpreted. Expedited processing is possible when applicants and
stakeholders work closely during pre-filing to gather information,
conduct studies, and address information gaps. Expedited licensing is
further aided by well-developed license applications that provide a
detailed project proposal, a comprehensive summary of existing
facilities and natural resources, and a thorough examination of the
resource issues at hand and study needs.
2. Relicense Proceedings
    15. The NOPR requested comments on whether the expedited licensing
process should be available for applications for new or subsequent
licenses,\27\ provided that the project was originally licensed under
the expedited licensing process.\28\
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    \27\ A new license is a license that is issued under FPA section
15(a) after an original license expires. A subsequent license is a
license that is issued under FPA Part I after a minor or minor-part
license that was not subject to FPA sections 14 and 15 expires. Both
new and subsequent licenses are considered relicenses. See 18 CFR
16.2(a), (d) (2018).
    \28\ NOPR, 166 FERC ] 61,083 at P 7.
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    16. Daybreak and Consumers recommend that the proposed rule be
expanded to include relicensing of projects licensed under the
expedited licensing process.\29\ NHA did not explicitly express
opposition or support in response to the Commission's relicensing
inquiry, but observed that the first new or subsequent license
applications for projects originally licensed under the expedited
licensing process would not be filed for another 40 years.\30\ Absent a
significant change in the regulatory landscape, NHA finds it highly
unlikely that future relicensing of a project that was originally
licensed under the expedited licensing process could not be completed
within two years.\31\
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    \29\ Daybreak's February 25, 2019 Comment at 1; Consumers'
Comment at 1-2.
    \30\ See NHA's Comment at 17.
    \31\ Id. at 17. NHA further states that a new or subsequent
license application for a project previously licensed at an existing
dam would not qualify for the expedited licensing process because it
would not satisfy the requirement set forth in section 34(e)(1)(A)
of the FPA that the project not already be licensed.
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    17. The AWIA's eligibility criteria for qualifying facilities at
existing nonpowered dams exclude facilities that are already licensed
or exempted from license requirements in the FPA.\32\ Thus, future new
or subsequent license applications for projects at existing nonpowered
dams that were originally licensed under the expedited process would be
ineligible to participate in the expedited process. Furthermore, we
agree with NHA's observation that, in most cases, a relicense
proceeding for a project that was originally licensed under the
expedited licensing process should be completed within an average of
two years under the Commission's existing regulations. Accordingly, the
expedited licensing process set forth in this final rule remains
limited in scope to original license applications for projects at
qualifying facilities at existing nonpowered dams and for closed-looped
pumped storage projects.
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    \32\ See 16 U.S.C.A. 823e(e)(1)(A) (West 2019).
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3. Amendment Proceedings
    18. The NOPR explained that 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) explicitly 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. These sections, however, are silent on
the length of time to process applications to amend licenses.
    19. Because the Commission already processes the majority of
amendments within two years, the NOPR proposed to process applications
to amend licenses for projects located at qualifying nonpowered dams
and for closed-loop pumped storage projects under the Commission's
existing regulations for amendments in 18 CFR part 4, subpart L.\33\
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    \33\ NOPR, 166 FERC ] 61,083 at PP 42-44 (estimating that about
98 percent of amendment-related filings were processed in two years
during the past five years).
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    20. NHA contends that once a project is licensed, there is no
reason that applications to amend licenses issued under the expedited
licensing process should receive preferential treatment over
applications to amend licenses issued under the ILP, TLP, or ALP
framework.\34\ No other comments addressed or advocated for an
expedited amendment process separate and apart from the Commission's
existing procedures for license amendment applications.
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    \34\ NHA's Comment at 18.
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    21. Therefore, we are satisfied that the Commission's existing
procedures will continue to result in expeditious action on any
application to amend a license originally licensed under the expedited
process, well within the two-year benchmark established in the AWIA.
Accordingly, the final rule does not establish a separate process for
acting on applications to amend licenses issued under the expedited
licensing process.

B. Expedited Licensing Process

1. Section 7.1--Applicability and Definitions
    22. In Sec.  7.1(c)(3) of the NOPR, the Commission restated the
Commission's current definition of a closed-loop pumped storage project
as ``a pumped storage project that is not continually connected to a
naturally-flowing water feature.'' \35\ The NOPR also incorporated the
statutorily-defined ``qualifying criteria,'' ``qualifying nonpowered
dam,'' and ``qualifying facility.''
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    \35\ NOPR, 166 FERC ] 61,083 at PP 21 & 36. The NOPR's preamble
mistakenly used ``continuously'' instead of ``continually'' to
describe the Commission's current definition of closed-loop pumped
storage.
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    23. We received several comments that the key terms, such as
``continually,'' ``connected,'' and ``naturally-flowing water
features'' are unclear, which could potentially result in the
expeditious licensing of an environmentally-harmful pumped storage
project.\36\ Some commenters argue that a pumped storage project may
not be ``continually'' connected to a naturally-flowing water feature,
but those intermittent periods when the

project is connected to the naturally-flowing water feature could
result in substantial resource impacts.\37\ On the other hand, NHA,
Consumers, and Dominion encourage the Commission to generously
interpret terms, such as closed-loop pumped storage, in order to allow
more projects to be eligible for the expedited process.\38\
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    \36\ See Interior's March 8, 2019 Comment at 2-3, Forest
Service's March 8, 2019 Comment at 2, Oregon DFW's March 11, 2019
Comment at 1-2.
    \37\ See Forest Service's Comment at 2; Interior's Comment at 3;
Oregon DFW's Comment at 1.
    \38\ See NHA's Comment at 10-15; Consumers' Comment at 2;
Dominion's Comment at 4-8.
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    24. In addition, commenters contend that the term ``connected'' is
ambiguous as to whether the connection only refers to a physical
hydraulic connection or includes a separate and independent hydrologic
connection.\39\ Some commenters suggest that for a project to qualify
for expedited processing as a closed-loop pumped storage project, there
should be no hydrologic connection between the project and surface or
groundwater features.\40\ Interior notes that subsurface or surface
hydrologic connections might adversely affect lake levels and
associated recreational use and access on lakes which would lead to
longer processing times.\41\ NHA and Dominion allege that excluding
projects from eligibility based on a mere physical hydraulic or a
hydrologic connection to surface waters or groundwater would disqualify
almost all closed-loop pumped storage projects, and therefore request
that our definition focus on how the water would be used by the project
rather than how the project is connected to the water feature.\42\
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    \39\ See, e.g., Forest Service's Comment at 2.
    \40\ See Oregon DFW's Comment at 2; Nature Conservancy's March
11, 2019 Comment at 4; Forest Service's Comment at 2.
    \41\ See Interior's Comment at 3.
    \42\ See NHA's Comment at 14; Dominion's Comment at 7.
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    25. As for ``naturally-flowing water features,'' the Forest Service
asks whether such water features include groundwater aquifers, existing
lakes, or other isolated waterbodies.\43\ Commenters note that although
flow is generally not significant in the hydrologic mass balance of
lakes or other isolated, surface water features,\44\ use of the term
``naturally-flowing'' could result in eligibility for projects that
would significantly adversely affect lakes, endorheic basins,\45\ and
other isolated surface water features,\46\ as well as wildlife that
inhabit these areas.\47\
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    \43\ See Forest Service's Comment at 2.
    \44\ See id.
    \45\ Endorheic basins are hydrologically-landlocked drainage
basins that do not discharge to other bodies of water.
    \46\ See Forest Service's Comment at 2; Interior's Comment at 3;
Oregon DFW's Comment at 2.
    \47\ See Oregon DFW's Comment at 2.
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    26. We received several proposed alternative definitions of a
closed-loop pumped storage project.
    27. The Forest Service recommends that a closed-loop pumped storage
project be defined as a pumped storage project ``whose operation causes
little to no change in discharge, flow, water quality, or other
hydrologic characteristics of naturally-occurring surface or
groundwater features, or the species and habitats that depend on these
features.'' \48\ Oregon DFW suggests defining closed-loop pumped
storage as ``projects that utilize artificial reservoirs that have been
constructed and operated for purposes authorized in the original
license; that rely on temporary connections to flowing water features
or groundwater for initial fill and periodic recharge; and whose
construction and operation causes little to no change in discharge,
flow, water quality, or other hydrologic characteristics of naturally
occurring surface or groundwater features, or to the fish and wildlife
and their habitats associated with these features.'' \49\ NHA and
Dominion encourage the Commission to expand its definition, and suggest
that the Commission define a closed-loop pumped storage project as: ``a
pumped storage project that: (1) does not obtain its principal water
supply from a naturally-flowing water feature; (2) obtains its water
from a naturally-flowing surface water feature only for the purpose of
initial fill and periodic replenishment, or (3) is not located on a
navigable waterway.'' \50\
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    \48\ Forest Service's Comment at 1.
    \49\ Oregon DFW's Comment at 2.
    \50\ NHA's Comment at 15; see Dominion's Comment at 7. NHA
contends that the location of a proposed project on non-navigable
waterways (e.g., small creeks or streams which do not contain or
affect significant environmental resources) should not disqualify
the project from the expedited licensing process.
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    28. As noted by the resource agencies, we recognize that use of the
term ``not continually connected'' in our definition might capture
pumped storage projects that would potentially require additional time
and agency resources to determine their environmental effects, and may
not be appropriate for expedited processing. Therefore, in the final
rule, we adopt a definition of a closed-loop pumped storage project
that focuses on the extent and type of a project's use of surface
waters or groundwater rather than on its physical, hydraulic connection
to such features. Further, we agree with the resource agencies that the
term ``naturally-flowing water features'' in terms of a connected use
is overly narrow and does not account for the environmental
significance of water withdrawals from such features as groundwater,
lakes, and wetlands. We see the benefit in specifying in our definition
how we expect closed-loop pumped storage projects would utilize water
from these water features (i.e., initial fill and periodic recharge),
as suggested by many commenters.\51\
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    \51\ See, e.g., NHA's Comment at 11, 14-15; Dominion's Comment
at 5; Oregon DFW's Comment at 2.
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    29. In addition, as required by section 35(g)(2) of the FPA, a
request to use the expedited licensing process must demonstrate that a
closed-loop pumped storage project will 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 of 1973 (ESA).\52\ If the proposed project does
not meet these two aforementioned statutory criteria, then the project
will not qualify under the AWIA for use of the expedited process.
Therefore, we have incorporated these criteria into the final rule's
definition of a closed-loop pumped storage project.
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    \52\ 16 U.S.C. 1531-1544 (2012).
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    30. As to the statutory requirement that the project cause little
to no change to the existing surface flows and uses, the mere presence
of a pumped storage project reservoir on a surface water feature, such
as a natural waterway, lake, or wetland would undeniably change
existing surface water flows and uses in direct contravention of FPA
section 35(g)(2)(A). For this reason and for clarification, the revised
definition requires closed-loop pumped storage projects to use
reservoirs that are not located on natural surface water features.
    31. Therefore, informed by the comments received on the NOPR, and
for the purposes of expediting processing under the AWIA, Sec.
7.1(c)(3) is revised, as follows: ``pumped storage projects that: (1)
cause little to no change to existing surface and groundwater flows and
uses; (2) are unlikely 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; (3)
utilize only reservoirs situated at locations other than natural
waterways, lakes, wetlands, and other natural surface water features;
and (4) rely only on temporary withdrawals from surface

waters or groundwater for the sole purposes of initial fill and
periodic recharge needed for project operation.''
2. Section 7.2--Use of Expedited Licensing Process
    32. Section 7.2 of the NOPR described the information that an
applicant must include in any license application that accompanies a
request to use the expedited licensing process. The information
includes design and environmental criteria mandated by sections 34 and
35 of the FPA and documentation demonstrating early consultation with
relevant agencies, Indian Tribes, and dam owners.\53\
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    \53\ See NOPR, 166 FERC ] 61,083 at PP 15-17 (CWA), PP 18-22
(ESA), PP 23-24 (NHPA).
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a. Statutory Criteria for Qualifying Facilities at Nonpowered Dams
    33. FPA section 34(e)(1) sets forth the ``qualifying criteria''
that a proposed project at an existing ``qualifying nonpowered dam''
must meet in order to be considered a ``qualifying facility'' \54\
eligible to apply for the expedited licensing process. Section 34(e)(1)
states that such a facility must: (A) As of October 23, 2018, not be
licensed under, or exempted from, the license requirements contained in
Part I of the FPA; (B) be associated with a qualifying nonpowered dam;
(C) be constructed, operated, and maintained for the generation of
electric power; (D) 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) not result, due to operation of the facility,
in any material change to the storage, release, or flow operations of
the associated qualifying nonpowered dam.\55\
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    \54\ FPA section 34(e)(2) defines ``qualifying facility'' as any
facility that is determined to meet the ``qualifying criteria''
under section 34(e)(1).
    \55\ 16 U.S.C.A. 823e(e)(1) (West 2019).
---------------------------------------------------------------------------

    34. 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.\56\
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    \56\ Id. section 823e(e)(3).
---------------------------------------------------------------------------

    35. NHA and the Nature Conservancy ask the Commission to define the
term ``material change'' contained in FPA section 34(e)(1)(E).\57\
Concerned that the Commission's interpretation of this statutory
qualifying criterion might unnecessarily preclude from the expedited
process projects that would have only minor effects on existing dam
operations,\58\ NHA proposes to define a ``material change'' as a
change that would ``(1) significantly modify the pre-license storage,
release, or flow operations of the associated qualifying nonpowered
dam, or (2) would impair the ability of the dam owner to control
operation of the dam.'' \59\ The Nature Conservancy proposes an
alternative definition: ``little or no change to the subdaily, daily,
seasonal and interannual operations, or to the sediment, nutrient,
dissolved oxygen, and temperature components of water quality upstream
and downstream of the facility, unless it is clearly demonstrated that
such changes will not conflict with the existing public uses and will
also result in a new ecological benefit.'' \60\
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    \57\ FPA section 34(e)(1)(E) states that ``the operation of the
facility will not result in any material change to the storage,
release, or flows from the associated qualifying nonpowered dam,
including associated impoundment or other infrastructure.'' 16
U.S.C.A. 823e(e)(1)(E) (emphasis added).
    \58\ NHA's and Dominion's comments generally advocate that the
Commission interpret statutory language generously and broadly in
order to capture more projects in the expedited licensing process.
See, e.g., NHA's Comment at 11; Dominion Comment at 5 (interpret
``cause little to no change'' in FPA section 35(g)(2)(A) broadly).
    \59\ NHA's Comment at 10.
    \60\ Nature Conservancy's Comment at 3.
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    36. NHA also requests that the final rule identify operational
regimes, such as ``run-of-river'' or ``run-of-release,'' that would
categorically not rise to the level of a ``material change'' to the
storage, release, or flow operations.\61\
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    \61\ NHA's Comment at 10.
---------------------------------------------------------------------------

    37. We decline to define ``material change'' as requested by NHA
and the Nature Conservancy. The statute provides sufficiently clear
guidance, such that a further definition is unnecessary. The term
``material'' is well understood to mean significant or consequential.
Further, we do not believe that it would be possible to develop a
definition of ``material'' that could be applied in all cases. We will
examine the facts of any case in which the materiality of changes that
be may caused by a proposed project is at issue, and make a case-by-
case decision.
    38. Rye Development recommends that we create alternative
eligibility criteria for projects at nonpowered dams, to include
projects that will (i) add new generating capacity to nonpowered dams,
(ii) not include new dams or impoundments, (iii) not materially change
any existing storage and release regimes, (iv) not include federal
lands except for those associated with an existing federal dam, and (v)
not require more than one environmental study season.\62\ Nature
Conservancy recommends that an eligible facility not materially change
water quality and that qualifying nonpowered dams exclude those that it
terms ``obsolete.'' \63\ Because section 34 of the FPA does not
authorize the Commission to replace or revise the statutory eligibility
criteria that Congress established for qualifying facilities at
nonpowered dams, we will not make the additions recommended by Rye
Development and Nature Conservancy.
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    \62\ Rye Development's Comment at 7.
    \63\ See Nature Conservancy's Comment at 3 (recommending the
addition of a criterion to ensure that an associated nonpowered dam
actively serves a public purpose).
---------------------------------------------------------------------------

b. Qualifying Criteria for Closed-Loop Pumped Storage Projects
    39. FPA section 35(g)(1) directs the Commission to establish
criteria that a pumped storage project must meet to be eligible for the
expedited licensing process. FPA section 35(g)(2) further instructs the
Commission to include criteria that an eligible closed-loop 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 threatened or endangered under the ESA.
    40. We received several comments requesting that the final rule
include additional or revised qualifying criteria for closed-loop
pumped storage projects to be eligible for the expedited licensing
process under FPA section 35(g)(2). Specifically, we received
recommendations that the final rule include additional qualifying
criteria to ensure that a closed-loop pumped storage project eligible
for the expedited licensing process will: (i) Not be hydrologically
connected to natural water bodies; \64\ (ii) cause little to no change
to existing aquatic habitats, water quality, and water quantity; \65\
(iii) cause little to no change to river, lacustrine, and groundwater-
dependent ecosystems; \66\ (iv) cause little to no change to existing
recreational access and uses; \67\ (v) meet the intent of

comprehensive land management plans for all applicable resources if the
project will be located on federal reservations; \68\ and (vi) not
degrade or act as a source of contaminants to surface or groundwater
features if the project will use abandoned mines as storage
reservoirs.\69\
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    \64\ See Oregon DFW's Comment at 2; Nature Conservancy's Comment
at 4.
    \65\ See Oregon DFW's Comment at 2; Nature Conservancy's Comment
at 4; NMFS' February 15, 2019 Comment at 2; Forest Service's Comment
at 2-3; Interior's Comment at 3.
    \66\ See Forest Service's Comment at 3; Oregon DFW's Comment at
2.
    \67\ See Interior's Comment at 3.
    \68\ See Forest Service's Comment at 3; Interior's Comment at 3;
Nature Conservancy's Comment at 4. Nature Conservancy also
recommends a qualifying criterion that the project not be located on
a river reach protected under the National Wild and Scenic Rivers
Act, or similar state statute. However, pursuant to section 7(a) of
the Wild and Scenic Rivers Act, the Commission is already prohibited
from licensing the construction of any ``dam, water conduit,
reservoir, powerhouse, transmission line, or other project works . .
. on or directly affecting'' a river segment that Congress has
designated as component of the National Wild and Scenic Rivers
System. 16 U.S.C. 1278(a) (2012).
    \69\ See Forest Service's Comment at 3; Nature Conservancy's
Comment at 4.
---------------------------------------------------------------------------

    41. We believe that the Commission's revised definition of a
``closed-loop pumped storage project,'' \70\ in combination with the
Commission's existing licensing requirements, will ensure that only
projects meeting the Congressional criteria qualify for expedited
treatment, and that therefore no additional definition is needed.
---------------------------------------------------------------------------

    \70\ See supra PP 28-31.
---------------------------------------------------------------------------

    42. With regard to the qualifying criteria, we also received
requests to clarify the statutory language. NMFS, Interior, and Oregon
DFW recommend that the qualifying criteria set forth in FPA section
35(g)(2)(i) be revised to specify ``the construction and operation'' of
the project will cause little to no change to existing surface and
groundwater flows and uses.\71\
---------------------------------------------------------------------------

    \71\ See NMFS' Comment at 2; Interior's Comment at 3; Oregon
DFW's Comment at 2.
---------------------------------------------------------------------------

    43. We cannot revise the criteria established by Congress. However,
we note that Congress did not exclude project construction and
operation from the criteria in section 35(g)(2)(i).
    44. Pursuant to the authority in FPA section 35(g)(2) that directs
the Commission to establish additional qualifying criteria for closed-
loop pumped storage projects, we proposed in the NOPR to add
``designated critical habitat of species of [threatened or endangered]
species'' in Sec.  7.2(b)(2)(ii) to ensure the qualifying criterion
conforms with the ESA.\72\
---------------------------------------------------------------------------

    \72\ NOPR, 166 FERC ] 61,083 at P 22 (explaining that section
7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2) (2012), requires agencies
to ensure that their actions are not likely to result in the
destruction or adverse modification of designated critical habitat
of such species).
---------------------------------------------------------------------------

    45. NHA does not oppose this additional criterion because it
assumes that an applicant would be unlikely to request use of the
expedited licensing process if a proposed project would require
preparation of a Biological Opinion.\73\ Forest Service endorses the
addition.\74\ We therefore have retained the additional critical
habitat criterion in Sec.  7.2(b)(2)(ii) of the final rule.
---------------------------------------------------------------------------

    \73\ NHA's Comment at 13.
    \74\ See Forest Service's Comment at 3.
---------------------------------------------------------------------------

c. Commission-Defined Criteria for the Expedited Licensing Process
    46. The NOPR established criteria for applications to be eligible
for the new expedited licensing process. The FERC-defined criteria for
the expedited process, as set forth in Sec. Sec.  7.2(b)(3) to
7.2(b)(7), modify the timing of existing licensing requirements by
requiring an applicant interested in pursuing the expedited process to
submit certain documentation of consultation at the same time that an
application is filed.
i. Early Consultation With Agencies
    47. Several commenters recommended early and frequent consultation
with federal and state agencies. The Nature Conservancy recommends that
Sec.  7.2(b) include a requirement that applicants engage in early
coordination with mandatory conditioning agencies and any resource
agencies with jurisdiction over resources that may be affected by the
proposed project.\75\ Interior also requests additional guidance on the
form and content of the required pre-filing documentation.\76\
---------------------------------------------------------------------------

    \75\ See Nature Conservancy's Comment at 5.
---------------------------------------------------------------------------

    48. Consultation with agencies will be crucial to the success of
the expedited licensing process. Moreover, the consultation criteria
discussed below are designed to promote early engagement between
applicants and agencies. However, because the Commission's existing
regulations already require applicants to consult with these agencies
prior to filing a license application,\77\ we decline to include Nature
Conservancy's suggested requirement in Sec.  7.2(b) of the final rule.
---------------------------------------------------------------------------

    \77\ See 18 CFR 4.38, 4.34(i), 5.1(d).
---------------------------------------------------------------------------

ii. Clean Water Act Documentation
    49. In the NOPR, Sec.  7.2(b)(3) proposed to require an applicant,
as part of its application, to provide its 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 one of
the following: (1) A copy of water quality certification, (2) evidence
of a waiver of the certification, or (3) documentation from the state
certifying agency that the water quality certification application is
complete, or in the event a certifying agency denies certification, a
copy of the denial within 30 days after the applicant receives it.
    50. Daybreak contends that section 401 of the Clean Water Act does
not require that a state certify a water quality certification
application is complete in order to start the clock on the one-year
statutory deadline for a state to act on an application.\78\
---------------------------------------------------------------------------

    \78\ Daybreak's Comment at 2.
---------------------------------------------------------------------------

    51. Daybreak is correct. Section 401(a)(1) of the Clean Water Act
states that ``[i]f the State . . . fails or refuses to act on a request
for certification, within a reasonable period of time (which shall not
exceed one year) after receipt of such request, the certification
requirements . . . shall be waived with respect to such Federal
application.'' \79\ A state's one-year review period begins when the
applicable state agency receives the request for water quality
certification, not when the state agency deems an application
``complete.'' \80\
---------------------------------------------------------------------------

    \79\ 33 U.S.C. 1341(a)(1) (2012).
    \80\ N.Y. State Dep't of Environmental Conservation v. FERC, 884
F.3d 450, 455-456 (2d Cir. 2018).
---------------------------------------------------------------------------

    52. The purpose of proposed Sec.  7.2(b)(3)(iii) was not to inform
the Commission when to start the one-year clock for state action on a
section 401 application. Rather, proposed Sec.  7.2(b)(3)(iii) sought
to ensure that all of the necessary authorizations, including water
quality certification, could be obtained in a timely enough manner so
as to enable the Commission to act on a license application within two
years from the date of application filing.
    53. However, recognizing that requiring applicants to submit
documentation from a state certifying agency that the water quality
certification application is ``complete'' may prove difficult, we have
revised Sec.  7.2(b)(3)(iii) to remove this requirement. Accordingly,
at the time of application filing, an applicant will be required to
submit a copy of the request for certification, including proof of the
date on which the certifying agency received the request; a copy of
water quality certification; or evidence of waiver of water quality
certification. This information will still enable us to assess the
likelihood that a water quality certification will be obtained in a
timely enough manner so as to facilitate Commission action on a license
application within two years from the date of application filing.
iii. ESA Documentation
    54. NMFS recommends that the Commission require that applicants, in
proposed Sec.  7.2(b)(4), begin early coordination with NMFS during
pre-

filing if the project would affect resources protected under the ESA or
Magnuson-Stevens Fishery Conservation and Management Act (MSA).\81\
NMFS states that the benefits of early coordination include improved
license applications, efficient environmental reviews, and a higher
likelihood of a settlement.\82\ Interior requests that the same
requirement be added with regard to early coordination with FWS and
lists similar benefits.\83\
---------------------------------------------------------------------------

    \81\ 16 U.S.C. 1801 et seq. (2012); See NMFS' Comment at 2.
    \82\ See id.
    \83\ See Interior's Comment at 3.
---------------------------------------------------------------------------

    55. Pursuant to Sec.  4.38 of the Commission's regulations, a
potential applicant must consult with the relevant federal, state, and
interstate resource agencies, including NMFS and FWS, prior to filing
an application for an original license. We agree with NMFS and Interior
that early consultation on resources protected under the ESA or MSA
would allow applicants to avoid or minimize effects to listed species
by negotiating protection, mitigation, and enhancement measures.
However, this request for pre-filing consultation does not differ from
the Commission's existing licensing requirements. Moreover, in the
NOPR,\84\ the Commission proposed to require that any application filed
with a request for authorization to use the expedited licensing process
include: 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. Therefore, we find it
unnecessary to add NMFS and Interior's request as a requirement of the
expedited licensing process.\85\
---------------------------------------------------------------------------

    \84\ NOPR, 166 FERC ] 61,083 at P 11.
    \85\ We also decline to issue guidance pertaining to how to
consult with the FWS or how to interpret FWS's or NMFS' regulations
and policies, as requested by Interior and NMFS.
---------------------------------------------------------------------------

    56. Interior recommends that the applicant file concurrently with
its application written concurrence from applicable stakeholders
concerning potential project impacts on natural, cultural, or
recreation resources.\86\
---------------------------------------------------------------------------

    \86\ Interior's Comment at 1-2.
---------------------------------------------------------------------------

    57. After a license application is filed and accepted as complete,
the Commission will issue a Ready for Environmental Analysis (REA)
notice to seek input from stakeholders on an applicant's license
application in advance of preparing the Environmental Assessment (EA)
or Environmental Impact Statement (EIS) required by the National
Environmental Policy Act of 1969 (NEPA). In terms of the licensing
process, seeking input from stakeholders at the time of the REA notice
does not delay or slow down the license process timeline. Therefore, we
find the recommendation that the applicant include with its application
written concurrence from applicable stakeholders concerning potential
project impacts on natural, cultural, or recreation resources unduly
burdensome and unnecessary to expedite the licensing process.
    58. To conform to ESA regulations, NMFS and Interior recommend that
the Commission revise Sec.  7.2(b)(4)(i) to replace ``at the proposed
project site'' with ``in the action area, as defined by the ESA
regulations at 50 CFR 402.02.'' \87\ Interior explains that limiting
evaluation to a ``proposed project site'' would not adequately consider
impacts to National Park Services (NPS) resources and recreational
use.\88\ All aspects of the project, Interior suggests, should be
evaluated, such as staging and construction laydown areas, roads and
other conduits and/or transmission line or interconnections.\89\
Interior recommends that the Commission evaluate a proposal and
determine the impacts in ``action areas'' under the ESA and/or ``area
of potential effects'' under the National Historic Preservation Act
(NHPA) \90\ in order to identify the potential adverse effects on
natural and recreational resources near a NPS unit.\91\
---------------------------------------------------------------------------

    \87\ NMFS' Comment at 2; Interior's Comment at 4.
    \88\ See Interior's Comment at 2.
    \89\ See id.
    \90\ 36 CFR 800.16(d) (2018).
    \91\ See Interior's Comment at 2 and n.2.
---------------------------------------------------------------------------

    59. We accept NMFS' and Interior's recommendation and replace the
term ``at the proposed project site'' with the term ``in the action
area'' in Sec.  7.2(b)(4)(i) to bring the language into accord with the
ESA. With respect to commenters' other concerns about the Commission's
responsibilities under the ESA and the NHPA, the expedited licensing
process does not change the Commission's responsibilities under
existing federal laws, such as the ESA and the NHPA, and Commission
staff will continue to comply with all pertinent federal laws during
the review of a license application.
    60. NMFS and Interior request that the Commission clarify in Sec.
7.2(b)(4)(i) that the Commission has the responsibility to determine
whether ESA consultation is necessary under section 7 of the ESA.\92\
Both assert that the Commission has the ultimate responsibility to
ensure compliance with section 7 of the ESA.\93\
---------------------------------------------------------------------------

    \92\ NMFS' Comment at 2; Interior's Comment at 4.
    \93\ NMFS' Comment at 3; Interior's Comment at 4.
---------------------------------------------------------------------------

    61. Section 7 of the ESA speaks for itself and there is thus no
need for the requested clarification in Sec.  7.2(b)(4)(i).
    62. NMFS and Interior request that the Commission clarify in Sec.
7.2(b)(4)(ii) that the Commission will designate an applicant to be a
non-federal representative under ESA regulations \94\ at the beginning
of the expedited process in order for the applicant to participate in
informal ESA consultation.\95\
---------------------------------------------------------------------------

    \94\ See 50 CFR 402.02, 402.08, 402.13 (2018).
    \95\ NMFS' Comment at 2; Interior's Comment at 3.
---------------------------------------------------------------------------

    63. Section 5.5(e) of the Commission's regulations \96\ provides
that a potential license applicant may, as early as the same time it
files its notification of intent and distributes its pre-application
document (PAD) at the beginning of the pre-filing period, request to be
designated as the Commission's non-federal representative for purposes
of consultation under section 7 of the ESA and the joint agency
regulations thereunder at 50 CFR part 402, section 305(b) of the MSA
and the implementing regulations at 50 CFR 600.902. Even if it chooses
not to request such designation at the time of the filing of the
notification of intent, an applicant could make such a request at any
time later in the pre-filing period. The Commission typically grants
such requests as a routine process matter. Therefore, there is no need
for the requested clarification to Sec.  7.2(b)(4)(ii).
---------------------------------------------------------------------------

    \96\ 18 CFR 5.5(e).
---------------------------------------------------------------------------

    64. NMFS recommends that the Commission, with the assistance of
NMFS, develop guidance on informal ESA consultations and preparation of
biological assessments to provide to the designated non-federal
representative.\97\ NMFS and Interior further recommend that we provide
a template letter for the Commission to use to designate a non-federal
representative to conduct consultation or prepare a draft biological
assessment.\98\
---------------------------------------------------------------------------

    \97\ See NMFS' Comment at 3.
    \98\ NMFS' Comment at 3 and Attachment 1 (providing a sample
template letter); Interior's Comment at 3-4 and Attachment 1
(providing a sample template letter).
---------------------------------------------------------------------------

    65. Commission staff typically prepares guidance documents for use
by prospective license applicants, federal and state resource agencies,
and the public regarding various aspects of the

licensing process.\99\ We will instruct our staff to review the license
process guidance material to determine what modifications and
additional guidance are needed to facilitate the efficient
implementation of the new part 7 regulations.
---------------------------------------------------------------------------

    \99\ Commission staff's licensing guidance material is available
on the Commission's website at http://www.ferc.gov/industries/hydropower/gen-info/licensing.asp.
---------------------------------------------------------------------------

    66. Interior recommends that proposed Sec.  7.2(b)(4)(ii) should
require consultation documentation ``that the action is not likely to
adversely affect ESA-listed species or critical habitat.'' \100\ We
agree that Interior's recommended revision is more precise, and have
revised Sec.  7.2(b)(4)(ii) accordingly.
---------------------------------------------------------------------------

    \100\ Interior's Comment at 4.
---------------------------------------------------------------------------

    67. NMFS requests clarification of the language ``documentation of
consultation with the Service(s)'' in proposed Sec.  7.2(b)(4)(iii).
NMFS explains that the Commission must be involved with the applicant's
ESA consultation with NMFS, as required by ESA regulations.\101\
Interior requests that the phrase should be revised to ``documentation
of communication.'' \102\
---------------------------------------------------------------------------

    \101\ NMFS' Comment at 3 (citing 50 CFR 402.08).
    \102\ Interior's Comment at 4.
---------------------------------------------------------------------------

    68. We decline to make this change. As the ESA regulations allow,
the intent here is that the applicant will act as our designated non-
federal representative in seeking the documentation of consultation
specified by Sec.  7.2(b)(4)(iii).
    69. NHA submits that Commission action on the request to use the
expedited process comes too late in the process if it coincides with
the REA notice.\103\ Instead, NHA contends, a request for expedited
processing should be approved during the pre-filing process if an
applicant is able to provide, concurrent with its Notice of Intent to
File a License Application and PAD submittal, a no effect
determination, FWS and/or NMFS concurrence on a not likely to adversely
affect determination, or a draft biological assessment with
documentation of consultation and draft mitigation measures.\104\
---------------------------------------------------------------------------

    \103\ NHA's Comment at 13.
    \104\ NHA's Comment at 13; Dominion's Comment at 6.
---------------------------------------------------------------------------

    70. As noted above, the clear mandate of the AWIA is that the
expedited licensing process begin with the filing of a completed
license application, and therefore, we make no changes to the existing
pre-filing processes. If an applicant requesting to use the expedited
licensing process is able to demonstrate that its project satisfies the
eligibility criteria and submits a complete license application without
the need for Commission staff to request additional information or
correct deficiencies, then Commission staff will be able to approve the
request sooner than 180 days from the date the application was filed.
Generally, Commission staff issues an REA notice when it determines
that the contents of a license application meet the Commission's
requirements and no additional information is needed to process the
application.\105\ In the context of the expedited licensing process, if
Commission staff determines a request and application are satisfactory,
then we will issue an REA notice no later than 180 days from the date
of receipt of a completed application.
---------------------------------------------------------------------------

    \105\ 18 CFR 5.22.
---------------------------------------------------------------------------

iv. NHPA Documentation
    71. PA SHPO contends that the requirement in proposed Sec.
7.2(b)(5) that an applicant provide documentation demonstrating that
consultation with a SHPO or Tribal Historic Preservation Office has
been initiated is insufficient to satisfy section 106 of the NHPA.\106\
In addition to consultation, PA SHPO requests that the Commission
provide guidance to applicants regarding the consultation procedures
for each state SHPO. PA SHPO recommends hiring consultants that meet
Interior's standards.\107\ PA SHPO further encourages applicants to
initiate consultation early and to identify potentially affected
historic properties as soon as possible.\108\ PA SHPO also notes some
projects may be more likely to affect historic properties, which would
require more consultation time under section 106 and may warrant
exclusion from the expedited process.\109\ PA SHPO also requests that
we consider the impacts on historic properties of transmission lines
associated with projects eligible for the expedited process.\110\
---------------------------------------------------------------------------

    \106\ PA SHPO's March 5, 2019 Comment at 1.
    \107\ Id. (citing Secretary of Interior, Archeology and Historic
Preservation; Secretary of the Interior's Standards and Guidelines,
48 FR 44738-39 (1983)).
    \108\ PA SHPO's Comment at 1.
    \109\ Id.
    \110\ Id.
---------------------------------------------------------------------------

    72. PA SHPO states that existing nonpowered dams may be eligible to
be listed as historic properties in the National Register.\111\ For a
dam to be eligible in Pennsylvania, PA SHPO explains that the dam must
have engineering significance or retain its historic setting and
integrity in a surrounding historic district.\112\ PA SHPO also
recommends that applicants should begin, and if possible finish,
locating National Register significant archaeological properties during
pre-filing.\113\
---------------------------------------------------------------------------

    \111\ Id. at 2.
    \112\ See id.
    \113\ See id.
---------------------------------------------------------------------------

    73. PA SHPO recommends that the Commission, with the intent to
improve efficiency, provide guidance on the anticipated effects and
alternatives to adverse effects typically caused by projects located at
nonpowered dams and closed-loop pumped storage projects.\114\
---------------------------------------------------------------------------

    \114\ Id.
---------------------------------------------------------------------------

    74. As we acknowledged in the NOPR,\115\ the requirement that a
part 7 applicant provide documentation demonstrating that section 106
consultation has been initiated does not differ from the Commission's
existing licensing requirements.\116\ We expect our applicants, as the
project proponents, to work collaboratively with a SHPO and any
affected tribes to conduct information gathering and to complete any
studies the Commission determines necessary to support its section 106
decision-making as the Commission will make the final determination.
However, because consultation practices vary, we do not believe this
rulemaking is the appropriate forum to provide guidance on each state
SHPO's section 106 consultation procedures and preferences. Moreover,
because projects at nonpowered dams and closed-loop pumped storage
projects can vary drastically in size and scope, the Commission prefers
to analyze anticipated impacts on historic properties and resolution of
any adverse impacts on a project-by-project basis, rather than
providing a generalized or over-simplistic forecast of anticipated
effects and alternatives for projects to be proposed at nonpowered dams
and for closed-loop pumped storage projects.
---------------------------------------------------------------------------

    \115\ NOPR, 166 FERC ] 61,083 at PP 23-24.
    \116\ See 18 CFR 4.41(f)(4), 5.18(b)(3)(v).
---------------------------------------------------------------------------

v. Dam Owner Documentation
    75. The NOPR proposed to require an applicant to provide
confirmation that the federal or non-federal dam owner is not opposed
to hydropower development at the dam if the proposed project would be
located at an existing nonpowered dam.\117\
---------------------------------------------------------------------------

    \117\ See NOPR, 166 FERC ] 61,083 at P 25.
---------------------------------------------------------------------------

    76. The Forest Service requests clarification concerning the
requirement in proposed Sec.  7.2(b)(6)(ii) that an applicant provide
confirmation that the federal entity is not opposed to hydropower
development at the

location.\118\ The Forest Service recommends that the documentation
include confirmation that the applicant and federal entity discussed
the possible license conditions that may be required by the federal
entity, as well as confirmation of discussions about planning,
permitting, and management issues related to all aspects of the
development and operation of a hydropower facility, not only the
location.\119\ According to the Forest Service, the requirement should
also apply to applicants for closed-loop pumped storage projects.\120\
---------------------------------------------------------------------------

    \118\ Forest Service's Comment at 3.
    \119\ See id.
    \120\ See id.
---------------------------------------------------------------------------

    77. In contrast, Rye Development recommends that the final rule
exclude the proposed requirement in Sec.  7.2(b)(6)(ii) that the
federal dam owner must state the project is feasible.\121\ Rye
Development states that the U.S. Army Corps of Engineers' (Army Corps)
practice is to refuse to provide such documentation and it does not
favor projects at its facilities.\122\ In effect, Rye Development
contends the requirement would exclude many projects from the expedited
process.\123\
---------------------------------------------------------------------------

    \121\ Rye Development's Comment at 7.
    \122\ See id.
    \123\ See id.
---------------------------------------------------------------------------

    78. NHA also opposes the requirement that an applicant must submit
documentation demonstrating that the federal dam owner does not oppose
project development.\124\ NHA states that the federal dam owner's
opposition to the project should not be determinative, but also notes
that the federal entity could prevent project development even after
issuance of a Commission license by denying necessary authorizations
under its purview.\125\ According to NHA, a federal dam owner's
concerns about a proposed project should be addressed by the applicant
outside of the Commission's licensing process.\126\ Moreover, NHA
observes that if the federal agency opposes the project, it is unlikely
that an application will ever be filed.\127\
---------------------------------------------------------------------------

    \124\ NHA's Comment at 16.
    \125\ See id.
    \126\ See id.
    \127\ See id.
---------------------------------------------------------------------------

    79. Dominion supports the NOPR's proposal to require applicants to
provide documentation of consultation with a non-federal dam owner that
confirms the owner is not opposed to project development.\128\ Dominion
notes that allowing a developer to obtain an expedited license at an
existing non-federal dam without the owner's consent could impair the
intended use of the dam and water resource.\129\
---------------------------------------------------------------------------

    \128\ Dominion's Comment at 8.
    \129\ See id.
---------------------------------------------------------------------------

    80. The Commission's intent is to avoid significant staff
expenditures of time and effort that would be needed to shepherd an
application through the expedited licensing process to ensure a license
decision can be made two years from application filing, only to have a
project stalled by a federal dam owner's general opposition to
hydropower development at its facility. The required documentation must
demonstrate a preliminary confirmation that the federal dam owner is
not opposed to use of the facility for hydropower development; there is
no need for the federal entity to agree to specific design components
or specifications at the time of application filing. We also note that
neither the Army Corps nor Interior (on behalf the Bureau of
Reclamation) commented on this documentation requirement.
    81. Accordingly, the final rule retains the requirement that an
applicant provide documentation demonstrating that the dam owner,
whether a federal or non-federal entity, is not opposed to project
development.
vi. Public Parks, Recreation Areas, and Wildlife Areas Documentation
    82. If a proposed project would use any public park, recreation
area, or wildlife refuge established under state or local law, the NOPR
proposed in Sec.  7.2(b)(7) to require an expedited licensing 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, area, or wildlife refuge for hydropower development.\130\
---------------------------------------------------------------------------

    \130\ NOPR, 166 FERC ] 61,083 at P 26 (explaining that section
21 of the FPA, as amended by the Energy Policy Act of 1992, 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 law).
---------------------------------------------------------------------------

    83. Referencing Sec.  7.2(b)(7) as proposed in the NOPR, Interior
recommends that any license application submitted alongside a request
to use the expedited licensing process address the following areas of
interest to the National Park Service (NPS): (1) NPS areas; (2) Wild
and Scenic Rivers; (3) Nationwide Rivers Inventory and eligible/
suitable rivers; (4) recreation grant programs, and (5) recreation
management.\131\ Specifically, Interior requests that if the project or
any appurtenant structure or conduit is located in the vicinity of a
NPS unit, consultation with NPS should begin as soon as possible and an
application should include a concurrence from the NPS that the project
is not likely to adversely affect NPS-managed lands, or natural,
cultural, or recreational resources.\132\ Interior also reminds the
Commission that it must comply with the Wild and Scenic Rivers Act if a
project is proposed to be located in the proximity of a designated Wild
and Scenic River or Congressionally-authorized study segments.\133\
Further, if the project would require a conversion under various NPS-
administered recreation grant programs, Interior recommends that an
application identify a suitable replacement property approved by
NPS.\134\ Lastly, Interior recommends that an application include an
explanation of a recreation strategy, a draft or final recreation
management plan, and documentation of consultation with interested
stakeholders.\135\
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    \131\ Interior's Comment at 5-6.
    \132\ Id. at 5.
    \133\ Id. Interior also recommends that an application for a
project proposed to be located on eligible or suitable wild and
scenic rivers, including Nationwide Rivers Inventory, should include
a determination from the NPS as to whether the project would
preclude Wild and Scenic Rivers designation for Nationwide Rivers
Inventory segments and other eligible and suitable river segments.
    \134\ Id. at 5-6 (citing 36 CFR 59.3, 72.72, and 40 U.S.C.
550(b) and (e)).
    \135\ Interior's Comment at 6.
---------------------------------------------------------------------------

    84. Pursuant to Sec.  4.38 of the Commission's regulations,\136\ a
potential applicant must consult with the relevant federal, state, and
interstate resource agencies, including NPS, prior to filing an
application for an original license. Further, Sec. Sec.  4.41 and 5.18
of our regulations require an application to include documentation of
consultation; describe existing recreation facilities, existing and
potential recreational use, and any new recreation development proposed
by the applicant (e.g., recreation management plan); and identify any
designated waters and lands including any areas within or in the
vicinity of the proposed project boundary that are included in, or have
been designated for the study for inclusion in, the National Wild and
Scenic Rivers System, or that have been designated as wilderness area,
recommended for such designation, or designated as a wilderness study
area under the Wilderness Act.\137\ Therefore, with the exception of
the need for an application to identify suitable replacement property
under NPS-administered grant programs, Interior's requests do not
differ from the Commission's existing requirements

with respect to the recreation-related content of a license
application. Identifying suitable replacement property under NPS-
administered grant programs is not a prerequisite for issuance of a
Commission license. The Commission does not anticipate that this
information, or the lack thereof, will preclude the Commission's
expedited processing of the license application. Therefore, we will not
require the additional information requested by Interior.
---------------------------------------------------------------------------

    \136\ 18 CFR 4.38.
    \137\ See 18 CFR 4.41, 5.18.
---------------------------------------------------------------------------

3. Section 7.3--Adequacy Review of Application
    85. In the NOPR, the Commission proposed to 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 NOPR explained that the request to use the
expedited licensing process would likewise be rejected.
    86. We received no comments on this aspect of the NOPR. The final
rule retains Sec.  7.3 as originally proposed.
4. Section 7.4--Additional Information
    87. In the NOPR, the Commission proposed to include Sec.  7.4,
requiring an applicant under part 7 to submit additional information or
documentation to the Commission in the form and time frame prescribed
by the Commission. As proposed, Sec.  7.4 would also allow the
Commission to direct a part 7 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 or abeyance of the license application.
    88. We received no comments on this aspect of the NOPR. The final
rule retains Sec.  7.4 as originally proposed.
5. Section 7.5--Decision on Request To Use Expedited Licensing Process
    89. In the NOPR, the Commission proposed that the Director of the
Office of Energy Projects (OEP) would act on a 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, deficiencies
remain, or additional information is still needed six months after the
date the application is filed, the Director will deny the request to
use the expedited licensing process. If the expedited licensing request
is denied, proposed Sec.  7.5 explained that the license application
would be processed pursuant to a standard processing schedule under
parts 4 or 5 of the Commission's regulations, as appropriate.
    90. Daybreak recommends that the Director of OEP should only have
60 to 90 days, not six months as proposed in Sec.  7.5, to review a
request to use the expedited process to determine whether the project
is eligible for the expedited process.\138\ Similarly, NMFS recommends
30 to 60 days to make this determination,\139\ while the Nature
Conservancy recommends 60 days.\140\ If an application is complete,
NMFS recommends that the Commission issue a Notice of Acceptance and
Ready for Environmental Analysis immediately and not wait for the six-
month period to run.\141\ Alternatively, Daybreak recommends that the
time for the applicants to respond to the Commission staff's deficiency
requests should not be counted toward the two-year deadline.\142\
---------------------------------------------------------------------------

    \138\ Daybreak's Comment at 3.
    \139\ NMFS' Comment at 3.
    \140\ Nature Conservancy's Comments at 5.
    \141\ NMFS' Comment at 3.
    \142\ Daybreak's Comment at 3.
---------------------------------------------------------------------------

    91. The Nature Conservancy asks the Commission to clarify whether
the two-year timeframe begins once the Director of OEP determines
whether the use of the expedited licensing process is appropriate.\143\
---------------------------------------------------------------------------

    \143\ Nature Conservancy's Comment at 5.
---------------------------------------------------------------------------

    92. To clarify, the Director of OEP will act on a request to use
the expedited licensing process no later than 180 days after an
application and request to use the expedited process has been filed.
However, earlier action by the Director of OEP is possible if an
application clearly demonstrates compliance with the expedited
licensing eligibility criteria. The timeliness of the Director's action
on such a request will also be directly tied to the completeness of the
license application as well as the applicant's prompt resolution of any
deficiencies and additional information requests. If an applicant is
unable to correct all deficiencies within 180 days after the
application filing date, the Director will deny the request to use the
expedited licensing process, and processing of the application will
proceed under the Commission's standard licensing process.
    93. If the Director approves a request to use the expedited
licensing process, the two-year process will be deemed to have begun on
the date the application was filed. Therefore, whether the Director
approves an expedited licensing request within 30 days or 180 days from
the date the application was filed, the two-year schedule commences on
the date the application was filed. For the sake of precision, we have
revised Sec. Sec.  7.5 and 7.6 in the final rule to replace ``6
months'' with ``180 days.''
6. Section 7.6--Notice of Acceptance and Ready for Environmental
Analysis
    94. As proposed in the NOPR, section 7.6 explained that if the
Director of OEP approves a request to use the expedited licensing
process, the Commission will issue a public notice no later than six
months from the application filing date. 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.
    95. The expedited schedule will include date estimates for: (i) The
filing of recommendations, preliminary terms and conditions, and
fishway prescriptions; (ii) issuance of the draft NEPA document, or an
EA not preceded by a draft; (iii) filing of responses, if applicable,
to requests for concurrence or formal consultation under ESA, or to
other Commission staff requests to agencies or Indian Tribes under
other federal laws, including the MSA 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 EA; and (vi) issuance of a final NEPA
document, if applicable.
    96. NMFS and Interior request that the Commission, prior to issuing
public notice of the application, seek concurrence on the proposed
schedule from the agencies responsible for the various environmental
reviews and authorizations.\144\ NMFS and Interior also request that
the Commission issue a final decision on an application as soon as
possible after the issuance of the final NEPA document to allow
resource agencies sufficient time within the two-year expedited process
to complete the requisite environmental reviews and
authorizations.\145\
---------------------------------------------------------------------------

    \144\ NMFS' Comment at 3; Interior's Comment at 4.
    \145\ NMFS' Comment at 3; Interior's Comment at 4.

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

    97. The expedited processing schedule provided for in Sec.  7.6(e)
will be determined on case-by-case basis. Agencies should memorialize
any anticipated timing or scheduling concerns during pre-filing
correspondence with the applicant. In addition, once an application
with a request for expedited processing is filed with the Commission,
agencies should strive to promptly notify the Commission of any
schedule-related concerns or requests. The Commission will consider any
such agency input prior to issuing the public notice containing a
project's expedited licensing schedule.
7. Section 7.7--Amendment of Application
    98. Section 7.7 of the NOPR proposed a process for amending a
pending part 7 application following the Commission's issuance of the
notice accepting the application and finding it ready for environmental
analysis.
    99. The Forest Service recommends that amendments to a license
application filed under part 7 only be permitted before the Commission
issues a notice of acceptance of the application.\146\ Permitting
amendments after a notice of acceptance has been issued would not allow
sufficient time for the applicant and agencies to negotiate and modify
license terms and conditions.\147\
---------------------------------------------------------------------------

    \146\ Forest Service's Comment at 4.
    \147\ Forest Service's Comment at 4.
---------------------------------------------------------------------------

    100. We agree that a request to amend a part 7 license application
after the acceptance of the application and issuance of the expedited
processing schedule may interfere with the Commission's ability to act
on a license application within two years from the date of application
filing. Therefore, we have revised Sec.  7.7 to allow the Director of
OEP to remove an application from the expedited licensing process if
the applicant files a significant amendment to its application. If an
application is removed from the expedited licensing process, Commission
staff will continue to process the application under the Commission's
standard licensing process.
8. Section 7.8--Other Provisions
    101. Section 7.8, as proposed in the NOPR, authorized the Director
of OEP to waive or modify provisions of part 7 for good cause. Proposed
Sec.  7.8 also explained that the Commission may consider late-filed
recommendations by authorized fish and wildlife agencies under the Fish
and Wildlife Coordination Act \148\ and FPA section 10(j),\149\ and
late-filed FPA section 4(e) \150\ terms and conditions or FPA section
18 \151\ prescriptions as cause to remove the application from the
expedited licensing process under this part. In addition, proposed
Sec.  7.8(c)(5) stated that ``[t]he 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 [FPA].'' \152\
---------------------------------------------------------------------------

    \148\ 16 U.S.C. 661-666c (2012).
    \149\ Id. section 803(j).
    \150\ Id. section 797(e).
    \151\ Id. section 811.
    \152\ NOPR, 166 FERC ] 61,083 at Sec.  7.8(c)(5) (emphasis
added).
---------------------------------------------------------------------------

    102. NMFS and Interior recommend that the Commission expand or
generalize the circumstances listed in proposed Sec.  7.8 that would
cause the Commission to remove a project from the expedited
process.\153\ NMFS provides two examples, one in which the an applicant
fails to provide sufficient information to complete ESA or essential
fish habitat (EFH) consultation due to unanticipated delays, and
another in which the scope of the project changes unexpectedly.\154\
---------------------------------------------------------------------------

    \153\ NMFS' Comment at 4; Interior's Comment at 4.
    \154\ NMFS' Comment at 4.
---------------------------------------------------------------------------

    103. Once an applicant has received approval to use the expedited
licensing process, circumstances such as late-filed recommendations,
terms and conditions, or prescriptions that may cause a project to be
removed from the expedited licensing process will be evaluated on a
case-by-case basis. The scenarios posed by NMFS (i.e., insufficient
information to complete ESA or EFH consultation and unanticipated
changes to the scope of the project) could impact the aspirational two-
year processing timeline, but depending on the circumstances, may not
be cause to remove the project from the expedited licensing process. In
the alternative, rather than removing the project from the expedited
licensing process, Commission staff may instead choose to document the
reason for the delay and issue a revised processing schedule that may
extend the original two year timeline.
    104. NMFS and Interior state that the Commission lacks the
authority to reject a mandatory license condition prescribed by an
agency under section 4(e) of the FPA or a fishway prescription
prescribed by agency under section 18 of the FPA based on a deadline
set forth by the Commission.\155\ Therefore, NMFS recommends that the
word ``timely'' be removed from proposed Sec.  7.8(c)(5).\156\
---------------------------------------------------------------------------

    \155\ NMFS' Comment at 4; Interior's Comment at 2 and 5.
    \156\ NMFS' Comment at 4.
---------------------------------------------------------------------------

    105. As NMFS and Interior correctly observe, the Commission has no
authority to reject mandatory conditions filed under FPA section 4(e)
or fishway prescriptions filed under FPA section 18 even if the
mandatory condition or prescription is filed late.\157\ Accordingly, we
have deleted the word ``timely'' from Sec.  7.8(c)(5).
---------------------------------------------------------------------------

    \157\ See City of Tacoma, WA v. FERC, 460 F.3d 53, 64-65 (D.C.
Cir. 2006).
---------------------------------------------------------------------------

9. Section 7.9--Transition Provision
    106. The NOPR proposed including a transition provision to clarify
that the new part 7 would only apply to original license applications
filed on or after the effective date of the final rule.
    107. The Commission received no comments on this aspect of the
NOPR. The final rule retains Sec.  7.9 as originally proposed.

C. Other Matters

1. Projects That Require an EIS
    108. The NOPR requested comments on whether the expedited licensing
process should be available for projects that otherwise meet the
eligibility criteria, but will require the preparation of an EIS.\158\
---------------------------------------------------------------------------

    \158\ NOPR, 166 FERC ] 61,083 at PP 45-47.
---------------------------------------------------------------------------

    109. The Forest Service, Oregon DFW, Interior, and the Nature
Conservancy support excluding projects that would require the
preparation of an EIS from the expedited process because the expedited
process should only be available for projects that would have limited
environmental impacts.\159\
---------------------------------------------------------------------------

    \159\ Forest Service's Comment at 4; Oregon DFW's Comment at 2;
Interior's Comment at 7; Nature Conservancy's Comment at 2.
---------------------------------------------------------------------------

    110. In contrast, Daybreak believes that an expedited process that
would exclude closed-loop pumped storage projects that would require an
EIS would be overly restrictive.\160\ Daybreak warns that ``virtually''
no closed-loop pumped storage project would qualify for the expedited
process and would violate the purpose of the statute.\161\
---------------------------------------------------------------------------

    \160\ Daybreak's Comment at 2-3.
    \161\ Id.
---------------------------------------------------------------------------

    111. Rather than categorically excluding projects that will require
preparation of an EIS, NHA suggests that the Commission should make a
case-by-case determination at the conclusion of the pre-filing NEPA
scoping on whether the particular

circumstances warrant approval of the expedited licensing process.\162\
---------------------------------------------------------------------------

    \162\ NHA's Comment at 18.
---------------------------------------------------------------------------

    112. As further described in the discussion regarding the One
Federal Decision process,\163\ the final rule will not categorically
exclude applications for projects that would require the preparation of
an EIS.\164\ In light of NHA's recommendation, Commission staff will
decide, on a case-by-case basis, whether to approve a request to use
the expedited process after completing pre-filing scoping. By waiting
until more information about a proposal's possible environmental
effects is available, we ensure that EIS projects that can be licensed
within two years are not unreasonably excluded from the expedited
process. Yet, we would also be able to exclude from expedited
processing EIS projects that would require more resources, thereby
ensuring that these projects are not hastily licensed under the
expedited process. Accordingly, the final rule will not restrict part 7
eligibility to only projects that require preparation of an EA.
---------------------------------------------------------------------------

    \163\ See infra PP 114-115.
    \164\ Under the Commission's existing regulations, an EIS is
normally prepared for licenses for construction of any unconstructed
water power projects. 18 CFR 380.6(a)(4) (2018). If, however, the
Commission finds a license application may not significantly affect
the quality of the human environment, an EIS may not be required to
be prepared. Id. 380.6(b).
---------------------------------------------------------------------------

    113. The Forest Service and NMFS request clarification on the
processing timeline for an application for a project that would be
eligible for both the expedited licensing process and the One Federal
Decision process.\165\
---------------------------------------------------------------------------

    \165\ Forest Service's Comment at 4; NMFS' Comment at 1.
---------------------------------------------------------------------------

    114. By signing a Memorandum of Understanding Implementing One
Federal Decision Under Executive Order 13807,\166\ federal agencies,
including the Commission, committed to completing within an average of
two years all required environmental reviews and authorization
decisions for ``major infrastructure projects.'' \167\ In general for
hydropower projects, this two-year timeframe starts on the date the
Commission publishes a Notice of Intent to prepare an EIS and ends with
the issuance of all federal environmental reviews and authorization
decisions.\168\
---------------------------------------------------------------------------

    \166\ 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);
Memorandum of Understanding Implementing the One Federal Decision
under Executive Order 13807, https://www.ferc.gov/legal/mou/2018/MOU-One-Federal-Decision.pdf (One Federal Decision MOU).
    \167\ 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. Exec. Order No. 13,807, section
3(e).
    \168\ FERC's One Federal Decision Implementation Plan,
Attachment C. Under our One Federal Decision Implementation Plan, we
will issue NOIs to prepare an EIS in post-filing for hydropower
projects.
---------------------------------------------------------------------------

    115. Projects that qualify as ``major infrastructure projects'' and
receive approval to use the expedited licensing process will be
processed under the two-year expedited licensing process set forth in
part 7 of the Commission's regulations. The two-year timeframe for the
expedited licensing process will begin on the date of application
filing, and will follow the procedures set forth in part 7 of the
Commission's regulations. Under the expedited licensing process, the
Commission will strive to ensure that a final order is issued within
two years from the date of application filing, as directed by the AWIA.
We believe this outcome fulfills the spirit of the One Federal Decision
MOU.
2. FPA Section 35(c) Exceptions
    116. When issuing or amending a license for a closed-loop pumped
storage project under the expedited licensing process, FPA section
35(c) gives the Commission discretion to ``grant an exception from any
other requirement of [FPA Part I] with respect to any part of the
closed-loop pumped storage project (not including any dam or other
impoundment).'' \169\ The NOPR did not propose regulations implementing
this section of the AWIA.
---------------------------------------------------------------------------

    \169\ 16 U.S.C.A. 823f(c) (West 2019).
---------------------------------------------------------------------------

    117. NHA notes that the NOPR did not discuss FPA section 35(c), and
asks the Commission to provide guidance on the kinds of exceptions to
the FPA Part I requirements that it will adopt or consider.\170\ NHA
posits that section 35(c) allows the Commission to ease the burden of
license conditions for closed-loop pumped storage projects that qualify
for expedited processing, noting that the Commission could refrain from
requiring recreation improvements or could ease monitoring and
reporting requirements unrelated to dam and project safety for these
types of projects.\171\
---------------------------------------------------------------------------

    \170\ NHA's Comment at 19.
    \171\ NHA's Comment at 19.
---------------------------------------------------------------------------

    118. Pursuant to section 35(c) of the FPA, any applicant interested
in pursuing the expedited licensing process may request an exception
from any of the requirements of Part I of the FPA with respect to any
part of the applicant's proposed closed-loop pumped storage project
(not including any dam or other impoundment). An applicant may request
a section 35(c) exception concurrently with a license application and
the request for authorization to use the expedited licensing process. A
request for a section 35(c) exception should clearly identify the
requirement under Part I of the FPA from which the applicant is seeking
to be excepted and provide reasoned justification for the request.

IV. Regulatory Requirements

A. Information Collection Statement

    119. The Paperwork Reduction Act \172\ 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 contained in final rules published in the Federal
Register.\173\ 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.
---------------------------------------------------------------------------

    \172\ 44 U.S.C. 3501-3521 (2012).
    \173\ See 5 CFR 1320.12 (2018).
---------------------------------------------------------------------------

    120. Public Reporting Burden: In this final rule, the Commission
establishes 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.
    121. This final rule modifies certain reporting and recordkeeping
requirements included in FERC-500 (OMB Control No. 1902-0058) \174\ and
FERC-505 (OMB Control No. 1902-0115).\175\
---------------------------------------------------------------------------

    \174\ FERC-500 includes the reporting and recordkeeping
requirements for ``Application for License/Relicense for Water
Projects with More than 5 Megawatt (MW) Capacity.''
    \175\ FERC-505 includes the reporting and recordkeeping
requirements for ``Small Hydropower Projects and Conduit Facilities
including License/Relicense, Exemption, and Qualifying Conduit
Facility Determination.''
---------------------------------------------------------------------------

    122. The revisions to the Commission's regulations, associated with
the FERC-500 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 represents a slight increase in the reporting
requirements and burden information for FERC-500 and FERC-505.
    123. The estimated burden and cost for the requirements contained
in this final rule follow.
---------------------------------------------------------------------------

    \176\ 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.

                                                Revisions Due to the Final Rule in Docket No. RM19-6-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Number of
                                        Number of     responses per   Total number    Average burden hours & cost per      Total annual burden hours &
                                       respondents     respondent     of responses             response \176\                   total annual cost
                                                (1)             (2)     (1) x (2) =  (4)..............................  (3) x (4) = 5
                                                                                (3)
--------------------------------------------------------------------------------------------------------------------------------------------------------
FERC-500...........................               5               1               5  40; $3,160.......................  200 hrs.; $15,800.
FERC-505...........................               5               1               5  40; $3,160.......................  200 hrs.; $15,800.
                                    --------------------------------------------------------------------------------------------------------------------
    Total..........................  ..............  ..............              10  .................................  400 hrs.; $31,600.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    124. Titles: FERC-500 (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).
    125. Action: Revisions to information collections FERC-500 and
FERC-505.
    126. OMB Control Nos.: 1902-0058 (FERC-500) and 1902-0115 (FERC-
505).
    127. Respondents: Municipalities, businesses, private citizens, and
for-profit and not-for-profit institutions.
    128. Frequency of Information: Ongoing.
    129. 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
nonpowered dams and closed-loop pumped storage projects. The revised
regulations would affect only those entities that opt to request
authorization to use the expedited process at the time they file a
license application proposing one of the two aforementioned project
types. The revised regulations would impose a new, albeit slight,
information collection requirement.
    130. The new requirement for an applicant 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 by the applicants will enable 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.
    131. Internal Review: The Commission has reviewed the 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.
    132. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown,
Office of the Executive Director], by email to [email protected],
by phone<PHONE_NUMBER>, or by fax<PHONE_NUMBER>.
    133. 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:
[email protected]. Comments submitted to OMB should refer to
FERC-500 (OMB Control No. 1902-0058) and FERC-505 (OMB Control No.
1902-0115).

B. Environmental Analysis

    134. The Commission is required to prepare an EA or an EIS for any
action that may have a significant adverse effect on the human
environment.\177\ 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.\178\
This final rule establishes 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
final rule is procedural in nature and does not substantially change
the effect of the underlying legislation, preparation of an EA or EIS
is not required.
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    \177\ Regulations Implementing the National Environmental Policy
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs.
] 30,783 (1987) (cross-referenced at 41 FERC 61,284).
    \178\ 18 CFR 380.4(a)(2)(ii) (2018).
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C. Regulatory Flexibility Act

    135. The Regulatory Flexibility Act of 1980 (RFA) \179\ generally
requires a description and analysis of final 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 final rule and minimize any
significant economic impact on a substantial number of small
entities.\180\ In lieu of preparing a regulatory flexibility analysis,
an agency may certify that a final rule will not have a

significant economic impact on a substantial number of small
entities.\181\
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    \179\ 5 U.S.C. 601-612 (2012).
    \180\ Id. section 603(c).
    \181\ Id. section 605(b).
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    136. The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business.\182\
The SBA size standard for electric utilities is based on the number of
employees, including affiliates.\183\ Under SBA's current size
standards, a hydroelectric power generator (NAICS code 221111) \184\ is
small if it, including its affiliates, employs 500 or fewer
people.\185\
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    \182\ 13 CFR 121.101 (2018).
    \183\ Id. section 121.201.
    \184\ 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/.
    \185\ 13 CFR 121.201 (2018) (Sector 22--Utilities).
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    137. This final rule will 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-500 and FERC-505. However, we do not anticipate the
impact of the final rule on affected entities, regardless of their
status as a small entity or not, to be significant.
    138. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this final rule will not have a significant
economic impact on a substantial number of small entities.

D. Document Availability

    139. 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.
    140. 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.
    141. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at<PHONE_NUMBER> (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
[email protected].

E. Effective Date and Congressional Notification

    142. These regulations are effective July 23, 2019. The Commission
has determined, with the concurrence of the Administrator of the Office
of Information and Regulatory Affairs of OMB, that this rule is not a
major rule as defined in section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996.\186\ This rule is being submitted to
the Senate, House, Government Accountability Office, and Small Business
Administration.
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    \186\ 5 U.S.C. 804(2) (2012).
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List of Subjects in 18 CFR Part 7

    Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.

    By direction of the Commission. Commissioner McNamee is not
participating.

    Issued: April 18, 2019.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

0
In consideration of the foregoing, the Commission adds 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) Applicability of the expedited licensing process. 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) Qualifying criteria for closed-loop pumped storage projects
means criteria that a pumped storage project must meet in order to
qualify as a closed-loop pumped storage project eligible for the
expedited process established under this part. These criteria require
that the pumped storage project:
    (i) Cause little to no change to existing surface and groundwater
flows and uses;
    (ii) Is unlikely 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;
    (iii) Utilize only reservoirs situated at locations other than
natural waterways,

lakes, wetlands, and other natural surface water features; and
    (iv) Rely only on temporary withdrawals from surface waters or
groundwater for the sole purposes of initial fill and periodic recharge
needed for project operation.
    (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 18 CFR 5.1:
    (1) 18 CFR part 4, subparts D-H (i.e., traditional process); or
    (2) Section 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 unlikely 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.
    (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; or
    (i) A copy of water quality certification; or
    (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. If a certifying agency denies certification, the
applicant must file a copy of the denial within 30 days after the
applicant received 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 in the action area;
    (ii) Documentation of concurrence from the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service (Service(s)), as
necessary, that the action is not likely to adversely affect ESA-listed
species or critical habitat; 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.