01 Department of Agriculture, Conservation and Forestry


THE FERC CONSULTATION PROCESS



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THE FERC CONSULTATION PROCESS
FERC's regulations require that all potential applications for licensing or relicensing participate in a detailed pre-filing consultation process with the appropriate State and federal resource agencies. This three-stage process requires approximately five years for each project and involves a considerable amount of time and effort by all parties.
SPO is designated as the lead State agency in the FERC relicensing process and is charged with the duty of processing applications, monitoring application status, and coordinating and reviewing agency requests and comments. Policy and procedures were developed in 1989 to expedite the State's role in federal licensing and relicensing (See Appendix C, "Revised Procedure to Ensure that State Agency Comments in Federal Hydropower Proceedings are Timely, Coordinated and Consistent", September 1989). Emphasis is also focused on the substance of State agency review. The new policy requires all State agencies to consider their comments, study requests and recommendations to ensure that they are not unnecessarily burdensome to the applicants. The objective of the State is to achieve the best possible balance between power generation and the preservation and enhancement of natural resource and recreational values.
FERC consultation during the relicensing process will allow the State an opportunity to assess the impacts of many of the major hydropower projects in Maine and to re-evaluate the uses of the public river resources. Among the issues to be considered by the State agencies in their review for a new FERC license are: flood control, floodplain management (National Flood Insurance Program), energy generation and conservation, economics, geological and botanical resources, restoration of sea-run fish, inland fisheries and wildlife management, protection and improvement of water quality, historical and cultural resources, and improvement of recreational opportunities.
FERC licensing is also required for water storage dams and reservoirs that provide stream flow regulation to downstream licensed hydropower facilities.
In rules adopted May 24, 1989, FERC made provision for public participation from the beginning of the consultation process. Previously, public participation had been limited to the final application filed with FERC, when most studies were complete. When the licensing process is initiated, by the filing of an initial consultation document, the applicant is obligated by FERC rules to hold a public meeting during the first stage of consultation.24 (The State's provisions for public participation are discussed in the next section.)
In addition to the above, natural resources are specifically protected by the following Federal statutes and executive order:
* Section 18 of the Federal Power Act mandates that FERC shall require licensees to construct and operate such fishways as are prescribed by the USFWS, and the National Marine Fisheries Service.
* The Fish and Wildlife Coordination Act (P.L. 85-624), administered by the Department of the Interior, requires federal agencies which license dams (and other activities) to consult the federal departments and state fish and wildlife agencies to determine how fish and wildlife may be conserved and enhanced.
* The Endangered or Threatened Species Act (P.L. 93-205): Threatened Species may be added to the Endangered Species List and regulations may be issued by the Secretary of the Interior to protect the species. The regulations may include designation of a range or critical habitat in which commercial activity may not take place without permission of the Secretary.
* Section 401 of the Clean Water Act requires that any applicant for a federal license or permit for an activity which may result in a discharge to navigable waters must obtain state certification that the activity will not violate applicable water quality standards.
* Section 404 of the Clean Water Act and the National Environmental Policy Act are also relevant for the protection of wetlands and examination of environmental impacts caused by federal action.
* Executive Order 11988 on Floodplain Management, May 24, 1977 requires all Federal agencies to review any actions they take in light of any adverse effects and incompatible development in the floodplain.



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