Filing Comments with the FERC
American Whitewater and our partners with the Hydropower Reform Coalition have participated in hundreds of relicensing proceedings across the nation. This participation has provided tremendous experience and insight into Federal Energy Regulatory Commission (FERC) regulations and practice as well as the art of filing comments.
The FERC acts like a judicial body and as such requires specific filing formats, procedures and timelines. Failure to comply with these formats and procedures can result in dismissal of your document. The FERC regulations and filing procedures are available in section 18 (Conservation of Power and Water Resources) of the Code of Federal Regulations. American Whitewater and our coalition partners have considerable experience filing documents with the FERC. Below is a list of filing instructions and templates that might be of assistance.
Why File Comments with FERC?
The FERC functions as a quasi judicial body with up to five appointed Commissioners serving in the role of judges. The FERC hears arguments from all stakeholders formally registered as parties in a proceeding. Written comments correctly filed with the FERC become part of the administrative record for the proceeding from which the Commissioners must base their decision. Accordingly, anytime you submit comments or request information during a relicensing, you should file formally with FERC. This will ensure both that FERC is aware of your filing and that the information in the filing becomes part of the administrative record for the proceeding. Do not rely on another party to file comments on behalf of your interest or email project managers at FERC. Documents filed with FERC carry the most weight if they come from stakeholders who are formal parties to the proceeding.
Content of Comments
Stakeholders should thoroughly research the issues prior to submitting comments. Be familiar with the FERC administrative record for the proceeding. This includes the current license application, study plans, formal comments from other parties, and all FERC documents such as scoping documents and environmental assessments/impact studies. Identify errors or omissions in the FERC administrative record regarding the project’s operations and environmental impacts. Your comments should address these errors and omissions. If necessary be prepared to recommend alternatives not included in the record. These alternatives should be supported with data and analysis. In summary, be sure your comments are well researched, concise and likely to be supported by other key stakeholders in the process.
Strategy:
1. Work closely with state and federal resource agencies in the development of your comments, recommendations, terms and conditions. FERC typically gives more deference to agency comments than those by conservation groups or citizens. Cultivate a relationship with the state and federal resource agency staff. Provide resource information and data to resource agency staff. It is not uncommon for agency staff to be capacity limited with respect to their ability to participate in a hydropower proceeding. Whitewater boaters often have on-the-ground knowledge of river conditions that can be useful for agency staff. Cultivate these relationships and seek opportunities for partnership (e.g. boaters may be able to get into a river gorge and offer an independent assessment on potential fish barriers that could be an active topic of discussion among the utility and resource agencies).
2. If possible, obtain a copy of agency filings before you file your comments. Agency comments can be very lengthy because their terms and conditions can be submitted as part of their mandatory conditioning authority and must include evidentiary basis.
3. If you agree with agency comments, indicate concurrence with their filing and restrict your submission to specific areas of concern. This will allow you to make comments without a detailed evidentiary basis if you do not have such evidence separate from that of the agency.
4. Address all issues of concern. FERC will rarely address license conditions that no one has recommended in their filing. Recommended terms and conditions address a variety of issues, including: (1) conservation mitigation such as instream flows, restoration of the river reach bypassed by the project, reservoir operation, fish passage (upstream and downstream), fish protection from entrainment, watershed land management, erosion control, water quality protection, wildlife habitat conservation, and cultural resource conservation; (2) recreation mitigation such as public access, facilities, recreational instream flows, and aesthetics; and (3) additional mitigation such as trust funds, dam decommissioning funds, and public committees to oversee license implementation.
5. If requesting studies, meet FERC’s criteria for study requests. The requirements, found in 18 CFR 5.9(b) generally state a study request must:
- Describe the goals and objectives of the study proposal and the information to be obtained;
- If applicable, explain the relevant resource management goals of the agencies or tribes;
- If the requester is not a resource agency, explain any relevant public interest considerations that would benefit from the proposed study;
- Explain any nexus between project operations and effects (direct, indirect, and/or cumulative) on the resource to be studied, and how the study results would inform the development of the license requirements;
- Explain how any proposed study methodology (including any preferred data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate filed season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate considers relevant tribal knowledge;
- Describe considerations of effort and cost, and why proposed alternatives would not suffice.
How to File Comments
Anytime you submit comments or request information during a relicensing, you should file with FERC and the service list. This will ensure both that FERC is aware of your filing and that the information in the filing becomes part of the administrative record for the proceeding. The FERC has strict regulations on formats, timelines and procedures.
The FERC regularly distributes “Notices” to the mail list and service list for a hydropower proceeding. These FERC Notices specify if comments are being accepted and the timeframe for filing those comments. Any stakeholder can file comments on these FERC Notices provided the correct procedures are followed as specified in the Notice. The timeframe for submitting comments must be strictly adhered to for the comments to be part of the administrative record.
The FERC’s online e-library stores every filing submitted and issued by FERC, the applicant, agencies, tribes, and public stakeholders during the relicensing process. All filings are grouped by proceeding and sorted by date. The FERC website www.ferc.gov is a good source of information for how to file with the Commission.
Sample Comments
These comments are examples from projects where American Whitewater has recently engaged.
Comments on Pre Application Document and Notice of Intent
North Fork Snoqualmie River, WA: Comments on the Preliminary Application Document (PAD), Scoping Document 1 (SD1), and Study Requests for the Black Canyon Hydroelectric Project (FERC P‐14110) on North Fork Snoqualmie River, WA.
South Fork Skykomish River, WA: Sunset Falls Fish Passage and Energy Project (P-‐14295), South Fork Skykomish River, Snohomish County,Washington. Notice of Soliciting Comments of the Pre-‐Application Document (PAD) and Scoping Document 1 (SD1), as well as Study Requests.
Sultan River, WA: COMMENTS on PAD, Whitewater Study, and SD 1 Henry M. Jackson Hydroelectric Project, Project No. 2157-167
South Fork Rogue River, OR: Prospect 3 Hydroelectric Project (P-‐2337-‐076), South Fork Rogue River, Jackson County, Oregon. Notice of Soliciting Comments of the Pre-‐Application Document (PAD) and Scoping Document 1 (SD1), as well as Study Requests.