Federal Agencies Publish New Hydropower Licensing Rules
November 23, 2005
The departments of the Interior, Commerce, and Agriculture announced on November 16th new Interim Final Rules for licensing hydropower projects while protecting threatened and endangered fish species, water quality, and federal and tribal resources. The rules are mandated by the Energy Policy Act of 2005 (EPACT 2005) and mark the first time that the three departments have established joint procedures for dispute resolution regarding hydropower licensing. The new licensing process remains open to license applicants and other parties, including tribes, states, other governmental units, and nongovernmental organizations, such as environmental groups.
The rules enable hydropower license applicants and other parties to request trial-type hearings on disputed issues of material fact, such as whether fish were historically present in a river, during which the parties will be able to present evidence and question witnesses. The rules also allow applicants and other parties to submit alternative conditions or prescriptions for consideration by the respective federal departments, which will accept them unless the federal department makes specific findings as to why they cannot. For instance, a utility applicant might propose ways to lower its costs while still protecting critical resources.
As mandated by EPACT 2005, the new rules are now in effect and apply to all current and future license proceedings. They were published in the Federal Register on November 17th, and the public will have 60 days to review and submit comments, which could result in revised Final Rules. See the press release from the U.S. Department of Interior and see the published rules on the U.S. Environmental Protection Agency Web site.