[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR16.8]

[Page 210-216]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 16_PROCEDURES RELATING TO TAKEOVER AND RELICENSING OF LICENSED 
PROJECTS--Table of Contents
 
Subpart B_Applications for Projects Subject to Sections 14 and 15 of the 
                            Federal Power Act
 
Sec. 16.8  Consultation requirements.

    (a) Requirement to consult. (1) Before it files any application for 
a new license, a nonpower license, an exemption from licensing, or, 
pursuant to Sec. 16.25 or Sec. 16.26 of this part, a surrender of a 
project, a potential applicant must consult with the relevant Federal, 
State, and interstate resource agencies, including the National Marine 
Fisheries Service, the United States Fish and Wildlife Service, the 
National Park Service, the United States Environmental Protection 
Agency, the Federal agency administering any United States lands or 
facilities utilized or occupied by the project, the appropriate state 
fish and wildlife agencies, the appropriate State water resource 
management agencies, the certifying agency under section 401(a)(1) of 
the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. 
1341(c)(1), and any Indian tribe that may be affected by the project.
    (2) Each requirement in this section to contact or consult with 
resource agencies or Indian tribes shall require as well that the 
potential Applicant contact or consult with members of the public.
    (3) If the potential applicant for a new or subsequent license 
commences first stages pre-filing consultation under this part on or 
after July 23, 2005, it must file a notification of intent to file a 
license application pursuant to Sec. 5.5 of this chapter and a pre-
application document pursuant to the provisions of Sec. 5.6 of this 
chapter.
    (4) The Director of the Office of Energy Projects will, upon 
request, provide a list of known appropriate Federal, state, and 
interstate resource agencies, and Indian tribes, and local, regional, or 
national non-governmental organizations likely to be interested in any 
license application proceeding.
    (5)(i) Before it files an amendment that would be considered as 
material under Sec. 4.35 of this part, to any application subject to 
this section, an applicant must consult with the resource agencies and 
Indian tribes listed in paragraph (a)(1) of this section and allow such 
agencies and tribes at least 60 days to comment on a draft of the 
proposed amendment and to submit recommendations and conditions to the 
applicant. The amendment as filed with the Commission must summarize the 
consultation with the resource agencies and Indian tribes on the 
proposed amendment and respond to any obligations, recommendations or 
conditions submitted by the agencies or Indian tribes.
    (ii) If an applicant has any doubt as to whether a particular 
amendment would be subject to the pre-filing consultation requirements 
of this section, the applicant may file a written request for 
clarification with the Director, Office of Energy Projects.
    (b) First stage of consultation. (1) A potential Applicant for a new 
or subsequent license must, at the time it files its notification of 
intent to seek a license pursuant to Sec. 5.5 of this chapter, provide 
a copy of the pre-application document required by Sec. 5.6 of this 
chapter to the entities specified in Sec. 5.6(a) of this chapter.
    (2) A potential applicant for a nonpower license or exemption or a 
potential applicant which elects to use the licensing procedures of 
Parts 4 or 16 of this chapter prior to July 23, 2005, must promptly 
contact each of the appropriate resource agencies, Indian tribes, and 
members of the public listed in paragraph (a)(1) of this section, and 
the Commission with the following information:
    (i) Detailed maps showing existing project boundaries, if any, 
proper land descriptions of the entire project area by township, range, 
and section, as well as by state, county, river, river mile, and closest 
town, and also showing the specific location of all existing and 
proposed project facilities, including roads, transmission lines, and 
any other appurtenant facilities;
    (ii) A general engineering design of the existing project and any 
proposed changes, with a description of any existing or proposed 
diversion of a stream through a canal or penstock;

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    (iii) A summary of the existing operational mode of the project and 
any proposed changes;
    (iv) Identification of the environment affected or to be affected, 
the significant resources present and the applicant's existing and 
proposed environmental protection, mitigation, and enhancement plans, to 
the extent known at that time;
    (v) Streamflow and water regime information, including drainage 
area, natural flow periodicity, monthly flow rates and durations, mean 
flow figures illustrating the mean daily streamflow curve for each month 
of the year at the point of diversion or impoundment, with location of 
the stream gauging station, the method used to generate the streamflow 
data provided, and copies of all records used to derive the flow data 
used in the applicant's engineering calculations;
    (vi) Detailed descriptions of any proposed studies and the proposed 
methodologies to be employed; and
    (vii) Any statement required by Sec. 4.301(a) of this chapter.
    (3)(i) A potential applicant for an exemption, a new or subsequent 
license for which the deadline for filing a notification of intent to 
seek a license is prior to July 23, 2005 and which elects to commence 
pre-filing consultation under this part, or a new or subsequent license 
for which the deadline for filing a notification of intent to seek a 
license is on or after July 23, 2005 and which receives Commission 
approval to use the license application procedures of this part must:
    (A) Hold a joint meeting, including an opportunity for a site visit, 
with all pertinent agencies, Indian tribes and members of the public to 
review the information and to discuss the data and studies to be 
provided by the potential applicant as part of the consultation process; 
and
    (B) Consult with the resource agencies, Indian tribes and members of 
the public on the scheduling of the joint meeting; and provide each 
resource agency, Indian tribe, member of the public, and the Commission 
with written notice of the time and place of the joint meeting and a 
written agenda of the issues to be discussed at the meeting at least 15 
days in advance.
    (ii) The joint meeting must be held no earlier than 30 days, and no 
later than 60 days from, as applicable:
    (A) The date of the potential applicant's letter transmitting the 
information required by paragraph (b)(2) of this section, in the case of 
a potential exemption applicant or a potential license applicant that 
commences pre-filing consultation under this part prior to July 23, 
2005; or
    (B) The date of the Commission's approval of the potential license 
applicant's request to use the license application procedures of this 
part pursuant to the provisions of part 5, in the case of a potential 
license applicant for which the deadline for filing a notification of 
intent to seek a license is on or after July 23, 2005.
    (4) Members of the public are invited to attend the joint meeting 
held pursuant to paragraph (b)(3) of this section. Members of the public 
attending the meeting are entitled to participate fully in the meeting 
and to express their views regarding resource issues that should be 
addressed in any application for a new license that may be filed by the 
potential applicant. Attendance of the public at any site visit held 
pursuant to paragraph (b)(3) of this section shall be at the discretion 
of the potential applicant. The potential applicant must make either 
audio recordings or written transcripts of the joint meeting, and must 
upon request promptly provide copies of these recordings or transcripts 
to the Commission and any resource agency and Indian tribe.
    (5) Unless otherwise extended by the Director of Office of Energy 
Projects pursuant to paragraph (b)(6) of this section, not later than 60 
days after the joint meeting held under paragraph (b)(3) of this section 
each interested resource agency, and Indian tribe, and member of the 
public must provide a potential applicant with written comments:
    (i) Identifying its determination of necessary studies to be 
performed or information to be provided by the potential applicant;
    (ii) Identifying the basis for its determination;

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    (iii) Discussing its understanding of the resource issues and its 
goals objectives for these resources;
    (iv) Explaining why each study methodology recommended by it is more 
appropriate than any other available methodology alternatives, including 
those identified by the potential applicant pursuant to paragraph 
(b)(2)(vi) of this section;
    (v) Documenting that the use of each study methodology recommended 
by it is a generally accepted practice; and
    (vi) Explaining how the studies and information requested will be 
useful to the agency, Indian tribe, or member of the public in 
furthering its resource goals and objectives.
    (6)(i) If a potential applicant and a resource agency, Indian tribe, 
or member of the public disagree as to any matter arising during the 
first stage of consultation or as to the need to conduct a study or 
gather information referenced in paragraph (c)(2) of this section, the 
potential applicant or resource agency, or Indian tribe, or member of 
the public may refer the dispute in writing to the Director of the 
Office of Energy Projects (Director) for resolution.
    (ii) The entity referring the dispute must serve a copy of its 
written request for resolution on the disagreeing party at the time the 
request is submitted to the Director. The disagreeing party may submit 
to the Director a written response to the referral within 15 days of the 
referral's submittal to the Director.
    (iii) Written referrals to the Director and written responses 
thereto pursuant to paragraphs (b)(6)(i) or (b)(6)(ii) of this section 
must be filed with the Secretary of the Commission in accordance with 
the Commission's Rules of Practice and Procedure, and must indicate that 
they are for the attention of the Director of the Office of Energy 
Projects pursuant to Sec. 16.8(b)(6).
    (iv) The Director will resolve disputes by an order directing the 
potential applicant to gather such information or conduct such study or 
studies as, in the Director's view, is reasonable and necessary.
    (v) If a resource agency, Indian tribe, or member of the public 
fails to refer a dispute regarding a request for a potential applicant 
to obtain information or conduct studies (other than a dispute regarding 
the information specified in paragraph (b)(1) or (b)(2) of this section, 
as applicable), the Commission will not entertain the dispute following 
the filing of the license application.
    (vi) If a potential applicant fails to obtain information or conduct 
a study as required by the Director pursuant to paragraph (b)(6)(iv) of 
this section, its application will be considered deficient.
    (7) Unless otherwise extended by the Director pursuant to paragraph 
(b)(6) of this section, the first stage of consultation ends when all 
participating agencies, Indian tribes, and members of the public provide 
the written comments required under paragraph (b)(5) of this section or 
60 days after the joint meeting held under paragraph (b)(3) of this 
section, whichever occurs first.
    (c) Second stage of consultation. (1) Unless determined otherwise by 
the Director of the Office of Energy Projects pursuant to paragraph 
(b)(6) of this section, a potential applicant must complete all 
reasonable and necessary studies and obtain all reasonable and necessary 
information requested by resource agencies and Indian tribes under 
paragraph (b):
    (i) Prior to filing the application, if the results:
    (A) Would influence the financial (e.g., instream flow study) or 
technical feasibility of the project (e.g., study of potential mass soil 
movement); or
    (B) Are needed to determine the design or location of project 
features, reasonable alternatives to the project, the impact of the 
project on important natural or cultural resources (e.g., resource 
surveys), suitable mitigation or enhancement measures, or to minimize 
impact on significant resources (e.g., wild and scenic river, anadromous 
fish, endangered species, caribou migration routes);
    (ii) After filing the application but before license issuance, if 
the applicant complied with the provisions of paragraph (b)(1) or (b)(2) 
of this section, as applicable, no later than four years prior to the 
expiration date of the existing license and the results:

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    (A) Would be those described in paragraphs (c)(1)(i) (A) or (B) of 
this section; and
    (B) Would take longer to conduct and evaluate than the time between 
the conclusion of the first stage of consultation and the new license 
application filing deadline.
    (iii) After a new license is issued, if the studies can be conducted 
or the information obtained only after construction or operation of 
proposed facilities, would determine the success of protection, 
mitigation, or enhancement measures (e.g., post-construction monitoring 
studies), or would be used to refine project operation or modify project 
facilities.
    (2) If, after the end of the first stage of consultation as defined 
in paragraph (b)(7) of this section, a resource agency, Indian tribe, or 
member of the public requests that the potential applicant conduct a 
study or gather information not previously identified and specifies the 
basis for its request, under paragraphs (b)(5)(i)-(vi) of this section, 
the potential applicant will promptly initiate the study or gather the 
information, unless the Director of the Office of Energy Projects 
determines under paragraph (b)(5) of this section either that the study 
or information is unreasonable or unnecessary or that use of the 
methodology requested by a resource agency or Indian tribe for 
conducting the study is not a generally accepted practice.
    (3) (i) The results of studies and information gathering referenced 
in paragraphs (c)(1)(ii) and (c)(2) of this section will be treated as 
additional information; and
    (ii) Filing and acceptance of an application will not be delayed and 
an application will not be considered deficient or patently deficient 
pursuant to Sec. 4.32 (e)(1) or (e)(2) of this chapter merely because 
the study or information gathering is not complete before the 
application is filed.
    (4) A potential applicant must provide each resource agency and 
Indian tribe with:
    (i) A copy of its draft application that:
    (A) Indicates the type of application the potential applicant 
expects to file with the Commission; and
    (B) Responds to any comments and recommendations made by any 
resource agency or Indian tribe either during the first stage of 
consultation or under paragraph (c)(2) of this section;
    (ii) The results of all studies and information gathering either 
requested by that resource agency or Indian tribe in the first stage of 
consultation (or under paragraph (c)(2) of this section if available) or 
which pertains to resources of interest to that resource agency or 
Indian tribe and which were identified by the potential applicant 
pursuant to paragraph (b)(2)(vi) of this section, including a discussion 
of the results and any proposed protection, mitigation, or enhancement 
measure; and
    (iii) A written request for review and comment.
    (5) A resource agency or Indian tribe will have 90 days from the 
date of the potential applicant's letter transmitting the paragraph 
(c)(4) of this section information to it to provide written comments on 
the information submitted by a potential applicant under paragraph 
(c)(4) of this section.
    (6) If the written comments provided under paragraph (c)(5) of this 
section indicate that a resource agency or Indian tribe has a 
substantive disagreement with a potential applicant's conclusions 
regarding resource impacts or its proposed protection, mitigation, or 
enhancement measures, the potential applicant will:
    (i) Hold at least one joint meeting with the disagreeing resource 
agency or Indian tribe and other agencies with similar or related areas 
of interest, expertise, or responsibility not later than 60 days from 
the date of the disagreeing agency's or Indian tribe's written comments 
to discuss and to attempt to reach agreement on its plan for 
environmental protection, mitigation, or enhancement measures; and
    (ii) Consult with the disagreeing agency or Indian tribe and other 
agencies with similar or related areas of interest, expertise, or 
responsibility on the scheduling of the joint meeting and provide the 
disagreeing resource agency or Indian tribe, other agencies with

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similar or related areas of interest, expertise, or responsibility, and 
the Commission with written notice of the time and place of each meeting 
and a written agenda of the issues to be discussed at the meeting at 
least 15 days in advance.
    (7) The potential applicant and any disagreeing resource agency or 
Indian tribe may conclude a joint meeting with a document embodying any 
agreement among them regarding environmental protection, mitigation, or 
enhancement measures and any issues that are unresolved.
    (8) The potential applicant must describe all disagreements with a 
resource agency or Indian tribe on technical or environmental 
protection, mitigation, or enhancement measures in its application, 
including an explanation of the basis for the applicant's disagreement 
with the resource agency or Indian tribe, and must include in its 
application any document developed pursuant to paragraph (c)(7) of this 
section.
    (9) A potential applicant may file an application with the 
Commission if:
    (i) It has complied with paragraph (c)(4) of this section and no 
resource agency or Indian tribe has responded with substantive 
disagreements by the deadline specified in paragraph (c)(5) of this 
section; or
    (ii) It has complied with paragraph (c)(6) of this section if any 
resource agency or Indian tribe has responded with substantive 
disagreements.
    (10) The second stage of consultation ends:
    (i) Ninety days after the submittal of information pursuant to 
paragraph (c)(4) of this section in cases where no resource agency or 
Indian tribe has responded with substantive disagreements; or
    (ii) At the conclusion of the last joint meeting held pursuant to 
paragraph (c)(6) of this section in cases where a resource agency or 
Indian tribe has responded with substantive disagreements.
    (d) Third stage of consultation. (1) The third stage of consultation 
is initiated by the filing of an application for a new license, nonpower 
license, exemption from licensing, or surrender of license, accompanied 
by a transmittal letter certifying that at the same time copies of the 
application are being distributed to the resource agencies, Indian 
tribes, and other government offices specified in paragraph (d)(2) of 
this section and Sec. 16.10(f) of this part, if applicable.
    (2) As soon as an applicant files such application documents with 
the Commission, or promptly after receipt in the case of documents 
described in paragraph (d)(2)(iii) of this section, as the Commission 
may direct, the applicant must serve on every resource agency and Indian 
tribe consulted, on other government offices, and, in the case of 
applications for surrender or nonpower license, any state, municipal, 
interstate, or Federal agency which is authorized to assume regulatory 
supervision over the land, waterways, and facilities covered by the 
application for surrender or nonpower license, copies of:
    (i) Its application for a new license, a nonpower license, an 
exemption from licensing, or a surrender of the project;
    (ii) Any deficiency correction, revision, supplement, response to 
additional information request, or amendment to the application; and
    (iii) Any written correspondence from the Commission requesting the 
correction of deficiencies or the submittal of additional information.
    (e) Resource agency or Indian tribe waiver of compliance with 
consultation requirement. (1) If a resource agency or Indian tribe 
waives in writing compliance with any requirement of this section, a 
potential applicant does not have to comply with that requirement as to 
that agency or Indian tribe.
    (2) If a resource agency or Indian tribe fails to timely comply with 
a provision regarding a requirement of this section, a potential 
applicant may proceed to the next sequential requirement of this section 
without waiting for the resource agency or Indian tribe to comply.
    (3) The failure of a resource agency or Indian tribe to timely 
comply with a provision regarding a requirement of this section does not 
preclude its participation in subsequent stages of the consultation 
process.
    (4) Following July 23, 2003 a potential license applicant engaged in 
pre-filing

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consultation under this part may during first stage consultation request 
to incorporate into pre-filing consultation any element of the 
integrated license application process provided for in part 5 of this 
chapter. Any such request must be accompanied by a:
    (i) Specific description of how the element of the part 5 license 
application would fit into the pre-filing consultation process under 
this part; and
    (ii) Demonstration that the potential license applicant has made 
every reasonable effort to contact all resource agencies, Indian tribes, 
non-governmental organizations, and others affected by the potential 
applicant's proposal, and that a consensus exists in favor of 
incorporating the specific element of the part 5 process into the pre-
filing consultation under this part.
    (f) Application requirements documenting consultation and any 
disagreements with resource agencies or Indian tribes. An applicant must 
show in Exhibit E of its application that it has met the requirements of 
paragraphs (b) through (d) of this section, and Sec. 16.8(i), and must 
include:
    (1) Any resource agency's or Indian tribe's letters containing 
comments, recommendations, and proposed terms and conditions;
    (2) Any letters from the public containing comments and 
recommendations;
    (3) Notice of any remaining disagreement with a resource agency or 
Indian tribe on:
    (i) The need for a study or the manner in which a study should be 
conducted and the applicant's reasons for disagreement, and
    (ii) Information on any environmental protection, mitigation, or 
enhancement measure, including the basis for the applicant's 
disagreement with the resource agency or Indian tribe.
    (4) Evidence of any waivers under paragraph (e) of this section;
    (5) Evidence of all attempts to consult with a resource agency or 
Indian tribe, copies of related documents showing the attempts, and 
documents showing the conclusion of the second stage of consultation;
    (6) An explanation of how and why the project would, would not, or 
should not, comply with any relevant comprehensive plan as defined in 
Sec. 2.19 of this chapter and a description of any relevant resource 
agency or Indian tribe determination regarding the consistency of the 
project with any such comprehensive plan;
    (7) A description of how the applicant's proposal addresses the 
significant resource issues raised by members of the public during the 
joint meeting held pursuant to paragraph (b)(2) of this section.
    (g) Requests for privileged treatment of pre-filing submission. If a 
potential applicant requests privileged treatment of any information 
submitted to the Commission during pre-filing consultation (except for 
the information specified in paragraph (b)(1) of this section), the 
Commission will treat the request in accordance with the provisions in 
Sec. 388.112 of this chapter until the date the application is filed 
with the Commission.
    (h) Other meetings. Prior to holding a meeting with a resource 
agency or Indian tribe, other than a joint meeting pursuant to paragraph 
(b)(3)(i) or (c)(6)(i) of this section, a potential applicant must 
provide the Commission and each resource agency or Indian tribe (with an 
area of interest, expertise, or responsibility similar or related to 
that of the resource agency or Indian tribe with which the potential 
applicant is to meet) with written notice of the time and place of each 
meeting and a written agenda of the issues to be discussed at the 
meeting at least 15 days in advance.
    (i) Public participation. (1) At least 14 days in advance of the 
joint meeting held pursuant to paragraph (b)(3), the potential applicant 
must publish notice, at least once, of the purpose, location, and timing 
of the joint meeting, in a daily or weekly newspaper published in the 
county or counties in which the existing project or any part thereof or 
the lands affected thereby are situated. The notice shall include a copy 
of the written agenda of the issues to be discussed at the joint meeting 
prepared pursuant to paragraph (b)(3)(ii) of this section.

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    (2)(i) A potential applicant must make available to the public for 
inspection and reproduction the information specified in paragraph 
(b)(1) of this section from the date on which the notice required by 
paragraph (i)(1) of this section is first published until a final order 
is issued on the license application.
    (ii) The provisions of Sec. 16.7(e) shall govern the form and 
manner in which the information is to be made available for public 
inspection and reproduction.
    (iii) A potential applicant must make available to the public for 
inspection at the joint meeting required by paragraph (b)(3) of this 
section the information specified in paragraph (b)(2) of this section.
    (j) Critical Energy Infrastructure Information. If this section 
requires an applicant to reveal Critical Energy Infrastructure 
Information (CEII), as defined by Sec. 388.113(c) of this chapter, to 
any person, the applicant shall follow the procedures set out in Sec. 
16.7(d)(7).

[Order 513, 54 FR 23806, June 2, 1989, as amended by Order 513-A, 55 FR 
16, Jan. 2, 1990; Order 533, 56 FR 23154, May 20, 1991; 56 FR 61156, 
Dec. 2, 1991; Order 2002, 68 FR 51140, Aug. 25, 2003; Order 643, 68 FR 
52095, Sept. 2, 2003; 68 FR 61743, Oct. 30, 2003]