Based on experience, Federal Energy Regulatory Commission staff share suggestions for improving a study plan, required as part of the licensing or relicensing process. Suggestions include how to improve descriptions of study requests, resolve study disagreements, and prevent contentious debates.
By Kristen J. Murphy, Kenneth J. Hogan, and David A. Turner
One important step in the Federal Energy Regulatory Commission (FERC) hydro project licensing or relicensing process is development of a study plan. Ultimately, this plan is a collection of all the resource-specific studies needed to understand project resources and project effects and to inform the development of protection, mitigation, and enhancement measures. By using the proper tools and techniques, applicants can develop timely and cost-effective study plans.
Reviewing the process for developing a study plan
The study plan development process, illustrated in Figure 1 on page 30, begins during the first steps of the integrated licensing process (ILP). (The ILP has been FERC’s default licensing process since 2005.) These first steps include filing a notice of intent to submit an application and developing a pre-application document (PAD). The PAD brings together all relevant, existing, and reasonably available information about the project and its known or potential effects on environmental resources. It includes a preliminary list of issues that should be addressed in the application and FERC’s environmental analysis, as well as a list of studies the applicant proposes to conduct to fill any identified information gaps. FERC’s public scoping process can further clarify the issues and study needs by providing an opportunity for licensing participants to meet face-to-face to discuss the applicant’s proposal, identify any existing information that remained undiscovered during the development of the PAD, and begin discussions about studies.
After scoping, the study plan development process begins in earnest with development of the study plan’s details. First, agencies, Indian tribes, and other interested parties file study requests (see step 2 in Figure 1 on page 30). These requests are to meet FERC’s seven study criteria (see the box on page 34). After review of the scoping comments and requested studies, the applicant prepares and files the proposed study plan. This plan is a collection of all the resource-specific studies that the applicant believes are needed to understand project resources and project effects on those resources. For requested studies that are not adopted, the applicant must provide an explanation, based on FERC’s study criteria, as to why those requests are excluded from the study plan.
Following submittal of the proposed study plan, the applicant and stakeholders have 90 days to discuss, negotiate, and, ideally, agree on the studies that need to be completed and the manner in which they should be conducted. This is commonly referred to as the “90-day informal study resolution period.” During this time, the applicant holds a study plan meeting(s) and participants submit comments on the proposed plan. Thirty days after the close of this 90-day window, the applicant files a revised study plan. Ideally, this plan addresses stakeholders’ concerns, thereby limiting the need for FERC to resolve disputes through the ILP’s formal dispute resolution process.
The overarching goal of study plan development, and then its implementation, is to ensure that the information gained from the studies will contribute to a complete license application. If this goal is met, the application will include results of the studies, a clear description of the affected environment, an analysis of the project’s effects on its environment, and the applicant’s proposed environmental enhancement measures and management plans to address those effects. Thus, the application will provide all the information that is necessary for FERC and other stakeholders to evaluate project effects and develop recommendations for the license.
Setting the stage for a successful study plan
Someone once said, the first principle in successful planning is to identify what you don’t need to do, then don’t do it. That principle is particularly well-suited to the ILP. An applicant who has expended the effort to unearth as much information as possible by engaging resource agencies, tribes, and all other stakeholders to develop the PAD greatly reduces the chances of getting study requests that duplicate existing studies and the number of studies they may need to conduct.
Many applicants find it helpful to send letters to government agencies, tribes, academic researchers, industry groups, and non-governmental organizations requesting information about the existing environment. It is important to follow up on this communication with telephone calls and face-to-face meetings with those possessing relevant knowledge and data. This consultation is likely to result in a detailed PAD, which participants in the earliest ILP proceedings found to be particularly useful in defining which information needs are already satisfied, and which are not.
Likewise, based on what we have observed, providing as much detail as possible about proposed studies as early as possible helps facilitate discussions with the participants, especially on the more difficult issues and studies. Agencies generally commented that they are able to provide greater detail in their study requests when the applicant’s description of the proposed studies and the proposed operation of the project are clear and well-defined in the PAD.
For example, for its 26.6-MW DeSabla-Centerville project (FERC No. 803), Pacific Gas and Electric Company (PG&E) provided conceptual level study plans in the PAD. This was in line with initial beliefs, expressed during the development of the ILP, that providing less-detailed plans would promote collaborative development with licensing participants and avoid the appearance of an applicant-driven process. However, this is not always the case. Feedback from participants in the DeSabla-Centerville project indicated that they would rather respond to detailed study plans. Consequently, PG&E altered its approach for the 240.5-MW McCloud-Pit project (FERC No. 2106).
Figure 1: Development of a study plan as part of the Federal Energy Regulatory Commission’s integrated licensing process involves eight steps. Click here to enlarge image
In that proceeding, PG&E included a list of 25 proposed studies in its PAD. Although not required by the ILP regulations, shortly after filing the PAD, PG&E provided stakeholders with a “preliminary proposed study plan,” which identified what it saw to be the information needs associated with its project and how the company proposed to collect that information.1 This plan provided details on the 25 proposed studies identified in the PAD. Representatives of the U.S. Department of Agriculture’s Forest Service say they appreciated the effort made by PG&E and found the preliminary proposed study plan to be a useful tool in the development of its study requests.2 PG&E found that this effort “jump-started” the study plan development phase by facilitating the agencies’ review of information needs at the project, which in turn aided the development of the proposed and revised study plans.
To bolster the PAD, some applicants have even chosen to conduct some of the studies early. Although conducting studies early may have its advantages – such as spreading the cost of the studies over a greater period of time and developing good working relationships with stakeholders – we do not necessarily recommend this practice. (Conducting early studies in order to collect baseline information is likely to be beneficial in many cases. Studies designed to collect information on project effects, however, are often best conducted after the development of an approved study plan, in order to ensure the needs of the licensing participants are considered.)
By conducting studies before FERC’s study plan determination, there is no guarantee that those studies will satisfy the information needs of FERC or other stakeholders. FERC may require additional study. Alternatively, applicants may conduct studies that FERC would not have required at all. For these reasons, applicants should carefully weigh the potential benefits and drawbacks before conducting studies early.
Promoting well-defined requests from stakeholders
Not all stakeholder study requests have been clear and well-defined, in part because the requesters have not closely adhered to, and in some cases not used, the seven study criteria (see box on page 34). This can make developing the applicants’ proposed study plans difficult because an applicant has to interpret or guess what an agency may need and why. Applicants are required to address all study requests, regardless of their format and content. If dismissing a request, in part or in its entirety, the applicant must provide a rationale, based on the study criteria, supporting its decision. If adopting a requested study, the applicant is required to prepare a study that addresses each of the seven study criteria.
To encourage detailed and well- defined study requests, some applicants have chosen to provide a template or sample study request in the PAD for use by stakeholders in crafting their own requests.
Another approach applicants have taken to encourage well-developed study requests is to provide educational outreach on study request preparation, with an emphasis on the study criteria. For example, for its 26-MW Packwood Lake project, prior to scoping, Energy Northwest hosted an interactive workshop to educate stakeholders on the use of the study criteria. Participants drafted a hypothetical study request addressing each of the study criteria. This workshop resulted in a detailed discussion of the study criteria and fostered a mutual understanding of the importance of the criteria and the roles of stakeholders and the applicant in preparing study requests and the proposed study plan.3
Certain of the study criteria may be particularly challenging to those requesting studies, and outreach is a useful tool to ensure that stakeholders understand the requirements. Criterion No. 5, for example, is crucial to weeding out those studies that lack a sufficient connection to the project. It requires that the study request draw a connection to the project effects on a resource and provide an explanation of how the study results would inform the development of license requirements. It is the latter half of this criterion that is often forgotten or ignored by study proponents.
One key to development of effective studies is open and early communication, including face-to-face meetings, among stakeholders. Click here to enlarge image
For example, say an agency requests a survey for a specific fish species and its habitat downstream of an existing project that operates in a peaking mode. The proponent may easily draw a nexus between that resource and project operation, because fluctuating flow conditions from peaking operations may affect fish habitat suitability downstream of the project. Further, the fish habitat data has value not only for quantifying project effects, but also for determining appropriate operating requirements for a new license (e.g., ramping rates, timing of peaking operations, etc.).
But what if an agency requests that the survey area include not only the main stem of the river below the dam, but also upstream and downstream tributaries? This information may be of high value to the agency managing the fishery, but the connection to the project and its operation is much more difficult to draw. The study request must provide a strong rationale for how fish habitat in the tributaries is affected by the project and how that data will be used to recommend a license condition for future operation of the project. Otherwise, FERC is likely to determine that the tributaries do not warrant study.
Another study criterion that participants often ask about is No. 7, which requires consideration of the level of effort and cost. Some ILP participants have had trouble developing cost estimates for their requested studies. However, it is important for all stakeholders to understand the level of effort that would be required by each study. This helps stakeholders to determine the “best bang for the buck” during the informal 90-day study resolution period. As a part of estimating the level of effort and cost, participants should – at a minimum – estimate the number of hours or person-days, at the professional and technician levels, that would be required to conduct the requested study and any identifiable incidentals. This allows all parties to understand the level of effort and cost the requesting party anticipates implementation of the study will require and provides for a better comparison of alternative studies.
Managing time; resolving disputes
Once existing information is gathered, stakeholder study requests are submitted, and the applicant’s proposed study plan is filed, the applicant and participants must attempt to resolve any study disagreements during the 90-day informal dispute resolution period. Early preparation and consultation efforts have been effective tools employed to reduce the number of disagreements to a manageable level. Many ILP applicants have opted to discuss studies during scoping or at other meetings prior to the submission of the applicant’s proposed study plan. This extends the time period allotted for discussion of study disagreements and increases the chance of timely resolution of study disputes.
Regardless of whether study plan discussion begins early, the main time frame for informal dispute resolution is the 90 days between when the applicant files the proposed study plan and when stakeholders file their written comments on the plan. The regulations require the applicant to hold a study plan meeting(s) to resolve outstanding issues. It is a good idea to set the schedule for these meetings well in advance of the informal dispute resolution process to ensure that all the necessary participants are available to discuss the studies during the 90-day period.
Thus far, some projects only required one or two study plan meetings to reach resolution on the study plan. However, the majority required several multi- day meetings, often combined with conference calls and electronic communication among participants, to reach resolution.
If many details require resolution, applicants may want to consider dividing the participants into resource-specific work groups to better manage topics and time. In fact, the majority of the applicants established work groups to discuss study plan issues. Working out study disagreements in resource work groups during the 90-day period is a natural continuation of the relationships that were established during the previous steps. For its McCloud-Pit project, PG&E found significant value in providing a neutral facilitator who kept study discussions focused and on track.4
While discussing study disagreements, all the participants should focus on the study criteria. Do not be afraid to ask how the study fits the criteria. In particular, the discussion should define the relationship between the project and the resource to be studied, and explain how the study results will contribute to the development of any protection, mitigation, or enhancement measures and resource plans that may ultimately be required by a FERC-issued license. In doing so, the participants may decide together which studies clearly need to be conducted and which studies warrant elimination due to the availability of existing information, redundancy with other studies, or a lack of connection to the project and project effects. This process of elimination ensures a more cost-effective study plan by including only those studies necessary for licensing of the project.
While everyone should strive to develop a study plan that one could pick up and implement in the field without conjecture, in a few cases it may not always be possible to resolve all details of the study plan upfront. In these unusual situations, it would be helpful to develop a plan that clearly defines the protocols that would be followed in determining all future steps in the study. For example, if an applicant were to propose an instream flow incremental methodology (IFIM), the number and location of transects to be sampled may be contingent on data that still must be collected, such as the results from a habitat survey. In this circumstance, a detailed protocol for selecting the number of transects and their locations should be provided. This allows FERC to determine if implementation of the protocols will result in a transect design that successfully meets the study goals and objectives. Additionally, defined protocols are helpful in the event of a dispute after the first study season. If, for example, a stakeholder argues that transect locations and frequency were not adequate, FERC would be able to settle the dispute by determining if the applicant implemented the protocol as directed in the study plan determination.
It may be tempting, in the IFIM example, to state in the plan that the number and location of transects will be determined in consultation with the stakeholders during the study season. But this practice should be avoided because it leaves the stakeholders without an objective framework upon which to base future decisions. In this case, the door is left open for stakeholder disagreements and a potential future FERC determination that the study was not implemented adequately, thus requiring further study.
With a robust PAD, a keen reliance on the ILP’s study criteria as a common framework for discussion, and open and early communication among licensing participants, it is possible to develop cost-effective study plans amiably and on time. We hope that some of the techniques and tools used by the ILP pioneers will help future ILP users to reach agreement on an effective study plan in a collaborative manner. This should help foster and maintain a positive relationship between the applicant and stakeholders, allow for continued trust and open communication, and set the stage for healthy working relationships for many years to come. n
Ms. Murphy and Messrs. Hogan and Turner may be contacted at the Federal Energy Regulatory Commission, Division of Hydropower Licensing, 888 First Street, N.E., Washington, DC 20426; (1) 202-502-6236 (Murphy), (1) 202-502-8434 (Hogan), or (1) 202-502-6091 (Turner); [email protected], ken. [email protected], or [email protected] gov.
- Nevares, Steve, Personal communication, May 4, 2007.
- Valenzuela, Kathy, Personal communication, May 4, 2007.
- Schinnell, Laura, Personal communication, May 8, 2007.
- Nevares, Steve, Personal communication, May 22, 2007.
Kristen Murphy, Ken Hogan, and Dave Turner work in the Federal Energy Regulatory Commission’s Division of Hydropower Licensing. Each serves as a team leader for several of the projects using the integrated licensing process.
FERC’s Seven Study Criteria
The Federal Energy Regulatory Commission’s (FERC) regulations on the integrated licensing process include specific criteria that all study requests and plans must meet to be considered appropriate for implementation. The request or plan needs to:
- ) Describe the goals and objectives of the proposed study and the informa- tion to be obtained
- ) If applicable, explain the relevant resource management goals of the agencies or Indian tribes with jurisdiction over the resource to be studied
- ) If the requester is a not resource agency, explain any relevant public interest considerations in regard to the proposed study
- ) Describe existing information concerning the subject of the study proposal, and the need for additional information
- ) 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 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 values and knowledge
- ) Describe considerations of level of effort and cost, as applicable, and why any proposed alternative studies would not be sufficient to meet the stated information needs