The U.S. Departments of Agriculture, Interior and Commerce will in the Nov. 23 Federal Register jointly issue final rules for procedures for expedited trial-type hearings and the consideration of alternative conditions and fishway prescriptions required by the Energy Policy Act of 2005.
The hearings are conducted to expeditiously resolve disputed issues of material fact with respect to conditions or prescriptions developed for inclusion in a hydropower license issued by the Federal Energy Regulatory Commission under the Federal Power Act. The final rules make no changes to existing regulations that have been in place since revised interim rules were published on March 31, 2015, and took effect on April 30, 2015.
At the time of publication of the revised interim rules, the departments also requested public comments on additional ways the rules could be improved. They in the Nov. 23 notice respond to the public comments received on the revised interim rules by providing analysis and clarifications in the preamble. The final rules are effective on Nov. 23.
In 2015, the departments promulgated three substantially similar revised rules— one for each agency—with a common preamble. The revised interim rules became effective on April 30, 2015, so that interested parties and the agencies more immediately could avail themselves of the improvements made to the procedures.
The departments received comments on the revised interim rules from Exelon Generation Co. LLC, and also comments submitted jointly by the National Hydropower Association, American Public Power Association, Edison Electric Institute and Public Utility District no. 1 of Snohomish County, Washington (referred to as the “Industry Commenters”).
The Industry Commenters strongly disagreed with the departments’ decision in the revised interim final rule to assign the burden of proof to the party requesting a hearing. They asserted that the burden of persuasion should be assigned to the party that is “the proponent of [the] rule or order,” and that the burden should be assigned to the departments because they are the proponents of their mandatory conditions or prescriptions which they seek to attach to a licensing order as well as the alleged facts supporting those conditions or prescriptions. The departments received these comments on the interim final rule and explained the Departments’ rationale for disagreeing with the comment in the revised interim rules. Said the Nov. 23 notice: “For the reasons explained in the revised interim rules, the Departments do not agree with the comment and no changes to the regulations are required.”
The Industry Commenters also stated that the revised interim rules should, but do not appear to, provide for a trial-type hearing or the submission of alternative conditions or fishway prescriptions when an agency imposes conditions and prescriptions during the licensing proceeding, reserves its right to impose additional or modify existing conditions or prescriptions during the license term, and then exercises that reserved right. The departments disagreed with the commenter’s premise that the rules do not provide for a trial type-hearing or the submission of alternatives in such a situation. The revised interim rules provide that where a department “has notified or notifies FERC that it is reserving its authority to develop one or more conditions or prescriptions at a later time, the hearing and alternatives processes under this part for such conditions or prescription will be available if and when DOI exercises its authority.” Accordingly, if a department exercises reserved authority during the license term to impose additional or modified conditions or prescriptions, the hearing and alternatives processes under this part for such conditions or prescriptions will be available, the departments said.