Energy Policy Act of 2005 and the Interim Agency Rules; Industry Hopes that Rulemaking will Improve Hearing Procedures

Hydro Review, Vol. 30 pp.32

September 2011

While the interim rules are a significant step toward allowing licensees to dispute factual issues with agency conditions and prescriptions, the rules leave several unanswered questions and loopholes that complicate the trial-type hearing process for future licensees.

By Michael Swiger and Sharon White

The Energy Policy Act of 2005 had a significant impact on hydro relicensings before the Federal Energy Regulatory Commission. Under Section 241 of this act, a licensee or any party to a licensing proceeding may, through a trial-type hearing, challenge the factual basis of agency terms and conditions that licensees were previously forced to accept.

Licensees may also propose alternative conditions for agency consideration. The EPAct procedures are the first opportunity licensees have ever had to dispute agency conditions and prescriptions before they are incorporated into a FERC license.

In order to challenge agency conditions under the EPAct procedures, however, licensees must incur the cost and delay of a trial-type hearing. A number of licensees have recommended changes to streamline the EPAct procedures, and a recent Government Accountability Office report has recommended a public rulemaking. But the industry remains uncertain whether the agencies will revise the rules.

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This is an excerpt of an article that originally appeared in the 30 Hydro Review pp.32. The full article can be viewed on Hydro Review's website, HydroWorld.com, or by clicking here.