On December 18, 2018, FERC eliminated the requirement for hydroelectric project licensees to file Form 80, which solicited information on the use and development of recreation facilities at FERC-licensed hydropower projects. FERC also revised Sections 8.1 and 8.2 of its regulations to (1) modernize licensee public notice practice, (2) clarify recreational signage requirements, and (3) provide flexibility to assist licensees’ compliance with these requirements. The Final Rule will go into effect 90 days after it is published in the Federal Register.
On May 17, 2018, FERC issued a Notice of Proposed Rulemaking (“NOPR”) regarding its proposal to eliminate Form 80 and to further revise its regulations governing recreation use and development at licensed hydropower projects (see May 21, 2018 edition of the WER). In response to the NOPR, fourteen entities provided comments. FERC, in explaining why it proposed to remove Section 8.11 from its regulations, which required licensees to file Form 80, provided four reasons for Form 80’s removal. First, the Commission asserted that the data collected through Form 80 is redundant. Second, Commission staff relies on a variety of tools other than Form 80 to determine whether licensed projects with limited recreation opportunities are meeting public recreation needs. Third, Commission staff reports limited use of Form 80 data and expressed concerns about the data’s lack of specificity and validity. Lastly, technological advancements since Form 80’s creation has allowed for easy access to information about a project’s recreational opportunities and any recreation-related license requirements.
Ten of the fourteen commenters supported FERC’s decision to eliminate Form 80. The National Park Service, however, conditionally supported FERC’s proposal, provided FERC strengthens its oversight in recreation-related planning, monitoring, and information dissemination.
In response to the National Park Service’s concerns regarding Form 80’s removal, FERC noted that, “there are sufficient safeguards to ensure that [its] recreation requirements are understood and implemented.” FERC further noted that “[r]oughly half of all licensed projects will begin the relicensing process within the next 12 years.” As a result, FERC asserted that during its review process of those licenses, it will conduct a comprehensive review of each project’s recreational resources and determine the appropriate level of recreational use monitoring, if any, needed for each project.
FERC stated that once Form 80 is eliminated, unless recreation use reporting is required by a license condition, licensees will no longer have any specific recreation use reporting obligations.
FERC also amended Sections 8.1 and 8.2 of its regulations to reflect modern public dissemination methods. Currently, Section 8.1 requires licensees to publish notice of recreational-related license conditions in local newspapers. Section 8.2 requires licensees to post, at public access points, signs with a great deal of information (from project name to notice that recreation sites are open to the public) and requires licensees to make available for inspection the FERC-approved recreation plan at local offices. Once the proposed changes go into effect, Section 8.1 will require licensees with project websites to publish public notice on those websites in addition to publishing it in local newspapers. Likewise, Section 8.2 will reduce the amount of information that must be included on recreation signage and require licensees to post FERC-approved recreation plans on project websites in addition to having this information at their local offices.
A copy of FERC’s order is available here.