Property Rights Foundation of America®

Carol W. LaGrasse, from Positions on Property, Vol. 4, No. 1, Nov.-Dec. 1998

How-To

Becoming a Formal Participant and Intervenor in the FERC Dam Relicensing Process

1. Getting Involved
Select a dam which is up for relicensing in your state. From the first opportunity, attend public meetings conducted to scope out issues for the application process and make formal comments, both orally and in writing.
Consider whether it is practical for you to become an intervenor or participant. Inspect the project records. Approach your local town, village, city or county government to discuss the potential impact of the relicensing on the local economy and tax base, and the possibility of the municipality intervening.
If the new alternative approach is to be used to scope out and analyze issues, ask to be included in the scoping team called Applicant Prepared Environmental Assessment Team (APEA). The alternative approach attempts to bring in all parties early to resolve issues without litigation. These parties include people concerned with flood protection, power production, the local economy, tax base and lakeside property values, as well as environmental issues. All ideas have equal status for consideration.
Time Frame
Dam owners must notify FERC to apply for relicensing 5 years before the license is up for renewal. They must submit an application for renewal 2 years before the license expires. Within 60 days of acceptance of the final license application, it is necessary to apply to intervene. Late intervenor applications are legally challenging.
2. Becoming an Intervenor or Participant
Inquire about becoming a participant or, in the two years before license is up for renewal, submit a formal motion to become an intervenor.
Use the issues in the National Environmental Policy Act and the Federal Power Act to describe your reasons for requesting intervenor status. From FERC, verify the precise time frame for this motion. Meet with government agencies as well as the dam owner. Intervenor status enables the party to participate in many aspects of the FERC relicensing process, even the appeal of a final decision.
Municipal Intervenor
Representative local government should be automatically approved for intervenor status and has the important resource of an attorney on staff or retainer. The municipality should immediately file for intervenor status whether or not it is yet apparent that its intervention is necessary. It may be too late to intervene once critical information is available. In addition, local government can establish a citizen advisory committee to work with elected and professional officials each step of dam relicensing.
3. Participating When Application is Submitted Additional Information Requests
Soon after the application is submitted, FERC may make an "additional information request." Intervenors have access to all documents. They can also make requests to FERC for the provision of additional information, such as more thorough study of flood control, local economic impact, tax impact, or impact on property rights. The National Environmental Policy Act declares that:

"it is the continuing policy of the Federal Government, in cooperation with state and local governments,... to use all practical means and measures,... in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans."(1)

Among its detailed goals, the Congressional declaration of national environmental policy under NEPA calls for the nation to...

"attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences,"
"preserve important historic, cultural and natural aspects of our national heritage,..."
"achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities..."(2)

4. Reviewing the Completed Application
Intervenors and the public have the right to comment in writing on the application. At this juncture, environmentalists may propose conditions to be attached to the license. They may even formally propose to demolish the dam. Renewal terms beneficial to the local community and economy must be submitted.
Draft Environmental Impact Statement (DEIS)
Intervenors and the public have the right to comment on the DEIS. Intervenors are entitled to observe formal meetings of government agencies disputing with FERC. Intervenors may move for a formal hearing about factual disputes. At this time, a late motion to intervene is possible.
5. Participating Directly After License is Issued or Denied
An intervenor may request a rehearing before the FERC Commission, which can reverse, modify, or send back the staff decision. By remaining so involved, the intervenor has legal standing to go to the Federal Court of Appeals if the request for a rehearing is denied.
6. Continuing Indefinitely as Intervenor
Current law contains re-opener clauses. Once a dam is relicensed, the license can be re-opened for consideration, sometimes for environmental issues. The participant remains an intervenor for years and needs to wade through papers as they arrive to watch for significant matters.

(1) 42 USCS Sect. 4331 (a) (emphasis added)
(2) 42 USCS Sect. 4331 (b) (3), (4) & (5) (emphasis added)

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