2.2 License Amendments

When is an Amendment Needed?

FERC requires a license amendment for most changes to project structures, operations, lands, and existing due dates. Short term changes, for example, modifying minimum flows during construction work, are called “temporary variances,” which is another form of an amendment.

Amendments are not needed for routine operation and maintenance (O&M) work or for minor changes that are not substantial. Also, an amendment is not needed for activities required to comply with existing license articles, approved plans, and approved monitoring reports (but keep in mind that you may still need other permits from state and local agencies). Nor is an amendment needed for emergency repairs and/or emergency responses, especially if work is required by FERC’s regional engineer.

What steps can PG&E take to determine if an action needs a license amendment?

Some proposed actions clearly require an amendment, for example, adding a new generating unit, adding a new spillway, or adding new fish passage facilities (not already required by the license). Other actions like routine operation and maintenance do not require an amendment, for example, replacing missing flashboards, testing spillway gates, and routine vegetation maintenance. However, some actions fall in between the above extremes and determining if an amendment is needed can be difficult. So, how can PG&E determine if a license amendment is needed?

First, PG&E should wait until the proposed action that it is considering is relatively well-defined. Trying to figure if an amendment is needed too early in the planning stages of an action, especially when the action is being developed and is changing, is not efficient. PG&E should wait until the proposed action is well defined, even if minor changes are likely, before making the amendment/no amendment decision.

Second, ask the following questions to help you decide if an amendment is needed:k

  • Is the work considered routine O&M because its been done before and nothing is really changing?

o Talk to the operator and other staff with knowledge of past practices at the project. Review historical records and FERC’s eLibrary for any owner or operator correspondence that shows if the work has been conducted previously. Also check for any FERC correspondence that acknowledges the work as O&M. Such correspondence could include letters from DHAC, D2SI, FERC’s Regional Engineer, and FERC orders. If the work is considered O&M, an amendment to the license is not needed.

  • Is the work needed to comply with existing license conditions?

o Review the license and any orders amending the license that could authorize or require the work. This includes reviewing license articles, ordering paragraphs, approved plans (and the order approving the plan), and other FERC correspondences from DHAC and D2SI. If the work is being done to comply with existing requirements and is consistent with that requirement, an amendment is not needed

  • Would the work be inconsistent with any existing license conditions?

o Review the license and any relevant orders amending the license, including relevant articles, ordering paragraphs, approved plans, and reports. If the proposed work would be inconsistent with existing requirement in the license, an amendment is likely needed.

  • Can the proposed work be considered a minor change that is not substantial?

o Standard Article 3 in most licenses allows PG&E to make minor changes to a hydropower project that are not substantial. However, the meaning of minor and substantial are subjective. In recent years, FERC has required licensees to obtain amendments for actions that previously did not require an amendment. For example, updating and repairing existing project works with only minor changes to those works are now being required to obtain a prior amendment from FERC.

o When in doubt, call DHAC to determine if the proposed work would require an amendment. If the work is needed for dam safety purposes, invite D2SI to the call. Before the call, send DHAC (and D2SI) an email with a description of the proposed work along with any maps or data needed to understand its scope. After the call, send DHAC a written request for an official determination should that be necessary. Note that DHAC’s opinion during an informal phone call does not bind FERC but can still be very helpful. Depending on the nature of the work, DHAC may also involve the Office of General Counsel.

  • Is the work needed to respond to an emergency?

o The licensee is responsible for safely operating its hydropower projects, which includes emergency response actions. This means PG&E should not delay responding to an emergency even if that response would otherwise require prior approval from FERC. As soon as possible after an emergency has begun, you must notify D2SI and follow any directives from the regional engineer.

o Once the emergency has been resolved or the situation is stable, review your license and any approved plans or requirements for following up on unplanned deviations. Many licenses require the licensee to notify FERC of unplanned deviations lasting more than 3 hours or unplanned deviations resulting in environmental effects.

o Consider calling DHAC after the emergency to determine if there are any other appropriate follow-up actions. This could include filing an amendment application

  • Even if you determine an amendment is not needed, do you still need D2SI approval?

o If your proposed work does not need an amendment but would involve construction, ground-disturbance, or changes to operations that could affect dam safety, then you must consult with D2SI. Contact the staff engineer in the regional office assigned to the project to explain your proposed work and to discuss any needed D2SI reviews and requirements.

o It is important to consider whether D2SI must be contacted IN ADDITION to DHAC for any proposed work that has the potential to affect dam safety.

Third, consider asking DHAC if an amendment is needed. This can be done informally via email and/or a phone call to DHAC staff or it can be done formally through a written request filed with FERC. Ask DHAC informally, if possible, to save time but keep in mind that emails and phone calls from DHAC staff (with an amendment/no amendment decision) do not bind the Commission. See the “tips” section for suggestions on how to approach DHAC staff for an informal determination on whether an amendment is needed. If an official determination from FERC is required, file a letter with FERC that describes the proposed action, your rational for why an amendment is not needed, and request a written response.

Call Staff in DHAC

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Call Staff in D2SI

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Overview of Preparing an Amendment Application

In this section, we provide some tips for preparing an amendment application when one is needed:

Exemption Vs. License Amendments

A holder of an exemption may file an application to amend its exemption, although some minor changes can be made in some cases without an application and the Commission’s approval. The exemption holder may implement the changes without the Commission’s approval if:

• after being notified in writing by the exemption holder of its intended changes, the appropriate fish and wildlife agencies determine that the proposed changes would not cause the project to violate the terms and conditions imposed by the agencies; and

• the changes would not materially alter the design, location, or method of construction or operation. See 18 CFR 4.104(b).

In the absence of these two conditions, the exemption holder must obtain the Commission’s approval before making the proposed changes to its project.

Standard Articles 2 & 3

Standard Articles 2 and 3 contained in most licenses give PG&E the ability to make minor changes in project works, or in uses of project lands and waters, or to diverge from approved exhibits but only for changes that do not result in substantial alterations. For example, the following minor changes would not ordinarily need prior FERC approval but instead could be made by PG&E pursuant to Articles 2 and 3:

  • Adding signage for public information purposes where such signage does not conflict with the project’s approved recreation or public safety plans;
  • Constructing small sheds, garages, and other outbuildings to house maintenance equipment and/or to otherwise support project operations or personnel; and
  • Installing new electrical control and/or monitoring equipment needed to safely operate the project in a manner consistent with approved license conditions.

PG&E should keep Articles 2 and 3 in mind which considering minor changes to the project. These articles may allow PG&E to simply perform the action, without prior FERC approval.

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