FERC Jurisdiction

A FERC license is required to construct, operate, and maintain a non-federal hydroelectric project that: 

1) occupy federal public lands or federal reservations 

2) are located on navigable streams 

3) use surplus water or water power from a federal government dam 

4) were constructed after August 26, 1935 and are located on a non-navigable stream that affects the interests of interstate or foreign commerce (including providing power to an interstate power grid). 

Occasionally private hydro operators challenge FERC's jurisdictional authority. American Whitewater has participated in several jurisdictional proceedings particularly those that involve navigability.

What is relicensing?

As public resources, rivers cannot be owned by private industries. A developer may obtain a license from FERC, however, to dam the river for the purpose of hydropower generation. 

These licenses last 30 to 50 years and typically stipulate how the dams are operated, what minimum water flow levels are required, what forms of fish passage must be installed and, in some cases, how watershed lands are managed.

FERC oversees 1005 licenses and 597 exemptions (as of April 2000). Until 1993, relicensing was a relatively infrequent procedure that received little, if any, public attention. In 1993, 160 licenses affecting 237 dams on 105 rivers expired, representing over ten percent of all FERC-licensed dams. These relicensings represent the beginning of an unprecedented wave that will continue with licenses for 650 more dams expiring in the next 15 years.

Relicensing: an opportunity for river restoration

As a matter of public policy, FERC hydropower licenses do not last forever.  A license can be issued for periods of 30 to 50 years.  When the license expires, the dam owner must renew it through a process known as relicensing. The relicensing process allows FERC, state and federal resource agencies, conservation groups, and the general public to reconsider appropriate hydropower operations and land management for each project, taking into account current social and scientific knowledge.

In the past, FERC's primary goal was the promotion of hydro dams as a means to harness a river's power generation potential, often without regard for the dam's environmental impacts.

In 1986 Congress amended the Electric Consumer's Protection Act (ECPA) to FERC's operating law (the Federal Power Act). ECPA required FERC to take a more balanced approach to dam licensing. The amendment requires FERC, when deciding whether to issue a license, to consider not only the power generation potential of a river, but also to give equal consideration to energy conservation, protection of fish and wildlife, protection of recreational opportunities, and preservation of general environmental quality. This “equal consideration” mandate requires FERC to consult with federal, state and local resource agencies, including fish, wildlife, recreation and land management agencies, in order to assess more accurately the impact of a hydro dam on the surrounding environment.

In its evaluation of environmental impacts, FERC is obligated to comply with the National Environmental Policy Act (NEPA). This requires FERC to prepare an Environmental Impact Statement (EIS) or Environmental Assessment (EA), investigative reports which assess the environmental consequences of a proposed hydropower project and compare the impacts with those of alternatives to the suggested action.

State and federal agencies as well as tribal nations have the authority to prescribe mandatory conditions in hydropower licensing proceedings. These agency mandatory conditioning authorities are codified in the FERC regulations.

Because rivers are a public resource, it is important during relicensing for all interested parties to have a say into how the dam and the river will be managed for the 30 to 50 year term of the FERC license. Relicensing proceedings offer a once-in-a-lifetime opportunity for local organizations to have an impact on the protection and restoration of rivers adversely affected by hydropower development.  Changes to project operations can benefit the environment, public recreational opportunities, and local economies. Effective hydropower relicensing needs local input - especially among groups that have intimate knowledge of the affected river and watershed. Hydropower relicensing is a clear and effective way to establish a legacy of healthy rivers for future generations. Read more about the FERC relicensing process.

How to contact FERC:

Mailing address: 888 First St., NE, Washington, DC 20426

General phone number: (202) 208-0200 

Website: http://www.ferc.gov/

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