S. 4992: To require the Secretary of the Army to issue guidance relating to the review of applications for alteration or temporary or permanent occupation or use of certain hydropower projects, and for other purposes.

This bill would require the Secretary of the Army to create standardized guidance for reviewing certain applications related to non-federal hydropower projects. These applications are called section 408 applications and are used when a project wants permission to alter, temporarily occupy, or permanently use certain federal project areas.

What the bill would require

Within one year of enactment, the Army would have to issue guidance that does the following:

• Creates a standardized checklist of materials that applicants must submit.
• Defines what makes an application “complete,” including required documents, required formatting, and proof that the project follows any applicable Federal Energy Regulatory Commission license.
• Sets out procedures for projects that require review in phases, including the purpose of each phase, a timeline, and definitions for terms such as “fatal flaw,” “final quality assurance,” and “technical review.”
• Provides a process for escalating cases when deadlines are missed, including referral to higher-level Corps of Engineers officials.

Limits on the completeness review

The bill says that the Army’s first-stage review of an application would be limited to checking whether the application is complete. That review could only verify that:

• all required documents were submitted;
• the documents are in the correct format; and
• the application addresses the items on the standardized checklist.

It would not allow the Army to use this initial review to do a detailed engineering review, question the design’s adequacy, suggest design changes, or demand extra technical analysis.

Limits on new requirements

The bill also says that during the completeness review, the Secretary could not:

• perform detailed technical analysis of engineering calculations;
• judge whether the project design is adequate or whether other design approaches would be better;
• require design changes or additional analysis;
• consider factors outside the standardized checklist; or
• require compliance with environmental standards that were not already established by a federal or relevant state agency before the application was submitted.

Overall effect

In practical terms, the bill would make the early review process for certain hydropower-related Army permissions more standardized and more limited in scope. It is aimed at clarifying what applicants must submit and what the Army may consider when deciding whether an application is complete.

Relevant Companies

• AY — Atlantica Sustainable Infrastructure plc, which owns and operates renewable energy assets including hydro-related infrastructure, could be affected by changes in the federal review process for hydropower projects.
• CWEN — Clearway Energy, Inc., which has renewable generation assets and may have exposure to hydropower-related development or permitting processes.
• NEE — NextEra Energy, Inc., a large U.S. power company with renewable energy operations, could be affected if its hydropower-related projects require section 408 reviews.
• DUK — Duke Energy Corporation, which owns and operates hydropower facilities, could be directly affected by changes to the review process for hydropower project alterations.
• PCG — PG&E Corporation, which has significant hydropower assets, could be affected if project modifications require Army approval under section 408.