The FLOWS Act amends the Federal Power Act to exempt licensees from prior Federal Energy Regulatory Commission (FERC) approval for certain nonsubstantial alterations to project works and for routine maintenance, repair, replacement, and seasonal or temporary operational adjustments caused by circumstances beyond a licensee’s control. The amendments include an express savings clause preserving FERC’s safety and enforcement authority and its ability to require notice or consultations.
The bill also creates a new section of the FPA establishing a dedicated licensing regime for "micro hydrokinetic energy projects" — defined as non‑impounding projects up to 5 megawatts that convert currents, tides, waves, or free‑flowing water to electricity — with defined application timelines, a one‑year FERC decision deadline, a 180‑day deadline for implementing regulations (including NEPA categorical exclusions for low‑disturbance activities), and a five‑year or 50‑project report to Congress. The measures aim to reduce permitting friction for routine dam work and accelerate small-scale hydrokinetic deployment, with direct implications for licensees, developers, permitting agencies, and environmental review practice.
At a Glance
What It Does
The bill amends FPA section 10 to remove the requirement that licensees obtain FERC approval for nonsubstantial alterations to project works and for routine maintenance, replacement, and certain temporary operational adjustments. It adds a new Section 37 creating an expedited licensing track for "micro hydrokinetic" projects (≤5 MW), including tight filing and decision deadlines and regulatory guidance on NEPA exclusions.
Who It Affects
Existing FERC hydropower licensees (dam owners, utilities, irrigation districts), developers of small hydrokinetic devices and projects, FERC itself, and federal permitting and conditioning agencies (e.g., Corps, NOAA, USFWS) that participate in environmental reviews and authorizations.
Why It Matters
By narrowing the set of activities requiring prior FERC sign‑off and by prescribing an accelerated path for small hydrokinetic projects, the bill shifts how compliance and environmental review are carried out, reallocates administrative burdens, and could materially change project timelines and risk assessments for small marine and river energy developers.
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What This Bill Actually Does
The FLOWS Act makes two parallel structural changes to how small alterations and new micro hydrokinetic projects are handled under the Federal Power Act. First, it amends the bills of rights in section 10 to carve out a class of routine, low‑impact activities that no longer require FERC’s prior approval: nonsubstantial alterations that fit within previously approved plans, routine maintenance and replacement work, and seasonal or temporary operational adjustments made in response to events outside the licensee’s control.
The statutory language keeps intact FERC’s core safety enforcement powers and its ability to request notice or conduct informal consultations, but removes the categorical need to secure advance approval for these day‑to‑day activities.
Second, the Act inserts a new Section 37 that defines ‘‘micro hydrokinetic energy projects’’ and creates a standalone licensing track for them. The definition ties eligibility to a 5 megawatt installed capacity cap and explicitly excludes impoundment‑based facilities; it covers devices driven by waves, tides, currents, or free‑flowing freshwater.
The new license can run between 10 and 20 years and is intended for construction, operation, and maintenance of project works for these small projects.The bill prescribes a compressed licensing calendar: applicants must begin with a notification of intent, submit a full application within a year of that notice (with specific exceptions tied to the expiration of existing licenses), and FERC must take final action within one year of the application filing. The statute requires FERC and other permitting agencies to coordinate a joint schedule where practicable to meet that one‑year decision deadline.
To operationalize the expedited track, FERC must promulgate implementing regulations within 180 days, and those regulations must allow one or more categorical exclusions under NEPA for low‑disturbance activities while preserving the ability to exclude those categorical exclusions where extraordinary circumstances exist. Finally, FERC must report to Congress on environmental, economic, and grid impacts no later than five years after enactment or once 50 projects have been operational for at least one year, whichever comes first.
The text also preserves an applicant’s option to pursue licensing under other existing FPA authorities instead of the new Section 37 process.
The Five Things You Need to Know
The amendment to FPA section 10(b) exempts licensees from obtaining FERC approval for any "nonsubstantial alteration or addition" to project works when those changes fall within plans previously approved under section 9(a)(1).
The amendment to FPA section 10(c) exempts routine maintenance, repair, replacement, and seasonal or temporary operational adjustments made in response to circumstances beyond the licensee’s reasonable control from prior FERC approval.
Section 37 defines "micro hydrokinetic energy project" as non‑impounding projects that convert waves, tides, currents, or free‑flowing water into electricity and that have an installed capacity of not more than 5 megawatts.
The bill requires an expedited licensing timeline for Section 37 projects: file a notification of intent, submit an application within one year of the notice (special timing rules if an existing license is expiring), and FERC must issue a final decision within one year of the application filing.
FERC must issue implementing regulations within 180 days that include one or more NEPA categorical exclusions for low‑disturbance activities, and must report to Congress on environmental, economic, and reliability impacts within five years or after 50 projects have run at least one year.
Section-by-Section Breakdown
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Short title
The statute is captioned the "Fair Licensing for Operations of Water Structures Act" or "FLOWS Act." This is purely nominative but signals the bill’s twin focus on routine operations of existing water infrastructure and on licensing for small hydrokinetic projects.
No‑approval rule for nonsubstantial alterations
This subsection adds language to FPA section 10(b) that removes the requirement that licensees obtain FERC approval for "nonsubstantial" alterations or additions to project works when those alterations fit within previously Commission‑approved plans under section 9(a)(1). Practically, that narrows the set of activities triggering formal FERC authorization and places more discretion on licensees to proceed under pre‑approved plans without repeat filings.
Routine maintenance and temporary adjustments without prior approval
This subsection amends FPA section 10(c) to exempt routine maintenance, repairs, replacements, and seasonal or temporary operational adjustments (when driven by circumstances beyond the licensee’s reasonable control) from prior FERC approval. The provision is aimed at avoiding delay for ordinary upkeep and responses to unplanned events, while the bill’s savings clause preserves the Commission’s ability to require notice and to enforce safety standards.
Defines micro hydrokinetic projects and sets license terms
Section 37 defines a micro hydrokinetic energy project by two criteria: an installed capacity cap of 5 MW and a technological definition that includes turbines driven by waves, tides, currents, or free‑flowing water; impounding projects are expressly excluded. The Commission may issue a license for these projects for a term between 10 and 20 years for construction, operation, and maintenance.
Procedural deadlines, joint schedules, and required regulations
The statute creates a tight procedural framework: applicants begin with a notification of intent, must file an application within one year (with special earlier deadlines tied to existing license expirations), and FERC must take final action within one year of application filing. The Commission must promulgate implementing regulations within 180 days that include one or more categorical exclusions under NEPA for low‑disturbance activities and must coordinate joint schedules with other conditioning and permitting agencies to meet the one‑year decision target. The statute also instructs FERC to exclude those categorical exclusions when extraordinary circumstances warrant.
Congressional reporting and licensing fallback
FERC must report to Congress on environmental, economic, and electricity reliability and affordability impacts within five years or after the first 50 projects have operated for at least a year. The section preserves an applicant’s option to seek licensing under existing FPA provisions instead of the new Section 37 track, and earlier savings language preserves FERC’s safety enforcement authority and ability to require notice or consultations.
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Explore Energy in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Existing hydropower licensees (dam owners, utilities, irrigation districts): The exemptions for nonsubstantial alterations and routine maintenance reduce lead times and administrative burden for day‑to‑day operations and minor upgrades, lowering transaction costs and operational delays.
- Micro hydrokinetic developers and manufacturers: A clear statutory definition, a dedicated licensing track with firm decision deadlines, and NEPA categorical exclusions for low‑disturbance work lower regulatory uncertainty and speed market entry for small tidal, river, and wave energy projects.
- Rural and remote communities and distributed energy planners: Faster deployment of ≤5 MW projects increases options for local generation, supporting resilience and potentially reducing reliance on long transmission lines or diesel generation.
- Grid planners and utilities: A predictable licensing regime for small hydrokinetic resources can aid planning for distributed capacity additions and diversify renewable portfolios with river and marine energy resources.
Who Bears the Cost
- Federal agencies and FERC staff: The one‑year decision mandate and the 180‑day regulatory deadline compress review workloads and may require additional resources, shifting administrative costs to agencies unless funded separately.
- Environmental permitting and conditioning agencies (e.g., Corps, NOAA, USFWS): Joint schedules and compressed timelines increase pressure to fit complex consultations and species or habitat evaluations into shorter windows, creating operational strain and potential legal risk.
- Tribal governments and local stakeholders: Faster processes and use of categorical NEPA exclusions risk reducing the time or granularity of consultation and local input, heightening the possibility of contested projects or litigation over engagement adequacy.
- Downstream ecosystems and user groups: Broader allowances for maintenance and operational adjustments without prior approval, and narrower NEPA review for certain activities, raise the risk that cumulative or location‑specific impacts receive less scrutiny.
Key Issues
The Core Tension
The central dilemma is between speeding deployment and minimizing procedural burdens for small hydro projects and protecting environmental, cultural, and safety interests that often require deliberate, evidence‑based review: the bill favors faster project timelines and reduced prior approvals to accelerate clean energy and ease operations, but that acceleration risks undercutting rigorous site‑specific review, public participation, and interagency oversight — with the balance hinging on how FERC, other agencies, and courts interpret undefined thresholds like "nonsubstantial" and "low disturbance."
The bill deliberately shifts discretion away from prior FERC approvals for many day‑to‑day activities, but it does not define several pivotal terms that will determine the practical reach of the exemptions. "Nonsubstantial" alterations, "routine" maintenance, and what constitutes a circumstance "beyond the reasonable control of the licensee" are left without statutory definitions, which invites administrative guidance, interagency negotiation, and likely litigation to set boundaries. Those undefined terms create a legal gray zone: licensees may interpret them broadly to avoid filings, while regulators or third parties may push back on perceived overreach.
The NEPA categorical exclusion direction is consequential but conditional: FERC must adopt exclusions for low‑disturbance activities yet retain the ability to withhold exclusions where extraordinary circumstances exist. Determining which activities qualify as "low disturbance" and what counts as an "extraordinary circumstance" will be a site‑specific exercise that could produce uneven application across riverine and marine environments.
The compressed timelines and one‑year final action deadline heighten the risk that complex biological or cultural resource issues will either be overlooked or deferred, shifting environmental risk into the post‑approval phase and increasing litigation exposure. Finally, the Act preserves FERC’s safety authority but makes notice discretionary; that tension could reduce transparency around alterations and maintenance unless FERC exercises its retained notice powers aggressively.
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