18 CFR Part 4

SUBCHAPTER B—REGULATIONS UNDER THE FEDERAL POWER
ACT
4.39

PART 4—LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION
OF PROJECT COSTS

Subpart E—Application for License for
Major Unconstructed Project and
Major Modified Project

Subpart A—Determination of Cost of
Projects Constructed Under License

4.40
4.41

Sec.
4.1 Initial cost statement.
4.3 Report on project cost.
4.4 Service of report.
4.5 Time for filing protest.
4.6 Burden of proof.
4.7 Findings.

4.50
4.51

4.60
4.61

Valuation data.
Reports.
Service of report.
Time for filing protest.
Hearing upon report.

Applicability and notice to agencies.
Contents of application.

Subpart H—Application for License for
Transmission Line Only
4.70
4.71

Applicability.
Contents of application.

Subpart I—Application for Preliminary Permit; Amendment and Cancellation of
Preliminary Permit

Initial statement.
Reports.
Service of report.
Time for filing protest.
Determination of cost.
Findings.

4.80
4.81
4.82
4.83
4.84

Subpart D—Application for Preliminary Permit, License or Exemption: General
Provisions

Applicability.
Contents of application.
Amendments.
Cancellation and loss of priority.
Surrender of permit.

Subpart J—Exemption of Small Conduit
Hydroelectric Facilities

4.30
4.31

lpowell on DSK54DXVN1OFR with $$_JOB

Applicability.
Contents of application.

Subpart G—Application for License for
Minor Water Power Projects and Major
Water Power Projects 5 Megawatts or
Less

Subpart C—Determination of Cost of Constructed Projects not Subject to Section 23(a) of the Act
4.20
4.21
4.22
4.23
4.24
4.25

Applicability.
Contents of application.

Subpart F—Application for License for
Major Project—Existing Dam

Subpart B—Determination of Fair Value of
Constructed Projects, Under Section
23(a) of the Act
4.10
4.11
4.12
4.13
4.14

Specifications for maps and drawings.

Applicability and definitions.
Initial or competing application: who
may file.
4.32 Acceptance for filing or rejection; information to be made available to the
public; requests for additional studies.
4.33 Limitations on submitting applications.
4.34 Hearings on applications; consultation
on terms and conditions; motions to intervene; alternative procedures.
4.35 Amendment of application; date of acceptance.
4.36 Competing applications: deadlines for
filing; notices of intent; comparisons of
plans of development.
4.37 Rules of preference among competing
applications.
4.38 Consultation requirements.

4.90
4.91
4.92
4.93
4.94

Applicability and purpose.
[Reserved]
Contents of exemption application.
Action on exemption applications.
Standard terms and conditions of exemption.
4.95 Surrender of exemption.
4.96 Amendment of exemption.

Subpart K—Exemption of Small Hydroelectric
Power
Projects
of
10
Megawatts or Less
4.101 Applicability.
4.102 Surrender of exemption.
4.103 General provisions for case-specific exemption.
4.104 Amendment of exemption.
4.105 Action on exemption applications.

70

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00080

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
4.106 Standard terms and conditions of casespecific exemption from licensing.
4.107 Contents of application for exemption
from licensing.
4.108 Contents of application for exemption
from provisions other than licensing.

this section must be available to the
public for inspection and copying when
specifically requested.
(d) Compliance with the Act. Compliance with the provisions of this section
satisfies the filing requirements of section 4(b) of the Federal Power Act (16
U.S.C. 797(b)).

Subpart L—Application for Amendment of
License
4.200
4.201
4.202

[Order 53, 44 FR 61948, Oct. 29, 1979]

Applicability.
Contents of application.
Alteration and extension of license.

§ 4.3

Report on project cost.

(a) Scheduling an audit. When the
original cost declaration letter, filed in
accordance with § 4.1 is received by the
Commission, its representative will
schedule and conduct an audit of the
books, cost records, engineering reports, and other records supporting the
project’s original cost. The audit may
include an inspection of the project
works.
(b) Project records. The cost records
shall be supported by memorandum accounts reflecting the indirect and overhead costs prior to their spread to primary accounts as well as all the details
of allocations including formulas utilized to spread the indirect and overhead costs to primary accounts.
(c) Report by Commission staff. Upon
completion of the audit, a report will
be prepared for the Commission setting
forth the audit findings and recommendations with respect to the cost
as claimed.

Subpart M—Fees Under Section 30(e) of
the Act
4.300 Purpose, definitions, and applicability.
4.301 Notice to fish and wildlife agencies
and estimation of fees prior to filing.
4.302 Fees at filing.
4.303 Post-filing procedures.
4.304 Payment.
4.305 Enforcement.

Subpart N—Notice of Intent To Construct
Qualifying Conduit Hydropower Facilities
4.400 Applicability and purpose.
4.401 Contents of notice of intent to construct a qualifying conduit hydropower
facility.
AUTHORITY: 16 U.S.C. 791a–825v, 2601–2645; 42
U.S.C. 7101–7352.
SOURCE: Order 141, 12 FR 8485, Dec. 19, 1947,
unless otherwise noted.

Subpart A—Determination of Cost
of Projects Constructed Under
License

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.4

[Order 53, 44 FR 61948, Oct. 29, 1979]

§ 4.1 Initial cost statement.
(a) Notification of Commission. When a
project is constructed under a license
issued under the Federal Power Act,
the licensee shall, within one year
after the original project is ready for
service, file with the Commission a letter, in quadruplicate, declaring that
the original costs have been booked in
compliance with the Commission’s
Uniform System of Accounts and the
books of accounts are ready for audit.
(b) Licensee’s books. The licensee’s
books of accounts for each project shall
be maintained in such a fashion that
each year’s additions, betterments, and
delections to the project may be readily ascertained.
(c) Availability of information to the
public. The information made available
to the Commission in accordance with

§ 4.4

Service of report.

Copies of such report will be served
upon said licensees, and copies will also
be sent to the State public service
commission, or if the State has no regulatory agency, to the Governor of the
State where such project is located,
and to such other parties as the Commission shall prescribe, and the report
will be made available for public inspection at the time of service upon
the licensee.
(Administrative Procedure Act, 5 U.S.C. 551–
557 (1976); Federal Power Act, as amended, 16
U.S.C. 291–628 (1976 & Supp. V 1981), Dept. of
Energy Organization Act 42 U.S.C. 7101–7352
(Supp. V 1981); E.O. 12009, 3 CFR 142 (1978))
[Order 141, 12 FR 8485, Dec. 19, 1947, as
amended by Order 344, 48 FR 49010, Oct. 24,
1983; Order 737, 75 FR 43402, July 26, 2010]

71

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00081

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.5
§ 4.5

18 CFR Ch. I (4–1–17 Edition)
(b) Contents of letter. The letter referred to in paragraph (a) shall contain
a statement to the effect that an inventory and appraisal in detail, as of
the effective date of the license, of all
property subject thereto and to be so
valued has been completed. The letter
shall also include a statement to the
effect that the actual legitimate original cost, or if not known, the estimated original cost, and accrued depreciation of the property, classified by
prime accounts as prescribed in the
Commission’s Uniform System of Accounts, have been established.
(c) Licensee’s books. The licensee’s
books of account for each project shall
be maintained in such a fashion that
each year’s additions, betterments, and
deletions to the projects may be readily ascertained.
(d) Availability of information to the
public. The information made available
to the Commission in accordance with
this section must be available for inspection and copying by the public
when specifically requested.

Time for filing protest.

Thirty days after service thereof will
be allowed to such licensee within
which to file a protest to such reports.
If no protest is filed within the time allowed, the Commission will issue such
order as may be appropriate. If a protest is filed, a public hearing will be ordered in accordance with subpart E of
part 385 of this chapter.
[Order 141, 12 FR 8485, Dec. 19, 1947, as
amended by Order 225, 47 FR 19056, May 3,
1982]

§ 4.6

Burden of proof.

The burden of proof to sustain each
item of claimed cost shall be upon the
licensee and only such items as are in
the opinion of the Commission supported by satisfactory proof may be entered in the electric plant accounts of
the licensee.
[Order 53, 44 FR 61948, Oct. 29, 1979]

§ 4.7

Findings.

(a) Commission determination. Final
action by the Commission will be in
the form of an order served upon all
parties to the proceeding. One copy of
the order will be furnished to the Secretary of Treasury by the Commission.
(b) Adjustments to licensee’s books. The
licensee’s books of account for the
project shall be adjusted to conform to
the actual legitimate cost as revised by
the order of the Commission. These adjustments and the project may be audited by Commission representatives,
as scheduled.

[Order 53, 44 FR 61948, Oct. 29, 1979]

§ 4.11

Representatives of the Commission
will inspect the project works, engineering reports, and other records of
the project, check the inventory and
make an appraisal of the property and
an audit of the books, records, and accounts of the licensee relating to the
property to be valued, and will prepare
a report of their findings with respect
to the inventory, appraisal, original
cost, accrued depreciation, and fair
value of the property.

[Order 53, 44 FR 61948, Oct. 29, 1979]

Subpart B—Determination of Fair
Value of Constructed Projects,
Under Section 23(a) of the
Act

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.10

Reports.

§ 4.12

Service of report.

A copy of such report will be served
upon said licensee, and copies will also
be sent to the State public service
commission, or if the State has no regulatory agency, to the Governor of the
State where such project is located.
The report will be made available for

Valuation data.

(a) Notification of Commission. In every
case arising under section 23(a) of the
Federal Power Act that requires the
determination of the fair value of a
project already constructed, the licensee shall, within six months after
the date of issuance of a license, file
with the Commission a letter, in quadruplicate.

72

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00082

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission

(b) Contents of letter. The letter referred to in paragraph (a) of this section shall contain a statement to the
effect that an inventory in detail of all
property included under the license, as
of the effective date of such license,
has been completed. The letter shall
also include a statement to the effect
that actual legitimate original cost, or
if not known, the estimated original
cost, and accrued depreciation of the
property, classified by prime accounts
as prescribed in the Commission’s Uniform System of Accounts, have been
established.
(c) Licensee’s books. The licensee’s
books of account for each project shall
be maintained in such a fashion that
each year’s additions, betterments, and
deletions to the project may be readily
ascertained.
(d) Availability of information to the
public. The information made available
to the Commission in accordance with
this section must be available for inspection and copying by the public
when specifically requested.
(e) Compliance with the Act. Compliance with the provisions of this section
satisfies the filing requirements of section 4(b) of the Federal Power Act (16
U.S.C. 797(b)).

public inspection at the time of service
upon the licensee.
(Administrative Procedure Act, 5 U.S.C. 551–
557 (1976); Federal Power Act, as amended, 16
U.S.C. 291–628 (1976 & Supp. V 1981), Dept. of
Energy Organization Act 42 U.S.C. 7101–7352
(Supp. V 1981); E.O. 12009, 3 CFR 142 (1978))
[Order 141, 12 FR 8485, Dec. 19, 1947, as
amended by Order 344, 48 FR 49010, Oct. 24,
1983; Order 737, 75 FR 43402, July 26, 2010]

§ 4.13

Time for filing protest.

Thirty days after service thereof will
be allowed to the licensee within which
to file a protest to such report.
§ 4.14

Hearing upon report.

(a) Public hearing. After the expiration of the time within which a protest
may be filed, a public hearing will be
ordered in accordance with subpart E
of part 385 of this chapter.
(b) Commission determination. After
the conclusion of the hearing, the Commission will make a finding of fair
value, accompanied by an order which
will be served upon the licensee and all
parties to the proceeding. One copy of
the order shall be furnished to the Secretary of the Treasury by the Commission.
(c) Adjustment to licensee’s books. The
licensee’s books of account for the
project shall be adjusted to conform to
the fair value of the project as revised
by the order of the Commission. These
adjustments and the project may be
audited by Commission representatives, as scheduled.

[Order 53, 44 FR 61949, Oct. 29, 1979]

§ 4.21

Subpart C—Determination of Cost
of Constructed Projects not
Subject to Section 23(a) of the
Act

lpowell on DSK54DXVN1OFR with $$_JOB

Reports.

Representatives of the Commission
will inspect the project works, engineering reports, and other records of
the project, check the inventory and
estimated depreciation, make an audit
of the books, records, and accounts of
the licensee relating to the property
under license, and prepare a report of
their findings with respect to the inventory, the original cost of the property, and the estimated accrued depreciation thereon.

[Order 53, 44 FR 61949, Oct. 29, 1979, as amended by Order 225, 47 FR 19056, May 3, 1982]

§ 4.20

§ 4.22

Initial statement.
§ 4.22

(a) Notification of Commission. In all
cases where licenses are issued for
projects already constructed, but
which are not subject to the provisions
of section 23(a) of the Act (49 Stat. 846;
16 U.S.C. 816), the licensee shall, within
6 months after the date of issuance of
license, file with the Commission a letter, in quadruplicate.

Service of report.

Copies of such report will be served
upon said licensees, and copies will also
be sent to the State public service
commission, or if the State has no regulatory agency, to the Governor of the
State where such project is located,
and to such other parties as the Commission shall prescribe, and the report

73

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00083

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.23

18 CFR Ch. I (4–1–17 Edition)
Organization Act, 42 U.S.C. 7101–7352; E.O.
12009, 42 FR 46267; Public Utility Regulatory
Policies Act of 1978, 16 U.S.C. 2601–2645; Pub.
L. 96–511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.).

will be made available for public inspection at the time of service upon
the licensee.
(Administrative Procedure Act, 5 U.S.C. 551–
557 (1976); Federal Power Act, as amended, 16
U.S.C. 291–628 (1976 & Supp. V 1981), Dept. of
Energy Organization Act 42 U.S.C. 7101–7352
(Supp. V 1981); E.O. 12009, 3 CFR 142 (1978))

§ 4.30

[Order 141, 12 FR 8485, Dec. 19, 1947, as
amended by Order 344, 48 FR 49010, Oct. 24,
1983; Order 737, 75 FR 43402, July 26, 2010]

§ 4.23 Time for filing protest.
Thirty days after service thereof will
be allowed to such licensee within
which to file a protest to such reports.
If no protest is filed within the time allowed, the Commission will issue such
order as may be appropriate. If a protest is filed, a public hearing will be ordered in accordance with subpart E of
part 385 of this chapter.
[Order 141, 12 FR 8485, Dec. 19, 1947, as
amended by Order 225, 47 FR 19056, May 3,
1982]

§ 4.24 Determination of cost.
The Commission, after receipt of the
reports, or after the conclusion of the
hearing if one is held, will determine
the amounts to be included in the electric plant accounts of the licensee as
the cost of the property and the accrued depreciation thereon.
§ 4.25 Findings.
(a) Commission determination. Final
action by the Commission will be in
the form of an order served upon all
parties to the proceeding. One copy of
the order shall be furnished to the Secretary of Treasury by the Commission.
(b) Adjustment to licensee’s books. The
licensee’s books of account for the
project shall be adjusted to conform to
the actual legitimate cost as revised by
the order of the Commission. These adjustments and the project may be audited by Commission representatives,
as scheduled.
[Order 53, 44 FR 61949, Oct. 29, 1979]

lpowell on DSK54DXVN1OFR with $$_JOB

Applicability and definitions.

(a) (1) This subpart applies to applications for preliminary permit, license,
or exemption from licensing.
(2) Any potential applicant for an
original license for which prefiling consultation begins on or after July 23,
2005 and which wishes to develop and
file its application pursuant to this
part, must seek Commission authorization to do so pursuant to the provisions
of part 5 of this chapter.
(b) For the purposes of this part—
(1)(i) Competing development application means any application for a license or exemption from licensing for a
proposed water power project that
would develop, conserve, and utilize, in
whole or in part, the same or mutually
exclusive water resources that would
be developed, conserved, and utilized
by a proposed water power project for
which an initial preliminary permit or
initial development application has
been filed and is pending before the
Commission.
(ii) Competing preliminary permit application means any application for a preliminary permit for a proposed water
power project that would develop, conserve, and utilize, in whole or in part,
the same or mutually exclusive water
resources that would be developed, conserved and utilized by a proposed water
power project for which an initial preliminary permit or initial development
application has been filed and is pending before the Commission.
(2) Conduit means any tunnel, canal,
pipeline, aqueduct, flume, ditch, or
similar manmade water conveyance
that is operated for the distribution of
water for agricultural, municipal, or
industrial consumption and not primarily for the generation of electricity. The term not primarily for the
generation of electricity includes but is
not limited to a conduit:
(i) Which was built for the distribution of water for agricultural, municipal, or industrial consumption and is
operated for such a purpose; and
(ii) To which a hydroelectric facility
has been or is proposed to be added.

Subpart D—Application for Preliminary Permit, License or Exemption: General Provisions
AUTHORITY: Federal Power Act, as amended, 16 U.S.C. 792–828c; Department of Energy

74

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00084

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(3) Construction of a dam, for the purposes of provisions governing application for exemption of a small conduit
hydroelectric facility, means any construction, repair, reconstruction, or
modification of a dam that creates a
new impoundment or increases the normal maximum surface elevation or the
normal maximum surface area of an
existing impoundment.
(4)(i) Dam, for the purposes of provisions governing application for license
of a major project—existing dam,
means any structure for impounding or
diverting water.
(ii) Dam, for the purposes of provisions governing an application for exemption of a small conduit hydroelectric facility or a notice of intent to
construct a qualifying conduit hydropower facility, means any structure
that impounds water.
(iii) Dam, for the purposes of provisions governing application for exemption of a small hydroelectric power
project, means any structure for impounding water, including any diversion structure that is designed to obstruct all or substantially all of the
flow of a natural body of water.
(5) Development application means any
application for either a license or exemption from licensing for a proposed
water power project.
(6)(i) Existing dam, for the purposes of
provisions governing application for license of a major project—existing dam,
means any dam (as defined in paragraph (b)(4)(i) of this section) that has
already been constructed and which
does not require any construction or
enlargement of impoundment structures other than repairs or reconstruction.
(ii) Existing dam, for the purposes of
provisions governing application for
exemption of a small hydroelectric
power project, means any dam, the
construction of which was completed
on or before July 22, 2005, and which
does not require any construction or
enlargement of impoundment structures (other than repairs or reconstruction) in connection with the installation of any small hydroelectric power
project.
(7) Existing impoundment, for the purposes of provisions governing application for license of a major project—ex-

§ 4.30
isting dam, means any body of water
that an existing dam impounds.
(8) Federal lands, for the purposes of
provisions governing an application for
exemption of a small conduit hydroelectric facility or a small hydroelectric power project, means any lands
to which the United States holds fee
title.
(9)(i) Fish and wildlife agencies means
the United States Fish and Wildlife
Service, the National Marine Fisheries
Service, and the state agency in charge
of administrative management over
fish and wildlife resources of the state
in which a proposed hydropower
project is located.
(ii) Fish and wildlife recommendation
means any recommendation designed
to protect, mitigate damages to, or enhance any wild member of the animal
kingdom, including any migratory or
nonmigratory mammal, fish, bird, amphibian, reptile, mollusk, crustacean,
or other invertebrate, whether or not
bred, hatched, or born in captivity, and
includes any egg or offspring thereof,
related breeding or spawning grounds,
and habitat. A ‘‘fish and wildlife recommendation’’ includes a request for a
study which cannot be completed prior
to licensing, but does not include a request that the proposed project not be
constructed or operated, a request for
additional pre-licensing studies or
analysis or, as the term is used in
§§ 4.34(e)(1)
and
4.34(f)(3),
a
recommendation for facilities, programs,
or other measures to benefit recreation
or tourism.
(10) Indian tribe means, in reference
to a proposal to apply for a license or
exemption for a hydropower project, an
Indian tribe which is recognized by
treaty with the United States, by federal statute, or by the U.S. Department
of the Interior in its periodic listing of
tribal governments in the FEDERAL
REGISTER in accordance with 25 CFR
83.6(b), and whose legal rights as a
tribe may be affected by the development and operation of the hydropower
project proposed (as where the operation of the proposed project could
interfere with the management and
harvest of anadromous fish or where
the project works would be located
within the tribe’s reservation).

75

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00085

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.30

18 CFR Ch. I (4–1–17 Edition)

(11)(i) Initial development application
means any acceptable application for
either a license or exemption from licensing for a proposed water power
project that would develop, conserve,
and utilize, in whole or in part, water
resources for which no other acceptable
application for a license or exemption
from licensing has been submitted for
filing and is pending before the Commission.
(ii) Initial preliminary permit application means any acceptable application
for a preliminary permit for a proposed
water power project that would develop, conserve, and utilize, in whole or
in part, water resources for which no
other acceptable preliminary permit
application has been submitted for filing and is pending before the Commission.
(12) Install or increase, for the purposes of provisions governing application for exemption of a small hydroelectric power project, means to add
new generating capacity at a site that
has no existing generating units, to replace or rehabilitate an abandoned or
unused existing generating unit, or to
increase the generating capacity of any
existing power plant by installing an
additional generating unit or by rehabilitating an operable generating unit
in a way that increases its rated electric power output.
(13) Licensed water power project
means a project, as defined in section
3(11) of the Federal Power Act, that is
licensed under Part I of the Federal
Power Act.
(14) Major modified project means any
major project—existing dam, as defined
in paragraph (b)(16) of this section,
that would include:
(i) Any repair, modification or reconstruction of an existing dam that
would result in a significant change in
the normal maximum surface area or
the normal maximum surface elevation
of an existing impoundment; or
(ii) Any change in existing project
works or operations that would result
in a significant environmental impact.
(15) Major unconstructed project means
any unlicensed water power project
that would:
(i) Have a total installed generating
capacity of more than 1.5 MW; and

(ii) Use the water power potential of
a dam and impoundment which, at the
time application is filed, have not been
constructed.
(16) Major project—existing dam means
a licensed or unlicensed, existing or
proposed water power project that
would:
(i) Have a total installed generating
capacity or more than 2,000 horsepower
(1.5 MW); and
(ii) Not use the water power potential
provided by any dam except an existing
dam.
(17) Minor water power project means
any licensed or unlicensed, existing or
proposed water power project that
would have a total installed generation
capacity of 2,000 horsepower (1.5 MW),
or less.
(18) New development, for the purposes
of provisions governing application for
license of a major project—existing
dam, means any construction, installation, repair, reconstruction, or other
change in the existing state of project
works or appurtenant facilities, including any dredging and filling in project
waters.
(19) New license means any license,
except an annual license issued under
section 15 of the Federal Power Act, for
a water power project that is issued
under the Federal Power Act after the
initial license for that project.
(20) Non-Federal lands, for the purposes of provisions governing application for exemption of a small conduit
hydroelectric facility or a small hydroelectric power project, means any lands
except lands to which the United
States holds fee title.
(21) Non-federally owned conduit, for
the purposes of provisions governing
the notice of intent to construct qualifying conduit hydropower facilities,
means any conduit except a conduit to
which the United States holds fee title.
(22) Person means any individual and,
as defined in section 3 of the Federal
Power Act, any corporation, municipality, or state.
(23) Project, for the purposes of provisions governing application for exemption of a small hydroelectric power
project, means:

76

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00086

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(i) The impoundment and any associated dam, intake, water conveyance facility, power plant, primary transmission line, and other appurtenant facility if a lake or similar natural impoundment or a manmade impoundment is used for power generation; or
(ii) Any diversion structure other
than a dam and any associated water
conveyance facility, power plant, primary transmission line, and other appurtenant facility if a natural water
feature other than a lake or similar
natural impoundment is used for power
generation.
(24) Qualified exemption applicant,
means any person who meets the requirements specified in § 4.31(c)(2) with
respect to a small hydroelectric power
project for which exemption from licensing is sought.
(25) Qualified license applicant means
any person to whom the Commission
may issue a license, as specified in section 4(e) of the Federal Power Act.
(26) Qualifying conduit hydropower facility, means a facility, not including
any dam or impoundment, that is not
required to be licensed under Part I of
the FPA because it is determined to
meet the following criteria:
(i) Generates electric power using
only the hydroelectric potential of a
non-federally owned conduit;
(ii) Has an installed capacity that
does not exceed 5 megawatts (MW);
and,
(iii) Was not licensed or exempted
from the licensing requirements of
Part I of the FPA on or before August
9, 2013.
(27) Ready for environmental analysis
means the point in the processing of an
application for an original or new license or exemption from licensing
which has been accepted for filing,
where substantially all additional information requested by the Commission has been filed and found adequate.
(28) Real property interests, for the
purposes of provisions governing application for exemption of a small conduit
hydroelectric facility or a small hydroelectric power project, includes ownership in fee, rights-of-way, easements,
or leaseholds.
(29) Resource agency means a Federal,
state, or interstate agency exercising
administration over the areas of flood

§ 4.30
control, navigation, irrigation, recreation, fish and wildlife, water resource
management (including water rights),
or cultural or other relevant resources
of the state or states in which a project
is or will be located.
(30) Small conduit hydroelectric facility,
means an existing or proposed hydroelectric facility that is constructed,
operated, or maintained for the generation of electric power, and includes all
structures, fixtures, equipment, and
lands used and useful in the operation
or maintenance of the hydroelectric facility, but excludes the conduit on
which the hydroelectric facility is located and the transmission lines associated with the hydroelectric facility
and which:
(i) Utilizes for electric power generation the hydroelectric potential of a
conduit;
(ii) Has an installed generating capacity that does not exceed 40 MW;
(iii) Is not an integral part of a dam;
(iv) Discharges the water it uses for
power generation either:
(A) Into a conduit;
(B) Directly to a point of agricultural, municipal, or industrial consumption; or
(C) Into a natural water body if a
quantity of water equal to or greater
than the quantity discharged from the
hydroelectric facility is withdrawn
from that water body downstream into
a conduit that is part of the same
water supply system as the conduit on
which the hydroelectric facility is located; and
(v) Does not rely upon construction
of a dam, which construction will create any portion of the hydrostatic head
that the facility uses for power generation unless that construction would
occur for agricultural, municipal, or
industrial consumptive purposes even
if hydroelectric generating facilities
were not installed.
(31) Small hydroelectric power project,
means any project in which capacity
will be installed or increased after the
date of application under subpart K of
this chapter, which will have a total
installed capacity of not more than 10
MW, and which:
(i) Would utilize for electric power
generation the water power potential
of an existing dam that is not owned or

77

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00087

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.31

18 CFR Ch. I (4–1–17 Edition)
ests in the lands necessary to develop
and operate that project, or an option
to obtain those interests, may apply
for exemption of a small conduit hydroelectric facility from provisions of
Part I of the Federal Power Act, other
than licensing provisions.
(2) Exemption from licensing—(i) Only
federal lands involved. If only rights to
use or occupy federal lands would be
necessary to develop and operate the
proposed small conduit hydroelectric
facility, any citizen, association of
citizens, domestic corporation, municipality, or state may apply for exemption of that facility from licensing
under Part I of the Federal Power Act.
(ii) Some non-federal lands involved. If
real property interests in any non-federal lands would be necessary to develop and operate the proposed small
conduit hydroelectric facility, any citizen, association of citizens, domestic
corporation, municipality, or state who
has all the real property interests in
the lands necessary to develop and operate the small conduit hydroelectric
facility, or an option to obtain those
interests, may apply for exemption of
that facility from licensing under Part
I of the Federal Power Act.
(c) Application for case-specific exemption of a small hydroelectric power
project—(1) Exemption from provisions
other than licensing. Any qualified license applicant or licensee seeking
amendment of its license may apply for
exemption of the related project from
provisions of Part I of the Federal
Power Act other than licensing provisions.
(2) Exemption from licensing— (i) Only
Federal lands involved. If only rights to
use or occupy Federal lands would be
necessary to develop and operate the
proposed small hydroelectric power
project, any citizen, association of citizens, domestic corporation, municipality, or state may apply for exemption of that project from licensing.
(ii) Some non-Federal lands involved. If
real property interests in any non-Federal lands would be necessary to develop and operate the proposed small
hydroelectric power project, any citizen, association of citizens, domestic
corporation, municipality, or state who
has all of the real property interests in
non-Federal lands necessary to develop

operated by the United States or by an
instrumentality of the Federal Government, including the Tennessee Valley
Authority; or
(ii)(A) Would utilize for the generation of electricity a natural water feature, such as a natural lake, waterfall,
or the gradient of a natural stream,
without the need for a dam or manmade impoundment; and
(B) Would not retain water behind
any structure for the purpose of a storage and release operation.
(32) PURPA benefits means benefits
under section 210 of the Public Utility
Regulatory Policies Act of 1978
(PURPA). Section 210(a) of PURPA requires electric utilities to purchase
electricity from, and to sell electricity
to, qualifying facilities.
[Order 413, 50 FR 11676, Mar. 25, 1985]

lpowell on DSK54DXVN1OFR with $$_JOB

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 4.30, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

§ 4.31 Initial or competing application:
who may file.
(a) Application for a preliminary permit
or a license. Any citizen, association of
citizens, domestic corporation, municipality, or state may submit for filing
an initial application or a competing
application for a preliminary permit or
a license for a water power project
under Part I of the Federal Power Act.
(b) Application for exemption of a small
conduit hydroelectric facility—(1) Exemption from provisions other than licensing—(i) Only federal lands involved. If
only rights to use or occupy federal
lands would be necessary to develop
and operate the proposed small conduit
hydroelectric facility, any citizen, association of citizens, domestic corporation, municipality, or state may apply
for exemption of a small conduit hydroelectric facility from provisions of
Part I of the Federal Power Act, other
than licensing provisions.
(ii) Some non-federal lands involved. If
real property interests in any non-federal lands would be necessary to develop and operate the proposed small
conduit hydroelectric facility, any citizen, association of citizens, domestic
corporation, municipality, or state
that has all of the real property inter-

78

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00088

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
and operate that project, or an option
to obtain those interests, may apply
for exemption of that project from licensing.

fore filing the application, a good faith
effort to give notification by certified
mail of the filing of the application to:
(A) Every property owner of record of
any interest in the property within the
bounds of the project, or in the case of
the project without a specific boundary, each such owner of property which
would underlie or be adjacent to any
project works including any impoundments; and
(B) The entities identified in paragraph (a)(2) of this section, as well as
any other Federal, state, municipal or
other local government agencies that
there is reason to believe would likely
be interested in or affected by such application.
(ii) Such notification must contain
the name, business address, and telephone number of the applicant and a
copy of the Exhibit G contained in the
application, and must state that a license application is being filed with
the Commission.
(4)(i) As to any facts alleged in the
application or other materials filed, be
subscribed and verified under oath in
the form set forth in paragraph (a)
(4)(ii) of this section by the person filing, an officer thereof, or other person
having knowledge of the matters sent
forth.
If
the
subscription
and
verification is by anyone other than
the person filing or an officer thereof,
it shall include a statement of the reasons therefor.
(ii) This (application, etc.) is executed in the

[Order 413, 50 FR 11678, Mar. 25, 1985, as
amended by Order 800, 79 FR 59109, Oct. 1,
2014]

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.32

§ 4.32 Acceptance for filing or rejection; information to be made available to the public; requests for additional studies.
(a) Each application must:
(1) For a preliminary permit or license, identify every person, citizen,
association of citizens, domestic corporation, municipality, or state that
has or intends to obtain and will maintain any proprietary right necessary to
construct, operate, or maintain the
project;
(2) For a preliminary permit or a license, identify (providing names and
mailing addresses):
(i) Every county in which any part of
the project, and any Federal facilities
that would be used by the project,
would be located;
(ii) Every city, town, or similar local
political subdivision:
(A) In which any part of the project,
and any Federal facilities that would
be used by the project, would be located; or
(B) That has a population of 5,000 or
more people and is located within 15
miles of the project dam;
(iii) Every irrigation district, drainage district, or similar special purpose
political subdivision:
(A) In which any part of the project,
and any Federal facilities that would
be used by the project, would be located; or
(B) That owns, operates, maintains,
or uses any project facilities or any
Federal facilities that would be used by
the project;
(iv) Every other political subdivision
in the general area of the project that
there is reason to believe would likely
be interested in, or affected by, the application; and
(v) All Indian tribes that may be affected by the project.
(3)(i) For a license (other than a license under section 15 of the Federal
Power Act) state that the applicant
has made, either at the time of or be-

State of lllllllllllllllllll
County of llllllllllllllllll
by:llllllllll
(Name)llllllllll lllllllll
(Address) llllllllllllllllll
being duly sworn, depose(s) and say(s) that
the contents of this (application, etc.) are
true to the best of (his or her) knowledge or
belief. The undersigned applicant(s) has
(have) signed the (application, etc.) this
llllll day of lllllll, 19ll.
llllllllllllllllllllllll
(Applicant(s))
By:
lllllllllllllllllllll
Subscribed and sworn to before me, a [Notary Public, or title of other official authorized by the state to notarize documents, as
appropriate] of the State of llllllll
this day of lllllll, 19ll.

79

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00089

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.32

18 CFR Ch. I (4–1–17 Edition)

/SEAL/ [if any]

Secretary of the Commission in accordance with filing procedures posted on
the Commission’s Web site at http://
www.ferc.gov. An applicant must serve
one copy of the application on the Director of the Commission’s Regional
Office for the appropriate region and on
each resource agency consulted pursuant to § 4.38. For each application filed
following October 23, 2003, maps and
drawings must conform to the requirements of § 4.39.
(3)(i) An applicant must make information regarding its proposed project
reasonably available to the public for
inspection and reproduction, from the
date on which the applicant files its application for a license or exemption
until the licensing or exemption proceeding for the project is terminated
by the Commission. This information
includes a copy of the complete application for license or exemption, together with all exhibits, appendices
and any amendments, and any comments, pleadings, supplementary or additional information, or correspondence filed by the applicant with the
Commission in connection with the application.
(ii) An applicant must delete from
any information made available to the
public under this section, specific site
or property locations the disclosure of
which would create a risk of harm,
theft, or destruction of archeological
or Native American cultural resources
or to the site at which the sources are
located, or would violate any federal
law, including the Archaeological Resources Protection Act of l979, 16
U.S.C. 470w–3, and the National Historic Preservation Act of 1966, 16 U.S.C.
470hh.
(4)(i) An applicant must make available the information specified in paragraph (b)(3) of this section in a form
that is readily accessible, reviewable,
and reproducible, at the same time as
the information is filed with the Commission or required by regulation to be
made available.
(ii) An applicant must make the information specified in paragraph (b)(3)
of this section available to the public
for inspection:
(A) At its principal place of business
or at any other location that is more
accessible to the public, provided that

llllllllllllllllllllllll

lpowell on DSK54DXVN1OFR with $$_JOB

(Notary Public, or other authorized official)

(5) Contain the information and documents prescribed in the following sections of this chapter, according to the
type of application:
(i) Preliminary permit: § 4.81;
(ii) License for a minor water power
project and a major water power
project 5 MW or less: § 4.61;
(iii)
License
for
a
major
unconstructed project and a major
modified project: § 4.41;
(iv) License for a major project—existing dam: § 4.51;
(v) License for a transmission line
only: § 4.71;
(vi) Nonpower license for a licensed
project: § 16.11;
(vii) Exemption of a small conduit
hydroelectric facility: § 4.92;
(viii) Case-specific exemption of a
small hydroelectric power project:
§ 4.107; or
(ix) License or exemption for a
project located at a new dam or diversion where the applicant seeks PURPA
benefits: § 292.208.
(b) (1) Each applicant for a preliminary permit, license, and transfer or
surrender of license and each petitioner
for surrender of an exemption must
submit the application or petition to
the Secretary of the Commission in accordance with filing procedures posted
on the Commission’s Web site at http://
www.ferc.gov. The applicant or petitioner must serve one copy of the application or petition on the Director of
the Commission’s Regional Office for
the appropriate region and on each resource agency, Indian tribe, and member of the public consulted pursuant to
§ 4.38 or § 16.8 of this chapter or part 5 of
this chapter. In the case of an application for a preliminary permit, the applicant must, if the Commission so directs, serve copies of the application on
the U.S. Department of the Interior
and the U.S. Army Corps of Engineers.
The application may include reduced
prints of maps and drawings conforming to § 4.39(d). The Commission
may also ask for the filing of full-sized
prints in appropriate cases.
(2) Each applicant for exemption
must submit the application to the

80

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00090

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
all the information is available in at
least one location;
(B) During regular business hours;
and
(C) In a form that is readily accessible, reviewable and reproducible.
(iii) The applicant must provide a
copy of the complete application (as
amended) to a public library or other
convenient public office located in each
county in which the proposed project is
located.
(iv) An applicant must make requested copies of the information specified in paragraph (b)(3) of this section
available either:
(A) At its principal place of business
or at any other location that is more
accessible to the public, after obtaining reimbursement for reasonable costs
of reproduction; or
(B) Through the mail, after obtaining
reimbursement for postage fees and
reasonable costs of reproduction.
(5) Anyone may file a petition with
the Commission requesting access to
the information specified in paragraph
(b)(3) of this section if it believes that
an applicant is not making the information reasonably available for public
inspection or reproduction. The petition must describe in detail the basis
for the petitioner’s belief.
(6) An applicant must publish notice
twice of the filing of its application, no
later than 14 days after the filing date,
in a daily or weekly newspaper of general circulation in each county in
which the project is located. The notice
must disclose the filing date of the application and briefly summarize it, including the applicant’s name and address, the type of facility applied for,
its proposed location, the places where
the information specified in paragraph
(b)(3) of this section is available for inspection and reproduction, and the
date by which any requests for additional scientific studies are due under
paragraph (b)(7) of this section, and
must state that the Commission will
publish subsequent notices soliciting
public participation if the application
is found acceptable for filing. The applicant must promptly provide the
Commission with proof of the publications of this notice.
(7) If any resource agency, Indian
tribe, or person believes that an addi-

§ 4.32
tional scientific study should be conducted in order to form an adequate
factual basis for a complete analysis of
the application on its merits, the resource agency, Indian tribe, or person
must file a request for the study with
the Commission not later than 60 days
after the application is filed and serve
a copy of the request on the applicant.
The Commission will issue public notice of the tendering for filing of each
application for hydropower license or
exemption; each such applicant must
submit a draft of this notice to the
Commission with its application. For
any such additional study request, the
requester must describe the recommended study and the basis for the
request in detail, including who should
conduct and participate in the study,
its methodology and objectives, whether the recommended study methods are
generally accepted in the Scientific
community, how the study and information sought will be useful in furthering the resource goals that are affected by the proposed facilities, and
approximately how long the study will
take to complete, and must explain
why the study objectives cannot be
achieved using the data already available. In addition, in the case of a study
request by a resource agency or Indian
tribe that had failed to request the
study during the pre-filing consultation process under § 4.38 of this part or
§ 16.8 of this chapter, the agency or Indian tribe must explain why this request was not made during the pre-filing consultation process and show good
cause why its request for the study
should be considered by the Commission.
(8) An applicant may file a response
to any such study request within 30
days of its filing, serving a copy of the
response on the requester.
(9) The requirements of paragraphs
(b)(3) to (b)(8) of this section only apply
to an application for license or exemption filed on or after May 20, 1991.
Paragraphs (b)(3) and (b)(4) of this section do not apply to applications subject to the requirements of § 16.7 of this
chapter.
(c)(1) Every applicant for a license or
exemption for a project with a capacity
of 80 megawatts or less must include in

81

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00091

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.32

18 CFR Ch. I (4–1–17 Edition)

its application copies of the statements
made under § 4.38(b)(2)(vi).
(2) If an applicant reverses a statement of intent not to seek PURPA benefits:
(i) Prior to the Commission issuing a
license or exemption, the reversal of
intent will be treated as an amendment
of the application under § 4.35 and the
applicant must:
(A) Repeat the pre-filing consultation
process under § 4.38; and
(B) Satisfy all the requirements in
§ 292.208 of this chapter; or
(ii) After the Commission issues a license or exemption for the project, the
applicant is prohibited from obtaining
PURPA benefits.
(d) When any application is found to
conform to the requirements of paragraphs (a), (b) and (c) of this section,
the Commission or its delegate will:
(1) Notify the applicant that the application has been accepted for filing,
specifying the project number assigned
and the date upon which the application was accepted for filing, and, for a
license or exemption application, direct the filing of the originals (microfilm) of required maps and drawings;
(2)(i) For an application for a preliminary permit or a license, issue public notice of the application as required
in the Federal Power Act;
(ii) For an application for exemption
from licensing, publish notice once in a
daily or weekly newspaper of general
circulation in each county in which the
project is or will be located; and
(3) If the project affects lands of the
United States, notify the appropriate
Federal office of the application and
the specific lands affected, pursuant to
section 24 of the Federal Power Act.
(4) For an application for a license
seeking benefits under section 210 of
the Public Utility Regulatory Policies
Act of 1978, as amended, for a project
that would be located at a new dam or
diversion, serve the public notice
issued for the application under paragraph (d)(2)(i) of this section to interested agencies at the time the applicant is notified that the application is
accepted for filing.
(e) In order for an application to conform adequately to the requirements of
paragraphs (a), (b) and (c) of this section and of § 4.38, an application must

be completed fully. No blanks should
be left in the application. No material
or information required in the application should be omitted. If an applicant
believes that its application conforms
adequately without containing certain
required material or information, it
must explain in detail why the material or information is not being submitted and what steps were taken by
the applicant to provide the material
or information. If the Commission
finds that an application does not adequately conform to the requirements of
paragraphs (a), (b) and (c) of this section and of § 4.38, the Commission or its
designee will consider the application
either deficient or patently deficient.
(1) Deficient applications. (i) An application that in the judgment of the Director of the Office of Energy Projects
does not conform to the requirements
of paragraphs (a), (b) and (c) of this section and of § 4.38, may be considered deficient. An applicant having a deficient
application will be afforded additional
time to correct deficiencies, not to exceed 45 days from the date of notification in the case of an application for a
preliminary permit or exemption from
licensing or 90 days from the date of
notification in the case of an application for license. Notification will be by
letter or, in the case of minor deficiencies, by telephone. Any notification will specify the deficiencies to be
corrected. Deficiencies must be corrected by submitting the specified materials or information to the Secretary
of the Commission within the time
specified in the notification of deficiency in accordance with filing procedures posted on the Commission’s Web
site at http://www.ferc.gov.
(ii) Upon submission of a conforming
application, action will be taken in accordance with paragraph (d) of this section.
(iii) If the revised application is
found not to conform to the requirements of paragraphs (a), (b) and (c) of
this section and of § 4.38, or if the revisions are not timely submitted, the revised application will be rejected. Procedures for rejected applications are
specified in paragraph (e)(2)(iii).
(2) Patently deficient applications. (i)
If, within 90 days of its filing date, the
Director of the Office of Energy

82

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00092

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
Projects determines that an application patently fails to substantially
comply with the requirements of paragraph (a), (b), and (c) of this section
and of § 4.38 of this part or § 16.8 of this
chapter, or is for a project that is precluded by law, the application will be
rejected as patently deficient with the
specification of the deficiencies that
render the application patently deficient.
(ii) If, after 90 days of its filing date,
the Director of the Office of Energy
Projects determines that an application patently fails to substantially
comply with the requirements of paragraphs (a), (b), and (c) of this section
and of § 4.38 of this part or § 16.8 of this
chapter, or is for a project that is precluded by law:
(A) The application will be rejected
by order of the Commission, if the
Commission determines it is patently
deficient; or
(B) The application will be considered deficient under paragraph (e)(1) of
this section, if the Commission determines it is not patently deficient.
(iii) Any application that is rejected
may be resubmitted if the deficiencies
are corrected and if, in the case of a
competing application, the resubmittal
is timely. The date the rejected application is resubmitted will be considered the new filing date for purposes of
determining its timeliness under § 4.36
and the disposition of competing applications under § 4.37.
(f) Any application will be considered
accepted for filing as of the application
filing date if the Secretary receives all
of the information and documents necessary to conform to the requirements
of paragraphs (a), (b) and (c) of this section and of § 4.38 within the time prescribed by the Commission or its delegate under paragraph (e) of this section.
(g) An applicant may be required to
submit any additional information or
documents that the Commission or its
designee considers relevant for an informed decision on the application.
The information or documents must
take the form, and must be submitted
within the time, that the Commission
or its designee prescribes. An applicant
may also be required to provide within
a specified time additional copies of

§ 4.32
the complete application, or any of the
additional information or documents
that are filed, to the Commission or to
any person, agency, or other entity
that the Commission or its designee
specifies. If an applicant fails to provide timely additional information,
documents, or copies of submitted materials as required, the Commission or
its designee may dismiss the application, hold it in abeyance, or take other
appropriate action under this chapter
or the Federal Power Act.
(h) A prospective applicant, prior to
submitting its application for filing,
may seek advice from the Commission
staff regarding the sufficiency of the
application. For this purpose, five copies of the draft application should be
submitted to the Director of the Division of Hydropower Licensing. An applicant or prospective applicant may
confer with the Commission staff at
any time regarding deficiencies or
other matters related to its application. All conferences are subject to the
requirements of § 385.2201 of this chapter governing ex parte communications. The opinions or advice of the
staff will not bind the Commission or
any person delegated authority to act
on its behalf.
(i) Intervention in any preliminary
permit proceeding will not constitute
intervention in any subsequent licensing or exemption proceeding.
(j) Any application, the effectiveness
of which is conditioned upon the future
occurrence of any event or circumstance, will be rejected.
(k) Critical Energy Infrastructure Information. (1) If this section requires an
applicant to reveal Critical Energy Infrastructure Information (CEII), as defined in § 388.113(c) of this chapter, to
any person, the applicant shall omit
the CEII from the information made
available and insert the following in its
place:
(i) A statement that CEII is being
withheld;
(ii) A brief description of the omitted
information that does not reveal any
CEII; and
(iii) This statement: ‘‘Procedures for
obtaining access to Critical Energy Infrastructure Information (CEII) may be
found at 18 CFR 388.113. Requests for

83

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00093

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.33

18 CFR Ch. I (4–1–17 Edition)

access to CEII should be made to the
Commission’s CEII Coordinator.’’
(2) The applicant, in determining
whether information constitutes CEII,
shall treat the information in a manner consistent with any filings that applicant has made with the Commission
and shall to the extent practicable adhere to any previous determinations by
the Commission or the CEII Coordinator involving the same or like information.
(3) The procedures contained in
§§ 388.112 and 388.113 of this chapter regarding designation of, and access to,
CEII, shall apply in the event of a challenge to a CEII designation or a request for access to CEII. If it is determined that information is not CEII or
that a requester should be granted access to CEII, the applicant will be directed to make the information available to the requester.
(4) Nothing in this section shall be
construed to prohibit any persons from
voluntarily reaching arrangements or
agreements calling for the disclosure of
CEII.

filed not later than the time allowed
under § 4.36(a) for the filing of applications in competition against an initial
application for a preliminary permit
that would develop, conserve, and utilize, in whole or in part, the same resources.
(b) Limitations on submissions and acceptance of a license application. The
Commission will not accept an application for a license or project works that
would develop, conserve, or utilize, in
whole or part, the same water resources that would be developed, conserved, and utilized by a project for
which there is:
(1) An unexpired preliminary permit,
unless the permittee has submitted an
application for license; or
(2) An unexpired license, except as
provided for in Section 15 of the Federal Power Act.
(c) Limitations on submission and acceptance of an application for a license
that would affect an exempted project. (1)
Except as permitted under § 4.33(c)(2),
§ 4.94(d), or § 4.106 (c), (e) or (f), the
Commission will not accept an application for a license for project works that
are already exempted from licensing
under this part.
(2) If a project is exempted from licensing pursuant to § 4.103 or § 4.109 and
real property interests in any non-Federal lands would be necessary to develop or operate the project, any person who is both a qualified license applicant and has any of those real property interests in non-Federal lands
may submit a license application for
that project. If a license application is
submitted under this clause, any other
qualified license applicant may submit
a competing license application in accordance with § 4.36.
(d) Limitations on submission and acceptance of exemption applications—(1)
Unexpired permit or license. (i) If there is
an unexpired permit in effect for a
project, the Commission will accept an
application for exemption of that
project from licensing only if the exemption applicant is the permittee.
Upon acceptance for filing of the permittee’s application, the permit will be
considered to have expired.
(ii) If there is an unexpired license in
effect for a project, the Commission

[Order 413, 50 FR 11678, Mar. 25, 1985]

lpowell on DSK54DXVN1OFR with $$_JOB

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 4.32, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

§ 4.33 Limitations on submitting applications.
(a) Limitations on submission and acceptance of a preliminary permit application. The Commission will not accept
an application for a preliminary permit
for project works that:
(1) Would develop, conserve, and utilize, in whole or in part, the same
water resources that would be developed, conserved, and utilized by a
project for which there is an unexpired
preliminary permit.
(2) Would interfere with a licensed
project in a manner that, absent the licensee’s consent, would be precluded by
Section 6 of the Federal Power Act.
(3) Would develop, conserve, and utilize, in whole or in part, the same
water resources that would be developed, conserved, and utilized by a
project for which an initial development application has been filed unless
the preliminary permit application is

84

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00094

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
will accept an application for exemption of that project from licensing only
if the exemption applicant is the licensee.
(2) Pending license applications. If an
accepted license application for a
project was submitted by a permittee
before the preliminary permit expired,
the Commission will not accept an application for exemption of that project
from licensing submitted by a person
other than the former permittee.
(3) Submitted by qualified exemption applicant. If the first accepted license application for a project was filed by a
qualified exemption applicant, the applicant may request that its license application be treated initially as an application for exemption from licensing
by so notifying the Commission in
writing and, unless only rights to use
or occupy Federal lands would be necessary to develop and operate the
project, by submitting documentary
evidence showing that the applicant
holds the real property interests required under § 4.31. Such notice and
documentation must be submitted not
later than the last date for filing protests or motions to intervene prescribed in the public notice issued for
its license application under § 4.32(d)(2).
(e) Priority of exemption applicant’s
earlier permit or license application. Any
accepted preliminary permit or license
application submitted by a person who
later applies for exemption of the
project from licensing will retain its
validity and priority under this subpart until the preliminary permit or license application is withdrawn or the
project is exempted from licensing.

order of the Commission. In all other
cases the hearings will be conducted by
notice and comment procedures.
(b) Notice and comment hearings. All
comments (including mandatory and
recommended terms and conditions or
prescriptions) on an application for exemption or license must be filed with
the Commission no later than 60 days
after issuance by the Commission of
public notice declaring that the application is ready for environmental analysis. All reply comments must be filed
within 105 days of that notice. All comments and reply comments and all
other filings described in this section
must be served on all persons listed in
the service list prepared by the Commission, in accordance with the requirements of § 385.2010 of this chapter.
If a party or interceder (as defined in
§ 385.2201 of this Chapter) submits any
written material to the Commission relating to the merits of an issue that
may affect the responsibilities of a particular resource agency, the party or
interceder must also serve a copy of
the submission on this resource agency. The Commission may allow for
longer comment or reply comment periods if appropriate. A commenter or
reply commenter may obtain an extension of time from the Commission only
upon a showing of good cause or extraordinary circumstances in accordance with § 385.2008 of this chapter.
Late-filed fish and wildlife recommendations will not be subject to
the requirements of paragraphs (e),
(f)(1)(ii), and (f)(3) of this section, and
late-filed terms and conditions or prescriptions will not be subject to the requirements of paragraphs (f)(1)(iv),
(f)(1)(v), and (f)(2) of this section. Latefiled fish and wildlife recommendations, terms and conditions, or prescriptions will be considered by the
Commission under section 10(a) of the
Federal Power Act if such consideration would not delay or disrupt the
proceeding.
(1) Agencies responsible for mandatory
terms and conditions and presentations.
Any agency responsible for mandatory
terms and conditions or prescriptions
for licenses or exemptions, pursuant to
sections 4(e), 18, and 30(c) of the Federal Power Act and section 405(d) of the
Public Utility Regulatory Policies Act

[Order 413, 50 FR 11680, Mar. 25, 1985, as
amended by Order 499, 53 FR 27002, July 18,
1988; Order 2002, 68 FR 51116, Aug. 25, 2003;
Order 699, 72 FR 45324, Aug. 14, 2007]

§ 4.34 Hearings on applications; consultation on terms and conditions;
motions to intervene; alternative
procedures.

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.34

(a) Trial-type hearing. The Commission may order a trial-type hearing on
an application for a preliminary permit, a license, or an exemption from licensing upon either its own motion or
the motion of any interested party of
record. Any trial-type hearing will be
limited to the issues prescribed by

85

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00095

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.34

18 CFR Ch. I (4–1–17 Edition)
(4) Submittal of modified recommendations, terms and conditions or prescriptions. (i) If the information and analysis (including reasonable alternatives)
presented in a draft environmental document, issued for comment by the
Commission, indicate a need to modify
the recommendations or terms and
conditions or prescriptions previously
submitted to the Commission pursuant
to paragraphs (b)(1), (b)(2), or (b)(3) of
this section, the agency, Indian tribe,
or member of the public must file with
the Commission any modified recommendations or terms and conditions
or prescriptions on the proposed
project (and reasonable alternatives)
no later than the due date for comments on the draft environmental impact statement. Modified recommendations or terms and conditions or prescriptions must be clearly distinguished from comments on the draft
document.
(ii) If an applicant files an amendment to its application that would materially change the project’s proposed
plans of development, as provided in
§ 4.35, an agency, Indian tribe or member of the public may modify the recommendations or terms and conditions
or prescriptions it previously submitted to the Commission pursuant to
paragraphs (b)(1), (b)(2), or (b)(3) of this
section no later than the due date specified by the Commission for comments
on the amendment.
(5)(i) With regard to certification requirements for a license applicant
under section 401(a)(1) of the Federal
Water Pollution Control Act (Clean
Water Act), an applicant shall file
within 60 days from the date of
issuance of the notice of ready for environmental analysis:
(A) A copy of the water quality certification;
(B) A copy of the request for certification, including proof of the date on
which the certifying agency received
the request; or
(C) Evidence of waiver of water quality certification as described in paragraph (b)(5)(ii) of this section.
(ii) In the case of an application process using the alternative procedures of
paragraph 4.34(i), the filing requirement of paragraph (b)(5)(i) shall apply

of l978, as amended, must provide these
terms and conditions or prescriptions
in its initial comments filed with the
Commission pursuant to paragraph (b)
of this section. In those comments, the
agency must specifically identify and
explain the mandatory terms and conditions or prescriptions and their evidentiary and legal basis. In the case of
an application prepared other than pursuant to part 5 of this chapter, if ongoing agency proceedings to determine
the terms and conditions or prescriptions are not completed by the date
specified, the agency must submit to
the Commission by the due date:
(i) Preliminary terms and conditions
or prescriptions and a schedule showing the status of the agency proceedings and when the terms and conditions or prescriptions are expected to
become final; or
(ii) A statement waiving the agency’s
right to file the terms and conditions
or prescriptions or indicating the agency does not intend to file terms and
conditions or prescriptions.
(2) Fish and Wildlife agencies and Indian tribes. All fish and wildlife agencies must set forth any recommended
terms and conditions for the protection, mitigation of damages to, or enhancement of fish and wildlife, pursuant to the Fish and Wildlife Coordination Act and section 10(j) of the Federal Power Act, in their initial comments filed with the Commission by
the date specified in paragraph (b) of
this section. All Indian tribes must
submit recommendations (including
fish and wildlife recommendations) by
the same date. In those comments, a
fish and wildlife agency or Indian tribe
must discuss its understanding of the
resource issues presented by the proposed facilities and the evidentiary
basis for the recommended terms and
conditions.
(3) Other Government agencies and
members of the public. Resource agencies, other governmental units, and
members of the public must file their
recommendations in their initial comments by the date specified in paragraph (b) of this section. The comments must clearly identify all recommendations and present their evidentiary basis.

86

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00096

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
upon issuance of notice the Commission has accepted the application as
provided for in paragraph 4.32(d) of this
part.
(iii) A certifying agency is deemed to
have waived the certification requirements of section 401(a)(1) of the Clean
Water Act if the certifying agency has
not denied or granted certification by
one year after the date the certifying
agency received a written request for
certification. If a certifying agency denies certification, the applicant must
file a copy of the denial within 30 days
after the applicant received it.
(c) Additional procedures. If necessary
or appropriate the Commission may require additional procedures (e.g., a prehearing conference, further notice and
comment on specific issues or oral argument). A party may request additional procedures in a motion that
clearly and specifically sets forth the
procedures requested and the basis for
the request. Replies to such requests
may be filed within 15 days of the request.
(d) Consultation procedures. Pursuant
to the Federal Power Act and the Public Utility Regulatory Policies Act of
1978, as amended, the Commission will
coordinate as appropriate with other
government agencies responsible for
mandatory terms and conditions for
exemptions and licenses for hydropower projects. Pursuant to the Federal Power Act and the Fish and Wildlife Coordination Act, the Commission
will consult with fish and wildlife agencies concerning the impact of a hydropower proposal on fish and wildlife and
appropriate terms and conditions for license to adequately and equitably protect, mitigate damages to, and enhance
fish and wildlife (including related
spawning grounds and habitat). Pursuant to the Federal Power Act and the
Endangered Species Act, the Commission will consult with the U.S. Fish
and Wildlife Service or the National
Marine Fisheries Service, as appropriate, concerning the impact of a hydropower proposal on endangered or
threatened species and their critical
habitat.
(e) Consultation on recommended fish
and wildlife conditions; Section 10(j) process. (1) In connection with its environmental review of an application for li-

§ 4.34
cense, the Commission will analyze all
terms and conditions timely recommended by fish and wildlife agencies
pursuant to the Fish and Wildlife Coordination Act for the protection, mitigation of damages to, and enhancement
of fish and wildlife (including related
spawning grounds and habitat) affected
by the development, operation, and
management of the proposed project.
Submission of such recommendations
marks the beginning of the process
under section 10(j) of the Federal
Power Act.
(2) The agency must specifically
identify and explain the recommendations and the relevant resource goals
and objectives and their evidentiary or
legal basis. The Commission may seek
clarification of any recommendation
from the appropriate fish and wildlife
agency. If the Commission’s request for
clarification is communicated in writing, copies of the request will be sent
by the Commission to all parties, affected resource agencies, and Indian
tribes, which may file a response to the
request for clarification within the
time period specified by the Commission. If the Commission believes any
fish and wildlife recommendation may
be inconsistent with the Federal Power
Act or other applicable law, the Commission will make a preliminary determination of inconsistency in the draft
environmental document or, if none,
the environmental assessment. The
preliminary determination, for any
recommendations believed to be inconsistent, shall include an explanation
why the Commission believes the recommendation is inconsistent with the
Federal Power Act or other applicable
law, including any supporting analysis
and conclusions, and an explanation of
how the measures recommended in the
environmental document would adequately and equitably protect, mitigate damages to, and enhance, fish and
wildlife (including related spawning
grounds and habitat) affected by the
development, operation, and management of the project.
(3) Any party, affected resource agency, or Indian tribe may file comments
in response to the preliminary determination of inconsistency, including
any modified recommendations, within
the time frame allotted for comments

87

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00097

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.34

18 CFR Ch. I (4–1–17 Edition)

on the draft environmental document
or, if none, the time frame for comments on the environmental analysis.
In this filing, the fish and wildlife
agency concerned may also request a
meeting, telephone or video conference, or other additional procedure
to attempt to resolve any preliminary
determination of inconsistency.
(4) The Commission shall attempt,
with the agencies, to reach a mutually
acceptable resolution of any such inconsistency, giving due weight to the
recommendations, expertise, and statutory responsibilities of the fish and
wildlife agency. If the Commission decides, or an affected resource agency
requests, the Commission will conduct
a meeting, telephone, or video conference, or other procedures to address
issues raised by its preliminary determination of inconsistency and comments thereon. The Commission will
give at least 15 days’ advance notice to
each party, affected resource agency,
or Indian tribe, which may participate
in the meeting or conference. Any
meeting, conference, or additional procedure to address these issues will be
scheduled to take place within 90 days
of the date the Commission issues a
preliminary determination of inconsistency. The Commission will prepare
a written summary of any meeting
held under this subsection to discuss
section 10(j) issues, including any proposed resolutions and supporting analysis, and a copy of the summary will be
sent to all parties, affected resource
agencies, and Indian tribes.
(5) The section 10(j) process ends
when the Commission issues an order
granting or denying the license application in question. If, after attempting
to resolve inconsistencies between the
fish and wildlife recommendations of a
fish and wildlife agency and the purposes and requirements of the Federal
Power Act or other applicable law, the
Commission does not adopt in whole or
in part a fish and wildlife recommendation of a fish and wildlife agency, the
Commission will publish the findings
and statements required by section
10(j)(2) of the Federal Power Act.
(f) Licenses and exemption conditions
and required findings—(1) License conditions. (i) All licenses shall be issued on
the conditions specified in section 10 of

the Federal Power Act and such other
conditions as the Commission determines are lawful and in the public interest.
(ii) Subject to paragraph (f)(3) of this
section, fish and wildlife conditions
shall be based on recommendations
timely received from the fish and wildlife agencies pursuant to the Fish and
Wildlife Coordination Act.
(iii) The Commission will consider
the timely recommendations of resource agencies, other governmental
units, and members of the public, and
the timely recommendations (including fish and wildlife recommendations)
of Indian tribes affected by the project.
(iv) Licenses for a project located
within any Federal reservation shall be
issued only after the findings required
by, and subject to any conditions that
may be timely received pursuant to,
section 4(e) of the Federal Power Act.
(v) The Commission will require the
construction, maintenance, and operation by a licensee at its own expense
of such fishways as may be timely prescribed by the Secretary of Commerce
or the Secretary of the Interior, as appropriate, pursuant to section 18 of the
Federal Power Act.
(2) Exemption conditions. Any exemption from licensing issued for conduit
facilities, as provided in section 30(b) of
the Federal Power Act, or for small hydroelectric power projects having a
proposed installed capacity of 10,000
kilowatts or less, as provided in section
405(d) of the Public Utility Regulatory
Policies Act of 1978, as amended, shall
include such terms and conditions as
the fish and wildlife agencies may
timely determine are appropriate to
carry out the responsibilities specified
in section 30(c) of the Federal Power
Act.
(3) Required findings. If, after attempting to resolve inconsistencies between the fish and wildlife recommendations of a fish and wildlife
agency and the purposes and requirements of the Federal Power Act or
other applicable law, the Commission
does not adopt in whole or in part a
fish and wildlife recommendation of a
fish and wildlife agency, the Commission will publish the findings and statements required by section 10(j)(2) of the
Federal Power Act.

88

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00098

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(g) Application. The provisions of
paragraphs (b) through (d) and (f) of
this section apply only to applications
for license or exemption; paragraph (e)
applies only to applications for license.
(h) Unless otherwise provided by
statute, regulation or order, all filings
in hydropower hearings, except those
conducted by trial-type procedures,
shall conform to the requirements of
subpart T of part 385 of this chapter.
(i) Alternative procedures. (1) An applicant may submit to the Commission a
request to approve the use of alternative procedures for pre-filing consultation and the filing and processing
of an application for an original, new
or subsequent hydropower license or
exemption that is subject to § 4.38 or
§ 16.8 of this chapter, or for the amendment of a license that is subject to the
provisions of § 4.38.
(2) The goal of such alternative procedures shall be to:
(i) Combine into a single process the
pre-filing consultation process, the environmental review process under the
National Environmental Policy Act
and administrative processes associated with the Clean Water Act and
other statutes;
(ii) Facilitate greater participation
by and improve communication among
the potential applicant, resource agencies, Indian tribes, the public and Commission staff in a flexible pre-filing
consultation process tailored to the
circumstances of each case;
(iii) Allow for the preparation of a
preliminary draft environmental assessment by an applicant or its contractor or consultant, or of a preliminary draft environmental impact statement by a contractor or consultant
chosen by the Commission and funded
by the applicant;
(iv) Promote cooperative efforts by
the potential applicant and interested
entities and encourage them to share
information about resource impacts
and mitigation and enhancement proposals and to narrow any areas of disagreement and reach agreement or settlement of the issues raised by the hydropower proposal; and
(v) Facilitate an orderly and expeditious review of an agreement or offer of
settlement of an application for a hy-

§ 4.34
dropower license, exemption or amendment to a license.
(3) A potential hydropower applicant
requesting the use of alternative procedures must:
(i) Demonstrate that a reasonable effort has been made to contact all resource agencies, Indian tribes, citizens’
groups, and others affected by the applicant’s proposal, and that a consensus exists that the use of alternative procedures is appropriate under
the circumstances;
(ii) Submit a communications protocol, supported by interested entities,
governing how the applicant and other
participants in the pre-filing consultation process, including the Commission
staff, may communicate with each
other regarding the merits of the applicant’s proposal and proposals and recommendations of interested entities;
and
(iii) Serve a copy of the request on all
affected resource agencies and Indian
tribes and on all entities contacted by
the applicant that have expressed an
interest in the alternative pre-filing
consultation process.
(4) As appropriate under the circumstances of the case, the alternative
procedures should include provisions
for:
(i) Distribution of an initial information package and conduct of an initial
information meeting open to the public;
(ii) The cooperative scoping of environmental issues (including necessary
scientific studies), the analysis of completed studies and any further scoping;
and
(iii) The preparation of a preliminary
draft environmental assessment or preliminary draft environmental impact
statement and related application.
(5)(i) If the potential applicant’s request to use the alternative procedures
is filed prior to July 23, 2005, the Commission will give public notice in the
FEDERAL REGISTER inviting comment
on the applicant’s request to use alternative procedures. The Commission
will consider any such comments in determining whether to grant or deny the
applicant’s request to use alternative
procedures. Such a decision will not be
subject to interlocutory rehearing or
appeal.

89

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00099

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.34

18 CFR Ch. I (4–1–17 Edition)

(ii) If the potential applicant’s request to use the alternative procedures
is filed on or after July 23, 2005 and
prior to the deadline date for filing a
notification of intent to seek a new or
subsequent license required by § 5.5 of
this chapter, the Commission will give
public notice and invite comments as
provided for in paragraph (i)(5)(i) of
this section. Commission approval of
the potential applicant’s request to use
the alternative procedures prior to the
deadline date for filing of the notification of intent does not waive the potential applicant’s obligation to file the
notification of intent required by § 5.5
of this chapter and Pre-Application
Document required by § 5.6 of this chapter.
(iii) If the potential applicant’s request to use the alternative procedures
is filed on or after July 23, 2005 and is
at the same time as the notification of
intent to seek a new or subsequent license required by § 5.5, the public notice and comment procedures of part 5
of this chapter shall apply.
(6) If the Commission accepts the use
of alternative procedures, the following
provisions will apply.
(i) To the extent feasible under the
circumstances of the proceeding, the
Commission will give notice in the
FEDERAL REGISTER and the applicant
will give notice, in a local newspaper of
general circulation in the county or
counties in which the project is located, of the initial information meeting and the scoping of environmental
issues. The applicant will also send notice of these stages to a mailing list approved by the Commission.
(ii) Every six months, the applicant
shall file with the Commission a report
summarizing the progress made in the
pre-filing consultation process and referencing the applicant’s public file,
where additional information on that
process can be obtained. Summaries or
minutes of meetings held in the process
may be used to satisfy this filing requirement. The applicant must also
file with the Commission a copy of its
initial information package, each
scoping document, and the preliminary
draft environmental review document.
All filings with the Commission under
this section must include the number
of copies required by paragraph (h) of

this section, and the applicant shall
send a copy of these filings to each participant that requests a copy.
(iii) At a suitable location, the applicant will maintain a public file of all
relevant documents, including scientific studies, correspondence, and
minutes or summaries of meetings,
compiled during the pre-filing consultation process. The Commission will
maintain a public file of the applicant’s initial information package,
scoping documents, periodic reports on
the pre-filing consultation process, and
the preliminary draft environmental
review document.
(iv) An applicant authorized to use
alternative procedures may substitute
a preliminary draft environmental review document and additional material
specified by the Commission instead of
Exhibit E to its application and need
not supply additional documentation of
the pre-filing consultation process. The
applicant will file with the Commission
the results of any studies conducted or
other documentation as directed by the
Commission, either on its own motion
or in response to a motion by a party
to the licensing or exemption proceeding.
(v) Pursuant to the procedures approved, the participants will set reasonable deadlines requiring all resource agencies, Indian tribes, citizens’
groups, and interested persons to submit to the applicant requests for scientific studies during the pre-filing
consultation process, and additional requests for studies may be made to the
Commission after the filing of the application only for good cause shown.
(vi) During the pre-filing process the
Commission may require the filing of
preliminary fish and wildlife recommendations, prescriptions, mandatory conditions, and comments, to be
submitted in final form after the filing
of the application; no notice that the
application is ready for environmental
analysis need be given by the Commission after the filing of an application
pursuant to these procedures.
(vii) Any potential applicant, resource agency, Indian tribe, citizens’
group, or other entity participating in
the alternative pre-filing consultation
process may file a request with the

90

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00100

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission

lpowell on DSK54DXVN1OFR with $$_JOB

Commission to resolve a dispute concerning the alternative process (including a dispute over required studies),
but only after reasonable efforts have
been made to resolve the dispute with
other participants in the process. No
such request shall be accepted for filing unless the entity submitting it certifies that it has been served on all
other participants. The request must
document what efforts have been made
to resolve the dispute.
(7) If the potential applicant or any
resource agency, Indian tribe, citizens’
group, or other entity participating in
the alternative pre-filing consultation
process can show that it has cooperated in the process but a consensus
supporting the use of the process no
longer exists and that continued use of
the alternative process will not be productive, the participant may petition
the Commission for an order directing
the use by the potential applicant of
appropriate procedures to complete its
application. No such request shall be
accepted for filing unless the entity
submitting it certifies that it has been
served on all other participants. The
request must recommend specific procedures that are appropriate under the
circumstances.
(8) The Commission may participate
in the pre-filing consultation process
and assist in the integration of this
process and the environmental review
process in any case, including appropriate cases where the applicant, contractor, or consultant funded by the
applicant is not preparing a preliminary draft environmental assessment
or preliminary draft environmental impact statement, but where staff assistance is available and could expedite
the proceeding.
(9) If this section requires an applicant to reveal Critical Energy Infrastructure Information (CEII), as defined by § 388.113(c) of this chapter, to
any person, the applicant shall follow
the procedures set out in § 4.32(k).

§ 4.35
§ 4.35 Amendment of application; date
of acceptance.
(a) General rule. Except as provided in
paragraph (d) of this section, if an applicant amends its filed application as
described in paragraph (b) of this section, the date of acceptance of the application under § 4.32(f) is the date on
which the amendment to the application was filed.
(b) Paragraph (a) of this section applies if an applicant:
(1) Amends its filed license or preliminary permit application in order to
change the status or identity of the applicant or to materially amend the proposed plans of development; or
(2) Amends its filed application for
exemption from licensing in order to
materially amend the proposed plans of
development, or
(3) Amends its filed application in
order to change its statement of intent
of whether or not it will seek benefits
under section 210 of PURPA, as originally filed under § 4.32(c)(1).
(c) An application amended under
paragraph (a) is a new filing for:
(1) The purpose of determining its
timeliness under § 4.36 of this part;
(2) Disposing of competing applications under § 4.37; and
(3) Reissuing public notice of the application under § 4.32(d)(2).
(d) If an application is amended
under paragraph (a) of this section, the
Commission will rescind any acceptance letter already issued for the application.
(e) Exceptions. This section does not
apply to:
(1) Any corrections of deficiencies
made pursuant to § 4.32(e)(1);
(2) Any amendments made pursuant
to § 4.37(b)(4) by a State or a municipality to its proposed plans of development to make them as well adapted as
the proposed plans of an applicant that
is not a state or a municipality;
(3) Any amendments made pursuant
to § 4.37(c)(2) by a priority applicant to
its proposed plans of development to
make them as well adapted as the proposed plans of an applicant that is not
a priority applicant;
(4) Any amendments made by a license or an exemption applicant to its

[Order 533, 56 FR 23148, May 20, 1991, as
amended at 56 FR 61155, Dec. 2, 1991; Order
540, 57 FR 21737, May 22, 1992; Order 596, 62 FR
59810, Nov. 5, 1997; Order 2002, 68 FR 51116,
Aug. 25, 2003; Order 643, 68 FR 52094, Sept. 2,
2003; 68 FR 61742, Oct. 30, 2003; Order 756, 77
FR 4893, Feb. 1, 2012; Order 800, 79 FR 59110,
Oct. 1, 2014]

91

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00101

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.36

18 CFR Ch. I (4–1–17 Edition)

proposed plans of development to satisfy requests of resource agencies or Indian tribes submitted after an applicant has consulted under § 4.38 or concerns of the Commission; and
(5)(i) Any license or exemption applicant with a project located at a new
dam or diversion who is seeking
PURPA benefits and who:
(A) Has filed an adverse environmental effects (AEE) petition pursuant
to § 292.211 of this chapter; and
(B) Has proposed measures to mitigate the adverse environmental effects
which the Commission, in its initial determination on the AEE petition, stated the project will have.
(ii) This exception does not protect
any proposed mitigative measures that
the Commission finds are a pretext to
avoid the consequences of materially
amending the application or are outside the scope of mitigating the adverse environmental effects.
(f) Definitions. (1) For the purposes of
this section, a material amendment to
plans of development proposed in an
application for a license or exemption
from licensing means any fundamental
and significant change, including but
not limited to:
(i) A change in the installed capacity,
or the number or location of any generating units of the proposed project if
the change would significantly modify
the flow regime associated with the
project;
(ii) A material change in the location, size, or composition of the dam,
the location of the powerhouse, or the
size and elevation of the reservoir if
the change would:
(A) Enlarge, reduce, or relocate the
area of the body of water that would lie
between the farthest reach of the proposed impoundment and the point of
discharge from the powerhouse; or
(B) Cause adverse environmental impacts not previously discussed in the
original application; or
(iii) A change in the number of discrete units of development to be included within the project boundary.
(2) For purposes of this section, a material amendment to plans of development proposed in an application for a
preliminary permit means a material
change in the location of the powerhouse or the size and elevation of the

reservoir if the change would enlarge,
reduce, or relocate the area of the body
of water that would lie between the
farthest reach of the proposed impoundment and the point of discharge
from the powerhouse.
(3) For purposes of this section, a
change in the status of an applicant
means:
(i) The acquisition or loss of preference as a state or a municipality
under section 7(a) of the Federal Power
Act; or
(ii) The loss of priority as a permittee under section 5 of the Federal
Power Act.
(4) For purposes of this section, a
change in the identity of an applicant
means a change that either singly, or
together with previous amendments,
causes a total substitution of all the
original applicants in a permit or a license application.
[Order 413, 50 FR 11680, Mar. 25, 1985, as
amended by Order 499, 53 FR 27002, July 18,
1988; Order 533, 56 FR 23149, May 20, 1991;
Order 2002, 68 FR 51115, Aug. 25, 2003; Order
756, 77 FR 4893, Feb. 1, 2012]

§ 4.36 Competing applications: deadlines for filing; notices of intent;
comparisons of plans of development.
The public notice of an initial preliminary permit application or an initial development application shall prescribe the deadline for filing protests
and motions to intervene in that proceeding (the prescribed intervention
deadline).
(a) Deadlines for filing applications in
competition with an initial preliminary
permit application. (1) Any preliminary
permit application or any development
application not filed pursuant to a notice of intent must be submitted for filing in competition with an initial preliminary permit application not later
than the prescribed intervention deadline.
(2) Any preliminary permit application filed pursuant to a notice of intent
must be submitted for filing in competition with an initial preliminary
permit application not later than 30
days after the prescribed intervention
deadline.
(3) Any development application filed
pursuant to a notice of intent must be

92

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00102

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
submitted for filing in competition
with an initial preliminary permit application not later than 120 days after
the prescribed intervention deadline.
(b) Deadlines for filing applications in
competition with an initial development
application. (1) Any development application not filed pursuant to a notice of
intent must be submitted for filing in
competition with an initial development application not later than the
prescribed intervention deadline.
(2) Any development application filed
pursuant to a notice of intent must be
submitted for filing in competition
with an initial development application not later than 120 days after the
prescribed intervention deadline.
(3) If the Commission has accepted an
application for exemption of a project
from licensing and the application has
not yet been granted or denied, the applicant for exemption may submit a license application for the project if it is
a qualified license applicant. The pending application for exemption from licensing will be considered withdrawn
as of the date the Commission accepts
the license application for filing. If a
license application is accepted for filing under this provision, any qualified
license applicant may submit a competing license application not later
than the prescribed intervention deadline set for the license application.
(4) Any preliminary permit application must be submitted for filing in
competition with an initial development application not later than the
deadlines prescribed in paragraphs
(a)(1) and (a)(2) for the submission of
preliminary permit applications filed
in competition with an initial preliminary permit application.
(c) Notices of intent. (1) Any notice of
intent to file an application in competition with an initial preliminary
permit or an initial development application must be submitted for filing not
later than the prescribed intervention
deadline for the initial application.
(2) A notice of intent must include:
(i) The exact name, business address,
and telephone number of the prospective applicant; and
(ii) An unequivocal statement of intent to submit a preliminary permit
application or a development applica-

§ 4.37
tion (specify which type of application).
(d) Requirements for competing applications. (1) Any competing application
must:
(i) Conform to all requirements for
filing an initial application; and
(ii) Include proof of service of a copy
of the competing application on the
person(s) designated in the public notice of the initial application for service of pleadings, documents, or communications concerning the initial application.
(2) Comparisons of plans of development. (i) After the deadline for filing
applications in competition against an
initial development application has expired, the Commission will notify each
license and exemption applicant of the
identity of the other applicants.
(ii) Not later than 14 days after the
Commission serves the notification described in paragraph (d)(2)(i) of this
section, if a license or exemption applicant has not already done so, it must
serve a copy of its application on each
of the other license and exemption applicants.
(iii) Not later than 60 days after the
Commission serves the notification described in paragraph (d)(2)(i) of this
section, each license and exemption applicant must file with the Commission
a detailed and complete statement of
how its plans are as well or better
adapted than are the plans of each of
the other license and exemption applicants to develop, conserve, and utilize
in the public interest the water resources of the region. These statements
should be supported by any technical
analyses that the applicant deems appropriate to support its proposed plans
of development.
[Order 413, 50 FR 11680, Mar. 25, 1985; 50 FR
23947, June 7, 1985]

§ 4.37 Rules of preference among competing applications.
Except as provided in § 4.33(e), the
Commission will select among competing applications on the following
bases:
(a) If an accepted application for a
preliminary permit and an accepted application for a license propose project
works that would develop, conserve,
and utilize, in whole or in part, the

93

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00103

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.37

18 CFR Ch. I (4–1–17 Edition)

same water resources, and the applicant for a license has demonstrated its
ability to carry out its plans, the Commission will favor the license applicant
unless the permit applicant substantiates in its filed application that its
plans are better adapted to develop,
conserve, and utilize in the public interest the water resources of the region.
(b) If two or more applications for
preliminary permits or two or more applications for licenses (not including
applications for a new license under
section 15 of the Federal Power Act)
are filed by applicants for project
works that would develop, conserve,
and utilize, in whole or in part, the
same water resources, and if none of
the applicants is a preliminary permittee whose application for license
was accepted for filing within the permit period, the Commission will select
between or among the applicants on
the following bases:
(1) If both or neither of two applicants are either a municipality or a
state, the Commission will favor the
applicant whose plans are better adapted to develop, conserve, and utilize in
the public interest the water resources
of the region, taking into consideration
the ability of each applicant to carry
out its plans.
(2) If both of two applicants are either a municipality or a state, or neither of them is a municipality or a
state, and the plans of the applicants
are equally well adapted to develop,
conserve, and utilize in the public interest the water resources of the region, taking into consideration the
ability of each applicant to carry out
its plans, the Commission will favor
the applicant with the earliest application acceptance date.
(3) If one of two applicants is a municipality or a state, and the other is
not, and the plans of the municipality
or a state are at least as well adapted
to develop, conserve, and utilize in the
public interest the water resources of
the region, the Commission will favor
the municipality or state.
(4) If one of two applicant is a municipality or a state, and the other is
not, and the plans of the applicant who
is not a municipality or a state are better adapted to develop, conserve, and

utilize in the public interest the water
resources of the region, the Commission will inform the municipality or
state of the specific reasons why its
plans are not as well adapted and afford a reasonable period of time for the
municipality or state to render its
plans at least as well adapted as the
other plans. If the plans of the municipality or state are rendered at least as
well adapted within the time allowed,
the Commission will favor the municipality or state. If the plans are not rendered at least as well adapted within
the time allowed, the Commission will
favor the other applicant.
(c) If two or more applications for licenses are filed for project works which
would develop, conserve, and utilize, in
whole or in part, the same water resources, and one of the applicants was
a preliminary permittee whose application was accepted for filing within the
permit period (priority applicant), the
Commission will select between or
among the applicants on the following
bases:
(1) If the plans of the priority applicant are at least as well adapted as the
plans of each other applicant to develop, conserve, and utilize in the public interest the water resources of the
region, taking into consideration the
ability of each applicant to carry out
its plans, the Commission will favor
the priority applicant.
(2) If the plans of an applicant who is
not a priority applicant are better
adapted than the plans of the priority
applicant to develop, conserve, and utilize in the public interest the water resources of the region, taking into consideration the ability of each applicant
to carry out its plans, the Commission
will inform the priority applicant of
the specific reasons why its plans are
not as well adapted and afford a reasonable period of time for the priority
applicant to render its plans at least as
well adapted as the other plans. If the
plans of the priority applicant are rendered at least as well adapted within
the time allowed, then the Commission
will favor the priority applicant. If the
plans of the priority applicant are not
rendered as well adapted within the
time allowed, the criteria specified in
paragraph (b) will govern.

94

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00104

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission

consult with the relevant Federal,
State, and interstate resource agencies, including the National Marine
Fisheries Service, the United States
Fish and Wildlife Service, the National
Park Service, the United States Environmental Protection Agency, the Federal agency administering any federal
lands or facilities utilized or occupied
by the project, the appropriate State
fish and wildlife agencies, the appropriate State water resource management agencies, the certifying agency
under section 401(a)(1) of the Federal
Water Pollution Control Act (Clean
Water Act), 33 U.S.C. § 1341(c)(1), and
any Indian tribe that may be affected
by the proposed project.
(2) Each requirement in this section
to contact or consult with resource
agencies or Indian tribes shall be construed to require as well that the potential applicant contact or consult
with members of the public.
(3) If a potential applicant for an
original license commences first stage
pre-filing consultation on or after July
23, 2005 it shall file a notification of intent to file a license application pursuant to § 5.5 and a pre-application document pursuant to the provisions of
§ 5.6.
(4) The Director of the Office of Energy Projects will, upon request, provide a list of known appropriate Federal, state, and interstate resource
agencies, Indian tribes, and local, regional, or national non-governmental
organizations likely to be interested in
any license application proceeding.
(5) An applicant for an exemption
from licensing or an applicant for a license seeking benefits under section
210 of the Public Utility Regulatory
Policies Act, as amended, for a project
that would be located at a new dam or
diversion must, in addition to meeting
the requirements of this section, comply with the consultation requirements
in § 4.301.
(6) The pre-filing consultation requirements of this section apply only
to an application for:
(i) Original license;
(ii) Exemption;
(iii) Amendment to an application for
original license or exemption that materially amends the proposed plans of
development as defined in § 4.35(f)(1);

(3) The criteria specified in paragraph (b) will govern selection among
applicants other than the priority applicant.
(d) With respect to a project for
which an application for an exemption
from licensing has been accepted for
filing, the Commission will select
among competing applications on the
following bases:
(1) If an accepted application for a
preliminary permit and an accepted application for exemption from licensing
propose to develop mutually exclusive
small hydroelectric power projects, the
Commission will favor the applicant
whose substantiated plans in the application received by the Commission are
better adapted to develop, conserve,
and utilize in the public interest the
water resources of the region. If the
substantiated plans are equally well
adapted, the Commission will favor the
application for exemption from licensing.
(2) If an application for a license and
an application for exemption from licensing, or two or more applications
for exemption from licensing are each
accepted for filing and each proposes to
develop a mutually exclusive project,
the Commission will favor the applicant whose plans are better adapted to
develop, conserve, and utilize in the
public interest the water resources of
the region. If the plans are equally well
adapted, the Commission will favor the
applicant with the earliest application
acceptance date.
(e) A municipal applicant must provide evidence that the municipality is
competent under applicable state and
local laws to engage in the business of
developing, transmitting, utilizing, or
distributing power, or such applicant
will be considered a non-municipal applicant for the purpose of determining
the disposition of competing applications.
[Order 413, 50 FR 11682, Mar. 25, 1985, as
amended by Order 2002, 68 FR 51117, Aug. 25,
2003]

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.38

§ 4.38 Consultation requirements.
(a) Requirement to consult. (1) Before
it files any application for an original
license or an exemption from licensing
that is described in paragraph (a)(6) of
this section, a potential applicant must

95

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00105

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.38

18 CFR Ch. I (4–1–17 Edition)

(iv) Amendment to an existing license that would increase the capacity
of the project as defined in § 4.201(b); or
(v) Amendment to an existing license
that would not increase the capacity of
the project as defined in § 4.201(b), but
that would involve:
(A) The construction of a new dam or
diversion in a location where there is
no existing dam or diversion;
(B) Any repair, modification, or reconstruction of an existing dam that
would result in a significant change in
the normal maximum surface area or
elevation of an existing impoundment;
or
(C) The addition of new water power
turbines other than to replace existing
turbines.
(7) Before it files a non-capacity related
amendment
as
defined
in
§ 4.201(c), an applicant must consult
with the resource agencies and Indian
tribes listed in paragraph (a)(1) of this
section to the extent that the proposed
amendment would affect the interests
of the agencies or tribes. When consultation is necessary, the applicant
must, at a minimum, provide the resource agencies and Indian tribes with
copies of the draft application and
allow them at least 60 days to comment on the proposed amendment. The
amendment as filed with the Commission must summarize the consultation
with the resource agencies and Indian
tribes on the proposed amendment,
propose reasonable protection, mitigation, or enhancement measures to respond to impacts identified as being
caused by the proposed amendment,
and respond to any objections, recommendations, or conditions submitted by the agencies or Indian tribes.
Copies of all written correspondence
between the applicant, the agencies,
and the tribes must be attached to the
application.
(8) This section does not apply to any
application for a new license, a
nonpower license, a subsequent license,
or surrender of a license subject to sections 14 and 15 of the Federal Power
Act.
(9) If a potential applicant has any
doubt as to whether a particular application or amendment would be subject
to the pre-filing consultation requirements of this section or if a waiver of

the pre-filing requirements would be
appropriate, the applicant may file a
written request for clarification or
waiver with the Director, Office of Energy Projects.
(b) First stage of consultation. (1) A potential applicant for an original license
that commences pre-filing consultation
on or after July 23, 2005 must, at the
time it files its notification of intent
to seek a license pursuant to § 5.5 of
this chapter and a pre-application document pursuant to § 5.6 of this chapter
and, at the same time, provide a copy
of the pre-application document to the
entities specified in § 5.6(a) of this
chapter.
(2) A potential applicant for an original license that commences pre-filing
consultation under this part prior to
July 23, 2005 or for an exemption must
promptly contact each of the appropriate resource agencies, affected Indian tribes, and members of the public
likely to be interested in the proceeding; provide them with a description of the proposed project and supporting information; and confer with
them on project design, the impact of
the proposed project (including a description of any existing facilities,
their operation, and any proposed
changes), reasonable hydropower alternatives, and what studies the applicant
should conduct. The potential applicant must provide to the resource
agencies, Indian tribes and the Commission the following information:
(i) Detailed maps showing project
boundaries, if any, proper land descriptions of the entire project area by
township, range, and section, as well as
by state, county, river, river mile, and
closest town, and also showing the specific location of all proposed project facilities, including roads, transmission
lines, and any other appurtenant facilities;
(ii) A general engineering design of
the proposed project, with a description of any proposed diversion of a
stream through a canal or penstock;
(iii) A summary of the proposed operational mode of the project;
(iv) Identification of the environment
to be affected, the significant resources
present, and the applicant’s proposed
environmental protection, mitigation,

96

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00106

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
and enhancement plans, to the extent
known at that time;
(v) Streamflow and water regime information, including drainage area,
natural flow periodicity, monthly flow
rates and durations, mean flow figures
illustrating the mean daily streamflow
curve for each month of the year at the
point of diversion or impoundment,
with location of the stream gauging
station, the method used to generate
the streamflow data provided, and copies of all records used to derive the
flow data used in the applicant’s engineering calculations;
(vi) (A) A statement (with a copy to
the Commission) of whether or not the
applicant will seek benefits under section 210 of PURPA by satisfying the requirements
for
qualifying
hydroelectric small power production facilities in § 292.203 of this chapter;
(B) If benefits under section 210 of
PURPA are sought, a statement on
whether or not the applicant believes
diversion (as that term is defined in
§ 292.202(p) of this chapter) and a request for the agencies’ view on that belief, if any;
(vii) Detailed descriptions of any proposed studies and the proposed methodologies to be employed; and
(viii) Any statement required by
§ 4.301(a) of this part.
(3) (i) A potential exemption applicant and a potential applicant for an
original license that commences prefiling consultation;
(A) On or after July 23, 2005 pursuant
to part 5 of this chapter and receives
approval from the Commission to use
the license application procedures of
part 4 of this chapter; or
(B) Elects to commence pre-filing
consultation under part 4 of this chapter prior to July 23, 2005; must:
(1) Hold a joint meeting at a convenient place and time, including an opportunity for a site visit, with all pertinent agencies, Indian tribes, and
members of the public to explain the
applicant’s proposal and its potential
environmental impact, to review the
information provided, and to discuss
the data to be obtained and studies to
be conducted by the potential applicant as part of the consultation process;

§ 4.38
(2) Consult with the resource agencies, Indian tribes and members of the
public on the scheduling and agenda of
the joint meeting; and
(3) No later than 15 days in advance
of the joint meeting, provide the Commission with written notice of the time
and place of the meeting and a written
agenda of the issues to be discussed at
the meeting.
(ii) The joint meeting must be held
no earlier than 30 days, but no later
than 60 days, from, as applicable;
(A) The date of the Commission’s approval of the potential applicant’s request to use the license application
procedures of this part pursuant to the
provisions of part 5 of this chapter; or
(B) The date of the potential applicant’s letter transmitting the information required by paragraph (b)(2) of this
section, in the case of a potential exemption applicant or a potential license applicant that commences prefiling consultation under this part
prior to July 23, 2005.
(4) Members of the public must be informed of and invited to attend the
joint meeting held pursuant to paragraph (b)(3) of this section by means of
the public notice provision published in
accordance with paragraph (g) of this
section. Members of the public attending the meeting are entitled to participate in the meeting and to express
their views regarding resource issues
that should be addressed in any application for license or exemption that
may be filed by the potential applicant. Attendance of the public at any
site visit held pursuant to paragraph
(b)(3) of this section will be at the discretion of the potential applicant. The
potential applicant must make either
audio recordings or written transcripts
of the joint meeting, and must promptly provide copies of these recordings or
transcripts to the Commission and,
upon request, to any resource agency,
Indian tribe, or member of the public.
(5) Not later than 60 days after the
joint meeting held under paragraph
(b)(3) of this Section (unless extended
within this time period by a resource
agency, Indian tribe, or members of the
public for an additional 60 days by
sending written notice to the applicant
and the Director of the Office of Energy Projects within the first 60 day

97

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00107

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.38

18 CFR Ch. I (4–1–17 Edition)

period, with an explanation of the basis
for the extension), each interested resource agency and Indian tribe must
provide a potential applicant with
written comments:
(i) Identifying its determination of
necessary studies to be performed or
the information to be provided by the
potential applicant;
(ii) Identifying the basis for its determination;
(iii) Discussing its understanding of
the resource issues and its goals and
objectives for these resources;
(iv) Explaining why each study methodology recommended by it is more appropriate than any other available
methodology alternatives, including
those identified by the potential applicant pursuant to paragraph (b)(2)(vii)
of this section;
(v) Documenting that the use of each
study methodology recommended by it
is a generally accepted practice; and
(vi) Explaining how the studies and
information requested will be useful to
the agency, Indian tribe, or member of
the public in furthering its resource
goals and objectives that are affected
by the proposed project.
(6)(i) If a potential applicant and a
resource agency or Indian tribe disagree as to any matter arising during
the first stage of consultation or as to
the need to conduct a study or gather
information referenced in paragraph
(c)(2) of this section, the potential applicant or resource agency or Indian
tribe may refer the dispute in writing
to the Director of the Office of Energy
Projects (Director) for resolution.
(ii) At the same time as the request
for dispute resolution is submitted to
the Director, the entity referring the
dispute must serve a copy of its written request for resolution on the disagreeing party and any affected resource agency or Indian tribe, which
may submit to the Director a written
response to the referral within 15 days
of the referral’s submittal to the Director.
(iii) Written referrals to the Director
and written responses thereto pursuant
to paragraphs (b)(6)(i) or (b)(6)(ii) of
this section must be filed with the
Commission in accordance with the
Commission’s Rules of Practice and
Procedure, and must indicate that they

are for the attention of the Director
pursuant to § 4.38(b)(6).
(iv) The Director will resolve the disputes by letter provided to the potential applicant and all affected resource
agencies and Indian tribes.
(v) If a potential applicant does not
refer a dispute regarding a request for
a potential applicant to obtain information or conduct studies (other than
a dispute regarding the information
specified in paragraph (b)(2) of this section), or a study to the Director under
paragraph (b)(6) of this section, or if a
potential applicant disagrees with the
Director’s resolution of a dispute regarding a request for information
(other than a dispute regarding the information specified in paragraph (b)(2)
of this section) or a study, and if the
potential applicant does not provide
the requested information or conduct
the requested study, the potential applicant must fully explain the basis for
its disagreement in its application.
(vi) Filing and acceptance of an application will not be delayed, and an
application will not be considered deficient or patently deficient pursuant to
§ 4.32(e)(1) or (e)(2) of this part, merely
because the application does not include a particular study or particular
information if the Director had previously
found,
under
paragraph
(b)(6)(iv) of this section, that each
study or information is unreasonable
or unnecessary for an informed decision by the Commission on the merits
of the application or use of the study
methodology requested is not a generally accepted practice.
(7) The first stage of consultation
ends when all participating agencies
and Indian tribes provide the written
comments required under paragraph
(b)(5) of this section or 60 days after
the joint meeting held under paragraph
(b)(3) of this section, whichever occurs
first, unless a resource agency or Indian tribe timely notifies the applicant
and the Director of Energy Projects of
its need for more time to provide written comments under paragraph (b)(5) of
this section, in which case the first
stage of consultation ends when all
participating agencies and Indian
tribes provide the written comments
required under paragraph (b)(5) of this
section or 120 days after the joint

98

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00108

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
meeting held under paragraph (b)(5) of
this section, whichever occurs first.
(c) Second stage of consultation. (1) Unless determined to be unnecessary by
the Director pursuant to paragraph
(b)(6) of this section, a potential applicant must diligently conduct all reasonable studies and obtain all reasonable information requested by resource
agencies and Indian tribes under paragraph (b) of this section that are necessary for the Commission to make an
informed decision regarding the merits
of the application. These studies must
be completed and the information obtained:
(i) Prior to filing the application, if
the results:
(A) Would influence the financial
(e.g., instream flow study) or technical
feasibility of the project (e.g., study of
potential mass soil movement); or
(B) Are needed to determine the design or location of project features,
reasonable alternatives to the project,
the impact of the project on important
natural or cultural resources (e.g., resource surveys), or suitable mitigation
or enhancement measures, or to minimize impact on significant resources
(e.g., wild and scenic river, anadromous
fish, endangered species, caribou migration routes);
(ii) After filing the application but
before issuance of a license or exemption, if the applicant otherwise complied with the provisions of paragraph
(b)(2) of this section and the study or
information gathering would take
longer to conduct and evaluate than
the time between the conclusion of the
first stage of consultation and the expiration of the applicant’s preliminary
permit or the application filing deadline set by the Commission;
(iii) After a new license or exemption
is issued, if the studies can be conducted or the information obtained
only after construction or operation of
proposed facilities, would determine
the success of protection, mitigation,
or enhancement measures (e.g., postconstruction monitoring studies), or
would be used to refine project operation or modify project facilities.
(2) If, after the end of the first stage
of consultation as defined in paragraph
(b)(7) of this section, a resource agency
or Indian tribe requests that the poten-

§ 4.38
tial applicant conduct a study or gather information not previously identified and specifies the basis and reasoning for its request, under paragraphs (b)(5) (i)–(vi) of this section, the
potential applicant must promptly initiate the study or gather the information, unless the study or information is
unreasonable or unnecessary for an informed decision by the Commission on
the merits of the application or use of
the methodology requested by a resource agency or Indian tribe for conducting the study is not a generally accepted practice. The applicant may
refer any such request to the Director
of the Office of Energy Projects for dispute resolution under the procedures
set forth in paragraph (b)(6) of this section and need not conduct prior to filing any study determined by the Director to be unreasonable or unnecessary
or to employ a methodology that is not
generally accepted.
(3)(i) The results of studies and information-gathering referenced in paragraphs (c)(1)(ii) and (c)(2) of this section will be treated as additional information; and
(ii) Filing and acceptance of an application will not be delayed and an application will not be considered deficient
or patently deficient pursuant to § 4.32
(e)(1) or (e)(2) merely because the study
or information gathering is not complete before the application is filed.
(4) A potential applicant must provide each resource agency and Indian
tribe with:
(i) A copy of its draft application
that:
(A) Indicates the type of application
the potential applicant expects to file
with the Commission; and
(B) Responds to any comments and
recommendations made by any resource agency and Indian tribe either
during the first stage of consultation
or under paragraph (c)(2) of this section;
(ii) The results of all studies and information-gathering either requested
by that resource agency or Indian tribe
in the first stage of consultation (or
under paragraph (c)(2) of this section if
available) or which pertain to resources of interest to that resource
agency or Indian tribe and which were
identified by the potential applicant

99

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00109

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.38

18 CFR Ch. I (4–1–17 Edition)

pursuant to paragraph (b)(2)(vii) of this
section, including a discussion of the
results and any proposed protection,
mitigation, or enhancement measures;
and
(iii) A written request for review and
comment.
(5) A resource agency or Indian tribe
will have 90 days from the date of the
potential applicant’s letter transmitting the paragraph (c)(4) information
to it to provide written comments on
the information submitted by a potential applicant under paragraph (c)(4) of
this section.
(6) If the written comments provided
under paragraph (c)(5) of this section
indicate that a resource agency or Indian tribe has a substantive disagreement with a potential applicant’s conclusions regarding resource impacts or
its proposed protection, mitigation, or
enhancement measures, the potential
applicant will:
(i) Hold a joint meeting with the disagreeing resource agency or Indian
tribe and other agencies with similar
or related areas of interest, expertise,
or responsibility not later than 60 days
from the date of the written comments
of the disagreeing agency or Indian
tribe to discuss and to attempt to
reach agreement on its plan for environmental protection, mitigation, or
enhancement measures;
(ii) Consult with the disagreeing
agency or Indian tribe and other agencies with similar or related areas of interest, expertise, or responsibility on
the scheduling of the joint meeting;
and
(iii) At least 15 days in advance of the
meeting, provide the Commission with
written notice of the time and place of
the meeting and a written agenda of
the issues to be discussed at the meeting.
(7) The potential applicant and any
disagreeing resource agency or Indian
tribe may conclude a joint meeting
with a document embodying any agreement among them regarding environmental protection, mitigation, or enhancement measures and any issues
that are unresolved.
(8) The potential applicant must describe all disagreements with a resource agency or Indian tribe on technical or environmental protection,

mitigation, or enhancement measures
in its application, including an explanation of the basis for the applicant’s
disagreement with the resource agency
or Indian tribe, and must include in its
application any document developed
pursuant to paragraph (c)(7) of this section.
(9) A potential applicant may file an
application with the Commission if:
(i) It has complied with paragraph
(c)(4) of this section and no resource
agency or Indian tribe has responded
with substantive disagreements by the
deadline specified in paragraph (c)(5) of
this section; or
(ii) It has complied with paragraph
(c)(6) of this section and a resource
agency or Indian tribe has responded
with substantive disagreements.
(10) The second stage of consultation
ends:
(i) Ninety days after the submittal of
information pursuant to paragraph
(c)(4) of this section in cases where no
resource agency or Indian tribe has responded with substantive disagreements; or
(ii) At the conclusion of the last joint
meeting held pursuant to paragraph
(c)(6) of this section in cases where a
resource agency or Indian tribe has responded with substantive disagreements.
(d) Third stage of consultation. (1) The
third stage of consultation is initiated
by the filing of an application for a license or exemption, accompanied by a
transmittal letter certifying that at
the same time copies of the application
are being mailed to the resource agencies, Indian tribes, other government
offices, and consulted members of the
public specified in paragraph (d)(2) of
this section.
(2) As soon as an applicant files such
application documents with the Commission, or promptly after receipt in
the case of documents described in
paragraph (d)(2)(iii) of this section, as
the Commission may direct the applicant must serve on every resource
agency, Indian tribes, and member of
the public consulted, and on other government offices copies of:
(i) Its application for a license or an
exemption from licensing;

100

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00110

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(ii) Any deficiency correction, revision, supplement, response to additional information request, or amendment to the application; and
(iii) Any written correspondence
from the Commission requesting the
correction of deficiencies or the submittal of additional information.
(e) Waiver of compliance with consultation requirements. (1) If a resource agency or Indian tribe waives in writing
compliance with any requirement of
this section, a potential applicant does
not have to comply with that requirement as to that agency or tribe.
(2) If a resource agency or Indian
tribe fails to timely comply with a provision regarding a requirement of this
section, a potential applicant may proceed to the next sequential requirement of this section without waiting
for the resource agency or Indian tribe
to comply.
(3) The failure of a resource agency
or Indian tribe to timely comply with a
provision regarding a requirement of
this section does not preclude its participation in subsequent stages of the
consultation process.
(4) Following October 23, 2003, a potential license applicant engaged in
pre-filing consultation under part 4
may during first stage consultation request to incorporate into pre-filing
consultation any element of the integrated license application process provided for in part 5 of this chapter. Any
such request must be accompanied by
a:
(i) Specific description of how the
element of the part 5 license application would fit into the pre-filing consultation process under this part; and
(ii) Demonstration that the potential
license applicant has made every reasonable effort to contact all resource
agencies, Indian tribes, non-governmental organizations, and others affected by the applicant’s proposal, and
that a consensus exists in favor of incorporating the specific element of the
part 5 process into the pre-filing consultation under this part.
(f) Application requirements documenting consultation and any disagreements with resource agencies. An applicant must show in Exhibit E of its application that it has met the requirements of paragraphs (b) through (d)

§ 4.38
and paragraphs (g) and (h) of this section, and must include a summary of
the consultation process and:
(1) Any resource agency’s or Indian
tribe’s letters containing comments,
recommendations, and proposed terms
and conditions;
(2) Any letters from the public containing comments and recommendations;
(3) Notice of any remaining disagreement with a resource agency or Indian
tribe on:
(i) The need for a study or the manner in which a study should be conducted and the applicant’s reasons for
disagreement, and
(ii) Information on any environmental protection, mitigation, or enhancement measure, including the
basis for the applicant’s disagreement
with the resource agency or Indian
tribe;
(4) Evidence of any waivers under
paragraph (e) of this section;
(5) Evidence of all attempts to consult with a resource agency or Indian
tribe, copies of related documents
showing the attempts, and documents
showing the conclusion of the second
stage of consultation;
(6) An explanation of how and why
the project would, would not, or should
not, comply with any relevant comprehensive plan as defined in § 2.l9 of
this chapter and a description of any
relevant resource agency or Indian
tribe determination regarding the consistency of the project with any such
comprehensive plan;
(7) A description of how the applicant’s proposal addresses the significant resource issues raised at the joint
meeting held pursuant to paragraph
(b)(3) of this section; and
(8) A list containing the name and
address of every federal, state, and
interstate resource agency and Indian
tribe with which the applicant consulted pursuant to paragraph (a)(1) of
this section.
(g) Public participation. (1) At least 14
days in advance of the joint meeting
held pursuant to paragraph (b)(3) of
this section, the potential applicant
must publish notice, at least once, of
the purpose, location, and timing of
the joint meeting, in a daily or weekly
newspaper published in each county in

101

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00111

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.39

18 CFR Ch. I (4–1–17 Edition)

which the proposed project or any part
thereof is situated. The notice shall include a summary of the major issues to
be discussed at the joint meeting.
(2)(i) A potential applicant must
make available to the public for inspection and reproduction the information specified in paragraph (b)(2) of this
section from the date on which the notice required by paragraph (g)(1) of this
section is first published until a final
order is issued on any license application.
(ii) The provisions of § 4.32(b) will
govern the form and manner in which
the information is to be made available
for public inspection and reproduction.
(iii) A potential applicant must make
available to the public for inspection
at the joint meeting required by paragraph (b)(3) of this section at least two
copies of the information specified in
paragraph (b)(2) of this section.
(h) Critical Energy Infrastructure Information. If this section requires an applicant to reveal Critical Energy Infrastructure Information (CEII), as defined by § 388.113(c) of this chapter, to
any person, the applicant shall follow
the procedures set out in § 4.32(k).
[Order 533, 56 FR 23153, May 20, 1991, as
amended at 56 FR 61155, Dec. 2, 1991; Order
2002, 68 FR 51117, Aug. 25, 2003; Order 643, 68
FR 52094, Sept. 2, 2003; 68 FR 61742, Oct. 30,
2003; Order 756, 77 FR 4894, Feb. 1, 2012; Order
800, 79 FR 59110, Oct. 1, 2014]

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.39 Specifications
drawings.

for

maps

and

(a) Each original map or drawing
must consist of a print on silver or
gelatin 35mm microfilm mounted on
Type D (31⁄4″ by 73⁄8″) aperture cards.
Full-sized prints of maps and drawings
must be on sheets no smaller than 22
by 34 inches and no larger than 24 by 36
inches. A space five inches high by
seven inches wide must be provided in
the lower right hand corner of each
sheet. The upper half of this space
must bear the title, numerical and
graphical scale, and other pertinent information concerning the map or drawing. The lower half of the space must
be left clear. Exhibit G drawings must
be stamped by a registered land surveyor. If the drawing size specified in
this paragraph limits the scale of
structural drawings (exhibit F draw-

ings) described in paragraph (c) of this
section, a smaller scale may be used for
those drawings. Potential applicants or
licensees may be required to file maps
or drawings in electronic format as directed by the Commission.
(b) Each map must have a scale in
full-sized prints no smaller than one
inch equals 0.5 miles for transmission
lines, roads, and similar linear features
and no smaller than one inch equals
1,000 feet for other project features, including the project boundary. Where
maps at this scale do not show sufficient detail, large scale maps may be
required. Each map must have:
(1) True and magnetic meridians;
(2) State, county, and town lines; and
(3) Boundaries of public lands and
reservations of the United States [see
16 U.S.C. 796 (1) and (2)], if any. If a
public land survey is available, the
maps must show all lines of that survey crossing the project area and all official subdivisions of sections for the
public lands and reservations, including lots and irregular tracts, as designated on the official plats of survey
that may be obtained from the Bureau
of Land Management, Washington, DC,
or examined in the local land survey
office; to the extent that a public land
survey is not available for public lands
and reservations of the United States,
the maps must show the protractions
of townships and section lines, which,
if possible, must be those recognized by
the Federal agency administering
those lands.
(c) Drawings depicting details of
project structures must have a scale in
full-sized prints no smaller than:
(1) One inch equals 50 feet for plans,
elevations, and profiles; and
(2) One inch equals 10 feet for sections.
(d) Each map or drawing must be
drawn and lettered to be legible when
it is reduced to a print that is 11 inches
on its shorter side. Following notification to the applicant that the application has been accepted for filing [see
§ 4.32(d)], prints reduced to that size
must be bound in each copy of the application which is required to be submitted to the Commission or provided
to any person, agency, or other entity.

102

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00112

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
(e) The maps and drawings showing
project location information and details of project structures must be filed
in accordance with the Commission’s
instructions on submission of privileged materials and Critical Energy Infrastructure Information in §§ 388.112
and 388.113 of this chapter.
[Order 54, 44 FR 61334, Oct. 25, 1979. Redesignated by Order 413, 50 FR 11678, Mar. 25, 1985;
Order 2002, 68 FR 51119, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003; Order 756, 77 FR 4894, Feb.
1, 2012; Order 769, 77 FR 65474, Oct. 29, 2012;
Order 798, 79 FR 42974, July 24, 2014; Order
800, 79 FR 59110, Oct. 1, 2014]

Subpart E—Application for License
for
Major
Unconstructed
Project and Major Modified
Project
§ 4.40

Applicability.

lpowell on DSK54DXVN1OFR with $$_JOB

(a) Applicability. The provisions of
this subpart apply to any application
for an initial license for a major
unconstructed project that would have
a total installed capacity of more than
5 megawatts, and any application for
an initial or new license for a major
modified project with a total installed
capacity more than 5 megawatts. An
applicant for license for any major
unconstructed or major modified water
power project that would have a total
installed generating capacity of 5
megawatts or less must submit application under subpart G (§§ 4.60 and 4.61).
(b) Guidance from Commission staff. A
prospective applicant for a license for a
major unconstructed project or major
modified project may seek advice from
the Commission’s Office of Energy
Projects regarding the applicability of
this subpart to its project [see § 4.32(h)],
including the determinations whether
any proposed repair, modification or
reconstruction of an existing dam
would result in a significant change in
the normal maximum surface elevation
of an existing impoundment, or whether any proposed change in existing
project works or operation would result in a significant environmental impact.
[Order 184, 46 FR 55936, Nov. 13, 1981, as
amended by Order 413, 50 FR 11683, Mar. 25,
1985; Order 499, 53 FR 27002, July 18, 1988;
Order 2002, 68 FR 51119, Aug. 25, 2003]

§ 4.41
§ 4.41

Contents of application.

Any application under this subpart
must contain the following information in the form prescribed:
(a) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATORY
COMMISSION
Application
for
License
for
Major
Unconstructed Project or Major Modified
Project
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for a [license or new license, as appropriate] for the
[name of project] water power project, as described in the attached exhibits. [Specify
any previous FERC project number designation.]
(2) The location of the proposed project is:
State or territory:
lllllllllllll
County: lllllllllllllllllll
Township or nearby town:
lllllllll
Stream or other body of water: lllllll
(3) The exact name, business address, and
telephone number of the applicant are:
llllllllllllllllllllllll
llllllllllllllllllllllll
(4) The applicant is a (citizen of the United
States, association of citizens of the United
States, domestic corporation, municipality,
or State, as appropriate) and (is/is not)
claiming preference under section 7(a) of the
Federal Power Act. See 16 U.S.C. 796.
(5)(i) The statutory or regulatory requirements of the state(s) in which the project
would be located and that affect the project
as proposed with respect to bed and banks
and to the appropriation, diversion, and use
of water for power purposes, and with respect
to the right to engage in the business of developing, transmitting, and distributing
power and in any other business necessary to
accomplish the purposes of the license under
the Federal Power Act, are: [provide citation
and brief identification of the nature of each
requirement; if the applicant is a municipality, the applicant must submit copies of
applicable state or local laws or a municipal
charter or, if such laws or documents are not
clear, any other appropriate legal authority,
evidencing that the municipality is competent under such laws to engage in the business of developing, transmitting, utilizing,
or distributing power.]
(ii) The steps which the applicant has
taken, or plans to take, to comply with each
of the laws cited above are: [provide brief description for each requirement]

(b) Exhibit A is a description of the
project. If the project includes more

103

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00113

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.41

18 CFR Ch. I (4–1–17 Edition)

than one dam with associated facilities, each dam and the associated component parts must be described together as a discrete development. The
description for each development must
contain:
(1) The physical composition, dimensions, and general configuration of any
dams,
spillways,
penstocks,
powerhouses, tailraces or other structures proposed to be included as part of
the project;
(2) The normal maximum water surface area and normal maximum water
surface elevation (mean sea level),
gross storage capacity of any impoundments to be included as part of the
project;
(3) The number, type and rated capacity of any proposed turbines or generators to be included as part of the
project;
(4) The number, length, voltage and
interconnections of any primary transmission lines proposed to be included a
part of the project [See 16 U.S.C.
796(11)];
(5) The description of any additional
mechanical, electrical, and transmission equipment appurtenant to the
project; and
(6) All lands of the United States, including lands patented subject to the
provisions of section 24 of the Act, 16
U.S.C. 818, that are enclosed within the
project boundary described under paragraph (h) of this section (Exhibit G),
identified and tabulated by legal subdivisions of a public land survey, by
the best available legal description.
The tabulation must show the total
acreage of the lands of the United
States within the project boundary.
(c) Exhibit B is a statement of project
operation and resource utilization. If
the project includes more than one
dam with associated facilities, the information must be provided separately
for each discrete development. The exhibit must contain:
(1) A description of each alternative
site considered in selecting of the proposed site;
(2) A description of any alternative
facility designs, processes, and operations that were considered.
(3) A statement as to whether operation of the power plant will be manual
or automatic, an estimate of the an-

nual plant factor, and a statement of
how the project will be operated during
adverse, mean, and high water years;
(4) An estimate of the dependable capacity and average annual energy production in kilowatt-hours (or mechanical equivalent), supported by the following data:
(i) The minimum, mean, and maximum recorded flows in cubic feet per
second of the stream or other body of
water at the powerplant intake or
point of diversion, with a specification
of any adjustment made for evaporation, leakage minimum flow releases
(including duration of releases) or
other reductions in available flow;
monthly flow duration curves indicating the period of record and the
gauging stations used in deriving the
curves; and a specification of the critical streamflow used to determine the
dependable capacity;
(ii) An area-capacity curve showing
the gross storage capacity and usable
storage capacity of the impoundment,
with a rule curve showing the proposed
operation of the impoundment and how
the usable storage capacity is to be utilized;
(iii) The estimated minimum and
maximum hydraulic capacity of the
powerplant in terms of flow and efficiency (cubic feet per second at onehalf, full and best gate), and the corresponding generator output in kilowatts;
(iv) A tailwater rating curve; and
(v) A curve showing powerplant capability versus head and specifying maximum, normal, and minimum heads;
(5) A statement of system and regional power needs and the manner in
which the power generated at the
project is to be utilized, including the
amount of power to be used on-site, if
any, supported by the following data:
(i) Load curves and tabular data, if
appropriate;
(ii) Details of conservation and rate
design programs and their historic and
projected impacts on system loads; and
(iii) The amount of power to be sold
and the identity of proposed purchaser(s); and
(6) A statement of the applicant’s
plans for future development of the

104

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00114

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
project or of any other existing or proposed water power project on the affected stream or other body of water,
indicating the approximate location
and estimated installed capacity of the
proposed developments.
(d) Exhibit C is a proposed construction schedule for the project. The information required may be supplemented
with a bar chart. The construction
schedule must contain:
(1) The proposed commencement and
completion dates of any new construction, modification, or repair of major
project works;
(2) The proposed commencement date
of first commercial operation of each
new major facility and generating unit;
and
(3) If any portion of the proposed
project consists of previously constructed, unlicensed water power structures or facilities, a chronology of
original completion dates of those
structures or facilities specifying dates
(approximate dates must be identified
as such) of:
(i) Commencement and completion of
construction or installation;
(ii) Commencement of first commercial operation; and
(iii) Any additions or modifications
other than routine maintenance.
(e) Exhibit D is a statement of project
costs and financing. The exhibit must
contain:
(1) A statement of estimated costs of
any new construction, modification, or
repair, including:
(i) The cost of any land or water
rights necessary to the development;
(ii) The total cost of all major
project works;
(iii) Indirect construction costs such
as costs of construction equipment,
camps, and commissaries;
(iv) Interest during construction; and
(v) Overhead, construction, legal expenses, and contingencies;
(2) If any portion of the proposed
project consists of previously constructed, unlicensed water power structures or facilities, a statement of the
original cost of those structures or facilities specifying for each, to the extent possible, the actual or approximate total costs (approximate costs
must be identified as such) of:

§ 4.41
(i) Any land or water rights necessary to the existing project works;
(ii) All major project works; and
(iii) Any additions or modifications
other than routine maintenance;
(3) If the applicant is a licensee applying for a new license, and is not a
municipality or a state, an estimate of
the amount which would be payable if
the project were to be taken over pursuant to section 14 of the Federal
Power Act, 16 U.S.C. 807, upon expiration of the license in effect including:
(i) Fair value;
(ii) Net investment; and
(iii) Severance damages;
(4) A statement of the estimated average annual cost of the total project
as proposed, specifying any projected
changes in the costs (life-cycle costs)
over the estimated financing or licensing period if the applicant takes such
changes into account, including:
(i) Cost of capital (equity and debt);
(ii) Local, state, and Federal taxes;
(iii) Depreciation or amortization,
(iv) Operation and maintenance expenses, including interim replacements, insurance, administrative and
general expenses, and contingencies;
and
(v) The estimated capital cost and estimated annual operation and maintenance expense of each proposed environmental measure;
(5) A statement of the estimated annual value of project power based on a
showing of the contract price for sale
of power or the estimated average annual cost of obtaining an equivalent
amount of power (capacity and energy)
from the lowest cost alternative source
of power, specifying any projected
changes in the costs (life-cycle costs)
of power from that source over the estimated financing or licensing period if
the applicant takes such changes into
account;
(6) A statement describing other electric energy alternatives, such as gas,
oil, coal and nuclear-fueled powerplants and other conventional and
pumped storage hydroelectric plants;
(7) A statement and evaluation of the
consequences of denial of the license
application and a brief perspective of
what future use would be made of the
proposed site if the proposed project
were not constructed;

105

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00115

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.41

18 CFR Ch. I (4–1–17 Edition)

(8) A statement specifying the
sources and extent of financing and annual revenues available to the applicant to meet the costs identified in
paragraphs (e) (1) and (4) of this section;
(9) An estimate of the cost to develop
the license application; and
(10) The on-peak and off-peak values
of project power, and the basis for estimating the values, for projects which
are proposed to operate in a mode
other than run-of-river.
(f) Exhibit E is an Environmental Report. Information provided in the report must be organized and referenced
according to the itemized subparagraphs below. See § 4.38 for consultation
requirements. The Environmental Report must contain the following information, commensurate with the scope of
the project:
(1) General description of the locale.
The applicant must provide a general
description of the environment of the
proposed project area and its immediate vicinity. The description must include location and general information
helpful to an understanding of the environmental setting.
(2) Report on water use and quality.
The report must discuss water quality
and flows and contain baseline data
sufficient to determine the normal and
seasonal variability, the impacts expected during construction and operation, and any mitigative, enhancement, and protective measures proposed by the applicant. The report
must be prepared in consultation with
the state and Federal agencies with responsibility for management of water
quality and quantity in the affected
stream or other body of water. The report must include:
(i) A description of existing instream
flow uses of streams in the project area
that would be affected by construction
and operation; estimated quantities of
water discharged from the proposed
project for power production; and any
existing and proposed uses of project
waters for irrigation, domestic water
supply, industrial and other purposes;
(ii) A description of the seasonal variation of existing water quality for any
stream, lake, or reservoir that would
be affected by the proposed project, including (as appropriate) measurements

of: significant ions, chlorophyll a, nutrients, specific conductance, pH, total
dissolved solids, total alkalinity, total
hardness, dissolved oxygen, bacteria,
temperature, suspended sediments, turbidity and vertical illumination;
(iii) A description of any existing
lake or reservoir and any of the proposed project reservoirs including surface area, volume, maximum depth,
mean depth, flushing rate, shoreline
length, substrate classification, and
gradient for streams directly affected
by the proposed project;
(iv) A quantification of the anticipated impacts of the proposed construction and operation of project facilities on water quality and downstream flows, such as temperature, turbidity and nutrients;
(v) A description of measures recommended by Federal and state agencies and the applicant for the purpose
of protecting or improving water quality and stream flows during project
construction and operation; an explanation of why the applicant has rejected any measures recommended by
an agency; and a description of the applicant’s alternative measures to protect or improve water quality stream
flow;
(vi) A description of groundwater in
the vicinity of the proposed project, including water table and artesian conditions, the hydraulic gradient, the degree to which groundwater and surface
water are hydraulically connected,
aquifers and their use as water supply,
and the location of springs, wells, artesian flows and disappearing streams; a
description of anticipated impacts on
groundwater and measures proposed by
the applicant and others for the mitigation of impacts on groundwater; and
(3) Report on fish, wildlife, and botanical resources. The applicant must provide a report that describes the fish,
wildlife, and botanical resources in the
vicinity of the proposed project; expected impacts of the project on these
resources; and mitigation, enhancement, or protection measures proposed
by the applicant. The report must be
prepared in consultation with the state
agency or agencies with responsibility
for these resources, the U.S. Fish and
Wildlife Service, the National Marine
Fisheries Service (if the proposed

106

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00116

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
project may affect anadromous, estuarine, or marine fish resources), and any
state or Federal agency with managerial authority over any part of the proposed project lands. The report must
contain:
(i) A description of existing fish,
wildlife, and plant communities of the
proposed project area and its vicinity,
including any downstream areas that
may be affected by the proposed
project and the area within the transmission line corridor or right-of-way. A
map of vegetation types should be included in the description. For species
considered important because of their
commercial or recreational value, the
information provided should include
temporal and spatial distributions and
densities of such species. Any fish,
wildlife, or plant species proposed or
listed as threatened or endangered by
the U.S. Fish and Wildlife Service or
National Marine Fisheries Service [see
50 CFR 17.11 and 17.12] must be identified;
(ii) A description of the anticipated
impacts on fish, wildlife and botanical
resources of the proposed construction
and operation of project facilities, including possible changes in size, distribution, and reproduction of essential
population of these resources and any
impacts on human utilization of these
resources;
(iii) A description of any measures or
facilities recommended by state or
Federal agencies for the mitigation of
impacts on fish, wildlife, and botanical
resources, or for the protection or enhancement of these resources, the impact on threatened or endangered species, and an explanation of why the applicant has determined any measures
or facilities recommended by an agency are inappropriate as well as a description of alternative measures proposed by applicant to protect fish,
wildlife and botanical resources; and
(iv) The following materials and information regarding any mitigation
measures or facilities, identified under
clause (iii), proposed for implementation or construction:
(A) Functional design drawings;
(B) A description of proposed operation and maintenance procedures for
any proposed measures or facilities;

§ 4.41
(C) An implementation, construction
and operation schedule for any proposed measures or facilities;
(D) An estimate of the costs of construction, operation, and maintenance
of any proposed facilities or implementation of any measures;
(E) A statement of the sources and
amount of financing for mitigation
measures or facilities; and
(F) A map or drawing showing, by the
use of shading, crosshatching or other
symbols, the identity and location of
any proposed measures or facilities.
(4) Report on historic and archaeological resources. The applicant must
provide a report that discusses any historical and archaeological resources in
the proposed project area, the impact
of the proposed project on those resources and the avoidance, mitigation,
and protection measures proposed by
the applicant. The report must be prepared in consultation with the State
Historic Preservation Officer (SHPO)
and the National Park Service of the
U.S. Department of Interior. The report must contain:
(i) A description of any discovery
measures, such as surveys, inventories,
and limited subsurface testing work,
recommended by the specified state
and Federal agencies for the purpose of
locating, identifying, and assessing the
significance of historic and archaeological resources that would be affected by construction and operation of
the proposed project, together with a
statement of the applicant’s position
regarding the acceptability of the recommendations;
(ii) The results of surveys, inventories, and subsurface testing work recommended by the state and Federal
agencies listed above, together with an
explanation by the applicant of any
variations from the survey, inventory,
or testing procedures recommended;
(iii) An identification (without providing specific site or property locations) of any historic or archaeological
site in the proposed project area, with
particular emphasis on sites or properties either listed in, or recommended
by the SHPO for inclusion in, the National Register of Historic Places that
would be affected by the construction
of the proposed project;

107

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00117

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.41

18 CFR Ch. I (4–1–17 Edition)

(iv) A description of the likely direct
and indirect impacts of proposed
project construction or operation on
sites or properties either listed in, or
recommended as eligible for, the National Register of Historic Places;
(v) A management plan for the avoidance of, or mitigation of, impacts on
historic or archaeological sites and resources based upon the recommendations of the state and Federal agencies
listed above and containing the applicant’s explanation of variations from
those recommendations; and
(vi) The following materials and information regarding the mitigation
measures described under paragraph
(f)(4)(v) of this section:
(A) A schedule for implementing the
mitigation proposals;
(B) An estimate of the cost of the
measures; and
(C) A statement of the sources and
extent of financing.
(vii) The applicant must provide five
copies (rather than the eight copies required under § 4.32(b)(1) of the Commission’s regulations) of any survey, inventory, or subsurface testing reports
containing specific site and property
information, and including maps and
photographs showing the location and
any required alteration of historic and
archaeological resources in relation to
proposed project facilities.
(5) Report on socio-economic impacts.
The applicant must provide a report
which identifies and quantifies the impacts of constructing and operating the
proposed project on employment, population, housing, personal income, local
governmental services, local tax revenues and other factors within the
towns and counties in the vicinity of
the proposed project. The report must
include:
(i) A description of the socio-economic impact area;
(ii) A description of employment,
population and personal income trends
in the impact area;
(iii) An evaluation of the impact of
any substantial in-migration of people
on the impact area’s governmental facilities and services, such as police,
fire, health and educational facilities
and programs;
(iv) On-site manpower requirements
and payroll during and after project

construction, including a projection of
total on-site employment and construction payroll provided by month;
(v) Numbers of project construction
personnel who:
(A) Currently reside within the impact area;
(B) Would commute daily to the construction site from places situated outside the impact area; and
(C) Would relocate on a temporary
basis within the impact area;
(vi) A determination of whether the
existing supply of available housing
within the impact area is sufficient to
meet the needs of the additional population;
(vii) Numbers and types of residences
and business establishments that
would be displaced by the proposed
project, procedures to be utilized to acquire these properties, and types and
amounts of relocation assistance payments that would be paid to the affected property owners and businesses;
and
(viii) A fiscal impact analysis evaluating the incremental local government expenditures in relation to the
incremental local government revenues
that would result from the construction of the proposed project. Incremental expenditures may include, but
are not be limited to, school operating
costs, road maintenance and repair,
public safety, and public utility costs.
(6) Report on geological and soil resources. The applicant must provide a
report on the geological and soil resources in the proposed project area
and other lands that would be directly
or indirectly affected by the proposed
action and the impacts of the proposed
project on those resources. The information required may be supplemented
with maps showing the location and description of conditions. The report
must contain:
(i) A detailed description of geological features, including bedrock lithology, stratigraphy, structural features,
glacial features, unconsolidated deposits, and mineral resources;
(ii) A detailed description of the
soils, including the types, occurrence,
physical and chemical characteristics,
erodability and potential for mass soil
movement;

108

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00118

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(iii) A description showing the location of existing and potential geological and soil hazards and problems, including earthquakes, faults, seepage,
subsidence, solution cavities, active
and abandoned mines, erosion, and
mass soil movement, and an identification of any large landslides or potentially unstable soil masses which could
be aggravated by reservoir fluctuation;
(iv) A description of the anticipated
erosion, mass soil movement and other
impacts on the geological and soil resources due to construction and operation of the proposed project; and
(v) A description of any proposed
measures or facilities for the mitigation of impacts on soils.
(7) Report on recreational resources.
The applicant must prepare a report
containing a proposed recreation plan
describing utilization, design and development of project recreational facilities, and public access to the
project area. Development of the plan
should include consideration of the
needs of the physically handicapped.
Public and private recreational facilities provided by others that would abut
the project should be noted in the report. The report must be prepared in
consultation with appropriate local, regional, state and Federal recreation
agencies and planning commissions,
the National Park Service of the U.S.
Department of the Interior, and any
other state or Federal agency with
managerial responsibility for any part
of the project lands. The report must
contain:
(i) A description of any areas within
or in the vicinity of the proposed
project boundary that are included in,
or have been designated for study for
inclusion in:
(A) The National Wild and Scenic
Rivers Systems (see 16 U.S.C. 1271);
(B) The National Trails System (see
16 U.S.C. 1241); or
(C) A wilderness area designated
under the Wilderness Act (see 16 U.S.C.
1132);
(ii) A detailed description of existing
recreational
facilities
within
the
project vicinity, and the public recreational facilities which are to be provided by the applicant at its sole cost
or in cooperation with others no later
than 3 years from the date of first com-

§ 4.41
mercial operation of the proposed
project and those recreation facilities
planned for future development based
on anticipated demand. When public
recreation facilities are to be provided
by other entities, the applicant and
those entities should enter into an
agreement on the type of facilities to
be provided and the method of operation. Copies of agreements with cooperating entities are to be appended
to the plan;
(iii) A provision for a shoreline buffer
zone that must be within the project
boundary, above the normal maximum
surface elevation of the project reservoir, and of sufficient width to allow
public access to project lands and waters and to protect the scenic, public
recreational, cultural, and other environmental values of the reservoir
shoreline;
(iv) Estimates of existing and future
recreational use at the project, in daytime and overnight visitation (recreation days), with a description of the
methodology used in developing these
data;
(v) A development schedule and cost
estimates of the construction, operation, and maintenance of existing, initial, and future public recreational facilities, including a statement of the
source and extent of financing for such
facilities;
(vi) A description of any measures or
facilities recommended by the agencies
consulted for the purpose of creating,
preserving, or enhancing recreational
opportunities at the proposed project,
and for the purpose of ensuring the
safety of the public in its use of project
lands and waters, including an explanation of why the applicant has rejected any measures or facilities recommended by an agency; and
(vii) A drawing or drawings, one of
which describes the entire project area,
clearly showing:
(A) The location of project lands, and
the types and number of existing recreational facilities and those proposed
for initial development, including access roads and trails, and facilities for
camping, picnicking, swimming, boat
docking and launching, fishing and
hunting, as well as provisions for sanitation and waste disposal;

109

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00119

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.41

18 CFR Ch. I (4–1–17 Edition)

(B) The location of project lands, and
the type and number of recreational facilities planned for future development;
(C) The location of all project lands
reserved for recreational uses other
than those included in paragraphs
(f)(7)(vii) (A) and (B) of this section;
and
(D) The project boundary (excluding
surveying details) of all areas designated for recreational development,
sufficiently referenced to the appropriate Exhibit G drawings to show that
all lands reserved for existing and future public recreational development
and the shoreline buffer zone are included within the project boundary.
Recreational cottages, mobile homes
and year-round residences for private
use are not to be considered as public
recreational facilities, and the lands on
which these private facilities are to be
developed are not to be included within
the proposed project boundary.
(8) Report on aesthetic resources. The
applicant must provide a report that
describes the aesthetic resources of the
proposed project area, the expected impacts of the project on these resources,
and the mitigation, enhancement or
protection measures proposed. The report must be prepared following consultation with Federal, state, and local
agencies having managerial responsibility for any part of the proposed
project lands or lands abutting those
lands. The report must contain:
(i) A description of the aesthetic
character of lands and waters directly
and indirectly affected by the proposed
project facilities;
(ii) A description of the anticipated
impacts on aesthetic resources from
construction activity and related
equipment and material, and the subsequent presence of proposed project facilities in the landscape;
(iii) A description of mitigative
measures proposed by the applicant, including architectural design, landscaping, and other reasonable treatment to be given project works to preserve and enhance aesthetic and related resources during construction
and operation of proposed project facilities; and
(iv) Maps, drawings and photographs
sufficient to provide an understanding

of the information required under this
paragraph. Maps or drawings may be
consolidated with other maps or drawings required in this exhibit and must
conform to the specifications of § 4.39.
(9) Report on land use. The applicant
must provide a report that describes
the existing uses of the proposed
project lands and adjacent property,
and those land uses which would occur
if the project is constructed. The report may reference the discussions of
land uses in other sections of this exhibit. The report must be prepared following consultation with local and
state zoning or land management authorities, and any Federal or state
agency with managerial responsibility
for the proposed project or abutting
lands. The report must include:
(i) A description of existing land use
in the proposed project area, including
identification of wetlands, floodlands,
prime or unique farmland as designated
by the Natural Resources Conservation
Service of the U.S. Department of Agriculture, the Special Area Management
Plan of the Office of Coastal Zone Management, National Oceanic and Atmospheric Administration, and lands
owned or subject to control by government agencies;
(ii) A description of the proposed land
uses within and abutting the project
boundary that would occur as a result
of development and operation of the
project; and
(iii) Aerial photographs, maps, drawings or other graphics sufficient to
show the location, extent and nature of
the land uses referred to in this section.
(10) Alternative locations, designs, and
energy sources. The applicant must provide an environment assessment of the
following:
(i) Alternative sites considered in arriving at the selection of the proposed
project site;
(ii) Alternative facility designs, processes, and operations that were considered and the reasons for their rejection;
(iii) Alternative electrical energy
sources, such as gas, oil, coal, and nuclear-fueled power plants, purchased
power or diversity exchange, and other
conventional and pumped-storage hydroelectric plants; and

110

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00120

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(iv) The overall consequences if the
license application is denied.
(11) List of literature. Exhibit E must
include a list of all publications, reports, and other literature which were
cited or otherwise utilized in the preparation of any part of the environmental
report.
(g) Exhibit F consists of general design drawings of the principal project
works described under paragraph (b) of
this section (Exhibit A) and supporting
information used as the basis of design.
If the Exhibit F submitted with the application is preliminary in nature, applicant must so state in the application. The drawings must conform to
the specifications of § 4.39.
(1) The drawings must show all major
project structures in sufficient detail
to provide a full understanding of the
project, including:
(i) Plans (overhead view);
(ii) Elevations (front view);
(iii) Profiles (side view); and
(iv) Sections.
(2) The applicant may submit preliminary design drawings with the application. The final Exhibit F may be
submitted during or after the licensing
process and must show the precise
plans and specifications for proposed
structures. If the project is licensed on
the basis of preliminary designs, the
applicant must submit a final Exhibit
F for Commission approval prior to
commencement of any construction of
the project.
(3) Supporting design report. The applicant must furnish, at a minimum, the
following supporting information to
demonstrate that existing and proposed structures are safe and adequate
to fulfill their stated functions and
must submit such information in a separate report at the time the application is filed. The report must include:
(i) An assessment of the suitability of
the site and the reservoir rim stability
based on geological and subsurface investigations, including investigations
of soils and rock borings and tests for
the evaluation of all foundations and
construction materials sufficient to determine the location and type of dam
structure suitable for the site;
(ii) Copies of boring logs, geology reports and laboratory test reports;

§ 4.41
(iii) An identification of all borrow
areas and quarry sites and an estimate
of required quantities of suitable construction material;
(iv) Stability and stress analyses for
all major structures and critical abutment slopes under all probable loading
conditions, including seismic and hydrostatic forces induced by water loads
up to the Probable Maximum Flood as
appropriate; and
(v) The bases for determination of
seismic loading and the Spillway Design Flood in sufficient detail to permit independent staff evaluation.
(4) The applicant must submit two
copies of the supporting design report
described in paragraph (g)(3) of this
section at the time preliminary and
final design drawings are submitted to
the Commission for review. If the report contains preliminary drawings, it
must be designated a ‘‘Preliminary
Supporting Design Report.’’
(h) Exhibit G is a map of the project
that must conform to the specifications of § 4.39. In addition, to the other
components of Exhibit G, the Applicant must provide the project boundary data in a geo-referenced electronic
format—such as ArcView shape files,
GeoMedia files, MapInfo files, or any
similar format. The electronic boundary data must be positionally accurate
to ±40 feet, in order to comply with the
National Map Accuracy Standards for
maps at a 1:24,000 scale (the scale of
USGS quadrangle maps). The electronic exhibit G data must include a
text file describing the map projection
used (i.e., UTM, State Plane, Decimal
Degrees, etc.), the map datum (i.e.,
feet, meters, miles, etc.). Three sets of
the maps must be submitted on compact disk or other appropriate electronic media. If more than one sheet is
used for the paper maps, the sheets
must be numbered consecutively, and
each sheet must bear a small insert
sketch showing the entire project and
indicate that portion of the project depicted on that sheet. Each sheet must
contain a minimum of three known reference points. The latitude and longitude coordinates, or state plane coordinates, of each reference point must
be shown. If at any time after the application is filed there is any change in
the project boundary, the applicant

111

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00121

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.41

18 CFR Ch. I (4–1–17 Edition)

must submit, within 90 days following
the completion of project construction,
a final exhibit G showing the extent of
such changes. The map must show:
(1) Location of the project and principal
features. The map must show the location of the project as a whole with reference to the affected stream or other
body of water and, if possible, to a
nearby town or any other permanent
monuments or objects, such as roads,
transmission lines or other structures,
that can be noted on the map and recognized in the field. The map must also
show the relative locations and physical interrelationships of the principal
project works and other features described under paragraph (b) of this section (Exhibit A).
(2) Project boundary. The map must
show a project boundary enclosing all
project works and other features described under paragraph (b) of this section (Exhibit A) that are to be licensed.
If accurate survey information is not
available at the time the application is
filed, the applicant must so state, and
a tentative boundary may be submitted. The boundary must enclose
only those lands necessary for operation and maintenance of the project
and for other project purposes, such as
recreation, shoreline control, or protection of environmental resources (see
paragraph (f) of this section (Exhibit
E)). Existing residential, commercial,
or other structures may be included
within the boundary only to the extent
that underlying lands are needed for
project purposes (e.g., for flowage, public recreation, shoreline control, or
protection
of
environmental
resources). If the boundary is on land
covered by a public survey, ties must
be shown on the map at sufficient
points to permit accurate platting of
the position of the boundary relative to
the lines of the public land survey. If
the lands are not covered by a public
land survey, the best available legal
description of the position of the
boundary must be provided, including
distances and directions from fixed
monuments or physical features. The
boundary must be described as follows:
(i) Impoundments. (A) The boundary
around a project impoundment must be
described by one of the following:

(1) Contour lines, including the contour elevation (preferred method);
(2) Specified courses and distances
(metes and bounds);
(3) If the project lands are covered by
a public land survey, lines upon or parallel to the lines of the survey; or
(4) Any combination of the above
methods.
(B) The boundary must be located no
more than 200 feet (horizontal measurement) from the exterior margin of the
reservoir, defined by the normal maximum surface elevation, except where
deviations may be necessary in describing the boundary according to the
above methods or where additional
lands are necessary for project purposes, such as public recreation, shoreline control, or protection of environmental resources.
(ii) Continuous features. The boundary
around linear (continuous) project features such as access roads, transmission lines, and conduits may be described by specified distances from center lines or offset lines of survey. The
width of such corridors must not exceed 200 feet unless good cause is shown
for a greater width. Several sections of
a continuous feature may be shown on
a single sheet with information showing the sequence of contiguous sections.
(iii) Noncontinuous features. (A) The
boundary
around
noncontinuous
project works such as dams, spillways,
and powerhouses must be described by
one of the following:
(1) Contour lines;
(2) Specified courses and distances;
(3) If the project lands are covered by
a public land survey, lines upon or parallel to the lines of the survey; or
(4) Any combination of the above
methods.
(B) The boundary must enclose only
those lands that are necessary for safe
and efficient operation and maintenance of the project or for other specified project purposes, such as public
recreation or protection of environmental resources.
(3) Federal lands. Any public lands
and reservations of the United States
(Federal lands) [see 16 U.S.C. 796 (1) and
(2)] that are within the project boundary, such as lands administered by the
U.S. Forest Service, Bureau of Land

112

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00122

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission

lpowell on DSK54DXVN1OFR with $$_JOB

Management, or National Park Service, or Indian tribal lands, and the
boundaries of those Federal lands,
must be identified as such on the map
by:
(i) Legal subdivisions of a public land
survey of the affected area (a protraction of identified township and section
lines is sufficient for this purpose); and
(ii) The Federal agency, identified by
symbol or legend, that maintains or
manages each identified subdivision of
the public land survey within the
project boundary; or
(iii) In the absence of a public land
survey, the location of the Federal
lands according to the distances and directions from fixed monuments or
physical features. When a Federal survey monument or a Federal bench
mark will be destroyed or rendered unusable by the construction of project
works, at least two permanent, marked
witness monuments or bench marks
must be established at accessible
points. The maps show the location
(and elevation, for bench marks) of the
survey monument or bench mark
which will be destroyed or rendered unusable, as well as of the witness monuments or bench marks. Connecting
courses and distances from the witness
monuments or bench marks to the
original must also be shown.
(iv) The project location must include the most current information
pertaining to affected Federal lands as
described under § 4.81(b)(5).
(4) Non-Federal lands. For those lands
within the project boundary not identified under paragraph (h)(3) of this section, the map must identify by legal
subdivision:
(i) Lands owned in fee by the applicant and lands that the applicant plans
to acquire in fee; and
(ii) Lands over which the applicant
has acquired or plans to acquire rights
to occupancy and use other than fee
title, including rights acquired or to be
acquired by easement or lease.
[Order 184, 46 FR 55936, Nov. 13, 1981; 48 FR
4459, Feb. 1, 1983, as amended by Order 413, 50
FR 11684, Mar. 25, 1985; Order 464, 52 FR 5449,
Feb. 23, 1987; Order 540, 57 FR 21737, May 22,
1992; Order 2002, 68 FR 51119, Aug. 25, 2003; 68
FR 61742, Oct. 30, 2003; 68 FR 63194, Nov. 7,
2003; 68 FR 69957, Dec. 16, 2003; Order 699, 72
FR 45324, Aug. 14, 2007]

§ 4.50

Subpart F—Application for License
for Major Project—Existing Dam
AUTHORITY: Federal Power Act, as amended (16 U.S.C. 792–828c); Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601–
2645); Department of Energy Organization
Act (42 U.S.C. 7101–7352); E.O. 12009, 42 FR
46267; Pub. L. 96–511, 94 Stat. 2812 (44 U.S.C.
3501 et seq.).

§ 4.50

Applicability.

(a) Applicability. (1) Except as provided in paragraph (a)(2) of this section, the provisions of this subpart
apply to any application for either an
initial license or new license for a
major project—existing dam that is
proposed to have a total installed capacity of more than 5 megawatts.
(2) This subpart does not apply to any
major project—existing dam (see § 4.40)
that is proposed to entail or include:
(i) Any repair, modification or reconstruction of an existing dam that
would result in a significant change in
the normal maximum surface area or
normal maximum surface elevation of
an existing impoundment; or
(ii) Any new development or change
in project operation that would result
in a significant environmental impact.
(3) An applicant for license for any
major project—existing dam that
would have a total installed capacity of
5 megawatts or less must submit application under subpart G (§§ 4.60 and 4.61).
(b) Guidance from Commission staff. A
prospective applicant for a major license—existing dam may seek advice
from the Commission staff regarding
the applicability of these sections to
its project (see § 4.32(h)), including the
determinations whether any proposed
repair or reconstruction of an existing
dam would result in a significant
change in the normal maximum surface area or the normal maximum surface elevation of an existing impoundment, or whether any proposed new development or change in project operation would result in a significant environmental impact.
[Order 59, 44 FR 67651, Nov. 27, 1979, as
amended by Order 184, 46 FR 55942, Nov. 13,
1981; Order 413, 50 FR 11684, Mar. 25, 1985;
Order 499, 53 FR 27002, July 18, 1988]

113

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00123

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.51

18 CFR Ch. I (4–1–17 Edition)

§ 4.51 Contents of application.
An application for license under this
subpart must contain the following information in the form specified. As
provided in paragraph (f) of this section, the appropriate Federal, state,
and local resource agencies must be
given the opportunity to comment on
the proposed project, prior to filing of
the application for license for major
project—existing
dam.
Information
from the consultation process must be
included in this Exhibit E, as appropriate.
(a) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATORY
COMMISSION
Application for License for Major Project—
Existing Dam
(1) (Name of applicant) applies to the Federal Energy Regulatory Commission for a (license or new license, as appropriate) for the
(name of project) water power project, as described in the attached exhibits. (Specify
any previous FERC project number designation.)
(2) The location of the project is:
State or territory:
lllllllllllll
County: lllllllllllllllllll
Township or nearby town:
lllllllll
Stream or other body of water: lllllll
(3) The exact name and business address of
the applicant are:
llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
The exact name and business address of
each person authorized to act as agent for
the applicant in this application are:

lpowell on DSK54DXVN1OFR with $$_JOB

llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
(4) The applicant is a [citizen of the United
States, association of citizens of the United
States, domestic corporation, municipality,
or state, as appropriate] and (is/is not) claiming preference under section 7(a) of the Federal Power Act. See 16 U.S.C. 796.
(5)(i) The statutory or regulatory requirements of the state(s) in which the project
would be located that affect the project as
proposed, with respect to bed and banks and
to the appropriation, diversion, and use of
water for power purposes, and with respect
to the right to engage in the business of developing, transmitting, and distributing
power and in any other business necessary to
accomplish the purposes of the license under
the Federal Power Act, are: [Provide citation

and brief identification of the nature of each
requirement; if the applicant is a municipality, the applicant must submit copies of
applicable state and local laws or a municipal charter, or, if such laws or documents
are not clear, other appropriate legal authority, evidencing that the municipality is competent under such laws to engage in the business of developing, transmitting, utilizing,
or distributing power.]
(ii) The steps which the applicant has
taken or plans to take to comply with each
of the laws cited above are: (provide brief description for each law).
(6) The applicant must provide the name
and address of the owner of any existing
project facilities. If the dam is federally
owned or operated, provide the name of the
agency.

(b) Exhibit A is a description of the
project. This exhibit need not include
information on project works maintained and operated by the U.S. Army
Corps of Engineers, the Bureau of Reclamation, or any other department or
agency of the United States, except for
any project works that are proposed to
be altered or modified. If the project
includes more than one dam with associated facilities, each dam and the associated component parts must be described together as a discrete development. The description for each development must contain:
(1) The physical composition, dimensions, and general configuration of any
dams,
spillways,
penstocks,
powerhouses, tailraces, or other structures, whether existing or proposed, to
be included as part of the project;
(2) The normal maximum surface
area and normal maximum surface elevation (mean sea level), gross storage
capacity, and usable storage capacity
of any impoundments to be included as
part of the project;
(3) The number, type, and rated capacity of any turbines or generators,
whether existing or proposed, to be included as part of the project;
(4) The number, length, voltage, and
interconnections of any primary transmission lines, whether existing or proposed, to be included as part of the
project (see 16 U.S.C. 796(11));
(5) The specifications of any additional mechanical, electrical, and
transmission equipment appurtenant
to the project; and
(6) All lands of the United States
that are enclosed within the project

114

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00124

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
boundary described under paragraph
(h) of this section (Exhibit G), identified and tabulated by legal subdivisions
of a public land survey of the affected
area or, in the absence of a public land
survey, by the best available legal description. The tabulation must show
the total acreage of the lands of the
United States within the project
boundary.
(c) Exhibit B is a statement of project
operation and resource utilization. If
the project includes more than one
dam with associated facilities, the information must be provided separately
for each such discrete development.
The exhibit must contain:
(1) A statement whether operation of
the powerplant will be manual or automatic, an estimate of the annual plant
factor, and a statement of how the
project will be operated during adverse,
mean, and high water years;
(2) An estimate of the dependable capacity and average annual energy production in kilowatt-hours (or a mechanical equivalent), supported by the
following data:
(i) The minimum, mean, and maximum recorded flows in cubic feet per
second of the stream or other body of
water at the powerplant intake or
point of diversion, with a specification
of any adjustments made for evaporation, leakage, minimum flow releases
(including duration of releases), or
other reductions in available flow;
monthly flow duration curves indicating the period of record and the
gauging stations used in deriving the
curves; and a specification of the period of critical streamflow used to determine the dependable capacity;
(ii) An area-capacity curve showing
the gross storage capacity and usable
storage capacity of the impoundment,
with a rule curve showing the proposed
operation of the impoundment and how
the usable storage capacity is to be utilized;
(iii) The estimated hydraulic capacity of the powerplant (minimum and
maximum flow through the powerplant) in cubic feet per second;
(iv) A tailwater rating curve; and
(v) A curve showing powerplant capability versus head and specifying maximum, normal, and minimum heads;

§ 4.51
(3) A statement, with load curves and
tabular data, if necessary, of the manner in which the power generated at
the project is to be utilized, including
the amount of power to be used on-site,
if any, the amount of power to be sold,
and the identity of any proposed purchasers; and
(4) A statement of the applicant’s
plans, if any, for future development of
the project or of any other existing or
proposed water power project on the
stream or other body of water, indicating the approximate location and
estimated installed capacity of the proposed developments.
(d) Exhibit C is a construction history
and proposed construction schedule for
the project. The construction history
and schedules must contain:
(1) If the application is for an initial
license, a tabulated chronology of construction for the existing projects
structures and facilities described
under paragraph (b) of this section (Exhibit A), specifying for each structure
or facility, to the extent possible, the
actual or approximate dates (approximate dates must be identified as such)
of:
(i) Commencement and completion of
construction or installation;
(ii) Commencement of commercial
operation; and
(iii) Any additions or modifications
other than routine maintenance; and
(2) If any new development is proposed, a proposed schedule describing
the necessary work and specifying the
intervals following issuance of a license when the work would be commenced and completed.
(e) Exhibit D is a statement of costs
and financing. The statement must
contain:
(1) If the application is for an initial
license, a tabulated statement providing the actual or approximate original cost (approximate costs must be
identified as such) of:
(i) Any land or water right necessary
to the existing project; and
(ii) Each existing structure and facility described under paragraph (b) of
this section (Exhibit A).
(2) If the applicant is a licensee applying for a new license, and is not a
municipality or a state, an estimate of
the amount which would be payable if

115

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00125

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.51

18 CFR Ch. I (4–1–17 Edition)

the project were to be taken over pursuant to section 14 of the Federal
Power Act upon expiration of the license in effect [see 16 U.S.C. 807], including:
(i) Fair value;
(ii) Net investment; and
(iii) Severance damages.
(3) If the application includes proposals for any new development, a
statement of estimated costs, including:
(i) The cost of any land or water
rights necessary to the new development; and
(ii) The cost of the new development
work, with a specification of:
(A) Total cost of each major item;
(B) Indirect construction costs such
as costs of construction equipment,
camps, and commissaries;
(C) Interest during construction; and
(D) Overhead, construction, legal expenses, taxes, administrative and general expenses, and contingencies.
(4) A statement of the estimated average annual cost of the total project
as proposed specifying any projected
changes in the costs (life-cycle costs)
over the estimated financing or licensing period if the applicant takes such
changes into account, including:
(i) Cost of capital (equity and debt);
(ii) Local, state, and Federal taxes;
(iii) Depreciation and amortization;
(iv) Operation and maintenance expenses, including interim replacements, insurance, administrative and
general expenses, and contingencies;
and
(v) The estimated capital cost and estimated annual operation and maintenance expense of each proposed environmental measure.
(5) A statement of the estimated annual value of project power, based on a
showing of the contract price for sale
of power or the estimated average annual cost of obtaining an equivalent
amount of power (capacity and energy)
from the lowest cost alternative
source,
specifying
any
projected
changes in the cost of power from that
source over the estimated financing or
licensing period if the applicant takes
such changes into account.
(6) A statement specifying the
sources and extent of financing and annual revenues available to the appli-

cant to meet the costs identified in
paragraphs (e) (3) and (4) of this section.
(7) An estimate of the cost to develop
the license application;
(8) The on-peak and off-peak values
of project power, and the basis for estimating the values, for projects which
are proposed to operate in a mode
other than run-of-river; and
(9) The estimated average annual increase or decrease in project generation, and the estimated average annual
increase or decrease of the value of
project power, due to a change in
project operations (i.e., minimum bypass flows; limits on reservoir fluctuations).
(f) Exhibit E is an Environmental Report. Information provided in the report must be organized and referenced
according to the itemized subparagraphs below. See § 4.38 for consultation
requirements. The Environmental Report must contain the following information, commensurate with the scope of
the proposed project:
(1) General description of the locale.
The applicant must provide a general
description of the environment of the
project and its immediate vicinity. The
description must include general information concerning climate, topography, wetlands, vegetative cover, land
development, population size and density, the presence of any floodplain and
the occurrence of flood events in the
vicinity of the project, and any other
factors important to an understanding
of the setting.
(2) Report on water use and quality.
The report must discuss the consumptive use of project waters and the impact of the project on water quality.
The report must be prepared in consultation with the state and Federal
agencies with responsibility for management of water quality in the affected stream or other body of water.
Consultation must be documented by
appending to the report a letter from
each agency consulted that indicates
the nature, extent, and results of the
consultation. The report must include:
(i) A description (including specified
volume over time) of existing and proposed uses of project waters for irrigation, domestic water supply, steam-

116

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00126

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
electric plant, industrial, and other
consumptive purposes;
(ii) A description of existing water
quality in the project impoundment
and downstream water affected by the
project and the applicable water quality standards and stream segment classifications;
(iii) A description of any minimum
flow releases specifying the rate of flow
in cubic feet per second (cfs) and duration, changes in the design of project
works or in project operation, or other
measures recommended by the agencies consulted for the purposes of protecting or improving water quality, including measures to minimize the
short-term impacts on water quality of
any proposed new development of
project works (for any dredging or filling, refer to 40 CFR part 230 and 33 CFR
320.3(f) and 323.3(e)) 1;
(iv) A statement of the existing
measures to be continued and new
measures proposed by the applicant for
the purpose of protecting or improving
water quality, including an explanation of why the applicant has rejected any measures recommended by
an agency and described under paragraph (f)(2)(iii) of this section.
(v) A description of the continuing
impact on water quality of continued
operation of the project and the incremental impact of proposed new development of project works or changes in
project operation; and
(3) Report on fish, wildlife, and botanical resources. The report must discuss
fish, wildlife, and botanical resources
in the vicinity of the project and the
impact of the project on those resources. The report must be prepared
in consultation with any state agency
with responsibility for fish, wildlife,
and botanical resources, the U.S. Fish
and Wildlife Service, the National Marine Fisheries Service (if the project
may affect anadromous fish resources
subject to that agency’s jurisdiction),
and any other state or Federal agency
with managerial authority over any
part of the project lands. Consultation
must be documented by appending to
the report a letter from each agency
consulted that indicates the nature, ex1 33 CFR part 323 was revised at 47 FR 31810,
July 22, 1982, and § 323.3(e) no longer exists.

§ 4.51
tent, and results of the consultation.
The report must include:
(i) A description of the fish, wildlife,
and botanical resources of the project
and its vicinity, and of downstream
areas affected by the project, including
identification of any species listed as
threatened or endangered by the U.S.
Fish and Wildlife Service (See 50 CFR
17.11 and 17.12);
(ii) A description of any measures or
facilities recommended by the agencies
consulted for the mitigation of impacts
on fish, wildlife, and botanical resources, or for the protection or improvement of those resources;
(iii) A statement of any existing
measures or facilities to be continued
or maintained and any measures or facilities proposed by the applicant for
the mitigation of impacts on fish, wildlife, and botanical resources, or for the
protection or improvement of such resources, including an explanation of
why the applicant has rejected any
measures or facilities recommended by
an agency and described under paragraph (f)(3)(ii) of this section.
(iv) A description of any anticipated
continuing impact on fish, wildlife, and
botanical resources of continued operation of the project, and the incremental impact of proposed new development of project works or changes in
project operation; and
(v) The following materials and information regarding the measures and facilities identified under paragraph
(f)(3)(iii) of this section:
(A) Functional design drawings of
any fish passage and collection facilities, indicating whether the facilities
depicted are existing or proposed (these
drawings must conform to the specifications of § 4.39 regarding dimensions
of full-sized prints, scale, and legibility);
(B) A description of operation and
maintenance procedures for any existing or proposed measures or facilities;
(C) An implementation or construction schedule for any proposed measures or facilities, showing the intervals
following issuance of a license when
implementation of the measures or
construction of the facilities would be
commenced and completed;
(D) An estimate of the costs of construction, operation, and maintenance,

117

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00127

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.51

18 CFR Ch. I (4–1–17 Edition)

of any proposed facilities, and of implementation of any proposed measures,
including a statement of the sources
and extent of financing; and
(E) A map or drawing that conforms
to the size, scale, and legibility requirements of § 4.39 showing by the use
of shading, cross-hatching, or other
symbols the identity and location of
any measures or facilities, and indicating whether each measure or facility is existing or proposed (the map or
drawings in this exhibit may be consolidated).
(4) Report on historical and archeological resources. The report must discuss the historical and archeological
resources in the project area and the
impact of the project on those resources. The report must be prepared
in consultation with the State Historic
Preservation Officer and the National
Park Service. Consultation must be
documented by appending to the report
a letter from each agency consulted
that indicates the nature, extent, and
results of the consultation. The report
must contain:
(i) Identification of any sites either
listed or determined to be eligible for
inclusion in the National Register of
Historic Places that are located in the
project area, or that would be affected
by operation of the project or by new
development of project facilities (including facilities proposed in this exhibit);
(ii) A description of any measures
recommended by the agencies consulted for the purpose of locating, identifying, and salvaging historical or archaeological resources that would be
affected by operation of the project, or
by new development of project facilities (including facilities proposed in
this exhibit), together with a statement of what measures the applicant
proposes to implement and an explanation of why the applicant rejects any
measures recommended by an agency.
(iii) The following materials and information regarding the survey and
salvage activities described under paragraph (f)(4)(ii) of this section:
(A) A schedule for the activities,
showing
the
intervals
following
issuance of a license when the activities would be commenced and completed; and

(B) An estimate of the costs of the
activities, including a statement of the
sources and extent of financing.
(5) Report on recreational resources.
The report must discuss existing and
proposed recreational facilities and opportunities at the project. The report
must be prepared in consultation with
local, state, and regional recreation
agencies and planning commissions,
the National Park Service, and any
other state or Federal agency with
managerial authority over any part of
the project lands. Consultation must be
documented by appending to the report
a letter from each agency consulted indicating the nature, extent, and results
of the consultation. The report must
contain:
(i) A description of any existing recreational facilities at the project, indicating whether the facilities are available for public use;
(ii) An estimate of existing and potential recreational use of the project
area, in daytime and overnight visits;
(iii) A description of any measures or
facilities recommended by the agencies
consulted for the purpose of creating,
preserving, or enhancing recreational
opportunities at the project and in its
vicinity (including opportunities for
the handicapped), and for the purpose
of ensuring the safety of the public in
its use of project lands and waters;
(iv) A statement of the existing
measures or facilities to be continued
or maintained and the new measures or
facilities proposed by the applicant for
the purpose of creating, preserving, or
enhancing recreational opportunities
at the project and in its vicinity, and
for the purpose of ensuring the safety
of the public in its use of project lands
and waters, including an explanation of
why the applicant has rejected any
measures or facilities recommended by
an agency and described under paragraph (f)(5)(iii) of this section; and
(v) The following materials and information regarding the measures and facilities identified under paragraphs
(f)(5) (i) and (iv) of this section:
(A) Identification of the entities responsible
for
implementing,
constructing, operating, or maintaining
any existing or proposed measures or
facilities;

118

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00128

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(B) A schedule showing the intervals
following issuance of a license at which
implementation of the measures or
construction of the facilities would be
commenced and completed;
(C) An estimate of the costs of construction, operation, and maintenance
of any proposed facilities, including a
statement of the sources and extent of
financing;
(D) A map or drawing that conforms
to the size, scale, and legibility requirements of § 4.39 showing by the use
of shading, cross-hatching, or other
symbols the identity and location of
any facilities, and indicating whether
each facility is existing or proposed
(the maps or drawings in this exhibit
may be consolidated); and
(vi) A description of any areas within
or in the vicinity of the proposed
project boundary that are included in,
or have been designated for study for
inclusion in, the National Wild and
Scenic Rivers System, or that have
been designated as wilderness area, recommended for such designation, or designated as a wilderness study area
under the Wilderness Act.
(6) Report on land management and
aesthetics. The report must discuss the
management of land within the proposed project boundary, including wetlands and floodplains, and the protection of the recreational and scenic values of the project. The report must be
prepared following consultation with
local and state zoning and land management authorities and any Federal
or state agency with managerial authority over any part of the project
lands. Consultation must be documented by appending to the report a
letter from each agency consulted indicating the nature, extent, and results
of the consultation. The report must
contain:
(i) A description of existing development and use of project lands and all
other lands abutting the project impoundment;
(ii) A description of the measures
proposed by the applicant to ensure
that any proposed project works,
rights-of-way, access roads, and other
topographic alterations blend, to the
extent possible, with the surrounding
environment; (see, e.g., 44 F.P.C. 1496, et
seq.);

§ 4.51
(iii) A description of wetlands or
floodplains within, or adjacent to, the
project boundary, any short-term or
long-term impacts of the project on
those wetlands or floodplains, and any
mitigative measures in the construction or operation of the project that
minimize any adverse impacts on the
wetlands or floodplains;
(iv) A statement, including an analysis of costs and other constraints, of
the applicant’s ability to provide a
buffer zone around all or any part of
the impoundment, for the purpose of
ensuring public access to project lands
and waters and protecting the recreational and aesthetic values of the
impoundment and its shoreline;
(v) A description of the applicant’s
policy, if any, with regard to permitting development of piers, docks, boat
landings, bulkheads, and other shoreline facilities on project lands and waters; and
(vi) Maps or drawings that conform
to the size, scale and legibility requirements of § 4.39, or photographs, sufficient to show the location and nature
of the measures proposed under paragraph (f)(6)(ii) of this section (maps or
drawings in this exhibit may be consolidated).
(7) List of literature. The report must
include a list of all publications, reports, and other literature which were
cited or otherwise utilized in the preparation of any part of the environmental
report.
(g) Exhibit F. See § 4.41(g) of this
chapter.
(h) Exhibit G. See § 4.41(h) of this
chapter.
[Order 141, 12 FR 8485, Dec. 19, 1947, as
amended by Order 123, 46 FR 9029, Jan. 28,
1981; Order 183, 46 FR 55251, Nov. 9, 1981;
Order 184, 46 FR 55942, Nov. 13, 1981; Order
413, 50 FR 11684, Mar. 25, 1985; Order 464, 52
FR 5449, Feb. 23, 1987; Order 540, 57 FR 21737,
May 22, 1992; Order 2002, 68 FR 51120, Aug. 25,
2003; 68 FR 61742, Oct. 30, 2003]

119

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00129

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.60

18 CFR Ch. I (4–1–17 Edition)

Subpart G—Application for License for Minor Water Power
Projects and Major Water
Power Projects 5 Megawatts
or Less

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.60 Applicability and notice to agencies.
(a) Applicability. The provisions of
this subpart apply to any application
for an initial license or a new license
for:
(1) A minor water power project, as
defined in § 4.30(b)(17);
(2) Any major project—existing dam,
as defined in § 4.30(b)(16), that has a
total installed capacity of 5 MW or
less; or
(3) Any major unconstructed project
or major modified project, as defined in
§ 4.30 (b) (15) and (14) respectively, that
has a total installed capacity of 5 MW
or less.
(b) Notice to agencies. The Commission
will supply interested Federal, state,
and local agencies with notice of any
application for license for a water
power project 5 MW or less and request
comment on the application. Copies of
the application will be available for inspection at the Commission’s Public
Reference Room. The applicant shall
also furnish copies of the filed application to any Federal, state, or local
agency that so requests.
(c) Unless an applicant for a license
for a minor water power project requests in its application that the Commission apply the following provisions
of Part I of the Federal Power Act
when it issues a minor license for a
project, the Commission, unless it determines it would not be in the public
interest to do so, will waive:
(1) Section 4(b), insofar as it requires
a licensee to file a statement showing
the actual legitimate costs of construction of a project;
(2) Section 4(e), insofar as it relates
to approval by the Chief of Engineers
and the Secretary of the Army of plans
affecting navigation;
(3) Section 6, insofar as it relates to
the acceptance and expression in the license of terms and conditions of the
Federal Power Act that are waived in
the licensing order;

(4) Section 10(c), insofar as it relates
to a licensee’s maintenance of depreciation reserves;
(5) Sections 10(d) and 10(f);
(6) Section 14, with the exception of
the right of the United States or any
state or municipality to take over,
maintain, and operate a project
through condemnation proceedings;
and
(7) Sections 15, 16, 19, 20 and 22.
[Order 413, 50 FR 11685, Mar. 25, 1985, as
amended by Order 513, 54 FR 23806, June 2,
1989; Order 2002, 68 FR 51120, Aug. 25, 2003]

§ 4.61 Contents of application.
(a) General instructions—(1) Entry
upon land. No work may be started on
any proposed project works until the
applicant receives a signed license
from the Commission. Acceptance of
an application does not authorize entry
upon public lands or reservations of the
United States for any purpose. The applicant should determine whether any
additional Federal, state, or local permits are required.
(2) Exhibits F and G must be submitted on separate drawings. Drawings
for Exhibits F and G must have identifying title blocks and bear the following certification: ‘‘This drawing is a
part of the application for license made
by the undersigned this lllllll
day of lllllll, 19ll.’’
(3) Each application for a license for
a water power project 5 megawatts or
less must include the information requested in the initial statement and
lettered exhibits described by paragraphs (b) through (f) of this section,
and must be provided in the form specified. The Commission reserves the
right to require additional information, or another filing procedure, if
data provided indicate such action to
be appropriate.
(b) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATORY
COMMISSION
Application for License for a [Minor Water
Power Project, or Major Water Power Project,
5 Megawatts or Less, as Appropriate]
(1) lllll (Name of Applicant) applies
to the Federal Energy Regulatory Commission for lllll (license or new license, as
appropriate) for the lllll (name of
project) water power project, as described

120

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00130

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
hereinafter. (Specify any previous FERC
project number designation.)
(2) The location of the project is:
State or territory:
lllllllllllll
County: lllllllllllllllllll
Township or nearby town:
lllllllll
Stream or other body of water: lllllll
(3) The exact name, address, and telephone
number of the applicant are:

lpowell on DSK54DXVN1OFR with $$_JOB

llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
(4) The exact name, address, and telephone
number of each person authorized to act as
agent for the applicant in this application, if
applicable, are:
llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
(5) The applicant is a lll [citizen of the
United States, association of citizens of the
United States, domestic corporation, municipality, or State, as appropriate] and (is/is
not) claiming preference under section 7(a)
of the Federal Power Act. See 16 U.S.C. 796.
(6)(i) The statutory or regulatory requirements of the state(s) in which the project
would be located that affect the project as
proposed with respect to bed and banks and
the appropriation, diversion, and use of
water for power purposes, and with respect
to the right to engage in the business of developing, transmitting, and distributing
power and in any other business necessary to
accomplish the purposes of the license under
the Federal Power Act, are: [provide citation
and brief identification of the nature of each
requirement; if the applicant is a municipality, the applicant must submit copies of
applicable state or local laws or a municipal
charter or, if such laws or documents are not
clear, any other appropriate legal authority,
evidencing that the municipality is competent under such laws to engage in the business of developing, transmitting, utilizing,
or distributing power.]
(ii) The steps which the applicant has
taken or plans to take to comply with each
of the laws cited above are: [provide brief description for each requirement]
(7) Brief project description
(i) Proposed installed generating capacity
lll MW.
(ii) Check appropriate box:
b existing dam
b unconstructed dam
b existing dam, major modified project
(see § 4.30(b)(14))
(8) Lands of the United States affected
(shown on Exhibit G):

(i) National Forest ....
(ii) Indian Reservation.

(Name)

(Acres)

................
................

...........
...........

§ 4.61

(iii) Public Lands
Under Jurisdiction
of.
(iv) Other ..................
(v) Total U.S. Lands

(Name)

(Acres)

................

...........

................
................

...........
...........

(vi) Check appropriate box:
b Surveyed land
b Unsurveyed land
(9) Construction of the project is planned
to start within ll months, and is planned
to be completed within ll months, from
the date of issuance of license.

(c) Exhibit A is a description of the
project and the proposed mode of operation.
(1) The exhibit must include, in tabular form if possible, as appropriate:
(i) The number of generating units,
including auxiliary units, the capacity
of each unit, and provisions, if any, for
future units;
(ii) The type of hydraulic turbine(s);
(iii) A description of how the plant is
to be operated, manual or automatic,
and whether the plant is to be used for
peaking;
(iv) The estimated average annual
generation in kilowatt-hours or mechanical energy equivalent;
(v) The estimated average head on
the plant;
(vi) The reservoir surface area in
acres and, if known, the net and gross
storage capacity;
(vii) The estimated minimum and
maximum hydraulic capacity of the
plant (flow through the plant) in cubic
feet per second and estimated average
flow of the stream or water body at the
plant or point of diversion; for projects
with installed capacity of more than
1.5 megawatts, monthly flow duration
curves and a description of the drainage area for the project site must be
provided;
(viii) Sizes, capacities, and construction materials, as appropriate, of pipelines, ditches, flumes, canals, intake
facilities, powerhouses, dams, transmission lines, and other appurtenances;
and
(ix) The estimated cost of the
project.
(x) The estimated capital costs and
estimated annual operation and maintenance expense of each proposed environmental measure.
(2) State the purposes of project (for
example, use of power output).

121

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00131

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.61

18 CFR Ch. I (4–1–17 Edition)

(3) An estimate of the cost to develop
the license application; and
(4) The on-peak and off-peak values
of project power, and the basis for estimating the values, for projects which
are proposed to operate in a mode
other than run-of-river.
(5) The estimated average annual increase or decrease in project generation, and the estimated average annual
increase or decrease of the value of
project power due to a change in
project operations (i.e., minimum bypass flows, limiting reservoir fluctuations) for an application for a new license;
(6) The remaining undepreciated net
investment, or book value of the
project;
(7) The annual operation and maintenance expenses, including insurance,
and administrative and general costs;
(8) A detailed single-line electrical
diagram;
(9) A statement of measures taken or
planned to ensure safe management,
operation, and maintenance of the
project.
(d) Exhibit E is an Environmental Report.
(1) For major unconstructed and
major modified projects 5 MW or less.
Any application must contain an Exhibit E conforming with the data and
consultation requirements of § 4.41(f) of
this chapter, if the application is for license for a water power project which
has or is proposed to have a total installed generating capacity greater
than 1.5 MW but not greater than 5
MW, and which:
(i) Would use the water power potential of a dam and impoundment which,
at the time of application, has not been
constructed (see § 4.30(b)(15)); or
(ii) Involves any repair, modification
or reconstruction of an existing dam
that would result in a significant
change in the normal maximum surface area or elevation of an existing
impoundment or involves any change
in existing project works or operations
that would result in a significant environmental impact (see § 4.30(b)(14)).
(2) For minor projects and major
projects at existing dams 5 MW or less. An
application for license for either a
minor water power project with a total
proposed installed generating capacity

of 1.5 MW or less or a major project—
existing dam with a proposed total installed capacity of 5 MW or less must
contain an Exhibit E under this subparagraph. See § 4.38 for consultation
requirements. The Environmental Report must contain the following information:
(i) A description, including any maps
or photographs which the applicant
considers appropriate, of the environmental setting of the project, including
vegetative cover, fish and wildlife resources, water quality and quantity,
land and water uses, recreational uses,
historical and archeological resources,
and scenic and aesthetic resources. The
report must include a discussion of endangered or threatened plant and animal species, any critical habitats, and
any sites included in, or eligible for inclusion in, the National Register of
Historic Places. The applicant may obtain assistance in the preparation of
this information from state natural resources agencies, the state historic
preservation officer, and from local offices of Federal natural resources agencies.
(ii) A description of the expected environmental impacts from proposed
construction or development and the
proposed operation of the power
project, including any impacts from
any proposed changes in the capacity
and mode of operation of the project if
it is already generating electric power,
and an explanation of the specific
measures proposed by the applicant,
the agencies, and others to protect and
enhance environmental resources and
values and to mitigate adverse impacts
of the project on such resources. The
applicant must explain its reasons for
not undertaking any measures proposed by any agency consulted.
(iii) A description of the steps taken
by the applicant in consulting with
Federal, state, and local agencies with
expertise in environmental matters
during the preparation of this exhibit
prior to filing the application for license with the Commission. In this report, the applicant must:
(A) Indicate which agencies were consulted during the preparation of the environmental report and provide copies
of letters or other documentation
showing that the applicant consulted

122

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00132

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission

Application for License for Transmission Line
Only

connected with FERC Project No. lll, for
which a license [was issued, or application
was
made,
as
appropriate]
on
the
lllllll day of lllllll, 19ll.
(2) The location of the transmission line
would be:
State or territory:
lllllllllllll
County: lllllllllllllllllll
Township or nearby town:
lllllllll
(3) The proposed use or market for the
power to be transmitted.
(4) The exact name, business address, and
telephone number of the applicant are:
llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
(5) The applicant is a [citizen of the United
States, association of citizens of the United
States, domestic corporation, municipality,
or State, as appropriate] and (is/is not)
claiming preference under section 7(a) of the
Federal Power Act. See 16 U.S.C. 796.
(6)(i) [For any applicant which, at the time
of application for license for transmission
line only, is a non-licensee.] The statutory or
regulatory requirements of the state(s) in
which the project would be located and that
affect the project as proposed with respect to
bed and banks and to the appropriation, diversion, and use of water for power purposes,
and with respect to the right to engage in
the business of developing, transmitting, and
distributing power and in any other business
necessary to accomplish the purposes of the
license under the Federal Power Act, are:
[provide citation and brief identification of
the nature of each requirement; if the applicant is a municipality, the applicant must
submit copies of applicable state or local
laws or a municipal charter or, if such laws
or documents are not clear, other appropriate legal authority, evidencing that the
municipality is competent under such laws
to engage in the business of developing,
transmitting, utilizing, or distributing
power.]
(ii) [For any applicant which, at the time
of application for license for transmission
line only, is a licensee.] The statutory or
regulatory requirements of the state(s) in
which the transmission line would be located
and that affect the project as proposed with
respect to bed and banks and to the appropriation, diversion, and use of water for
power purposes, are: [provide citations and
brief identification of the nature of each requirement.]
(iii) The steps which the applicant has
taken or plans to take to comply with each
of the laws cited above are: [provide brief descriptions for each law.]

(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for a [license or new license, as appropriate] for the
[name of project] transmission line only, as
described in the attached exhibits, that is

(b) Required exhibits. The application
must contain the following exhibits, as
appropriate:
(1) For any transmission line that, at
the time the application is filed, is not

or attempted to consult with each of
the relevant agencies (specifying each
agency) before filing the application,
including any terms or conditions of license that those agencies have determined are appropriate to prevent loss
of, or damage to, natural resources;
and
(B) List those agencies that were provided copies of the application as filed
with the Commission, the date or dates
provided, and copies of any letters that
may be received from agencies commenting on the application.
(iv) Any additional information the
applicant considers important.
(e) Exhibit F. See § 4.41(g) of this chapter.
(f) Exhibit G. See § 4.41(h) of this chapter.
[Order 185, 46 FR 55949, Nov. 13, 1981, as
amended by Order 413, 50 FR 11685, Mar. 25,
1985; Order 464, 52 FR 5449, Feb. 23, 1987; Order
513, 54 FR 23806, June 2, 1989; Order 2002, 68
FR 51120, Aug. 25, 2003; 68 FR 61742, Oct. 30,
2003]

Subpart H—Application for
License for Transmission Line Only
§ 4.70

Applicability.

This subpart applies to any application for license issued solely for a
transmission line that transmits power
from a licensed water power project to
the point of junction with the distribution system or with the interconnected
primary transmission system.
[Order 184, 46 FR 55942, Nov. 13, 1981, as
amended by Order 2002, 68 FR 51120, Aug. 25,
2003; 68 FR 61742, Oct. 30, 2003]

§ 4.71 Contents of application.
An application for license for transmission line only must contain the following information in the form specified.
(a) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATION
COMMISSION

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.71

123

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00133

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.80

18 CFR Ch. I (4–1–17 Edition)

constructed and is proposed to be connected to a licensed water power
project with an installed generating capacity of more than 5 MW—Exhibits A,
B, C, D, E, F, and G under § 4.41 of this
chapter;
(2) For any transmission line that, at
the time the application is filed, is not
constructed and is proposed to be connected to a licensed water power
project with an installed generating capacity of 5 MW or less—Exhibits E, F,
and G under § 4.61 of this chapter; and
(3) For any transmission line that, at
the time the application is filed, has
been constructed and is proposed to be
connected to any licensed water power
project—Exhibits E, F, and G under
§ 4.61 of this chapter.
[Order 184, 46 FR 55942, Nov. 13, 1981, as
amended by Order 413, 50 FR 11685, Mar. 25,
1985; Order 699, 72 FR 45324, Aug. 14, 2007]

Subpart I—Application for Preliminary Permit; Amendment and
Cancellation of Preliminary
Permit
AUTHORITY: Federal Power Act, as amended 16 U.S.C. 792–828c; Department of Energy
Organization Act, 42 U.S.C. 7101–7352; E.O.
12009, 42 FR 46267; Public Utility Regulatory
Policies Act of 1978, 16 U.S.C. 2601–2645, unless otherwise noted.

§ 4.80

Applicability.

Sections 4.80 through 4.83 pertain to
preliminary permits under Part I of the
Federal Power Act. The sole purpose of
a preliminary permit is to secure priority of application for a license for a
water power project under Part I of the
Federal Power Act while the permittee
obtains the data and performs the acts
required to determine the feasibility of
the project and to support an application for a license.
[Order 54, 44 FR 61336, Oct. 25, 1979, as amended by Order 413, 50 FR 11685, Mar. 25, 1985]

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.81

Contents of application.

Each application for a preliminary
permit must include the following initial statement and numbered exhibits
containing the information and documents specified:
(a) Initial statement:

BEFORE THE FEDERAL ENERGY REGULATORY
COMMISSION
Application for Preliminary Permit
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for a
preliminary permit for the proposed [name
of project] water power project, as described
in the attached exhibits. This application is
made in order that the applicant may secure
and maintain priority of application for a license for the project under Part I of the Federal Power Act while obtaining the data and
performing the acts required to determine
the feasibility of the project and to support
an application for a license.
(2) The location of the proposed project is:
State or territory:
lllllllllllll
County: lllllllllllllllllll
Township or nearby town:
lllllllll
Stream or other body of water: lllllll
llllllllllllllllllllllll
(3) The exact name, business address, and
telephone number of the applicant are:
llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
The exact name and business address of
each person authorized to act as agent for
the applicant in this application are:
llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
(4) [Name of applicant] is a [citizen, association, citizens, domestic corporation, municipality, or State, as appropriate] and (is/is
not) claiming preference under section 7(a)
of the Federal Power Act. [If the applicant is
a municipality, the applicant must submit
copies of applicable state or local laws or a
municipal charter or, if such laws or documents are not clear, any other appropriate
legal authority, evidencing that the municipality is competent under such laws to engage in the business of development, transmitting, utilizing, or distributing power].
(5) The proposed term of the requested permit is [period not to exceed 36 months].
(6) If there is any existing dam or other
project facility, the applicant must provide
the name and address of the owner of the
dam and facility. If the dam is federally
owned or operated, provide the name of the
agency.

(b) Exhibit 1 must contain a description of the proposed project, specifying
and including, to the extent possible:
(1) The number, physical composition, dimensions, general configuration
and, where applicable, age and condition,
of
any
dams,
spillways,
penstocks, powerhouses, tailraces, or
other structures, whether existing or

124

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00134

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
proposed, that would be part of the
project;
(2) The estimated number, surface
area, storage capacity, and normal
maximum surface elevation (mean sea
level) of any reservoirs, whether existing or proposed, that would be part of
the project;
(3) The estimated number, length,
voltage, interconnections, and, where
applicable, age and condition, of any
primary transmission lines whether existing or proposed, that would be part
of the project [see 16 U.S.C. 796(11)];
(4) The total estimated average annual energy production and installed
capacity (provide only one energy and
capacity value), the hydraulic head for
estimating capacity and energy output,
and the estimated number, rated capacity, and, where applicable, the age
and condition, of any turbines and generators, whether existing or proposed,
that would be part of the project
works;
(5) All lands of the United States
that are enclosed within the proposed
project boundary described under paragraph (d)(3)(i) of this section, identified
and tabulated on a separate sheet by
legal subdivisions of a public land survey of the affected area, if available. If
the project boundary includes lands of
the United States, such lands must be
identified on a completed land description form (FERC Form 587), provided
by the Commission. The project location must identify any Federal reservation, Federal tracts, and townships of
the public land surveys (or official protractions thereof if unsurveyed). A
copy of the form must also be sent to
the Bureau of Land Management state
office where the project is located;
(6) Any other information demonstrating in what manner the proposed project would develop, conserve,
and utilize in the public interest the
water resources of the region.
(c) Exhibit 2 is a description of studies
conducted or to be conducted with respect to the proposed project, including
field studies. Exhibit 2 must supply the
following information:
(1) General requirement. For any proposed project, a study plan containing
a description of:
(i) Any studies, investigations, tests,
or surveys that are proposed to be car-

§ 4.81
ried out, and any that have already
taken place, for the purposes of determining the technical, economic, and financial feasibility of the proposed
project, taking into consideration its
environmental impacts, and of preparing an application for a license for
the project; and
(ii) The approximate locations and
nature of any new roads that would be
built for the purpose of conducting the
studies; and
(2) Work plan for new dam construction. For any development within the
project that would entail new dam construction, a work plan and schedule
containing:
(i) A description, including the approximate location, of any field study,
test, or other activity that may alter
or disturb lands or waters in the vicinity of the proposed project, including
floodplains and wetlands; measures
that would be taken to minimize any
such disturbance; and measures that
would be taken to restore the altered
or disturbed areas; and
(ii) A proposed schedule (a chart or
graph may be used), the total duration
of which does not exceed the proposed
term of the permit, showing the intervals at which the studies, investigations, tests, and surveys, identified
under this paragraph are proposed to
be completed.
(iii) For purposes of this paragraph,
new dam construction means any dam
construction the studies for which
would require test pits, borings, or
other foundation exploration in the
field.
(3) Waiver. The Commission may
waive the requirements of paragraph
(c)(2) pursuant to § 385.207 of this chapter, upon a showing by the applicant
that the field studies, tests, and other
activities to be conducted under the
permit would not adversely affect cultural resources or endangered species
and would cause only minor alterations
or disturbances of lands and waters,
and that any land altered or disturbed
would be adequately restored.
(4) Exhibit 2 must contain a statement of costs and financing, specifying
and including, to the extent possible:
(i) The estimated costs of carrying
out or preparing the studies, investigations, tests, surveys, maps, plans or

125

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00135

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.82

18 CFR Ch. I (4–1–17 Edition)

specifications identified under paragraph (c) of this section;
(ii) The expected sources and extent
of financing available to the applicant
to carry out or prepare the studies, investigations, tests, surveys, maps,
plans, or specifications identified under
paragraph (c) of this section; and
(d) Exhibit 3 must include a map or
series of maps, to be prepared on
United States Geological Survey topographic quadrangle sheets or similar
topographic maps of a State agency, if
available. The maps need not conform to
the precise specifications of § 4.39 (a) and
(b). If the scale of any base map is not
sufficient to show clearly and legibly
all of the information required by this
paragraph, the maps submitted must
be enlarged to a scale that is adequate
for that purpose. (If Exhibit 3 comprises a series of maps, it must also include an index sheet showing, by outline, the parts of the entire project covered by each map of the series.) The
maps must show:
(1) The location of the project as a
whole with reference to the affected
stream or other body of water and, if
possible, to a nearby town or any permanent monuments or objects that can
be noted on the maps and recognized in
the field;
(2) The relative locations and physical interrelationships of the principal
project features identified under paragraph (b) of this section;
(3) A proposed boundary for the
project, enclosing:
(i) All principal project features identified under paragraph (b) of this section, including but not limited to any
dam, reservoir, water conveyance facilities,
powerplant,
transmission
lines, and other appurtenances; if the
project is located at an existing Federal dam, the Federal dam and impoundment must be shown, but may
not be included within the project
boundary;
(ii) Any non-Federal lands and any
public lands or reservations of the
United States [see 16 U.S.C. 796 (1) and
(2)] necessary for the purposes of the
project. To the extent that those public
lands or reservations are covered by a
public land survey, the project boundary must enclose each of and only the
smallest legal subdivisions (quarter-

quarter section, lots, or other subdivisions, identified on the map by subdivision) that may be occupied in whole or
in part by the project.
(4) Areas within or in the vicinity of
the proposed project boundary which
are included in or have been designated
for study for inclusion in the National
Wild and Scenic Rivers System; and
(5) Areas within the project boundary
that, under the provisions of the Wilderness Act, have been:
(i) Designated as wilderness area;
(ii) Recommended for designation as
wilderness area; or
(iii) Designated as wilderness study
area.
(Federal Power Act, as amended, 16 U.S.C.
792–828c (1976); Department of Energy Organization Act, 42 U.S.C. 7101–7352 (Supp. IV 1980);
E.O. 12009, 3 CFR part 142 (1978); 5 U.S.C. 553
(Supp. IV 1980))
[Order 54, 44 FR 61336, Oct. 25, 1979, as amended by Order 123, 46 FR 9029, Jan. 28, 1981; 46
FR 11811, Feb. 11, 1981; Order 225, 47 FR 19056,
May 3, 1982; Order 413, 50 FR 11685, Mar. 25,
1985; Order 2002, 68 FR 51120, Aug. 25, 2003;
Order 655, 70 FR 33828, June 10, 2005; Order
699, 72 FR 45324, Aug. 14, 2007; Order 756, 77
FR 4894, Feb. 1, 2012]

§ 4.82

Amendments.

(a) Any permittee may file an application for amendment of its permit, including any extension of the term of
the permit that would not cause the
total term to exceed five years. (Transfer of a permit is prohibited by section
5 of the Federal Power Act.) Each application for amendment of a permit
must conform to any relevant requirements of § 4.81 (b), (c), and (d).
(b) If an application for amendment
of a preliminary permit requests any
material change in the proposed
project, public notice of the application will be issued as required in
§ 4.32(d)(2)(i).
(c) If an application to extend the
term of a permit is submitted not less
than 30 days prior to the termination
of the permit, the permit term will be
automatically extended (not to exceed
a total term for the permit of five
years) until the Commission acts on
the application for an extension. The
Commission will not accept extension

126

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00136

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
requests that are filed less than 30 days
prior to the termination of the permit.
[Order 413, 50 FR 11685, Mar. 25, 1985, as
amended by Order 499, 53 FR 27002, July 18,
1988; Order 800, 79 FR 59110, Oct. 1, 2014]

§ 4.83

Cancellation and loss of priority.

(a) The Commission may cancel a
preliminary permit after notice and opportunity for hearing if the permittee
fails to comply with the specific terms
and conditions of the permit. The Commission may also cancel a permit for
other good cause shown after notice
and opportunity for hearing. Cancellation of a permit will result in loss of
the permittee’s priority of application
for a license for the proposed project.
(b) Failure of a permittee to file an
acceptable application for a license before the permit expires will result in
loss of the permittee’s priority of application for a license for the proposed
project.
[Order 413, 50 FR 11686, Mar. 25, 1985]

§ 4.84

Surrender of permit.

A permittee must submit a petition
to the Commission before the permittee may voluntarily surrender its
permit. Unless the Commission issues
an order to the contrary, the permit
will remain in effect through the thirtieth day after the Commission issues a
public notice of receipt of the petition.
[Order 413, 50 FR 11686, Mar. 25, 1985]

Subpart J—Exemption of Small
Conduit Hydroelectric Facilities
§ 4.90

Applicability and purpose.

lpowell on DSK54DXVN1OFR with $$_JOB

This subpart implements section
30(b) of the Federal Power Act and provides procedures for obtaining an exemption
for
constructed
or
unconstructed small conduit hydroelectric facilities, as defined in
§ 4.30(b)(30), from all or part of the requirements of Part I of the Federal
Power Act, including licensing, and the
regulations issued under Part I.

§ 4.92
§ 4.91

[Reserved]

§ 4.92 Contents of exemption application.
(a) An application for exemption for
this subpart must include:
(1) An introductory statement, including a declaration that the facility
for which application is made meets
the requirements of § 4.30(b)(30), or if
the facility qualifies but for the discharge requirement of § 4.30(b)(30)(iv),
the introductory statement must identify that fact and state that the application is accompanied by a petition for
waiver of § 4.30(b)(30)(iv) filed pursuant
to § 385.207 of this chapter;
(2) Exhibits A, E, F, and G.
(3) If the project structures would use
or occupy any lands other than federal
lands, an appendix containing documentary evidence showing that the applicant has the real property interests
required under § 4.31(b); and
(4) Identification of all Indian tribes
that may be affected by the project.
(b) Introductory Statement. The introductory statement must be set forth in
the following format:
BEFORE THE FEDERAL ENERGY REGULATORY
COMMISSION
Application for Exemption for Small Conduit
Hydroelectric Facility
[Name of applicant] applies to the Federal
Energy Regulatory Commission for an exemption for the [name of facility], a small
conduit hydroelectric facility that meets the
requirements of [insert the following language, as appropriate: ‘‘§ 4.30(b)(30) of this
subpart’’ or ‘‘§ 4.30(b)(30) of this subpart, except paragraph (b)(30)(iv)’’], from certain
provisions of Part I of the Federal Power
Act.
The location of the facility is:
State or Territory: lllllllllllll
County: lllllllllllllllllll
Township or nearby town:
lllllllll
The exact name and business address of each
applicant are:
llllllllllllllllllllllll
The exact name and business address of each
person authorized to act as agent for the applicant in this application are:
llllllllllllllllllllllll
[Name of applicant] is [a citizen of the
United States, an association of citizens of
the United States, a municipality, State, or
a corporation incorporated under the laws of

[Order 800, 79 FR 59110, Oct. 1, 2014]

127

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00137

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.92

18 CFR Ch. I (4–1–17 Edition)

lpowell on DSK54DXVN1OFR with $$_JOB

(specify the United States or the state of incorporation, as appropriate)].
The provisions of Part I of the Federal
Power Act for which exemption is requested
are:
[List here all sections or subsections for
which exemption is requested.]
[If the facility does not meet the requirement of § 4.30(b)(30)(iv), add the following
sentence: ‘‘This application is accompanied
by a petition for waiver of § 4.30(b)(30)(iv),
submitted pursuant to 18 CFR 385.207.’’]

(c) Exhibit A. Exhibit A must describe
the small conduit hydroelectric facility and proposed mode of operation
with appropriate references to Exhibits
F and G. To the extent feasible the information in this exhibit may be submitted in tabular form. The following
information must be included:
(1) A brief description of any conduits
and associated consumptive water supply
facilities,
intake
facilities,
powerhouses, and any other structures
associated with the facility.
(2) The proximate natural sources of
water that supply the related conduit.
(3) The purposes for which the conduit is used.
(4) The number of generating units,
including auxiliary units, the capacity
of each unit, and provisions, if any, for
future units.
(5) The type of each hydraulic turbine.
(6) A description of how the plant is
to be operated, manually or automatically, and whether the plant is to be
used for peaking.
(7) Estimations of:
(i) The average annual generation in
kilowatt hours;
(ii) The average head of the plant;
(iii) The hydraulic capacity of the
plant (flow through the plant) in cubic
feet per second;
(iv) The average flow of the conduit
at the plant or point of diversion (using
best available data and explaining the
sources of the data and the method of
calculation); and
(v) The average amount of the flow
described in paragraph (c)(7)(iv) of this
section available for power generation.
(8) The planned date for beginning
construction of the facility.
(9) If the hydroelectric facility discharges directly into a natural body of
water and a petition for waiver of
§ 4.30(b)(30)(iv) has not been submitted,

evidence that a quantity of water equal
to or greater than the quantity discharged from the hydroelectric facility
is withdrawn from that water body
downstream into a conduit that is part
of the same water supply system as the
conduit on which the hydroelectric facility is located.
(10) If the hydroelectric facility discharges directly to a point of agricultural, municipal, or industrial consumption, a description of the nature
and location of that point of consumption.
(11) A description of the nature and
extent of any construction of a dam
that would occur in association with
construction of the proposed small conduit hydroelectric facility, including a
statement of the normal maximum surface area and normal maximum surface
elevation of any existing impoundment
before and after that construction; and
any evidence that the construction of
the dam would occur for agricultural,
municipal, or industrial consumptive
purposes even if hydroelectric generating facilities were not installed.
(d) Exhibit G. Exhibit G is a map of
the project and boundary and must
conform to the specifications of
§ 4.41(h) of this chapter.
(e) Exhibit E. This exhibit is an Environmental Report. It must be prepared
pursuant to § 4.38 and must include the
following information, commensurate
with the scope and environmental impact of the facility’s construction and
operation:
(1) A description of the environmental setting in the vicinity of the facility, including vegetative cover, fish
and wildlife resources, water quality
and quantity, land and water uses, recreational use, socio-economic conditions, historical and archeological resources, and visual resources. The report must give special attention to endangered or threatened plant and animal species, critical habitats, and sites
eligible for or included on the National
Register of Historic Places. The applicant may obtain assistance in the preparation of this information from State
natural resources agencies, the State
historic preservation officer, and from
local offices of Federal natural resources agencies.

128

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00138

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
(2) A description of the expected environmental impacts resulting from
the continued operation of an existing
small conduit hydroelectric facility, or
from the construction and operation of
a proposed small conduit hydroelectric
facility, including a discussion of the
specific measures proposed by the applicant and others to protect and enhance environmental resources and to
mitigate adverse impacts of the facility on them.
(3) A description of alternative means
of obtaining an amount of power equivalent to that provided by the proposed
or existing facility.
(4) Any additional information the
applicant considers important.
(f) Exhibit F. Exhibit F is a set of
drawings showing the structures and
equipment of the small conduit hydroelectric facility and must conform to
the specifications of § 4.41(g) of this
chapter.
[Order 76, 45 FR 28090, Apr. 28, 1980, as
amended by Order 413, 50 FR 11686, Mar. 25,
1985; Order 533, 56 FR 23153, May 20, 1991;
Order 2002, 68 FR 51121, Aug. 25, 2003; Order
699, 72 FR 45324, Aug. 14, 2007; Order 800, 79
FR 59110, Oct. 1, 2014]

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.93 Action on exemption applications.
(a) An application for exemption that
does not meet the eligibility requirements of § 4.30(b)(30)(iv) may be accepted, provided the application has been
accompanied by a request for waiver
under § 4.92(a)(1) and the waiver request
has not been denied. Acceptance of an
application that has been accompanied
by a request for waiver under § 4.92(a)(1)
does not constitute a ruling on the
waiver request, unless expressly stated
in the acceptance.
(b) The Commission will circulate a
notice of application for exemption to
interested agencies and Indian tribes at
the time the applicant is notified that
the application is accepted for filing.
(c) In granting an exemption the
Commission may prescribe terms or
conditions in addition to those set
forth in § 4.94, in order to:
(1) Protect the quality or quantity of
the related water supply for agricultural, municipal, or industrial consumption;

§ 4.94
(2) Otherwise protect life, health, or
property;
(3) Avoid or mitigate adverse environmental impact; or
(4) Conserve, develop, or utilize in the
public interest the water power resources of the region.
(d) Conversion to license application. (1)
If an application for exemption under
this subpart is denied by the Commission, the applicant may convert the exemption application into an application for license for the hydroelectric
project.
(2) The applicant must provide the
Commission with written notification,
within 30 days after the date of
issuance of the order denying exemption, that it intends to convert the exemption application into a license application. The applicant must submit
to the Commission, no later than 90
days after the date of issuance of the
order denying exemption, additional
information that is necessary to conform the exemption application to the
relevant regulations for a license application.
(3) If all the information timely submitted is found sufficient, together
with the application for exemption, to
conform to the relevant regulations for
a license application, the converted application will be considered accepted for
filing as of the date that the exemption
application was accepted for filing.
[Order 76, 45 FR 28090, Apr. 28, 1980, as
amended by Order 413, 50 FR 11687, Mar. 25,
1985; Order 533, 56 FR 23153, May 20, 1991;
Order 2002, 68 FR 51121, Aug. 25, 2003; Order
800, 79 FR 59110, Oct. 1, 2014]

§ 4.94 Standard terms and conditions
of exemption.
Any exemption granted under § 4.93
for a small conduit hydroelectric facility is subject to the following standard
terms and conditions:
(a) Article 1. The Commission reserves
the right to conduct investigations
under sections 4(g), 306, 307, and 311 of
the Federal Power Act with respect to
any acts, complaints, facts, conditions,
practices, or other matters related to
the construction, operation, or maintenance of the exempt facility. If any
term or condition of the exemption is
violated, the Commission may revoke
the exemption, issue a suitable order

129

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00139

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.95

18 CFR Ch. I (4–1–17 Edition)

under section 4(g) of the Federal Power
Act, or take appropriate action for enforcement, forfeiture, or penalties
under Part III of the Federal Power
Act.
(b) Article 2. The construction, operation, and maintenance of the exempt
project must comply with any terms
and conditions that the United States
Fish and Wildlife Service, the National
Marine Fisheries Service, and any
state fish and wildlife agencies have
determined are appropriate to prevent
loss of, or damage to, fish or wildlife
resources or otherwise to carry out the
purposes of the Fish and Wildlife Coordination Act, as specified in exhibit
E of the application for exemption
from licensing or in the comments submitted in response to the notice of exemption application.
(c) Article 3. The Commission may revoke this exemption if actual construction of any proposed generating facilities has not begun within two years or
has not been completed within four
years from the effective date of this exemption. If an exemption is revoked
under this article, the Commission will
not accept from the prior exemption
holder a subsequent application for exemption from licensing or a notice of
exemption from licensing for the same
project within two years of the revocation.
(d) Article 4. This exemption does not
confer any right to use or occupy any
federal lands that may be necessary for
the development or operation of the
project. Any right to use or occupy any
federal lands for those purposes must
be obtained from the administering
federal land agencies. The Commission
may accept a license application submitted by any qualified license applicant and revoke this exemption, if any
necessary right to use or occupy federal lands for those purposes has not
been obtained within one year from the
date on which this exemption was
granted.
(e) Article 5. In order to best develop,
conserve, and utilize in the public interest the water resources of the region, the Commission may require that
the exempt facilities be modified in
structure or operation or may revoke
this exemption.

(f) Article 6. The Commission may revoke this exemption if, in the application process, material discrepancies,
inaccuracies, or falsehoods were made
by or on behalf of the applicant.
(g) Article 7. Before transferring any
property interests in the exempt
project, the exemption holder must inform the transferee of the terms and
conditions of the exemption. Within 30
days of transferring the property interests, the exemption holder must inform
the Commission of the identity and address of the transferee.
[Order 76, 45 FR 28090, Apr. 28, 1980, as
amended by Order 413, 50 FR 11687, Mar. 25,
1985; Order 413–A, 56 FR 31331, July 10, 1991;
Order 800, 79 FR 59110, Oct. 1, 2014]

§ 4.95 Surrender of exemption.
(a) To voluntarily surrender its exemption, a holder of an exemption for a
small conduit hydroelectric facility
must file a petition with the Commission.
(b)(1) If construction has begun, prior
to filing a petition with the Commission, the exemption holder must consult with the fish and wildlife agencies
in accordance with § 4.38, substituting
for the information required under
§ 4.38(b)(1) information appropriate to
the disposition and restoration of the
project works and lands. The petition
must set forth the exemption holder’s
plans with respect to disposition and
restoration of the project works and
lands.
(2) If construction has begun, public
notice of the petition will be given,
and, at least 30 days thereafter, the
Commission will act upon the petition.
(c) If no construction has begun, unless the Commission issues an order to
the contrary, the exemption will remain in effect through the thirtieth
day after the Commission issues a public notice of receipt of the petition.
New applications involving the site of
the surrendered exemption may be
filed on the next business day.
(d) Exemptions may be surrendered
only upon fulfillment by the exemption
holder of such obligations under the exemption as the Commission may prescribe and, if construction has begun,
upon such conditions with respect to
the disposition of such project works
and restoration of project lands as may

130

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00140

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
be determined by the Commission and
the Federal and state fish and wildlife
agencies.
(e) Where occupancy of federal lands
or reservations has been permitted by a
federal agency having supervision over
such lands, the exemption holder must
concurrently notify that agency of the
petition to surrender and of the steps
that will be taken to restore the affected federal lands or reservations.

lpowell on DSK54DXVN1OFR with $$_JOB

[Order 413, 50 FR 11687, Mar. 25, 1985, as
amended by Order 800, 79 FR 59111, Oct. 1,
2014]

§ 4.96 Amendment of exemption.
(a) An exemption holder must construct and operate its project as described in the exemption application
approved by the Commission or its delegate.
(b) If an exemption holder desires to
change the design, location, method of
construction or operation of its
project, it must first notify the appropriate Federal and state fish and wildlife agencies and inform them in writing of the changes it intends to implement. If these agencies determine that
the changes would not cause the
project to violate the terms and conditions imposed by the agencies, and if
the changes would not materially alter
the design, location, method of construction or operation of the project,
the exemption holder may implement
the changes. If any of these agencies
determines that the changes would
cause the project to violate the terms
and conditions imposed by the agencies, or if the changes would materially
alter the design, location, method of
construction or the operation of the
project works, the exemption holder
may not implement the changes without first acquiring authorization from
the Commission to amend its exemption, or acquiring a license that authorizes the project, as changed.
(c) An application to amend an exemption may be filed only by the holder of the exemption. An application to
amend an exemption will be governed
by the Commission’s regulations governing applications for exemption. The
Commission will not accept applications in competition with an application to amend an exemption, unless the
Director of the Office of Energy

§ 4.102
Projects determines that it is in the
public interest to do so.
[Order 413, 50 FR 11687, Mar. 25, 1985, as
amended by Order 699, 72 FR 45324, Aug. 14,
2007]

Subpart K—Exemption of Small
Hydroelectric Power Projects
of 10 Megawatts or Less
§ 4.101 Applicability.
This subpart provides procedures for
exemption on a case-specific basis from
all or part of Part I of the Federal
Power Act (Act), including licensing,
for small hydroelectric power projects
as defined in § 4.30(b)(31).
(Energy Security Act of 1980, Pub. L. 96–294,
94 Stat. 611; Federal Power Act, as amended
(16 U.S.C. 792–828c); Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601–
2645); and the Department of Energy Organization Act (42 U.S.C. 7101–7352); E.O. 12009, 3
CFR 142 (1978))
[Order 202, 47 FR 4243, Jan. 29, 1982, as
amended by Order 413, 50 FR 11687, Mar. 25,
1985; Order 482, 52 FR 39630, Oct. 23, 1987;
Order 2002, 68 FR 51121, Aug. 25, 2003; Order
800, 79 FR 59111, Oct. 1, 2014]

§ 4.102 Surrender of exemption.
(a) To voluntarily surrender its exemption, a holder of an exemption for a
small hydroelectric power project must
file a petition with the Commission.
(b)(1) If construction has begun, prior
to filing a petition with the Commission, the exemption holder must consult with the fish and wildlife agencies
in accordance with § 4.38, substituting
for the information required under
§ 4.38(b)(1) information appropriate to
the disposition and restoration of the
project works and lands. The petition
must set forth the exemption holder’s
plans with respect to disposition and
restoration of the project works and
lands.
(2) If construction has begun, public
notice of the petition will be given,
and, at least 30 days thereafter, the
Commission will act upon the petition.
New applications involving the site
may be filed on the next business day.
(c) If no construction had begun, unless the Commission issues an order to
the contrary, the surrender will take
effect at the close of the thirtieth day
after the Commission issues a public

131

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00141

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.103

18 CFR Ch. I (4–1–17 Edition)

notice of receipt of the petition. New
applications involving the site may be
filed on the next business day.
(d) Exemptions may be surrendered
only upon fulfillment by the exemption
holder of such obligations under the exemption as the Commission may prescribe and, if construction has begun,
upon such conditions with respect to
the disposition of such project works
and restoration of project lands as may
be determined by the Commission and
the Federal and state fish and wildlife
agencies.
(e) Where occupancy of federal lands
or reservations has been permitted by a
Federal agency having supervision over
such lands, the exemption holder must
concurrently notify that agency of the
petition to surrender and of the steps
that will be taken to restore the affected U.S. lands or reservations.
[Order 413, 50 FR 11688, Mar. 25, 1985, as
amended by Order 800, 79 FR 59111, Oct. 1,
2014]

§ 4.103 General provisions for case-specific exemption.

lpowell on DSK54DXVN1OFR with $$_JOB

(a) Exemptible projects. Subject to the
provisions in paragraph (b) of this section, § 4.31(c), and §§ 4.105 and 4.106, the
Commission may exempt on a case-specific basis any small hydroelectric
power project from all or part of Part
I of the Act, including licensing requirements. Any applications for exemption for a project shall conform to
the requirements of §§ 4.107 or 4.108, as
applicable.
(b) Limitation for licensed water power
project. The Commission will not accept for filing an application for exemption from licensing for any project
that is only part of a licensed water
power project.
(c) Waiver. In applying for case-specific exemption from licensing, a qualified exemption applicant may petition
under § 385.207 of this chapter for waiver of any specific provision of §§ 4.102
through 4.107. The Commission will
grant a waiver only if consistent with
section 408 of the Energy Security Act
of 1980.
[Order 413, 50 FR 11688, Mar. 25, 1985, as
amended by Order 503, 53 FR 36568, Sept. 21,
1988]

§ 4.104 Amendment of exemption.
(a) An exemption holder must construct and operate its project as described in the exemption application
approved by the Commission or its delegate.
(b) If an exemption holder desires to
change the design, location, method of
construction or operation of its
project, it must first notify the appropriate Federal and state fish and wildlife agencies and inform them in writing of the changes it intends to implement. If these agencies determine that
the changes would not cause the
project to violate the terms and conditions imposed by the agencies, and if
the changes would not materially alter
the design, location, method of construction or operation of the project,
the exemption holder may implement
the changes. If any of these agencies
determines that the changes would
cause the project to violate the terms
and conditions imposed by that agency,
or if the changes would materially
alter the design, location, method of
construction or the operation of the
project works, the exemption holder
may not implement the changes without first acquiring authorization from
the Commission to amend its exemption or acquiring a license for the
project works that authorizes the
project, as changed.
(c) An application to amend an exemption may be filed only by the holder of an exemption. An application to
amend an exemption will be governed
by the Commission’s regulations governing applications for exemption. The
Commission will not accept applications in competition with an application to amend an exemption, unless the
Director of the Office of Energy
Projects determines that it is in the
public interest to do so.
[Order 413, 50 FR 11688, Mar. 25, 1985, as
amended by Order 699, 72 FR 45324, Aug. 14,
2007]

§ 4.105 Action on exemption applications.
(a) Exemption from provisions other
than licensing. An application for exemption of a small hydroelectric power
project from provisions of Part I of the
Act other than the licensing requirement will be processed and considered

132

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00142

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
as part of the related application for license or amendment of license.
(b)(1) Consultation. The Commission
will circulate a notice of application
for exemption from licensing to interested agencies and Indian tribes at the
time the applicant is notified that the
application is accepted for filing.
(2) Non-standard terms and conditions.
In approving any application for exemption from licensing, the Commission may prescribe terms or conditions
in addition to those set forth in § 4.106
in order to:
(i) Protect the quality or quantity of
the related water supply;
(ii) Otherwise protect life, health, or
property;
(iii) Avoid or mitigate adverse environmental impact; or
(iv) Better conserve, develop, or utilize in the public interest the water resources of the region.
(Energy Security Act of 1980, Pub. L. 96–294,
94 Stat. 611; Federal Power Act, as amended
(16 U.S.C. 792–828c); Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2601–
2645); and the Department of Energy Organization Act (42 U.S.C. 7101–7352); E.O. 12009, 3
CFR 142 (1978))
[Order 106, 45 FR 76123, Nov. 18, 1980, as
amended by Order 202, 47 FR 4246, Jan. 29,
1982; Order 413, 50 FR 11688, Mar. 25, 1985;
Order 533, 56 FR 23154, May 20, 1991]

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.106 Standard terms and conditions
of case-specific exemption from licensing.
Any case-specific exemption from licensing granted for a small hydroelectric power project is subject to the
following standard terms and conditions:
(a) Article 1. The Commission reserves
the right to conduct investigations
under sections 4(g), 306, 307, and 311 of
the Federal Power Act with respect to
any acts, complaints, facts, conditions,
practices, or other matters related to
the construction, operation, or maintenance of the exempt project. If any
term or condition of the exemption is
violated, the Commission may revoke
the exemption, issue a suitable order
under section 4(g) of the Federal Power
Act, or take appropriate action for enforcement, forfeiture, or penalties
under Part III of the Federal Power
Act.

§ 4.106
(b) Article 2. The construction, operation, and maintenance of the exempt
project must comply with any terms
and conditions that the United States
Fish and Wildlife Service, the National
Marine Fisheries Service, and any
state fish and wildlife agencies have
determined are appropriate to prevent
loss of, or damage to, fish or wildlife
resources or otherwise to carry out the
purposes of the Fish and Wildlife Coordination Act, as specified in exhibit
E of the application for exemption
from licensing or in the comments submitted in response to the notice of exemption application.
(c) Article 3. The Commission may revoke this exemption if actual construction of any proposed generating facilities has not begun within two years or
has not been completed within four
years from the date on which this exemption was granted. If an exemption
is revoked under this article, the Commission will not accept from the prior
exemption holder a subsequent application for exemption from licensing for
the same project within two years of
the revocation.
(d) Article 4. This exemption is subject to the navigation servitude of the
United States if the project is located
on navigable waters of the United
States.
(e) Article 5. This exemption does not
confer any right to use or occupy any
Federal lands that may be necessary
for the development or operation of the
project. Any right to use or occupy any
Federal lands for those purposes must
be obtained from the administering
Federal land agencies. The Commission
may accept a license application submitted by any qualified license applicant and revoke this exemption, if any
necessary right to use or occupy Federal lands for those purposes has not
been obtained within one year from the
date on which this exemption was
granted.
(f) Article 6. In order to best develop,
conserve, and utilize in the public interest the water resources of the region, the Commission may require that
the exempt facilities be modified in
structure or operation or may revoke
this exemption.

133

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00143

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.107

18 CFR Ch. I (4–1–17 Edition)

(g) Article 7. The Commission may revoke this exemption if, in the application process, material discrepancies,
inaccuracies, or falsehoods were made
by or on behalf of the applicant.
(h) Article 8. Any exempted small hydroelectric power project that utilizes
a dam that is more than 33 feet in
height above streambed, as defined in
18 CFR 12.31(c) of this chapter, impounds more than 2,000 acre-feet of
water, or has a significant or high hazard potential, as defined in 33 CFR part
222, is subject to part 12 of the Commission’s regulations, part 12 of this title
(as they may be amended from time to
time).
(i) Article 9. Before transferring any
property interests in the exempt
project, the exemption holder must inform the transferee of the terms and
conditions of the exemption. Within 30
days of transferring the property interests, the exemption holder must inform
the Commission of the identity and address of the transferee.
[Order 106, 45 FR 76123, Nov. 18, 1980; 45 FR
77420, Nov. 24, 1980, as amended by Order 202,
47 FR 4246, Jan. 29, 1982; Order 413, 50 FR
11688, Mar. 25, 1985; Order 482, 52 FR 39630,
Oct. 23, 1987; Order 413–A, 56 FR 31331, July
10, 1991; Order 756, 77 FR 4894, Feb. 1, 2012;
Order 800, 79 FR 59111, Oct. 1, 2014]

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.107 Contents of application for exemption from licensing.
(a) General requirements. An application for exemption from licensing submitted under this subpart must contain the introductory statement, the
exhibits described in this section, and,
if the project structures would use or
occupy any lands other than Federal
lands, an appendix containing documentary evidence showing that applicant has the real property interests required under § 4.31(c)(2)(ii). The applicant must identify in its application
all Indian tribes that may be affected
by the project.
(b) Introductory statement. The application must include an introductory
statement that conforms to the following format:

BEFORE THE FEDERAL ENERGY REGULATORY
COMMISSION
Application for Exemption of Small
Hydroelectric Power Project From Licensing
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for an
exemption for [name of project], a small hydroelectric power project that is proposed to
have an installed capacity of 10 megawatts
or less, from licensing under the Federal
Power Act. [If applicable: The project is currently licensed as FERC Project No.
llll.]
(2) The location of the project is:
[State or territory] lllllllllllll
llllllllllllllllllllllll
[County] lllllllllllllllllll
[Township or nearby town] lllllllll
llllllllllllllllllllllll
[Stream or body of water] llllllllll
llllllllllllllllllllllll
(3) The exact name and business address of
each applicant are:
llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
(4) The exact name and business address of
each person authorized to act as agent for
the applicant in this application are:
llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
(5) [Name of applicant] is [specify, as appropriate: a citizen of the United States or
other identified nation; an association of
citizens of the United States or other identified nation; a municipality; a state; or a corporation incorporated under the laws of
(specify the United States or the state or nation of incorporation, as appropriate).]

(c) Exhibit A. Exhibit A must describe
the small hydroelectric power project
and its proposed mode of operation. To
the extent feasible, the information in
this exhibit may be submitted in tabular form. The applicant must submit
the following information:
(1) A brief description of any existing
dam and impoundment proposed to be
utilized by the small hydroelectric
power project and any other existing or
proposed project works and appurtenant facilities, including intake facilities,
diversion
structures,
powerhouses, primary transmission
lines, penstocks, pipelines, spillways,
and other structures, and the sizes, capacities, and construction materials of
those structures.
(2) The number of existing and proposed generating units at the project,
including auxiliary units, the capacity

134

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00144

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
of each unit, any provisions for future
units, and a brief description of any
plans for retirement or rehabilitation
of existing generating units.
(3) The type of each hydraulic turbine of the small hydroelectric power
project.
(4) A description of how the power
plant is to be operated, that is, run-ofriver or peaking.
(5) A graph showing a flow duration
curve for the project. Identify stream
gauge(s) and period of record used. If a
synthetic record is utilized, provide details concerning its derivation. Furnish
justification for selection of installed
capacity if the hydraulic capacity of
proposed generating unit(s) plus the
minimum flow requirements, if not usable for power production, is less than
the stream flow that is exceeded 25 percent of the time.
(6) Estimations of:
(i) The average annual generation in
kilowatt-hours;
(ii) The average and design head of
the power plant;
(iii) The hydraulic capacity of each
turbine of the power plant (flow
through the plant) in cubic feet per
second;
(iv) The number of surface acres of
the man-made or natural impoundment
used, if any, at its normal maximum
surface elevation and its net and gross
storage capacities in acre-feet.
(7) The planned date for beginning
and completing the proposed construction or development of generating facilities.
(8) A description of the nature and
extent of any repair, reconstruction, or
other modification of a dam that would
occur in association with construction
or development of the proposed small
hydroelectric power project, including
a statement of the normal maximum
surface area and normal maximum surface elevation of any existing impoundment before and after construction.
(d) Exhibit G. Exhibit G is a map of
the project and boundary and must
conform to the specifications of
§ 4.41(h) of this chapter.
(e) Exhibit E. This exhibit is an environmental report that must include
the following information, commensurate with the scope and environmental
impact of the construction and oper-

§ 4.108
ation of the small hydroelectric power
project. See § 4.38 for consultation requirements.
(1) A description of the environmental setting of the project, including
vegetative cover, fish and wildlife resources, water quality and quantity,
land and water uses, recreational uses,
historical and archeological resources,
and scenic and aesthetic resources. The
report must list any endangered or
threatened plant and animal species,
any critical habitats, and any sites eligible for or included on the National
Register of Historic Places. The applicant may obtain assistance in the preparation of this information from state
natural resources agencies, the state
historic preservation officer, and from
local offices of Federal natural resources agencies.
(2) A description of the expected environmental impacts from the proposed
construction or development and the
proposed operation of the small hydroelectric power project, including any
impacts from any proposed changes in
the capacity and mode of operation of
the project if it is already generating
electric power, and an explanation of
the specific measures proposed by the
applicant, the agencies consulted, and
others to protect and enhance environmental resources and values and to
mitigate adverse impacts of the project
on such resources.
(3) Any additional information the
applicant considers important.
(f) Exhibit F. Exhibit F is a set of
drawings showing the structures and
equipment of the small hydroelectric
facility and must conform to the specifications of § 4.41(g) of this chapter.
[Order 106, 45 FR 76123, Nov. 18, 1980, as
amended by Order 225, 47 FR 19056, May 3,
1982; Order 413, 50 FR 11689, Mar. 25, 1985;
Order 494, 53 FR 15381, Apr. 29, 1988; Order 533,
56 FR 23154, May 20, 1991; Order 2002, 68 FR
51121, Aug. 25, 2003; Order 699, 72 FR 45324,
Aug. 14, 2007; Order 800, 79 FR 59111, Oct. 1,
2014]

§ 4.108 Contents of application for exemption from provisions other than
licensing.
An application for exemption of a
small hydroelectric power project from
provisions of Part I of the Act other
than the licensing requirement need

135

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00145

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 4.200

18 CFR Ch. I (4–1–17 Edition)

not be prepared according to any specific format, but must be included as
an identified appendix to the related
application for license or amendment
of license. The application for exemption must list all sections or subsections of Part I of the Act for which
exemption is requested.
[Order 106, 45 FR 76123, Nov. 18, 1980]

Subpart L—Application for
Amendment of License
§ 4.200 Applicability.
This part applies to any application
for amendment of a license, if the applicant seeks to:
(a) Make a change in the physical
features of the project or its boundary,
or make an addition, betterment, abandonment, or conversion, of such character as to constitute an alteration of
the license;
(b) Make a change in the plans for
the project under license; or
(c) Extend the time fixed in the license for commencement or completion of project works.
[Order 184, 46 FR 55943, Nov. 13, 1981, as
amended by Order 2002, 68 FR 51121, Aug. 25,
2003]

§ 4.201 Contents of application.
An application for amendment of a
license for a water power project must
contain the following information in
the form specified.
(a) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATORY
COMMISSION

lpowell on DSK54DXVN1OFR with $$_JOB

Application for Amendment of License
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for an
amendment of license for the [name of
project] water power project.
(2) The exact name, business address, and
telephone number of the applicant are:
llllllllllllllllllllllll
llllllllllllllllllllllll
llllllllllllllllllllllll
(3) The applicant is a [citizen of the United
States, association of citizens of the United
States, domestic corporation, municipality,
or state, as appropriate, see 16 U.S.C. 796], licensee for the water power project, designated as Project No. lll in the records
of the Federal Energy Regulatory Commission, issued on the llllll day of
lllllll, 19ll.

(4) The amendments of license proposed
and the reason(s) why the proposed changes
are necessary, are: [Give a statement or description]
(5)(i) The statutory or regulatory requirements of the state(s) in which the project
would be located that affect the project as
proposed with respect to bed and banks and
to the appropriation, diversion, and use of
water for power purposes are: [provide citation and brief identification of the nature of
each requirement.]
(ii) The steps which the applicant has
taken or plans to take to comply with each
of the laws cited above are: [provide brief description for each law.]

(b) Required exhibits for capacity related amendments. Any application to
amend a license for a hydropower
project that involves additional capacity not previously authorized, and that
would increase the actual or proposed
total installed capacity of the project,
would result in an increase in the maximum hydraulic capacity of the project
of 15 percent or more, and would result
in an increase in the installed nameplate capacity of 2 megawatts or more,
must contain the following exhibits, or
revisions or additions to any exhibits
on file, commensurate with the scope
of the licensed project:
(1) For amendment of a license for a
water power project that, at the time
the application is filed, is not constructed and is proposed to have a total
installed generating capacity of more
than 5 MW—Exhibits A, B, C, D, E, F,
and G under § 4.41 of this chapter;
(2) For amendment of a license for a
water power project that, at the time
the application is filed, is not constructed and is proposed to have a total
installed generating capacity of 1.5 MW
or less—Exhibits E, F, and G under
§ 4.61 of this chapter;
(3) For amendment of a license for a
water power project that, at the time
the application is filed, is not constructed and is proposed to have a total
installed generating capacity of 5 MW
or less, but more than 1.5 MW—Exhibits F and G under § 4.61 of this chapter,
and Exhibit E under § 4.41 of this chapter;
(4) For amendment of a license for a
water power project that, at the time
the application for amendment is filed,
has been constructed, and is proposed

136

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00146

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
to have a total installed generating capacity of 5 MW or less—Exhibit E, F
and G under § 4.61 of this chapter;
(5) For amendment of a license for a
water power project that, at the time
the application is filed, has been constructed and is proposed to have a total
installed generating capacity of more
than 5 MW—Exhibits A, B, C, D, E, F,
and G under § 4.51 of this chapter.
(c) Required exhibits for non-capacity
related amendments. Any application to
amend a license for a water power
project that would not be a capacity
related amendment as described in
paragraph (b) of this section must contain those exhibits that require revision in light of the nature of the proposed amendments.
(d) Consultation and waiver. (1) If an
applicant for license amendment under
this subpart believes that any exhibit
required under paragraph (b) of this
section is inappropriate with respect to
the particular amendment of license
sought by the applicant, a petition for
waiver of the requirement to submit
such exhibit may be submitted to the
Commission under § 385.207 of this chapter, after consultation with the Commission’s Division of Hydropower Compliance and Administration.
(2) A licensee wishing to file an application for amendment of license under
this section may seek advice from the
Commission staff regarding which exhibits(s) must be submitted and whether the proposed amendment is consistent with the scope of the existing
licensed project.
[Order 184, 46 FR 55943, Nov. 13, 1981, as
amended by Order 225, 47 FR 19056, May 3,
1982; 48 FR 4459, Feb. 1, 1983; 48 FR 16653, Apr.
19, 1983; Order 413, 50 FR 11689, Mar. 25, 1985;
Order 533, 56 FR 23154, May 20, 1991; Order 756,
77 FR 4894, Feb. 1, 2012]

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.202 Alteration and extension of license.
(a) If it is determined that approval
of the application for amendment of license would constitute a significant alteration of license pursuant to section
6 of the Act, 16 U.S.C. 799, public notice
of such application shall be given at
least 30 days prior to action upon the
application.
(b) Any application for extension of
time fixed in the license for commence-

§ 4.300
ment or completion of construction of
project works must be filed with the
Commission not less than three
months prior to the date or dates so
fixed.
[Order 184, 46 FR 55943, Nov. 13, 1981]

Subpart M—Fees Under Section
30(e) of the Act
SOURCE: Order 487, 52 FR 48404, Dec. 22,
1987, unless otherwise noted.

§ 4.300 Purpose, definitions, and applicability.
(a) Purpose. This subpart implements
the amendments of section 30 of the
Federal Power Act enacted by section
7(c) of the Electric Consumers Protection Act of 1986 (ECPA). It establishes
procedures for reimbursing fish and
wildlife agencies for costs incurred in
connection with applications for an exemption from licensing and applications for licenses seeking benefits
under section 210 of the Public Utility
Regulatory Policies Act of 1978, as
amended, for a project that would impound or divert the water of a natural
watercourse by means of a new dam or
diversion.
(b) Definitions. For the purposes of
this subpart—
(1) Cost means an expenditure made
by a fish and wildlife agency:
(i) On or after the effective date of
this regulation for an application filed
on or after the effective date of this
regulation; and
(ii) Directly related to setting mandatory terms and conditions for a proposed project pursuant to section 30(c)
of the Federal Power Act.
(2) Cost statement means a statement
of the total costs for which a fish and
wildlife agency requests reimbursement including an itemized schedule of
costs including, but not limited to,
costs of fieldwork and testing, contract
costs, travel costs, personnel costs, and
administrative and overhead costs.
(3) Mandatory terms and conditions
means terms and conditions of a license or exemption that a fish and
wildlife agency determines are appropriate to prevent loss of, or damage to,
fish and wildlife resources pursuant to
section 30(c) of the Federal Power Act.

137

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00147

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.301

18 CFR Ch. I (4–1–17 Edition)

(4) New dam or diversion license applicant means an applicant for a license
for a project that would impound or divert the water of a natural watercourse
by means of a new dam or diversion, as
defined in section 210(k) of the Public
Utility Regulatory Policies Act of 1978,
as amended.
(5) PURPA benefits means benefits
under section 210 of the Public Utility
Regulatory Policies Act of 1978, as
amended.
(6) Section 30(c) application means an
application for an exemption from licensing or a new dam or diversion license application seeking PURPA benefits.
(c) Applicability. Except as provided
in paragraph (d) of this section, this
subpart applies to:
(1) Any application for exemption
filed on or after the effective date of
these regulations for costs incurred by
fish and wildlife agencies after the effective date of these regulations;
(2) Any new dam or diversion license
application seeking PURPA benefits
filed on or after April 16, 1988;
(3) Any new dam or diversion license
application seeking PURPA benefits
filed after the effective date of this regulation, but before April 16, 1988, if the
applicant fails to demonstrate in a
monetary resources petition filed with
the Commission pursuant to § 292.208 of
this chapter that, before October 16,
1986, it had committed substantial
monetary resources directly related to
the development of the proposed
project and to the diligent and timely
completion of all requirements of the
Commission for filing an acceptable application; and
(4) Any new dam or diversion license
application seeking PURPA benefits
filed after the effective date of this regulation, if the application is not accepted for filing before October 16, 1989.
(d) Exceptions. (1) This subpart does
not apply to any new dam or diversion
license application seeking PURPA
benefits if the moratorium described in
section 8(e) of ECPA is in effect. The
moratorium will end at the expiration
of the first full session of Congress following the session during which the
Commission reports to Congress on the
results of the study required under section 8(d) of ECPA.

(2) This subpart does not apply to any
new dam or diversion license application seeking PURPA benefits for a
project located at a Government dam,
as defined in section 3(10) of the Federal Power Act, at which non-Federal
hydroelectric development is permissible.
§ 4.301 Notice to fish and wildlife agencies and estimation of fees prior to
filing.
(a) Notice to agencies—(1) New dam or
diversion license applicants. During the
initial stage or pre-filing agency consultation under § 4.38(b)(1), a prospective new dam or diversion license applicant must inform each fish and wildlife agency consulted in writing with a
copy to the Commission whether it will
seek PURPA benefits.
(2) Exemption applicants. During the
initial stage of pre-filing agency consultation under § 4.38(b)(1), a prospective exemption applicant must notify
each fish and wildlife agency consulted
that it will seek an exemption from licensing.
(b) Estimate of fees. Within the comment period provided in § 4.38(c)(5), a
fish and wildlife agency must provide a
prospective section 30(c) applicant with
a reasonable estimate of the total costs
the agency anticipates it will incur to
set mandatory terms and conditions
for the proposed project. An agency
may provide an applicant with an updated estimate as it deems necessary.
If an agency believes that its most recent estimate will be exceeded by more
than 25 percent, it must supply the prospective applicant or applicant with a
new estimate and submit a copy to the
Commission.
[Order 141, 12 FR 8485, Dec. 19, 1947, as
amended by Order 756, 77 FR 4894, Feb. 1,
2012]

§ 4.302 Fees at filing.
(a) Filing requirement. A section 30(c)
application must be accompanied by a
fee or a bond, together with copies of
the most recent cost estimates provided by fish and wildlife agencies pursuant to § 4.301(b).
(b) Amount. The fee required under
paragraph (a) of this section must be in
an amount equal to 50 percent of the
most recent cost estimates provided by

138

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00148

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission

lpowell on DSK54DXVN1OFR with $$_JOB

fish and wildlife agencies pursuant to
§ 4.301(b). In lieu of this amount, an applicant may provide an unlimited term
surety bond from a company on the Department of Treasury’s list of companies certified to write surety bonds.
Applicants bonded by a company whose
certification by the Department of the
Treasury lapses must provide evidence
of purchase of another bond from a certified company. A bond must be for an
amount no less than 100 percent of the
agencies’ most recent cost estimates
pursuant to § 4.301(b).
(c) Failure to file. The Commission
will reject a section 30(c) application if
the applicant fails to comply with the
provisions of paragraphs (a) and (b) of
this section.
§ 4.303 Post-filing procedures.
(a) Submission of cost statement—1) Accepted applications. Within 60 days after
the last date for filing mandatory
terms and conditions pursuant to
§ 4.32(c)(4) for a new dam or diversion license application seeking PURPA benefits, § 4.93(b) for an application for exemption of a small conduit hydroelectric facility, or § 4.105(b)(1) for an
application for case-specific exemption
of a small hydroelectric power project,
a fish and wildlife agency must file
with the Commission a cost statement
of the reasonable costs the agency incurred in setting mandatory terms and
conditions for the proposed project. An
agency may request, in writing, along
with any supporting documentation an
extension of this 60-day period.
(2) Rejected, withdrawn or dismissed
applications. The Director of the Office
of Energy Projects (Director) will, by
letter, notify each fish and wildlife
agency if a section 30(c) application is
rejected, withdrawn or dismissed.
Within 60 days from the date of notification, a fish and wildlife agency must
file with the Commission a cost statement of the reasonable costs the agency incurred prior to the date the application was rejected, withdrawn, or dismissed. An agency may submit a written request for an extension of this 60day period along with any supporting
documentation.
(b) If an agency has not submitted a
cost statement or extension request
within the time provided in paragraph

§ 4.303
(a)(2) of this section, it waives its right
to receive fees for that project pursuant to this subpart.
(c) Billing. After the Commission receives a cost statement from all fish
and wildlife agencies as required by
paragraph (a) of this section, the Commission will bill the section 30(c) applicant. The bill will show:
(1) The cost statement submitted to
the Commission by each fish and wildlife agency;
(2) Any amounts already paid by the
applicant pursuant to § 4.302; and
(3)(i) The amount due, if the amount
already paid by the applicant pursuant
to § 4.302 is less than the total of all the
cost statements; or
(ii) The amount to be refunded to the
applicant, if the amount already paid
by the applicant pursuant to § 4.302 is
more than the total of all the cost
statements.
(d) Within 45 days from the date of a
bill issued under paragraph (b) of this
section, a section 30(c) applicant must
pay in full to the Commission any remaining amounts due on the cost
statements regardless of whether any
of these amounts are in dispute.
(e) Dispute procedures—(1) When to dispute. Any dispute regarding the reasonableness of any fish and wildlife agency
cost statement must be made within 45
days from the date of a bill issued
under paragraph (b) of this section.
(2) Assessment of disputed cost statements The burden of showing that an
agency’s cost statement is unreasonable is on the applicant. However, a
fish and wildlife agency must supply
the disputing applicant and the Commission with the documentation necessary to support its cost statement.
The Director of the Office of Energy
Projects will determine the reasonableness of a disputed fish and wildlife
agency cost statement. The Director’s
decision will be in writing. The Director will notify the disputing applicant
and the fish and wildlife agency of the
decision by letter. Any decision of the
Director may be appealed by either
party pursuant to 18 CFR 385.1902. In
deciding whether or not a disputed cost
statement is reasonable, the Director
will review the application, the disputed cost statement and any other

139

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00149

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 4.304

18 CFR Ch. I (4–1–17 Edition)

documentation relating to the particular environmental problems associated with the disputing applicant’s proposed project. The Director will consider such factors as:
(i) The time the fish and wildlife
agency spent reviewing the application;
(ii) The proportion of the cost statement to the time the fish and wildlife
agency spent reviewing the application;
(iii) Whether the fish and wildlife
agency’s expenditures conform to Federal expenditure guidelines for such
items as travel, per diem, personnel,
and contracting; and
(iv) Whether the studies conducted
by the agency, if any, are duplicative,
limited to the proposed project area,
unnecessary to determine the impacts
to or mitigation measures for the particular fish and wildlife resources affected by the proposed project, or otherwise unnecessary to set terms and
conditions for the proposed project.
(3) Unreasonable cost statements. If the
Director determines that a disputed
fish and wildlife agency cost statement
is unreasonable, the disputing applicant and the fish and wildlife agency
will be afforded 45 days from the date
of notification to attempt to reach an
agreement regarding the reimbursable
costs of the agency. If the disputing applicant and the fish and wildlife agency
fail to reach an agreement on the disputed cost statement within 45 days
from the date of notification, the Director will determine the costs that
the agency should reasonably have incurred.
(f) Refunds. (1) If the amount paid by
a section 30(c) applicant under § 4.302
exceeds the total amount of the cost
statements submitted by fish and wildlife agencies under paragraph (a) of
this section, the Commission will notify the Treasury to refund the difference to the applicant within 45 days
from the date of the bill issued to the
applicant under paragraph (b) of this
section.
(2) If the amount paid by a section
30(c) applicant exceeds the amount determined to be reasonable by the Director pursuant to paragraph (d)(2) of this
section, the Commission will notify the
Treasury to refund the difference to

the applicant within 45 days of the resolution of all dispute proceedings.
[Order 487, 52 FR 48404, Dec. 22, 1987, as
amended by Order 647, 69 FR 32438, June 10,
2004]

§ 4.304 Payment.
(a) A payment required under this
subpart must be made by check payable to the United States Treasury.
The check must indicate that the payment is for ECPA Fees.
(b) If a payment required under this
subpart is not made within the time
period prescribed for making such payment, interest and penalty charges will
be assessed. Interest and penalty
charges will be computed in accordance
with 31 U.S.C. 3717 and 4 CFR part 102.
(c) The Commission will not issue a
license or exemption, unless the applicant has made full payments of any
fees due under § 4.303(c).
§ 4.305 Enforcement.
(a) The Commission may take any
appropriate action permitted by law if
a section 30(c) applicant does not make
a payment required under this subpart.
The Commission will not be liable to
any fish and wildlife agency for failure
to collect any amounts under this subpart.
(b) If the Commission is unable to
collect the full amount due by a section 30(c) applicant on behalf of more
than one agency, the amount the Commission does collect will be distributed
to the agencies on a pro-rata basis except if an agency’s cost statement is
greater than its most recent estimate
to the applicant under § 4.301(b), then
the difference between the estimate
and the cost statement will not be reimbursed until any amounts owed to
other agencies have been paid.

Subpart N—Notice of Intent To
Construct Qualifying Conduit
Hydropower Facilities
SOURCE: Order 800, 79 FR 59111, Oct. 1, 2014,
unless otherwise noted.

§ 4.400 Applicability and purpose.
This part implements section 30(a) of
the Federal Power Act, as amended by
the Hydropower Regulatory Efficiency

140

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00150

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

Federal Energy Regulatory Commission
Act of 2013, and provides procedures for
obtaining a determination from the
Commission that the facility to be constructed is a qualifying conduit hydropower
facility,
as
defined
in
§ 4.30(b)(26), and thus, is not required to
be licensed under Part I of the FPA.
§ 4.401 Contents of notice of intent to
construct a qualifying conduit hydropower facility.
(a) A notice of intent to construct a
qualifying conduit hydropower facility
submitted under this subpart must
contain the following:
(1) An introductory statement as described in paragraph (b) of this section;
(2) A statement that the proposed
project will use the hydroelectric potential of a non-federally owned conduit as set forth in paragraph (c) of
this section;
(3) A statement that the proposed facility has not been licensed or exempted from the licensing requirements of
Part I of the FPA, on or before August
9, 2013, the date of enactment of the
Hydropower Regulatory Efficiency Act,
as set forth in in paragraph (d) of this
section;
(4) A description of the proposed facility as set forth in paragraph (e) of
this section;
(5) Project drawings as set forth in
paragraph (f) of this section;
(6) If applicable, the preliminary permit project number for the proposed facility; and,
(7) Verification as set forth in paragraph (g) of this section.
(b) Introductory statement. The introductory statement must be set forth in
the following format:
BEFORE THE FEDERAL ENERGY
REGULATORY COMMISSION

lpowell on DSK54DXVN1OFR with $$_JOB

NOTICE OF INTENT TO CONSTRUCT
QUALIFYING CONDUIT HYDROPOWER FACILITY
[Name of applicant] applies to the
Federal Energy Regulatory Commission for a determination that the [facility name] is a qualifying conduit hydropower facility, meeting the requirements of section 30(a) of the Federal
Power Act, as amended by section 4 of
the Hydropower Regulatory Efficiency
Act of 2013.

§ 4.401
The location of the facility is:
State or Territory: lllllllllllll
County: lllllllllllllllllll
Township or nearby town:
lllllllll
Water source: llllllllllllllll
The exact name and business address of the
applicant(s) are:
Applicant’s Name:
lllllllllllll
Address: lllllllllllllllllll
Telephone Number: lllllllllllll
Email Address: lllllllllllllll
The exact name and business address of
each person authorized to act as an agent for
the applicant(s) in this notice of intent are:
Name of Agent: lllllllllllllll
Address: lllllllllllllllllll
Telephone Number: lllllllllllll
Email Address: lllllllllllllll
[Name of applicant] is [a citizen of the
United States, an association of citizens of
the United States, a municipality, State, or
a corporation incorporated under the laws of
(specify the United States or the state of incorporation), as appropriate].

(c) Non-Federal Conduit Statement.
The non-federal conduit statement
must be set forth in the following format:
The [facility name] will use the hydroelectric potential of a non-federally
owned conduit.
(d) Original facility statement. The
original facility statement must be set
forth in the following format:
The [facility name] has not been licensed or exempted from the licensing
requirements of Part I of the FPA, on
or before August 9, 2013, the date of enactment of the Hydropower Regulatory
Efficiency Act.
(e) Description of proposed facility. Description of proposed facility must include:
(1) A detailed description of any conduits and associated consumptive
water supply facilities, intake facilities, powerhouses, and any other structures associated with the facility;
(2) The purposes for which the conduit is used;
(3) The number, type, generating capacity (kW or MW), and estimated average annual generation (kWh or MWh)
of the generating units and brief description of any plans for future units;
and,
(4) A description of the nature and
extent of the dam that would occur in
association with construction of the

141

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00151

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Pt. 5

18 CFR Ch. I (4–1–17 Edition)

proposed qualifying conduit hydroelectric facility, including a statement
of the normal maximum surface area
and normal maximum surface elevation of any existing impoundment
before and after that construction; and
any evidence that the construction of
the dam would occur for agricultural,
municipal, or industrial consumptive
purposes even if the hydropower generating facilities were not installed.
(f) Drawings, maps, diagrams. Include
a set of drawings/maps/diagrams showing the structures and equipment of
the hydropower facility in relation to
the existing conduit. Drawings of the
facility must include:
(1) A Plan View (overhead view)
drawing of the proposed hydropower facilities, which includes the following:
(i) The hydropower facilities, including all intake and discharge pipes, and
how those pipes connect to the conduit;
(ii) The portion of the conduit in
proximity to the facilities on which the
hydropower facilities will be located;
(iii) The dimensions (e.g., length,
width, diameter) of all facilities, intakes, discharges, and conduits;
(iv) Identification of facilities as either existing or proposed;
(v) The flow direction labelled on all
intakes, discharges, and conduits; and,
(2) A Location Map showing the facilities and their relationship to the
nearest town, which includes the following:
(i) The powerhouse location labeled,
and its latitude and longitude identified; and,
(ii) The nearest town, if possible, or
other permanent monuments or objects, such as roads or other structures
that can be easily noted on the map
and identified in the field.
(3) If a dam would be constructed in
association with the facility, a profile
drawing showing the conduit, and not
the dam, creates the hydroelectric potential.
(g) Verification. Provide verification
using either a sworn, notarized statement set forth in paragraph (g)(1) of
this section or an unsworn statement
set forth in paragraph (g)(2) of this section.
(1) As to any facts alleged in the notice of intent to construct or other materials filed, be subscribed and verified

under oath in the form set forth below
by the person filing, an officer thereof,
or other person having knowledge of
the matters set forth. If the subscription and verification is by anyone
other than the person filing or an officer thereof, it shall include a statement of the reasons therefor.
This (notice of intent to construct,
etc.) is executed in the:
State of: lllllllllllllllllll
County of: llllllllllllllllll
by:
(Name)
lllllllllllllllllll
(Address) llllllllllllllllll
being duly sworn, depose(s) and say(s) that
the contents of this (notice of intent to construct, etc.) are true to the best of (his or
her) knowledge or belief. The undersigned
applicant(s) has (have) signed the (notice of
intent to construct, etc.) this lllllday
of llllll, 20ll.
By:
lllllllllllllllllllll
Subscribed and sworn to before me, a
llllll [Notary Public, or title of other
official authorized by the state to notarize
documents, as appropriate] of the State of
llllllthis day of llllll, 20ll.
/SEAL/[if any]
lllllllllllllllllllllll
(Notary Public, or other authorized official)
(2) I declare (or certify, verify, or state)
under penalty of perjury that the foregoing
is
true
and
correct.
Executed
on
llllll[date].
lllllllllllllllllllllll
(Signature)

PART 5—INTEGRATED LICENSE
APPLICATION PROCESS
Sec.
5.1 Applicability, definitions, and requirement to consult.
5.2 Document availability
5.3 Process selection.
5.4 Acceleration of a license expiration
date.
5.5 Notification of intent.
5.6 Pre-application document.
5.7 Tribal consultation.
5.8 Notice of commencement of proceeding
and scoping document, or of approval to
use traditional licensing process or alternative procedures.
5.9 Comments and information or study requests.

142

VerDate Sep<11>2014

16:16 May 22, 2017

Jkt 241061

PO 00000

Frm 00152

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31