18 Cfr 4.31-4.32

Federal Energy Regulatory Commission

§ 4.32

§ 4.31 Initial or competing application:
who may file.

may apply for exemption
project from licensing.

of

(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.
Any citizen, association of citizens, domestic corporation, municipality, or
state that has all of the real property
interests 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. Any person having 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 person 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 person who has all of the real property interests in non-Federal lands necessary
to develop and operate that project, or
an option to obtain those interests,

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

that

§ 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 before filing the application, a good faith
effort to give notification by certified
mail of the filing of the application to:

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§ 4.32

18 CFR Ch. I (4–1–13 Edition)
(Notary Public, or other authorized official)

(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
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.
/SEAL/ [if any]
llllllllllllllllllllllll

(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 originals
(microfilm) of maps and drawings are
not to be filed initially, but will be required pursuant to paragraph (d) of
this section. The Commission may also
ask for the filing of full-sized prints in
appropriate cases.

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Federal Energy Regulatory Commission
(2) Each applicant for exemption
must submit the application to the
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. The originals (microfilm) of maps and drawing are not to be
filed initially, but will be requested
pursuant to paragraph (d) of this section.
(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.

§ 4.32
(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
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

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§ 4.32

18 CFR Ch. I (4–1–13 Edition)

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 additional 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 sec-

tion 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
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

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Federal Energy Regulatory Commission
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 require-

§ 4.32
ments 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
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

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§ 4.33

18 CFR Ch. I (4–1–13 Edition)

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

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