18 CFR Part 5

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Pt. 5

18 CFR Ch. I (4–1–18 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.

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Federal Energy Regulatory Commission
5.10
5.11

Scoping document 2.
Potential Applicant’s proposed study
plan and study plan meetings.
5.12 Comments on proposed study plan.
5.13 Revised study plan and study plan determination.
5.14 Formal study dispute resolution process.
5.15 Conduct of studies.
5.16 Preliminary licensing proposal.
5.17 Filing of application.
5.18 Application content.
5.19 Tendering notice and schedule.
5.20 Deficient applications.
5.21 Additional information.
5.22 Notice of acceptance and ready for environmental analysis.
5.23 Response to notice.
5.24 Applications not requiring a draft
NEPA document.
5.25 Applications requiring a draft NEPA
document.
5.26 Section 10(j) process.
5.27 Amendment of application.
5.28 Competing applications.
5.29 Other provisions.
5.30 Critical Energy Infrastructure Information.
5.31 Transition provision.
AUTHORITY: 16 U.S.C. 792–828c, 2601–2645; 42
U.S.C. 7101–7352.

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SOURCE: Order 2002, 68 FR 51121, Aug. 25,
2003, unless otherwise noted.

§ 5.1 Applicability, definitions, and requirement to consult.
(a) This part applies to the filing and
processing of an application for an:
(1) Original license;
(2) New license for an existing project
subject to Sections 14 and 15 of the
Federal Power Act; or
(3) Subsequent license.
(b) Definitions. The definitions in
§ 4.30(b) of this chapter and § 16.2 of this
chapter apply to this chapter.
(c) Who may file. Any citizen, association of citizens, domestic corporation,
municipality, or state may develop and
file a license application under this
part.
(d) Requirement to consult. (1) Before
it files any application for an original,
new, or subsequent license under this
part, a potential applicant must consult with the relevant Federal, state,
and interstate resource agencies, including as appropriate the National
Marine Fisheries Service, the United
States Fish and Wildlife Service, Bureau of Indian Affairs, the National
Park Service, the United States Envi-

§ 5.2
ronmental Protection Agency, the Federal agency administering any United
States lands utilized or occupied by the
project, the appropriate state fish and
wildlife agencies, the appropriate state
water resource management agencies,
the certifying agency or Indian tribe
under Section 401(a)(1) of the Federal
Water Pollution Control Act (Clean
Water Act), 33 U.S.C. 1341(c)(1)), the
agency that administers the Coastal
Zone Management Act, 16 U.S.C. § 1451–
1465, any Indian tribe that may be affected by the project, and members of
the public. A potential license applicant must 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.
(2) 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.
(e) Purpose. The purpose of the integrated licensing process provided for in
this part is to provide an efficient and
timely licensing process that continues
to ensure appropriate resource protections through better coordination of
the Commission’s processes with those
of Federal and state agencies and Indian tribes that have authority to condition Commission licenses.
(f) Default process. Each potential
original, new, or subsequent license applicant must use the license application process provided for in this part
unless the potential applicant applies
for and receives authorization from the
Commission under this part to use the
licensing process provided for in:
(1) 18 CFR part 4, Subparts D-H and,
as applicable, part 16 (i.e., traditional
process), pursuant to paragraph (c) of
this section; or
(2) Section 4.34(i) of this chapter, Alternative procedures.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003; 68 FR 69957, Dec. 16, 2003]

§ 5.2

Document availability.

(a) Pre-application document. (1) From
the date a potential license applicant
files a notification of intent to seek a

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§ 5.3

18 CFR Ch. I (4–1–18 Edition)

license pursuant to § 5.5 until any related license application proceeding is
terminated by the Commission, the potential license applicant must make
reasonably available to the public for
inspection at its principal place of
business or another location that is
more accessible to the public, the preapplication document and any materials referenced therein. These materials must be available for inspection
during regular business hours in a form
that is readily accessible, reviewable,
and reproducible.
(2) The materials specified in paragraph (a)(1) of this section must be
made available to the requester at the
location specified in paragraph (a)(1) of
this section or through the mail, or
otherwise. Except as provided in paragraph (a)(3) of this section, copies of
the pre-application document and any
materials referenced therein must be
made available at their reasonable cost
of reproduction plus, if applicable,
postage.
(3) A potential licensee must make
requested copies of the materials specified in paragraph (a)(1) of this section
available to the United States Fish and
Wildlife Service, the National Marine
Fisheries Service, the state agency responsible for fish and wildlife resources, any affected Federal land
managing agencies, and Indian tribes
without charge for the costs of reproduction or postage.
(b) License application. (1) From the
date on which a license application is
filed under this part until the licensing
proceeding for the project is terminated by the Commission, the license
applicant must make reasonably available to the public for inspection at its
principal place of business or another
location that is more accessible to the
public, a copy of the complete application for license, together with all exhibits, appendices, and any amendments, pleadings, supplementary or additional information, or correspondence filed by the applicant with the
Commission in connection with the application. These materials must be
available for inspection during regular
business hours in a form that is readily
accessible, reviewable, and reproducible at the same time as the information is filed with the Commission or re-

quired by regulation to be made available.
(2) 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.
(3) The materials specified in paragraph (b)(1) of this section must be
made available to the requester at the
location specified in paragraph (b)(1) of
this section or through the mail. Except as provided in paragraph (b)(4) of
this section, copies of the license application and any materials referenced
therein must be made available at
their reasonable cost of reproduction
plus, if applicable, postage.
(4) A licensee applicant must make
requested copies of the materials specified in paragraph (b)(1) of this section
available to the United States Fish and
Wildlife Service, the National Marine
Fisheries Service, and the state agency
responsible for fish and wildlife resources, any affected Federal land
managing agencies, and Indian tribes
without charge for the costs of reproduction or postage.
(c) Confidentiality of cultural information. A potential applicant must delete
from any information made available
to the public under paragraphs (a) and
(b) of 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 of the
site at which the sources are located,
or would violate any Federal law, include the Archeological Resources Protection Act of 1979, 16 U.S.C. 470w–3,
and the National Historic Preservation
Act of 1966, 16 U.S.C. 470hh.
(d) Access. Anyone may file a petition
with the Commission requesting access
to the information specified in paragraphs (a) or (b) of this section if it believes that the potential applicant or
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.
§ 5.3 Process selection.
(a)(1) Notwithstanding any other provision of this part or of parts 4 and 16

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Federal Energy Regulatory Commission
of this chapter, a potential applicant
for a new, subsequent, or original license may until July 23, 2005 elect to
use the licensing procedures of this
part or the licensing procedures of
parts 4 and 16.
(2) Any potential license applicant
that files its notification of intent pursuant to § 5.5 and pre-application document pursuant to § 5.6 after July 23,
2005 must request authorization to use
the licensing procedures of parts 4 and
16, as provided for in paragraphs (b)–(f)
of this section.
(b) A potential license applicant may
file with the Commission a request to
use the traditional licensing process or
alternative procedures pursuant to this
Section with its notification of intent
pursuant to § 5.5.
(c)(1)(i) An application for authorization to use the traditional process
must include justification for the request and any existing written comments on the potential applicant’s proposal and a response thereto.
(ii) A potential applicant requesting
authorization to use the traditional
process should address the following
considerations:
(A) Likelihood of timely license
issuance;
(B) Complexity of the resource issues;
(C) Level of anticipated controversy;
(D) Relative cost of the traditional
process compared to the integrated
process;
(E) The amount of available information and potential for significant disputes over studies; and
(F) Other factors believed by the applicant to be pertinent
(2) A potential applicant requesting
the use of § 4.34(i) alternative procedures
of this chapter must:
(i) Demonstrate that a reasonable effort has been made to contact all agencies, Indian tribes, and others affected
by the applicant’s request, 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 po-

§ 5.3
tential applicant’s proposal and proposals and recommendations of interested entities; and
(iii) Provide a copy of the request to
all affected resource agencies and Indian tribes and to all entities contacted by the applicant that have expressed an interest in the alternative
pre-filing consultation process.
(d)(1) The potential applicant must
provide a copy of the request to use the
traditional process or alternative procedures to all affected resource agencies, Indian tribes, and members of the
public likely to be interested in the
proceeding. The request must state
that comments on the request to use
the traditional process or alternative
procedures, as applicable, must be filed
with the Commission within 30 days of
the filing date of the request and, if
there is no project number, that responses must reference the potential
applicant’s name and address.
(2) The potential applicant must also
publish notice of the filing of its notification of intent, of the pre-application
document, and of any request to use
the traditional process or alternative
procedures no later than the filing date
of the notification of intent in a daily
or weekly newspaper of general circulation in each county in which the
project is located. The notice must:
(i) Disclose the filing date of the request to use the traditional process or
alternative procedures, and the notification of intent and pre-application
document;
(ii) Briefly summarize these documents and the basis for the request to
use the traditional process or alternative procedures;
(iii) Include the potential applicant’s
name and address, and telephone number, the type of facility proposed to be
applied for, its proposed location, the
places where the pre-application document is available for inspection and reproduction;
(iv) Include a statement that comments on the request to use the traditional process or alternative procedures are due to the Commission and
the potential applicant no later than 30
days following the filing date of that
document and, if there is no project
number, that responses must reference

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§ 5.4

18 CFR Ch. I (4–1–18 Edition)

the potential applicant’s name and address;
(v) State that comments on any request to use the traditional process
should address, as appropriate to the
circumstances of the request, the:
(A) Likelihood of timely license
issuance;
(B) Complexity of the resource issues;
(C) Level of anticipated controversy;
(D) Relative cost of the traditional
process compared to the integrated
process; and
(E) The amount of available information and potential for significant disputes over studies; and
(F) Other factors believed by the
commenter to be pertinent; and
(vi) State that respondents must submit comments to the Secretary of the
Commission in accordance with filing
procedures posted on the Commission’s
Web site at http://www.ferc.gov.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003, as amended by Order 737,
75 FR 43402, July 26, 2010]

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§ 5.4 Acceleration of a license expiration date.
(a) Request for acceleration. (1) No
later than five and one-half years prior
to expiration of an existing license, a
licensee may file with the Commission,
in accordance with the formal filing requirements in subpart T of part 385 of
this chapter, a written request for acceleration of the expiration date of its
existing license, containing the statements and information specified in
§ 16.6(b) of this chapter and a detailed
explanation of the basis for the acceleration request.
(2) If the Commission grants the request for acceleration pursuant to
paragraph (c) of this section, the Commission will deem the request for acceleration to be a notice of intent
under § 16.6 of this chapter and, unless
the Commission directs otherwise, the
licensee must make available the PreApplication Document provided for in
§ 5.6 no later than 90 days from the date
that the Commission grants the request for acceleration.
(b) Notice of request for acceleration. (1)
Upon receipt of a request for acceleration, the Commission will give notice
of the licensee’s request and provide a

45-day period for comments by interested persons by:
(i) Publishing notice in the FEDERAL
REGISTER;
(ii) Publishing notice once in a daily
or weekly newspaper published in the
county or counties in which the project
or any part thereof or the lands affected thereby are situated; and
(iii) Notifying appropriate Federal,
state, and interstate resource agencies
and Indian tribes, and non-governmental organizations likely to be interested, by electronic means if practical, otherwise by mail.
(2) The notice issued pursuant to
paragraphs (b)(1)(A) and (B) and the
written notice given pursuant to paragraph (b)(1)(C) will be considered as fulfilling the notice provisions of § 16.6(d)
of this chapter should the Commission
grant the acceleration request and will
include an explanation of the basis for
the licensee’s acceleration request.
(c) Commission order. If the Commission determines it is in the public interest, the Commission will issue an
order accelerating the expiration date
of the license to not less than five
years and 90 days from the date of the
Commission order.
[Order 2002, 68 FR 51121, Aug. 25, 2003, as
amended by Order 653, 70 FR 8724, Feb. 23,
2005]

§ 5.5 Notification of intent.
(a) Notification of intent. A potential
applicant for an original, new, or subsequent license, must file a notification of its intent to do so in the manner provided for in paragraphs (b) and
(c) of this section.
(b) Requirement to notify. In order for
a non-licensee to notify the Commission that it intends to file an application for an original, new, or subsequent
license, or for an existing licensee to
notify the Commission whether or not
it intends to file an application for a
new or subsequent license, a potential
license applicant must file with the
Secretary of the Commission in accordance with filing procedures posted on
the Commission’s Web site at http://
www.ferc.gov, a letter that contains the
following information:
(1) The potential applicant or existing licensee’s name and address.
(2) The project number, if any.

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kpayne on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(3) The license expiration date, if
any.
(4) An unequivocal statement of the
potential applicant’s intention to file
an application for an original license,
or, in the case of an existing licensee,
to file or not to file an application for
a new or subsequent license.
(5) The type of principal project
works licensed, if any, such as dam and
reservoir, powerhouse, or transmission
lines.
(6) The location of the project by
state, county, and stream, and, when
appropriate, by city or nearby city.
(7) The installed plant capacity, if
any.
(8) The names and mailing addresses
of:
(i) Every county in which any part of
the project is located, and in which any
Federal facility that is used or to be
used by the project is located;
(ii) Every city, town, or similar political subdivision;
(A) In which any part of the project
is or is to be located and any Federal
facility that is or is to be used by the
project is located, or
(B) That has a population of 5,000 or
more people and is located within 15
miles of the existing or proposed
project dam;
(iii) Every irrigation district, drainage district, or similar special purpose
political subdivision:
(A) In which any part of the project
is or is proposed to be located and any
Federal facility that is or is proposed
to be used by the project is located; or
(B) That owns, operates, maintains,
or uses any project facility or any Federal facility that is or is proposed to be
used by the project;
(iv) Every other political subdivision
in the general area of the project or
proposed project that there is reason to
believe would be likely to be interested
in, or affected by, the notification; and
(v) Affected Indian tribes.
(c) Requirement to distribute. Before it
files any application for an original,
new, or subsequent license, a potential
license applicant proposing to file a license application pursuant to this part
or to request to file a license application pursuant to part 4 of this chapter
and, as appropriate, part 16 of this
chapter (i.e., the ‘‘traditional proc-

§ 5.6
ess’’), including an application pursuant to § 4.34(i) alternative procedures of
this chapter must distribute to appropriate Federal, state, and interstate resource agencies, Indian tribes, local
governments, and members of the public likely to be interested in the proceeding the notification of intent provided for in paragraph (a) of this section.
(d) When to notify. An existing licensee or non-licensee potential applicant must notify the Commission as required in paragraph (b) of this section
at least five years, but not more than
five and one-half years, before the existing license expires.
(e) Non-Federal representatives. A potential license applicant may at the
same time it files its notification of intent and distributes its pre-application
document, request to be designated as
the Commission’s non-Federal representative for purposes of consultation under section 7 of the Endangered
Species Act and the joint agency regulations thereunder at 50 CFR part 402,
Section 305(b) of the Magnuson-Stevens
Fishery Conservation and Management
Act and the implementing regulations
at 50 CFR 600.920. A potential license
applicant may at the same time request authorization to initiate consultation under section 106 of the National Historic Preservation Act and
the implementing regulations at 36
CFR 800.2(c)(4).
(f) Procedural matters. The provisions
of subpart F of part 16 of this chapter
apply to projects to which this part applies.
(g) Construction of regulations. The
provisions of this part and parts 4 and
16 shall be construed in a manner that
best implements the purposes of each
part and gives full effect to applicable
provisions of the Federal Power Act.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
69957, Dec. 16, 2003, as amended by Order 737,
75 FR 43402, July 26, 2010]

§ 5.6 Pre-application document.
(a) Pre-application document. (1) Simultaneously with the filing of its notification of intent to seek a license as
provided for in § 5.5, and before it files
any application for an original, new, or
subsequent license, a potential applicant for a license to be filed pursuant

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§ 5.6

18 CFR Ch. I (4–1–18 Edition)

to this part or part 4 of this chapter
and, as appropriate, part 16 of this
chapter, must file with the Secretary
of the Commission in accordance with
filing procedures posted on the Commission’s
Web
site
at
http://
www.ferc.gov and distribute to the appropriate Federal, state, and interstate
resource agencies, Indian tribes, local
governments, and members of the public likely to be interested in the proceeding, the pre-application document
provided for in this section.
(2) The agencies referred to in paragraph (a)(1) of this section include: Any
state agency with responsibility for
fish, wildlife, and botanical resources,
water quality, coastal zone management plan consistency certification,
shoreline management, and water resources; the U.S. Fish and Wildlife
Service; the National Marine Fisheries
Service;
Environmental
Protection
Agency; State Historic Preservation
Officer; Tribal Historic Preservation
Officer; National Park Service; local,
state, and regional recreation agencies
and planning commissions; local and
state zoning agencies; and any other
state or Federal agency or Indian tribe
with managerial authority over any
part of project lands and waters.
(b) Purpose of pre-application document. (1) The pre-application document
provides the Commission and the entities identified in paragraph (a) of this
section with existing information relevant to the project proposal that is in
the potential applicant’s possession or
that the potential applicant can obtain
with the exercise of due diligence. This
existing, relevant, and reasonably
available information is distributed to
these entities to enable them to identify issues and related information
needs, develop study requests and
study plans, and prepare documents
analyzing any license application that
may be filed. It is also a precursor to
the environmental analysis section of
the Preliminary Licensing Proposal or
draft license application provided for
in § 5.16, Exhibit E of the final license
application, and the Commission’s
scoping document(s) and environmental impact statement or environmental assessment under the National
Environmental Policy Act (NEPA).

(2) A potential applicant is not required to conduct studies in order to
generate information for inclusion in
the pre-application document. Rather,
a potential applicant must exercise due
diligence in determining what information exists that is relevant to describing the existing environment and potential impacts of the project proposal
(including cumulative impacts), obtaining that information if the potential applicant does not already possess
it, and describing or summarizing it as
provided for in paragraph (d) of this
section. Due diligence includes, but is
not limited to, contacting appropriate
agencies and Indian tribes that may
have relevant information and review
of Federal and state comprehensive
plans filed with the Commission and
listed on the Commission’s Web site at
http://www.ferc.gov.
(c) Form and distribution protocol—(1)
General requirements. As specifically
provided for in the content requirements of paragraph (d) of this section,
the pre-application document must describe the existing and proposed (if
any) project facilities and operations,
provide information on the existing environment, and existing data or studies
relevant to the existing environment,
and any known and potential impacts
of the proposed project on the specified
resources.
(2) Availability of source information
and studies. The sources of information
on the existing environment and
known or potential resource impacts
included in the descriptions and summaries must be referenced in the relevant section of the document, and in
an appendix to the document. The information must be provided upon request to recipients of the pre-application document. A potential applicant
must provide the requested information within 20 days from receipt of the
request. Potential applicants and requesters are strongly encouraged to
use electronic means or compacts disks
to distribute studies and other forms of
information, but a potential applicant
must, upon request, provide the information in hard copy form. The potential applicant is also strongly encouraged to include with the pre-application document any written protocol for

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Federal Energy Regulatory Commission
distribution consistent with this paragraph to which it has agreed with agencies, Indian tribes, or other entities.
(d) Content requirements—(1) Process
plan and schedule. The pre-application
document must include a plan and
schedule for all pre-application activity that incorporates the time frames
for pre-filing consultation, information
gathering, and studies set forth in this
part. The plan and schedule must include a proposed location and date for
the scoping meeting and site visit required by § 5.8(b)(3)(viii).
(2) Project location, facilities, and operations. The potential applicant must include in the pre-application document:
(i) The exact name and business address, and telephone number of each
person authorized to act as agent for
the applicant;
(ii) Detailed maps showing lands and
waters within the project boundary by
township, range, and section, as well as
by state, county, river, river mile, and
closest town, and also showing the specific location of any Federal and tribal
lands, and the location of proposed
project facilities, including roads,
transmission lines, and any other appurtenant facilities;
(iii) A detailed description of all existing and proposed project facilities
and components, including:
(A) The physical composition, dimensions, and general configuration of any
dams, spillways, penstocks, canals,
powerhouses, tailraces, and other
structures proposed to be included as
part of the project or connected directly to it;
(B) The normal maximum water surface area and normal maximum water
surface elevation (mean sea level),
gross storage capacity of any impoundments;
(C) The number, type, and minimum
and maximum hydraulic capacity and
installed (rated) capacity of any proposed turbines or generators to be included as part of the project;
(D) The number, length, voltage, and
interconnections of any primary transmission lines proposed to be included
as part of the project, including a single-line diagram showing the transfer
of electricity from the project to the
transmission grid or point of use; and

§ 5.6
(E) An estimate of the dependable capacity, average annual, and average
monthly energy production in kilowatt
hours (or mechanical equivalent);
(iv) A description of the current (if
applicable) and proposed operation of
the project, including any daily or seasonal ramping rates, flushing flows,
reservoir operations, and flood control
operations.
(v) In the case of an existing licensed
project;
(A) A complete description of the
current license requirements; i.e., the
requirements of the original license as
amended during the license term;
(B) A summary of project generation
and outflow records for the five years
preceding filing of the pre-application
document;
(C) Current net investment; and
(D) A summary of the compliance
history of the project, if applicable, including a description of any recurring
situations of non-compliance.
(vi) A description of any new facilities or components to be constructed,
plans for future development or rehabilitation of the project, and changes
in project operation.
(3) Description of existing environment
and resource impacts—(i) General requirements. A potential applicant must,
based on the existing, relevant, and
reasonably available information, include a discussion with respect to each
resource that includes:
(A) A description of the existing environment as required by paragraphs
(d)(3)(ii)–(xiii) of this section;
(B) Summaries (with references to
sources of information or studies) of
existing data or studies regarding the
resource;
(C) A description of any known or potential adverse impacts and issues associated with the construction, operation or maintenance of the proposed
project, including continuing and cumulative impacts; and
(D) A description of any existing or
proposed project facilities or operations, and management activities undertaken for the purpose of protecting,
mitigating impacts to, or enhancing resources affected by the project, including a statement of whether such measures are required by the project license, or were undertaken for other

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§ 5.6

18 CFR Ch. I (4–1–18 Edition)

reasons. The type and amount of the
information included in the discussion
must be commensurate with the scope
and level of resource impacts caused or
potentially caused by the proposed
project. Potential license applicants
are encouraged to provide photographs
or other visual aids, as appropriate, to
supplement text, charts, and graphs included in the discussion.
(ii) Geology and soils. Descriptions
and maps showing the existing geology,
topography, and soils of the proposed
project and surrounding area. Components of the description must include:
(A) A description of geological features, including bedrock lithology,
stratigraphy, structural features, glacial features, unconsolidated deposits,
and mineral resources at the project
site;
(B) A description of the soils, including the types, occurrence, physical and
chemical characteristics, erodability
and potential for mass soil movement;
(C) A description of reservoir shorelines and streambanks, including:
(1) Steepness, composition (bedrock
and unconsolidated deposits), and vegetative cover; and
(2) Existing erosion, mass soil movement, slumping, or other forms of instability, including identification of
project facilities or operations that are
known to or may cause these conditions.
(iii) Water resources. A description of
the water resources of the proposed
project and surrounding area. This
must address the quantity and quality
(chemical/physical parameters) of all
waters affected by the project, including but not limited to the project reservoir(s) and tributaries thereto, bypassed reach, and tailrace. Components
of the description must include:
(A) Drainage area;
(B) The monthly 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, specifying any
adjustments made for evaporation,
leakage, minimum flow releases, or
other reductions in available flow;
(C) A monthly flow duration curve
indicating the period of record and the
location of gauging station(s), including identification number(s), used in

deriving the curve; and a specification
of the critical streamflow used to determine the project’s dependable capacity;
(D) Existing and proposed uses of
project waters for irrigation, domestic
water supply, industrial and other purposes, including any upstream or downstream requirements or constraints to
accommodate those purposes;
(E) Existing instream flow uses of
streams in the project area that would
be affected by project construction and
operation; information on existing
water rights and water rights applications potentially affecting or affected
by the project;
(F) Any federally-approved water
quality standards applicable to project
waters;
(G) Seasonal variation of existing
water quality data for any stream,
lake, or reservoir that would be affected by the proposed project, including information on:
(1) Water temperature and dissolved
oxygen, including seasonal vertical
profiles in the reservoir;
(2) Other physical and chemical parameters to include, as appropriate for
the project; total dissolved gas, pH,
total hardness, specific conductance,
cholorphyll a, suspended sediment concentrations, total nitrogen (mg/L as N),
total phosphorus (mg/L as P), and fecal
coliform (E. Coli) concentrations;
(H) The following data with respect
to any existing or proposed lake or reservoir associated with the proposed
project; surface area, volume, maximum depth, mean depth, flushing rate,
shoreline length, substrate composition; and
(I) Gradient for downstream reaches
directly affected by the proposed
project.
(iv) Fish and aquatic resources. A description of the fish and other aquatic
resources, including invasive species,
in the project vicinity. This section
must discuss the existing fish and
macroinvertebrate communities, including the presence or absence of
anadromous, catadromous, or migratory fish, and any known or potential
upstream or downstream impacts of
the project on the aquatic community.
Components of the description must include:

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Federal Energy Regulatory Commission
(A) Identification of existing fish and
aquatic communities;
(B) Identification of any essential
fish habitat as defined under the Magnuson-Stevens Fishery Conservation
and Management Act and established
by the National Marine Fisheries Service; and
(C) Temporal and spacial distribution
of fish and aquatic communities and
any associated trends with respect to:
(1) Species and life stage composition;
(2) Standing crop;
(3) Age and growth data;
(4) Spawning run timing; and
(5) The extent and location of spawning, rearing, feeding, and wintering
habitat.
(v) Wildlife and botanical resources. A
description of the wildlife and botanical resources, including invasive species, in the project vicinity. Components of this description must include:
(A) Upland habitat(s) in the project
vicinity, including the project’s transmission line corridor or right-of-way
and a listing of plant and animal species that use the habitat(s); and
(B) Temporal or spacial distribution
of species considered important because of their commercial, recreational, or cultural value.
(vi) Wetlands, riparian, and littoral
habitat. A description of the floodplain,
wetlands, riparian habitats, and littoral in the project vicinity. Components of this description must include:
(A) A list of plant and animal species,
including invasive species, that use the
wetland, littoral, and riparian habitat;
(B) A map delineating the wetlands,
riparian, and littoral habitat; and
(C) Estimates of acreage for each
type of wetland, riparian, or littoral
habitat, including variability in such
availability as a function of storage at
a project that is not operated in run-ofriver mode.
(vii) Rare, threatened and endangered
species. A description of any listed rare,
threatened and endangered, candidate,
or special status species that may be
present in the project vicinity. Components of this description must include:
(A) A list of Federal- and state-listed,
or proposed to be listed, threatened and
endangered species known to be
present in the project vicinity;

§ 5.6
(B) Identification of habitat requirements;
(C) References to any known biological opinion, status reports, or recovery
plan pertaining to a listed species;
(D) Extent and location of any federally-designated critical habitat, or
other habitat for listed species in the
project area; and
(E) Temporal and spatial distribution
of the listed species within the project
vicinity.
(viii) Recreation and land use. A description of the existing recreational
and land uses and opportunities within
the project boundary. The components
of this description include:
(A) Text description illustrated by
maps of existing recreational facilities,
type of activity supported, location,
capacity, ownership and management;
(B) Current recreational use of
project lands and waters compared to
facility or resource capacity;
(C) Existing shoreline buffer zones
within the project boundary;
(D) Current and future recreation
needs identified in current State Comprehensive Outdoor Recreation Plans,
other applicable plans on file with the
Commission, or other relevant local,
state, or regional conservation and
recreation plans;
(E) If the potential applicant is an
existing licensee, its current shoreline
management plan or policy, if any,
with regard to permitting development
of piers, boat docks and landings, bulkheads, and other shoreline facilities on
project lands and waters;
(F) A discussion of whether the
project is located within or adjacent to
a:
(1) River segment that is designated
as part of, or under study for inclusion
in, the National Wild and Scenic River
System; or
(2) State-protected river segment;
(G) Whether any project lands are
under study for inclusion in the National Trails System or designated as,
or under study for inclusion as, a Wilderness Area.
(H) Any regionally or nationally important recreation areas in the project
vicinity;
(I) Non-recreational land use and
management within the project boundary; and

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§ 5.6

18 CFR Ch. I (4–1–18 Edition)

(J)
Recreational
and
non-recreational land use and management adjacent to the project boundary.
(ix) Aesthetic resources. A description
of the visual characteristics of the
lands and waters affected by the
project. Components of this description
include a description of the dam, natural water features, and other scenic
attractions of the project and surrounding vicinity. Potential applicants
are encouraged to supplement the text
description with visual aids.
(x) Cultural resources. A description of
the known cultural or historical resources of the proposed project and surrounding area. Components of this description include:
(A) Identification of any historic or
archaeological site in the proposed
project vicinity, with particular emphasis on sites or properties either listed in, or recommended by the State
Historic Preservation Officer or Tribal
Historic Preservation Officer for inclusion in, the National Register of Historic Places;
(B) Existing discovery measures,
such as surveys, inventories, and limited subsurface testing work, for the
purpose of locating, identifying, and
assessing the significance of historic
and archaeological resources that have
been undertaken within or adjacent to
the project boundary; and
(C) Identification of Indian tribes
that may attach religious and cultural
significance to historic properties
within the project boundary or in the
project vicinity; as well as available information on Indian traditional cultural and religious properties, whether
on or off of any federally-recognized Indian reservation (A potential applicant
must delete from any information
made available under this section specific site or property locations, the disclosure of which would create a risk of
harm, theft, or destruction of archaeological or Native American cultural
resources or to the site at which the resources are located, or would violate
any Federal law, including the Archaeological Resources Protection Act of
1979, 16 U.S.C. 470w-3, and the National
Historic Preservation Act of 1966, 16
U.S.C. 470hh).
(xi) Socio-economic resources. A general description of socio-economic con-

ditions in the vicinity of the project.
Components of this description include
general land use patterns (e.g., urban,
agricultural, forested), population patterns, and sources of employment in
the project vicinity.
(xii) Tribal resources. A description of
Indian tribes, tribal lands, and interests that may be affected by the
project Components of this description
include:
(A) Identification of information on
resources
specified
in
paragraphs
(d)(2)(ii)–(xi) of this section to the extent that existing project construction
and operation affecting those resources
may impact tribal cultural or economic interests, e.g., impacts of
project-induced soil erosion on tribal
cultural sites; and
(B) Identification of impacts on Indian tribes of existing project construction and operation that may affect
tribal interests not necessarily associated with resources specified in paragraphs (d)(3)(ii)–(xi) of this Section,
e.g., tribal fishing practices or agreements between the Indian tribe and
other entities other than the potential
applicant that have a connection to
project construction and operation.
(xiii) River basin description. A general
description of the river basin or subbasin, as appropriate, in which the proposed project is located, including information on:
(A) The area of the river basin or subbasin and length of stream reaches
therein;
(B) Major land and water uses in the
project area;
(C) All dams and diversion structures
in the basin or sub-basin, regardless of
function; and
(D) Tributary rivers and streams, the
resources of which are or may be affected by project operations;
(4) Preliminary issues and studies list.
Based on the resource description and
impacts discussion required by paragraph (d)(3) of this section; the pre-application document must include with
respect to each resource area identified
above, a list of:
(i) Issues pertaining to the identified
resources;
(ii) Potential studies or information
gathering
requirements
associated
with the identified issues;

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Federal Energy Regulatory Commission
(iii) Relevant qualifying Federal and
state or tribal comprehensive waterway plans; and
(iv) Relevant resource management
plans.
(5) Summary of contacts. An appendix
summarizing contacts with Federal,
state, and interstate resource agencies,
Indian tribes, non-governmental organizations, or other members of the public made in connection with preparing
the pre-application document sufficient to enable the Commission to determine if due diligence has been exercised in obtaining relevant information.
(e) If applicable, the applicant must
also provide a statement of whether or
not it will seek benefits under section
210 of the Public Utility Regulatory
Policies Act of 1978 (PURPA) by satisfying the requirements for qualifying
hydroelectric small power production
facilities in § 292.203 of this chapter. If
benefits under section 210 of PURPA
are sought, a statement of whether or
not the applicant believes the project
is located at a new dam or 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.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
69957, Dec. 16, 2003, as amended by Order 737,
75 FR 43402, July 26, 2010]

§ 5.7 Tribal consultation.
A meeting shall be held no later than
30 days following filing of the notification of intent required by § 5.5 between
each Indian tribe likely to be affected
by the potential license application
and the Commission staff if the affected Indian tribe agrees to such
meeting.

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[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003]

§ 5.8 Notice of commencement of proceeding and scoping document, or
of approval to use traditional licensing process or alternative procedures.
(a) Notice. Within 60 days of the notification of intent required under § 5.5,
filing of the pre-application document
pursuant to § 5.6, and filing of any request to use the traditional licensing
process or alternative procedures, the
Commission will issue a notice of com-

§ 5.8
mencement of proceeding and scoping
document or of approval of a request to
use the traditional licensing process or
alternative procedures.
(b) Notice contents. The notice shall
include:
(1) The decision of the Director of the
Office of Energy Projects on any request to use the traditional licensing
process or alternative procedures.
(2) If appropriate, a request by the
Commission to initiate informal consultation under section 7 of the Endangered Species Act and the joint agency
regulations thereunder at 50 CFR part
402, section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920, or section 106 of
the National Historic Preservation Act
and implementing regulations at 36
CFR 800.2, and, if applicable, designation of the potential applicant as the
Commission’s non-federal representative.
(3) If the potential license application is to be developed and filed pursuant to this part, notice of:
(i) The applicant’s intent to file a license application;
(ii) The filing of the pre-application
document;
(iii) Commencement of the proceeding;
(iv) A request for comments on the
pre-application document (including
the proposed process plan and schedule);
(v) A statement that all communications to or from the Commission staff
related to the merits of the potential
application must be filed with the
Commission;
(vi) The request for other Federal or
state agencies or Indian tribes to be cooperating agencies for purposes of developing an environmental document;
(vii) The Commission’s intent with
respect to preparation of an environmental impact statement; and
(viii) A public scoping meeting and
site visit to be held within 30 days of
the notice.
(c) Scoping Document 1. At the same
time the Commission issues the notice
provided for in paragraph (a) of this
Section, the Commission staff will
issue Scoping Document 1. Scoping
Document 1 will include:

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§ 5.9

18 CFR Ch. I (4–1–18 Edition)

(1) An introductory section describing the purpose of the scoping document, the date and time of the scoping
meeting, procedures for submitting
written comments, and a request for
information or study requests from
state and Federal resource agencies,
Indian tribes, non-governmental organizations, and individuals;
(2) Identification of the proposed action, including a description of the
project’s location, facilities, and operation, and any proposed protection and
enhancement measures, and other alternatives to the proposed action, including alternatives considered but
eliminated from further study, and the
no action alternative;
(3) Identification of resource issues to
be analyzed in the environmental document, including those that would be
cumulatively affected along with a description of the geographic and temporal scope of the cumulatively affected resources;
(4) A list of qualifying Federal and
state comprehensive waterway plans;
(5) A list of qualifying tribal comprehensive waterway plans;
(6) A process plan and schedule and a
draft outline of the environmental document; and
(7) A list of recipients.
(d) Scoping meeting and site visit. The
purpose of the public meeting and site
visit is to:
(1) Initiate issues scoping pursuant to
the National Environmental Policy
Act;
(2) Review and discuss existing conditions and resource management objectives;
(3) Review and discuss existing information and make preliminary identification of information and study
needs;
(4) Review, discuss, and finalize the
process plan and schedule for pre-filing
activity that incorporates the time periods provided for in this part and, to
the extent reasonably possible, maximizes coordination of Federal, state,
and tribal permitting and certification
processes, including consultation under
section 7 of the Endangered Species
Act and water quality certification or
waiver thereof under section 401 of the
Clean Water Act; and

(5) Discuss the appropriateness of any
Federal or state agency or Indian tribe
acting as a cooperating agency for development of an environmental document pursuant to the National Environmental Policy Act.
(e) Method of notice. The public notice
provided for in this section will be
given by:
(1) Publishing notice in the FEDERAL
REGISTER;
(2) Publishing notice in a daily or
weekly newspaper published in the
county or counties in which the project
or any part thereof or the lands affected thereby are situated, and, as appropriate, tribal newspapers;
(3) Notifying appropriate Federal,
state, and interstate resource agencies,
state water quality and coastal zone
management plan consistency certification agencies, Indian tribes, and nongovernmental organizations, by electronic means if practical, otherwise by
mail.
[Order 2002, 68 FR 51121, Aug. 25, 2003, as
amended by Order 653, 70 FR 8724, Feb. 23,
2005]

§ 5.9 Comments and
study requests.

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(a) Comments and study requests. Comments on the pre-application document
and the Commission staff’s Scoping
Document 1 must be filed with the
Commission within 60 days following
the Commission’s notice of consultation procedures issued pursuant to § 5.8.
Comments, including those by Commission staff, must be accompanied by
any information gathering and study
requests, and should include information and studies needed for consultation under section 7 of the Endangered
Species Act and water quality certification under Section 401 of the Clean
Water Act.
(b) Content of study request. Any information or study request must:
(1) Describe the goals and objectives
of each study proposal and the information to be obtained;
(2) If applicable, explain the relevant
resource management goals of the
agencies or Indian tribes with jurisdiction over the resource to be studied;

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Federal Energy Regulatory Commission
(3) If the requester is not a resource
agency, explain any relevant public interest considerations in regard to the
proposed study;
(4) Describe existing information
concerning the subject of the study
proposal, and the need for additional
information;
(5) Explain any nexus between
project operations and effects (direct,
indirect, and/or cumulative) on the resource to be studied, and how the study
results would inform the development
of license requirements;
(6) Explain how any proposed study
methodology (including any preferred
data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate field season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate, considers
relevant tribal values and knowledge;
and
(7) Describe considerations of level of
effort and cost, as applicable, and why
any proposed alternative studies would
not be sufficient to meet the stated information needs.
(c) Applicant seeking PURPA benefits;
estimate of fees. If a potential applicant
has stated that it intends to seek
PURPA benefits, comments on the preapplication document by a fish and
wildlife agency must provide the potential applicant with a reasonable estimate of the total costs the agency
anticipates it will incur in order to set
mandatory terms and conditions for
the proposed project. An agency may
provide a potential applicant with an
updated estimate as it deems necessary. If any agency believes that its
most recent estimate will be exceeded
by more than 25 percent, it must supply the potential applicant with a new
estimate and submit a copy to the
Commission.

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[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003; 68 FR 69957, Dec. 16, 2003,
as amended by Order 699, 72 FR 45324, Aug.
14, 2007]

§ 5.10 Scoping Document 2.
Within 45 days following the deadline
for filing of comments on Scoping Document 1, the Commission staff shall, if
necessary, issue Scoping Document 2.

§ 5.11
§ 5.11 Potential Applicant’s proposed
study plan and study plan meetings.
(a) Within 45 days following the deadline for filing of comments on the preapplication document, including information and study requests, the potential applicant must file with the Commission a proposed study plan.
(b) The potential applicant’s proposed study plan must include with respect to each proposed study:
(1) A detailed description of the study
and the methodology to be used;
(2) A schedule for conducting the
study;
(3) Provisions for periodic progress
reports, including the manner and extent to which information will be
shared; and sufficient time for technical review of the analysis and results; and
(4) If the potential applicant does not
adopt a requested study, an explanation of why the request was not
adopted, with reference to the criteria
set forth in § 5.9(b).
(c) The potential applicant’s proposed study plan must also include provisions for the initial and updated
study reports and meetings provided
for in § 5.15.
(d) The applicant’s proposed study
plan must:
(1) Describe the goals and objectives
of each study proposal and the information to be obtained;
(2) Address any known resource management goals of the agencies or Indian
tribes with jurisdiction over the resource to be studied;
(3) Describe existing information
concerning the subject of the study
proposal, and the need for additional
information;
(4) Explain any nexus between
project operations and effects (direct,
indirect, and/or cumulative) on the resource to be studied;
(5) Explain how any proposed study
methodology (including any preferred
data collection and analysis techniques, or objectively quantified information, and a schedule including appropriate field season(s) and the duration) is consistent with generally accepted practice in the scientific community or, as appropriate, considers
any known tribal interests;

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§ 5.12

18 CFR Ch. I (4–1–18 Edition)

(6) Describe considerations of level of
effort and cost, as applicable.
(e) The potential applicant’s proposed study plan must be accompanied
by a proposal for conducting a study
plan meeting or meetings during the
90-day period provided for in § 5.12 for
the purpose of clarifying the potential
applicant’s proposed study plan and
any initial information gathering or
study requests, and to resolve any outstanding issues with respect to the proposed study plan. The initial study
plan meeting must be held no later
than 30 days after the deadline date for
filing of the potential applicant’s proposed study plan.

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§ 5.12 Comments on proposed study
plan.
Comments on the potential applicant’s proposed study plan, including
any revised information or study requests, must be filed within 90 days
after the proposed study plan is filed.
This filing must also include an explanation of any study plan concerns and
any accommodations reached with the
potential applicant regarding those
concerns. Any proposed modifications
to the potential applicant’s proposed
study plan must address the criteria in
§ 5.9(b).
§ 5.13 Revised study plan and study
plan determination.
(a) Within 30 days following the deadline for filing comments on the potential applicant’s proposed study plan, as
provided for in § 5.12, the potential applicant must file a revised study plan
for Commission approval. The revised
study plan shall include the comments
on the proposed study plan and a description of the efforts made to resolve
differences over study requests. If the
potential applicant does not adopt a requested study, it must explain why the
request was not adopted, with reference to the criteria set forth in
§ 5.9(b).
(b) Within 15 days following filing of
the potential applicant’s revised study
plan, participants may file comments
thereon.
(c) Within 30 days following the date
the potential applicant files its revised
study plan, the Director of Energy
Projects will issue a Study Plan Deter-

mination with regard to the potential
applicant’s study plan, including any
modifications determined to be necessary in light of the record.
(d) If no notice of study dispute is
filed pursuant to § 5.14 within 20 days of
the Study Plan Determination, the
study plan as approved in the Study
Plan Determination shall be deemed to
be approved and the potential applicant shall proceed with the approved
studies. If a potential applicant fails to
obtain or conduct a study as required
by Study Plan Determination, its license application may be considered
deficient.
§ 5.14 Formal study dispute resolution
process.
(a) Within 20 days of the Study Plan
Determination, any Federal agency
with authority to provide mandatory
conditions on a license pursuant to
FPA Section 4(e), 16 U.S.C. 797(e), or to
prescribe fishways pursuant to FPA
Section 18, 16 U.S.C. 811, or any agency
or Indian tribe with authority to issue
a water quality certification for the
project license under section 401 of the
Clean Water Act, 42 U.S.C. 1341, may
file a notice of study dispute with respect to studies pertaining directly to
the exercise of their authorities under
sections 4(e) and 18 of the Federal
Power Act or section 401 of the Clean
Water Act.
(b) The notice of study dispute must
explain how the disputing agency’s or
Indian tribe’s study request satisfies
the criteria set forth in § 5.9(b), and
shall identify and provide contact information for the panel member designated by the disputing agency or Indian tribe, as discussed in paragraph
(d) of this section.
(c) Studies and portions of study
plans approved in the Study Plan Determination that are not the subject of
a notice of dispute shall be deemed to
be approved, and the potential applicant shall proceed with those studies
or portions thereof.
(d) Within 20 days of a notice of study
dispute, the Commission will convene
one or more three-person Dispute Resolution Panels, as appropriate to the
circumstances of each proceeding.
Each such panel will consist of:

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Federal Energy Regulatory Commission
(1) A person from the Commission
staff who is not otherwise involved in
the proceeding, and who shall serve as
the panel chair;
(2) One person designated by the Federal or state agency or Indian tribe
that filed the notice of dispute who is
not otherwise involved in the proceeding; and
(3) A third person selected by the
other two panelists from a pre-established list of persons with expertise in
the resource area. The two panelists
shall make every reasonable effort to
select the third panel member. If however no third panel member has been
selected by the other two panelists
within 15 days, an appropriate third
panel member will be selected at random from the list of technical experts
maintained by the Commission.
(e) If more than one agency or Indian
tribe files a notice of dispute with respect to the decision in the preliminary
determination on any informationgathering or study request, the disputing agencies or Indian tribes must
select one person to represent their interests on the panel.
(f) The list of persons available to
serve as a third panel member will be
posted, as revised from time-to-time,
on the hydroelectric page of the Commission’s Web site. A person on the list
who is requested and willing to serve
with respect to a specific dispute will
be required to file with the Commission at that time a current statement
of their qualifications, a statement
that they have had no prior involvement with the proceeding in which the
dispute has arisen, or other financial or
other conflict of interest.
(g) All costs of the panel members
representing the Commission staff and
the agency or Indian tribe which filed
the notice of dispute will be borne by
the Commission or the agency or Indian tribe, as applicable. The third
panel member will serve without compensation, except for certain allowable
travel expenses as defined in 31 CFR
part 301.
(h) To facilitate the delivery of information to the dispute resolution panel,
the identity of the panel members and
their addresses for personal service
with respect to a specific dispute resolution will be posted on the hydro-

§ 5.14
electric page of the Commission’s Web
site.
(i) No later than 25 days following
the notice of study dispute, the potential applicant may file with the Commission and serve upon the panel members comments and information regarding the dispute.
(j) Prior to engaging in deliberative
meetings, the panel shall hold a technical conference for the purpose of
clarifying the matters in dispute with
reference to the study criteria. The
technical conference shall be chaired
by the Commission staff member of the
panel. It shall be open to all participants, and the panel shall receive information from the participants as it
deems appropriate.
(k) No later than 50 days following
the notice of study dispute, the panel
shall make and deliver to the Director
of the Office of Energy Projects a finding, with respect to each information
or study request in dispute, concerning
the extent to which each criteria set
forth in § 5.9(b) is met or not met, and
why, and make recommendations regarding the disputed study request
based on its findings. The panel’s findings and recommendations must be
based on the record in the proceeding.
The panel shall file with its findings
and recommendations all of the materials received by the panel. Any recommendation for the potential applicant to provide information or a study
must include the technical specifications, including data acquisition techniques and methodologies.
(l) No later than 70 days from the
date of filing of the notice of study dispute, the Director of the Office of Energy Projects will review and consider
the recommendations of the panel, and
will issue a written determination. The
Director’s determination will be made
with reference to the study criteria set
forth in § 5.9(b) and any applicable law
or Commission policies and practices,
will take into account the technical
expertise of the panel, and will explain
why any panel recommendation was rejected, if applicable. The Director’s determination shall constitute an amendment to the approved study plan.

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§ 5.15

18 CFR Ch. I (4–1–18 Edition)

§ 5.15 Conduct of studies.
(a) Implementation. The potential applicant must gather information and
conduct studies as provided for in the
approved study plan and schedule.
(b) Progress reports. The potential applicant must prepare and provide to
the participants the progress reports
provided for in § 5.11(b)(3). Upon request
of any participant, the potential applicant will provide documentation of
study results.
(c) Initial study report. (1) Pursuant to
the Commission-approved study plan
and schedule provided for in § 5.13 or no
later than one year after Commission
approval of the study plan, whichever
comes first, the potential applicant
must prepare and file with the Commission an initial study report describing its overall progress in implementing the study plan and schedule
and the data collected, including an explanation of any variance from the
study plan and schedule. The report
must also include any modifications to
ongoing studies or new studies proposed by the potential applicant.
(2) Within 15 days following the filing
of the initial study report, the potential applicant shall hold a meeting
with the participants and Commission
staff to discuss the study results and
the potential applicant’s and or other
participant’s proposals, if any, to modify the study plan in light of the
progress of the study plan and data collected.
(3) Within 15 days following the meeting provided for in paragraph (c)(2) of
this section, the potential applicant
shall file a meeting summary, including any modifications to ongoing studies or new studies proposed by the potential applicant.
(4) Any participant or the Commission staff may file a disagreement concerning the applicant’s meeting summary within 30 days, setting forth the
basis for the disagreement. This filing
must also include any modifications to
ongoing studies or new studies proposed by the Commission staff or other
participant.
(5) Responses to any filings made
pursuant to paragraph (c)(4) of this section must be filed within 30 days.
(6) No later than 30 days following
the due date for responses provided for

in paragraph (c)(5) of this section, the
Director will resolve the disagreement
and amend the approved study plan as
appropriate.
(7) If no participant or the Commission staff files a disagreement concerning the potential applicant’s meeting summary and request to amend the
approved study plan within 30 days,
any proposed amendment shall be
deemed to be approved.
(d) Criteria for modification of approved
study. Any proposal to modify an ongoing study pursuant to paragraphs
(c)(1)–(4) of this section must be accompanied by a showing of good cause why
the proposal should be approved, and
must include, as appropriate to the
facts of the case, a demonstration that:
(1) Approved studies were not conducted as provided for in the approved
study plan; or
(2) The study was conducted under
anomalous environmental conditions
or that environmental conditions have
changed in a material way.
(e) Criteria for new study. Any proposal for new information gathering or
studies pursuant to paragraphs (c)(1)–
(4) of this section must be accompanied
by a showing of good cause why the
proposal should be approved, and must
include, as appropriate to the facts of
the case, a statement explaining:
(1) Any material changes in the law
or regulations applicable to the information request;
(2) Why the goals and objectives of
any approved study could not be met
with the approved study methodology;
(3) Why the request was not made
earlier;
(4) Significant changes in the project
proposal or that significant new information material to the study objectives has become available; and
(5) Why the new study request satisfies the study criteria in § 5.9(b).
(f) Updated study report. Pursuant to
the Commission-approved study plan
and schedule provided for in § 5.13, or
no later than two years after Commission approval of the study plan and
schedule, whichever comes first, the
potential applicant shall prepare and
file with the Commission an updated
study report describing its overall
progress in implementing the study

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Federal Energy Regulatory Commission
plan and schedule and the data collected, including an explanation of any
variance from the study plan and
schedule. The report must also include
any modifications to ongoing studies
or new studies proposed by the potential applicant. The review, comment,
and disagreement resolution provisions
of paragraphs (c)(2)–(7) of this section
shall apply to the updated study report. Any proposal to modify an ongoing study must be accompanied by a
showing of good cause why the proposal should be approved as set forth in
paragraph (d) of this section. Any proposal for new information gathering or
studies is subject to paragraph (e) of
this section except that the proponent
must demonstrate extraordinary circumstances warranting approval. The
applicant must promptly proceed to
complete any remaining undisputed information-gathering or studies under
its proposed amendments to the study
plan, if any, and must proceed to complete any information-gathering or
studies that are the subject of a disagreement upon the Director’s resolution of the disagreement.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003]

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§ 5.16

Preliminary licensing proposal.

(a) No later than 150 days prior to the
deadline for filing a new or subsequent
license application, if applicable, the
potential applicant must file for comment a preliminary licensing proposal.
(b) The preliminary licensing proposal must:
(1) Clearly describe, as applicable,
the existing and proposed project facilities, including project lands and waters;
(2) Clearly describe, as applicable,
the existing and proposed project operation and maintenance plan, to include
measures for protection, mitigation,
and enhancement measures with respect to each resource affected by the
project proposal; and
(3) Include the potential applicant’s
draft environmental analysis by resource area of the continuing and incremental impacts, if any, of its preliminary licensing proposal, including
the results of its studies conducted
under the approved study plan.

§ 5.17
(c) A potential applicant may elect
to file a draft license application which
includes the contents of a license application required by § 5.18 instead of the
Preliminary Licensing Proposal. A potential applicant that elects to file a
draft license application must include
notice of its intent to do so in the updated study report required by § 5.15(f).
(d) A potential applicant that has
been designated as the Commission’s
non-Federal representative may include a draft Biological Assessment,
draft Essential Fish Habitat Assessment, and draft Historic Properties
Management Plan with its Preliminary
Licensing Proposal or draft license application.
(e) Within 90 days of the date the potential applicant files the Preliminary
Licensing Proposal or draft license application, participants and the Commission staff may file comments on the
Preliminary Licensing Proposal or
draft application, which may include
recommendations on whether the Commission should prepare an Environmental Assessment (with or without a
draft Environmental Assessment) or an
Environmental Impact Statement. Any
participant whose comments request
new information, studies, or other
amendments to the approved study
plan must include a demonstration of
extraordinary circumstances, pursuant
to the requirements of § 5.15(f).
(f) A waiver of the requirement to file
the Preliminary Licensing Proposal or
draft license application may be requested, based on a consensus of the
participants in favor of such waiver.
§ 5.17 Filing of application.
(a) Deadline—new or subsequent license
application. An application for a new or
subsequent license must be filed no
later than 24 months before the existing license expires.
(b) Subsequent licenses. An applicant
for a subsequent license must file its
application under part I of the Federal
Power Act. The provisions of section
7(a) of the Federal Power Act do not
apply to licensing proceedings involving a subsequent license.
(c) Rejection or dismissal of application.
If the Commission rejects or dismisses
an application for a new or subsequent
license filed under this part pursuant

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§ 5.18

18 CFR Ch. I (4–1–18 Edition)

to the provisions of § 5.20, the application may not be refiled after the new or
subsequent license application filing
deadline specified in paragraph (a) of
this section.
(d)(1) Filing and service. Each applicant for a license under this part must
submit the application to the Commission’s Secretary for filing pursuant to
the requirements of subpart T of part
385 of this chapter. The 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, Indian
tribe, or member of the public consulted pursuant to this part.
(2) 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, and the places
where the information specified in
§ 5.2(b) is available for inspection and
reproduction. The applicant must
promptly provide the Commission with
proof of the publication of this notice.
(e) PURPA benefits. (1) Every application for a license 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, the reversal of intent will be
treated as an amendment of the application under § 4.35 of this chapter and
the applicant must:
(A) Repeat the pre-filing consultation
process under this part; and
(B) Satisfy all the requirements in
§ 292.208 of this chapter; or
(ii) After the Commission issues a license for the project, the applicant is
prohibited from obtaining PURPA benefits.
(f) Limitations on submitting applications. The provisions of §§ 4.33(b), (c),
and (e) of this chapter apply to license
applications filed under this Section.

(g) Applicant notice. An applicant for
a subsequent license that proposes to
expand an existing project to encompass additional lands must include in
its application a statement that the
applicant has notified, by certified
mail, property owners on the additional lands to be encompassed by the
project and governmental agencies and
subdivisions likely to be interested in
or affected by the proposed expansion.
[Order 2002, 68 FR 51121, Aug. 25, 2003, as
amended by Order 756, 77 FR 4893, Feb. 1,
2012]

§ 5.18

Application content.

(a) General content requirements. Each
license application filed pursuant to
this part must:
(1) 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) 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 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.

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Federal Energy Regulatory Commission

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(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:
(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 project
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)(3)(B) of this Section 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 must include a statement of the reasons therefor.
(ii) This application is executed in
the:
State of lllllllllllllllllll
County of llllllllllllllllll
By:
lllllllllllllllllllll
(Name)
lllllllllllllllllll
(Address) llllllllllllllllll
being duly sworn, depose(s) and say(s) that
the contents of this application are true to
the best of (his or her) knowledge or belief.
The undersigned Applicant(s) has (have)
signed the application this ll day of
lllllllll, 2lll.
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

§ 5.18
appropriate]
this
ll
day
of
llllllllll, 2lll.
/SEAL [if any]
(Notary Public, or other authorized official)

(5) Contain the information and documents prescribed in the following Sections of this chapter, except as provided in paragraph (b) of this Section,
according to the type of application:
(i) License for a minor water power
project and a major water power
project 5 MW or less: § 4.61 (General instructions, initial statement, and Exhibits A, F, and G);
(ii)
License
for
a
major
unconstructed project and a major
modified project: § 4.41 of this chapter
(General instructions, initial statement, Exhibits A, B, C, D, F, and G);
(iii) License for a major project—existing dam: § 4.51 of this chapter (General instructions, initial statement,
Exhibits A, B, C, D, F, and G); or
(iv) License for a project located at a
new dam or diversion where the applicant seeks PURPA benefits: § 292.208 of
this chapter.
(b) Exhibit E—Environmental Exhibit.
The specifications for Exhibit E in
§§ 4.41, 4.51, or 4.61 of this chapter shall
not apply to applications filed under
this part. The Exhibit E included in
any license application filed under this
part must address the resources listed
in the Pre-Application Document provided for in § 5.6; follow the Commission’s ‘‘Preparing Environmental Assessments: Guidelines for Applicants,
Contractors, and Staff,’’ as they may
be updated from time-to-time; and
meet the following format and content
requirements:
(1) General description of the river
basin. Describe the river system, including relevant tributaries; give
measurements of the area of the basin
and length of stream; identify the
project’s river mile designation or
other reference point; describe the topography and climate; and discuss
major land uses and economic activities.
(2) Cumulative effects. List cumulatively affected resources based on the
Commission’s Scoping Document, consultation, and study results. Discuss
the geographic and temporal scope of
analysis for those resources. Describe

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§ 5.18

18 CFR Ch. I (4–1–18 Edition)

how resources are cumulatively affected and explain the choice of the geographic scope of analysis. Include a
brief discussion of past, present, and
future actions, and their effects on resources based on the new license term
(30–50 years). Highlight the effect on
the cumulatively affected resources
from reasonably foreseeable future actions. Discuss past actions’ effects on
the resource in the Affected Environment Section.
(3) Applicable laws. Include a discussion of the status of compliance with
or consultation under the following
laws, if applicable:
(i) Section 401 of the Clean Water Act.
The applicant must file a request for a
water quality certification (WQC), as
required by Section 401 of the Clean
Water Act no later than the deadline
specified in § 5.23(b). Potential applicants are encouraged to consult with
the certifying agency or tribe concerning information requirements as
early as possible.
(ii) Endangered Species Act (ESA).
Briefly describe the process used to address project effects on Federally listed
or proposed species in the project vicinity. Summarize any anticipated environmental effects on these species
and provide the status of the consultation process. If the applicant is the
Commission’s non-Federal designee for
informal consultation under the ESA,
the applicant’s draft biological assessment must be included.
(iii) Magnuson-Stevens Fishery Conservation and Management Act. Document from the National Marine Fisheries Service (NMFS) and/or the appropriate Regional Fishery Management
Council any essential fish habitat
(EFH) that may be affected by the
project. Briefly discuss each managed
species and life stage for which EFH
was designated. Include, as appropriate, the abundance, distribution,
available habitat, and habitat use by
the managed species. If the project
may affect EFH, prepare a draft ‘‘EFH
Assessment’’ of the impacts of the
project. The draft EFH Assessment
should contain the information outlined in 50 CFR 600.920(e).
(iv) Coastal Zone Management Act
(CZMA). Section 307(c)(3) of the CZMA
requires that all Federally licensed and

permitted activities be consistent with
approved state Coastal Zone Management Programs. If the project is located within a coastal zone boundary
or if a project affects a resource located in the boundaries of the designated coastal zone, the applicant
must certify that the project is consistent with the state Coastal Zone
Management Program. If the project is
within or affects a resource within the
coastal zone, provide the date the applicant sent the consistency certification information to the state agency,
the date the state agency received the
certification, and the date and action
taken by the state agency (for example, the agency will either agree or disagree with the consistency statement,
waive it, or ask for additional information). Describe any conditions placed
on the state agency’s concurrence and
assess the conditions in the appropriate section of the license application. If the project is not in or would
not affect the coastal zone, state so
and cite the coastal zone program office’s concurrence.
(v) National Historic Preservation Act
(NHPA). Section 106 of NHPA requires
the Commission to take into account
the effect of licensing a hydropower
project on any historic properties, and
allow the Advisory Council on Historic
Preservation (Advisory Council) a reasonable opportunity to comment on
the proposed action. ‘‘Historic Properties’’ are defined as any district, site,
building, structure, or object that is included in or eligible for inclusion in
the National Register of Historic
Places (NRHP). If there would be an adverse effect on historic properties, the
applicant may include a Historic Properties Management Plan (HPMP) to
avoid or mitigate the effects. The applicant must include documentation of
consultation with the Advisory Council, the State Historic Preservation Officer, Tribal Historic Preservation Officer, National Park Service, members of
the public, and affected Indian tribes,
where applicable.
(vi) Pacific Northwest Power Planning
and Conservation Act (Act). If the
project is not within the Columbia
River Basin, this section shall not be
included. The Columbia River Basin
Fish and Wildlife Program (Program)

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Federal Energy Regulatory Commission
developed under the Act directs agencies to consult with Federal and state
fish and wildlife agencies, appropriate
Indian tribes, and the Northwest Power
Planning Council (Council) during the
study, design, construction, and operation of any hydroelectric development
in the basin. Section 12.1A of the Program outlines conditions that should
be provided for in any original or new
license. The program also designates
certain river reaches as protected from
development. The applicant must document consultation with the Council,
describe how the act applies to the
project, and how the proposal would or
would not be consistent with the program.
(vii) Wild and Scenic Rivers and Wilderness Acts. Include 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.
(4) Project facilities and operation. Provide a description of the project to include:
(i) Maps showing existing and proposed project facilities, lands, and waters within the project boundary;
(ii) The configuration of any dams,
spillways,
penstocks,
canals,
powerhouses, tailraces, and other
structures;
(iii) The normal maximum water surface area and normal maximum water
surface elevation (mean sea level),
gross storage capacity of any impoundments;
(iv) The number, type, and minimum
and maximum hydraulic capacity and
installed (rated) capacity of existing
and proposed turbines or generators to
be included as part of the project;
(v) An estimate of the dependable capacity, and average annual energy production in kilowatt hours (or mechanical equivalent);
(vi) A description of the current (if
applicable) and proposed operation of
the project, including any daily or seasonal ramping rates, flushing flows,
reservoir operations, and flood control
operations.

§ 5.18
(5) Proposed action and action alternatives. (i) The environmental document must explain the effects of the
applicant’s proposal on resources. For
each resource area addressed include:
(A) A discussion of the affected environment;
(B) A detailed analysis of the effects
of the applicant’s licensing proposal
and, if reasonably possible, any preliminary terms and conditions filed
with the Commission; and
(C) Any unavoidable adverse impacts.
(ii) The environmental document
must contain, with respect to the resources listed in the Pre-Application
Document provided for in § 5.6, and any
other resources identified in the Commission’s scoping document prepared
pursuant to the National Environmental Policy Act and § 5.8, the following information, commensurate
with the scope of the project:
(A) Affected environment. The applicant must provide a detailed description of the affected environment or
area(s) to be affected by the proposed
project by each resource area. This description must include the information
on the affected environment filed in
the Pre-Application Document provided for in § 5.6, developed under the
applicant’s approved study plan, and
otherwise developed or obtained by the
applicant. This section must include a
general description of socio-economic
conditions in the vicinity of the project
including general land use patterns
(e.g., urban, agricultural, forested),
population patterns, and sources of employment in the project vicinity.
(B) Environmental analysis. The applicant must present the results of its
studies conducted under the approved
study plan by resource area and use the
data generated by the studies to evaluate the beneficial and adverse environmental effects of its proposed project.
This section must also include, if applicable, a description of any anticipated
continuing environmental impacts of
continued operation of the project, and
the incremental impact of proposed
new development of project works or
changes in project operation. This
analysis must be based on the information filed in the Pre-Application Document provided for in § 5.6, developed
under the applicant’s approved study

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§ 5.18

18 CFR Ch. I (4–1–18 Edition)

plan, and other appropriate information, and otherwise developed or obtained by the Applicant.
(C) Proposed environmental measures.
The applicant must provide, by resource area, any proposed new environmental measures, including, but not
limited to, changes in the project design or operations, to address the environmental effects identified above and
its basis for proposing the measures.
The applicant must describe how each
proposed measure would protect or enhance the existing environment, including, where possible, a non-monetary quantification of the anticipated
environmental benefits of the measure.
This section must also include a statement of existing measures to be continued for the purpose of protecting and
improving the environment and any
proposed preliminary environmental
measures received from the consulted
resource agencies, Indian tribes, or the
public. If an applicant does not adopt a
preliminary environmental measure
proposed by a resource agency, Indian
tribe, or member of the public, it must
include its reasons, based on projectspecific information.
(D) Unavoidable adverse impacts. Based
on the environmental analysis, discuss
any adverse impacts that would occur
despite the recommended environmental measures. Discuss whether any
such impacts are short- or long-term,
minor or major, cumulative or site-specific.
(E) Economic analysis. The economic
analysis must include annualized, current cost-based information. For a new
or subsequent license, the applicant
must include the cost of operating and
maintaining the project under the existing license. For an original license,
the applicant must estimate the cost of
constructing, operating, and maintaining the proposed project. For either
type of license, the applicant should estimate the cost of each proposed resource protection, mitigation, or enhancement measure and any specific
measure filed with the Commission by
agencies, Indian tribes, or members of
the public when the application is
filed. For an existing license, the applicant’s economic analysis must estimate the value of developmental resources associated with the project

under the current license and the applicant’s proposal. For an original license,
the applicant must estimate the value
of the developmental resources for the
proposed project. As applicable, these
developmental resources may include
power generation, water supply, irrigation, navigation, and flood control.
Where possible, the value of developmental resources must be based on
market prices. If a protection, mitigation, or enhancement measure reduces
the amount or value of the project’s developmental resources, the applicant
must estimate the reduction.
(F) Consistency with comprehensive
plans. Identify relevant comprehensive
plans and explain how and why the proposed project would, would not, or
should not comply with such plans and
a description of any relevant resource
agency or Indian tribe determination
regarding the consistency of the
project with any such comprehensive
plan.
(G) Consultation Documentation. Include a list containing the name, and
address of every Federal, state, and
interstate resource agency, Indian
tribe, or member of the public with
which the applicant consulted in preparation of the Environmental Document.
(H) Literature cited. Cite all materials
referenced including final study reports, journal articles, other books,
agency plans, and local government
plans.
(iii) The applicant must also provide
in the Environmental Document:
(A) Functional design drawings of
any fish passage and collection facilities or any other facilities necessary
for implementation of environmental
measures, indicating whether the facilities depicted are existing or proposed (these drawings must conform to
the specifications of § 4.39 of this chapter 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

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Federal Energy Regulatory Commission
construction of the facilities would be
commenced and completed;
(D) An estimate of the costs of construction, operation, and maintenance,
of any proposed facilities, and of implementation of any proposed environmental measures.
(E) A map or drawing that conforms
to the size, scale, and legibility requirements of § 4.39 of this chapter
showing by the use of shading, crosshatching, 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).
(c) Exhibit H. The information required to be provided by this paragraph
(c) must be included in the application
as a separate exhibit labeled ‘‘Exhibit
H.’’
(1) Information to be provided by an applicant for new license: Filing requirements—(i) Information to be supplied by
all applicants. All Applicants for a new
license under this part must file the
following information with the Commission:
(A) A discussion of the plans and
ability of the applicant to operate and
maintain the project in a manner most
likely to provide efficient and reliable
electric service, including efforts and
plans to:
(1) Increase capacity or generation at
the project;
(2) Coordinate the operation of the
project with any upstream or downstream water resource projects; and
(3) Coordinate the operation of the
project with the applicant’s or other
electrical systems to minimize the cost
of production.
(B) A discussion of the need of the applicant over the short and long term
for the electricity generated by the
project, including:
(1) The reasonable costs and reasonable availability of alternative sources
of power that would be needed by the
applicant or its customers, including
wholesale customers, if the applicant is
not granted a license for the project;
(2) A discussion of the increase in
fuel, capital, and any other costs that
would be incurred by the applicant or
its customers to purchase or generate
power necessary to replace the output

§ 5.18
of the licensed project, if the applicant
is not granted a license for the project;
(3) The effect of each alternative
source of power on:
(i) The applicant’s customers, including wholesale customers;
(ii) The applicant’s operating and
load characteristics; and
(iii) The communities served or to be
served, including any reallocation of
costs associated with the transfer of a
license from the existing licensee.
(C) The following data showing need
and the reasonable cost and availability of alternative sources of power:
(1) The average annual cost of the
power produced by the project, including the basis for that calculation;
(2) The projected resources required
by the applicant to meet the applicant’s capacity and energy requirements over the short and long term including:
(i) Energy and capacity resources, including the contributions from the applicant’s generation, purchases, and
load modification measures (such as
conservation, if considered as a resource), as separate components of the
total resources required;
(ii) A resource analysis, including a
statement of system reserve margins
to be maintained for energy and capacity; and
(iii) If load management measures are
not viewed as resources, the effects of
such measures on the projected capacity and energy requirements indicated
separately;
(iv) For alternative sources of power,
including generation of additional
power at existing facilities, restarting
deactivated units, the purchase of
power off-system, the construction or
purchase and operation of a new power
plant, and load management measures
such as conservation: The total annual
cost of each alternative source of
power to replace project power; the
basis for the determination of projected annual cost; and a discussion of
the relative merits of each alternative,
including the issues of the period of
availability and dependability of purchased power, average life of alternatives, relative equivalent availability of generating alternatives, and
relative impacts on the applicant’s

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§ 5.18

18 CFR Ch. I (4–1–18 Edition)

power system reliability and other system operating characteristics; and the
effect on the direct providers (and their
immediate customers) of alternate
sources of power.
(D) If an applicant uses power for its
own industrial facility and related operations, the effect of obtaining or losing electricity from the project on the
operation and efficiency of such facility or related operations, its workers,
and the related community.
(E) If an applicant is an Indian tribe
applying for a license for a project located on the tribal reservation, a statement of the need of such Indian tribe
for electricity generated by the project
to foster the purposes of the reservation.
(F) A comparison of the impact on
the operations and planning of the applicant’s transmission system of receiving or not receiving the project license, including:
(1) An analysis of the effects of any
resulting redistribution of power flows
on line loading (with respect to applicable thermal, voltage, or stability
limits), line losses, and necessary new
construction of transmission facilities
or upgrading of existing facilities, together with the cost impact of these effects;
(2) An analysis of the advantages
that the applicant’s transmission system would provide in the distribution
of the project’s power; and
(3) Detailed single-line diagrams, including existing system facilities identified by name and circuit number,
that show system transmission elements in relation to the project and
other principal interconnected system
elements. Power flow and loss data
that represent system operating conditions may be appended if applicants believe such data would be useful to show
that the operating impacts described
would be beneficial.
(G) If the applicant has plans to modify existing project facilities or operations, a statement of the need for, or
usefulness of, the modifications, including at least a reconnaissance-level
study of the effect and projected costs
of the proposed plans and any alternate
plans, which in conjunction with other
developments in the area would conform with a comprehensive plan for im-

proving or developing the waterway
and for other beneficial public uses as
defined in Section 10(a)(1) of the Federal Power Act.
(H) If the applicant has no plans to
modify existing project facilities or operations, at least a reconnaissancelevel study to show that the project facilities or operations in conjunction
with other developments in the area
would conform with a comprehensive
plan for improving or developing the
waterway and for other beneficial public uses as defined in Section 10(a)(1) of
the Federal Power Act.
(I) A statement describing the applicant’s financial and personnel resources to meet its obligations under a
new license, including specific information to demonstrate that the applicant’s personnel are adequate in number and training to operate and maintain the project in accordance with the
provisions of the license.
(J) If an applicant proposes to expand
the project to encompass additional
lands, a statement that the applicant
has notified, by certified mail, property owners on the additional lands to
be encompassed by the project and governmental agencies and subdivisions
likely to be interested in or affected by
the proposed expansion.
(K) The applicant’s electricity consumption efficiency improvement program, as defined under Section
10(a)(2)(C) of the Federal Power Act, including:
(1) A statement of the applicant’s
record of encouraging or assisting its
customers to conserve electricity and a
description of its plans and capabilities
for promoting electricity conservation
by its customers; and
(2) A statement describing the compliance of the applicant’s energy conservation programs with any applicable
regulatory requirements.
(L) The names and mailing addresses
of every Indian tribe with land on
which any part of the proposed project
would be located or which the applicant reasonably believes would otherwise be affected by the proposed
project.
(ii) Information to be provided by an
applicant licensee. An existing licensee
that applies for a new license must provide:

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Federal Energy Regulatory Commission
(A) The information specified in
paragraph (c)(1) of this section.
(B) A statement of measures taken or
planned by the licensee to ensure safe
management, operation, and maintenance of the project, including:
(1) A description of existing and
planned operation of the project during
flood conditions;
(2) A discussion of any warning devices used to ensure downstream public
safety;
(3) A discussion of any proposed
changes to the operation of the project
or downstream development that
might affect the existing Emergency
Action Plan, as described in subpart C
of part 12 of this chapter, on file with
the Commission;
(4) A description of existing and
planned monitoring devices to detect
structural movement or stress, seepage, uplift, equipment failure, or water
conduit failure, including a description
of the maintenance and monitoring
programs used or planned in conjunction with the devices; and
(5) A discussion of the project’s employee safety and public safety record,
including the number of lost-time accidents involving employees and the
record of injury or death to the public
within the project boundary.
(C) A description of the current operation of the project, including any constraints that might affect the manner
in which the project is operated.
(D) A discussion of the history of the
project and record of programs to upgrade the operation and maintenance
of the project.
(E) A summary of any generation
lost at the project over the last five
years because of unscheduled outages,
including the cause, duration, and corrective action taken.
(F) A discussion of the licensee’s
record of compliance with the terms
and conditions of the existing license,
including a list of all incidents of noncompliance, their disposition, and any
documentation relating to each incident.
(G) A discussion of any actions taken
by the existing licensee related to the
project which affect the public.
(H) A summary of the ownership and
operating expenses that would be re-

§ 5.18
duced if the project license were transferred from the existing licensee.
(I) A statement of annual fees paid
under part I of the Federal Power Act
for the use of any Federal or Indian
lands included within the project
boundary.
(iii) Information to be provided by an
applicant who is not an existing licensee.
An applicant that is not an existing licensee must provide:
(A) The information specified in
paragraph (c)(1) of this section.
(B) A statement of the applicant’s
plans to manage, operate, and maintain the project safely, including:
(1) A description of the differences
between the operation and maintenance procedures planned by the applicant and the operation and maintenance procedures of the existing licensee;
(2) A discussion of any measures proposed by the applicant to implement
the existing licensee’s Emergency Action Plan, as described in subpart C of
part 12 of this chapter, and any proposed changes;
(3) A description of the applicant’s
plans to continue safety monitoring of
existing project instrumentation and
any proposed changes; and
(4) A statement indicating whether
or not the applicant is requesting the
licensee to provide transmission services under section 15(d) of the Federal
Power Act.
(d) Consistency with comprehensive
plans. An application for license under
this part must include an explanation
of why the project would, would not, or
should not, comply with any relevant
comprehensive plan as defined in § 2.19
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.
(e) Response to information requests.
An application for license under this
Section must respond to any requests
for additional information-gathering or
studies filed with comments on its preliminary licensing proposal or draft license application. If the license applicant agrees to do the information-gathering or study, it must provide the information or include a plan and schedule for doing so, along with a schedule

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§ 5.19

18 CFR Ch. I (4–1–18 Edition)

for completing any remaining work
under the previously approved study
plan, as it may have been amended. If
the applicant does not agree to any additional
information-gathering
or
study requests made in comments on
the draft license application, it must
explain the basis for declining to do so.
(f) Maps and drawings. All required
maps and drawings must conform to
the specifications of § 4.39 of this chapter.

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[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003; 68 FR 69957, Dec. 16, 2003;
Order 699, 72 FR 45324, Aug. 14, 2007; Order
756, 77 FR 4894, Feb. 1, 2012]

§ 5.19 Tendering notice and schedule.
(a) Notice. Within 14 days of the filing
date of any application for a license developed pursuant to this part, the Commission will issue public notice of the
tendering for filing of the application.
The tendering notice will include a preliminary schedule for expeditious processing of the application, including
dates for:
(1) Issuance of the acceptance for filing and ready for environmental analysis notice provided for in § 5.22.
(2) Filing of recommendations, preliminary terms and conditions, and
fishway prescriptions;
(3) Issuance of a draft environmental
assessment or environmental impact
statement, or an environmental assessment not preceded by a draft.
(4) Filing of comments on the draft
environmental assessment or environmental impact statement, as applicable;
(5) Filing of modified recommendations, mandatory terms and conditions,
and fishway prescriptions in response
to a draft NEPA document or Environmental Analysis, if no draft NEPA document is issued;
(6) Issuance of a final NEPA document, if any;
(7) In the case of a new or subsequent
license application, a deadline for submission of final amendments, if any, to
the application; and
(8) Readiness of the application for
Commission decision.
(b) Modifications to process plan and
schedule. The tendering notice shall
also include any known modifications
to the schedules developed pursuant to

§ 5.8 for completion of consultation
under section 7 of the Endangered Species Act and water quality certification
under section 401 of the Clean Water
Act.
(c) Method of notice. The public notice
provided for in paragraphs (a) and (b) of
this Section will be given by:
(1) Publishing notice in the FEDERAL
REGISTER; and
(2) Notifying appropriate Federal,
state, and interstate resource agencies,
state water quality and coastal zone
management plan consistency certification agencies, Indian tribes, and nongovernmental organizations, by electronic means if practical, otherwise by
mail.
(d) Resolution of pending information
requests. Within 30 days of the filing
date of any application for a license developed pursuant to this part, the Director of the Office of Energy Projects
will issue an order resolving any requests for additional information-gathering or studies made in comments on
the preliminary licensing proposal or
draft license application.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61742, Oct. 30, 2003; 68 FR 69957, Dec. 16, 2003;
Order 653, 70 FR 8724, Feb. 23, 2005]

§ 5.20 Deficient applications.
(a) Deficient applications. (1) If an applicant believes that its application
conforms adequately to the pre-filing
consultation and filing requirements of
this part without containing certain
required materials 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.
(2) Within 30 days of the filing date of
any application for a license under this
part, the Director of the Office of Energy Projects will notify the applicant
if, in the Director’s judgment, the application does not conform to the prefiling consultation and filing requirements of this part, and is therefore
considered deficient. An applicant having a deficient application will be afforded additional time to correct the
deficiencies, not to exceed 90 days from
the date of notification. Notification
will be by letter or, in the case of
minor deficiencies, by telephone. Any

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Federal Energy Regulatory Commission
notification will specify the deficiencies to be corrected. Deficiencies
must be corrected by submitting an a
filing pursuant to the requirements of
subpart T of part 385 of this chapter
within the time specified in the notification of deficiency.
(3) If the revised application is found
not to conform to the prefiling consultation and filing requirements of
this part, or if the revisions are not
timely submitted, the revised application will be rejected. Procedures for rejected applications are specified in
paragraph (b)(3) of this section.
(b) Patently deficient applications. (1)
If, within 30 days of its filing date, the
Director of the Office of Energy
Projects determines that an application patently fails to substantially
comply with the prefiling consultation
and filing requirements of this part, 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.
(2) If, after 30 days following its filing
date, the Director of the Office of Energy Projects determines that an application patently fails to comply with
the prefiling consultation and filing requirements of this part, or is for a
project that is precluded by law:
(i) The application will be rejected by
order of the Commission, if the Commission determines that it is patently
deficient; or
(ii) The application will be considered deficient under paragraph (a)(2) of
this Section, if the Commission determines that it is not patently deficient.
(3) Any application for an original license that is rejected may be submitted 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 of this chapter
and the disposition of competing applications under § 4.37 of this chapter.

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[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61743, Oct. 30, 2003]

§ 5.21 Additional information.
An applicant may be required to submit any additional information or doc-

§ 5.22
uments that the Commission 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 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, Indian
tribe or other entity that the Commission specifies. If an applicant fails to
provide timely additional information,
documents, or copies of submitted materials as required, the Commission
may dismiss the application, hold it in
abeyance, or take other appropriate action under this chapter or the Federal
Power Act.
§ 5.22 Notice of acceptance and ready
for environmental analysis.
(a) When the Commission has determined that the application meets the
Commission’s requirements as specified in §§ 5.18 and 5.19, the approved
studies have been completed, any deficiencies in the application have been
cured, and no other additional information is needed, it will issue public notice as required in the Federal Power
Act:
(1) Accepting the application for filing and specifying the date upon which
the application was accepted for filing
(which will be the application filing
date if the Secretary receives all of the
information and documents necessary
to conform to the requirements of §§ 5.1
through 5.21, as applicable, within the
time frame prescribed in § 5.20 or § 5.21);
(2) Finding that the application is
ready for environmental analysis;
(3) Requesting comments, protests,
and interventions;
(4)
Requesting
recommendations,
preliminary terms and conditions, and
preliminary fishway prescriptions, including all supporting documentation;
and
(5) Establishing the date for final
amendments to applications for new or
subsequent licenses; and
(6) Updating the schedule issued with
the tendering notice for processing the
application.

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§ 5.23

18 CFR Ch. I (4–1–18 Edition)

(b) If the project affects lands of the
United States, the Commission will notify the appropriate Federal office of
the application and the specific lands
affected, pursuant to Section 24 of the
Federal Power Act.
(c) For an application for a license
seeking benefits under Section 210 of
the Public Utility Regulatory Polices
Act of 1978, as amended, for a project
that would be located at a new dam or
diversion, the Applicant must serve the
public notice issued under paragraph
(a)(1) of this Section to interested
agencies at the time the applicant is
notified that the application is accepted for filing.

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[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61743, Oct. 30, 2003]

§ 5.23 Response to notice.
(a) Comments and reply comments.
Comments, protests, interventions,
recommendations,
and
preliminary
terms and conditions or preliminary
fishway prescriptions must be filed no
later than 60 days after the notice of
acceptance and ready for environmental analysis. All reply comments
must be filed within 105 days of that
notice.
(b) Water quality certification. (1) With
regard to certification requirements
for a license applicant under Section
401(a)(1) of the Federal Water Pollution
Control Act (Clean Water Act), the license applicant must file no later than
60 days following the date of issuance
of the notice of acceptance and ready
for environmental analysis provide for
in § 5.22:
(i) A copy of the water quality certification;
(ii) A copy of the request for certification, including proof of the date on
which the certifying agency received
the request; or
(iii) Evidence of waiver of water quality certification as described in paragraph (b)(5)(2) of this Section.
(2) 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.
(3) Notwithstanding any other provision in 18 CFR part 4, subpart B, any
application to amend an existing license, and any application to amend a
pending application for a license, requires a new request for water quality
certification pursuant to § 4.34(b)(5) of
this chapter if the amendment would
have a material adverse impact on the
water quality in the discharge from the
project or proposed project.
§ 5.24 Applications not requiring a
draft NEPA document.
(a) If the Commission determines
that a license application will be processed with an environmental assessment rather than an environmental
impact statement and that a draft environmental assessment will not be required, the Commission will issue the
environmental assessment for comment no later than 120 days from the
date responses are due to the notice of
acceptance and ready for environmental analysis.
(b) Each environmental assessment
issued pursuant to this paragraph must
include draft license articles, a preliminary determination of consistency
of each fish and wildlife agency recommendation made pursuant to Federal Power Act section 10(j) with the
purposes and requirements of the Federal Power Act and other applicable
law, as provided for in § 5.26, and any
preliminary mandatory terms and conditions and fishway prescriptions.
(c) Comments on an environmental
assessment issued pursuant to paragraph (a) of this section, including
comments in response to the Commission’s preliminary determination with
respect to fish and wildlife agency recommendations and on preliminary
mandatory terms and conditions or
fishway prescriptions, must be filed no
later than 30 or 45 days after issuance
of the environmental assessment, as
specified in the notice accompanying
issuance of the environmental assessment, as should any revisions to supporting documentation.
(d) Modified mandatory prescriptions
or terms and conditions must be filed
no later than 60 days following the date
for filing of comments provided for in

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Federal Energy Regulatory Commission
paragraph (c) of this section, as specified in the notice accompanying
issuance of the environmental analysis.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61743, Oct. 30, 2003]

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§ 5.25 Applications requiring a draft
NEPA document.
(a) If the Commission determines
that a license application will be processed with an environmental impact
statement, or a draft and final environmental assessment, the Commission
will issue the draft environmental impact statement or environmental assessment for comment no later than
180 days from the date responses are
due to the notice of acceptance and
ready for environmental analysis provided for in § 5.22.
(b) Each draft environmental document will include for comment draft license articles, a preliminary determination of the consistency of each
fish and wildlife agency recommendation made pursuant to section 10(j) of
the Federal Power Act with the purposes and requirements of the Federal
Power Act and other applicable law, as
provided for in § 5.26, and any preliminary mandatory terms and conditions
and fishways prescriptions.
(c) Comments on a draft environmental document issued pursuant to
paragraph (b) of this section, including
comments in response to the Commission’s preliminary determination with
respect to fish and wildlife agency recommendations and on preliminary
mandatory terms and conditions or
prescriptions must be filed no later
than 30 or 60 days after issuance of the
draft environmental document, as specified in the notice accompanying
issuance of the draft environmental
document.
(d) Modified mandatory prescriptions
or terms and conditions must be filed
no later than 60 days following the date
for filing of comments provided for in
paragraph (c) of this section.
(e) The Commission will issue a final
environmental document within 90
days following the date for filing of
modified mandatory prescriptions or
terms and conditions.

§ 5.26
§ 5.26

Section 10(j) process.

(a) In connection with its environmental review of an application for license, 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.
(b) 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.
(c) Any party, affected resource agency, or Indian tribe may file comments

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§ 5.27

18 CFR Ch. I (4–1–18 Edition)

in response to the preliminary determination of inconsistency, including
any modified recommendations, within
the time frame allotted for comments
on the draft environmental document
or, if none, the time frame for comments on the environmental assessment. 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.
(d) 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 paragraph 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.
(e) 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.

§ 5.27

Amendment of application.

(a) Procedures. 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 of this chapter, 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 §§ 5.20–5.26.
Such
modified
recommendations,
terms and conditions, or prescriptions
must be filed no later than the due
date specified by the Commission for
comments on the amendment.
(b) Date of acceptance. The date of acceptance of an amendment of application for an original license filed under
this part is governed by the provisions
of § 4.35 of this chapter.
(c) New and subsequent licenses. The
requirements of § 4.35 of this chapter do
not apply to an application for a new
or subsequent license, except that the
Commission will reissue a public notice
of the application in accordance with
the provisions of § 4.32(d)(2) of this
chapter if a material amendment, as
that term is used in § 4.35(f) of this
chapter, is filed.
(d) Deadline. All amendments to an
application for a new or subsequent license, including the final amendment,
must be filed with the Commission and
served on all competing applicants no
later than the date specified in the notice issued under § 5.22.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61743, Oct. 30, 2003]

§ 5.28

Competing applications.

(a) Site access for a competing applicant. The provisions of § 16.5 of this
chapter shall govern site access for a
potential license application to be filed
in competition with an application for
a new or subsequent license by an existing licensee pursuant to this part,
except that references in § 16.5 to the
pre-filing consultation provisions in
parts 4 and 16 of this chapter shall be
construed in a manner compatible with
the effective administration of this
part.
(b) Competing applications. The provisions of § 4.36 of this chapter shall
apply to competing applications for

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Federal Energy Regulatory Commission
original, new, or subsequent licenses
filed under this part.
(c) New or subsequent license applications—final amendments; better adapted
statement. Where two or more mutually
exclusive competing applications for
new or subsequent license have been
filed for the same project, the final
amendment date and deadlines for
complying with provisions of § 4.36(d)(2)
(ii) and (iii) of this chapter established
pursuant to the notice issued under
§ 5.22 will be the same for all such applications.
(d) Rules of preference among competing applicants. The Commission will
select among competing applications
according to the provisions of § 4.37 of
this chapter.
[Order 2002, 68 FR 51121, Aug. 25, 2003; 68 FR
61743, Oct. 30, 2003]

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§ 5.29

Other provisions.

(a) Filing requirement. Unless otherwise provided by statute, regulation or
order, all filings in hydropower hearings, except those conducted by trialtype procedures, must conform to the
requirements of 18 CFR part 385, subpart T of this chapter.
(b) Waiver of compliance with consultation requirements. (1) If an agency, Indian tribe, or member of the public
waives in writing compliance with any
consultation requirement of this part,
an applicant does not have to comply
with the requirement as to that agency, Indian tribe, or member of the public.
(2) If an agency, Indian tribe, member
of the public fails to timely comply
with a provision regarding a requirement of this section, an applicant may
proceed to the next sequential requirement of this section without waiting
for the agency, Indian tribe, or member
of the public.
(c) Requests for privileged or Critical
Energy Infrastructure Information treatment of pre-filing submission. If a potential Applicant requests privileged or
critical energy infrastructure information treatment of any information submitted to the Commission during prefiling consultation (except for the information specified in § 5.4), the Commission will treat the request in accordance with the provisions in § 388.112

§ 5.29
of this chapter until the date the application is filed with the Commission.
(d) Conditional applications. Any application, the effectiveness of which is
conditioned upon the future occurrence
of any event or circumstance, will be
rejected.
(e) Trial-type hearing. The Commission may order a trial-type hearing on
an application for a license under this
part either upon its own motion or the
motion of any interested party of
record. Any trial-type hearing will be
limited to the issues prescribed by
order of the Commission. In all other
cases, the hearings will be conducted
by notice and comment procedures.
(f) Notice and comment hearings. (1) All
comments and reply comments and all
other filings described in this part
must be served on all persons on the
service list prepared by the Commission, in accordance with the requirements of § 385.2010 of this chapter. If a
party submits any written material to
the Commission relating to the merits
of an issue that may affect the responsibility of particular resource agency,
the party must also serve a copy of the
submission on that resource agency.
(2) The Director of Energy Projects
may waive or modify any of the provisions of this part for good cause. 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.
(3) Late-filed recommendations by
fish and wildlife agencies pursuant to
the Fish and Wildlife Coordination Act
and section 10(j) of the Federal Power
Act for the protection, mitigation of
damages to, and enhancement of fish
and wildlife affected by the development, operation, and management of
the proposed project and late-filed
terms and conditions or prescriptions
filed pursuant to sections 4(e) and 18 of
the Federal Power Act, respectively,
will be considered by Commission
under section 10(a) of the Federal
Power Act if such consideration would
not delay or disrupt the proceeding.
(g) Settlement negotiations. (1) The
Commission will consider, on a caseby-case basis, requests for a short suspension of the procedural schedule for

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§ 5.30

18 CFR Ch. I (4–1–18 Edition)

the purpose of participants conducting
settlement negotiations, where it determines that the suspension will not
adversely affect timely action on a license application. In acting on such requests, the Commission will consider,
among other things:
(i) Whether requests for suspension of
the procedural schedule have previously been made or granted;
(ii) Whether the request is supported
by a consensus of participants in the
proceeding and an explanation of objections to the request expressed by any
participant;
(iii) The likelihood that a settlement
agreement will be filed within the requested suspension period; and
(iv) Whether the requested suspension is likely to cause any new or subsequent license to be issued after the
expiration of the existing license.
(2) The Commission reserves the
right to terminate any suspension of
the procedural schedule if it concludes
that insufficient progress is being made
toward the filing of a settlement agreement.
(h) License conditions and required
findings. (1) 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.
(2) 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.
(3) 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.
(4) 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 filed pursuant to section
4(e) of the Federal Power Act.
(5) The Commission will require the
construction, maintenance, and operation 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.
(i) Standards and factors for issuing a
new license. (1) In determining whether
a final proposal for a new license under
section 15 of the Federal Power Act is
best adapted to serve the public interest, the Commission will consider the
factors enumerated in sections 15(a)(2)
and (a)(3) of the Federal Power Act.
(2) If there are only insignificant differences between the final applications
of an existing licensee and a competing
Applicant after consideration of the
factors enumerated in section 15(a)(2)
of the Federal Power Act, the Commission will determine which Applicant
will receive the license after considering:
(i) The existing licensee’s record of
compliance with the terms and conditions of the existing license; and
(ii) The actions taken by the existing
licensee related to the project which
affect the public.
(iii) An existing licensee that files an
application for a new license in conjunction with an entity or entities that
are not currently licensees of all or
part of the project will not be considered an existing licensee for the purpose of the insignificant differences
provision of section 15(a)(2) of the Federal Power Act.
(j) Fees under section 30(e) of the Federal Power Act. The requirements of 18
CFR part 4, subpart M, of this chapter,
fees under section 30(e) of the Federal
Power Act, apply to license applications developed under this part.
[Order 2002, 68 FR 51121, Aug. 25, 2003, as
amended by Order 769, 77 FR 65475, Oct. 29,
2012]

§ 5.30 Critical energy infrastructure
information.
If any action required by this part requires a potential Applicant or Applicant to reveal Critical Energy Infrastructure Information, as defined by
§ 388.113(c) of this chapter, to the public, the Applicant must follow the procedures set out in § 4.32(k) of this chapter.
§ 5.31 Transition provision.
This part shall apply to license applications for which the deadline for filing a notification of intent to seek a

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Federal Energy Regulatory Commission
new or subsequent license, or for filing
a notification of intent to file an original license application, as required by
§ 5.5 of this part, is July 23, 2005 or
later.

PART 6—SURRENDER OR
TERMINATION OF LICENSE

United States the licensee will be required to restore the lands to a condition satisfactory to the Department
having supervision over such lands and
annual charges will continue until such
restoration has been satisfactorily
completed.
[Order 175, 19 FR 5217, Aug. 18, 1954]

Sec.
6.1 Application for surrender.
6.2 Surrender of license.
6.3 Termination of license.
6.4 Termination by implied surrender.
6.5 Annual charges.
AUTHORITY: Secs. 6, 10(i), 13, 41 Stat. 1067,
1068, 1071, as amended, sec. 309, 49 Stat. 858;
16 U.S.C. 799, 803(i), 806, 825h; Pub. L. 96–511,
94 Stat. 2812 (44 U.S.C. 3501 et seq.), unless
otherwise noted.

§ 6.1 Application for surrender.
Every application for surrender of a
license shall state the reason therefor;
and, except in the case of an application for surrender of a license for a
minor project, or for a transmission
line only, shall be executed by the licensee and filed in the same form and
manner as the application for license,
and shall be accompanied by the license and all amendments thereof.
Public notice of such application shall
be given at least 30 days prior to action
upon the application.
(Secs. 308 and 309; 49 Stat. 858, 859 (16 U.S.C.
825g, 825h))
[Order 570, 42 FR 40191, Aug. 9, 1977]
REFERENCES: For application for license, general provisions, see §§ 4.30 to 4.33,
inclusive, of this chapter. For application for
license for proposed major project or minor
part thereof, see §§ 4.40 to 4.41, inclusive, of
this chapter. For application for license for
constructed major project or minor part
thereof, see §§ 4.50 and 4.51 of this chapter.
CROSS

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§ 6.5

§ 6.2 Surrender of license.
Licenses may be surrendered only
upon the fulfillment by the licensee of
such obligations under the license as
the Commission may prescribe, and, if
the project works authorized under the
license have been constructed in whole
or in part, upon such conditions with
respect to the disposition of such
works as may be determined by the
Commission. Where project works have
been constructed on lands of the

§ 6.3 Termination of license.
Licenses may be terminated by written order of the Commission not less
than 90 days after notice thereof shall
have been mailed to the licensee by
certified mail to the last address
whereof the Commission has been notified by the licensee, if there is failure
to commence actual construction of
the project works within the time prescribed in the license, or as extended
by the Commission. Upon like notice,
the authority granted under a license
with respect to any separable part of
the project works may be terminated if
there is failure to begin construction of
such separable part within the time
prescribed or as extended by the Commission.
(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 8491, Dec. 19, 1947, as
amended by Order 344, 48 FR 49010, Oct. 24,
1983]

§ 6.4 Termination by implied surrender.
If any licensee holding a license subject to the provisions of section 10(i) of
the Act shall cause or suffer essential
project property to be removed or destroyed, or become unfit for use, without replacement, or shall abandon, or
shall discontinue good faith operation
of the project for a period of three
years, the Commission will deem it to
be the intent of the licensee to surrender the license; and not less than 90
days after public notice may in its discretion terminate the license.
[Order 141, 12 FR 8491, Dec. 19, 1947]

§ 6.5 Annual charges.
Annual charges arising under a license surrendered or terminated shall
continue until the effective date set

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