18 Cfr 4.34

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validity and priority under this subpart until the preliminary permit or license application is withdrawn or the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

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

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

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

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§ 4.34

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

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§ 4.34

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

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

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

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

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§ 4.34

18 CFR Ch. I (4–1–18 Edition)

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

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

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

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

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§ 4.34

18 CFR Ch. I (4–1–18 Edition)

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

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

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

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

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

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