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ELECTRONIC CODE OF FEDERAL REGULATIONS
e-CFR data is current as of July 13, 2021
Title 18 → Chapter I → Subchapter B → Part 4
Title 18: Conservation of Power and Water Resources
PART 4—LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF
PROJECT COSTS
Contents
Subpart A—Determination of Cost of Projects Constructed Under License
§4.1
§4.3
§4.4
§4.5
§4.6
§4.7
Initial cost statement.
Report on project cost.
Service of report.
Time for filing protest.
Burden of proof.
Findings.
Subpart B—Determination of Fair Value of Constructed Projects, Under
Section 23(a) of the Act
§4.10
§4.11
§4.12
§4.13
§4.14
Valuation data.
Reports.
Service of report.
Time for filing protest.
Hearing upon report.
Subpart C—Determination of Cost of Constructed Projects not Subject to
Section 23(a) of the Act
§4.20
§4.21
§4.22
§4.23
§4.24
§4.25
Initial statement.
Reports.
Service of report.
Time for filing protest.
Determination of cost.
Findings.
Subpart D—Application for Preliminary Permit, License or Exemption: General
Provisions
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§4.30 Applicability and definitions.
§4.31 Initial or competing application: who may file.
§4.32 Acceptance for filing or rejection; information to be made available to the
public; requests for additional studies.
§4.33 Limitations on submitting applications.
§4.34 Hearings on applications; consultation on terms and conditions; motions to
intervene; alternative procedures.
§4.35 Amendment of application; date of acceptance.
§4.36 Competing applications: deadlines for filing; notices of intent; comparisons of
plans of development.
§4.37 Rules of preference among competing applications.
§4.38 Consultation requirements.
§4.39 Specifications for maps and drawings.
Subpart E—Application for License for Major Unconstructed Project and Major
Modified Project
§4.40 Applicability.
§4.41 Contents of application.
Subpart F—Application for License for Major Project—Existing Dam
§4.50 Applicability.
§4.51 Contents of application.
Subpart G—Application for License for Minor Water Power Projects and Major
Water Power Projects 5 Megawatts or Less
§4.60 Applicability and notice to agencies.
§4.61 Contents of application.
Subpart H—Application for License for Transmission Line Only
§4.70 Applicability.
§4.71 Contents of application.
Subpart I—Application for Preliminary Permit; Amendment and Cancellation
of Preliminary Permit
§4.80
§4.81
§4.82
§4.83
§4.84
Applicability.
Contents of application.
Amendments.
Cancellation and loss of priority.
Surrender of permit.
Subpart J—Exemption of Small Conduit Hydroelectric Facilities
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§4.90
§4.91
§4.92
§4.93
§4.94
§4.95
§4.96
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Applicability and purpose.
[Reserved]
Contents of exemption application.
Action on exemption applications.
Standard terms and conditions of exemption.
Surrender of exemption.
Amendment of exemption.
Subpart K—Exemption of Small Hydroelectric Power Projects of 10 Megawatts
or Less
§4.101
§4.102
§4.103
§4.104
§4.105
§4.106
§4.107
§4.108
Applicability.
Surrender of exemption.
General provisions for case-specific exemption.
Amendment of exemption.
Action on exemption applications.
Standard terms and conditions of case-specific exemption from licensing.
Contents of application for exemption from licensing.
Contents of application for exemption from provisions other than licensing.
Subpart L—Application for Amendment of License
§4.200 Applicability.
§4.201 Contents of application.
§4.202 Alteration and extension of license.
Subpart M—Fees Under Section 30(e) of the Act
§4.300
§4.301
§4.302
§4.303
§4.304
§4.305
Purpose, definitions, and applicability.
Notice to fish and wildlife agencies and estimation of fees prior to filing.
Fees at filing.
Post-filing procedures.
Payment.
Enforcement.
Subpart N—Notice of Intent To Construct Qualifying Conduit Hydropower
Facilities
§4.400 Applicability and purpose.
§4.401 Contents of notice of intent to construct a qualifying conduit hydropower
facility.
AUTHORITY: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.
SOURCE: Order 141, 12 FR 8485, Dec. 19, 1947, unless otherwise noted.
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Subpart A—Determination of Cost of Projects Constructed
Under License
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§4.1 Initial cost statement.
(a) Notification of Commission. When a project is constructed under a license
issued under the Federal Power Act, the licensee shall, within one year after the
original project is ready for service, file with the Commission a letter, in
quadruplicate, declaring that the original costs have been booked in compliance with
the Commission's Uniform System of Accounts and the books of accounts are ready
for audit.
(b) Licensee's books. The licensee's books of accounts for each project shall be
maintained in such a fashion that each year's additions, betterments, and delections
to the project may be readily ascertained.
(c) Availability of information to the public. The information made available to
the Commission in accordance with this section must be available to the public for
inspection and copying when specifically requested.
(d) Compliance with the Act. Compliance with the provisions of this section
satisfies the filing requirements of section 4(b) of the Federal Power Act (16 U.S.C.
797(b)).
[Order 53, 44 FR 61948, Oct. 29, 1979]
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§4.3 Report on project cost.
(a) Scheduling an audit. When the original cost declaration letter, filed in
accordance with §4.1 is received by the Commission, its representative will
schedule and conduct an audit of the books, cost records, engineering reports, and
other records supporting the project's original cost. The audit may include an
inspection of the project works.
(b) Project records. The cost records shall be supported by memorandum
accounts reflecting the indirect and overhead costs prior to their spread to primary
accounts as well as all the details of allocations including formulas utilized to spread
the indirect and overhead costs to primary accounts.
(c) Report by Commission staff. Upon completion of the audit, a report will be
prepared for the Commission setting forth the audit findings and recommendations
with respect to the cost as claimed.
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[Order 53, 44 FR 61948, Oct. 29, 1979]
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§4.4 Service of report.
Copies of such report will be served upon said licensees, and copies will also
be sent to the State public service commission, or if the State has no regulatory
agency, to the Governor of the State where such project is located, and to such
other parties as the Commission shall prescribe, and the report will be made
available for public inspection at the time of service upon the licensee.
(Administrative Procedure Act, 5 U.S.C. 551-557 (1976); Federal Power Act, as amended,
16 U.S.C. 291-628 (1976 & Supp. V 1981), Dept. of Energy Organization Act 42 U.S.C.
7101-7352 (Supp. V 1981); E.O. 12009, 3 CFR 142 (1978))
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 344, 48 FR 49010, Oct. 24,
1983; Order 737, 75 FR 43402, July 26, 2010]
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§4.5 Time for filing protest.
Thirty days after service thereof will be allowed to such licensee within which to
file a protest to such reports. If no protest is filed within the time allowed, the
Commission will issue such order as may be appropriate. If a protest is filed, a
public hearing will be ordered in accordance with subpart E of part 385 of this
chapter.
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 225, 47 FR 19056, May 3,
1982]
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§4.6 Burden of proof.
The burden of proof to sustain each item of claimed cost shall be upon the
licensee and only such items as are in the opinion of the Commission supported by
satisfactory proof may be entered in the electric plant accounts of the licensee.
[Order 53, 44 FR 61948, Oct. 29, 1979]
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§4.7 Findings.
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(a) Commission determination. Final action by the Commission will be in the
form of an order served upon all parties to the proceeding. One copy of the order will
be furnished to the Secretary of Treasury by the Commission.
(b) Adjustments to licensee's books. The licensee's books of account for the
project shall be adjusted to conform to the actual legitimate cost as revised by the
order of the Commission. These adjustments and the project may be audited by
Commission representatives, as scheduled.
[Order 53, 44 FR 61948, Oct. 29, 1979]
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Subpart B—Determination of Fair Value of Constructed
Projects, Under Section 23(a) of the Act
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§4.10 Valuation data.
(a) Notification of Commission. In every case arising under section 23(a) of the
Federal Power Act that requires the determination of the fair value of a project
already constructed, the licensee shall, within six months after the date of issuance
of a license, file with the Commission a letter, in quadruplicate.
(b) Contents of letter. The letter referred to in paragraph (a) shall contain a
statement to the effect that an inventory and appraisal in detail, as of the effective
date of the license, of all property subject thereto and to be so valued has been
completed. The letter shall also include a statement to the effect that the actual
legitimate original cost, or if not known, the estimated original cost, and accrued
depreciation of the property, classified by prime accounts as prescribed in the
Commission's Uniform System of Accounts, have been established.
(c) Licensee's books. The licensee's books of account for each project shall be
maintained in such a fashion that each year's additions, betterments, and deletions
to the projects may be readily ascertained.
(d) Availability of information to the public. The information made available to
the Commission in accordance with this section must be available for inspection and
copying by the public when specifically requested.
[Order 53, 44 FR 61948, Oct. 29, 1979]
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§4.11 Reports.
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Representatives of the Commission will inspect the project works, engineering
reports, and other records of the project, check the inventory and make an appraisal
of the property and an audit of the books, records, and accounts of the licensee
relating to the property to be valued, and will prepare a report of their findings with
respect to the inventory, appraisal, original cost, accrued depreciation, and fair value
of the property.
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§4.12 Service of report.
A copy of such report will be served upon said licensee, and copies will also be
sent to the State public service commission, or if the State has no regulatory
agency, to the Governor of the State where such project is located. The report will
be made available for public inspection at the time of service upon the licensee.
(Administrative Procedure Act, 5 U.S.C. 551-557 (1976); Federal Power Act, as amended,
16 U.S.C. 291-628 (1976 & Supp. V 1981), Dept. of Energy Organization Act 42 U.S.C.
7101-7352 (Supp. V 1981); E.O. 12009, 3 CFR 142 (1978))
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 344, 48 FR 49010, Oct. 24,
1983; Order 737, 75 FR 43402, July 26, 2010]
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§4.13 Time for filing protest.
Thirty days after service thereof will be allowed to the licensee within which to
file a protest to such report.
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§4.14 Hearing upon report.
(a) Public hearing. After the expiration of the time within which a protest may be
filed, a public hearing will be ordered in accordance with subpart E of part 385 of this
chapter.
(b) Commission determination. After the conclusion of the hearing, the
Commission will make a finding of fair value, accompanied by an order which will be
served upon the licensee and all parties to the proceeding. One copy of the order
shall be furnished to the Secretary of the Treasury by the Commission.
(c) Adjustment to licensee's books. The licensee's books of account for the
project shall be adjusted to conform to the fair value of the project as revised by the
order of the Commission. These adjustments and the project may be audited by
Commission representatives, as scheduled.
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[Order 53, 44 FR 61949, Oct. 29, 1979, as amended by Order 225, 47 FR 19056, May 3,
1982]
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Subpart C—Determination of Cost of Constructed Projects not
Subject to Section 23(a) of the Act
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§4.20 Initial statement.
(a) Notification of Commission. In all cases where licenses are issued for
projects already constructed, but which are not subject to the provisions of section
23(a) of the Act (49 Stat. 846; 16 U.S.C. 816), the licensee shall, within 6 months
after the date of issuance of license, file with the Commission a letter, in
quadruplicate.
(b) Contents of letter. The letter referred to in paragraph (a) of this section shall
contain a statement to the effect that an inventory in detail of all property included
under the license, as of the effective date of such license, has been completed. The
letter shall also include a statement to the effect that actual legitimate original cost,
or if not known, the estimated original cost, and accrued depreciation of the
property, classified by prime accounts as prescribed in the Commission's Uniform
System of Accounts, have been established.
(c) Licensee's books. The licensee's books of account for each project shall be
maintained in such a fashion that each year's additions, betterments, and deletions
to the project may be readily ascertained.
(d) Availability of information to the public. The information made available to
the Commission in accordance with this section must be available for inspection and
copying by the public when specifically requested.
(e) Compliance with the Act. Compliance with the provisions of this section
satisfies the filing requirements of section 4(b) of the Federal Power Act (16 U.S.C.
797(b)).
[Order 53, 44 FR 61949, Oct. 29, 1979]
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§4.21 Reports.
Representatives of the Commission will inspect the project works, engineering
reports, and other records of the project, check the inventory and estimated
depreciation, make an audit of the books, records, and accounts of the licensee
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relating to the property under license, and prepare a report of their findings with
respect to the inventory, the original cost of the property, and the estimated accrued
depreciation thereon.
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§4.22 Service of report.
Copies of such report will be served upon said licensees, and copies will also
be sent to the State public service commission, or if the State has no regulatory
agency, to the Governor of the State where such project is located, and to such
other parties as the Commission shall prescribe, and the report will be made
available for public inspection at the time of service upon the licensee.
(Administrative Procedure Act, 5 U.S.C. 551-557 (1976); Federal Power Act, as amended,
16 U.S.C. 291-628 (1976 & Supp. V 1981), Dept. of Energy Organization Act 42 U.S.C.
7101-7352 (Supp. V 1981); E.O. 12009, 3 CFR 142 (1978))
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 344, 48 FR 49010, Oct. 24,
1983; Order 737, 75 FR 43402, July 26, 2010]
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§4.23 Time for filing protest.
Thirty days after service thereof will be allowed to such licensee within which to
file a protest to such reports. If no protest is filed within the time allowed, the
Commission will issue such order as may be appropriate. If a protest is filed, a
public hearing will be ordered in accordance with subpart E of part 385 of this
chapter.
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 225, 47 FR 19056, May 3,
1982]
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§4.24 Determination of cost.
The Commission, after receipt of the reports, or after the conclusion of the
hearing if one is held, will determine the amounts to be included in the electric plant
accounts of the licensee as the cost of the property and the accrued depreciation
thereon.
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§4.25 Findings.
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(a) Commission determination. Final action by the Commission will be in the
form of an order served upon all parties to the proceeding. One copy of the order
shall be furnished to the Secretary of Treasury by the Commission.
(b) Adjustment to licensee's books. The licensee's books of account for the
project shall be adjusted to conform to the actual legitimate cost as revised by the
order of the Commission. These adjustments and the project may be audited by
Commission representatives, as scheduled.
[Order 53, 44 FR 61949, Oct. 29, 1979]
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Subpart D—Application for Preliminary Permit, License or
Exemption: General Provisions
AUTHORITY: Federal Power Act, as amended, 16 U.S.C. 792-828c; Department of Energy
Organization Act, 42 U.S.C. 7101-7352; E.O. 12009, 42 FR 46267; Public Utility Regulatory Policies
Act of 1978, 16 U.S.C. 2601-2645; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.).
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§4.30 Applicability and definitions.
(a) (1) This subpart applies to applications for preliminary permit, license, or
exemption from licensing.
(2) Any potential applicant for an original license for which prefiling consultation
begins on or after July 23, 2005 and which wishes to develop and file its application
pursuant to this part, must seek Commission authorization to do so pursuant to the
provisions of part 5 of this chapter.
(b) For the purposes of this part—
(1)(i) Competing development application means any application for a license or
exemption from licensing for a proposed water power project that would develop,
conserve, and utilize, in whole or in part, the same or mutually exclusive water
resources that would be developed, conserved, and utilized by a proposed water
power project for which an initial preliminary permit or initial development application
has been filed and is pending before the Commission.
(ii) Competing preliminary permit application means any application for a
preliminary permit for a proposed water power project that would develop, conserve,
and utilize, in whole or in part, the same or mutually exclusive water resources that
would be developed, conserved and utilized by a proposed water power project for
which an initial preliminary permit or initial development application has been filed
and is pending before the Commission.
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(2) Conduit means any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar
manmade water conveyance that is operated for the distribution of water for
agricultural, municipal, or industrial consumption and not primarily for the generation
of electricity. The term not primarily for the generation of electricity includes but is
not limited to a conduit:
(i) Which was built for the distribution of water for agricultural, municipal, or
industrial consumption and is operated for such a purpose; and
(ii) To which a hydroelectric facility has been or is proposed to be added.
(3) Construction of a dam, for the purposes of provisions governing application
for exemption of a small conduit hydroelectric facility, means any construction,
repair, reconstruction, or modification of a dam that creates a new impoundment or
increases the normal maximum surface elevation or the normal maximum surface
area of an existing impoundment.
(4)(i) Dam, for the purposes of provisions governing application for license of a
major project—existing dam, means any structure for impounding or diverting water.
(ii) Dam, for the purposes of provisions governing an application for exemption
of a small conduit hydroelectric facility or a notice of intent to construct a qualifying
conduit hydropower facility, means any structure that impounds water.
(iii) Dam, for the purposes of provisions governing application for exemption of
a small hydroelectric power project, means any structure for impounding water,
including any diversion structure that is designed to obstruct all or substantially all of
the flow of a natural body of water.
(5) Development application means any application for either a license or
exemption from licensing for a proposed water power project.
(6)(i) Existing dam, for the purposes of provisions governing application for
license of a major project—existing dam, means any dam (as defined in paragraph
(b)(4)(i) of this section) that has already been constructed and which does not
require any construction or enlargement of impoundment structures other than
repairs or reconstruction.
(ii) Existing dam, for the purposes of provisions governing application for
exemption of a small hydroelectric power project, means any dam, the construction
of which was completed on or before July 22, 2005, and which does not require any
construction or enlargement of impoundment structures (other than repairs or
reconstruction) in connection with the installation of any small hydroelectric power
project.
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(7) Existing impoundment, for the purposes of provisions governing application
for license of a major project—existing dam, means any body of water that an
existing dam impounds.
(8) Federal lands, for the purposes of provisions governing an application for
exemption of a small conduit hydroelectric facility or a small hydroelectric power
project, means any lands to which the United States holds fee title.
(9)(i) Fish and wildlife agencies means the United States Fish and Wildlife
Service, the National Marine Fisheries Service, and the state agency in charge of
administrative management over fish and wildlife resources of the state in which a
proposed hydropower project is located.
(ii) Fish and wildlife recommendation means any recommendation designed to
protect, mitigate damages to, or enhance any wild member of the animal kingdom,
including any migratory or nonmigratory mammal, fish, bird, amphibian, reptile,
mollusk, crustacean, or other invertebrate, whether or not bred, hatched, or born in
captivity, and includes any egg or offspring thereof, related breeding or spawning
grounds, and habitat. A “fish and wildlife recommendation” includes a request for a
study which cannot be completed prior to licensing, but does not include a request
that the proposed project not be constructed or operated, a request for additional
pre-licensing studies or analysis or, as the term is used in §§4.34(e)(1) and 4.34(f)
(3), a recommendation for facilities, programs, or other measures to benefit
recreation or tourism.
(10) Indian tribe means, in reference to a proposal to apply for a license or
exemption for a hydropower project, an Indian tribe which is recognized by treaty
with the United States, by federal statute, or by the U.S. Department of the Interior in
its periodic listing of tribal governments in the FEDERAL REGISTER in accordance
with 25 CFR 83.6(b), and whose legal rights as a tribe may be affected by the
development and operation of the hydropower project proposed (as where the
operation of the proposed project could interfere with the management and harvest
of anadromous fish or where the project works would be located within the tribe's
reservation).
(11)(i) Initial development application means any acceptable application for
either a license or exemption from licensing for a proposed water power project that
would develop, conserve, and utilize, in whole or in part, water resources for which
no other acceptable application for a license or exemption from licensing has been
submitted for filing and is pending before the Commission.
(ii) Initial preliminary permit application means any acceptable application for a
preliminary permit for a proposed water power project that would develop, conserve,
and utilize, in whole or in part, water resources for which no other acceptable
preliminary permit application has been submitted for filing and is pending before the
Commission.
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(12) Install or increase, for the purposes of provisions governing application for
exemption of a small hydroelectric power project, means to add new generating
capacity at a site that has no existing generating units, to replace or rehabilitate an
abandoned or unused existing generating unit, or to increase the generating
capacity of any existing power plant by installing an additional generating unit or by
rehabilitating an operable generating unit in a way that increases its rated electric
power output.
(13) Licensed water power project means a project, as defined in section 3(11)
of the Federal Power Act, that is licensed under Part I of the Federal Power Act.
(14) Major modified project means any major project—existing dam, as defined
in paragraph (b)(16) of this section, that would include:
(i) Any repair, modification or reconstruction of an existing dam that would result
in a significant change in the normal maximum surface area or the normal maximum
surface elevation of an existing impoundment; or
(ii) Any change in existing project works or operations that would result in a
significant environmental impact.
(15) Major unconstructed project means any unlicensed water power project
that would:
(i) Have a total installed generating capacity of more than 1.5 MW; and
(ii) Use the water power potential of a dam and impoundment which, at the time
application is filed, have not been constructed.
(16) Major project—existing dam means a licensed or unlicensed, existing or
proposed water power project that would:
(i) Have a total installed generating capacity or more than 2,000 horsepower
(1.5 MW); and
(ii) Not use the water power potential provided by any dam except an existing
dam.
(17) Minor water power project means any licensed or unlicensed, existing or
proposed water power project that would have a total installed generation capacity
of 2,000 horsepower (1.5 MW), or less.
(18) New development, for the purposes of provisions governing application for
license of a major project—existing dam, means any construction, installation,
repair, reconstruction, or other change in the existing state of project works or
appurtenant facilities, including any dredging and filling in project waters.
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(19) New license means any license, except an annual license issued under
section 15 of the Federal Power Act, for a water power project that is issued under
the Federal Power Act after the initial license for that project.
(20) Non-Federal lands, for the purposes of provisions governing application for
exemption of a small conduit hydroelectric facility or a small hydroelectric power
project, means any lands except lands to which the United States holds fee title.
(21) Non-federally owned conduit, for the purposes of provisions governing the
notice of intent to construct qualifying conduit hydropower facilities, means any
conduit except a conduit to which the United States holds fee title.
(22) Person means any individual and, as defined in section 3 of the Federal
Power Act, any corporation, municipality, or state.
(23) Project, for the purposes of provisions governing application for exemption
of a small hydroelectric power project, means:
(i) The impoundment and any associated dam, intake, water conveyance
facility, power plant, primary transmission line, and other appurtenant facility if a lake
or similar natural impoundment or a manmade impoundment is used for power
generation; or
(ii) Any diversion structure other than a dam and any associated water
conveyance facility, power plant, primary transmission line, and other appurtenant
facility if a natural water feature other than a lake or similar natural impoundment is
used for power generation.
(24) Qualified exemption applicant, means any person who meets the
requirements specified in §4.31(c)(2) with respect to a small hydroelectric power
project for which exemption from licensing is sought.
(25) Qualified license applicant means any person to whom the Commission
may issue a license, as specified in section 4(e) of the Federal Power Act.
(26) Qualifying conduit hydropower facility, means a facility, not including any
dam or impoundment, that is not required to be licensed under Part I of the FPA
because it is determined to meet the following criteria:
(i) Generates electric power using only the hydroelectric potential of a nonfederally owned conduit;
(ii) Has an installed capacity that does not exceed 40 megawatts (MW); and,
(iii) Was not licensed or exempted from the licensing requirements of Part I of
the FPA on or before August 9, 2013.
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(27) Ready for environmental analysis means the point in the processing of an
application for an original or new license or exemption from licensing which has
been accepted for filing, where substantially all additional information requested by
the Commission has been filed and found adequate.
(28) Real property interests, for the purposes of provisions governing
application for exemption of a small conduit hydroelectric facility or a small
hydroelectric power project, includes ownership in fee, rights-of-way, easements, or
leaseholds.
(29) Resource agency means a Federal, state, or interstate agency exercising
administration over the areas of flood control, navigation, irrigation, recreation, fish
and wildlife, water resource management (including water rights), or cultural or other
relevant resources of the state or states in which a project is or will be located.
(30) Small conduit hydroelectric facility, means an existing or proposed
hydroelectric facility that is constructed, operated, or maintained for the generation
of electric power, and includes all structures, fixtures, equipment, and lands used
and useful in the operation or maintenance of the hydroelectric facility, but excludes
the conduit on which the hydroelectric facility is located and the transmission lines
associated with the hydroelectric facility and which:
(i) Utilizes for electric power generation the hydroelectric potential of a conduit;
(ii) Has an installed generating capacity that does not exceed 40 MW;
(iii) Is not an integral part of a dam;
(iv) Discharges the water it uses for power generation either:
(A) Into a conduit;
(B) Directly to a point of agricultural, municipal, or industrial consumption; or
(C) Into a natural water body if a quantity of water equal to or greater than the
quantity discharged from the hydroelectric facility is withdrawn from that water body
downstream into a conduit that is part of the same water supply system as the
conduit on which the hydroelectric facility is located; and
(v) Does not rely upon construction of a dam, which construction will create any
portion of the hydrostatic head that the facility uses for power generation unless that
construction would occur for agricultural, municipal, or industrial consumptive
purposes even if hydroelectric generating facilities were not installed.
(31) Small hydroelectric power project, means any project in which capacity will
be installed or increased after the date of application under subpart K of this
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chapter, which will have a total installed capacity of not more than 10 MW, and
which:
(i) Would utilize for electric power generation the water power potential of an
existing dam that is not owned or operated by the United States or by an
instrumentality of the Federal Government, including the Tennessee Valley
Authority; or
(ii)(A) Would utilize for the generation of electricity a natural water feature, such
as a natural lake, waterfall, or the gradient of a natural stream, without the need for
a dam or man-made impoundment; and
(B) Would not retain water behind any structure for the purpose of a storage
and release operation.
(32) PURPA benefits means benefits under section 210 of the Public Utility
Regulatory Policies Act of 1978 (PURPA). Section 210(a) of PURPA requires
electric utilities to purchase electricity from, and to sell electricity to, qualifying
facilities.
[Order 413, 50 FR 11676, Mar. 25, 1985]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting §4.30, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.
Back to Top
§4.31 Initial or competing application: who may file.
(a) Application for a preliminary permit or a license. Any citizen, association of
citizens, domestic corporation, municipality, or state may submit for filing an initial
application or a competing application for a preliminary permit or a license for a
water power project under Part I of the Federal Power Act.
(b) Application for exemption of a small conduit hydroelectric facility—(1)
Exemption from provisions other than licensing—(i) Only federal lands involved. If
only rights to use or occupy federal lands would be necessary to develop and
operate the proposed small conduit hydroelectric facility, any citizen, association of
citizens, domestic corporation, municipality, or state may apply for exemption of a
small conduit hydroelectric facility from provisions of Part I of the Federal Power Act,
other than licensing provisions.
(ii) Some non-federal lands involved. If real property interests in any non-federal
lands would be necessary to develop and operate the proposed small conduit
hydroelectric facility, any citizen, association of citizens, domestic corporation,
municipality, or state that has all of the real property interests in the lands necessary
to develop and operate that project, or an option to obtain those interests, may apply
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for exemption of a small conduit hydroelectric facility from provisions of Part I of the
Federal Power Act, other than licensing provisions.
(2) Exemption from licensing—(i) Only federal lands involved. If only rights to
use or occupy federal lands would be necessary to develop and operate the
proposed small conduit hydroelectric facility, any citizen, association of citizens,
domestic corporation, municipality, or state may apply for exemption of that facility
from licensing under Part I of the Federal Power Act.
(ii) Some non-federal lands involved. If real property interests in any non-federal
lands would be necessary to develop and operate the proposed small conduit
hydroelectric facility, any citizen, association of citizens, domestic corporation,
municipality, or state who has all the real property interests in the lands necessary to
develop and operate the small conduit hydroelectric facility, or an option to obtain
those interests, may apply for exemption of that facility from licensing under Part I of
the Federal Power Act.
(c) Application for case-specific exemption of a small hydroelectric power
project—(1) Exemption from provisions other than licensing. Any qualified license
applicant or licensee seeking amendment of its license may apply for exemption of
the related project from provisions of Part I of the Federal Power Act other than
licensing provisions.
(2) Exemption from licensing— (i) Only Federal lands involved. If only rights to
use or occupy Federal lands would be necessary to develop and operate the
proposed small hydroelectric power project, any citizen, association of citizens,
domestic corporation, municipality, or state may apply for exemption of that project
from licensing.
(ii) Some non-Federal lands involved. If real property interests in any nonFederal lands would be necessary to develop and operate the proposed small
hydroelectric power project, any citizen, association of citizens, domestic
corporation, municipality, or state who has all of the real property interests in nonFederal lands necessary to develop and operate that project, or an option to obtain
those interests, may apply for exemption of that project from licensing.
[Order 413, 50 FR 11678, Mar. 25, 1985, as amended by Order 800, 79 FR 59109, Oct. 1,
2014]
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§4.32 Acceptance for filing or rejection; information to be made available to
the public; requests for additional studies.
(a) Each application must:
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(1) For a preliminary permit or license, identify every person, citizen, association
of citizens, domestic corporation, municipality, or state that has or intends to obtain
and will maintain any proprietary right necessary to construct, operate, or maintain
the project;
(2) For a preliminary permit or a license, identify (providing names and mailing
addresses):
(i) Every county in which any part of the project, and any Federal facilities that
would be used by the project, would be located;
(ii) Every city, town, or similar local political subdivision:
(A) In which any part of the project, and any Federal facilities that would be
used by the project, would be located; or
(B) That has a population of 5,000 or more people and is located within 15
miles of the project dam;
(iii) Every irrigation district, drainage district, or similar special purpose political
subdivision:
(A) In which any part of the project, and any Federal facilities that would be
used by the project, would be located; or
(B) That owns, operates, maintains, or uses any project facilities or any Federal
facilities that would be used by the project;
(iv) Every other political subdivision in the general area of the project that there
is reason to believe would likely be interested in, or affected by, the application; and
(v) All Indian tribes that may be affected by the project.
(3)(i) For a license (other than a license under section 15 of the Federal Power
Act) state that the applicant has made, either at the time of or before filing the
application, a good faith effort to give notification by certified mail of the filing of the
application to:
(A) Every property owner of record of any interest in the property within the
bounds of the project, or in the case of the project without a specific boundary, each
such owner of property which would underlie or be adjacent to any project works
including any impoundments; and
(B) The entities identified in paragraph (a)(2) of this section, as well as any
other Federal, state, municipal or other local government agencies that there is
reason to believe would likely be interested in or affected by such application.
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(ii) Such notification must contain the name, business address, and telephone
number of the applicant and a copy of the Exhibit G contained in the application, and
must state that a license application is being filed with the Commission.
(4)(i) As to any facts alleged in the application or other materials filed, be
subscribed and verified under oath in the form set forth in paragraph (a) (4)(ii) of this
section by the person filing, an officer thereof, or other person having knowledge of
the matters sent forth. If the subscription and verification is by anyone other than the
person filing or an officer thereof, it shall include a statement of the reasons therefor.
(ii) This (application, etc.) is executed in the
State of
County of
by:__________
(Name)__________
(Address)
being duly sworn, depose(s) and say(s) that the contents of this (application, etc.) are true to the
best of (his or her) knowledge or belief. The undersigned applicant(s) has (have) signed the
(application, etc.) this ______ day of _______, 19__.
(Applicant(s))
By:
Subscribed and sworn to before me, a [Notary Public, or title of other official authorized by the
state to notarize documents, as appropriate] of the State of ________ this day of _______, 19__.
/SEAL/ [if any]
(Notary Public, or other authorized official)
(5) Contain the information and documents prescribed in the following sections
of this chapter, according to the type of application:
(i) Preliminary permit: §4.81;
(ii) License for a minor water power project and a major water power project 5
MW or less: §4.61;
(iii) License for a major unconstructed project and a major modified project:
§4.41;
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(iv) License for a major project—existing dam: §4.51;
(v) License for a transmission line only: §4.71;
(vi) Nonpower license for a licensed project: §16.11;
(vii) Exemption of a small conduit hydroelectric facility: §4.92;
(viii) Case-specific exemption of a small hydroelectric power project: §4.107; or
(ix) License or exemption for a project located at a new dam or diversion where
the applicant seeks PURPA benefits: §292.208.
(b) (1) Each applicant for a preliminary permit, license, and transfer or surrender
of license and each petitioner for surrender of an exemption must submit the
application or petition to the Secretary of the Commission in accordance with filing
procedures posted on the Commission's Web site at http://www.ferc.gov. The
applicant or petitioner must serve one copy of the application or petition on the
Director of the Commission's Regional Office for the appropriate region and on each
resource agency, Indian tribe, and member of the public consulted pursuant to §4.38
or §16.8 of this chapter or part 5 of this chapter. In the case of an application for a
preliminary permit, the applicant must, if the Commission so directs, serve copies of
the application on the U.S. Department of the Interior and the U.S. Army Corps of
Engineers. The application may include reduced prints of maps and drawings
conforming to §4.39(d). The Commission may also ask for the filing of full-sized
prints in appropriate cases.
(2) Each applicant for exemption must submit the application to the Secretary of
the Commission in accordance with filing procedures posted on the Commission's
Web site at http://www.ferc.gov. An applicant must serve one copy of the application
on the Director of the Commission's Regional Office for the appropriate region and
on each resource agency consulted pursuant to §4.38. For each application filed
following October 23, 2003, maps and drawings must conform to the requirements
of §4.39.
(3)(i) An applicant must make information regarding its proposed project
reasonably available to the public for inspection and reproduction, from the date on
which the applicant files its application for a license or exemption until the licensing
or exemption proceeding for the project is terminated by the Commission. This
information includes a copy of the complete application for license or exemption,
together with all exhibits, appendices and any amendments, and any comments,
pleadings, supplementary or additional information, or correspondence filed by the
applicant with the Commission in connection with the application.
(ii) An applicant must delete from any information made available to the public
under this section, specific site or property locations the disclosure of which would
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create a risk of harm, theft, or destruction of archeological or Native American
cultural resources or to the site at which the sources are located, or would violate
any federal law, including the Archaeological Resources Protection Act of l979, 16
U.S.C. 470w-3, and the National Historic Preservation Act of 1966, 16 U.S.C.
470hh.
(4)(i) An applicant must make available the information specified in paragraph
(b)(3) of this section in a form that is readily accessible, reviewable, and
reproducible, at the same time as the information is filed with the Commission or
required by regulation to be made available.
(ii) An applicant must make the information specified in paragraph (b)(3) of this
section available to the public for inspection:
(A) At its principal place of business or at any other location that is more
accessible to the public, provided that all the information is available in at least one
location;
(B) During regular business hours; and
(C) In a form that is readily accessible, reviewable and reproducible.
(iii) The applicant must provide a copy of the complete application (as
amended) to a public library or other convenient public office located in each county
in which the proposed project is located.
(iv) An applicant must make requested copies of the information specified in
paragraph (b)(3) of this section available either:
(A) At its principal place of business or at any other location that is more
accessible to the public, after obtaining reimbursement for reasonable costs of
reproduction; or
(B) Through the mail, after obtaining reimbursement for postage fees and
reasonable costs of reproduction.
(5) Anyone may file a petition with the Commission requesting access to the
information specified in paragraph (b)(3) of this section if it believes that an applicant
is not making the information reasonably available for public inspection or
reproduction. The petition must describe in detail the basis for the petitioner's belief.
(6) An applicant must publish notice twice of the filing of its application, no later
than 14 days after the filing date, in a daily or weekly newspaper of general
circulation in each county in which the project is located. The notice must disclose
the filing date of the application and briefly summarize it, including the applicant's
name and address, the type of facility applied for, its proposed location, the places
where the information specified in paragraph (b)(3) of this section is available for
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inspection and reproduction, and the date by which any requests for additional
scientific studies are due under paragraph (b)(7) of this section, and must state that
the Commission will publish subsequent notices soliciting public participation if the
application is found acceptable for filing. The applicant must promptly provide the
Commission with proof of the publications of this notice.
(7) If any resource agency, Indian tribe, or person believes that an additional
scientific study should be conducted in order to form an adequate factual basis for a
complete analysis of the application on its merits, the resource agency, Indian tribe,
or person must file a request for the study with the Commission not later than 60
days after the application is filed and serve a copy of the request on the applicant.
The Commission will issue public notice of the tendering for filing of each application
for hydropower license or exemption; each such applicant must submit a draft of this
notice to the Commission with its application. For any such additional study request,
the requester must describe the recommended study and the basis for the request
in detail, including who should conduct and participate in the study, its methodology
and objectives, whether the recommended study methods are generally accepted in
the Scientific community, how the study and information sought will be useful in
furthering the resource goals that are affected by the proposed facilities, and
approximately how long the study will take to complete, and must explain why the
study objectives cannot be achieved using the data already available. In addition, in
the case of a study request by a resource agency or Indian tribe that had failed to
request the study during the pre-filing consultation process under §4.38 of this part
or §16.8 of this chapter, the agency or Indian tribe must explain why this request
was not made during the pre-filing consultation process and show good cause why
its request for the study should be considered by the Commission.
(8) An applicant may file a response to any such study request within 30 days of
its filing, serving a copy of the response on the requester.
(9) The requirements of paragraphs (b)(3) to (b)(8) of this section only apply to
an application for license or exemption filed on or after May 20, 1991. Paragraphs
(b)(3) and (b)(4) of this section do not apply to applications subject to the
requirements of §16.7 of this chapter.
(c)(1) Every applicant for a license or exemption for a project with a capacity of
80 megawatts or less must include in its application copies of the statements made
under §4.38(b)(2)(vi).
(2) If an applicant reverses a statement of intent not to seek PURPA benefits:
(i) Prior to the Commission issuing a license or exemption, the reversal of intent
will be treated as an amendment of the application under §4.35 and the applicant
must:
(A) Repeat the pre-filing consultation process under §4.38; and
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(B) Satisfy all the requirements in §292.208 of this chapter; or
(ii) After the Commission issues a license or exemption for the project, the
applicant is prohibited from obtaining PURPA benefits.
(d) When any application is found to conform to the requirements of paragraphs
(a), (b) and (c) of this section, the Commission or its delegate will:
(1) Notify the applicant that the application has been accepted for filing,
specifying the project number assigned and the date upon which the application was
accepted for filing, and, for a license or exemption application, direct the filing of the
originals (microfilm) of required maps and drawings;
(2)(i) For an application for a preliminary permit or a license, issue public notice
of the application as required in the Federal Power Act;
(ii) For an application for exemption from licensing, publish notice once in a
daily or weekly newspaper of general circulation in each county in which the project
is or will be located; and
(3) If the project affects lands of the United States, notify the appropriate
Federal office of the application and the specific lands affected, pursuant to section
24 of the Federal Power Act.
(4) For an application for a license seeking benefits under section 210 of the
Public Utility Regulatory Policies Act of 1978, as amended, for a project that would
be located at a new dam or diversion, serve the public notice issued for the
application under paragraph (d)(2)(i) of this section to interested agencies at the
time the applicant is notified that the application is accepted for filing.
(e) In order for an application to conform adequately to the requirements of
paragraphs (a), (b) and (c) of this section and of §4.38, an application must be
completed fully. No blanks should be left in the application. No material or
information required in the application should be omitted. If an applicant believes
that its application conforms adequately without containing certain required material
or information, it must explain in detail why the material or information is not being
submitted and what steps were taken by the applicant to provide the material or
information. If the Commission finds that an application does not adequately
conform to the requirements of paragraphs (a), (b) and (c) of this section and of
§4.38, the Commission or its designee will consider the application either deficient
or patently deficient.
(1) Deficient applications. (i) An application that in the judgment of the Director
of the Office of Energy Projects does not conform to the requirements of paragraphs
(a), (b) and (c) of this section and of §4.38, may be considered deficient. An
applicant having a deficient application will be afforded additional time to correct
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deficiencies, not to exceed 45 days from the date of notification in the case of an
application for a preliminary permit or exemption from licensing or 90 days from the
date of notification in the case of an application for license. Notification will be by
letter or, in the case of minor deficiencies, by telephone. Any notification will specify
the deficiencies to be corrected. Deficiencies must be corrected by submitting the
specified materials or information to the Secretary of the Commission within the time
specified in the notification of deficiency in accordance with filing procedures posted
on the Commission's Web site at http://www.ferc.gov.
(ii) Upon submission of a conforming application, action will be taken in
accordance with paragraph (d) of this section.
(iii) If the revised application is found not to conform to the requirements of
paragraphs (a), (b) and (c) of this section and of §4.38, or if the revisions are not
timely submitted, the revised application will be rejected. Procedures for rejected
applications are specified in paragraph (e)(2)(iii).
(2) Patently deficient applications. (i) If, within 90 days of its filing date, the
Director of the Office of Energy Projects determines that an application patently fails
to substantially comply with the requirements of paragraph (a), (b), and (c) of this
section and of §4.38 of this part or §16.8 of this chapter, or is for a project that is
precluded by law, the application will be rejected as patently deficient with the
specification of the deficiencies that render the application patently deficient.
(ii) If, after 90 days of its filing date, the Director of the Office of Energy Projects
determines that an application patently fails to substantially comply with the
requirements of paragraphs (a), (b), and (c) of this section and of §4.38 of this part
or §16.8 of this chapter, or is for a project that is precluded by law:
(A) The application will be rejected by order of the Commission, if the
Commission determines it is patently deficient; or
(B) The application will be considered deficient under paragraph (e)(1) of this
section, if the Commission determines it is not patently deficient.
(iii) Any application that is rejected may be resubmitted if the deficiencies are
corrected and if, in the case of a competing application, the resubmittal is timely.
The date the rejected application is resubmitted will be considered the new filing
date for purposes of determining its timeliness under §4.36 and the disposition of
competing applications under §4.37.
(f) Any application will be considered accepted for filing as of the application
filing date if the Secretary receives all of the information and documents necessary
to conform to the requirements of paragraphs (a), (b) and (c) of this section and of
§4.38 within the time prescribed by the Commission or its delegate under paragraph
(e) of this section.
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(g) An applicant may be required to submit any additional information or
documents that the Commission or its designee considers relevant for an informed
decision on the application. The information or documents must take the form, and
must be submitted within the time, that the Commission or its designee prescribes.
An applicant may also be required to provide within a specified time additional
copies of the complete application, or any of the additional information or documents
that are filed, to the Commission or to any person, agency, or other entity that the
Commission or its designee specifies. If an applicant fails to provide timely
additional information, documents, or copies of submitted materials as required, the
Commission or its designee may dismiss the application, hold it in abeyance, or take
other appropriate action under this chapter or the Federal Power Act.
(h) A prospective applicant, prior to submitting its application for filing, may seek
advice from the Commission staff regarding the sufficiency of the application. For
this purpose, five copies of the draft application should be submitted to the Director
of the Division of Hydropower Licensing. An applicant or prospective applicant may
confer with the Commission staff at any time regarding deficiencies or other matters
related to its application. All conferences are subject to the requirements of
§385.2201 of this chapter governing ex parte communications. The opinions or
advice of the staff will not bind the Commission or any person delegated authority to
act on its behalf.
(i) Intervention in any preliminary permit proceeding will not constitute
intervention in any subsequent licensing or exemption proceeding.
(j) Any application, the effectiveness of which is conditioned upon the future
occurrence of any event or circumstance, will be rejected.
(k) Critical Energy Infrastructure Information. (1) If this section requires an
applicant to reveal Critical Energy Infrastructure Information (CEII), as defined in
§388.113(c) of this chapter, to any person, the applicant shall omit the CEII from the
information made available and insert the following in its place:
(i) A statement that CEII is being withheld;
(ii) A brief description of the omitted information that does not reveal any CEII;
and
(iii) This statement: “Procedures for obtaining access to Critical Energy
Infrastructure Information (CEII) may be found at 18 CFR 388.113. Requests for
access to CEII should be made to the Commission's CEII Coordinator.”
(2) The applicant, in determining whether information constitutes CEII, shall
treat the information in a manner consistent with any filings that applicant has made
with the Commission and shall to the extent practicable adhere to any previous
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determinations by the Commission or the CEII Coordinator involving the same or
like information.
(3) The procedures contained in §§388.112 and 388.113 of this chapter
regarding designation of, and access to, CEII, shall apply in the event of a challenge
to a CEII designation or a request for access to CEII. If it is determined that
information is not CEII or that a requester should be granted access to CEII, the
applicant will be directed to make the information available to the requester.
(4) Nothing in this section shall be construed to prohibit any persons from
voluntarily reaching arrangements or agreements calling for the disclosure of CEII.
[Order 413, 50 FR 11678, Mar. 25, 1985]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting §4.32, see the List of CFR Sections
Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.
Back to Top
§4.33 Limitations on submitting applications.
(a) Limitations on submission and acceptance of a preliminary permit
application. The Commission will not accept an application for a preliminary permit
for project works that:
(1) Would develop, conserve, and utilize, in whole or in part, the same water
resources that would be developed, conserved, and utilized by a project for which
there is an unexpired preliminary permit.
(2) Would interfere with a licensed project in a manner that, absent the
licensee's consent, would be precluded by Section 6 of the Federal Power Act.
(3) Would develop, conserve, and utilize, in whole or in part, the same water
resources that would be developed, conserved, and utilized by a project for which
an initial development application has been filed unless the preliminary permit
application is filed not later than the time allowed under §4.36(a) for the filing of
applications in competition against an initial application for a preliminary permit that
would develop, conserve, and utilize, in whole or in part, the same resources.
(b) Limitations on submissions and acceptance of a license application. The
Commission will not accept an application for a license or project works that would
develop, conserve, or utilize, in whole or part, the same water resources that would
be developed, conserved, and utilized by a project for which there is:
(1) An unexpired preliminary permit, unless the permittee has submitted an
application for license; or
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(2) An unexpired license, except as provided for in Section 15 of the Federal
Power Act.
(c) Limitations on submission and acceptance of an application for a license
that would affect an exempted project. (1) Except as permitted under §4.33(c)(2),
§4.94(d), or §4.106 (c), (e) or (f), the Commission will not accept an application for a
license for project works that are already exempted from licensing under this part.
(2) If a project is exempted from licensing pursuant to §4.103 or §4.109 and real
property interests in any non-Federal lands would be necessary to develop or
operate the project, any person who is both a qualified license applicant and has
any of those real property interests in non-Federal lands may submit a license
application for that project. If a license application is submitted under this clause,
any other qualified license applicant may submit a competing license application in
accordance with §4.36.
(d) Limitations on submission and acceptance of exemption applications—(1)
Unexpired permit or license. (i) If there is an unexpired permit in effect for a project,
the Commission will accept an application for exemption of that project from
licensing only if the exemption applicant is the permittee. Upon acceptance for filing
of the permittee's application, the permit will be considered to have expired.
(ii) If there is an unexpired license in effect for a project, the Commission 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
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under this subpart until the preliminary permit or license application is withdrawn or
the project is exempted from licensing.
[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]
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§4.34 Hearings on applications; consultation on terms and conditions;
motions to intervene; alternative procedures.
(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 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. Late-filed
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 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
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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.
(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
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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 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 pre-hearing 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
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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 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.
(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 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
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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
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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.
(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
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(v) Facilitate an orderly and expeditious review of an agreement or offer of
settlement of an application for a hydropower 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.
(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
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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.
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(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 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).
[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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§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
proposed plans of development to satisfy requests of resource agencies or Indian
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tribes submitted after an applicant has consulted under §4.38 or concerns of the
Commission; and
(5)(i) Any license or exemption applicant with a project located at a new dam or
diversion who is seeking PURPA benefits and who:
(A) Has filed an adverse environmental effects (AEE) petition pursuant to
§292.211 of this chapter; and
(B) Has proposed measures to mitigate the adverse environmental effects
which the Commission, in its initial determination on the AEE petition, stated the
project will have.
(ii) This exception does not protect any proposed mitigative measures that the
Commission finds are a pretext to avoid the consequences of materially amending
the application or are outside the scope of mitigating the adverse environmental
effects.
(f) Definitions. (1) For the purposes of this section, a material amendment to
plans of development proposed in an application for a license or exemption from
licensing means any fundamental and significant change, including but not limited
to:
(i) A change in the installed capacity, or the number or location of any
generating units of the proposed project if the change would significantly modify the
flow regime associated with the project;
(ii) A material change in the location, size, or composition of the dam, the
location of the powerhouse, or the size and elevation of the reservoir if the change
would:
(A) Enlarge, reduce, or relocate the area of the body of water that would lie
between the farthest reach of the proposed impoundment and the point of discharge
from the powerhouse; or
(B) Cause adverse environmental impacts not previously discussed in the
original application; or
(iii) A change in the number of discrete units of development to be included
within the project boundary.
(2) For purposes of this section, a material amendment to plans of development
proposed in an application for a preliminary permit means a material change in the
location of the powerhouse or the size and elevation of the reservoir if the change
would enlarge, reduce, or relocate the area of the body of water that would lie
between the farthest reach of the proposed impoundment and the point of discharge
from the powerhouse.
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(3) For purposes of this section, a change in the status of an applicant means:
(i) The acquisition or loss of preference as a state or a municipality under
section 7(a) of the Federal Power Act; or
(ii) The loss of priority as a permittee under section 5 of the Federal Power Act.
(4) For purposes of this section, a change in the identity of an applicant means
a change that either singly, or together with previous amendments, causes a total
substitution of all the original applicants in a permit or a license application.
[Order 413, 50 FR 11680, Mar. 25, 1985, as amended by Order 499, 53 FR 27002, July 18,
1988; Order 533, 56 FR 23149, May 20, 1991; Order 2002, 68 FR 51115, Aug. 25, 2003;
Order 756, 77 FR 4893, Feb. 1, 2012]
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§4.36 Competing applications: deadlines for filing; notices of intent;
comparisons of plans of development.
The public notice of an initial preliminary permit application or an initial
development application shall prescribe the deadline for filing protests and motions
to intervene in that proceeding (the prescribed intervention deadline).
(a) Deadlines for filing applications in competition with an initial preliminary
permit application. (1) Any preliminary permit application or any development
application not filed pursuant to a notice of intent must be submitted for filing in
competition with an initial preliminary permit application not later than the prescribed
intervention deadline.
(2) Any preliminary permit application filed pursuant to a notice of intent must be
submitted for filing in competition with an initial preliminary permit application not
later than 30 days after the prescribed intervention deadline.
(3) Any development application filed pursuant to a notice of intent must be
submitted for filing in competition with an initial preliminary permit application not
later than 120 days after the prescribed intervention deadline.
(b) Deadlines for filing applications in competition with an initial development
application. (1) Any development application not filed pursuant to a notice of intent
must be submitted for filing in competition with an initial development application not
later than the prescribed intervention deadline.
(2) Any development application filed pursuant to a notice of intent must be
submitted for filing in competition with an initial development application not later
than 120 days after the prescribed intervention deadline.
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(3) If the Commission has accepted an application for exemption of a project
from licensing and the application has not yet been granted or denied, the applicant
for exemption may submit a license application for the project if it is a qualified
license applicant. The pending application for exemption from licensing will be
considered withdrawn as of the date the Commission accepts the license application
for filing. If a license application is accepted for filing under this provision, any
qualified license applicant may submit a competing license application not later than
the prescribed intervention deadline set for the license application.
(4) Any preliminary permit application must be submitted for filing in competition
with an initial development application not later than the deadlines prescribed in
paragraphs (a)(1) and (a)(2) for the submission of preliminary permit applications
filed in competition with an initial preliminary permit application.
(c) Notices of intent. (1) Any notice of intent to file an application in competition
with an initial preliminary permit or an initial development application must be
submitted for filing not later than the prescribed intervention deadline for the initial
application.
(2) A notice of intent must include:
(i) The exact name, business address, and telephone number of the
prospective applicant; and
(ii) An unequivocal statement of intent to submit a preliminary permit application
or a development application (specify which type of application).
(d) Requirements for competing applications. (1) Any competing application
must:
(i) Conform to all requirements for filing an initial application; and
(ii) Include proof of service of a copy of the competing application on the person
(s) designated in the public notice of the initial application for service of pleadings,
documents, or communications concerning the initial application.
(2) Comparisons of plans of development. (i) After the deadline for filing
applications in competition against an initial development application has expired,
the Commission will notify each license and exemption applicant of the identity of
the other applicants.
(ii) Not later than 14 days after the Commission serves the notification
described in paragraph (d)(2)(i) of this section, if a license or exemption applicant
has not already done so, it must serve a copy of its application on each of the other
license and exemption applicants.
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(iii) Not later than 60 days after the Commission serves the notification
described in paragraph (d)(2)(i) of this section, each license and exemption
applicant must file with the Commission a detailed and complete statement of how
its plans are as well or better adapted than are the plans of each of the other license
and exemption applicants to develop, conserve, and utilize in the public interest the
water resources of the region. These statements should be supported by any
technical analyses that the applicant deems appropriate to support its proposed
plans of development.
[Order 413, 50 FR 11680, Mar. 25, 1985; 50 FR 23947, June 7, 1985]
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§4.37 Rules of preference among competing applications.
Except as provided in §4.33(e), the Commission will select among competing
applications on the following bases:
(a) If an accepted application for a preliminary permit and an accepted
application for a license propose project works that would develop, conserve, and
utilize, in whole or in part, the same water resources, and the applicant for a license
has demonstrated its ability to carry out its plans, the Commission will favor the
license applicant unless the permit applicant substantiates in its filed application that
its plans are better adapted to develop, conserve, and utilize in the public interest
the water resources of the region.
(b) If two or more applications for preliminary permits or two or more
applications for licenses (not including applications for a new license under section
15 of the Federal Power Act) are filed by applicants for project works that would
develop, conserve, and utilize, in whole or in part, the same water resources, and if
none of the applicants is a preliminary permittee whose application for license was
accepted for filing within the permit period, the Commission will select between or
among the applicants on the following bases:
(1) If both or neither of two applicants are either a municipality or a state, the
Commission will favor the applicant whose plans are better adapted to develop,
conserve, and utilize in the public interest the water resources of the region, taking
into consideration the ability of each applicant to carry out its plans.
(2) If both of two applicants are either a municipality or a state, or neither of
them is a municipality or a state, and the plans of the applicants are equally well
adapted to develop, conserve, and utilize in the public interest the water resources
of the region, taking into consideration the ability of each applicant to carry out its
plans, the Commission will favor the applicant with the earliest application
acceptance date.
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(3) If one of two applicants is a municipality or a state, and the other is not, and
the plans of the municipality or a state are at least as well adapted to develop,
conserve, and utilize in the public interest the water resources of the region, the
Commission will favor the municipality or state.
(4) If one of two applicant is a municipality or a state, and the other is not, and
the plans of the applicant who is not a municipality or a state are better adapted to
develop, conserve, and utilize in the public interest the water resources of the
region, the Commission will inform the municipality or state of the specific reasons
why its plans are not as well adapted and afford a reasonable period of time for the
municipality or state to render its plans at least as well adapted as the other plans. If
the plans of the municipality or state are rendered at least as well adapted within the
time allowed, the Commission will favor the municipality or state. If the plans are not
rendered at least as well adapted within the time allowed, the Commission will favor
the other applicant.
(c) If two or more applications for licenses are filed for project works which
would develop, conserve, and utilize, in whole or in part, the same water resources,
and one of the applicants was a preliminary permittee whose application was
accepted for filing within the permit period (priority applicant), the Commission will
select between or among the applicants on the following bases:
(1) If the plans of the priority applicant are at least as well adapted as the plans
of each other applicant to develop, conserve, and utilize in the public interest the
water resources of the region, taking into consideration the ability of each applicant
to carry out its plans, the Commission will favor the priority applicant.
(2) If the plans of an applicant who is not a priority applicant are better adapted
than the plans of the priority applicant to develop, conserve, and utilize in the public
interest the water resources of the region, taking into consideration the ability of
each applicant to carry out its plans, the Commission will inform the priority applicant
of the specific reasons why its plans are not as well adapted and afford a
reasonable period of time for the priority applicant to render its plans at least as well
adapted as the other plans. If the plans of the priority applicant are rendered at least
as well adapted within the time allowed, then the Commission will favor the priority
applicant. If the plans of the priority applicant are not rendered as well adapted
within the time allowed, the criteria specified in paragraph (b) will govern.
(3) The criteria specified in paragraph (b) will govern selection among
applicants other than the priority applicant.
(d) With respect to a project for which an application for an exemption from
licensing has been accepted for filing, the Commission will select among competing
applications on the following bases:
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(1) If an accepted application for a preliminary permit and an accepted
application for exemption from licensing propose to develop mutually exclusive small
hydroelectric power projects, the Commission will favor the applicant whose
substantiated plans in the application received by the Commission are better
adapted to develop, conserve, and utilize in the public interest the water resources
of the region. If the substantiated plans are equally well adapted, the Commission
will favor the application for exemption from licensing.
(2) If an application for a license and an application for exemption from
licensing, or two or more applications for exemption from licensing are each
accepted for filing and each proposes to develop a mutually exclusive project, the
Commission will favor the applicant whose plans are better adapted to develop,
conserve, and utilize in the public interest the water resources of the region. If the
plans are equally well adapted, the Commission will favor the applicant with the
earliest application acceptance date.
(e) A municipal applicant must provide evidence that the municipality is
competent under applicable state and local laws to engage in the business of
developing, transmitting, utilizing, or distributing power, or such applicant will be
considered a non-municipal applicant for the purpose of determining the disposition
of competing applications.
[Order 413, 50 FR 11682, Mar. 25, 1985, as amended by Order 2002, 68 FR 51117, Aug.
25, 2003]
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§4.38 Consultation requirements.
(a) Requirement to consult. (1) Before it files any application for an original
license or an exemption from licensing that is described in paragraph (a)(6) of this
section, a potential applicant must consult with the relevant Federal, State, and
interstate resource agencies, including the National Marine Fisheries Service, the
United States Fish and Wildlife Service, the National Park Service, the United States
Environmental Protection Agency, the Federal agency administering any federal
lands or facilities utilized or occupied by the project, the appropriate State fish and
wildlife agencies, the appropriate State water resource management agencies, the
certifying agency under section 401(a)(1) of the Federal Water Pollution Control Act
(Clean Water Act), 33 U.S.C. §1341(c)(1), and any Indian tribe that may be affected
by the proposed project.
(2) Each requirement in this section to contact or consult with resource
agencies or Indian tribes shall be construed to require as well that the potential
applicant contact or consult with members of the public.
(3) If a potential applicant for an original license commences first stage pre-filing
consultation on or after July 23, 2005 it shall file a notification of intent to file a
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license application pursuant to §5.5 and a pre-application document pursuant to the
provisions of §5.6.
(4) The Director of the Office of Energy Projects will, upon request, provide a list
of known appropriate Federal, state, and interstate resource agencies, Indian tribes,
and local, regional, or national non-governmental organizations likely to be
interested in any license application proceeding.
(5) An applicant for an exemption from licensing or an applicant for a license
seeking benefits under section 210 of the Public Utility Regulatory Policies Act, as
amended, for a project that would be located at a new dam or diversion must, in
addition to meeting the requirements of this section, comply with the consultation
requirements in §4.301.
(6) The pre-filing consultation requirements of this section apply only to an
application for:
(i) Original license;
(ii) Exemption;
(iii) Amendment to an application for original license or exemption that
materially amends the proposed plans of development as defined in §4.35(f)(1);
(iv) Amendment to an existing license that would increase the capacity of the
project as defined in §4.201(b); or
(v) Amendment to an existing license that would not increase the capacity of the
project as defined in §4.201(b), but that would involve:
(A) The construction of a new dam or diversion in a location where there is no
existing dam or diversion;
(B) Any repair, modification, or reconstruction of an existing dam that would
result in a significant change in the normal maximum surface area or elevation of an
existing impoundment; or
(C) The addition of new water power turbines other than to replace existing
turbines.
(7) Before it files a non-capacity related amendment as defined in §4.201(c), an
applicant must consult with the resource agencies and Indian tribes listed in
paragraph (a)(1) of this section to the extent that the proposed amendment would
affect the interests of the agencies or tribes. When consultation is necessary, the
applicant must, at a minimum, provide the resource agencies and Indian tribes with
copies of the draft application and allow them at least 60 days to comment on the
proposed amendment. The amendment as filed with the Commission must
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summarize the consultation with the resource agencies and Indian tribes on the
proposed amendment, propose reasonable protection, mitigation, or enhancement
measures to respond to impacts identified as being caused by the proposed
amendment, and respond to any objections, recommendations, or conditions
submitted by the agencies or Indian tribes. Copies of all written correspondence
between the applicant, the agencies, and the tribes must be attached to the
application.
(8) This section does not apply to any application for a new license, a nonpower
license, a subsequent license, or surrender of a license subject to sections 14 and
15 of the Federal Power Act.
(9) If a potential applicant has any doubt as to whether a particular application
or amendment would be subject to the pre-filing consultation requirements of this
section or if a waiver of the pre-filing requirements would be appropriate, the
applicant may file a written request for clarification or waiver with the Director, Office
of Energy Projects.
(b) First stage of consultation. (1) A potential applicant for an original license
that commences pre-filing consultation on or after July 23, 2005 must, at the time it
files its notification of intent to seek a license pursuant to §5.5 of this chapter and a
pre-application document pursuant to §5.6 of this chapter and, at the same time,
provide a copy of the pre-application document to the entities specified in §5.6(a) of
this chapter.
(2) A potential applicant for an original license that commences pre-filing
consultation under this part prior to July 23, 2005 or for an exemption must promptly
contact each of the appropriate resource agencies, affected Indian tribes, and
members of the public likely to be interested in the proceeding; provide them with a
description of the proposed project and supporting information; and confer with them
on project design, the impact of the proposed project (including a description of any
existing facilities, their operation, and any proposed changes), reasonable
hydropower alternatives, and what studies the applicant should conduct. The
potential applicant must provide to the resource agencies, Indian tribes and the
Commission the following information:
(i) Detailed maps showing project boundaries, if any, proper land descriptions of
the entire project area by township, range, and section, as well as by state, county,
river, river mile, and closest town, and also showing the specific location of all
proposed project facilities, including roads, transmission lines, and any other
appurtenant facilities;
(ii) A general engineering design of the proposed project, with a description of
any proposed diversion of a stream through a canal or penstock;
(iii) A summary of the proposed operational mode of the project;
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(iv) Identification of the environment to be affected, the significant resources
present, and the applicant's proposed environmental protection, mitigation, and
enhancement plans, to the extent known at that time;
(v) Streamflow and water regime information, including drainage area, natural
flow periodicity, monthly flow rates and durations, mean flow figures illustrating the
mean daily streamflow curve for each month of the year at the point of diversion or
impoundment, with location of the stream gauging station, the method used to
generate the streamflow data provided, and copies of all records used to derive the
flow data used in the applicant's engineering calculations;
(vi) (A) A statement (with a copy to the Commission) of whether or not the
applicant will seek benefits under section 210 of PURPA by satisfying the
requirements for qualifying hydroelectric small power production facilities in
§292.203 of this chapter;
(B) If benefits under section 210 of PURPA are sought, a statement on whether
or not the applicant believes diversion (as that term is defined in §292.202(p) of this
chapter) and a request for the agencies' view on that belief, if any;
(vii) Detailed descriptions of any proposed studies and the proposed
methodologies to be employed; and
(viii) Any statement required by §4.301(a) of this part.
(3) (i) A potential exemption applicant and a potential applicant for an original
license that commences pre-filing consultation;
(A) On or after July 23, 2005 pursuant to part 5 of this chapter and receives
approval from the Commission to use the license application procedures of part 4 of
this chapter; or
(B) Elects to commence pre-filing consultation under part 4 of this chapter prior
to July 23, 2005; must:
(1) Hold a joint meeting at a convenient place and time, including an opportunity
for a site visit, with all pertinent agencies, Indian tribes, and members of the public to
explain the applicant's proposal and its potential environmental impact, to review the
information provided, and to discuss the data to be obtained and studies to be
conducted by the potential applicant as part of the consultation process;
(2) Consult with the resource agencies, Indian tribes and members of the public
on the scheduling and agenda of the joint meeting; and
(3) No later than 15 days in advance of the joint meeting, provide the
Commission with written notice of the time and place of the meeting and a written
agenda of the issues to be discussed at the meeting.
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(ii) The joint meeting must be held no earlier than 30 days, but no later than 60
days, from, as applicable;
(A) The date of the Commission's approval of the potential applicant's request
to use the license application procedures of this part pursuant to the provisions of
part 5 of this chapter; or
(B) The date of the potential applicant's letter transmitting the information
required by paragraph (b)(2) of this section, in the case of a potential exemption
applicant or a potential license applicant that commences pre-filing consultation
under this part prior to July 23, 2005.
(4) Members of the public must be informed of and invited to attend the joint
meeting held pursuant to paragraph (b)(3) of this section by means of the public
notice provision published in accordance with paragraph (g) of this section.
Members of the public attending the meeting are entitled to participate in the
meeting and to express their views regarding resource issues that should be
addressed in any application for license or exemption that may be filed by the
potential applicant. Attendance of the public at any site visit held pursuant to
paragraph (b)(3) of this section will be at the discretion of the potential applicant.
The potential applicant must make either audio recordings or written transcripts of
the joint meeting, and must promptly provide copies of these recordings or
transcripts to the Commission and, upon request, to any resource agency, Indian
tribe, or member of the public.
(5) Not later than 60 days after the joint meeting held under paragraph (b)(3) of
this Section (unless extended within this time period by a resource agency, Indian
tribe, or members of the public for an additional 60 days by sending written notice to
the applicant and the Director of the Office of Energy Projects within the first 60 day
period, with an explanation of the basis for the extension), each interested resource
agency and Indian tribe must provide a potential applicant with written comments:
(i) Identifying its determination of necessary studies to be performed or the
information to be provided by the potential applicant;
(ii) Identifying the basis for its determination;
(iii) Discussing its understanding of the resource issues and its goals and
objectives for these resources;
(iv) Explaining why each study methodology recommended by it is more
appropriate than any other available methodology alternatives, including those
identified by the potential applicant pursuant to paragraph (b)(2)(vii) of this section;
(v) Documenting that the use of each study methodology recommended by it is
a generally accepted practice; and
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(vi) Explaining how the studies and information requested will be useful to the
agency, Indian tribe, or member of the public in furthering its resource goals and
objectives that are affected by the proposed project.
(6)(i) If a potential applicant and a resource agency or Indian tribe disagree as
to any matter arising during the first stage of consultation or as to the need to
conduct a study or gather information referenced in paragraph (c)(2) of this section,
the potential applicant or resource agency or Indian tribe may refer the dispute in
writing to the Director of the Office of Energy Projects (Director) for resolution.
(ii) At the same time as the request for dispute resolution is submitted to the
Director, the entity referring the dispute must serve a copy of its written request for
resolution on the disagreeing party and any affected resource agency or Indian tribe,
which may submit to the Director a written response to the referral within 15 days of
the referral's submittal to the Director.
(iii) Written referrals to the Director and written responses thereto pursuant to
paragraphs (b)(6)(i) or (b)(6)(ii) of this section must be filed with the Commission in
accordance with the Commission's Rules of Practice and Procedure, and must
indicate that they are for the attention of the Director pursuant to §4.38(b)(6).
(iv) The Director will resolve the disputes by letter provided to the potential
applicant and all affected resource agencies and Indian tribes.
(v) If a potential applicant does not refer a dispute regarding a request for a
potential applicant to obtain information or conduct studies (other than a dispute
regarding the information specified in paragraph (b)(2) of this section), or a study to
the Director under paragraph (b)(6) of this section, or if a potential applicant
disagrees with the Director's resolution of a dispute regarding a request for
information (other than a dispute regarding the information specified in paragraph
(b)(2) of this section) or a study, and if the potential applicant does not provide the
requested information or conduct the requested study, the potential applicant must
fully explain the basis for its disagreement in its application.
(vi) Filing and acceptance of an application will not be delayed, and an
application will not be considered deficient or patently deficient pursuant to §4.32(e)
(1) or (e)(2) of this part, merely because the application does not include a particular
study or particular information if the Director had previously found, under paragraph
(b)(6)(iv) of this section, that each study or information is unreasonable or
unnecessary for an informed decision by the Commission on the merits of the
application or use of the study methodology requested is not a generally accepted
practice.
(7) The first stage of consultation ends when all participating agencies and
Indian tribes provide the written comments required under paragraph (b)(5) of this
section or 60 days after the joint meeting held under paragraph (b)(3) of this section,
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whichever occurs first, unless a resource agency or Indian tribe timely notifies the
applicant and the Director of Energy Projects of its need for more time to provide
written comments under paragraph (b)(5) of this section, in which case the first
stage of consultation ends when all participating agencies and Indian tribes provide
the written comments required under paragraph (b)(5) of this section or 120 days
after the joint meeting held under paragraph (b)(5) of this section, whichever occurs
first.
(c) Second stage of consultation. (1) Unless determined to be unnecessary by
the Director pursuant to paragraph (b)(6) of this section, a potential applicant must
diligently conduct all reasonable studies and obtain all reasonable information
requested by resource agencies and Indian tribes under paragraph (b) of this
section that are necessary for the Commission to make an informed decision
regarding the merits of the application. These studies must be completed and the
information obtained:
(i) Prior to filing the application, if the results:
(A) Would influence the financial (e.g., instream flow study) or technical
feasibility of the project (e.g., study of potential mass soil movement); or
(B) Are needed to determine the design or location of project features,
reasonable alternatives to the project, the impact of the project on important natural
or cultural resources (e.g., resource surveys), or suitable mitigation or enhancement
measures, or to minimize impact on significant resources (e.g., wild and scenic river,
anadromous fish, endangered species, caribou migration routes);
(ii) After filing the application but before issuance of a license or exemption, if
the applicant otherwise complied with the provisions of paragraph (b)(2) of this
section and the study or information gathering would take longer to conduct and
evaluate than the time between the conclusion of the first stage of consultation and
the expiration of the applicant's preliminary permit or the application filing deadline
set by the Commission;
(iii) After a new license or exemption is issued, if the studies can be conducted
or the information obtained only after construction or operation of proposed facilities,
would determine the success of protection, mitigation, or enhancement measures
(e.g., post-construction monitoring studies), or would be used to refine project
operation or modify project facilities.
(2) If, after the end of the first stage of consultation as defined in paragraph (b)
(7) of this section, a resource agency or Indian tribe requests that the potential
applicant conduct a study or gather information not previously identified and
specifies the basis and reasoning for its request, under paragraphs (b)(5) (i)-(vi) of
this section, the potential applicant must promptly initiate the study or gather the
information, unless the study or information is unreasonable or unnecessary for an
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informed decision by the Commission on the merits of the application or use of the
methodology requested by a resource agency or Indian tribe for conducting the
study is not a generally accepted practice. The applicant may refer any such request
to the Director of the Office of Energy Projects for dispute resolution under the
procedures set forth in paragraph (b)(6) of this section and need not conduct prior to
filing any study determined by the Director to be unreasonable or unnecessary or to
employ a methodology that is not generally accepted.
(3)(i) The results of studies and information-gathering referenced in paragraphs
(c)(1)(ii) and (c)(2) of this section will be treated as additional information; and
(ii) Filing and acceptance of an application will not be delayed and an
application will not be considered deficient or patently deficient pursuant to §4.32 (e)
(1) or (e)(2) merely because the study or information gathering is not complete
before the application is filed.
(4) A potential applicant must provide each resource agency and Indian tribe
with:
(i) A copy of its draft application that:
(A) Indicates the type of application the potential applicant expects to file with
the Commission; and
(B) Responds to any comments and recommendations made by any resource
agency and Indian tribe either during the first stage of consultation or under
paragraph (c)(2) of this section;
(ii) The results of all studies and information-gathering either requested by that
resource agency or Indian tribe in the first stage of consultation (or under paragraph
(c)(2) of this section if available) or which pertain to resources of interest to that
resource agency or Indian tribe and which were identified by the potential applicant
pursuant to paragraph (b)(2)(vii) of this section, including a discussion of the results
and any proposed protection, mitigation, or enhancement measures; and
(iii) A written request for review and comment.
(5) A resource agency or Indian tribe will have 90 days from the date of the
potential applicant's letter transmitting the paragraph (c)(4) information to it to
provide written comments on the information submitted by a potential applicant
under paragraph (c)(4) of this section.
(6) If the written comments provided under paragraph (c)(5) of this section
indicate that a resource agency or Indian tribe has a substantive disagreement with
a potential applicant's conclusions regarding resource impacts or its proposed
protection, mitigation, or enhancement measures, the potential applicant will:
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(i) Hold a joint meeting with the disagreeing resource agency or Indian tribe and
other agencies with similar or related areas of interest, expertise, or responsibility
not later than 60 days from the date of the written comments of the disagreeing
agency or Indian tribe to discuss and to attempt to reach agreement on its plan for
environmental protection, mitigation, or enhancement measures;
(ii) Consult with the disagreeing agency or Indian tribe and other agencies with
similar or related areas of interest, expertise, or responsibility on the scheduling of
the joint meeting; and
(iii) At least 15 days in advance of the meeting, provide the Commission with
written notice of the time and place of the meeting and a written agenda of the
issues to be discussed at the meeting.
(7) The potential applicant and any disagreeing resource agency or Indian tribe
may conclude a joint meeting with a document embodying any agreement among
them regarding environmental protection, mitigation, or enhancement measures and
any issues that are unresolved.
(8) The potential applicant must describe all disagreements with a resource
agency or Indian tribe on technical or environmental protection, mitigation, or
enhancement measures in its application, including an explanation of the basis for
the applicant's disagreement with the resource agency or Indian tribe, and must
include in its application any document developed pursuant to paragraph (c)(7) of
this section.
(9) A potential applicant may file an application with the Commission if:
(i) It has complied with paragraph (c)(4) of this section and no resource agency
or Indian tribe has responded with substantive disagreements by the deadline
specified in paragraph (c)(5) of this section; or
(ii) It has complied with paragraph (c)(6) of this section and a resource agency
or Indian tribe has responded with substantive disagreements.
(10) The second stage of consultation ends:
(i) Ninety days after the submittal of information pursuant to paragraph (c)(4) of
this section in cases where no resource agency or Indian tribe has responded with
substantive disagreements; or
(ii) At the conclusion of the last joint meeting held pursuant to paragraph (c)(6)
of this section in cases where a resource agency or Indian tribe has responded with
substantive disagreements.
(d) Third stage of consultation. (1) The third stage of consultation is initiated by
the filing of an application for a license or exemption, accompanied by a transmittal
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letter certifying that at the same time copies of the application are being mailed to
the resource agencies, Indian tribes, other government offices, and consulted
members of the public specified in paragraph (d)(2) of this section.
(2) As soon as an applicant files such application documents with the
Commission, or promptly after receipt in the case of documents described in
paragraph (d)(2)(iii) of this section, as the Commission may direct the applicant must
serve on every resource agency, Indian tribes, and member of the public consulted,
and on other government offices copies of:
(i) Its application for a license or an exemption from licensing;
(ii) Any deficiency correction, revision, supplement, response to additional
information request, or amendment to the application; and
(iii) Any written correspondence from the Commission requesting the correction
of deficiencies or the submittal of additional information.
(e) Waiver of compliance with consultation requirements. (1) If a resource
agency or Indian tribe waives in writing compliance with any requirement of this
section, a potential applicant does not have to comply with that requirement as to
that agency or tribe.
(2) If a resource agency or Indian tribe fails to timely comply with a provision
regarding a requirement of this section, a potential applicant may proceed to the
next sequential requirement of this section without waiting for the resource agency
or Indian tribe to comply.
(3) The failure of a resource agency or Indian tribe to timely comply with a
provision regarding a requirement of this section does not preclude its participation
in subsequent stages of the consultation process.
(4) Following October 23, 2003, a potential license applicant engaged in prefiling consultation under part 4 may during first stage consultation request to
incorporate into pre-filing consultation any element of the integrated license
application process provided for in part 5 of this chapter. Any such request must be
accompanied by a:
(i) Specific description of how the element of the part 5 license application
would fit into the pre-filing consultation process under this part; and
(ii) Demonstration that the potential license applicant has made every
reasonable effort to contact all resource agencies, Indian tribes, non-governmental
organizations, and others affected by the applicant's proposal, and that a consensus
exists in favor of incorporating the specific element of the part 5 process into the
pre-filing consultation under this part.
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(f) Application requirements documenting consultation and any disagreements
with resource agencies. An applicant must show in Exhibit E of its application that it
has met the requirements of paragraphs (b) through (d) and paragraphs (g) and (h)
of this section, and must include a summary of the consultation process and:
(1) Any resource agency's or Indian tribe's letters containing comments,
recommendations, and proposed terms and conditions;
(2) Any letters from the public containing comments and recommendations;
(3) Notice of any remaining disagreement with a resource agency or Indian tribe
on:
(i) The need for a study or the manner in which a study should be conducted
and the applicant's reasons for disagreement, and
(ii) Information on any environmental protection, mitigation, or enhancement
measure, including the basis for the applicant's disagreement with the resource
agency or Indian tribe;
(4) Evidence of any waivers under paragraph (e) of this section;
(5) Evidence of all attempts to consult with a resource agency or Indian tribe,
copies of related documents showing the attempts, and documents showing the
conclusion of the second stage of consultation;
(6) An explanation of how and why the project would, would not, or should not,
comply with any relevant comprehensive plan as defined in §2.l9 of this chapter and
a description of any relevant resource agency or Indian tribe determination
regarding the consistency of the project with any such comprehensive plan;
(7) A description of how the applicant's proposal addresses the significant
resource issues raised at the joint meeting held pursuant to paragraph (b)(3) of this
section; and
(8) A list containing the name and address of every federal, state, and interstate
resource agency and Indian tribe with which the applicant consulted pursuant to
paragraph (a)(1) of this section.
(g) Public participation. (1) At least 14 days in advance of the joint meeting held
pursuant to paragraph (b)(3) of this section, the potential applicant must publish
notice, at least once, of the purpose, location, and timing of the joint meeting, in a
daily or weekly newspaper published in each county in which the proposed project
or any part thereof is situated. The notice shall include a summary of the major
issues to be discussed at the joint meeting.
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(2)(i) A potential applicant must make available to the public for inspection and
reproduction the information specified in paragraph (b)(2) of this section from the
date on which the notice required by paragraph (g)(1) of this section is first
published until a final order is issued on any license application.
(ii) The provisions of §4.32(b) will govern the form and manner in which the
information is to be made available for public inspection and reproduction.
(iii) A potential applicant must make available to the public for inspection at the
joint meeting required by paragraph (b)(3) of this section at least two copies of the
information specified in paragraph (b)(2) of this section.
(h) Critical Energy Infrastructure Information. If this section requires an
applicant to reveal Critical Energy Infrastructure Information (CEII), as defined by
§388.113(c) of this chapter, to any person, the applicant shall follow the procedures
set out in §4.32(k).
[Order 533, 56 FR 23153, May 20, 1991, as amended at 56 FR 61155, Dec. 2, 1991; Order
2002, 68 FR 51117, Aug. 25, 2003; Order 643, 68 FR 52094, Sept. 2, 2003; 68 FR 61742,
Oct. 30, 2003; Order 756, 77 FR 4894, Feb. 1, 2012; Order 800, 79 FR 59110, Oct. 1,
2014]
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§4.39 Specifications for maps and drawings.
(a) Full-sized prints of maps and drawings must be on sheets no smaller than
22 by 34 inches and no larger than 24 by 36 inches. A space five inches high by
seven inches wide must be provided in the lower right hand corner of each sheet.
The upper half of this space must bear the title, numerical and graphical scale, and
other pertinent information concerning the map or drawing. The lower half of the
space must be left clear. Exhibit G drawings must be stamped by a registered land
surveyor. If the drawing size specified in this paragraph limits the scale of structural
drawings (exhibit F drawings) described in paragraph (c) of this section, a smaller
scale may be used for those drawings. Potential applicants or licensees may be
required to file maps or drawings in electronic format as directed by the
Commission.
(b) Each map must have a scale in full-sized prints no smaller than one inch
equals 0.5 miles for transmission lines, roads, and similar linear features and no
smaller than one inch equals 1,000 feet for other project features, including the
project boundary. Where maps at this scale do not show sufficient detail, large scale
maps may be required. Each map must have:
(1) True and magnetic meridians;
(2) State, county, and town lines; and
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(3) Boundaries of public lands and reservations of the United States [see 16
U.S.C. 796 (1) and (2)], if any. If a public land survey is available, the maps must
show all lines of that survey crossing the project area and all official subdivisions of
sections for the public lands and reservations, including lots and irregular tracts, as
designated on the official plats of survey that may be obtained from the Bureau of
Land Management, Washington, DC, or examined in the local land survey office; to
the extent that a public land survey is not available for public lands and reservations
of the United States, the maps must show the protractions of townships and section
lines, which, if possible, must be those recognized by the Federal agency
administering those lands.
(c) Drawings depicting details of project structures must have a scale in fullsized prints no smaller than:
(1) One inch equals 50 feet for plans, elevations, and profiles; and
(2) One inch equals 10 feet for sections.
(d) Each map or drawing must be drawn and lettered to be legible when it is
reduced to a print that is 11 inches on its shorter side. Following notification to the
applicant that the application has been accepted for filing [see §4.32(d)], prints
reduced to that size must be bound in each copy of the application which is required
to be submitted to the Commission or provided to any person, agency, or other
entity.
(e) The maps and drawings showing project location information and details of
project structures must be filed in accordance with the Commission's instructions on
submission of privileged materials and Critical Energy Infrastructure Information in
§§388.112 and 388.113 of this chapter.
[Order 54, 44 FR 61334, Oct. 25, 1979. Redesignated by Order 413, 50 FR 11678, Mar.
25, 1985; Order 2002, 68 FR 51119, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003; Order
756, 77 FR 4894, Feb. 1, 2012; Order 769, 77 FR 65474, Oct. 29, 2012; Order 798, 79 FR
42974, July 24, 2014; Order 800, 79 FR 59110, Oct. 1, 2014; 83 FR 53575, Oct. 24, 2018]
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Subpart E—Application for License for Major Unconstructed
Project and Major Modified Project
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§4.40 Applicability.
(a) Applicability. The provisions of this subpart apply to any application for an
initial license for a major unconstructed project that would have a total installed
capacity of more than 5 megawatts, and any application for an initial or new license
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for a major modified project with a total installed capacity more than 5 megawatts.
An applicant for license for any major unconstructed or major modified water power
project that would have a total installed generating capacity of 5 megawatts or less
must submit application under subpart G (§§4.60 and 4.61).
(b) Guidance from Commission staff. A prospective applicant for a license for a
major unconstructed project or major modified project may seek advice from the
Commission's Office of Energy Projects regarding the applicability of this subpart to
its project [see §4.32(h)], including the determinations whether any proposed repair,
modification or reconstruction of an existing dam would result in a significant change
in the normal maximum surface elevation of an existing impoundment, or whether
any proposed change in existing project works or operation would result in a
significant environmental impact.
[Order 184, 46 FR 55936, Nov. 13, 1981, as amended by Order 413, 50 FR 11683, Mar.
25, 1985; Order 499, 53 FR 27002, July 18, 1988; Order 2002, 68 FR 51119, Aug. 25,
2003]
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§4.41 Contents of application.
Any application under this subpart must contain the following information in the
form prescribed:
(a) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
Application for License for Major Unconstructed Project or Major Modified Project
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for a [license or
new license, as appropriate] for the [name of project] water power project, as described in the
attached exhibits. [Specify any previous FERC project number designation.]
(2) The location of the proposed project is:
State or territory:
County:
Township or nearby town:
Stream or other body of water:
(3) The exact name, business address, and telephone number of the applicant are:
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(4) The applicant is a (citizen of the United States, association of citizens of the United States,
domestic corporation, municipality, or State, as appropriate) and (is/is not) claiming preference
under section 7(a) of the Federal Power Act. See 16 U.S.C. 796.
(5)(i) The statutory or regulatory requirements of the state(s) in which the project would be
located and that affect the project as proposed with respect to bed and banks and to the
appropriation, diversion, and use of water for power purposes, and with respect to the right to
engage in the business of developing, transmitting, and distributing power and in any other
business necessary to accomplish the purposes of the license under the Federal Power Act, are:
[provide citation and brief identification of the nature of each requirement; if the applicant is a
municipality, the applicant must submit copies of applicable state or local laws or a municipal
charter or, if such laws or documents are not clear, any other appropriate legal authority, evidencing
that the municipality is competent under such laws to engage in the business of developing,
transmitting, utilizing, or distributing power.]
(ii) The steps which the applicant has taken, or plans to take, to comply with each of the laws
cited above are: [provide brief description for each requirement]
(b) Exhibit A is a description of the project. If the project includes more than one
dam with associated facilities, each dam and the associated component parts must
be described together as a discrete development. The description for each
development must contain:
(1) The physical composition, dimensions, and general configuration of any
dams, spillways, penstocks, powerhouses, tailraces or other structures proposed to
be included as part of the project;
(2) The normal maximum water surface area and normal maximum water
surface elevation (mean sea level), gross storage capacity of any impoundments to
be included as part of the project;
(3) The number, type and rated capacity of any proposed turbines or generators
to be included as part of the project;
(4) The number, length, voltage and interconnections of any primary
transmission lines proposed to be included a part of the project [See 16 U.S.C. 796
(11)];
(5) The description of any additional mechanical, electrical, and transmission
equipment appurtenant to the project; and
(6) All lands of the United States, including lands patented subject to the
provisions of section 24 of the Act, 16 U.S.C. 818, that are enclosed within the
project boundary described under paragraph (h) of this section (Exhibit G), identified
and tabulated by legal subdivisions of a public land survey, by the best available
legal description. The tabulation must show the total acreage of the lands of the
United States within the project boundary.
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(c) Exhibit B is a statement of project operation and resource utilization. If the
project includes more than one dam with associated facilities, the information must
be provided separately for each discrete development. The exhibit must contain:
(1) A description of each alternative site considered in selecting of the proposed
site;
(2) A description of any alternative facility designs, processes, and operations
that were considered.
(3) A statement as to whether operation of the power plant will be manual or
automatic, an estimate of the annual plant factor, and a statement of how the project
will be operated during adverse, mean, and high water years;
(4) An estimate of the dependable capacity and average annual energy
production in kilowatt-hours (or mechanical equivalent), supported by the following
data:
(i) The minimum, mean, and maximum recorded flows in cubic feet per second
of the stream or other body of water at the powerplant intake or point of diversion,
with a specification of any adjustment made for evaporation, leakage minimum flow
releases (including duration of releases) or other reductions in available flow;
monthly flow duration curves indicating the period of record and the gauging stations
used in deriving the curves; and a specification of the critical streamflow used to
determine the dependable capacity;
(ii) An area-capacity curve showing the gross storage capacity and usable
storage capacity of the impoundment, with a rule curve showing the proposed
operation of the impoundment and how the usable storage capacity is to be utilized;
(iii) The estimated minimum and maximum hydraulic capacity of the powerplant
in terms of flow and efficiency (cubic feet per second at one-half, full and best gate),
and the corresponding generator output in kilowatts;
(iv) A tailwater rating curve; and
(v) A curve showing powerplant capability versus head and specifying
maximum, normal, and minimum heads;
(5) A statement of system and regional power needs and the manner in which
the power generated at the project is to be utilized, including the amount of power to
be used on-site, if any, supported by the following data:
(i) Load curves and tabular data, if appropriate;
(ii) Details of conservation and rate design programs and their historic and
projected impacts on system loads; and
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(iii) The amount of power to be sold and the identity of proposed purchaser(s);
and
(6) A statement of the applicant's plans for future development of the project or
of any other existing or proposed water power project on the affected stream or
other body of water, indicating the approximate location and estimated installed
capacity of the proposed developments.
(d) Exhibit C is a proposed construction schedule for the project. The
information required may be supplemented with a bar chart. The construction
schedule must contain:
(1) The proposed commencement and completion dates of any new
construction, modification, or repair of major project works;
(2) The proposed commencement date of first commercial operation of each
new major facility and generating unit; and
(3) If any portion of the proposed project consists of previously constructed,
unlicensed water power structures or facilities, a chronology of original completion
dates of those structures or facilities specifying dates (approximate dates must be
identified as such) of:
(i) Commencement and completion of construction or installation;
(ii) Commencement of first commercial operation; and
(iii) Any additions or modifications other than routine maintenance.
(e) Exhibit D is a statement of project costs and financing. The exhibit must
contain:
(1) A statement of estimated costs of any new construction, modification, or
repair, including:
(i) The cost of any land or water rights necessary to the development;
(ii) The total cost of all major project works;
(iii) Indirect construction costs such as costs of construction equipment, camps,
and commissaries;
(iv) Interest during construction; and
(v) Overhead, construction, legal expenses, and contingencies;
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(2) If any portion of the proposed project consists of previously constructed,
unlicensed water power structures or facilities, a statement of the original cost of
those structures or facilities specifying for each, to the extent possible, the actual or
approximate total costs (approximate costs must be identified as such) of:
(i) Any land or water rights necessary to the existing project works;
(ii) All major project works; and
(iii) Any additions or modifications other than routine maintenance;
(3) If the applicant is a licensee applying for a new license, and is not a
municipality or a state, an estimate of the amount which would be payable if the
project were to be taken over pursuant to section 14 of the Federal Power Act, 16
U.S.C. 807, upon expiration of the license in effect including:
(i) Fair value;
(ii) Net investment; and
(iii) Severance damages;
(4) A statement of the estimated average annual cost of the total project as
proposed, specifying any projected changes in the costs (life-cycle costs) over the
estimated financing or licensing period if the applicant takes such changes into
account, including:
(i) Cost of capital (equity and debt);
(ii) Local, state, and Federal taxes;
(iii) Depreciation or amortization,
(iv) Operation and maintenance expenses, including interim replacements,
insurance, administrative and general expenses, and contingencies; and
(v) The estimated capital cost and estimated annual operation and maintenance
expense of each proposed environmental measure;
(5) A statement of the estimated annual value of project power based on a
showing of the contract price for sale of power or the estimated average annual cost
of obtaining an equivalent amount of power (capacity and energy) from the lowest
cost alternative source of power, specifying any projected changes in the costs (lifecycle costs) of power from that source over the estimated financing or licensing
period if the applicant takes such changes into account;
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(6) A statement describing other electric energy alternatives, such as gas, oil,
coal and nuclear-fueled powerplants and other conventional and pumped storage
hydroelectric plants;
(7) A statement and evaluation of the consequences of denial of the license
application and a brief perspective of what future use would be made of the
proposed site if the proposed project were not constructed;
(8) A statement specifying the sources and extent of financing and annual
revenues available to the applicant to meet the costs identified in paragraphs (e) (1)
and (4) of this section;
(9) An estimate of the cost to develop the license application; and
(10) The on-peak and off-peak values of project power, and the basis for
estimating the values, for projects which are proposed to operate in a mode other
than run-of-river.
(f) Exhibit E is an Environmental Report. Information provided in the report must
be organized and referenced according to the itemized subparagraphs below. See
§4.38 for consultation requirements. The Environmental Report must contain the
following information, commensurate with the scope of the project:
(1) General description of the locale. The applicant must provide a general
description of the environment of the proposed project area and its immediate
vicinity. The description must include location and general information helpful to an
understanding of the environmental setting.
(2) Report on water use and quality. The report must discuss water quality and
flows and contain baseline data sufficient to determine the normal and seasonal
variability, the impacts expected during construction and operation, and any
mitigative, enhancement, and protective measures proposed by the applicant. The
report must be prepared in consultation with the state and Federal agencies with
responsibility for management of water quality and quantity in the affected stream or
other body of water. The report must include:
(i) A description of existing instream flow uses of streams in the project area
that would be affected by construction and operation; estimated quantities of water
discharged from the proposed project for power production; and any existing and
proposed uses of project waters for irrigation, domestic water supply, industrial and
other purposes;
(ii) A description of the seasonal variation of existing water quality for any
stream, lake, or reservoir that would be affected by the proposed project, including
(as appropriate) measurements of: significant ions, chlorophyll a, nutrients, specific
conductance, pH, total dissolved solids, total alkalinity, total hardness, dissolved
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oxygen, bacteria, temperature, suspended sediments, turbidity and vertical
illumination;
(iii) A description of any existing lake or reservoir and any of the proposed
project reservoirs including surface area, volume, maximum depth, mean depth,
flushing rate, shoreline length, substrate classification, and gradient for streams
directly affected by the proposed project;
(iv) A quantification of the anticipated impacts of the proposed construction and
operation of project facilities on water quality and downstream flows, such as
temperature, turbidity and nutrients;
(v) A description of measures recommended by Federal and state agencies and
the applicant for the purpose of protecting or improving water quality and stream
flows during project construction and operation; an explanation of why the applicant
has rejected any measures recommended by an agency; and a description of the
applicant's alternative measures to protect or improve water quality stream flow;
(vi) A description of groundwater in the vicinity of the proposed project,
including water table and artesian conditions, the hydraulic gradient, the degree to
which groundwater and surface water are hydraulically connected, aquifers and their
use as water supply, and the location of springs, wells, artesian flows and
disappearing streams; a description of anticipated impacts on groundwater and
measures proposed by the applicant and others for the mitigation of impacts on
groundwater; and
(3) Report on fish, wildlife, and botanical resources. The applicant must provide
a report that describes the fish, wildlife, and botanical resources in the vicinity of the
proposed project; expected impacts of the project on these resources; and
mitigation, enhancement, or protection measures proposed by the applicant. The
report must be prepared in consultation with the state agency or agencies with
responsibility for these resources, the U.S. Fish and Wildlife Service, the National
Marine Fisheries Service (if the proposed project may affect anadromous, estuarine,
or marine fish resources), and any state or Federal agency with managerial authority
over any part of the proposed project lands. The report must contain:
(i) A description of existing fish, wildlife, and plant communities of the proposed
project area and its vicinity, including any downstream areas that may be affected by
the proposed project and the area within the transmission line corridor or right-ofway. A map of vegetation types should be included in the description. For species
considered important because of their commercial or recreational value, the
information provided should include temporal and spatial distributions and densities
of such species. Any fish, wildlife, or plant species proposed or listed as threatened
or endangered by the U.S. Fish and Wildlife Service or National Marine Fisheries
Service [see 50 CFR 17.11 and 17.12] must be identified;
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(ii) A description of the anticipated impacts on fish, wildlife and botanical
resources of the proposed construction and operation of project facilities, including
possible changes in size, distribution, and reproduction of essential population of
these resources and any impacts on human utilization of these resources;
(iii) A description of any measures or facilities recommended by state or Federal
agencies for the mitigation of impacts on fish, wildlife, and botanical resources, or for
the protection or enhancement of these resources, the impact on threatened or
endangered species, and an explanation of why the applicant has determined any
measures or facilities recommended by an agency are inappropriate as well as a
description of alternative measures proposed by applicant to protect fish, wildlife and
botanical resources; and
(iv) The following materials and information regarding any mitigation measures
or facilities, identified under clause (iii), proposed for implementation or construction:
(A) Functional design drawings;
(B) A description of proposed operation and maintenance procedures for any
proposed measures or facilities;
(C) An implementation, construction and operation schedule for any proposed
measures or facilities;
(D) An estimate of the costs of construction, operation, and maintenance of any
proposed facilities or implementation of any measures;
(E) A statement of the sources and amount of financing for mitigation measures
or facilities; and
(F) A map or drawing showing, by the use of shading, crosshatching or other
symbols, the identity and location of any proposed measures or facilities.
(4) Report on historic and archaeological resources. The applicant must provide
a report that discusses any historical and archaeological resources in the proposed
project area, the impact of the proposed project on those resources and the
avoidance, mitigation, and protection measures proposed by the applicant. The
report must be prepared in consultation with the State Historic Preservation Officer
(SHPO) and the National Park Service of the U.S. Department of Interior. The report
must contain:
(i) A description of any discovery measures, such as surveys, inventories, and
limited subsurface testing work, recommended by the specified state and Federal
agencies for the purpose of locating, identifying, and assessing the significance of
historic and archaeological resources that would be affected by construction and
operation of the proposed project, together with a statement of the applicant's
position regarding the acceptability of the recommendations;
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(ii) The results of surveys, inventories, and subsurface testing work
recommended by the state and Federal agencies listed above, together with an
explanation by the applicant of any variations from the survey, inventory, or testing
procedures recommended;
(iii) An identification (without providing specific site or property locations) of any
historic or archaeological site in the proposed project area, with particular emphasis
on sites or properties either listed in, or recommended by the SHPO for inclusion in,
the National Register of Historic Places that would be affected by the construction of
the proposed project;
(iv) A description of the likely direct and indirect impacts of proposed project
construction or operation on sites or properties either listed in, or recommended as
eligible for, the National Register of Historic Places;
(v) A management plan for the avoidance of, or mitigation of, impacts on
historic or archaeological sites and resources based upon the recommendations of
the state and Federal agencies listed above and containing the applicant's
explanation of variations from those recommendations; and
(vi) The following materials and information regarding the mitigation measures
described under paragraph (f)(4)(v) of this section:
(A) A schedule for implementing the mitigation proposals;
(B) An estimate of the cost of the measures; and
(C) A statement of the sources and extent of financing.
(vii) The applicant must provide five copies (rather than the eight copies
required under §4.32(b)(1) of the Commission's regulations) of any survey,
inventory, or subsurface testing reports containing specific site and property
information, and including maps and photographs showing the location and any
required alteration of historic and archaeological resources in relation to proposed
project facilities.
(5) Report on socio-economic impacts. The applicant must provide a report
which identifies and quantifies the impacts of constructing and operating the
proposed project on employment, population, housing, personal income, local
governmental services, local tax revenues and other factors within the towns and
counties in the vicinity of the proposed project. The report must include:
(i) A description of the socio-economic impact area;
(ii) A description of employment, population and personal income trends in the
impact area;
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(iii) An evaluation of the impact of any substantial in-migration of people on the
impact area's governmental facilities and services, such as police, fire, health and
educational facilities and programs;
(iv) On-site manpower requirements and payroll during and after project
construction, including a projection of total on-site employment and construction
payroll provided by month;
(v) Numbers of project construction personnel who:
(A) Currently reside within the impact area;
(B) Would commute daily to the construction site from places situated outside
the impact area; and
(C) Would relocate on a temporary basis within the impact area;
(vi) A determination of whether the existing supply of available housing within
the impact area is sufficient to meet the needs of the additional population;
(vii) Numbers and types of residences and business establishments that would
be displaced by the proposed project, procedures to be utilized to acquire these
properties, and types and amounts of relocation assistance payments that would be
paid to the affected property owners and businesses; and
(viii) A fiscal impact analysis evaluating the incremental local government
expenditures in relation to the incremental local government revenues that would
result from the construction of the proposed project. Incremental expenditures may
include, but are not be limited to, school operating costs, road maintenance and
repair, public safety, and public utility costs.
(6) Report on geological and soil resources. The applicant must provide a report
on the geological and soil resources in the proposed project area and other lands
that would be directly or indirectly affected by the proposed action and the impacts
of the proposed project on those resources. The information required may be
supplemented with maps showing the location and description of conditions. The
report must contain:
(i) A detailed description of geological features, including bedrock lithology,
stratigraphy, structural features, glacial features, unconsolidated deposits, and
mineral resources;
(ii) A detailed description of the soils, including the types, occurrence, physical
and chemical characteristics, erodability and potential for mass soil movement;
(iii) A description showing the location of existing and potential geological and
soil hazards and problems, including earthquakes, faults, seepage, subsidence,
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solution cavities, active and abandoned mines, erosion, and mass soil movement,
and an identification of any large landslides or potentially unstable soil masses
which could be aggravated by reservoir fluctuation;
(iv) A description of the anticipated erosion, mass soil movement and other
impacts on the geological and soil resources due to construction and operation of
the proposed project; and
(v) A description of any proposed measures or facilities for the mitigation of
impacts on soils.
(7) Report on recreational resources. The applicant must prepare a report
containing a proposed recreation plan describing utilization, design and
development of project recreational facilities, and public access to the project area.
Development of the plan should include consideration of the needs of the physically
handicapped. Public and private recreational facilities provided by others that would
abut the project should be noted in the report. The report must be prepared in
consultation with appropriate local, regional, state and Federal recreation agencies
and planning commissions, the National Park Service of the U.S. Department of the
Interior, and any other state or Federal agency with managerial responsibility for any
part of the project lands. The report must contain:
(i) A description of any areas within or in the vicinity of the proposed project
boundary that are included in, or have been designated for study for inclusion in:
(A) The National Wild and Scenic Rivers Systems (see 16 U.S.C. 1271);
(B) The National Trails System (see 16 U.S.C. 1241); or
(C) A wilderness area designated under the Wilderness Act (see 16 U.S.C.
1132);
(ii) A detailed description of existing recreational facilities within the project
vicinity, and the public recreational facilities which are to be provided by the
applicant at its sole cost or in cooperation with others no later than 3 years from the
date of first commercial operation of the proposed project and those recreation
facilities planned for future development based on anticipated demand. When public
recreation facilities are to be provided by other entities, the applicant and those
entities should enter into an agreement on the type of facilities to be provided and
the method of operation. Copies of agreements with cooperating entities are to be
appended to the plan;
(iii) A provision for a shoreline buffer zone that must be within the project
boundary, above the normal maximum surface elevation of the project reservoir, and
of sufficient width to allow public access to project lands and waters and to protect
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the scenic, public recreational, cultural, and other environmental values of the
reservoir shoreline;
(iv) Estimates of existing and future recreational use at the project, in daytime
and overnight visitation (recreation days), with a description of the methodology
used in developing these data;
(v) A development schedule and cost estimates of the construction, operation,
and maintenance of existing, initial, and future public recreational facilities, including
a statement of the source and extent of financing for such facilities;
(vi) A description of any measures or facilities recommended by the agencies
consulted for the purpose of creating, preserving, or enhancing recreational
opportunities at the proposed project, and for the purpose of ensuring the safety of
the public in its use of project lands and waters, including an explanation of why the
applicant has rejected any measures or facilities recommended by an agency; and
(vii) A drawing or drawings, one of which describes the entire project area,
clearly showing:
(A) The location of project lands, and the types and number of existing
recreational facilities and those proposed for initial development, including access
roads and trails, and facilities for camping, picnicking, swimming, boat docking and
launching, fishing and hunting, as well as provisions for sanitation and waste
disposal;
(B) The location of project lands, and the type and number of recreational
facilities planned for future development;
(C) The location of all project lands reserved for recreational uses other than
those included in paragraphs (f)(7)(vii) (A) and (B) of this section; and
(D) The project boundary (excluding surveying details) of all areas designated
for recreational development, sufficiently referenced to the appropriate Exhibit G
drawings to show that all lands reserved for existing and future public recreational
development and the shoreline buffer zone are included within the project boundary.
Recreational cottages, mobile homes and year-round residences for private use are
not to be considered as public recreational facilities, and the lands on which these
private facilities are to be developed are not to be included within the proposed
project boundary.
(8) Report on aesthetic resources. The applicant must provide a report that
describes the aesthetic resources of the proposed project area, the expected
impacts of the project on these resources, and the mitigation, enhancement or
protection measures proposed. The report must be prepared following consultation
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with Federal, state, and local agencies having managerial responsibility for any part
of the proposed project lands or lands abutting those lands. The report must contain:
(i) A description of the aesthetic character of lands and waters directly and
indirectly affected by the proposed project facilities;
(ii) A description of the anticipated impacts on aesthetic resources from
construction activity and related equipment and material, and the subsequent
presence of proposed project facilities in the landscape;
(iii) A description of mitigative measures proposed by the applicant, including
architectural design, landscaping, and other reasonable treatment to be given
project works to preserve and enhance aesthetic and related resources during
construction and operation of proposed project facilities; and
(iv) Maps, drawings and photographs sufficient to provide an understanding of
the information required under this paragraph. Maps or drawings may be
consolidated with other maps or drawings required in this exhibit and must conform
to the specifications of §4.39.
(9) Report on land use. The applicant must provide a report that describes the
existing uses of the proposed project lands and adjacent property, and those land
uses which would occur if the project is constructed. The report may reference the
discussions of land uses in other sections of this exhibit. The report must be
prepared following consultation with local and state zoning or land management
authorities, and any Federal or state agency with managerial responsibility for the
proposed project or abutting lands. The report must include:
(i) A description of existing land use in the proposed project area, including
identification of wetlands, floodlands, prime or unique farmland as designated by the
Natural Resources Conservation Service of the U.S. Department of Agriculture, the
Special Area Management Plan of the Office of Coastal Zone Management,
National Oceanic and Atmospheric Administration, and lands owned or subject to
control by government agencies;
(ii) A description of the proposed land uses within and abutting the project
boundary that would occur as a result of development and operation of the project;
and
(iii) Aerial photographs, maps, drawings or other graphics sufficient to show the
location, extent and nature of the land uses referred to in this section.
(10) Alternative locations, designs, and energy sources. The applicant must
provide an environment assessment of the following:
(i) Alternative sites considered in arriving at the selection of the proposed
project site;
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(ii) Alternative facility designs, processes, and operations that were considered
and the reasons for their rejection;
(iii) Alternative electrical energy sources, such as gas, oil, coal, and nuclearfueled power plants, purchased power or diversity exchange, and other conventional
and pumped-storage hydroelectric plants; and
(iv) The overall consequences if the license application is denied.
(11) List of literature. Exhibit E must include a list of all publications, reports,
and other literature which were cited or otherwise utilized in the preparation of any
part of the environmental report.
(g) Exhibit F consists of general design drawings of the principal project works
described under paragraph (b) of this section (Exhibit A) and supporting information
used as the basis of design. If the Exhibit F submitted with the application is
preliminary in nature, applicant must so state in the application. The drawings must
conform to the specifications of §4.39.
(1) The drawings must show all major project structures in sufficient detail to
provide a full understanding of the project, including:
(i) Plans (overhead view);
(ii) Elevations (front view);
(iii) Profiles (side view); and
(iv) Sections.
(2) The applicant may submit preliminary design drawings with the application.
The final Exhibit F may be submitted during or after the licensing process and must
show the precise plans and specifications for proposed structures. If the project is
licensed on the basis of preliminary designs, the applicant must submit a final
Exhibit F for Commission approval prior to commencement of any construction of
the project.
(3) Supporting design report. The applicant must furnish, at a minimum, the
following supporting information to demonstrate that existing and proposed
structures are safe and adequate to fulfill their stated functions and must submit
such information in a separate report at the time the application is filed. The report
must include:
(i) An assessment of the suitability of the site and the reservoir rim stability
based on geological and subsurface investigations, including investigations of soils
and rock borings and tests for the evaluation of all foundations and construction
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materials sufficient to determine the location and type of dam structure suitable for
the site;
(ii) Copies of boring logs, geology reports and laboratory test reports;
(iii) An identification of all borrow areas and quarry sites and an estimate of
required quantities of suitable construction material;
(iv) Stability and stress analyses for all major structures and critical abutment
slopes under all probable loading conditions, including seismic and hydrostatic
forces induced by water loads up to the Probable Maximum Flood as appropriate;
and
(v) The bases for determination of seismic loading and the Spillway Design
Flood in sufficient detail to permit independent staff evaluation.
(4) The applicant must submit two copies of the supporting design report
described in paragraph (g)(3) of this section at the time preliminary and final design
drawings are submitted to the Commission for review. If the report contains
preliminary drawings, it must be designated a “Preliminary Supporting Design
Report.”
(h) Exhibit G is a map of the project that must conform to the specifications of
§4.39. In addition, to the other components of Exhibit G, the Applicant must provide
the project boundary data in a geo-referenced electronic format—such as ArcView
shape files, GeoMedia files, MapInfo files, or any similar format. The electronic
boundary data must be positionally accurate to ±40 feet, in order to comply with the
National Map Accuracy Standards for maps at a 1:24,000 scale (the scale of USGS
quadrangle maps). The electronic exhibit G data must include a text file describing
the map projection used (i.e., UTM, State Plane, Decimal Degrees, etc.), the map
datum (i.e., feet, meters, miles, etc.). Three sets of the maps must be submitted on
compact disk or other appropriate electronic media. If more than one sheet is used
for the paper maps, the sheets must be numbered consecutively, and each sheet
must bear a small insert sketch showing the entire project and indicate that portion
of the project depicted on that sheet. Each sheet must contain a minimum of three
known reference points. The latitude and longitude coordinates, or state plane
coordinates, of each reference point must be shown. If at any time after the
application is filed there is any change in the project boundary, the applicant must
submit, within 90 days following the completion of project construction, a final exhibit
G showing the extent of such changes. The map must show:
(1) Location of the project and principal features. The map must show the
location of the project as a whole with reference to the affected stream or other body
of water and, if possible, to a nearby town or any other permanent monuments or
objects, such as roads, transmission lines or other structures, that can be noted on
the map and recognized in the field. The map must also show the relative locations
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and physical interrelationships of the principal project works and other features
described under paragraph (b) of this section (Exhibit A).
(2) Project boundary. The map must show a project boundary enclosing all
project works and other features described under paragraph (b) of this section
(Exhibit A) that are to be licensed. If accurate survey information is not available at
the time the application is filed, the applicant must so state, and a tentative
boundary may be submitted. The boundary must enclose only those lands
necessary for operation and maintenance of the project and for other project
purposes, such as recreation, shoreline control, or protection of environmental
resources (see paragraph (f) of this section (Exhibit E)). Existing residential,
commercial, or other structures may be included within the boundary only to the
extent that underlying lands are needed for project purposes (e.g., for flowage,
public recreation, shoreline control, or protection of environmental resources). If the
boundary is on land covered by a public survey, ties must be shown on the map at
sufficient points to permit accurate platting of the position of the boundary relative to
the lines of the public land survey. If the lands are not covered by a public land
survey, the best available legal description of the position of the boundary must be
provided, including distances and directions from fixed monuments or physical
features. The boundary must be described as follows:
(i) Impoundments. (A) The boundary around a project impoundment must be
described by one of the following:
(1) Contour lines, including the contour elevation (preferred method);
(2) Specified courses and distances (metes and bounds);
(3) If the project lands are covered by a public land survey, lines upon or
parallel to the lines of the survey; or
(4) Any combination of the above methods.
(B) The boundary must be located no more than 200 feet (horizontal
measurement) from the exterior margin of the reservoir, defined by the normal
maximum surface elevation, except where deviations may be necessary in
describing the boundary according to the above methods or where additional lands
are necessary for project purposes, such as public recreation, shoreline control, or
protection of environmental resources.
(ii) Continuous features. The boundary around linear (continuous) project
features such as access roads, transmission lines, and conduits may be described
by specified distances from center lines or offset lines of survey. The width of such
corridors must not exceed 200 feet unless good cause is shown for a greater width.
Several sections of a continuous feature may be shown on a single sheet with
information showing the sequence of contiguous sections.
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(iii) Noncontinuous features. (A) The boundary around noncontinuous project
works such as dams, spillways, and powerhouses must be described by one of the
following:
(1) Contour lines;
(2) Specified courses and distances;
(3) If the project lands are covered by a public land survey, lines upon or
parallel to the lines of the survey; or
(4) Any combination of the above methods.
(B) The boundary must enclose only those lands that are necessary for safe
and efficient operation and maintenance of the project or for other specified project
purposes, such as public recreation or protection of environmental resources.
(3) Federal lands. Any public lands and reservations of the United States
(Federal lands) [see 16 U.S.C. 796 (1) and (2)] that are within the project boundary,
such as lands administered by the U.S. Forest Service, Bureau of Land
Management, or National Park Service, or Indian tribal lands, and the boundaries of
those Federal lands, must be identified as such on the map by:
(i) Legal subdivisions of a public land survey of the affected area (a protraction
of identified township and section lines is sufficient for this purpose); and
(ii) The Federal agency, identified by symbol or legend, that maintains or
manages each identified subdivision of the public land survey within the project
boundary; or
(iii) In the absence of a public land survey, the location of the Federal lands
according to the distances and directions from fixed monuments or physical
features. When a Federal survey monument or a Federal bench mark will be
destroyed or rendered unusable by the construction of project works, at least two
permanent, marked witness monuments or bench marks must be established at
accessible points. The maps show the location (and elevation, for bench marks) of
the survey monument or bench mark which will be destroyed or rendered unusable,
as well as of the witness monuments or bench marks. Connecting courses and
distances from the witness monuments or bench marks to the original must also be
shown.
(iv) The project location must include the most current information pertaining to
affected Federal lands as described under §4.81(b)(5).
(4) Non-Federal lands. For those lands within the project boundary not identified
under paragraph (h)(3) of this section, the map must identify by legal subdivision:
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(i) Lands owned in fee by the applicant and lands that the applicant plans to
acquire in fee; and
(ii) Lands over which the applicant has acquired or plans to acquire rights to
occupancy and use other than fee title, including rights acquired or to be acquired by
easement or lease.
[Order 184, 46 FR 55936, Nov. 13, 1981; 48 FR 4459, Feb. 1, 1983, as amended by Order
413, 50 FR 11684, Mar. 25, 1985; Order 464, 52 FR 5449, Feb. 23, 1987; Order 540, 57
FR 21737, May 22, 1992; Order 2002, 68 FR 51119, Aug. 25, 2003; 68 FR 61742, Oct. 30,
2003; 68 FR 63194, Nov. 7, 2003; 68 FR 69957, Dec. 16, 2003; Order 699, 72 FR 45324,
Aug. 14, 2007]
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Subpart F—Application for License for Major Project—Existing
Dam
AUTHORITY: Federal Power Act, as amended (16 U.S.C. 792-828c); Public Utility Regulatory
Policies Act of 1978 (16 U.S.C. 2601-2645); Department of Energy Organization Act (42 U.S.C.
7101-7352); E.O. 12009, 42 FR 46267; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.).
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§4.50 Applicability.
(a) Applicability. (1) Except as provided in paragraph (a)(2) of this section, the
provisions of this subpart apply to any application for either an initial license or new
license for a major project—existing dam that is proposed to have a total installed
capacity of more than 5 megawatts.
(2) This subpart does not apply to any major project—existing dam (see §4.40)
that is proposed to entail or include:
(i) Any repair, modification or reconstruction of an existing dam that would result
in a significant change in the normal maximum surface area or normal maximum
surface elevation of an existing impoundment; or
(ii) Any new development or change in project operation that would result in a
significant environmental impact.
(3) An applicant for license for any major project—existing dam that would have
a total installed capacity of 5 megawatts or less must submit application under
subpart G (§§4.60 and 4.61).
(b) Guidance from Commission staff. A prospective applicant for a major
license—existing dam may seek advice from the Commission staff regarding the
applicability of these sections to its project (see §4.32(h)), including the
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determinations whether any proposed repair or reconstruction of an existing dam
would result in a significant change in the normal maximum surface area or the
normal maximum surface elevation of an existing impoundment, or whether any
proposed new development or change in project operation would result in a
significant environmental impact.
[Order 59, 44 FR 67651, Nov. 27, 1979, as amended by Order 184, 46 FR 55942, Nov. 13,
1981; Order 413, 50 FR 11684, Mar. 25, 1985; Order 499, 53 FR 27002, July 18, 1988]
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§4.51 Contents of application.
An application for license under this subpart must contain the following
information in the form specified. As provided in paragraph (f) of this section, the
appropriate Federal, state, and local resource agencies must be given the
opportunity to comment on the proposed project, prior to filing of the application for
license for major project—existing dam. Information from the consultation process
must be included in this Exhibit E, as appropriate.
(a) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
Application for License for Major Project—Existing Dam
(1) (Name of applicant) applies to the Federal Energy Regulatory Commission for a (license or
new license, as appropriate) for the (name of project) water power project, as described in the
attached exhibits. (Specify any previous FERC project number designation.)
(2) The location of the project is:
State or territory:
County:
Township or nearby town:
Stream or other body of water:
(3) The exact name and business address of the applicant are:
The exact name and business address of each person authorized to act as agent for the
applicant in this application are:
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(4) The applicant is a [citizen of the United States, association of citizens of the United States,
domestic corporation, municipality, or state, as appropriate] and (is/is not) claiming preference
under section 7(a) of the Federal Power Act. See 16 U.S.C. 796.
(5)(i) The statutory or regulatory requirements of the state(s) in which the project would be
located that affect the project as proposed, with respect to bed and banks and to the appropriation,
diversion, and use of water for power purposes, and with respect to the right to engage in the
business of developing, transmitting, and distributing power and in any other business necessary to
accomplish the purposes of the license under the Federal Power Act, are: [Provide citation and brief
identification of the nature of each requirement; if the applicant is a municipality, the applicant must
submit copies of applicable state and local laws or a municipal charter, or, if such laws or
documents are not clear, other appropriate legal authority, evidencing that the municipality is
competent under such laws to engage in the business of developing, transmitting, utilizing, or
distributing power.]
(ii) The steps which the applicant has taken or plans to take to comply with each of the laws
cited above are: (provide brief description for each law).
(6) The applicant must provide the name and address of the owner of any existing project
facilities. If the dam is federally owned or operated, provide the name of the agency.
(b) Exhibit A is a description of the project. This exhibit need not include
information on project works maintained and operated by the U.S. Army Corps of
Engineers, the Bureau of Reclamation, or any other department or agency of the
United States, except for any project works that are proposed to be altered or
modified. If the project includes more than one dam with associated facilities, each
dam and the associated component parts must be described together as a discrete
development. The description for each development must contain:
(1) The physical composition, dimensions, and general configuration of any
dams, spillways, penstocks, powerhouses, tailraces, or other structures, whether
existing or proposed, to be included as part of the project;
(2) The normal maximum surface area and normal maximum surface elevation
(mean sea level), gross storage capacity, and usable storage capacity of any
impoundments to be included as part of the project;
(3) The number, type, and rated capacity of any turbines or generators, whether
existing or proposed, to be included as part of the project;
(4) The number, length, voltage, and interconnections of any primary
transmission lines, whether existing or proposed, to be included as part of the
project (see 16 U.S.C. 796(11));
(5) The specifications of any additional mechanical, electrical, and transmission
equipment appurtenant to the project; and
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(6) All lands of the United States that are enclosed within the project boundary
described under paragraph (h) of this section (Exhibit G), identified and tabulated by
legal subdivisions of a public land survey of the affected area or, in the absence of a
public land survey, by the best available legal description. The tabulation must show
the total acreage of the lands of the United States within the project boundary.
(c) Exhibit B is a statement of project operation and resource utilization. If the
project includes more than one dam with associated facilities, the information must
be provided separately for each such discrete development. The exhibit must
contain:
(1) A statement whether operation of the powerplant will be manual or
automatic, an estimate of the annual plant factor, and a statement of how the project
will be operated during adverse, mean, and high water years;
(2) An estimate of the dependable capacity and average annual energy
production in kilowatt-hours (or a mechanical equivalent), supported by the following
data:
(i) The minimum, mean, and maximum recorded flows in cubic feet per second
of the stream or other body of water at the powerplant intake or point of diversion,
with a specification of any adjustments made for evaporation, leakage, minimum
flow releases (including duration of releases), or other reductions in available flow;
monthly flow duration curves indicating the period of record and the gauging stations
used in deriving the curves; and a specification of the period of critical streamflow
used to determine the dependable capacity;
(ii) An area-capacity curve showing the gross storage capacity and usable
storage capacity of the impoundment, with a rule curve showing the proposed
operation of the impoundment and how the usable storage capacity is to be utilized;
(iii) The estimated hydraulic capacity of the powerplant (minimum and maximum
flow through the powerplant) in cubic feet per second;
(iv) A tailwater rating curve; and
(v) A curve showing powerplant capability versus head and specifying
maximum, normal, and minimum heads;
(3) A statement, with load curves and tabular data, if necessary, of the manner
in which the power generated at the project is to be utilized, including the amount of
power to be used on-site, if any, the amount of power to be sold, and the identity of
any proposed purchasers; and
(4) A statement of the applicant's plans, if any, for future development of the
project or of any other existing or proposed water power project on the stream or
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other body of water, indicating the approximate location and estimated installed
capacity of the proposed developments.
(d) Exhibit C is a construction history and proposed construction schedule for
the project. The construction history and schedules must contain:
(1) If the application is for an initial license, a tabulated chronology of
construction for the existing projects structures and facilities described under
paragraph (b) of this section (Exhibit A), specifying for each structure or facility, to
the extent possible, the actual or approximate dates (approximate dates must be
identified as such) of:
(i) Commencement and completion of construction or installation;
(ii) Commencement of commercial operation; and
(iii) Any additions or modifications other than routine maintenance; and
(2) If any new development is proposed, a proposed schedule describing the
necessary work and specifying the intervals following issuance of a license when the
work would be commenced and completed.
(e) Exhibit D is a statement of costs and financing. The statement must contain:
(1) If the application is for an initial license, a tabulated statement providing the
actual or approximate original cost (approximate costs must be identified as such)
of:
(i) Any land or water right necessary to the existing project; and
(ii) Each existing structure and facility described under paragraph (b) of this
section (Exhibit A).
(2) If the applicant is a licensee applying for a new license, and is not a
municipality or a state, an estimate of the amount which would be payable if the
project were to be taken over pursuant to section 14 of the Federal Power Act upon
expiration of the license in effect [see 16 U.S.C. 807], including:
(i) Fair value;
(ii) Net investment; and
(iii) Severance damages.
(3) If the application includes proposals for any new development, a statement
of estimated costs, including:
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(i) The cost of any land or water rights necessary to the new development; and
(ii) The cost of the new development work, with a specification of:
(A) Total cost of each major item;
(B) Indirect construction costs such as costs of construction equipment, camps,
and commissaries;
(C) Interest during construction; and
(D) Overhead, construction, legal expenses, taxes, administrative and general
expenses, and contingencies.
(4) A statement of the estimated average annual cost of the total project as
proposed specifying any projected changes in the costs (life-cycle costs) over the
estimated financing or licensing period if the applicant takes such changes into
account, including:
(i) Cost of capital (equity and debt);
(ii) Local, state, and Federal taxes;
(iii) Depreciation and amortization;
(iv) Operation and maintenance expenses, including interim replacements,
insurance, administrative and general expenses, and contingencies; and
(v) The estimated capital cost and estimated annual operation and maintenance
expense of each proposed environmental measure.
(5) A statement of the estimated annual value of project power, based on a
showing of the contract price for sale of power or the estimated average annual cost
of obtaining an equivalent amount of power (capacity and energy) from the lowest
cost alternative source, specifying any projected changes in the cost of power from
that source over the estimated financing or licensing period if the applicant takes
such changes into account.
(6) A statement specifying the sources and extent of financing and annual
revenues available to the applicant to meet the costs identified in paragraphs (e) (3)
and (4) of this section.
(7) An estimate of the cost to develop the license application;
(8) The on-peak and off-peak values of project power, and the basis for
estimating the values, for projects which are proposed to operate in a mode other
than run-of-river; and
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(9) The estimated average annual increase or decrease in project generation,
and the estimated average annual increase or decrease of the value of project
power, due to a change in project operations (i.e., minimum bypass flows; limits on
reservoir fluctuations).
(f) Exhibit E is an Environmental Report. Information provided in the report must
be organized and referenced according to the itemized subparagraphs below. See
§4.38 for consultation requirements. The Environmental Report must contain the
following information, commensurate with the scope of the proposed project:
(1) General description of the locale. The applicant must provide a general
description of the environment of the project and its immediate vicinity. The
description must include general information concerning climate, topography,
wetlands, vegetative cover, land development, population size and density, the
presence of any floodplain and the occurrence of flood events in the vicinity of the
project, and any other factors important to an understanding of the setting.
(2) Report on water use and quality. The report must discuss the consumptive
use of project waters and the impact of the project on water quality. The report must
be prepared in consultation with the state and Federal agencies with responsibility
for management of water quality in the affected stream or other body of water.
Consultation must be documented by appending to the report a letter from each
agency consulted that indicates the nature, extent, and results of the consultation.
The report must include:
(i) A description (including specified volume over time) of existing and proposed
uses of project waters for irrigation, domestic water supply, steam-electric plant,
industrial, and other consumptive purposes;
(ii) A description of existing water quality in the project impoundment and
downstream water affected by the project and the applicable water quality standards
and stream segment classifications;
(iii) A description of any minimum flow releases specifying the rate of flow in
cubic feet per second (cfs) and duration, changes in the design of project works or in
project operation, or other measures recommended by the agencies consulted for
the purposes of protecting or improving water quality, including measures to
minimize the short-term impacts on water quality of any proposed new development
of project works (for any dredging or filling, refer to 40 CFR part 230 and 33 CFR
320.3(f) and 323.3(e))1;
1
33 CFR part 323 was revised at 47 FR 31810, July 22, 1982, and §323.3(e) no longer exists.
(iv) A statement of the existing measures to be continued and new measures
proposed by the applicant for the purpose of protecting or improving water quality,
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including an explanation of why the applicant has rejected any measures
recommended by an agency and described under paragraph (f)(2)(iii) of this section.
(v) A description of the continuing impact on water quality of continued
operation of the project and the incremental impact of proposed new development of
project works or changes in project operation; and
(3) Report on fish, wildlife, and botanical resources. The report must discuss
fish, wildlife, and botanical resources in the vicinity of the project and the impact of
the project on those resources. The report must be prepared in consultation with any
state agency with responsibility for fish, wildlife, and botanical resources, the U.S.
Fish and Wildlife Service, the National Marine Fisheries Service (if the project may
affect anadromous fish resources subject to that agency's jurisdiction), and any
other state or Federal agency with managerial authority over any part of the project
lands. Consultation must be documented by appending to the report a letter from
each agency consulted that indicates the nature, extent, and results of the
consultation. The report must include:
(i) A description of the fish, wildlife, and botanical resources of the project and
its vicinity, and of downstream areas affected by the project, including identification
of any species listed as threatened or endangered by the U.S. Fish and Wildlife
Service (See 50 CFR 17.11 and 17.12);
(ii) A description of any measures or facilities recommended by the agencies
consulted for the mitigation of impacts on fish, wildlife, and botanical resources, or
for the protection or improvement of those resources;
(iii) A statement of any existing measures or facilities to be continued or
maintained and any measures or facilities proposed by the applicant for the
mitigation of impacts on fish, wildlife, and botanical resources, or for the protection
or improvement of such resources, including an explanation of why the applicant
has rejected any measures or facilities recommended by an agency and described
under paragraph (f)(3)(ii) of this section.
(iv) A description of any anticipated continuing impact on fish, wildlife, and
botanical resources of continued operation of the project, and the incremental
impact of proposed new development of project works or changes in project
operation; and
(v) The following materials and information regarding the measures and
facilities identified under paragraph (f)(3)(iii) of this section:
(A) Functional design drawings of any fish passage and collection facilities,
indicating whether the facilities depicted are existing or proposed (these drawings
must conform to the specifications of §4.39 regarding dimensions of full-sized prints,
scale, and legibility);
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(B) A description of operation and maintenance procedures for any existing or
proposed measures or facilities;
(C) An implementation or construction schedule for any proposed measures or
facilities, showing the intervals following issuance of a license when implementation
of the measures or construction of the facilities would be commenced and
completed;
(D) An estimate of the costs of construction, operation, and maintenance, of any
proposed facilities, and of implementation of any proposed measures, including a
statement of the sources and extent of financing; and
(E) A map or drawing that conforms to the size, scale, and legibility
requirements of §4.39 showing by the use of shading, cross-hatching, or other
symbols the identity and location of any measures or facilities, and indicating
whether each measure or facility is existing or proposed (the map or drawings in this
exhibit may be consolidated).
(4) Report on historical and archeological resources. The report must discuss
the historical and archeological resources in the project area and the impact of the
project on those resources. The report must be prepared in consultation with the
State Historic Preservation Officer and the National Park Service. Consultation must
be documented by appending to the report a letter from each agency consulted that
indicates the nature, extent, and results of the consultation. The report must contain:
(i) Identification of any sites either listed or determined to be eligible for
inclusion in the National Register of Historic Places that are located in the project
area, or that would be affected by operation of the project or by new development of
project facilities (including facilities proposed in this exhibit);
(ii) A description of any measures recommended by the agencies consulted for
the purpose of locating, identifying, and salvaging historical or archaeological
resources that would be affected by operation of the project, or by new development
of project facilities (including facilities proposed in this exhibit), together with a
statement of what measures the applicant proposes to implement and an
explanation of why the applicant rejects any measures recommended by an agency.
(iii) The following materials and information regarding the survey and salvage
activities described under paragraph (f)(4)(ii) of this section:
(A) A schedule for the activities, showing the intervals following issuance of a
license when the activities would be commenced and completed; and
(B) An estimate of the costs of the activities, including a statement of the
sources and extent of financing.
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(5) Report on recreational resources. The report must discuss existing and
proposed recreational facilities and opportunities at the project. The report must be
prepared in consultation with local, state, and regional recreation agencies and
planning commissions, the National Park Service, and any other state or Federal
agency with managerial authority over any part of the project lands. Consultation
must be documented by appending to the report a letter from each agency
consulted indicating the nature, extent, and results of the consultation. The report
must contain:
(i) A description of any existing recreational facilities at the project, indicating
whether the facilities are available for public use;
(ii) An estimate of existing and potential recreational use of the project area, in
daytime and overnight visits;
(iii) A description of any measures or facilities recommended by the agencies
consulted for the purpose of creating, preserving, or enhancing recreational
opportunities at the project and in its vicinity (including opportunities for the
handicapped), and for the purpose of ensuring the safety of the public in its use of
project lands and waters;
(iv) A statement of the existing measures or facilities to be continued or
maintained and the new measures or facilities proposed by the applicant for the
purpose of creating, preserving, or enhancing recreational opportunities at the
project and in its vicinity, and for the purpose of ensuring the safety of the public in
its use of project lands and waters, including an explanation of why the applicant
has rejected any measures or facilities recommended by an agency and described
under paragraph (f)(5)(iii) of this section; and
(v) The following materials and information regarding the measures and
facilities identified under paragraphs (f)(5) (i) and (iv) of this section:
(A) Identification of the entities responsible for implementing, constructing,
operating, or maintaining any existing or proposed measures or facilities;
(B) A schedule showing the intervals following issuance of a license at which
implementation of the measures or construction of the facilities would be
commenced and completed;
(C) An estimate of the costs of construction, operation, and maintenance of any
proposed facilities, including a statement of the sources and extent of financing;
(D) A map or drawing that conforms to the size, scale, and legibility
requirements of §4.39 showing by the use of shading, cross-hatching, or other
symbols the identity and location of any facilities, and indicating whether each facility
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is existing or proposed (the maps or drawings in this exhibit may be consolidated);
and
(vi) A description of any areas within or in the vicinity of the proposed project
boundary that are included in, or have been designated for study for inclusion in, the
National Wild and Scenic Rivers System, or that have been designated as
wilderness area, recommended for such designation, or designated as a wilderness
study area under the Wilderness Act.
(6) Report on land management and aesthetics. The report must discuss the
management of land within the proposed project boundary, including wetlands and
floodplains, and the protection of the recreational and scenic values of the project.
The report must be prepared following consultation with local and state zoning and
land management authorities and any Federal or state agency with managerial
authority over any part of the project lands. Consultation must be documented by
appending to the report a letter from each agency consulted indicating the nature,
extent, and results of the consultation. The report must contain:
(i) A description of existing development and use of project lands and all other
lands abutting the project impoundment;
(ii) A description of the measures proposed by the applicant to ensure that any
proposed project works, rights-of-way, access roads, and other topographic
alterations blend, to the extent possible, with the surrounding environment; (see,
e.g., 44 F.P.C. 1496, et seq.);
(iii) A description of wetlands or floodplains within, or adjacent to, the project
boundary, any short-term or long-term impacts of the project on those wetlands or
floodplains, and any mitigative measures in the construction or operation of the
project that minimize any adverse impacts on the wetlands or floodplains;
(iv) A statement, including an analysis of costs and other constraints, of the
applicant's ability to provide a buffer zone around all or any part of the
impoundment, for the purpose of ensuring public access to project lands and waters
and protecting the recreational and aesthetic values of the impoundment and its
shoreline;
(v) A description of the applicant's policy, if any, with regard to permitting
development of piers, docks, boat landings, bulkheads, and other shoreline facilities
on project lands and waters; and
(vi) Maps or drawings that conform to the size, scale and legibility requirements
of §4.39, or photographs, sufficient to show the location and nature of the measures
proposed under paragraph (f)(6)(ii) of this section (maps or drawings in this exhibit
may be consolidated).
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(7) List of literature. The report must include a list of all publications, reports,
and other literature which were cited or otherwise utilized in the preparation of any
part of the environmental report.
(g) Exhibit F. See §4.41(g) of this chapter.
(h) Exhibit G. See §4.41(h) of this chapter.
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 123, 46 FR 9029, Jan. 28,
1981; Order 183, 46 FR 55251, Nov. 9, 1981; Order 184, 46 FR 55942, Nov. 13, 1981;
Order 413, 50 FR 11684, Mar. 25, 1985; Order 464, 52 FR 5449, Feb. 23, 1987; Order 540,
57 FR 21737, May 22, 1992; Order 2002, 68 FR 51120, Aug. 25, 2003; 68 FR 61742, Oct.
30, 2003]
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Subpart G—Application for License for Minor Water Power
Projects and Major Water Power Projects 5 Megawatts or Less
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§4.60 Applicability and notice to agencies.
(a) Applicability. The provisions of this subpart apply to any application for an
initial license or a new license for:
(1) A minor water power project, as defined in §4.30(b)(17);
(2) Any major project—existing dam, as defined in §4.30(b)(16), that has a total
installed capacity of 5 MW or less; or
(3) Any major unconstructed project or major modified project, as defined in
§4.30 (b) (15) and (14) respectively, that has a total installed capacity of 5 MW or
less.
(b) Notice to agencies. The Commission will supply interested Federal, state,
and local agencies with notice of any application for license for a water power
project 5 MW or less and request comment on the application. Copies of the
application will be available for inspection at the Commission's Public Reference
Room. The applicant shall also furnish copies of the filed application to any Federal,
state, or local agency that so requests.
(c) Unless an applicant for a license for a minor water power project requests in
its application that the Commission apply the following provisions of Part I of the
Federal Power Act when it issues a minor license for a project, the Commission,
unless it determines it would not be in the public interest to do so, will waive:
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(1) Section 4(b), insofar as it requires a licensee to file a statement showing the
actual legitimate costs of construction of a project;
(2) Section 4(e), insofar as it relates to approval by the Chief of Engineers and
the Secretary of the Army of plans affecting navigation;
(3) Section 6, insofar as it relates to the acceptance and expression in the
license of terms and conditions of the Federal Power Act that are waived in the
licensing order;
(4) Section 10(c), insofar as it relates to a licensee's maintenance of
depreciation reserves;
(5) Sections 10(d) and 10(f);
(6) Section 14, with the exception of the right of the United States or any state
or municipality to take over, maintain, and operate a project through condemnation
proceedings; and
(7) Sections 15, 16, 19, 20 and 22.
[Order 413, 50 FR 11685, Mar. 25, 1985, as amended by Order 513, 54 FR 23806, June 2,
1989; Order 2002, 68 FR 51120, Aug. 25, 2003]
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§4.61 Contents of application.
(a) General instructions—(1) Entry upon land. No work may be started on any
proposed project works until the applicant receives a signed license from the
Commission. Acceptance of an application does not authorize entry upon public
lands or reservations of the United States for any purpose. The applicant should
determine whether any additional Federal, state, or local permits are required.
(2) Exhibits F and G must be submitted on separate drawings. Drawings for
Exhibits F and G must have identifying title blocks and bear the following
certification: “This drawing is a part of the application for license made by the
undersigned this _______ day of _______, 19__.”
(3) Each application for a license for a water power project 5 megawatts or less
must include the information requested in the initial statement and lettered exhibits
described by paragraphs (b) through (f) of this section, and must be provided in the
form specified. The Commission reserves the right to require additional information,
or another filing procedure, if data provided indicate such action to be appropriate.
(b) Initial statement.
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BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
Application for License for a [Minor Water Power Project, or Major Water Power
Project, 5 Megawatts or Less, as Appropriate]
(1) _____ (Name of Applicant) applies to the Federal Energy Regulatory Commission for _____
(license or new license, as appropriate) for the _____ (name of project) water power project, as
described hereinafter. (Specify any previous FERC project number designation.)
(2) The location of the project is:
State or territory:
County:
Township or nearby town:
Stream or other body of water:
(3) The exact name, address, and telephone number of the applicant are:
(4) The exact name, address, and telephone number of each person authorized to act as agent
for the applicant in this application, if applicable, are:
(5) The applicant is a ___ [citizen of the United States, association of citizens of the United
States, domestic corporation, municipality, or State, as appropriate] and (is/is not) claiming
preference under section 7(a) of the Federal Power Act. See 16 U.S.C. 796.
(6)(i) The statutory or regulatory requirements of the state(s) in which the project would be
located that affect the project as proposed with respect to bed and banks and the appropriation,
diversion, and use of water for power purposes, and with respect to the right to engage in the
business of developing, transmitting, and distributing power and in any other business necessary to
accomplish the purposes of the license under the Federal Power Act, are: [provide citation and brief
identification of the nature of each requirement; if the applicant is a municipality, the applicant must
submit copies of applicable state or local laws or a municipal charter or, if such laws or documents
are not clear, any other appropriate legal authority, evidencing that the municipality is competent
under such laws to engage in the business of developing, transmitting, utilizing, or distributing
power.]
(ii) The steps which the applicant has taken or plans to take to comply with each of the laws
cited above are: [provide brief description for each requirement]
(7) Brief project description
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(i) Proposed installed generating capacity ___ MW.
(ii) Check appropriate box:
☐ existing dam
☐ unconstructed dam
☐ existing dam, major modified project (see §4.30(b)(14))
(8) Lands of the United States affected (shown on Exhibit G):
(Name)
(Acres)
(i) National Forest
(ii) Indian Reservation
(iii) Public Lands Under Jurisdiction of
(iv) Other
(v) Total U.S. Lands
(vi) Check appropriate box:
☐ Surveyed land
☐ Unsurveyed land
(9) Construction of the project is planned to start within __ months, and is planned to be
completed within __ months, from the date of issuance of license.
(c) Exhibit A is a description of the project and the proposed mode of operation.
(1) The exhibit must include, in tabular form if possible, as appropriate:
(i) The number of generating units, including auxiliary units, the capacity of each
unit, and provisions, if any, for future units;
(ii) The type of hydraulic turbine(s);
(iii) A description of how the plant is to be operated, manual or automatic, and
whether the plant is to be used for peaking;
(iv) The estimated average annual generation in kilowatt-hours or mechanical
energy equivalent;
(v) The estimated average head on the plant;
(vi) The reservoir surface area in acres and, if known, the net and gross storage
capacity;
(vii) The estimated minimum and maximum hydraulic capacity of the plant (flow
through the plant) in cubic feet per second and estimated average flow of the stream
or water body at the plant or point of diversion; for projects with installed capacity of
more than 1.5 megawatts, monthly flow duration curves and a description of the
drainage area for the project site must be provided;
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(viii) Sizes, capacities, and construction materials, as appropriate, of pipelines,
ditches, flumes, canals, intake facilities, powerhouses, dams, transmission lines,
and other appurtenances; and
(ix) The estimated cost of the project.
(x) The estimated capital costs and estimated annual operation and
maintenance expense of each proposed environmental measure.
(2) State the purposes of project (for example, use of power output).
(3) An estimate of the cost to develop the license application; and
(4) The on-peak and off-peak values of project power, and the basis for
estimating the values, for projects which are proposed to operate in a mode other
than run-of-river.
(5) The estimated average annual increase or decrease in project generation,
and the estimated average annual increase or decrease of the value of project
power due to a change in project operations (i.e., minimum bypass flows, limiting
reservoir fluctuations) for an application for a new license;
(6) The remaining undepreciated net investment, or book value of the project;
(7) The annual operation and maintenance expenses, including insurance, and
administrative and general costs;
(8) A detailed single-line electrical diagram;
(9) A statement of measures taken or planned to ensure safe management,
operation, and maintenance of the project.
(d) Exhibit E is an Environmental Report.
(1) For major unconstructed and major modified projects 5 MW or less. Any
application must contain an Exhibit E conforming with the data and consultation
requirements of §4.41(f) of this chapter, if the application is for license for a water
power project which has or is proposed to have a total installed generating capacity
greater than 1.5 MW but not greater than 5 MW, and which:
(i) Would use the water power potential of a dam and impoundment which, at
the time of application, has not been constructed (see §4.30(b)(15)); or
(ii) Involves any repair, modification or reconstruction of an existing dam that
would result in a significant change in the normal maximum surface area or
elevation of an existing impoundment or involves any change in existing project
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works or operations that would result in a significant environmental impact (see
§4.30(b)(14)).
(2) For minor projects and major projects at existing dams 5 MW or less. An
application for license for either a minor water power project with a total proposed
installed generating capacity of 1.5 MW or less or a major project—existing dam
with a proposed total installed capacity of 5 MW or less must contain an Exhibit E
under this subparagraph. See §4.38 for consultation requirements. The
Environmental Report must contain the following information:
(i) A description, including any maps or photographs which the applicant
considers appropriate, of the environmental setting of the project, including
vegetative cover, fish and wildlife resources, water quality and quantity, land and
water uses, recreational uses, historical and archeological resources, and scenic
and aesthetic resources. The report must include a discussion of endangered or
threatened plant and animal species, any critical habitats, and any sites included in,
or eligible for inclusion in, the National Register of Historic Places. The applicant
may obtain assistance in the preparation of this information from state natural
resources agencies, the state historic preservation officer, and from local offices of
Federal natural resources agencies.
(ii) A description of the expected environmental impacts from proposed
construction or development and the proposed operation of the power project,
including any impacts from any proposed changes in the capacity and mode of
operation of the project if it is already generating electric power, and an explanation
of the specific measures proposed by the applicant, the agencies, and others to
protect and enhance environmental resources and values and to mitigate adverse
impacts of the project on such resources. The applicant must explain its reasons for
not undertaking any measures proposed by any agency consulted.
(iii) A description of the steps taken by the applicant in consulting with Federal,
state, and local agencies with expertise in environmental matters during the
preparation of this exhibit prior to filing the application for license with the
Commission. In this report, the applicant must:
(A) Indicate which agencies were consulted during the preparation of the
environmental report and provide copies of letters or other documentation showing
that the applicant consulted or attempted to consult with each of the relevant
agencies (specifying each agency) before filing the application, including any terms
or conditions of license that those agencies have determined are appropriate to
prevent loss of, or damage to, natural resources; and
(B) List those agencies that were provided copies of the application as filed with
the Commission, the date or dates provided, and copies of any letters that may be
received from agencies commenting on the application.
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(iv) Any additional information the applicant considers important.
(e) Exhibit F. See §4.41(g) of this chapter.
(f) Exhibit G. See §4.41(h) of this chapter.
[Order 185, 46 FR 55949, Nov. 13, 1981, as amended by Order 413, 50 FR 11685, Mar.
25, 1985; Order 464, 52 FR 5449, Feb. 23, 1987; Order 513, 54 FR 23806, June 2, 1989;
Order 2002, 68 FR 51120, Aug. 25, 2003; 68 FR 61742, Oct. 30, 2003]
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Subpart H—Application for License for Transmission Line Only
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§4.70 Applicability.
This subpart applies to any application for license issued solely for a
transmission line that transmits power from a licensed water power project to the
point of junction with the distribution system or with the interconnected primary
transmission system.
[Order 184, 46 FR 55942, Nov. 13, 1981, as amended by Order 2002, 68 FR 51120, Aug.
25, 2003; 68 FR 61742, Oct. 30, 2003]
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§4.71 Contents of application.
An application for license for transmission line only must contain the following
information in the form specified.
(a) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATION COMMISSION
Application for License for Transmission Line Only
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for a [license or
new license, as appropriate] for the [name of project] transmission line only, as described in the
attached exhibits, that is connected with FERC Project No. ___, for which a license [was issued, or
application was made, as appropriate] on the _______ day of _______, 19__.
(2) The location of the transmission line would be:
State or territory:
County:
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Township or nearby town:
(3) The proposed use or market for the power to be transmitted.
(4) The exact name, business address, and telephone number of the applicant are:
(5) The applicant is a [citizen of the United States, association of citizens of the United States,
domestic corporation, municipality, or State, as appropriate] and (is/is not) claiming preference
under section 7(a) of the Federal Power Act. See 16 U.S.C. 796.
(6)(i) [For any applicant which, at the time of application for license for transmission line only, is
a non-licensee.] The statutory or regulatory requirements of the state(s) in which the project would
be located and that affect the project as proposed with respect to bed and banks and to the
appropriation, diversion, and use of water for power purposes, and with respect to the right to
engage in the business of developing, transmitting, and distributing power and in any other
business necessary to accomplish the purposes of the license under the Federal Power Act, are:
[provide citation and brief identification of the nature of each requirement; if the applicant is a
municipality, the applicant must submit copies of applicable state or local laws or a municipal
charter or, if such laws or documents are not clear, other appropriate legal authority, evidencing that
the municipality is competent under such laws to engage in the business of developing,
transmitting, utilizing, or distributing power.]
(ii) [For any applicant which, at the time of application for license for transmission line only, is a
licensee.] The statutory or regulatory requirements of the state(s) in which the transmission line
would be located and that affect the project as proposed with respect to bed and banks and to the
appropriation, diversion, and use of water for power purposes, are: [provide citations and brief
identification of the nature of each requirement.]
(iii) The steps which the applicant has taken or plans to take to comply with each of the laws
cited above are: [provide brief descriptions for each law.]
(b) Required exhibits. The application must contain the following exhibits, as
appropriate:
(1) For any transmission line that, at the time the application is filed, is not
constructed and is proposed to be connected to a licensed water power project with
an installed generating capacity of more than 5 MW—Exhibits A, B, C, D, E, F, and
G under §4.41 of this chapter;
(2) For any transmission line that, at the time the application is filed, is not
constructed and is proposed to be connected to a licensed water power project with
an installed generating capacity of 5 MW or less—Exhibits E, F, and G under §4.61
of this chapter; and
(3) For any transmission line that, at the time the application is filed, has been
constructed and is proposed to be connected to any licensed water power
project—Exhibits E, F, and G under §4.61 of this chapter.
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[Order 184, 46 FR 55942, Nov. 13, 1981, as amended by Order 413, 50 FR 11685, Mar.
25, 1985; Order 699, 72 FR 45324, Aug. 14, 2007]
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Subpart I—Application for Preliminary Permit; Amendment and
Cancellation of Preliminary Permit
AUTHORITY: Federal Power Act, as amended 16 U.S.C. 792-828c; Department of Energy
Organization Act, 42 U.S.C. 7101-7352; E.O. 12009, 42 FR 46267; Public Utility Regulatory Policies
Act of 1978, 16 U.S.C. 2601-2645, unless otherwise noted.
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§4.80 Applicability.
Sections 4.80 through 4.83 pertain to preliminary permits under Part I of the
Federal Power Act. The sole purpose of a preliminary permit is to secure priority of
application for a license for a water power project under Part I of the Federal Power
Act while the permittee obtains the data and performs the acts required to determine
the feasibility of the project and to support an application for a license.
[Order 54, 44 FR 61336, Oct. 25, 1979, as amended by Order 413, 50 FR 11685, Mar. 25,
1985]
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§4.81 Contents of application.
Each application for a preliminary permit must include the following initial
statement and numbered exhibits containing the information and documents
specified:
(a) Initial statement:
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
Application for Preliminary Permit
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for a preliminary
permit for the proposed [name of project] water power project, as described in the attached exhibits.
This application is made in order that the applicant may secure and maintain priority of application
for a license for the project under Part I of the Federal Power Act while obtaining the data and
performing the acts required to determine the feasibility of the project and to support an application
for a license.
(2) The location of the proposed project is:
State or territory:
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County:
Township or nearby town:
Stream or other body of water:
(3) The exact name, business address, and telephone number of the applicant are:
The exact name and business address of each person authorized to act as agent for the
applicant in this application are:
(4) [Name of applicant] is a [citizen, association, citizens, domestic corporation, municipality, or
State, as appropriate] and (is/is not) claiming preference under section 7(a) of the Federal Power
Act. [If the applicant is a municipality, the applicant must submit copies of applicable state or local
laws or a municipal charter or, if such laws or documents are not clear, any other appropriate legal
authority, evidencing that the municipality is competent under such laws to engage in the business
of development, transmitting, utilizing, or distributing power].
(5) The proposed term of the requested permit is [period not to exceed 48 months].
(6) If there is any existing dam or other project facility, the applicant must provide the name and
address of the owner of the dam and facility. If the dam is federally owned or operated, provide the
name of the agency.
(b) Exhibit 1 must contain a description of the proposed project, specifying and
including, to the extent possible:
(1) The number, physical composition, dimensions, general configuration and,
where applicable, age and condition, of any dams, spillways, penstocks,
powerhouses, tailraces, or other structures, whether existing or proposed, that
would be part of the project;
(2) The estimated number, surface area, storage capacity, and normal
maximum surface elevation (mean sea level) of any reservoirs, whether existing or
proposed, that would be part of the project;
(3) The estimated number, length, voltage, interconnections, and, where
applicable, age and condition, of any primary transmission lines whether existing or
proposed, that would be part of the project [see 16 U.S.C. 796(11)];
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(4) The total estimated average annual energy production and installed capacity
(provide only one energy and capacity value), the hydraulic head for estimating
capacity and energy output, and the estimated number, rated capacity, and, where
applicable, the age and condition, of any turbines and generators, whether existing
or proposed, that would be part of the project works;
(5) All lands of the United States that are enclosed within the proposed project
boundary described under paragraph (d)(3)(i) of this section, identified and tabulated
on a separate sheet by legal subdivisions of a public land survey of the affected
area, if available. If the project boundary includes lands of the United States, such
lands must be identified on a completed land description form (FERC Form 587),
provided by the Commission. The project location must identify any Federal
reservation, Federal tracts, and townships of the public land surveys (or official
protractions thereof if unsurveyed). A copy of the form must also be sent to the
Bureau of Land Management state office where the project is located;
(6) Any other information demonstrating in what manner the proposed project
would develop, conserve, and utilize in the public interest the water resources of the
region.
(c) Exhibit 2 is a description of studies conducted or to be conducted with
respect to the proposed project, including field studies. Exhibit 2 must supply the
following information:
(1) General requirement. For any proposed project, a study plan containing a
description of:
(i) Any studies, investigations, tests, or surveys that are proposed to be carried
out, and any that have already taken place, for the purposes of determining the
technical, economic, and financial feasibility of the proposed project, taking into
consideration its environmental impacts, and of preparing an application for a
license for the project; and
(ii) The approximate locations and nature of any new roads that would be built
for the purpose of conducting the studies; and
(2) Work plan for new dam construction. For any development within the project
that would entail new dam construction, a work plan and schedule containing:
(i) A description, including the approximate location, of any field study, test, or
other activity that may alter or disturb lands or waters in the vicinity of the proposed
project, including floodplains and wetlands; measures that would be taken to
minimize any such disturbance; and measures that would be taken to restore the
altered or disturbed areas; and
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(ii) A proposed schedule (a chart or graph may be used), the total duration of
which does not exceed the proposed term of the permit, showing the intervals at
which the studies, investigations, tests, and surveys, identified under this paragraph
are proposed to be completed.
(iii) For purposes of this paragraph, new dam construction means any dam
construction the studies for which would require test pits, borings, or other
foundation exploration in the field.
(3) Waiver. The Commission may waive the requirements of paragraph (c)(2)
pursuant to §385.207 of this chapter, upon a showing by the applicant that the field
studies, tests, and other activities to be conducted under the permit would not
adversely affect cultural resources or endangered species and would cause only
minor alterations or disturbances of lands and waters, and that any land altered or
disturbed would be adequately restored.
(4) Exhibit 2 must contain a statement of costs and financing, specifying and
including, to the extent possible:
(i) The estimated costs of carrying out or preparing the studies, investigations,
tests, surveys, maps, plans or specifications identified under paragraph (c) of this
section;
(ii) The expected sources and extent of financing available to the applicant to
carry out or prepare the studies, investigations, tests, surveys, maps, plans, or
specifications identified under paragraph (c) of this section; and
(d) Exhibit 3 must include a map or series of maps, to be prepared on United
States Geological Survey topographic quadrangle sheets or similar topographic
maps of a State agency, if available. The maps need not conform to the precise
specifications of §4.39 (a) and (b). If the scale of any base map is not sufficient to
show clearly and legibly all of the information required by this paragraph, the maps
submitted must be enlarged to a scale that is adequate for that purpose. (If Exhibit 3
comprises a series of maps, it must also include an index sheet showing, by outline,
the parts of the entire project covered by each map of the series.) The maps must
show:
(1) The location of the project as a whole with reference to the affected stream
or other body of water and, if possible, to a nearby town or any permanent
monuments or objects that can be noted on the maps and recognized in the field;
(2) The relative locations and physical interrelationships of the principal project
features identified under paragraph (b) of this section;
(3) A proposed boundary for the project, enclosing:
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(i) All principal project features identified under paragraph (b) of this section,
including but not limited to any dam, reservoir, water conveyance facilities,
powerplant, transmission lines, and other appurtenances; if the project is located at
an existing Federal dam, the Federal dam and impoundment must be shown, but
may not be included within the project boundary;
(ii) Any non-Federal lands and any public lands or reservations of the United
States [see 16 U.S.C. 796 (1) and (2)] necessary for the purposes of the project. To
the extent that those public lands or reservations are covered by a public land
survey, the project boundary must enclose each of and only the smallest legal
subdivisions (quarter-quarter section, lots, or other subdivisions, identified on the
map by subdivision) that may be occupied in whole or in part by the project.
(4) Areas within or in the vicinity of the proposed project boundary which are
included in or have been designated for study for inclusion in the National Wild and
Scenic Rivers System; and
(5) Areas within the project boundary that, under the provisions of the
Wilderness Act, have been:
(i) Designated as wilderness area;
(ii) Recommended for designation as wilderness area; or
(iii) Designated as wilderness study area.
(Federal Power Act, as amended, 16 U.S.C. 792-828c (1976); Department of Energy
Organization Act, 42 U.S.C. 7101-7352 (Supp. IV 1980); E.O. 12009, 3 CFR part 142
(1978); 5 U.S.C. 553 (Supp. IV 1980))
[Order 54, 44 FR 61336, Oct. 25, 1979, as amended by Order 123, 46 FR 9029, Jan. 28,
1981; 46 FR 11811, Feb. 11, 1981; Order 225, 47 FR 19056, May 3, 1982; Order 413, 50
FR 11685, Mar. 25, 1985; Order 2002, 68 FR 51120, Aug. 25, 2003; Order 655, 70 FR
33828, June 10, 2005; Order 699, 72 FR 45324, Aug. 14, 2007; Order 756, 77 FR 4894,
Feb. 1, 2012; Order 857, 84 FR 7991, Mar. 6, 2019]
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§4.82 Amendments.
(a) Any permittee may file an application for amendment of its permit, including
any extension of the term of the permit that would not cause the total term to exceed
eight years. (Transfer of a permit is prohibited by section 5 of the Federal Power
Act.) Each application for amendment of a permit must conform to any relevant
requirements of §4.81 (b), (c), and (d).
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(b) If an application for amendment of a preliminary permit requests any
material change in the proposed project, public notice of the application will be
issued as required in §4.32(d)(2)(i).
(c) If an application to extend the term of a permit is submitted not less than 30
days prior to the termination of the permit, the permit term will be automatically
extended (not to exceed a total term for the permit of eight years) until the
Commission acts on the application for an extension. The Commission will not
accept extension requests that are filed less than 30 days prior to the termination of
the permit.
(d) At the end of the extension period granted under paragraph (a) of this
section, the Commission may issue an additional permit to the permittee if the
Commission determines that there are extraordinary circumstances that warrant the
issuance of the additional permit.
[Order 413, 50 FR 11685, Mar. 25, 1985, as amended by Order 499, 53 FR 27002, July 18,
1988; Order 800, 79 FR 59110, Oct. 1, 2014; Order 857, 84 FR 7991, Mar. 6, 2019]
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§4.83 Cancellation and loss of priority.
(a) The Commission may cancel a preliminary permit after notice and
opportunity for hearing if the permittee fails to comply with the specific terms and
conditions of the permit. The Commission may also cancel a permit for other good
cause shown after notice and opportunity for hearing. Cancellation of a permit will
result in loss of the permittee's priority of application for a license for the proposed
project.
(b) Failure of a permittee to file an acceptable application for a license before
the permit expires will result in loss of the permittee's priority of application for a
license for the proposed project.
[Order 413, 50 FR 11686, Mar. 25, 1985]
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§4.84 Surrender of permit.
A permittee must submit a petition to the Commission before the permittee may
voluntarily surrender its permit. Unless the Commission issues an order to the
contrary, the permit will remain in effect through the thirtieth day after the
Commission issues a public notice of receipt of the petition.
[Order 413, 50 FR 11686, Mar. 25, 1985]
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Subpart J—Exemption of Small Conduit Hydroelectric Facilities
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§4.90 Applicability and purpose.
This subpart implements section 30(b) of the Federal Power Act and provides
procedures for obtaining an exemption for constructed or unconstructed small
conduit hydroelectric facilities, as defined in §4.30(b)(30), from all or part of the
requirements of Part I of the Federal Power Act, including licensing, and the
regulations issued under Part I.
[Order 800, 79 FR 59110, Oct. 1, 2014]
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§4.91 [Reserved]
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§4.92 Contents of exemption application.
(a) An application for exemption for this subpart must include:
(1) An introductory statement, including a declaration that the facility for which
application is made meets the requirements of §4.30(b)(30), or if the facility qualifies
but for the discharge requirement of §4.30(b)(30)(iv), the introductory statement
must identify that fact and state that the application is accompanied by a petition for
waiver of §4.30(b)(30)(iv) filed pursuant to §385.207 of this chapter;
(2) Exhibits A, E, F, and G.
(3) If the project structures would use or occupy any lands other than federal
lands, an appendix containing documentary evidence showing that the applicant has
the real property interests required under §4.31(b); and
(4) Identification of all Indian tribes that may be affected by the project.
(b) Introductory Statement. The introductory statement must be set forth in the
following format:
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
Application for Exemption for Small Conduit Hydroelectric Facility
[Name of applicant] applies to the Federal Energy Regulatory Commission for an exemption for
the [name of facility], a small conduit hydroelectric facility that meets the requirements of [insert the
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following language, as appropriate: “§4.30(b)(30) of this subpart” or “§4.30(b)(30) of this subpart,
except paragraph (b)(30)(iv)”], from certain provisions of Part I of the Federal Power Act.
The location of the facility is:
State or Territory:
County:
Township or nearby town:
The exact name and business address of each applicant are:
The exact name and business address of each person authorized to act as agent for the applicant
in this application are:
[Name of applicant] is [a citizen of the United States, an association of citizens of the United
States, a municipality, State, or a corporation incorporated under the laws of (specify the United
States or the state of incorporation, as appropriate)].
The provisions of Part I of the Federal Power Act for which exemption is requested are:
[List here all sections or subsections for which exemption is requested.]
[If the facility does not meet the requirement of §4.30(b)(30)(iv), add the following sentence:
“This application is accompanied by a petition for waiver of §4.30(b)(30)(iv), submitted pursuant to
18 CFR 385.207.”]
(c) Exhibit A. Exhibit A must describe the small conduit hydroelectric facility and
proposed mode of operation with appropriate references to Exhibits F and G. To the
extent feasible the information in this exhibit may be submitted in tabular form. The
following information must be included:
(1) A brief description of any conduits and associated consumptive water supply
facilities, intake facilities, powerhouses, and any other structures associated with the
facility.
(2) The proximate natural sources of water that supply the related conduit.
(3) The purposes for which the conduit is used.
(4) The number of generating units, including auxiliary units, the capacity of
each unit, and provisions, if any, for future units.
(5) The type of each hydraulic turbine.
(6) A description of how the plant is to be operated, manually or automatically,
and whether the plant is to be used for peaking.
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(7) Estimations of:
(i) The average annual generation in kilowatt hours;
(ii) The average head of the plant;
(iii) The hydraulic capacity of the plant (flow through the plant) in cubic feet per
second;
(iv) The average flow of the conduit at the plant or point of diversion (using best
available data and explaining the sources of the data and the method of calculation);
and
(v) The average amount of the flow described in paragraph (c)(7)(iv) of this
section available for power generation.
(8) The planned date for beginning construction of the facility.
(9) If the hydroelectric facility discharges directly into a natural body of water
and a petition for waiver of §4.30(b)(30)(iv) has not been submitted, evidence that a
quantity of water equal to or greater than the quantity discharged from the
hydroelectric facility is withdrawn from that water body downstream into a conduit
that is part of the same water supply system as the conduit on which the
hydroelectric facility is located.
(10) If the hydroelectric facility discharges directly to a point of agricultural,
municipal, or industrial consumption, a description of the nature and location of that
point of consumption.
(11) A description of the nature and extent of any construction of a dam that
would occur in association with construction of the proposed small conduit
hydroelectric facility, including a statement of the normal maximum surface area and
normal maximum surface elevation of any existing impoundment before and after
that construction; and any evidence that the construction of the dam would occur for
agricultural, municipal, or industrial consumptive purposes even if hydroelectric
generating facilities were not installed.
(d) Exhibit G. Exhibit G is a map of the project and boundary and must conform
to the specifications of §4.41(h) of this chapter.
(e) Exhibit E. This exhibit is an Environmental Report. It must be prepared
pursuant to §4.38 and must include the following information, commensurate with
the scope and environmental impact of the facility's construction and operation:
(1) A description of the environmental setting in the vicinity of the facility,
including vegetative cover, fish and wildlife resources, water quality and quantity,
land and water uses, recreational use, socio-economic conditions, historical and
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archeological resources, and visual resources. The report must give special
attention to endangered or threatened plant and animal species, critical habitats,
and sites eligible for or included on the National Register of Historic Places. The
applicant may obtain assistance in the preparation of this information from State
natural resources agencies, the State historic preservation officer, and from local
offices of Federal natural resources agencies.
(2) A description of the expected environmental impacts resulting from the
continued operation of an existing small conduit hydroelectric facility, or from the
construction and operation of a proposed small conduit hydroelectric facility,
including a discussion of the specific measures proposed by the applicant and
others to protect and enhance environmental resources and to mitigate adverse
impacts of the facility on them.
(3) A description of alternative means of obtaining an amount of power
equivalent to that provided by the proposed or existing facility.
(4) Any additional information the applicant considers important.
(f) Exhibit F. Exhibit F is a set of drawings showing the structures and
equipment of the small conduit hydroelectric facility and must conform to the
specifications of §4.41(g) of this chapter.
[Order 76, 45 FR 28090, Apr. 28, 1980, as amended by Order 413, 50 FR 11686, Mar. 25,
1985; Order 533, 56 FR 23153, May 20, 1991; Order 2002, 68 FR 51121, Aug. 25, 2003;
Order 699, 72 FR 45324, Aug. 14, 2007; Order 800, 79 FR 59110, Oct. 1, 2014]
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§4.93 Action on exemption applications.
(a) An application for exemption that does not meet the eligibility requirements
of §4.30(b)(30)(iv) may be accepted, provided the application has been
accompanied by a request for waiver under §4.92(a)(1) and the waiver request has
not been denied. Acceptance of an application that has been accompanied by a
request for waiver under §4.92(a)(1) does not constitute a ruling on the waiver
request, unless expressly stated in the acceptance.
(b) The Commission will circulate a notice of application for exemption to
interested agencies and Indian tribes at the time the applicant is notified that the
application is accepted for filing.
(c) In granting an exemption the Commission may prescribe terms or conditions
in addition to those set forth in §4.94, in order to:
(1) Protect the quality or quantity of the related water supply for agricultural,
municipal, or industrial consumption;
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(2) Otherwise protect life, health, or property;
(3) Avoid or mitigate adverse environmental impact; or
(4) Conserve, develop, or utilize in the public interest the water power resources
of the region.
(d) Conversion to license application. (1) If an application for exemption under
this subpart is denied by the Commission, the applicant may convert the exemption
application into an application for license for the hydroelectric project.
(2) The applicant must provide the Commission with written notification, within
30 days after the date of issuance of the order denying exemption, that it intends to
convert the exemption application into a license application. The applicant must
submit to the Commission, no later than 90 days after the date of issuance of the
order denying exemption, additional information that is necessary to conform the
exemption application to the relevant regulations for a license application.
(3) If all the information timely submitted is found sufficient, together with the
application for exemption, to conform to the relevant regulations for a license
application, the converted application will be considered accepted for filing as of the
date that the exemption application was accepted for filing.
[Order 76, 45 FR 28090, Apr. 28, 1980, as amended by Order 413, 50 FR 11687, Mar. 25,
1985; Order 533, 56 FR 23153, May 20, 1991; Order 2002, 68 FR 51121, Aug. 25, 2003;
Order 800, 79 FR 59110, Oct. 1, 2014]
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§4.94 Standard terms and conditions of exemption.
Any exemption granted under §4.93 for a small conduit hydroelectric facility is
subject to the following standard terms and conditions:
(a) Article 1. The Commission reserves the right to conduct investigations under
sections 4(g), 306, 307, and 311 of the Federal Power Act with respect to any acts,
complaints, facts, conditions, practices, or other matters related to the construction,
operation, or maintenance of the exempt facility. If any term or condition of the
exemption is violated, the Commission may revoke the exemption, issue a suitable
order under section 4(g) of the Federal Power Act, or take appropriate action for
enforcement, forfeiture, or penalties under Part III of the Federal Power Act.
(b) Article 2. The construction, operation, and maintenance of the exempt
project must comply with any terms and conditions that the United States Fish and
Wildlife Service, the National Marine Fisheries Service, and any state fish and
wildlife agencies have determined are appropriate to prevent loss of, or damage to,
fish or wildlife resources or otherwise to carry out the purposes of the Fish and
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Wildlife Coordination Act, as specified in exhibit E of the application for exemption
from licensing or in the comments submitted in response to the notice of exemption
application.
(c) Article 3. The Commission may revoke this exemption if actual construction
of any proposed generating facilities has not begun within two years or has not been
completed within four years from the effective date of this exemption. If an
exemption is revoked under this article, the Commission will not accept from the
prior exemption holder a subsequent application for exemption from licensing or a
notice of exemption from licensing for the same project within two years of the
revocation.
(d) Article 4. This exemption does not confer any right to use or occupy any
federal lands that may be necessary for the development or operation of the project.
Any right to use or occupy any federal lands for those purposes must be obtained
from the administering federal land agencies. The Commission may accept a license
application submitted by any qualified license applicant and revoke this exemption, if
any necessary right to use or occupy federal lands for those purposes has not been
obtained within one year from the date on which this exemption was granted.
(e) Article 5. In order to best develop, conserve, and utilize in the public interest
the water resources of the region, the Commission may require that the exempt
facilities be modified in structure or operation or may revoke this exemption.
(f) Article 6. The Commission may revoke this exemption if, in the application
process, material discrepancies, inaccuracies, or falsehoods were made by or on
behalf of the applicant.
(g) Article 7. Before transferring any property interests in the exempt project, the
exemption holder must inform the transferee of the terms and conditions of the
exemption. Within 30 days of transferring the property interests, the exemption
holder must inform the Commission of the identity and address of the transferee.
[Order 76, 45 FR 28090, Apr. 28, 1980, as amended by Order 413, 50 FR 11687, Mar. 25,
1985; Order 413-A, 56 FR 31331, July 10, 1991; Order 800, 79 FR 59110, Oct. 1, 2014]
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§4.95 Surrender of exemption.
(a) To voluntarily surrender its exemption, a holder of an exemption for a small
conduit hydroelectric facility must file a petition with the Commission.
(b)(1) If construction has begun, prior to filing a petition with the Commission,
the exemption holder must consult with the fish and wildlife agencies in accordance
with §4.38, substituting for the information required under §4.38(b)(1) information
appropriate to the disposition and restoration of the project works and lands. The
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petition must set forth the exemption holder's plans with respect to disposition and
restoration of the project works and lands.
(2) If construction has begun, public notice of the petition will be given, and, at
least 30 days thereafter, the Commission will act upon the petition.
(c) If no construction has begun, unless the Commission issues an order to the
contrary, the exemption will remain in effect through the thirtieth day after the
Commission issues a public notice of receipt of the petition. New applications
involving the site of the surrendered exemption may be filed on the next business
day.
(d) Exemptions may be surrendered only upon fulfillment by the exemption
holder of such obligations under the exemption as the Commission may prescribe
and, if construction has begun, upon such conditions with respect to the disposition
of such project works and restoration of project lands as may be determined by the
Commission and the Federal and state fish and wildlife agencies.
(e) Where occupancy of federal lands or reservations has been permitted by a
federal agency having supervision over such lands, the exemption holder must
concurrently notify that agency of the petition to surrender and of the steps that will
be taken to restore the affected federal lands or reservations.
[Order 413, 50 FR 11687, Mar. 25, 1985, as amended by Order 800, 79 FR 59111, Oct. 1,
2014]
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§4.96 Amendment of exemption.
(a) An exemption holder must construct and operate its project as described in
the exemption application approved by the Commission or its delegate.
(b) If an exemption holder desires to change the design, location, method of
construction or operation of its project, it must first notify the appropriate Federal and
state fish and wildlife agencies and inform them in writing of the changes it intends
to implement. If these agencies determine that the changes would not cause the
project to violate the terms and conditions imposed by the agencies, and if the
changes would not materially alter the design, location, method of construction or
operation of the project, the exemption holder may implement the changes. If any of
these agencies determines that the changes would cause the project to violate the
terms and conditions imposed by the agencies, or if the changes would materially
alter the design, location, method of construction or the operation of the project
works, the exemption holder may not implement the changes without first acquiring
authorization from the Commission to amend its exemption, or acquiring a license
that authorizes the project, as changed.
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(c) An application to amend an exemption may be filed only by the holder of the
exemption. An application to amend an exemption will be governed by the
Commission's regulations governing applications for exemption. The Commission
will not accept applications in competition with an application to amend an
exemption, unless the Director of the Office of Energy Projects determines that it is
in the public interest to do so.
[Order 413, 50 FR 11687, Mar. 25, 1985, as amended by Order 699, 72 FR 45324, Aug.
14, 2007]
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Subpart K—Exemption of Small Hydroelectric Power Projects
of 10 Megawatts or Less
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§4.101 Applicability.
This subpart provides procedures for exemption on a case-specific basis from
all or part of Part I of the Federal Power Act (Act), including licensing, for small
hydroelectric power projects as defined in §4.30(b)(31).
(Energy Security Act of 1980, Pub. L. 96-294, 94 Stat. 611; Federal Power Act, as
amended (16 U.S.C. 792-828c); Public Utility Regulatory Policies Act of 1978 (16 U.S.C.
2601-2645); and the Department of Energy Organization Act (42 U.S.C. 7101-7352); E.O.
12009, 3 CFR 142 (1978))
[Order 202, 47 FR 4243, Jan. 29, 1982, as amended by Order 413, 50 FR 11687, Mar. 25,
1985; Order 482, 52 FR 39630, Oct. 23, 1987; Order 2002, 68 FR 51121, Aug. 25, 2003;
Order 800, 79 FR 59111, Oct. 1, 2014]
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§4.102 Surrender of exemption.
(a) To voluntarily surrender its exemption, a holder of an exemption for a small
hydroelectric power project must file a petition with the Commission.
(b)(1) If construction has begun, prior to filing a petition with the Commission,
the exemption holder must consult with the fish and wildlife agencies in accordance
with §4.38, substituting for the information required under §4.38(b)(1) information
appropriate to the disposition and restoration of the project works and lands. The
petition must set forth the exemption holder's plans with respect to disposition and
restoration of the project works and lands.
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(2) If construction has begun, public notice of the petition will be given, and, at
least 30 days thereafter, the Commission will act upon the petition. New applications
involving the site may be filed on the next business day.
(c) If no construction had begun, unless the Commission issues an order to the
contrary, the surrender will take effect at the close of the thirtieth day after the
Commission issues a public notice of receipt of the petition. New applications
involving the site may be filed on the next business day.
(d) Exemptions may be surrendered only upon fulfillment by the exemption
holder of such obligations under the exemption as the Commission may prescribe
and, if construction has begun, upon such conditions with respect to the disposition
of such project works and restoration of project lands as may be determined by the
Commission and the Federal and state fish and wildlife agencies.
(e) Where occupancy of federal lands or reservations has been permitted by a
Federal agency having supervision over such lands, the exemption holder must
concurrently notify that agency of the petition to surrender and of the steps that will
be taken to restore the affected U.S. lands or reservations.
[Order 413, 50 FR 11688, Mar. 25, 1985, as amended by Order 800, 79 FR 59111, Oct. 1,
2014]
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§4.103 General provisions for case-specific exemption.
(a) Exemptible projects. Subject to the provisions in paragraph (b) of this
section, §4.31(c), and §§4.105 and 4.106, the Commission may exempt on a casespecific basis any small hydroelectric power project from all or part of Part I of the
Act, including licensing requirements. Any applications for exemption for a project
shall conform to the requirements of §§4.107 or 4.108, as applicable.
(b) Limitation for licensed water power project. The Commission will not accept
for filing an application for exemption from licensing for any project that is only part
of a licensed water power project.
(c) Waiver. In applying for case-specific exemption from licensing, a qualified
exemption applicant may petition under §385.207 of this chapter for waiver of any
specific provision of §§4.102 through 4.107. The Commission will grant a waiver
only if consistent with section 408 of the Energy Security Act of 1980.
[Order 413, 50 FR 11688, Mar. 25, 1985, as amended by Order 503, 53 FR 36568, Sept.
21, 1988]
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§4.104 Amendment of exemption.
(a) An exemption holder must construct and operate its project as described in
the exemption application approved by the Commission or its delegate.
(b) If an exemption holder desires to change the design, location, method of
construction or operation of its project, it must first notify the appropriate Federal and
state fish and wildlife agencies and inform them in writing of the changes it intends
to implement. If these agencies determine that the changes would not cause the
project to violate the terms and conditions imposed by the agencies, and if the
changes would not materially alter the design, location, method of construction or
operation of the project, the exemption holder may implement the changes. If any of
these agencies determines that the changes would cause the project to violate the
terms and conditions imposed by that agency, or if the changes would materially
alter the design, location, method of construction or the operation of the project
works, the exemption holder may not implement the changes without first acquiring
authorization from the Commission to amend its exemption or acquiring a license for
the project works that authorizes the project, as changed.
(c) An application to amend an exemption may be filed only by the holder of an
exemption. An application to amend an exemption will be governed by the
Commission's regulations governing applications for exemption. The Commission
will not accept applications in competition with an application to amend an
exemption, unless the Director of the Office of Energy Projects determines that it is
in the public interest to do so.
[Order 413, 50 FR 11688, Mar. 25, 1985, as amended by Order 699, 72 FR 45324, Aug.
14, 2007]
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§4.105 Action on exemption applications.
(a) Exemption from provisions other than licensing. An application for
exemption of a small hydroelectric power project from provisions of Part I of the Act
other than the licensing requirement will be processed and considered as part of the
related application for license or amendment of license.
(b)(1) Consultation. The Commission will circulate a notice of application for
exemption from licensing to interested agencies and Indian tribes at the time the
applicant is notified that the application is accepted for filing.
(2) Non-standard terms and conditions. In approving any application for
exemption from licensing, the Commission may prescribe terms or conditions in
addition to those set forth in §4.106 in order to:
(i) Protect the quality or quantity of the related water supply;
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(ii) Otherwise protect life, health, or property;
(iii) Avoid or mitigate adverse environmental impact; or
(iv) Better conserve, develop, or utilize in the public interest the water resources
of the region.
(Energy Security Act of 1980, Pub. L. 96-294, 94 Stat. 611; Federal Power Act, as
amended (16 U.S.C. 792-828c); Public Utility Regulatory Policies Act of 1978 (16 U.S.C.
2601-2645); and the Department of Energy Organization Act (42 U.S.C. 7101-7352); E.O.
12009, 3 CFR 142 (1978))
[Order 106, 45 FR 76123, Nov. 18, 1980, as amended by Order 202, 47 FR 4246, Jan. 29,
1982; Order 413, 50 FR 11688, Mar. 25, 1985; Order 533, 56 FR 23154, May 20, 1991]
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§4.106 Standard terms and conditions of case-specific exemption from
licensing.
Any case-specific exemption from licensing granted for a small hydroelectric
power project is subject to the following standard terms and conditions:
(a) Article 1. The Commission reserves the right to conduct investigations under
sections 4(g), 306, 307, and 311 of the Federal Power Act with respect to any acts,
complaints, facts, conditions, practices, or other matters related to the construction,
operation, or maintenance of the exempt project. If any term or condition of the
exemption is violated, the Commission may revoke the exemption, issue a suitable
order under section 4(g) of the Federal Power Act, or take appropriate action for
enforcement, forfeiture, or penalties under Part III of the Federal Power Act.
(b) Article 2. The construction, operation, and maintenance of the exempt
project must comply with any terms and conditions that the United States Fish and
Wildlife Service, the National Marine Fisheries Service, and any state fish and
wildlife agencies have determined are appropriate to prevent loss of, or damage to,
fish or wildlife resources or otherwise to carry out the purposes of the Fish and
Wildlife Coordination Act, as specified in exhibit E of the application for exemption
from licensing or in the comments submitted in response to the notice of exemption
application.
(c) Article 3. The Commission may revoke this exemption if actual construction
of any proposed generating facilities has not begun within two years or has not been
completed within four years from the date on which this exemption was granted. If
an exemption is revoked under this article, the Commission will not accept from the
prior exemption holder a subsequent application for exemption from licensing for the
same project within two years of the revocation.
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(d) Article 4. This exemption is subject to the navigation servitude of the United
States if the project is located on navigable waters of the United States.
(e) Article 5. This exemption does not confer any right to use or occupy any
Federal lands that may be necessary for the development or operation of the
project. Any right to use or occupy any Federal lands for those purposes must be
obtained from the administering Federal land agencies. The Commission may
accept a license application submitted by any qualified license applicant and revoke
this exemption, if any necessary right to use or occupy Federal lands for those
purposes has not been obtained within one year from the date on which this
exemption was granted.
(f) Article 6. In order to best develop, conserve, and utilize in the public interest
the water resources of the region, the Commission may require that the exempt
facilities be modified in structure or operation or may revoke this exemption.
(g) Article 7. The Commission may revoke this exemption if, in the application
process, material discrepancies, inaccuracies, or falsehoods were made by or on
behalf of the applicant.
(h) Article 8. Any exempted small hydroelectric power project that utilizes a dam
that is more than 33 feet in height above streambed, as defined in 18 CFR 12.31(c)
of this chapter, impounds more than 2,000 acre-feet of water, or has a significant or
high hazard potential, as defined in 33 CFR part 222, is subject to part 12 of the
Commission's regulations, part 12 of this title (as they may be amended from time to
time).
(i) Article 9. Before transferring any property interests in the exempt project, the
exemption holder must inform the transferee of the terms and conditions of the
exemption. Within 30 days of transferring the property interests, the exemption
holder must inform the Commission of the identity and address of the transferee.
[Order 106, 45 FR 76123, Nov. 18, 1980; 45 FR 77420, Nov. 24, 1980, as amended by
Order 202, 47 FR 4246, Jan. 29, 1982; Order 413, 50 FR 11688, Mar. 25, 1985; Order 482,
52 FR 39630, Oct. 23, 1987; Order 413-A, 56 FR 31331, July 10, 1991; Order 756, 77 FR
4894, Feb. 1, 2012; Order 800, 79 FR 59111, Oct. 1, 2014]
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§4.107 Contents of application for exemption from licensing.
(a) General requirements. An application for exemption from licensing
submitted under this subpart must contain the introductory statement, the exhibits
described in this section, and, if the project structures would use or occupy any
lands other than Federal lands, an appendix containing documentary evidence
showing that applicant has the real property interests required under §4.31(c)(2)(ii).
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The applicant must identify in its application all Indian tribes that may be affected by
the project.
(b) Introductory statement. The application must include an introductory
statement that conforms to the following format:
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
Application for Exemption of Small Hydroelectric Power Project From Licensing
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for an exemption
for [name of project], a small hydroelectric power project that is proposed to have an installed
capacity of 10 megawatts or less, from licensing under the Federal Power Act. [If applicable: The
project is currently licensed as FERC Project No. ____.]
(2) The location of the project is:
[State or territory]
[County]
[Township or nearby town]
[Stream or body of water]
(3) The exact name and business address of each applicant are:
(4) The exact name and business address of each person authorized to act as agent for the
applicant in this application are:
(5) [Name of applicant] is [specify, as appropriate: a citizen of the United States or other
identified nation; an association of citizens of the United States or other identified nation; a
municipality; a state; or a corporation incorporated under the laws of (specify the United States or
the state or nation of incorporation, as appropriate).]
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(c) Exhibit A. Exhibit A must describe the small hydroelectric power project and
its proposed mode of operation. To the extent feasible, the information in this exhibit
may be submitted in tabular form. The applicant must submit the following
information:
(1) A brief description of any existing dam and impoundment proposed to be
utilized by the small hydroelectric power project and any other existing or proposed
project works and appurtenant facilities, including intake facilities, diversion
structures, powerhouses, primary transmission lines, penstocks, pipelines,
spillways, and other structures, and the sizes, capacities, and construction materials
of those structures.
(2) The number of existing and proposed generating units at the project,
including auxiliary units, the capacity of each unit, any provisions for future units,
and a brief description of any plans for retirement or rehabilitation of existing
generating units.
(3) The type of each hydraulic turbine of the small hydroelectric power project.
(4) A description of how the power plant is to be operated, that is, run-of-river or
peaking.
(5) A graph showing a flow duration curve for the project. Identify stream gauge
(s) and period of record used. If a synthetic record is utilized, provide details
concerning its derivation. Furnish justification for selection of installed capacity if the
hydraulic capacity of proposed generating unit(s) plus the minimum flow
requirements, if not usable for power production, is less than the stream flow that is
exceeded 25 percent of the time.
(6) Estimations of:
(i) The average annual generation in kilowatt-hours;
(ii) The average and design head of the power plant;
(iii) The hydraulic capacity of each turbine of the power plant (flow through the
plant) in cubic feet per second;
(iv) The number of surface acres of the man-made or natural impoundment
used, if any, at its normal maximum surface elevation and its net and gross storage
capacities in acre-feet.
(7) The planned date for beginning and completing the proposed construction or
development of generating facilities.
(8) A description of the nature and extent of any repair, reconstruction, or other
modification of a dam that would occur in association with construction or
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development of the proposed small hydroelectric power project, including a
statement of the normal maximum surface area and normal maximum surface
elevation of any existing impoundment before and after construction.
(d) Exhibit G. Exhibit G is a map of the project and boundary and must conform
to the specifications of §4.41(h) of this chapter.
(e) Exhibit E. This exhibit is an environmental report that must include the
following information, commensurate with the scope and environmental impact of
the construction and operation of the small hydroelectric power project. See §4.38
for consultation requirements.
(1) A description of the environmental setting of the project, including vegetative
cover, fish and wildlife resources, water quality and quantity, land and water uses,
recreational uses, historical and archeological resources, and scenic and aesthetic
resources. The report must list any endangered or threatened plant and animal
species, any critical habitats, and any sites eligible for or included on the National
Register of Historic Places. The applicant may obtain assistance in the preparation
of this information from state natural resources agencies, the state historic
preservation officer, and from local offices of Federal natural resources agencies.
(2) A description of the expected environmental impacts from the proposed
construction or development and the proposed operation of the small hydroelectric
power project, including any impacts from any proposed changes in the capacity
and mode of operation of the project if it is already generating electric power, and an
explanation of the specific measures proposed by the applicant, the agencies
consulted, and others to protect and enhance environmental resources and values
and to mitigate adverse impacts of the project on such resources.
(3) Any additional information the applicant considers important.
(f) Exhibit F. Exhibit F is a set of drawings showing the structures and
equipment of the small hydroelectric facility and must conform to the specifications
of §4.41(g) of this chapter.
[Order 106, 45 FR 76123, Nov. 18, 1980, as amended by Order 225, 47 FR 19056, May 3,
1982; Order 413, 50 FR 11689, Mar. 25, 1985; Order 494, 53 FR 15381, Apr. 29, 1988;
Order 533, 56 FR 23154, May 20, 1991; Order 2002, 68 FR 51121, Aug. 25, 2003; Order
699, 72 FR 45324, Aug. 14, 2007; Order 800, 79 FR 59111, Oct. 1, 2014]
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§4.108 Contents of application for exemption from provisions other than
licensing.
An application for exemption of a small hydroelectric power project from
provisions of Part I of the Act other than the licensing requirement need not be
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prepared according to any specific format, but must be included as an identified
appendix to the related application for license or amendment of license. The
application for exemption must list all sections or subsections of Part I of the Act for
which exemption is requested.
[Order 106, 45 FR 76123, Nov. 18, 1980]
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Subpart L—Application for Amendment of License
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§4.200 Applicability.
This part applies to any application for amendment of a license, if the applicant
seeks to:
(a) Make a change in the physical features of the project or its boundary, or
make an addition, betterment, abandonment, or conversion, of such character as to
constitute an alteration of the license;
(b) Make a change in the plans for the project under license; or
(c) Extend the time fixed in the license for commencement or completion of
project works.
[Order 184, 46 FR 55943, Nov. 13, 1981, as amended by Order 2002, 68 FR 51121, Aug.
25, 2003]
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§4.201 Contents of application.
An application for amendment of a license for a water power project must
contain the following information in the form specified.
(a) Initial statement.
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
Application for Amendment of License
(1) [Name of applicant] applies to the Federal Energy Regulatory Commission for an
amendment of license for the [name of project] water power project.
(2) The exact name, business address, and telephone number of the applicant are:
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(3) The applicant is a [citizen of the United States, association of citizens of the United States,
domestic corporation, municipality, or state, as appropriate, see 16 U.S.C. 796], licensee for the
water power project, designated as Project No. ___ in the records of the Federal Energy Regulatory
Commission, issued on the ______ day of _______, 19__.
(4) The amendments of license proposed and the reason(s) why the proposed changes are
necessary, are: [Give a statement or description]
(5)(i) The statutory or regulatory requirements of the state(s) in which the project would be
located that affect the project as proposed with respect to bed and banks and to the appropriation,
diversion, and use of water for power purposes are: [provide citation and brief identification of the
nature of each requirement.]
(ii) The steps which the applicant has taken or plans to take to comply with each of the laws
cited above are: [provide brief description for each law.]
(b) Required exhibits for capacity related amendments. Any application to
amend a license for a hydropower project that involves additional capacity not
previously authorized, and that would increase the actual or proposed total installed
capacity of the project, would result in an increase in the maximum hydraulic
capacity of the project of 15 percent or more, and would result in an increase in the
installed name-plate capacity of 2 megawatts or more, must contain the following
exhibits, or revisions or additions to any exhibits on file, commensurate with the
scope of the licensed project:
(1) For amendment of a license for a water power project that, at the time the
application is filed, is not constructed and is proposed to have a total installed
generating capacity of more than 5 MW—Exhibits A, B, C, D, E, F, and G under
§4.41 of this chapter;
(2) For amendment of a license for a water power project that, at the time the
application is filed, is not constructed and is proposed to have a total installed
generating capacity of 1.5 MW or less—Exhibits E, F, and G under §4.61 of this
chapter;
(3) For amendment of a license for a water power project that, at the time the
application is filed, is not constructed and is proposed to have a total installed
generating capacity of 5 MW or less, but more than 1.5 MW—Exhibits F and G
under §4.61 of this chapter, and Exhibit E under §4.41 of this chapter;
(4) For amendment of a license for a water power project that, at the time the
application for amendment is filed, has been constructed, and is proposed to have a
total installed generating capacity of 5 MW or less—Exhibit E, F and G under §4.61
of this chapter;
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(5) For amendment of a license for a water power project that, at the time the
application is filed, has been constructed and is proposed to have a total installed
generating capacity of more than 5 MW—Exhibits A, B, C, D, E, F, and G under
§4.51 of this chapter.
(c) Required exhibits for non-capacity related amendments. Any application to
amend a license for a water power project that would not be a capacity related
amendment as described in paragraph (b) of this section must contain those exhibits
that require revision in light of the nature of the proposed amendments.
(d) Consultation and waiver. (1) If an applicant for license amendment under
this subpart believes that any exhibit required under paragraph (b) of this section is
inappropriate with respect to the particular amendment of license sought by the
applicant, a petition for waiver of the requirement to submit such exhibit may be
submitted to the Commission under §385.207 of this chapter, after consultation with
the Commission's Division of Hydropower Compliance and Administration.
(2) A licensee wishing to file an application for amendment of license under this
section may seek advice from the Commission staff regarding which exhibits(s)
must be submitted and whether the proposed amendment is consistent with the
scope of the existing licensed project.
[Order 184, 46 FR 55943, Nov. 13, 1981, as amended by Order 225, 47 FR 19056, May 3,
1982; 48 FR 4459, Feb. 1, 1983; 48 FR 16653, Apr. 19, 1983; Order 413, 50 FR 11689,
Mar. 25, 1985; Order 533, 56 FR 23154, May 20, 1991; Order 756, 77 FR 4894, Feb. 1,
2012]
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§4.202 Alteration and extension of license.
(a) If it is determined that approval of the application for amendment of license
would constitute a significant alteration of license pursuant to section 6 of the Act, 16
U.S.C. 799, public notice of such application shall be given at least 30 days prior to
action upon the application.
(b) Any application for extension of time fixed in the license for commencement
or completion of construction of project works must be filed with the Commission not
less than three months prior to the date or dates so fixed.
[Order 184, 46 FR 55943, Nov. 13, 1981]
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Subpart M—Fees Under Section 30(e) of the Act
SOURCE: Order 487, 52 FR 48404, Dec. 22, 1987, unless otherwise noted.
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§4.300 Purpose, definitions, and applicability.
(a) Purpose. This subpart implements the amendments of section 30 of the
Federal Power Act enacted by section 7(c) of the Electric Consumers Protection Act
of 1986 (ECPA). It establishes procedures for reimbursing fish and wildlife agencies
for costs incurred in connection with applications for an exemption from licensing
and applications for licenses seeking benefits under section 210 of the Public Utility
Regulatory Policies Act of 1978, as amended, for a project that would impound or
divert the water of a natural watercourse by means of a new dam or diversion.
(b) Definitions. For the purposes of this subpart—
(1) Cost means an expenditure made by a fish and wildlife agency:
(i) On or after the effective date of this regulation for an application filed on or
after the effective date of this regulation; and
(ii) Directly related to setting mandatory terms and conditions for a proposed
project pursuant to section 30(c) of the Federal Power Act.
(2) Cost statement means a statement of the total costs for which a fish and
wildlife agency requests reimbursement including an itemized schedule of costs
including, but not limited to, costs of fieldwork and testing, contract costs, travel
costs, personnel costs, and administrative and overhead costs.
(3) Mandatory terms and conditions means terms and conditions of a license or
exemption that a fish and wildlife agency determines are appropriate to prevent loss
of, or damage to, fish and wildlife resources pursuant to section 30(c) of the Federal
Power Act.
(4) New dam or diversion license applicant means an applicant for a license for
a project that would impound or divert the water of a natural watercourse by means
of a new dam or diversion, as defined in section 210(k) of the Public Utility
Regulatory Policies Act of 1978, as amended.
(5) PURPA benefits means benefits under section 210 of the Public Utility
Regulatory Policies Act of 1978, as amended.
(6) Section 30(c) application means an application for an exemption from
licensing or a new dam or diversion license application seeking PURPA benefits.
(c) Applicability. Except as provided in paragraph (d) of this section, this subpart
applies to:
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(1) Any application for exemption filed on or after the effective date of these
regulations for costs incurred by fish and wildlife agencies after the effective date of
these regulations;
(2) Any new dam or diversion license application seeking PURPA benefits filed
on or after April 16, 1988;
(3) Any new dam or diversion license application seeking PURPA benefits filed
after the effective date of this regulation, but before April 16, 1988, if the applicant
fails to demonstrate in a monetary resources petition filed with the Commission
pursuant to §292.208 of this chapter that, before October 16, 1986, it had committed
substantial monetary resources directly related to the development of the proposed
project and to the diligent and timely completion of all requirements of the
Commission for filing an acceptable application; and
(4) Any new dam or diversion license application seeking PURPA benefits filed
after the effective date of this regulation, if the application is not accepted for filing
before October 16, 1989.
(d) Exceptions. (1) This subpart does not apply to any new dam or diversion
license application seeking PURPA benefits if the moratorium described in section 8
(e) of ECPA is in effect. The moratorium will end at the expiration of the first full
session of Congress following the session during which the Commission reports to
Congress on the results of the study required under section 8(d) of ECPA.
(2) This subpart does not apply to any new dam or diversion license application
seeking PURPA benefits for a project located at a Government dam, as defined in
section 3(10) of the Federal Power Act, at which non-Federal hydroelectric
development is permissible.
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§4.301 Notice to fish and wildlife agencies and estimation of fees prior to
filing.
(a) Notice to agencies—(1) New dam or diversion license applicants. During the
initial stage or pre-filing agency consultation under §4.38(b)(1), a prospective new
dam or diversion license applicant must inform each fish and wildlife agency
consulted in writing with a copy to the Commission whether it will seek PURPA
benefits.
(2) Exemption applicants. During the initial stage of pre-filing agency
consultation under §4.38(b)(1), a prospective exemption applicant must notify each
fish and wildlife agency consulted that it will seek an exemption from licensing.
(b) Estimate of fees. Within the comment period provided in §4.38(c)(5), a fish
and wildlife agency must provide a prospective section 30(c) applicant with a
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reasonable estimate of the total costs the agency anticipates it will incur to set
mandatory terms and conditions for the proposed project. An agency may provide
an applicant with an updated estimate as it deems necessary. If an agency believes
that its most recent estimate will be exceeded by more than 25 percent, it must
supply the prospective applicant or applicant with a new estimate and submit a copy
to the Commission.
[Order 141, 12 FR 8485, Dec. 19, 1947, as amended by Order 756, 77 FR 4894, Feb. 1,
2012]
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§4.302 Fees at filing.
(a) Filing requirement. A section 30(c) application must be accompanied by a
fee or a bond, together with copies of the most recent cost estimates provided by
fish and wildlife agencies pursuant to §4.301(b).
(b) Amount. The fee required under paragraph (a) of this section must be in an
amount equal to 50 percent of the most recent cost estimates provided by fish and
wildlife agencies pursuant to §4.301(b). In lieu of this amount, an applicant may
provide an unlimited term surety bond from a company on the Department of
Treasury's list of companies certified to write surety bonds. Applicants bonded by a
company whose certification by the Department of the Treasury lapses must provide
evidence of purchase of another bond from a certified company. A bond must be for
an amount no less than 100 percent of the agencies' most recent cost estimates
pursuant to §4.301(b).
(c) Failure to file. The Commission will reject a section 30(c) application if the
applicant fails to comply with the provisions of paragraphs (a) and (b) of this section.
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§4.303 Post-filing procedures.
(a) Submission of cost statement—1) Accepted applications. Within 60 days
after the last date for filing mandatory terms and conditions pursuant to §4.32(c)(4)
for a new dam or diversion license application seeking PURPA benefits, §4.93(b) for
an application for exemption of a small conduit hydroelectric facility, or §4.105(b)(1)
for an application for case-specific exemption of a small hydroelectric power project,
a fish and wildlife agency must file with the Commission a cost statement of the
reasonable costs the agency incurred in setting mandatory terms and conditions for
the proposed project. An agency may request, in writing, along with any supporting
documentation an extension of this 60-day period.
(2) Rejected, withdrawn or dismissed applications. The Director of the Office of
Energy Projects (Director) will, by letter, notify each fish and wildlife agency if a
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section 30(c) application is rejected, withdrawn or dismissed. Within 60 days from
the date of notification, a fish and wildlife agency must file with the Commission a
cost statement of the reasonable costs the agency incurred prior to the date the
application was rejected, withdrawn, or dismissed. An agency may submit a written
request for an extension of this 60-day period along with any supporting
documentation.
(b) If an agency has not submitted a cost statement or extension request within
the time provided in paragraph (a)(2) of this section, it waives its right to receive fees
for that project pursuant to this subpart.
(c) Billing. After the Commission receives a cost statement from all fish and
wildlife agencies as required by paragraph (a) of this section, the Commission will
bill the section 30(c) applicant. The bill will show:
(1) The cost statement submitted to the Commission by each fish and wildlife
agency;
(2) Any amounts already paid by the applicant pursuant to §4.302; and
(3)(i) The amount due, if the amount already paid by the applicant pursuant to
§4.302 is less than the total of all the cost statements; or
(ii) The amount to be refunded to the applicant, if the amount already paid by
the applicant pursuant to §4.302 is more than the total of all the cost statements.
(d) Within 45 days from the date of a bill issued under paragraph (b) of this
section, a section 30(c) applicant must pay in full to the Commission any remaining
amounts due on the cost statements regardless of whether any of these amounts
are in dispute.
(e) Dispute procedures—(1) When to dispute. Any dispute regarding the
reasonableness of any fish and wildlife agency cost statement must be made within
45 days from the date of a bill issued under paragraph (b) of this section.
(2) Assessment of disputed cost statements The burden of showing that an
agency's cost statement is unreasonable is on the applicant. However, a fish and
wildlife agency must supply the disputing applicant and the Commission with the
documentation necessary to support its cost statement. The Director of the Office of
Energy Projects will determine the reasonableness of a disputed fish and wildlife
agency cost statement. The Director's decision will be in writing. The Director will
notify the disputing applicant and the fish and wildlife agency of the decision by
letter. Any decision of the Director may be appealed by either party pursuant to 18
CFR 385.1902. In deciding whether or not a disputed cost statement is reasonable,
the Director will review the application, the disputed cost statement and any other
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documentation relating to the particular environmental problems associated with the
disputing applicant's proposed project. The Director will consider such factors as:
(i) The time the fish and wildlife agency spent reviewing the application;
(ii) The proportion of the cost statement to the time the fish and wildlife agency
spent reviewing the application;
(iii) Whether the fish and wildlife agency's expenditures conform to Federal
expenditure guidelines for such items as travel, per diem, personnel, and
contracting; and
(iv) Whether the studies conducted by the agency, if any, are duplicative, limited
to the proposed project area, unnecessary to determine the impacts to or mitigation
measures for the particular fish and wildlife resources affected by the proposed
project, or otherwise unnecessary to set terms and conditions for the proposed
project.
(3) Unreasonable cost statements. If the Director determines that a disputed
fish and wildlife agency cost statement is unreasonable, the disputing applicant and
the fish and wildlife agency will be afforded 45 days from the date of notification to
attempt to reach an agreement regarding the reimbursable costs of the agency. If
the disputing applicant and the fish and wildlife agency fail to reach an agreement
on the disputed cost statement within 45 days from the date of notification, the
Director will determine the costs that the agency should reasonably have incurred.
(f) Refunds. (1) If the amount paid by a section 30(c) applicant under §4.302
exceeds the total amount of the cost statements submitted by fish and wildlife
agencies under paragraph (a) of this section, the Commission will notify the
Treasury to refund the difference to the applicant within 45 days from the date of the
bill issued to the applicant under paragraph (b) of this section.
(2) If the amount paid by a section 30(c) applicant exceeds the amount
determined to be reasonable by the Director pursuant to paragraph (d)(2) of this
section, the Commission will notify the Treasury to refund the difference to the
applicant within 45 days of the resolution of all dispute proceedings.
[Order 487, 52 FR 48404, Dec. 22, 1987, as amended by Order 647, 69 FR 32438, June
10, 2004]
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§4.304 Payment.
(a) A payment required under this subpart must be made by check payable to
the United States Treasury. The check must indicate that the payment is for ECPA
Fees.
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(b) If a payment required under this subpart is not made within the time period
prescribed for making such payment, interest and penalty charges will be assessed.
Interest and penalty charges will be computed in accordance with 31 U.S.C. 3717
and 4 CFR part 102.
(c) The Commission will not issue a license or exemption, unless the applicant
has made full payments of any fees due under §4.303(c).
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§4.305 Enforcement.
(a) The Commission may take any appropriate action permitted by law if a
section 30(c) applicant does not make a payment required under this subpart. The
Commission will not be liable to any fish and wildlife agency for failure to collect any
amounts under this subpart.
(b) If the Commission is unable to collect the full amount due by a section 30(c)
applicant on behalf of more than one agency, the amount the Commission does
collect will be distributed to the agencies on a pro-rata basis except if an agency's
cost statement is greater than its most recent estimate to the applicant under §4.301
(b), then the difference between the estimate and the cost statement will not be
reimbursed until any amounts owed to other agencies have been paid.
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Subpart N—Notice of Intent To Construct Qualifying Conduit
Hydropower Facilities
SOURCE: Order 800, 79 FR 59111, Oct. 1, 2014, unless otherwise noted.
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§4.400 Applicability and purpose.
This part implements section 30(a) of the Federal Power Act, as amended, and
provides procedures for obtaining a determination from the Commission that the
facility to be constructed is a qualifying conduit hydropower facility, as defined in
§4.30(b)(26), and thus, is not required to be licensed under Part I of the FPA.
[Order 800, 79 FR 59111, Oct. 1, 2014, as amended by Order 857, 84 FR 7991, Mar. 6,
2019]
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§4.401 Contents of notice of intent to construct a qualifying conduit
hydropower facility.
(a) A notice of intent to construct a qualifying conduit hydropower facility
submitted under this subpart must contain the following:
(1) An introductory statement as described in paragraph (b) of this section;
(2) A statement that the proposed project will use the hydroelectric potential of a
non-federally owned conduit as set forth in paragraph (c) of this section;
(3) A statement that the proposed facility has not been licensed or exempted
from the licensing requirements of Part I of the FPA, on or before August 9, 2013, as
set forth in in paragraph (d) of this section;
(4) A description of the proposed facility as set forth in paragraph (e) of this
section;
(5) Project drawings as set forth in paragraph (f) of this section;
(6) If applicable, the preliminary permit project number for the proposed facility;
and,
(7) Verification as set forth in paragraph (g) of this section.
(b) Introductory statement. The introductory statement must be set forth in the
following format:
BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
NOTICE OF INTENT TO CONSTRUCT QUALIFYING CONDUIT HYDROPOWER
FACILITY
[Name of applicant] applies to the Federal Energy Regulatory Commission for a
determination that the [facility name] is a qualifying conduit hydropower facility,
meeting the requirements of section 30(a) of the Federal Power Act, as amended.
The location of the facility is:
State or Territory:
County:
Township or nearby town:
Water source:
The exact name and business address of the applicant(s) are:
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Applicant's Name:
Address:
Telephone Number:
Email Address:
The exact name and business address of each person authorized to act as an agent for the
applicant(s) in this notice of intent are:
Name of Agent:
Address:
Telephone Number:
Email Address:
[Name of applicant] is [a citizen of the United States, an association of citizens of the United
States, a municipality, State, or a corporation incorporated under the laws of (specify the United
States or the state of incorporation), as appropriate].
(c) Non-Federal Conduit Statement. The non-federal conduit statement must be
set forth in the following format:
The [facility name] will use the hydroelectric potential of a non-federally owned
conduit.
(d) Original facility statement. The original facility statement must be set forth in
the following format:
The [facility name] has not been licensed or exempted from the licensing
requirements of Part I of the FPA, on or before August 9, 2013, the date of
enactment of the Hydropower Regulatory Efficiency Act.
(e) Description of proposed facility. Description of proposed facility must
include:
(1) A detailed description of any conduits and associated consumptive water
supply facilities, intake facilities, powerhouses, and any other structures associated
with the facility;
(2) The purposes for which the conduit is used;
(3) The number, type, generating capacity (kW or MW), and estimated average
annual generation (kWh or MWh) of the generating units and brief description of any
plans for future units; and,
(4) A description of the nature and extent of the dam that would occur in
association with construction of the proposed qualifying conduit hydroelectric facility,
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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
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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:
County of:
by:
(Name)
(Address)
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 _____day of ______, 20__.
By:
Subscribed and sworn to before me, a ______ [Notary Public, or title of other official authorized
by the state to notarize documents, as appropriate] of the State of ______this day of ______, 20__.
/SEAL/[if any]
(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 ______[date].
(Signature)
[Order 800, 79 FR 59111, Oct. 1, 2014, as amended by Order 857, 84 FR 7991, Mar. 6,
2019]
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Need assistance?
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| File Type | application/pdf |
| File Title | https://www.ecfr.gov/cgi-bin/text-idx?SID=f5d2a86281b40e70d6008 |
| Author | jnsed34 |
| File Modified | 2021-07-15 |
| File Created | 2021-07-15 |