Title 18—Conservation of Power and Water Resources--Volume 1
PART 4—LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT COSTS
§ 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 10 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.
(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:
(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
(i) Proposed installed generating capacity ______ MW.
(ii) Check appropriate box:
(8) Lands of the United States affected (shown on Exhibit G):
(vi) Check appropriate box:
(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;
(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 10 MW or less. Any application must contain an Exhibit E conforming with the data and consultation requirements of § 4.41(f), 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 10 MW, and which:
(i) Would use the water power potential of a dam and impoundment which, at the time of application, has not been constructed ( see § 4.30(b)(15)); or
(ii) Involves any repair, modification or reconstruction of an existing dam that would result in a significant change in the normal maximum surface area or elevation of an existing impoundment or involves any change in existing project works or operations that would result in a significant environmental impact ( see § 4.30(b)(14)).
(2) For minor projects and major projects at existing dams 10 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 10 MW or less must contain an Exhibit E under this paragraph (d)(2). 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.
(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.
§ 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.
§ 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.
(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:
(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 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.41;
(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 10 MW or less—Exhibits E, F, and G under § 4.61; 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.
§ 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.
§ 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:
(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:
(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)];
(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
(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:
(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.
§ 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).
(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.
§ 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.
§ 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.
§ 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.
§ 4.91   [Reserved]
§ 4.92   Contents of exemption application.
(a) An application for exemption for this subpart must include:
(1) An introductory statement, including a declaration that the facility for which application is made meets the requirements of § 4.30(b)(30), or if the facility qualifies but for the discharge requirement of § 4.30(b)(30)(iv), the introductory statement must identify that fact and state that the application is accompanied by a petition for waiver of § 4.30(b)(30)(iv) filed pursuant to § 385.207 of this chapter;
(2) Exhibits A, E, F, and G.
(3) If the project structures would use or occupy any lands other than federal lands, an appendix containing documentary evidence showing that the applicant has the real property interests required under § 4.31(b); and
(4) Identification of all Indian tribes that may be affected by the project.
(b) Introductory Statement. The introductory statement must be set forth in the following format:
[Name of applicant] applies to the Federal Energy Regulatory Commission for an exemption for the [name of facility], a small conduit hydroelectric facility that meets the requirements of [insert the following language, as appropriate: “§ 4.30(b)(30) of this subpart” or “§ 4.30(b)(30) of this subpart, except paragraph (b)(30)(iv)”], from certain provisions of Part I of the Federal Power Act.
[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.
(7) Estimations of:
(i) The average annual generation in kilowatt hours;
(ii) The average head of the plant;
(iii) The hydraulic capacity of the plant (flow through the plant) in cubic feet per second;
(iv) The average flow of the conduit at the plant or point of diversion (using best available data and explaining the sources of the data and the method of calculation); and
(v) The average amount of the flow described in paragraph (c)(7)(iv) of this section available for power generation.
(8) The planned date for beginning construction of the facility.
(9) If the hydroelectric facility discharges directly into a natural body of water and a petition for waiver of § 4.30(b)(30)(iv) has not been submitted, evidence that a quantity of water equal to or greater than the quantity discharged from the hydroelectric facility is withdrawn from that water body downstream into a conduit that is part of the same water supply system as the conduit on which the hydroelectric facility is located.
(10) If the hydroelectric facility discharges directly to a point of agricultural, municipal, or industrial consumption, a description of the nature and location of that point of consumption.
(11) A description of the nature and extent of any construction of a dam that would occur in association with construction of the proposed small conduit hydroelectric facility, including a statement of the normal maximum surface area and normal maximum surface elevation of any existing impoundment before and after that construction; and any evidence that the construction of the dam would occur for agricultural, municipal, or industrial consumptive purposes even if hydroelectric generating facilities were not installed.
(d) Exhibit G. Exhibit G is a map of the project and boundary and must conform to the specifications of § 4.41(h) of this chapter.
(e) Exhibit E. This exhibit is an Environmental Report. It must be prepared pursuant to § 4.38 and must include the following information, commensurate with the scope and environmental impact of the facility's construction and operation:
(1) A description of the environmental setting in the vicinity of the facility, including vegetative cover, fish and wildlife resources, water quality and quantity, land and water uses, recreational use, socio-economic conditions, historical and archeological resources, and visual resources. The report must give special attention to endangered or threatened plant and animal species, critical habitats, and sites eligible for or included on the National Register of Historic Places. The applicant may obtain assistance in the preparation of this information from State natural resources agencies, the State historic preservation officer, and from local offices of Federal natural resources agencies.
(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.
§ 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;
(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.
§ 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 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.
§ 4.95   Surrender of exemption.
(a) To voluntarily surrender its exemption, a holder of an exemption for a small conduit hydroelectric facility must file a petition with the Commission.
(b)(1) If construction has begun, prior to filing a petition with the Commission, the exemption holder must consult with the fish and wildlife agencies in accordance with § 4.38, substituting for the information required under § 4.38(b)(1) information appropriate to the disposition and restoration of the project works and lands. The petition must set forth the exemption holder's plans with respect to disposition and restoration of the project works and lands.
(2) If construction has begun, public notice of the petition will be given, and, at least 30 days thereafter, the Commission will act upon the petition.
(c) If no construction has begun, unless the Commission issues an order to the contrary, the exemption will remain in effect through the thirtieth day after the Commission issues a public notice of receipt of the petition. New applications involving the site of the surrendered exemption may be filed on the next business day.
(d) Exemptions may be surrendered only upon fulfillment by the exemption holder of such obligations under the exemption as the Commission may prescribe and, if construction has begun, upon such conditions with respect to the disposition of such project works and restoration of project lands as may 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.
§ 4.96   Amendment of exemption.
(a) An exemption holder must construct and operate its project as described in the exemption application approved by the Commission or its delegate.
(b) If an exemption holder desires to change the design, location, method of construction or operation of its project, it must first notify the appropriate Federal and state fish and wildlife agencies and inform them in writing of the changes it intends to implement. If these agencies determine that the changes would not cause the project to violate the terms and conditions imposed by the agencies, and if the changes would not materially alter the design, location, method of construction or operation of the project, the exemption holder may implement the changes. If any of these agencies determines that the changes would cause the project to violate the terms and conditions imposed by the agencies, or if the changes would materially alter the design, location, method of construction or the operation of the project works, the exemption holder may not implement the changes without first acquiring authorization from the Commission to amend its exemption, or acquiring a license that authorizes the project, as changed.
(c) An application to amend an exemption may be filed only by the holder of the exemption. An application to amend an exemption will be governed by the Commission's regulations governing applications for exemption. The Commission will not accept applications in competition with an application to amend an exemption, unless the Director of the Office of Energy Projects determines that it is in the public interest to do so.
§ 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).
§ 4.102   Surrender of exemption.
(a) To voluntarily surrender its exemption, a holder of an exemption for a small hydroelectric power project must file a petition with the Commission.
(b)(1) If construction has begun, prior to filing a petition with the Commission, the exemption holder must consult with the fish and wildlife agencies in accordance with § 4.38, substituting for the information required under § 4.38(b)(1) information appropriate to the disposition and restoration of the project works and lands. The petition must set forth the exemption holder's plans with respect to disposition and restoration of the project works and lands.
(2) If construction has begun, public notice of the petition will be given, and, at least 30 days thereafter, the Commission will act upon the petition. New applications involving the site may be filed on the next business day.
(c) If no construction had begun, unless the Commission issues an order to the contrary, the surrender will take effect at the close of the thirtieth day after the Commission issues a public 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.
§ 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 case-specific basis any small hydroelectric power project from all or part of Part I of the Act, including licensing requirements. Any applications for exemption for a project shall conform to the requirements of §§ 4.107 or 4.108, as applicable.
(b) Limitation for licensed water power project. The Commission will not accept for filing an application for exemption from licensing for any project that is only part of a licensed water power project.
(c) Waiver. In applying for case-specific exemption from licensing, a qualified exemption applicant may petition under § 385.207 of this chapter for waiver of any specific provision of §§ 4.102 through 4.107. The Commission will grant a waiver only if consistent with section 408 of the Energy Security Act of 1980.
§ 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.
§ 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;
(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.
§ 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.
(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.
§ 4.107   Contents of application for exemption from licensing.
(a) General requirements. An application for exemption from licensing submitted under this subpart must contain the introductory statement, the exhibits described in this section, and, if the project structures would use or occupy any lands other than Federal lands, an appendix containing documentary evidence showing that applicant has the real property interests required under § 4.31(c)(2)(ii). The applicant must identify in its application all Indian tribes that may be affected by the project.
(b) Introductory statement. The application must include an introductory statement that conforms to the following format:
(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:
(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).]
(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 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.
§ 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 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.
§ 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.
§ 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.
(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:
(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 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.41;
(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 10 MW or less, but more than 1.5 MW—Exhibits F and G under § 4.61, and Exhibit E under § 4.41;
(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 10 MW or less—Exhibit E, F, and G under § 4.61; and
(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 10 MW—Exhibits A, B, C, D, E, F, and G under § 4.51.
(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.
(e) For any amendment that requires certification under section 401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act), a certifying authority is deemed to have waived the certification requirements of section 401(a)(1) of the Clean Water Act if the certifying authority has not denied, expressly waived, or granted certification by one year after the date the certifying authority received a written request for certification.
§ 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.
§ 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:
(1) Any application for exemption filed on or after the effective date of these regulations for costs incurred by fish and wildlife agencies after the effective date of these regulations;
(2) Any new dam or diversion license application seeking PURPA benefits filed on or after April 16, 1988;
(3) Any new dam or diversion license application seeking PURPA benefits filed after the effective date of this regulation, but before April 16, 1988, if the applicant fails to demonstrate in a monetary resources petition filed with the Commission pursuant to § 292.208 of this chapter that, before October 16, 1986, it had committed substantial monetary resources directly related to the development of the proposed project and to the diligent and timely completion of all requirements of the Commission for filing an acceptable application; and
(4) Any new dam or diversion license application seeking PURPA benefits filed after the effective date of this regulation, if the application is not accepted for filing before October 16, 1989.
(d) Exceptions. (1) This subpart does not apply to any new dam or diversion license application seeking PURPA benefits if the moratorium described in section 8(e) of ECPA is in effect. The moratorium will end at the expiration of the first full session of Congress following the session during which the Commission reports to Congress on the results of the study required under section 8(d) of ECPA.
(2) This subpart does not apply to any new dam or diversion license application seeking PURPA benefits for a project located at a Government dam, as defined in section 3(10) of the Federal Power Act, at which non-Federal hydroelectric development is permissible.
§ 4.301   Notice to fish and wildlife agencies and estimation of fees prior to filing.
(a) Notice to agencies —(1) New dam or diversion license applicants. During the initial stage or pre-filing agency consultation under § 4.38(b)(1), a prospective new dam or diversion license applicant must inform each fish and wildlife agency consulted in writing with a copy to the Commission whether it will seek PURPA benefits.
(2) Exemption applicants. During the initial stage of pre-filing agency consultation under § 4.38(b)(1), a prospective exemption applicant must notify each fish and wildlife agency consulted that it will seek an exemption from licensing.
(b) Estimate of fees. Within the comment period provided in § 4.38(c)(5), a fish and wildlife agency must provide a prospective section 30(c) applicant with a reasonable estimate of the total costs the agency anticipates it will incur to set mandatory terms and conditions for the proposed project. An agency may provide an applicant with an updated estimate as it deems necessary. If an agency believes that its most recent estimate will be exceeded by more than 25 percent, it must supply the prospective applicant or applicant with a new estimate and submit a copy to the Commission.
§ 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.
§ 4.303   Post-filing procedures.
(a) Submission of cost statement —(1) Accepted applications. Within 60 days after the last date for filing mandatory terms and conditions pursuant to § 4.32(c)(4) for a new dam or diversion license application seeking PURPA benefits, § 4.93(b) for an application for exemption of a small conduit hydroelectric facility, or § 4.105(b)(1) for an application for case-specific exemption of a small hydroelectric power project, a fish and wildlife agency must file with the Commission a cost statement of the reasonable costs the agency incurred in setting mandatory terms and conditions for the proposed project. An agency may request, in writing, along with any supporting documentation an extension of this 60-day period.
(2) Rejected, withdrawn or dismissed applications. The Director of the Office of Energy Projects (Director) will, by letter, notify each fish and wildlife agency if a section 30(c) application is rejected, withdrawn or dismissed. Within 60 days from the date of notification, a fish and wildlife agency must file with the Commission a cost statement of the reasonable costs the agency incurred prior to the date the application was rejected, withdrawn, or dismissed. An agency may submit a written request for an extension of this 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 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.
§ 4.304   Payment.
(a) A payment required under this subpart must be made by check payable to the United States Treasury. The check must indicate that the payment is for ECPA Fees.
(b) If a payment required under this subpart is not made within the time period prescribed for making such payment, interest and penalty charges will be assessed. Interest and penalty charges will be computed in accordance with 31 U.S.C. 3717 and 4 CFR part 102.
(c) The Commission will not issue a license or exemption, unless the applicant has made full payments of any fees due under § 4.303(c).
§ 4.305   Enforcement.
(a) The Commission may take any appropriate action permitted by law if a section 30(c) applicant does not make a payment required under this subpart. The Commission will not be liable to any fish and wildlife agency for failure to collect any amounts under this subpart.
(b) If the Commission is unable to collect the full amount due by a section 30(c) applicant on behalf of more than one agency, the amount the Commission does collect will be distributed to the agencies on a pro-rata basis except if an agency's cost statement is greater than its most recent estimate to the applicant under § 4.301(b), then the difference between the estimate and the cost statement will not be reimbursed until any amounts owed to other agencies have been paid.
§ 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.
§ 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:
[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:
The exact name and business address of the applicant(s) are:
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 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, 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.
(g) Verification. Provide verification using either a sworn, notarized statement set forth in paragraph (g)(1) of this section or an unsworn statement set forth in paragraph (g)(2) of this section.
(1) As to any facts alleged in the notice of intent to construct or other materials filed, be subscribed and verified under oath in the form set forth below by the person filing, an officer thereof, or other person having knowledge of the matters set forth. If the subscription and verification is by anyone other than the person filing or an officer thereof, it shall include a statement of the reasons therefor.
This (notice of intent to construct, etc.) is executed in the:
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)