HomeMy WebLinkAboutAPA41510 FEDERAL ENERGY REGULATORY COMMISSION
Guide to tlte
Hydroelectric
License and Exemption
Amendment Process
March 1992
Division of Project Compliance and Administration
Office of Hydropower Licensing
Federal Energy Regulatory Commission
Washington, DC 20426
0 FEDERAL ENERGY REGULATORY COMMISSION
Guide to the
Hydroelectric
License and Exemption
Amendment Process
March 1992
Division of Project Compliance and Administration
Office of Hydropower Licensing
Federal Energy Regulatory Commission
Washington, DC 20426
NOTICE
Notice
The regulations cited in this guide are subject to change. It is the
applicant's responsibility to be aware of changes in the Federal
Energy Regulatory Commission's (Commission) regulations which
may affect any application. This can be accomplished by monitor-
ing the formal documents issued by the Commission each business
day or by using one or more of the services described below.
Formal Document Electronic Bulletin Board: The Commission
Issuance Posting System (CIPS) is an electronic bulletin board
service that provides access to the latest Commission daily issu-
ances and press releases, and Commission Agenda. CIPS is
·offered at no charge to the user. It is available 23 hours a day. The
system is unavailable from 8:00 to 9:00 a.m. Monday through
Friday. Users are permitted up to 60 minutes connect time per call.
Information remains on CIPS for 30 days, and is then permanently
deleted. The files subsystem contains the full text of the docu-
ments to accommodate downloading. CIPS may be accessed by
using a personal computer with a modem. CIPS telephone num-
ber is (202} 208-1397. For assistance in locating information on
CIPS, call (202) 208-2474.
Federal Register: Published each business day, the Federal Register
contains official notices of initial filings and applications, as well as
proposed and final rulemakings of the Commission. To subscribe,
contact the Superintendent of Documents, U.S. Government
Printing Office, Washington, D.C. 20402orcall (202)783-3238for
information.
Federal Energy Guidelines: PERC Reports and PERC Statutes and
Regulations: These are looseleaf, indexed services that contain
proposed and final rulemakings, delegation· orders, notices, opin-
ions, orders, initial decisions, and fimil decisions. To subscribe,
contact Commerce Clearing House, 4025 West Peterson Ave.,
Chicago, IL 60646, or call (312) 583-8500.
Computer Databases: Several services provide access to Commis-
sion documents by computer. These include LEXIS . .and
WESTLA W. For information, write or call the offices below.
LEXIS~A vailable from Mead Data Central, P.O. Box 933, Day-
ton, OH 45401.. Phone (1-800) 544-7390.
WESTLAW~Available from West Publishing Company, P.O.
Box 64779, St. Paul, MN 55164. ~hone (1-800) 328-9833.
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CONTACTS
Contacts
This guide was prepared by the Division of Project Compliance
and Administration, Office of Hydropower Licensing.
It is available from the Federal Energy Regulatory Commission.
Information about purchasing this guide or other Commission
reports may be obtained by calling the Commission Public
Reference and Files Maintenance Branch, on (202) 208-1371 or
by writing to the Commission, Public Reference and Files
Maintenance Branch, Room 3104, 941 North Capitol Street, N .E.,
Washington, DC 20426.
The following publications may be of interest: ·
Code of Federal Regulations, Title 18, Parts 1 to 149 and Parts 280
to 399, U.S. Goverriment Printing Office, Washington, D.C.
Hydroelectric Project Licensing Handbook
Hydroelectric Project Relicensing H,andbook
Engineering Guidelines for the Evaluation of Hydropower Projects
Public Safety at Hydropower Projects
Questions and comments concerning the content of this guide may
be directed to the Division of Project Compliance and Administra-
tion at (202) 219-2750. ·
y
TABLE OF CONTENTS
TOPIC PAGE
Notice ........................................................................................ , .................................. iii
Contacts ........................................... ~ ............................................................................. v
Table of Contents ........................................................................................................ vii
Introduction ................................................................................................................... 1
Purpose of Guide ........................................................................................................... 3
Chapter 1: Common Project Modifications Requiring an Amendment.. ................... 5
Chapter 2: How Does the License Amendment Process Work? ................................ 9
Chapter 3: How Does the Exemption Amendment Process Work? ......................... 15
Chapter 4: What Goes Into the Amendment Application? ...................................... 19
Licensed Project ..................................................................................... 19
Exempted Project ............................ : ............. : ........................................ 24
Chapter 5: Questions and Answers .......................................................................... 27
A. General Guidelines ........................................................................... 27
B. Capacity;.related Jtems ...................................................................... 30
C. Operation and Design Changes .................... , ................................... 32
D. Land and Water Use Rights~~.: .......................................................... 33
E. Extension of Time ....................... : ..................................................... 33
F. Procedural Matters ............................................................................ 34
G. Other Questions ................................. : .............................................. 37 . . ~
Appendix: Reguladons.Goveming Amendments of Licensed and
Figure 1
Figure 2
Table 1
Exempted Facilities ............................................................. .-.................. 39
License amendment process flowchart .................................................. 10
Exemption amendment process for small hydroelectric
projects and conduit facilities ................................................................. 16
Exhibits and resource discussions typically included in
noncapacity-related amendments ........................................................... 23
Table of Contents vii
INTRODUCTION
Introduction
Pursuant to the Federal Power Act (FPA),· as amended by the
Electric Consumers Protection Act (ECPA), the Commission is
authorized to issue licenses and exemptions for non-federal hy-
droelectric power projects. After the Commission issues a license
or an exemption, modifications to the originally authorized project
license or exemption are often necessary. The modifications could
range from a simple time extension for completing a required
study to a complex, major design change before constructing a
project, to a modification of an existing project. Fundamentally,
the key element in determining the need for amending a license or
exemption is whether the contemplated action is consistent with
the authorizing documents. Filing procedures are detailed in the
Commission's regulations and are summarized in this guidebook.
1
PURPOSE OF GUIDE
Purpose of Guide
This guide provides step-by-step procedures to amend a license or
an exemption from license. It does not cover changes to a license
application because that subject is one of several addressed in the
Commission's Hydroelectric Project Licensing Handbook.
A key element of the amendment process is contact with the
Commission staff. You should contact the staff regarding
any proposed modification to your project that affects the
terms and conditions of your license or exemption. If you are
uncertain about what steps to take, the Commission staff in
the Division of Project Compliance and Administration can
advise you.
While this guide is helpful in understanding the amendment
process, it is not a substitute for the regulations themselves.
Before contacting the Commission or submitting an amendment
application, licensees and exemptees should review the Commis-
sion regulations in Title 18 of the Code of Federal Regulations (18
CFRPart4).
3
CHAPTER 1
Common Project Modifications Requiring
an Amendment
. License and exemption amendments are generally required when
there is a proposed change to a project previously authorized by a
Commission order issuing a license or exemption. Most project
·changes that require an amendment can be classified into six
categories: capacity changes, design changes, operational changes,
land status changes, compliance filings, and time extensions.
During project construction, minor modificlltions to the approved .
plans are ofteri necessary to adjust to actual site conditions. These
types of very minor project modifications are known as "as-built"
changes and occur as a result of discussions between the licensee
or exemptee and the appropriate Commission Regional Office.
1. Capacity Changes
The Commission defines capacity-related license amendments as
changes in a hydropower project that involve additional capacity
not previously authorized, and that: (1 ~would increase the actual
or proposed total installed capacityl of the project; (2) would
result in an increase in the maximum hydraulic capacity2 of the
· project of 15 percent or more; iUl!1 (3) would result in an increase
in the installed nameplate capacity3 of2 megawatts (MW) or more.
Changes in capacity that do not ineet all of the above criteria are
considered noncapacity-related amendments ..
The Commission'sregulations (18CFR §4.201) and its Hydroelec-
tric Project Licensing Handbook describe the responsibilities of
the licensee regarding capacity-related amendments ..
1 The installed capacity is the sum of the nameplate capacity of all !he
generating units in a hydroelectric project.
2 The maximum hydraulic capacity is the maximum water flow rate
that can be discharged simultaneously through all the project
turbines for generation at any time ..
3 The nameplate capacity of a generating unit is the manufacturer's
rating of the generator .as printed on the unit.
Chapter·!: Common Project Modifications Requiring an Amendment· 5
6
Capacity changes that are considered noncapacity-related amend-
ments are fairly common amendments to licenses. These
noncapacity changes occur when:
• The nameplate capacity of the installed generating unit is
different from that stated in the license order. For example, the
Commission recently reviewed a change in the installed capac-
ity of an 82,800 kilowatt (kW) project that was previously
authorized at 82,500 kW. Because the change in capacity was
less than 2 MW, the Commission considered the change a
noncapacity-related amendment. On another project, the Com-
mission considered a decrease in the authorized capacity from
990 kW to 935 kWa noncapacity-related amendment. In both
cases, the Commission approved the amendment applications.
• A turbine to be installed has a different capacity than what was
licensed. Frequently, after a project has been licensed, it is less
costly for a licensee to purchase a used or new off-the-shelf
turbine that has a greater capacity than that authorized. Also,
it is c_ammon for a licensee to install a turbine with a smaller
·capacity than that authorized. In either case, the licensee must
provide an explanation of such a change for the Commission
staff's evaluation. For example, a licensee requested a capacity
decrease from 3,900 kW to 2,250 kW, because the larger unit
would be uneconomical. The Commission approved the de-
crease even though the reduced capacity did not fully use the
energy potential of the site.
• Rewinding of a generator changes the installed capacity. On a
project recently approved by the Commission, rewinding of the
generators produced a 24,500-kW increase in installed capac-
ity, bringing the total capacity to 114,500 kW. Even though the
installed capacity increased by more than 2 MW, this amend-
ment was a noncapacity-related amendment because there was
no change in hydraulic capacity.
• A turbine is to be replaced with a more efficient or larger
turbine. The Commission expects this type of noncapacity-
related amendment to become more prevalent in the future as
older, less efficient turbines are replacea with modern, more
efficient ones.
• The number of generating units is changed. Often, older units
will be taken out of service because they are no longer
economical.
Guide to the Hydroelectric License and Ex~mption Amendment Process
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2~ Design Changes
Significant changes in the physical features of a project, such as
new structur~s. relocation of transmission lines, or alterations of
existing structures, may occur during construction or operation.
Common design changes include increases in dam height, modifi-
cations to transmission lines or routes, installation of fish ladders
or fishery enhancement structures, construction of afterbays, and
. the addition of flash boards to a spillway.
3. Operational Changes
After a facility is completed, a licensee or exemptee may wish to
change the way a project is operated, such as increase the operat-
ing level in the reservoir, modify the. minimum instream flow
requirement, or revise the ramping rate.
4. Land Status Changes
Changes in the status of project lands are frequently requested by
licensees. These changes generally include altered usage of lands
of the United States, changes in land rights, non-project use of
project lands, or changes in the recreational usage of the site.
Unless alre~dy provided for. as an article in the existing license, an
amendment of this type is required when: (1) the actual acreage
of federal lands within the project boundary differs from the
Jicenscd amount; (2) there is a sale of project land, or an exchange,
transfer, or leasing of project property; (3) a request is made for
water withdrawals from a project reservoir~ ( 4) a request is made
for ro(ld, bridge, or other utility rights-of -way on project lands; and
(5) dredging of project lands is proposed.
5. Compliance Filings
In any license or exemption issued by the Commission, certain
terms and conditions are included. These conditions are referred
to as "articles." Articles require a licensee or exemptee to adhere
to requirements that may govern project operation, require moni-
toring studies, or address a variety of issues related to environmen-
tal effects and engineering. These requirements may include
water quality monitoring, fish and wildlife studies, title acquisi-
tion, recreatioiuU plans, soil erosion control, maintenance of mini-
mum flows, operational limitations such as ramping rates, cultural
resources protection measures, dam safety issues, annual charges,
and schedules for the above items.'
Chapter 1: Comroon Proj~ct' Modifications Req~iring an Amendment 7
8
License or exemption articles may require the licensee or exemptee
to file study results, mitigation plans, study plans, or schedules with
the Commission. Such filings are termed compliance filings. The
Commission determines if the filing complies with the article
requirements and presents its findings in a letter or order. An
example of a compliance filing occurs when a license article
specifics the preparation of an erosion control plan. The licensee
would need to develop a plan to ensure that soil erosion would be
minimized. The Commission would review the erosion control
plan to assess its acceptability and present its findings in a letter.
When the Commission requires that compliance filings be submit-
ted for its "approval," the approval is obtained in the form of an
amendment order.
Modifications to, deletions of, partial waivers of, and revisions of
inconsistencies in license or exemption articles are also considered
amendments.
6. Time Extensions
When licenses and exemptions are issued, time limits are generally
placed on the construction of the project and on various conditions
(articles) in the license or exemption. Frequently, the licensee or
exemptee needs more time to comply with the conditions or to
start or complete construction of a facility. In such instances, it is
possible to seek modification of the time limits specified by the
Coin mission.
You may be considering modifications other than those men-
tioned above. If so, the Commission staff can advise you if an
amendment application needs to be filed, or whether you can
proceed with your modification without Commission approval.
The turnaround time for processing an amendment varies. In
simple cases, it can be a matter of days, particularly if a valid
urgency exists. In difficult cases, turnaround time will naturally be
longer. The time required for Commission processing depends on
the complexity oft he amendment, the completeness ofthe amend-
ment application, the degree of effect on the public, the concerns
of resource agencies, and the extent of work that the·Commission
needs to do in assessing impacts. Prior consultations with the
Commission and the appropriate resource agencies, however,
often produce prompt authorizations ..
Guide to the Hydroelectric license and Exemption Amendment Process
CHAPTER 2
How Does the License Amendment
Process Work?
When a licensee proposes to change a project, the procedures
presented in this chapter should be followed. Five key questions
must be addressed during this process:
1. Does the change constitute a modification of the license?
2. Is the change capacity-related?
3. Which exhibits need to be filed?
4. Is the modification substantial or would property holders be
affected?
5. Is an environmental assessment required?
Figure 1 illustrates the key steps in the license amendment process
which are described in detail below.
Step 1: Licensee proposes amendment
After you have decided to make a project change, the first consid-
eration is to determine the type of modification and the potential
engineering and environmental effects. If the change is for a time
extension, request the extension in writing, including the reason
for the request. If your change is a capacity change, a design or
operational change, a land status change, a compliance filing, or an
article modification, proceed to Step 2.
Step 2: Is your amendment a capacity-
related amendment as defined in
18 CFR §4.201(b)?
lf the proposed change involves additional capacity not previously
authorized, and that: (1) would increase the actual or proposed
total installed capacity of the project; (2) would result in an
increase in the maximum hydraulic capacity of the project of 15
percent or more; and (3) would result in an increase in the installed
nameplate capacity of 2 MW or more (capacity-related amend-
ment), consult 18 CFR §4 .201 (b). All of the above criteria must be
met for an amendment to be capacity-related. If only one criterion
applies, the amendment is a noncapacity-related amendment.
You should also refer to Chapter 5 of the Hydroelectric Project
Chapter 2: How Does the License Amendment Process Work? 9
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Step 1
Licensee
proposes
amendment
Step 2
Solicit advice from
Commission staff
regarding
consultation with
resou:rce agencies and
appropriate exhibits to
include in application
no
Consult
l8CFR4.38
and 4.20l(b)
License Amendment Process
Step 3
Licensee
files application ...----...
to amend license
Step 4
yes
Public notice
of
modification
Step 5
yes
NEPA
document
prepared
Does the modification entail substantial changes on the plan of project development or in the terms and
conditions of the license, or adversely affect the rights of propaty holders in a manner not contemplated by
the license?
Figure 1. Ucense amendment process flowchart (Source: the staff).
Step 6
I
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Licensing Handbook for further information on capacity-related
amendments:
If the proposed change is not ~capacity-related amendment, ask
the Commission staff to identify what resource agencies, if any,
should be consulted, and the appropriate exhibits, or revisions or
, additions to any exhibits on file, to include in the amendment
application. Resource agency means a Federal, state, or interstate
agency·exercising administratiqn over the areas of flood control,
navigation, frrigation, 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 [18 CFR §4.30(b)]. · As appropriate, consult with the
Federal agencies administering United States lands, and the certi-
fying agency under Section 401 (a )(1) <?f the Federal Water Poilu-
tion .Control Act (Clean Water Act); The selection of .agencies
depends upon the types of, resources affected and on the impacts
· that are anticipated. The three stage agency consultation process
.(18 CFR §4.38) does not .apply to noncapacity-related amend-
ments,exceptforthosechangesidentified in 18 CFR §4.38(a)( 4)(v).
These changes 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.
Stf!p _3.: · Licensee files application to amend
license ·
For noncapacity-related amendments, the nature of the proposed
change, the type of project (based on proposed capacity), and the
:construction status ofthe project determinewhich exhibits need to
be included in your amendment application. The exhibits to be
considered are those previously filed with the Commission as part
of the orjginal,new, or amended license. All exhibits that require
revision becauseofthe nature ofthe proposed amendments must
be .filed. However, op~y revisions to appropriate portions of
exhibits on file with the Commission are required. For example,
if an amendment wol,lld affect only a portion of the environmental
~esources under the Exhibit E on file, such as water quality and
fish, the amendment application should contain a revised Exhibit
.. E add~essing wat.er quality and fish. Thesevised exhibit should
also contain a statement of effect for the remaining resources not
. adversely affected by the amendment (e.g., wildlife and botanical
' . . .
Chapter 2: How Does the License Amendment Process Work?.
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11
12
resources, historical and archeological resources, recreational
resources, etc. of Exhibit E).
lnthe revised Exhibit E, all affect~d resources must be described,
potential impacts discussed, and where necessary, environmental
protection, mitigation, and enhancement plans proposed. Chap-
ter 4 discusses the contents of an amendment application for the
various types of project modifications. The revised exhibits are
governed by regulations contained in 18 CFR §4.41, §4.51, or
§4.61. (18 CFR §4.41 regulations apply to a major unconstructed
or major modified project~ 18 CFR §4.51 regulations apply to a
major project-existing dam; and 18 CFR §4.61 regulations apply to
a minor water power project, or a major water power project of 5
MW or less.)
Step 4: Is the modification substantial
or would property holders be
affected?
Jfthe Commission determines thai' the modification entails sub-
stantial changes in the plan of project development or in the terms
-. .and conditions of the license, or adversely affects the rights of
property holders in a manner not contemplated by the licensee,
then pursuant to Section 6 of the FPA, 16 U.S.C. 799, the Commis-
sion gives notice of the proposal at least 30 days before a decision
on the application.
Step 5: Is National Environmental Policy
Act (NEPA) review required?
Generally, the Commission prepares an environmental assess-
ment if the proposed modifications would cause ground distur-
bance on project larids, or cause different impacts from those
assessed for the existing license. Environmental assessments are
not normally prepared for the· following types of amendments:
(1) minor capacity changes that are defined as noncapacity-re-
lated amendments; (2) design changes that do not involve land·
disturbance; (3) changes in the status of project lands if there is no
associated land disturbance; and ( 4) most compliance filings. They
are also not normally prepared when project lands are to be used
for utilities, piers, landings, boat docks, landscaping, or shoreline
erosion control structures. The Commission's regulations imple-
menting NEPA (18 CFR §380.4) provide further information on
. categorical exclusions. However, exceptions may be made where
circumstances indicate that an action may be a major Federal
Guide to the Hydroelectric License and Exe_mption Amendment Process
action significantly affecting the quality of the human environ-
ment. Exceptions may also be made ifthe following are potentially
affected: Indian lands, wilderness areas, wild and scenic rivers,
wetlands, units of the National Park System or National Refuges,
anadromous fish, or endangered species.
Step 6: Commission decisiQn
After the NEPA review has been completed, the Commission or
its delegate determines if the license should be amended. In
contested. projects, the Commission itself makes the determina-
tion.
Chapter 2: How Does the License Amendment Process Work? . 13.
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CHAPTER 3
How Does the Exemption Amendment
Process Work?
r Exemption amendments follow a slightly different process than
license amendments. In this case, the following key questions must
be addressed:
1. Would the change cause a violation of the agency-imposed
terms and conditions m: materially alter the design, location,
method of construction, or the operation of the project works?
2. Does the revised project still qualify for the exemption?
3. Which exhibits need to be revised?
4. Is the modification substantial or would property holders be
affected?
5. Is an environmental assessment required?
Figure 2 presents a step-by-step diagram of the exemption amend-
ment process for small hydroelectric power projects of 5 MW or
less, and small conduit hydroelectric facilities.
Step 1: Fish and wildlife agency
notification
After deciding to change the design, location, method of construc-
tion, or operation of its project, the exemptee must first notify the
Federal and state fish and wildlife agencies that authored the
original terms and conditions of the exemption and inform them in
writing of the changes it intends to implement.
Step 2: Would the change violate the
agency-imposed terms and
conditiQns or materially alter the
design, location, method of
construction, or the operation of
the project works?
The appropriate Federal and state fish and wildlife agencies
review the changes to determine if the changes would cause a
violation of the terms an<l conditions originally imposed on the
exemptee's project. If the agencies determine that the changes ·
Chapter 3: How Does the Exemption Amendment Process Work? 15
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Step 1
Exemplee notifies
resource agencies
of proposed
cb~~nge to project
Step 2
Commission
aulhorization
required before
cbange can be
Implemented
Exemplee notifies
Commission staff
or proposed change
Exemption Amendment Process 1
Step 3
no
Consult
J8 CFR 4.38 and
4.41, 4.51, or 4.61
Step 4 Step 5 Step 6' Step 7
File application to •';/:
amend exemption ciWmiii~kiiii·
with appropriate
exhibits and agency
comment leuers
Public notice NEPA
of document
modification prepared
Small hydroelecllic power project or S MW or less and small conduit hydroelectric facilities
2 Does the modification entail substantial changes on the plan of project development or in the tenns and
conditions or lhe exemption, or adversely affect the rights of property holders in a manner not contemplated
by the exemption?
lleei~iliil >
,;;: .:~:~~
Figure 2. Exemption amendment process for small hydroelectric projects and conduit facilities (Source: the staff).
would not cause the project to' violate the terms and PJnditions
.imposed by the agencies, and if the changes would not materially ·
alter the design,location,method of construction, or operation of
the project, the exemptee may implement the changes. The
exemptee should consult with the Commission staff for assistance
in. determining wh.ether the proposed changes would materially
alter the design, location, method of construction, or operation of .
. the project.
if any of the appropriate Federal ~d state fish and wildiife
agencies determine 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 ofthe project works, the exemptee
may not implement the changes without first acquiring authoriza-. ' .
tion from the Commission to amend its exemption.
Step 3: Does the revised project still
qualify fQr an exemption?
The Commission staff examines the proposedchange and deter-
mines whether the revised project would still qualify for an exemp-
tion. If the modified project would no longer meet the definition
of a small hydroelectric power project or a small conduit hydro-
electric facility, the project would lose its status as "~xempt"
[Refer to 18 CFR § 4.30(b)]. The applicant would need to return
to the relevant resource agencies and consult with them on the
proposed change as part of an application to license the facility.
(Refer to 18CFR §4.38 and §4.41, §4.51 or §4.61.)
If the revised project still qualifies for an exemption (as deter-
mined by the Commission), then an amendment applica~ion must
be filed.
Step 4: Revise appropriate exhibits
To complete the amendment application, the exemptee must
revise relevant exhibits that are representative of the proposed
· project. The exemptee should consult with the Commission staff
to determine which exhibits (previously prepared for the original
exemption application) should be revised for submittal with the
amendment application. Generally, the amendment application
must describe all resources that the proposed change would affect,
potential etfects,on resources, and proposed environmental pro-
. tection, mitigation, and enhancement plans. When the appropri-·
ate exhibits are completed,th¢ exemptee must file the amendment
application, including agency comment letters ..
,.~· I
Chapter 3:. How Does the Exemption Amendment Process W~rk?
18
Step 5: Is the modification substantial or
would property holders be
affected?
If the Commission determines that the modification entails sub-
stantial changes in the plan of project development;or adversely
affects the rights of property holders in a manner not contem-
plated by the exemption order, then pursuant to Section 6 of the
FPA,.16 U.S.C. 799, the Commission gives notice ofthe proposal
· at least 30 days before a decision on the application.
Step 6: Is NEPA review required?
Generally, the Commission prepares an environmental assess-
ment if the proposed modifications would cause ground distur-
bance at the project, or cause different impacts from those as-
sessed for the existing exemption.
Step 7: Commission decision
After NEP A review, the Commission or its delegate makes a
detennination on the amendment application.
Guide to the Hydroelectric Ucense and Exel')'lption Amendment Process
CHAPTER 4
What Goes Into the Amendment
Application?
Dear PERC:
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The contents of amendment applications differ for licensed and
exempted projects, and are discussed in separate sections in this
chapter. Depending on the type of amendment, the level of detail
may vary from a one-page letter to a comprehensive multi-volume
amendment application. ·
:Cicensed Project
1. Capacity-related Amendments
For capacity-related amendments, a licensee must provide the
information required by 18 CFR §4.201(b). Further information
on the contents of a capacity-related amendment is provided in the
Commission's Hydroelectric Project Licensing Handbook.
2. Noncapacity-related Amendments
A letter to the Commission is appropriate for the following
proposed noncapacity-related amendments: (1) capacity changes
that ate considered noncapacity-related amendments; (2) certain
types of project land status changes; (3) compliance filings and
most article modifications; and ( 4) time extensions. The letter
must provide reasons for the amendment, and include relevant
resource agency· letters of comment, exhibits, and applicable
drawings, as discussed below.
CapacitY Changes
For a noncapacity-related amendment, the proJect description in
Exhibit A should be revised to reflect the proposed capacity. If the
capacity change is minimal and is the result of on-the-shelf avail-
ability of the turbine-generating unit, an economic feasibility
study need not accompany the amendment application. However,
if the authorized capacity has decreased substantially, then an
economic feasibility study must accompany the application for the
staff to determine the effect of the decrease in capacity on the
comprehensive Qevelopment of the river basin. Obviously, the
noncapacity-related amendment process is on a case-by-case ba-
sis. Therefore, licensees are encouraged to contact the Commis-
sion staff for guidanc~ prior to fil~ng amendment applications.
·Chapter 4: What Goes·lnto the Amendment Application? 19
20
Project Land Status Changes Permitted By License
Article
in 1980, the Commission endorsed a standard license article
permitting licensees to act on routine matters of land and water use
rights to reduce the administrative burden on the licensee and the
Commission. This standard article authorizes a licensee to ap-
prove certain types of use and occupancy of project lands and
waters without prior Commission approval. Such uses and occu-
pancies include certain recreational development, landscape
plantings, non-commercial boating access facilities intended to
serve single-family type. dwellings,_ private or public marinas that
can accommodate no more than 10 watercraft at a time, erosion-
control structures, and easements or:zrights-of-way across project
property for utility distribution lines, storm drains and water
mains, sewers, bridges, roads, and water intake or pumping facili-
ties. ·
For certain uses of project lands and waters, which the licensee can
permit without prior Commission approval, the licensee must file
a report annually that briefly describes for each conveyance the
type of interest conveyed, the location of the lands subject to the
conveyance, and the nature of the use. For other uses, the licensee
must file, at least 45 days before conveying any interest in project
lands, a letter to the Director, Office of Hydropower Licensing,
stating its intent to convey the interest and briefly describing the
type of interest and location of the lands to be conveyed, the nature
of the proposed use, the resource agencies consulted, and the
Federal or state approvals required. Most conveyances granted
under this article are subject to specific conditions identified in the
article. These conditions must be fulfilled before an interest in
project property is conveyed. Conveyance of land under this
article does not change project boundaries. A licensee must do this
through an amendment of Exhibit G or K drawings reflecting
exclusion of that land.
Compliance Filing
Requirements for compliance filings are provided in the license
articles. Refer to the specific license article to determine the level
of detail and type of information required in a compliance filing.
Time Extensions
For a time extension, the licensee must provide reasonable justi·
fication for the delay. Furthermore, the request for time extension
must be filed reasonably in advance of the deadline. Under
Section 13 of the FPA, the Commission can grant a licensee only
Guide to the Hydroelectric License and Exe~ption Amendment Process
. ,.
.·
one extension of time for a maximum of two years to commence
constructi<;m .of a new project. .. For other situations, such as
completion of construction or compliance filings, the Commission
may grant multiple extension·s. However, the licensee must dem~ .·
onstrate that reasonable diligence was exercised in pursuing com~
pliance filings, i;llld ~hat there is good cause for the time extensions.
Extensions of time for the start or completion of construction must
be filed with the Commission at least 90 days prior to the dates
previously .prescribed by the Commission. For other types of
extension requests, the licensee must submit the request in a
. time'ly manner b~fore the date on which t.he information is due to
the Commi~sion. If the request for extension of time is made after
the due date, the Commission may still grant the time extension,
but the licensee must demonstrate that there were extr;:t.ordinary
circumstances sufficient. to justify the failuJ;e to act in a timely
manner. The l,icensee mu~talso submit a motion requesting .a
waiver of the time requirement. The Commi~ion may reject the
time extensi9n request if the motion requestirtg the waiver does
· not ,acco!llPany the exten~ion of time request. . .";_
,, Design, Oper.ation, and OtherLandStatus Changes
Design changes, operational changes, and certain land status
changes require a detailed applicf).tion. The following section may
be used as a guide for completing comprehensive license arrtend~
ment applications. However ,specific regulationsat 18 CFR §4.201
should always be relied upon before submitting an application.
·The best way to ensure that you are submitting the proper amend·
meut information is to· consult with the Commission staff in
ad.vauce of the submittal.
Comprehensive license.amendment 'applications must contain an
initial statement, certain specified exhibits, and in some cases,
evidence of a new request for water quality certification. This
certification is required if the amendment would have a material
adverse impact on the water quality in the discharge from the
project.
The first item required in the amendment application is an initial
statement that provides:
• the name of'the applica~t,
• current business address. and telephone number,
· · . • · applicant's status as a private citizen, corporation, municipality,
etc.,
• project nJJmber of th~ H~nsed facility and the date the lieense
was issued, .
Chapter 4: What Goes. Into ·the Amendment Application? ' . . . . 21
22
• a listing of the proposed amendment{s) and why it is being
requested {list articles and/or conditions that may be affected),
and
• the statutory or regulatory requirements ofthe state( s) in which
the project is located with respect to {the river) bed and banks,
and to the appropriation, diversion, and use of water for power
purposes {also, what steps the applicant has taken or plans to
take to comply with the above laws and regulations).
The licensee must provide new exhibits, revisions, or additions to
exhibits on file that are affected by the proposed change. All filings
should be completed under current regulations, unless the Com-
mission staff instructs otherwise. For licenses with an Exhibit K,
outdated maps should be revised as appropriate and resubmitted.
For licenses with no· Exhibit E (Environmental Report), the
applicant should provide information pertinent to the proposed
· amendment. It is not necessary to prepare an entire Exhibit E for
an amendment that affects only some of the resources listed in the
Exhibit E regulations. The information contained in the exhibits
should be commensurate with the scope of the licensed project and
the proposed amendment. For example, proposing an enlarged
upper reservoir or a significantly altered downstream flow regime
would necessitate more analysis than a revision of project bound-
aries. The required exhibits will also depend upon the type of
project being altered.
The Commission staff can help licensees determine which exhibits
should be modified. For design, operational, and certain land
status changes, Table 1 illustrates the exhibits typically included in
an amendment application and the resourees that are normally
most affec~ed. In. preparing an amendment application, the lic-
ensee should discuss those resources that would be affected by the
proposed modification and identify those resources which would
not be affected. The importance of the resource should be
described in terms of national, regional, or local importance. The
degree of impact should be presented in the context of the sur-
roundings.
The licensee should also describe the natural, historical, and scenic
values of the reservoir and include a discussion of how the pro-
posed changes would be consistent with the recreational uses of
the project. Where adjacent landowners could be affected, the
extent of the impacts to the landowners should be identified. All
landowners likely to be affected by the proposed amendment
should be notified of the proposal by certified-mail. The notifica-
tion must describe the licensee's proposal, contain the licensee's
name, business address, and telephone number, and include a
copy of the Exhibit G included in the amendment application. The
Guide to the Hydroeiectric License and Exemption Amendment Process
9
Dt
l .... ..
~ a
C)
0
(I)
(/)
5' s
r+ ::r
(I)
;::, )>
·~ 3
(I)
::::1
.:·::. 0.
~
--· ;:i.
)>
'C ,, 'C f~; c;·
~? g.
::::1 . ...,
Table 1. Exhibits and resource discussions typically included in noncapacity-related amendments. I
DESIGN CHANGE OPERATIONAL CHANGE PROJECTLAND-STATIJS
Exbibit C Propcsed
Construction ScbeduJel
Other
D.,. H~ Tl11Jt11111JM1on Flldllty
FIMhoo.rdl Afterbay Liue Route Reloaldon
• • • •
ReiM!I'l'oir
Water Minimum Runpln1
Level Flow Rate
• •
Water
Supply4
Recnadoa
Flldlldet
(DoW,
Mailaa.)
1 Applicable to Major Uuconstructed or Major Modified Projects (18 CFR §4.41), Major Project-Existing Dam (18 CFR §4.51), Minor Water Power Project 5 MW or leaa (18 CFR 14.61).
2 Exhibits 8, C, and Dare not required for a minor project or major project 5 MW or less. ·
~ Aesthetic Resources and Land Use are combined in Land Management and Aesthetics in §4.51.
4 Greater than one million gallons per day.
24
notification must . also state that an application to amend the
license has been filed with the Commission and request comments
on the proposal. Requests for comments on the proposal should
allow a minimum of 30 days for property owner response.
For any proposed land or water use, the licensee should show that
the proposed use is not inconsistent with any 'approved recreation
plan. The amendment application should also discuss proposed
changes in project operation or how project operation would be
affected.
The amendment must also summarize consultations with the
resource agencies and Indian tribes, propose reasonable mitiga-
tive or enhancement measures in response to effects from the
proposed amendment, and respond to any objections, recommen-
dations, or conditions submitted by the agencies or Indian tribes.
Copies of all written correspondence between the licensee, the
agencies, and the tribes must be attached to the application.
Exempted Project
The Commission requires similar information for exemption
amendment applications for the following types of amendments:
(1) capacity changes; (2) compliance filings~ and (3) time exten-
sions (refer to licensed projects above). The notable exceptions
are for commencing and completing construction of a new project.
Whereas a licensee can receive only one time extension, the
Commission may grant exemptees more than one extension for a
good cause. Generally ,construction of exempt facilities should be
completed within four years from the effective date of the exemp-
tion. However, the Commission may grant multiple extensions for
completion of specific C0~1Struction.
The following paragraph describes more detailed amendments of.
exemption for operational changes. However, regulations at 18
CFR §4.96 and §4.104 should always be relied on before submit-
ting an application. The exemptee may also contact the Commis-
sion staff for advice in preparing exhibits.
An application for amendment to an exempted project follows the
same format as the original exemption application. The primary
difference is that the exemptee only needs to provide information
for exhibits requiring revisions.
The application should start with an introductory statement that
includes:
• the project number and name,
• the name of the applicant,
Guide to the Hydroelectric License and Exemption Amendment Process
• the location of the projeCt~
• business address of the applicant,
• names and business addresses of all the applicant's agents, and
• the applicant's status as a private citizen, corporation, munici-
pality, etc.
In Exhibit A, the exemptee should descnbe proposed repairs or
modifications planned for any dam, impoundment, conduit, or
appurtenant facilities used by the project, the number and capacity
. of existing and proposed generating units, the type of each hydrau-
lic turbine, the proposed powerplant operations (run-of-river or
peaking), the estimated average annual electric generation, aver-
age and design head of the plant, hydraulic capacity of each
turbine, size of any impoundment used for electric generation (at
normal maximum elevation), and the dates for beginning and
completing construction,
·Exhibit B; a general location map of the project, should be revised ·
. to reflect changes to existing and proposed structure locations, or
property ownership.
Exhibit E, the environmental report, should discuss expected
environmental effects· from any proposed changes to operation or
construc~ion of the project. Measures to protect and enhance
affected environmental resources and values, mitigative measures
for adverse project impacts, and any additional information deemed
important by the applicant should be provided. The level of detail
for the environmental· report should match the scope of the
project. Exhibit E should also include resource agency letters.
Exhibit G, drawings showing the structures and equipment, should
be revised to reflect proposed modifications to the structure~ and
. project equipment.
·.· '
Chapter .4: What Goes Into the Amendment Application? 25
I
26 Guide to .the Hydroelectric Ucense and Exemption Amendment Process
CHAPTER 5·
Questions. and Answers
This chapter presents typical applicant concerns in the amend-
ment process in the form of questions and answers. If you do not
find answers to your specific questions c,ontact the Commission
staff.
A. General Guidelines
1. Q: When is an amendment of a license or an exemption
required?
A: Fundamentally, the key element in determining the nee'd for
amending a license or exemption is whether the contemplated
action is consistent with the authorizing documents. Amendments
would be necessary in the following circumstances:
• change in installed capacity~
• change in project boundary;
• increase in height or size of the dam'for project operation~
• change in the normal maximum surface area or elevation ofan
existing impoundment;
• addition of new turbines and generators;
• change in operation of the project;
• addition of new terms or conditions (or deletion of existing
terms or conditions);
• .construction of a dam or diversion structure whete there is no
existing dam or diversion;
• permanent change in the minimum instream flow (whether
flow is for fish, wildlife, aesthetics, water quality, or other
purposes);
• permanent change in ramping rates~
• changes in project design thatrequire modifications to mitiga-
tion or enhancement measures (e.g., ·relocation of wetland,
change in approach velocity at screens, change in multi-level
intake structure for controlled water release temperatures,
etc.);
• increase in the length of primary transmission line;
Chapter 5: Questions and Answers · 27
28
• changes to the uses of project lands and waters not covered by
standard water and land use articles of the license~
• changes to licensed structures that are external to the power-
house;
• compliance filings; and
• extensions of time.
In general, an amendment would not be required for the following:
• emergency situations;
• routine operations and maintenance activities;
• temporary or short-term activities.;
• monitoring activities;
• administrative actions; and
• where standard license articles delegate authority to the lic-
ensee for certain actions, such as erosion control structures, and
private docks and piers.
If the changes you are planning are not covered in the above
answer, contact the Commission staff for assistance.
2. Q: Is a temporary alteration of the minimum instream
flow considered an amendment? .
A: Temporary deviations from license and exemption requirements
are only permitted in emergency situations beyond the control of
the licensee or exemptee. In some cases, minimum flow require-
ments in licenses and exemptions may provide for temporary
modification of the flow requirement upon mutual agreement
with specific resource agencies. Deviations from the flow require-
ment in the latter case should not exceed two weeks. Temporary
deviations are not permitted for routine maintenance, even for
short periods, unless specifically authorized in the license or
exemption articles.
An exemptee should contact the resource agencies consulted
during the original exemption process to determine the potential
effects of proposed temporary deviations to minimum instream
flows, and to identify necessary mitigative measures. The exemptee
should then contact the Commission staff to determine if an·
amendment of the exemption is needed. If the Commission
determinesthat an amenc;lment is not required, it may issue a letter
acknowledging the proposed temporary changes. If the changes
Guide to the Hydroelectric License and Exemption Amendment Process
are not considered temporary, the Commission would requjre a11
amendment to the exemption.
A licensee should contact the resource agencies consulted during
the licensing process to determine the potential effects of pro-
. posed temporary deviations to minimum instream flows, and to
identify necessary mitigative measures. This contact may reduce
the overall proce~sing time. A licensee. should then inform the
Commission of tne ag~pcy comments and recommendations and
their responses to the mjtigative meas~r~s so that the Commission
can determine if an amendment application is required. If the
Commission determines that an amendment application is not
required,it may issue a letter acknowledging the alteration of
·nows if agency. recommendations are accepted by the licensee. If
the Commjssion determines that the proposed temporary changes
· are riot brief, or if the licensee does not agree with agency recom-
mendations, the Commission will require an amendment applica-
tion.
3. Q: When should a licensee 9r exemptee contact the
Commission if the licensee or exemptee is
contemplating a modification to a facility that would
require an amendment?
A: A licensee may contact· the Commission staff at any time for
information or clarification of regulations. An exemptee should
contact the appropriate Federal and state fish and wildlife agen~
cies as an initial source of consultation when considering amend-
ments. The exemptee should contact the Commission after con-
. sultation with the fish and wildl~fe agencies. '
4. Q: What happens if changes are made to a project
without 'go~ng through the amendment process? '
A: As part of its responsibilities, the Commission is charged with
ensuring that each project i.s constructed and operated as au tho-
. rized in the license or exemption order. Ina case where a project .
has been improperly altered, or unauthorized construction or
operation has taken place, the Commission'simmediate objective
would be to bring the project back into compliance. Dep~nding on
the nature of the noncompliance, however, the Commission may
review the viola!ion for possible civil penalty action under Section
31 ofthe FPA ..
.,
Chapter 5: Questions and Answers 29
B. Capacity-related Items ·
1. Q: . What is nameplate capacity and what is project· .,.
installed capacity?
A: The Commission defines the nameplate capacity of a generating
unit as the manufacturer'sratingofthe generator as printed on the
unit. If the generator unit is modified, the generator nameplate
should be changed accordingly. 'J1le project-installed capacity is
defined as the sum ofthe nameplate capacity of all the units in the
project.
2. Q: What is the hydraulic capacity of a project?
A: 'The hydraulic capacity of a project is defined as the maximum
water flow rate that can be discharged simultaneously through the
. project turbines for generation at any time.
3. Q: Does the Commission consider all capacity changes to
licensed projects equally, or is there a threshold below
which changes are considered minor?
A: The Commission considers changes to installed capacity of li-
censed projects differently based on the magnitude of the changes.
If the proposed change involves additional capacity not previously
authorized, and (1) would increase the actual or proposed total
installed capacity of the project~ (2) would result in an increase in
. the maximum hydraulic capacity of the project of 15 percent or
-more; and (3) would result in an increase in the installed nameplate
capacity of 2 MW or more, then the Commission requires a
capacity-related amendment (refer to §4.201(b) of the
Commission's regulations). For changes to installed capacity that
are less than any one of the above threshold limits, the Commis-
sion does not require a capacity-related .amendment application.
The licensee must still consult with the agencies to ensure that
the proposed amendment does not significantly affect the project
as authorized. The licensee should notify the Commission staff of
all changes to the authorized installed capacity. For additional
information, refer to Commission Order 533,55 FERC Cf61,193,
May 8,1991.
4. -Q: Does the Commission consider all capacity changes to
exempted projects as major changes or is there a
threshold below which capacity changes are
considered minor?
30 Guide to the Hydroelectric Ucense· and Exemption Amendment Process
~
5.
6.
7.
A: The Commission does not consider capacity changes to exempted
projects as minor or major. The Commission considers all changes
to exempted projects, not just capacity changes, in the same
manner. The exemptee should contact the appropriate Federal
and state fish and wildlife agencies as the first step in amending its
·exemption (see Figure 2, Chapter 3).
Q: Wbat should a licensee or exemptee do if the number
of units making up the authorized plant capacity is
different from that licensed because of design or
procurement changes that are made after the facility
is licensed or exempted?
A: If the hydraulic capacity and the operating regime of the proposed
plant would not be different from the authorized capacity and
authorized operating regime, a letter application should be filed
with the Commission as soon as the design or procurement deci-
sion is made notifying the Commission of the change in the number
of units. Design drawings and as-built drawings of the facility will
provide adequate records of the actual facility construction.
Q: What must the licensee or exemptee do if the installed
capacity is different from the authorized capacity at
an existing plant or at an unconstructed facility?
A: In both cases, the licensee or exemptee should write to the Com-
mission describing the differences in the installed and authorized
capacity and explain what caused the differences.
Q: What should a licensee or exemptee do if the plant
cannot generate at the installed capacity due to site
conditions (i.e., the maximum plant generation is
always less than the plant installed capacity)?
A: A licensee should submit a letter amendment application provid-
ing the original and any revised design criteria, equipment perfor-
mance data, and other pertinent factors. A detailed explanation
justifying a reduction in the authorized capacity should be pro-
vided. A licensee may realize small savings in the annual capacity
charges assessed by the Commission as a result of such adjust-
ments.
An exemptee may choose to simply notify the Commission in a
letter explaining the situation and request a change in the au tho-
rized capacity for record purposes.
Chapter 5: Questions and Answers 31
32
8. . Q: What happens if an amendment to an exempted
project (S MW or less exemption) would cause the
installed capacity to exceed S MW? What happens if
· an amendment would cause the installed capacity of
an exempted small conduit hydroelectric project to
exceed 15 MW?
A: In both cases, the project would no longer be eligible for exemp-
tion from Part I of the FP A. Instead of filing an amendment
application, the exemptee should file an application for original
license. If the facility becomes licensed, the Commission would
terminate the exemption for the project. (Refer to 18 CFR Part 4
§4.41, §4.51, or §4.61 and the Hydroelectric Project Licensing
Handbook for filing a license application.)
9. . Q. What are the implications of changing a minor project
to a major project?
A. A project is considered minor if its capacity is less than 1.5 MW. If
a proposed amendment would cause the capacity to exceed 1.5
MW, the project would become a major project, under the Com-
mission definitions, and would be subject to a new set of standard
and nonstandard terms and conditions. If this situation arises, the
licensee should immediately consult with the Commission staff to
discuss the ramifications of the changes.
C. Operation and Design Changes
1. Q: Is it true that any change from the authorized
operation or design would require an amendment?
A: Yes. · All changes to project operation or design specifically
authorized in a license require an amendment. The licensee
should contact the resource agencies and the Commission staff
regarding potential effects due to proposed changes. If the changes
from the authorized operation and design would have insignifi-
cant, neutral, or even beneficial impacts, the Commission may
require a letter amendment application and a summary of the
consultation.
Change from the authorized operation or design for an exemption
. may or may not require an amendment. An amendment of the
exemption is required if either one or both of the following
conditions apply: . (1) after review of the changes by the appropri-
ate Federal and state fish and wildlife agencies, any of the agencies
determine that the proposed changes would cause a violation of
the terms and conditions originally imposed on the exempted
Guide to the Hyqroelectric License and Exe~ption Amendment Process
1
;
\
project; or (2) the changes would materially alter the design,
· location, method of construction, or operation of the project. An
amendment ofthe exemption is not required if both ofthe follow-
.. ingconditions apply: (1) the appropriate Federal and state fish and
wildlife agencies determine that the changes would not cause the
project to violate the terms and conditions originally imposed by
the agencies; and (2) the changes would not materially alter the
design, location, method of construction, or operation of the
project. ·
D. Land and Water Use Rights .
1. . Q: . Is an amendment application required for every
' change in land and water uses and rights, -project
boundary, or change in project ownership?
A: No. In 1980, the Commission decided to ease the administrative
burden on licensees and Commission staff by incorporating a
standard lieense article that permits li.censees to approve certain
changes to land and water uses and rights, inCluding easements,
rights~of-way, erosion·p~otection, water supply facilities, private
docks and piers, and public marinas with less. than 10 boat slips.
However, the licensee must notify the Commission of the changes
in an annual report. For project boundary changes,.an amendment
· .. application is always required. When there is a change in project
ownership, a licensee must file a transfer application.
E. Extension of Time
1. Q: Does the Commission consider all requests for
extension of start or completion of construction as an
amendment? If so, what details are required in an
application?
A: Every request for time extension for start or completion of con-
struction is considered an amendment. However, the Commission
requires only a letter request as an application for time extension.
The letter should include an explanation for the time extension.
Extensions of time for the start or completion of construction must
be filed at least 90 days before the' proposed dates. In evaluating
such requests, the Commission uses the following guidelines:
• start of project construction is considered as the earlier of the
start of civil construction (ground breaking ceremony does not
qualify .as start of ~nstruction) or the ordering and start of
. .. fabrication of generating ~q4ipment if manufacture of the new
Chapter 5: Questions and Answers 33
34
turbine and generator is the critical activity for the project. In
either case, the Commission considers firm contracts and ex-
change of significant sums of monies as key parameters to
define the start date of construction (refer to Commission
Orders 3512 of February 21,1989, and 3228 of September 17,
1987).
• the Commission performs a due-diligence review of the actual
progress of construction to evaluate requests for extending
project completion.
2. Q: How many time extensions are permitted for the start
of construction for a licensed or exempted project?
What is the maximum time extension a licensee/
exemptee can get?
A: The Commission will grant only one extension of time for start of
construction for a licensed project. The maximum period of
extension of construction start is two years. The Commission
recommends that any request for time extension be for a two-year
period since an extension for one year, for example, cannot be
extended later to a second year.
For an exempted project, the Commission may grant more than
one extension if the exemptee shows good cause. However, the
Commission may revoke the exemption if construction has not
begun within two years.
F. Procedural Matters
1. Q: What is the fastest way to get a response to an
amendment application from the Commission?
A: The Commission processes over 1,(X)() amendment application~
per year. Those initially received in complete form get the fastest
response. To ensure a complete application, read your license or
exemption, read the regulations, and consult with the resource
agencies and Commission staff when preparing the application.
2. Q: For a noncapacity-related amendment, what
information should be provided to resource agencies
and Indian tribes as part of agency consultation, when
consultation is necessary?
A: For amendments to an existing license that would not increase the
capacity of the project as defined in 18 CFR §4.201(b ), but that
would involve one of the changes specified in 18 CFR §4.38(a)( 4 ),
the applicant must provide the resource agencies and Indian tribes
Guide to the Hydroelectric License and Exer:nption Amendment Process
with the information specified in 18 CFR §4.38(b)(1). These
. project changes are: (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. The applicant should contact the Commission
staff for guidance in determining if its proposed amendment
involves one of these three changes.
For all other amendments that would not increase the capacity of
the project as defined in 18CFR §4:20l(b), the applicant must at
a minimum, when. consultation is necessary, provide the resource
agencies and Indian tribes with copies of the draft application as
required in 18 CFR §4.38(a)(5). The draft application should
.contain the information described in Chapter 4 of this guide.
3. Q: How much time is allotted for the resource agencies
.and Indian tribes to· review consultation infonnation
submitted by an applicant?
· A: For amendments to an existing license that would not increase the
capacity of the project as defined in 18 CFR §4.201(b), but that
would involve one of the changes specified in 18 CFR §4.38( a)( 4),
the licensee must follow the time requirements and procedures
described in 18 CFR §§4.38(b)(2) through (6) for the resource
agencies and Indian tribes to review consultation information
submitted by an applicant. For all other amendments that would
not increase the capacity of the project as defined in 18 CFR
§4.201(b), the applicant must allow the resource agencies and
Indian tribes 60 days to comment on ·the proposed amendment, as
required in 18 CFR §4.38(a)(5).
4. .Q: What should a licensee or exemptee do if a resource
agency requests a study that is not relevant to the
proposed amendment? ·
A: If a resource agency requests a study for an amendment to a license
or exemption that the licensee orexemptee believes is not relevant
to the proposed amendment, the licensee or exemptee should
follow one of two procedures depending on the nature of the
amendment. For amendments to an exi'sting license that would
not increase the capacity of the project as defined in 18 CFR
§4.201(b )but that would involve· one of the changes specified in 18.
CFR §4.38(a)(4), the licensee must follow the dispute resolution
pro~dures in 18 CFR §4.38(b)(5). · ·
Chapter 5: Questions and Answers. 35
5.
6.
7.
36
Q:
A:
Q:
A:
Q:
A:
For amendments to an existing license that would not increase the
capacity of the project as defined in 18 CFR §4.201(b) and that
would not involve one of the changes specified in 18 CFR
§4.38(a)(4), and amendments to exemptions, the licensee or
exemptee should request the resource agency to provide the basis
for the study request. The agency should explain how the informa·
tion requested would be used in proposing reasonable protection,
mitigation, or enhancement measures in response to impacts
caused by the proposed amendment. If the licensee or exemptee
still disagrees with the study, the licensee or exemptee should ask
the Commission to resolve the problem.
How much detail is required in the amendment
application exhibits?
The level of detail required in the application exhibits should be
commensurate with the scope of the project amendment. If a
change is relatively minor in nature, the exhibits may be brief and
to the point. If the proposed changes are large scale, the exhibits
must be more comprehensive to ensure that the proposed changes
are fully understood. The applicant, however, is usually not
required to prepare a new set of exhibits for the application;
revisions to exhibits on file with the Commission would be accept-
able, provided the revised exhibits contain sufficient information
to fully describe the changes to the project and its environment.
You should refer to 18 CFR Part 4 and Chapter 4 of this guide, and
then contact the Commission staff to discuss details.
When will a project amendment require public
notice?
The Commission issues a public notice of the proposed amend-
ment if it determines that the amendment entails substantial
changes on the plan of project development or in the terms and
conditions of the license, or adversely affects the rights of property
holders in a manner not contemplated by the license. The public
notice is intended to inform persons and agencies who may be
interested or affected by the proposed changes, and to provide
them with an opportunity to present information to the Commis-
sion.
If the Commission determines that a public notice is
necessary, when is the public notice issued?
A public notice is issued after an amendment application is ac-
cepted by the Commission for filing, even if an additional informa-
tion request to the applicant is outstanding.
Guide to the Hydroelectric License and Exemption Amendment Process
When a public notice is issued, a minimum of 30 calendar days is
provid.ed for any response to the notice.
8. Q: Does the Commission require a revised water quality
certificate as part· of a license amendment?
A: A revised water quality-certificate is only required if the proposed
amendment would have a material adverse impact on water
quality.
G. Other Questions
1. Q: How often are water projects inspected by the
Commission? ·
A: · Project inspection schedules depend on the hazard potential of the
project dam. Typically, projects are inspected monthly during
construction, annually for licensed and exempted facilities that .are
classified as having high or significant hazard potential, and once
every 2 to 3 years for licensed or exempted projects that are
classified as having _low hazard potential. If the Commission
believes that infractions ha've taken place at any of its projects, the
Commission staff may immediately inspect the facility. For projects
that experience recurrent compliance problems, a comprehensive
compliance audit may be conducted.
-2. Q: What is a compliance audit?
A: A compliance audit by the· Commission's Office of Hydropower
Licensing, Division of Project Compliance and Administration
(DPCA), entails a multidisciplinary team visiting project sites to.
observe, monitor, and report on licensee and exemptee compli-
ance with Commission orders, rules, and regulations, and with
applicable statutes. The compliance audit team would also help
licensees and exemptees achieve and maintain compliance, and
understand the requirements of their l·icenses and exemptions.
Teams may consist of hydropower compliance specialists, fishery
and wildlife biologists, civil engineers, environmental protection
specialists, recreation specialists, and other members of DPCA
staff chosen to best evaluate· a particular project.
Chapter 5: Questions and Answers· '37.
APPENDIX
Regulations Governing Amendments of
Licensed and Exempted Facilities
TABLE OF CONTENTS
Topic Page
Subpart D -Application for Preliminary Permit, License,
or Exemption: General Provisions
§4.38 Consultation requirements
Subpart J -Exemption of Small Conduit Hydroelectric Facilities
§4.92 Contents of exemption application
§4.96 Amendment of exemption
Subpart K-Exemption of Small Hydroelectric Power Projects of
5 Megawatts or Less
41
47
49
§4.104 Amendment of exemption 50
§4.107 Contents of application for exemption from licensing 50
Subpart L-Application fot Amendment of License
§4.200 Applicability
§4.201 Contents of application
§4.202 Alteration and extension of license
Appendix: Regulations Governing Amendments ...
52
52
53
39
Subpart 0-Appllcatlon for Preliminary
· Penn It, License or Exemption:
General Provisions
[Order 533, 56 FR 23108, May 20; 1991; 56 FR 61137,
Dec. 2, 1991.)
§ 4.38 Consultation reqUirements.
(a) .Requirement ro consult.
(I) Before it files any application for an origi-
nallicense or an exemption from iicensing that is
described in paragraph (a)(4) 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 Envi-
ronmental Protection Agency, the Federal agency
administering any United States lands or facili-
ties utilized or occupied by the project, ihe appro-
priate state fish and wildlife agencies, the appro-
priate state water resource management agencies,
the certifying agency under section 40l(a)(l) of
the Federal Water Pollution Control Act (Clean·
Water Act), 33 U.S.C. § 1341(c)(l), and any
Indian tribe that may be affected by the proposed
project.
(2) The Director of the Office of Hydropower
Licensing or the Regional Director responsible
for the area in which the project is located will;
upon request, provide a list of known appropriate
Federal, state, and interstate resource agencies
and Indian tribes.
(3) An applicant for an exemption from licens-
ing or an applicant for a license seeking benefits ·
undersection210 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 sec-
tion, comply with the consultation r~quirements
in§ 4.301.
( 4) The pre-filing consultation requirements
of this section apply only to an application for:
(i) Originallicense;
(ii) Exemption;
(iii) Amendment to an appli~ation for original
license or exemption that materially amends the
proposed plans of development as defined in
§ 4.35(f)(l);
(iv) Amendment to an existing license that
would incre~e the capacity of the project as
defmed 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 inv<;>lve:.
(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 reconstruc-
.tion of an existing dam that would result in a
significant change in the normal maximum sur-
face area or elevation of an existing impound-
ment; or
(C) The addition of new water power turbines
other than to replace existing turbines.
(5) Before it fllesanon-capacity related amend-
ment as defined in§ 4.201(c), an applicant must
consult with the resource agencies and Indian
tribes listed in paragraph (a)(l) 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 In-
dian tribes with copies of the draft application
and allow them at least 60days to comment on the
proposed amendment. The amendment as filed
with the Commission must summarize the consul~
tation withtheresource agencies and Indian tribes
on the proposed amendment, propose reason-.
able protection, mitigation, or enhancement mea-
sures to respond to impacts identified as being
caused by the proposed amendment, and respond
to any objections, resommendations, or condi-
tions 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. .
( 6) This section does not apply to any applica-
tion for a new license, a nonpower license, a
subsequent license, or surrender of a license sub-
ject to sections 14 and 15 of the Federal Power
Act.
(7) If a potential applicant has any doubt as to
whether a particular application or amendment
would be subject to the preflling consultation
requirements of this section or if a waiver of the
pre-filing requirements would be appropriate,
Appendix: Regulations Governing Amendments ... 41
the applicant may file a written request for clari-
fication or waiver with the Director, Office of
Hydropower Licensing.
(b) First stage of consultaiion.
(l) A potential applicant must promptly con-
tact each of the appropriate resource agencies
and affected Indian tribes; provide them with a
description of the proposed project and support-
ing information; and confer with them on project
design, the impact of the proposed project (in-
cluding a description of any existing facilities,
their operation, and any proposed changes), rea-
sonable hydropower alternatives, and what stud-
ies 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 loca-
tion of all proposed project facilities, including
roads, transmission lines, and any other appurte-
nant facilities;
(ii) A general engineering design of the pro-
posed project, with a description of any proposed
diversion of a stream through a canal or a pen-
stock;
(iii) A summary of the proposed operational
mode of the project;
(iv) Identification of the environment to be
affected, the significant resources present, and
the applicant's proposed environmental protec-
tion, 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 gen-
erate 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 Com-
mission) of whether or not the applicant will seek
benefits under section 210 of PURPA by satisfy-
ing 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 the project is located at a new
dam or diversion (as that term is defined in §
292.202(p) of this chapter) and a request for the
agencies' view on that belief, if any;
(vii) Detailed descriptions of any proposed
studies and the proposed methodologies to be
employed; and
(viii) Any-statement required by§ 4.301(a).
(2) No earlier than 30 days, but no later than 60
days, from the date of the potential applicant's
letter transmitting the information to the agen-
cies and Indian tribes under paragraph (b )(1), the
potential applicant must:
(i) Hold a joint meeting at a convenient place
and time, including an opportunity for a site visit,
with all pertinent agencies and Indian tribes 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;
(ii) Consult with the resource agencies and
Indian tribes on the scheduling and agenda of the
joint meeting; and
(iii) 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 i~sues to be discussed at the
meeting.
(3) Members of the public must be informed of
and invited to attend the joint meeting held pur-
suant to paragraph (b)(2)(i) of this section by
means of the public notice published in accor-
dance with paragraph (g) of this section. Mem-
bers of the public attending the meeting are en-
titled 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 )(2)(i) will be
at the discretion of the potential applicant. The
potential applicant must make either audio re-
cordings or written transcripts of the joint meet-
42 Guide to the Hydroelectric License and Exemption Amendment Process
ing, and must promptly. provide. copies of these
recordings or transcripts to the Commission and;
upon request, to any resource agency and Indian
tribe. ·
(4) Not later than 60 days after the joint meet-
ing held under paragraph (b)(2) of this section
(unless· extended within this time period by a
resource agency or Indian tribe for an additional
60 days by sending written notice to the applicant ·
and the Director of OHL within the first 60 day
period, with an explanation of the basis for the
I ,
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 information to be
provided by the potentia-l applicant;
(ii) Identifying the basis for its determination;
, (iii) Discussing its understanding ofthe resource
issues and its goals and objectives for these re-
sources;
(iv) Explaining why each study methodology
recommended by it is more appropriate than
other available methodologyalte~natives,includ
ing those identified by the potential applicant
pursuant to paragraph (b )(l)(vii) of this section;
(v) Documenting that the use of each study
methodology recommended by it is a generally
accepted practice; and
(vi) Explaining how the studies and informa-
tion requested will be useful to the agency or
Indian tribe in furthering its resource goals and
objectives that are affected by the proposed
project.
(5)(i) If a potential applicant and a resource
agency or Indian tribe disagree as t9 any matter
arising during the first stage ofconsultation or as
to the need to conduct a study or gather informa-
tion referenced in paragraph (c)(2) of this sec-
tion, the potential applicant or resource agency or
Indian tribe may refer the dispute in writing to the
Director of the Office of Hydropower Licensing
(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 ser'Ve 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 writteQ
response to· the referral within 15 days of the ·
referral's submittal tothe Director.
(iii) Written referrals to the Director and.writ-
ten responses thereto pursuant to paragraphs
(b)(5)(i) or (b)(5)(ii) must be filed with the Sec-
retary of the Commission in.accordance with the
Commission's Rules of Prac,tice and Procedure,,
and must indicate that they are for the attention
of the Director pursuant io § 4.38(b )(5).
(iv) The. Director will resoiye disputes by le.ttcr .
provided to the potential applicant and all af-
fected resource agencies and Indian tribes.
(v) If a potential applicant does not refer a
dispute regarding a request for information (other
than a dispute regarding the information speci-
fied in paragraph (b )(I) or a study to the Director
under paragraph (b )(5)(i), or if a potential appli-.
cant disagrees with the Oirector's resolution of a
dispute regarding a request for information (other '
than a dispute regarding the' information speci-
fied in paragraph (b)(!)) or a study, and if the ·
potential applicant does not provide the requested
information or conduct the requested study, the
po!entialapplicant must fully e:Jq)lain 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 pursu-
ant to §§ 4.32(e)(l) or (e)(2) of this chapter,
merely because the application does not include
a particular study. or particular information if the
Director had previously found, unde.r paragraph ·
(b)(5)(iv), that such study or information is un-
reasonable or unnecessary for an inforrped deci-·
· sion by the Commission ori the merits of the
application or use of the study methodology re-
quested is not a generally accepted practice ...
(6) The first stage of consultation ends when
all participating agencies and Indian tribes. pro-·
vide the written comments required under para-
graph (b)(4) of this section or 60 days after the
joint meeting held under paragraph (b )(2), which-
ever occurs' first, unless a resource agency or
Indian tribe timely notifies the appiicant and th~
Director of OHL of its need for more time to
provide writtencommentsunder paragraph (b) ( 4) .
aphis section, in which case the first stage of . ·
consultation ends when all the partic~pating ·agen-
cies and Indian tribes provjde the. written com~
ments reql:tired underparagraph (b)( 4) or 120
Appendix:. Regulations Governing Amendments ... · 43
days after the joint meeting held under paragraph
(b)(2), whichever occurs first.
(c) Second stage of consultation.
(I) Unless determined to be unnecessary by
the Director pursuant to paragraph (b)(5) of this
section, a potential applicant must diligently con-
duct all reasonable studies and obtain all reason-
able 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 com-
pleted and the information obtained:
(i) Prior to filing the application, ifthe 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 alterna-
tives to the project, the impact of the project on
important natural or cultural resources (e.g., re-
source surveys), or suitable mitigation or en-
hancement 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 issu-
ance of a license or exemption, if the applicant
otherwise complied with the provisions of para-
graph (b)(l) of this section and the study or infor-
mation gathering would take longer to conduct
and evaluate than the time between the conclu-
sion of the first stage of consultation and the
expiration of the applicant's preliminary permit
or the application ftling deadline set by the Com-
mission;
(iii) After a new license or exemption is issued,
ifthe studies can be conducted orthe information
obtained only after construction or operation of
proposed facilities, would determine the success
of protection, mitigation, or enhancement mea-
sures (e.g., post-construction monitoring stud-
ies), or would be l!Sed to refine project operation
or modify project facilities.
(2) If, after the end of the frrst stage of consul-
tation as defmed in paragraph (b)(6) of this sec-
tion, 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)(4)(i)-(vi), the potential
applicant must promptly initiate the study or
gather the information, unles~ the study or infor-
mation is unreasonable or unnecessary for an
informed decision by the Commission on the
merits of the application or use of the methodol-
ogy requested by a resqurce 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
Hydropower Licensing for dispute resolution
under the procedures set forth in paragraph (b )(5)
and need not conduct prior to filing any study
determined by the Directorto 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)(l)(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 pursu-
ant to§ 4.32(e)(l) 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 poten-
tial applicant expects to file with the Commission;
and
(B) Responds to any comment; and recom-
mendations made by any resource agency and
Indian tribe either during the first stage of consul-
tation 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 frrst 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)(l)(vii) of this section, including a
discussion ofthe,results and any proposed protec-
tion, 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) informa-
44 Guide to. the Hydroelectric Ucense and Exemption Amendment Process
l .
tion to it to provide written comments on the
information submitted by a potential applicant
under paragraph (c)(4).
(6) If the written comments provided under
paragraph (c)(S) ()f this section indicate that a
resource agency or Indian tribe has a substantive
disagreement with a potential applicant's conclu-
sions regarding resource impacts or its proposed
protection, mitigation, or enhancement measures;
the potential applicant will:
(i) Hold a joint meeting with the disagreeing
resource agency or Indian tribe and other agen-
cies with similar-or related areas of interest, ex-
pertise, 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
environm~ntalprotection,,mitiga tion, or enhance-
ment measures;
(ii) Consult with the disagreeing agency or In-
dian tribe artd other agencies with similar or
related areas of interest, expertise, or responsibil-
. ity 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 meet-
ing.
(7) The potential applicant and any disagree-
ing resource agency or .Jndian tribe may conclude
a joint meeting with a document embodying any
agreement among them regarding environmen-
tal protection, mitigation, or enhancement mea-
sures 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 appli-
cation, 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 app~icant may file an applica-
tion 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 disagree-
ments by the deadline specified in paragraph
(c)(S) 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.
(lO)The second stage of consultation ends:
(i) Ninety days after the submittal of informa-
tion pursuant to paragraph (c) ( 4) ofthis section in
cases where no resource agency or Indian tribe
has responded ~ith substantive disagreements;
'Of ,
(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.
(I) The third stage of consultation is initiated
by the filing of an application for a license or
exemption, accompanied by a transmittal letter
certifying that at the same time copies of the
· application are being mailed to the resource agen-
cies, Indian tribes, and other government offices
specified in paragraph (d)(2) of this section.
(2) As soon as an applicant files such applica-
tiondocuments with the Commission, or promptly
after receipt in the case of documents described in
paragraph ( d)(2)(iii) of this section, as the Com-
mission may direct the applicant must serve on
every resource agency and Indian tribe consulted
and on other government offices copies of:
(i) Its application for a license or an exemp-
tion from licensing;
(ii) Any deficiency correction, revision, supple-
ment, response to additional information request,
or amendment to the application; and
(iii) Any written correspondence from the Com-
mission requesting the correction of deficiencies
or the submittal of additional information.
'(e) Waiver of compliance with consultation re-
quirements.
(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 re-
. quirement of this se.ction, a potential applicant
may proceed to the next sequential requirement
of this section without waiting for the resource
agency or Indian tribe to comply.
Appendix: Regulations Governing Amendments .. ; 45
(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 consul-
tation process.
(f) Application requirements docwnenting con-
sultation 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 sum-
mary 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 com-
ments and recommendations;
(3) Notice of any remaining disagreement with
a resource age'ncy 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 protec-
tion, mitigation, or enhancement measure, in-
cluding 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 th~ conclusion of the ~econd stage of
consultation;
(6) Anexplanationofhowand why the project
would, would not, or should not, comply with any
relevant comprehensive plan as defined in§ 2.19
of this chapter and a description of any relevant
resource agency or Indian tribe determination
regarding the consistency of the project with any
such comprehensive plan;
(7)(i) With regard to certification requirements
for a license applicant under section 401(a)(l) of
the Federal Water Pollution Control Act (Clean
Water Act):
(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 certifi-
cation as described in paragraph (f)(7)(ii) of this
section.
(ii) A certifying agency is deemed to have
waived the certification requirements of section
401(a)(l) 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 appli-
cant must file a copy of the denial within 30 days
after the applicant received it.
(iii) Notwithstanding any other provision in
Title 18, Chapter I, Subpart B, any application to
amend an existing license, and any amendment to
a pending application for a license, requires a new
request for water quality certification pursuant to
paragraph (f)(7)(i) of this section if the amend-
ment would have a material adverse impact on
the water qt:iali ty in the discharge from the project
or proposed project.
(8) A description of how the applicant's pro-
posal addresses the significant resource issues
raised at the joint meeting held pursuant to para-
graph (b )(2) of this section; and
(9) A list containing the name and address of
every federal, state, and interstate resource agency
and Indian tribe with which the applicant con-
sulted pursuant to paragraph (a)(l) of this section.
(g) Public Participation.
(1) At least 14 days in advance of the joint .
meeting held pursuant to paragraph (b )(2) of this
section, the potential applicant must publish no-
tice, 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.
(2)(i) A potential applicant must make avail-
able to the pub lie for inspection and reproduction
the information specified in paragraph (b )(l) of
this section from the date on which the notice
required by paragraph (g) (I) of this, section is first
published until the date of the joint meeting
required by paragraph (b )(2) of this section.
(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 repro-
duction.
46 Guide to the Hydroelectric License and Exemption Amendment Process
(iii) A potential applicant must make available
to the public for i.nspection at the joint meeting
required by paragraph (b)(2) at least two copies
of the information specified·in paragraph (b)(l) of
this se·ction.
(h) Transition Provisions.
(I) The provisions of this section are not appli-
cable to applications filed before June 19, 1991.
(2) The provisions of paragraphs (a) and (b) of
this section are not applicable to potential appli-
cants. that complied with the provisions of para-
graphs (a) and (b )(I) of this section prior to June
19, 1991.
(3) The provisions of paragraph (c) of this
section are not applicable to potential applicants·
that complied with the provisions of paragraph
(b)(2) of this section prior to June 19, 1991.
( 4)(i) Any applicant that files its application on
or after Jline 19, 1991 and that complied with the
provisions of paragraphs (a) and (b)(I) of this
section prior to June 19, 1991 must hold a public
meeting, within 90 days from June 19, 1991, at or
near the site·of the proposed project, to generally
explain the potential applicant's proposal for the
site and to obtain the views ofthe public regard-
ing resource issu~s that should be addressed in
any application for license or exemption. that may
be ftled by the potential applicant The public
meeting must include both day and e~ening ses-
sions, and the potential applicant must make'
either audio recordings or written transcripts of
both sessions.
(ii)(A) At least 15 days in advance of the
meeting, the potential applicant must provide all
affected resource agencies, Indian tribes, and 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. ·
(B) At least 14 days in advance of the meeting,
the potential applicant must publish notice, at
least once, of the purpose, location, and timing of
the meeting, in a daily or weekly newspaper pub-
lished in each county in which the proposed project
or any part thereof is situated.
(iii)(A) ' A potential applicant must make
available to the public for inspection and repro-
duction information comparable to that specified
in paragraph (b)(l) from the date on which the
notice required by .paragraph (h)(4)(ii) is first
published until the date of the public meeting
required by paragraph (h)(4)(i) of this secJion.
(B) The provisions of§ 4.32(b) will govern the
form andmanner.in which the information is to be
made available for public inspection and repro-
duction.
(C) A potential applican.t mus~ JTiake available
to the public for inspection at bo"th sessions of the
public meeting required by paragraph (h)( 4)(i) at
least two copies of the information specified in
paragraph (h)( 4)(iii)(A) of this section.
(D) A potential applicant must promptly pro-
vide copies of the audio recordings or written
transcripts of the sessions of the public meeting to
the Commission and, upon .request, .to any re-
. source agency or Indian.tribe consulted.
(iv) Any applic;,tnt holding a public meeting
pursuant to paragraph (h)( 4)(i) of this section
must include in its filed applic;,ttion a description
. of how the applicant's proposal add_resse~· the
. significant resource issues raised during the pub-
lic meeting. · ·
Subpart _J-Exemptlon of Small Conduit
Hydroelectric Facilities
§4.92 Contents ofexemption application.
(a) An application for exemption ior this
subpart m11st include: .
· ... (1) An iptroductory s~atement, including a
declaration that the facilitY for which application·
i~ made meets the requirements of§ 4.30(b )(28),
.the facility qualifies but for the discharge require-
ment of§ 4.30(b)(28)(v), 'the introductory state-
ment must identify that fact and state that the ..
·application is accompanied by a petition for waiver
of§ 4.30(b)(28)(v), filed pursuan! to§ 385.207 oC
this chapter;
. (2) Exhibits A! B, E, and G;
. (3) An appendiX containing documentary evi-
dence 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: ·
Appendix: Regulations Governing Amendments.:. : 47
BEFORE TilE 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 following Jan.
guage, as appropriate: "§4.30(b )(28) of this subpart" or
"§4.30(b)(28) of this subpart, except paragraph
(b)(28)(v)"], from certain provisions of Part I of the
Federal Power Act.
The location of the facility is:
State orTerritory:..,..-----------County:. ______________ _
Township or near}?y town: _ _;__ ______ _
The exact name and business address of each applicant
The .exact name and business address of each person
authorized to act as agent for the applicant in this
application is: ____________ _
[Name of applicant] is [acitizenofthe United States,
an association of citizens of the United States, a munici-
pality, State, or a corporation incorporated under the
laws of (specify the United Sta.tes or the state of incor-
poration, as appropriate), 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 ex-
emption is requested.]
[If the facility does npt meet the requirement of
§ 4.30(b)(28)(v), add the following sentence: "This
application is accompanied by a petition for waiver of
§ 4.30(b)(28)(v), submitted pursuant to 18 CFR
385.207."] .
(c) Exhibit A. Exhibit A must describe the
small conduit hydroelectric facility and proposed
niode of operation with appropriate references to
Exhibits B and G. To the extent feasible the
information in this exhibit may be submitted in
tabular forni. 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 struc-
tures 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 conduitat 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 construc-
tion of the facility. .
(9) If the hydroelectric facility discharges di-
rectly into a natural body of water and a: petition
for waiver of§ 4.30(b)(28)(v) has not been sub-
mitted, evidence that a quantity of water equal to
or greatet than the quantity discharged from the
hydroelectric facility is withdrawn from that wa-
ter body downstream into a conduit that is part of
the same water supply system as the conduit on
which the hydroelectric facility is located.
(lO)If the hydroelectric facility discharges di-
rectly to a point of agricultural, municipal, or
industrial consumption1 a description of the na-
ture and location of that point of consumption.
(ll)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 con-
struction; and any evidence that the construction
would occur for agricultural, municipal, or indus-
trial consumptive purposes even if hydroelectric
generating facilities were not installed.
(d) Exhibit B. Exhibit B is a general location
map that must show the following information:
(1) The physical structures of the small con-
duit hydroelectric facility in relation to the con-
duit and any dam to which any of these structures
is attached;
48 Guide to the Hydroeleetric license and Exemption Amendment Process
(2) A proposed project boundary enclosing all
project works to be exempted from licensing; and
(3) The ownership of the parcels ofland within
the proposed boundary for the small copduit ·
hydroelectriC facility.
(e) Exhibit E. This exhibit is an Environrpen-
tal Report. It must be prepared pursuant to§ 4.38
and must include the following information, com-
mensurate with the scope and environmental .
impact of the facility's construction and opera-
tion:
(1) A description of the environnientalsetting
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 thr.eatened plant and animal species, critical
· habitats, and sites eligible for or included on the
National Register of Historic Places. The appli-
cant may obtain assistance in the preparation_ of
this information from State. natural resources
agencies, the State historic preservation officer,
and from local offices ofFederal natural resources
agencies.
(2) A description of the expected environmen-
tal impacts resulting from the continued opera-
tion of an existing small conduit hydroelectric
facility, or from the construction and operation of
a pr9posed 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 ob-
taining an amount of power equivalent ·io that
provided by the proposed or existingfacility ..
( 4) Any additional information the applicant
considers important.
(f) Exhibit G. Exhibit G is a s~t of drawings
showing the structures and eq~pment of the
small conduit hydroelectric facility. The draw-
ings must include plan, elevation, profile, section
views of the power plant, and any other principal
facility structure and of any dam to which a facil-
ity structure is attached. Each drawing must be an
ink drawing or a drawing of similar quality on a
sheet no smaller than eight and one-half inche_~ by
eleven inches, with a scale no smaller than one .·
inch equals 50 feet for plans and profiles and one
inch equals 10 feet for sections. Generating and
auxiliary equipment must be clearly and simply
depicted and described. For purposes of thiS
subpart, these drawing specifications replace those
required in§ 439 of the Commission's regula-
tions.
[Order 76, 45 FR 28090, Apr. is, 1980, as a!I!ended by
Order 413, 50 FR 11686, Mar. 25, 1985]
§ 4.96 Amendment or 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
operatian of its project, it must first notify the
appropriate. Federal and state fish and wildlife
agencies and inform them iri writing of the changes
it intends to implement. If these agencies deter-
minethatthe changes would not cause the project
to violate the terms and conditions imposed by
the agencies, and if the changes would not mate-
rially alter the design, location, method of con-
struction or operation of the project, the exemp-
tion holder may implement the changes. If any of
these agencies determines that the changes would
cause the project to violate the terms and condi-
tions 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 am.end an exemption will_be
governed by the Commission's regulations gov-
erning applications for exemption. The Commis~
sion will not accept applications in competition
with an application to amend an exemption, un-
.Iess the Director of the Office of Hydropower
Licensing determines that itis i~ the publicinter-
est to do so.
[Order 413,50 FR 11687, Mar .. 25; 1985]
Appendix: Regulation$. Governing Amendments ... 49
Subpart K-Exemptlon of Small
Hydroelectric Power Projects of 5
Megawatts or Less
§ 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 ofthe changes
it intends to implement. If these agencies deter-
mine that the changes would not cause the project
to violate the terms and conditions imposed by
the agencies, and if the changes would not mate-
rially alter the design, location, method of con-
struction, or operation of the project, the exemp-
tion holder may implementthe changes. If any of
these agencies determines that the changes would
cause the project to violate the terms and condi-
tions imposed by that agency, or if the changes
would materially alter the design, location, method
of construction, or operation of the project works,
the exemption holder may not hnplement the
changes without first acquiring authorization from
the Commission to amend its exemption or ac-
. quiring a license for the project works that autho-
rizes 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 gov-.
erning applications for exemption. The Commis-
sion will not accept applications in competition
with an application to amend an exemption, un-
less the Director of the Office of Hydropower
Licensing determin~s' that it is in the public inter-
est to do so.
l Order 413, 50 FR 11688, Mar. 25, 1985]
§ 4.107 Contents of application for exemption
from licensing.
(a) General requirements. An application for
exemption (rom licensing submitted under this
subpart must contain the introductory statement,
the exhibits described in this section, the fee
prescribed in § 381.601 of this chapter 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 con-
forms to the following format:
BEFORE THE FEDERAL ENERGY REGULATORY
COMMISSION
Application for' Exemption of Smallllydroelectric
Power Project from Licensing
(1) [Name of applicant] applies to the Federal :En-
ergy Regulatory Commission for an exemption for
[name of project], a small hydroelectric power project
that is proposed to have an installed capacity of 5
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] _______ _
[Streamorbodyofwater] ________ _
(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
k'entified nation; a municipality; a state; or a corpora-
tion incorporated under the laws of (specify the United
States or the state or nation of incorporation, as appro-
. priate)].
(c) Exhibit A. Exhibit A must describe the ·
small hydroelectric power project and its pro-
posed 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 appurte-
nant facilities, including intake facilities, diver-
sion structures, powerhouses, primary transmis-
sion lines, penstocks, pipelines, spillways, and
other structures, and the sizes, capacities, and
construction materials of those structures.
50 Guide to the Hydroelectric License and Exemption Amendment Process
(2) The number of existing and proposed gen-
erating units at' the project, including auxiliary .
units, the capacity of each tinit, any provisions for
future Units, and a brief description of any planS
for retirement or rehabilitation of existing gener-
ating units. · ·
(3) The type of each hydraulic turbine of the
small hydroelectric power project.
(4) . A descripti9~ of how the power plant is to .
be operated, that is, run-of-river or peaking.
(5) A graph showing a flow dUiation 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 thim the
stream flow that is exceeded 25 percent of the
time. ·
(6) Estimations·of:
(i) The averageannualgeneration 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 ~an-.·
made or natural impoundment used, if any, at its
normal maximum surface elevation and its net
and gross storage capacitieli in acre-feet.
(7) The pianned date for beginning and. com-
pleting the proposed construction . or develop-.
ment of generating facilities.. .
(8) A description of the natu~e and extent of
any repair, reconstruction, or other modification
of a dam that would occur ·~n association with
construction or development of the proposed
small hydroelectric power projec\, including a
statement of the normal maximum surface area
and normal maximum surface elevation of any
existing impoundment before and after construc-
tion.
(d) Exhibit B. Exhibit B is a general location
map, which may be prepared on United States
· Geological Survey topographic quadrangl~ sheets
or similar topographic maps of.a state agency,
enlarged, if necessary, to show clearly and legibly
,.
all of the information required by this paragraph.
The map must show the following information:
(1) The location of the existing and proposed
physical structures of the small hydroelectric
power project, including any dam or diversion
structure, reservoir or impoundment, penstocks,
pipelines, .power phints, access roads, transmis-
sion lines, and other important features.'
(2) The relationship Of the project structures
to the stream or other bo.cJy of water on which the
project is located and to the nearest town or other
permanent objects that can be readily recognized
in the field.
(3) A description of who owns or otherwise
has real property interests in any tract of land
occupied by the small hydroelectric power project
· or the structures to which it is directly connected. · ·
(4) A proposed project boundary enclosing
proje.ct works to be exempted from licensing. ·
(e) E;rhibit E. This exhibit is an environmental
report that must include the following informa-
tion, commensurate-with the scope and environ-
ment81 impact of the construction and ope,ation
of the small hydroelectric power project. See4J8.
for consultation requirements. .
(1) A description of the enviroru:nental setting
.oftheproject,including.vegetativecover,fishand
wildlife resources, water quality and quantity,
land and water uses, recreational uses, historical
and archeological resources, and scenic and aes-,
the tic resources. The report must list .any endan-.
gered or threatened plant 11nd anin.J.al species, any
critical·habitats, and any sites eligible for or in-
cluded on theN ational Register ofHisto~ic Places.·
The applicap.t may obtain assistance in the prepa-
ration of this information from state natural re-
sources agencies, the State historic. preservatiOJ'l.
officer, and from local offices of Fed.eral natural
resources agencies.
(2) A description of the expected environmen-
tal impacts from the proposed construclion or
development and the proposed operation of the
small hydroelectric powerproject, including any
impacts from any proposed changes in the capac-
ity and mode of operation if it is already generat-
ing electric power, and an explanation of the
specific measures proposed by the applicant, the
agencies consulted, and others to protect and
enhance environmentalresources and vaJues and
Appendix: Regulations .Governing Amendments ... , 51
. '
to mitigate adverse impacts of the project on such
resources.
(3) Any additional information the applicant
considers important.
(f) Exhibit G. Exhibit G is a set of drawings
showing the structures and equipment, that is, the
proposed and existing project works, of ~he small
hydroelectric power project. The drawings must
include plan, elevation, and section views of the
power plant, any existing dam or diversion struc-
ture, and any other principal structure ef the
project.
[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; Order494, 53 FR 15381, Apr. 29,
1988)
Subpan L-Applicatlon for Amendment of
License
SOURCE: Order 184,.46FR55943, Nov.13, 1981, unless
otherwise noted.
§ 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 on 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 fol-
lowing 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 En·
ergy Regulatory Commission· for an amendment of
license for the [name of project] water power project.
(2) The exact name, business .address, and tele-
phone 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
15 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
__ dayof . ,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, diver.sion, 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 descriptions 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 (1)
would increase the actual or proposed total in-
stalled capacity of the project, (2) would result in
an increase in the maximum hydrauli.c capacity of
the project of 15 percent or more, and (3) would
result in an. increase in the installed name-plate
capacity of2 megawatts.or more, must contain the
following exhibits, or revisions or additions to any
exhibits on file, commtlnsurate with the scope of
the licensed project:
(1) For amendment of a license for a water
power project that, at the time t~e application is
filed, is not constructed and is proposed to have a
total installed generating capacity of more than~
MW-Exhibits A, B, C, D, E, f, and Gunder§
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 appli~ation for
52 Guide to the Hydroelectric License and Exemption Amendment Process
amendment is filed, has been constructed, and is
proposed to have a total installed generating
capacity of 5 MW or less-Exhibits E, F, and G
under § 4.61 of this chapter;
(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 ge11erating 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 noncapacity related
amendments. Any application to amend a license
for a water power project that would not be a .
capacity-related amendment as described in para-
graph (b), above, must contain those exhibits that
require revision in light of the nature of the
proposed amendments. .
(d) Consultation and waiver. (1) If an appli-
cant for license under this subpart believes that
any exhibit required under paragraph (b) of this
section is inappropriate with respect to the par-
ticular amendment of license sought by the appli-
cant, a petition for waiver of the requirement to
submit such exhibit may be submitted to the
Commission under §385.207(c)(4) of this chap-
ter, after consultation with the Commission's
Office of Hydropower Licensing.
(2) A licensee wishing to file an application for
amendment of license under this section may
· seek advice from the Commission staff regarding
which exhibit(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
Order225, 47 FR 19056, May 3, 1982; 48 FR 4459, Feb. 1,
1983;48FR 16653,Apr.19, 1983; Order413,50FR 11689,
Mar. 25, 1985; 56 FR 23108, May 20, 1991; Order 533; 55
FER.C §61, 193, May 8, 1991.]
§ 4.202 Alteration and e:dension of license.
(a) If it is determined that approval of the
application for amendment of license would con-
stitute a significant alteration of license pursuant
to section 6 of the Act, 16 U.S.C. 799, public
notice shall be given at least 30 days prior to
action upon ~e 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.
Appendix: Regulations Governing Amendments ... 53
' ... ,