FSH 2709.15 - HYDROELECTRIC HANDBOOK 2/87 WO 10.5 - Definitions. Federal Energy Regulatory Commission (FERC) regulations define major projects as those projects having an installed capacity greater than 2,000 horsepower (1.5 MW) and minor projects as those with capacities of 2,000 horse-power (1.5 MW) or less. Do not confuse these regulation definitions with references to small hydroelectric projects that are 5 MW or less and may be exempted from licensing or licensed through simplified procedures. 10.51 - Major Projects Greater than 5 Megawatts. A project of this size must undergo the full licensing process. Such projects include: (1) major unconstructed projects, (2) major constructed projects (relicensing), (3) major modified projects, and (4) major projects at existing dams (sec. 10.55). 10.52 - Minor Projects and Major Projects 5 Megawatts or Less (Small Hydro). To qualify as a small hydro, a project may be either (1) a minor project (1.5 MW or less) or (2) a major project that is 5 MW or less. See section 13.2 for additional information concerning minor projects. A shorter environmental report (Exhibit E of the FERC License) is required by FERC for projects 5 MW or less. 10.53 - Preliminary Permits. (Sec. 11). 10.54 - Exemptions. The following types of small hydro projects (sec. 10.52) may qualify for exemption from parts of the Federal Power Act. 1. Small Conduit Hydroelectric Facilities. To qualify as a small conduit hydroelectric project: (1) the conduit must be preexisting for another purpose (irrigation ditch, and so forth); (2) it must be 15 MW or less; and (3) the facilities must be entirely on non-Federal land. 2. Case Specific Exemptions. These projects must be 5 MW or less and must be located at existing non-Federal dams or developable natural water features. This excludes constructing new dams; any new diversion structure must not obstruct the flow to such a degree as to adversely affect the natural water feature. This is the adjusted definition adopted by FERC as a result of the May 10, 1984, ruling by the 9th Circuit Court of Appeals. 3. Exemption Construction. Construction must begin within 2 years of exemption and be complete within 4 years. The applicant must obtain a Forest Service special-use permit within 12 months of exemption for use of National Forest lands. 10.55 - License Types. The Federal Energy Regulatory Commission (FERC) issues licenses to the proponent of a hydroelectric project for the purpose of constructing, operating, and maintaining project works necessary for development of power for a specified period of time. FERC's acceptance of an application for a license withdraws public domain land for power purposes. 1. Major License. This is for projects greater than 1.5 MW. The following are types of major licenses: a. Initial License. This is the first license issued to any project. b. New License (Relicensing). This is the license issued to operate a constructed project, although some new construction may take place. c. Amendment. This modification to a license is issued during the license term to authorize additional capacity or to authorize other additions or other changes that do not involve new capacity. 2. Minor License. This is issued to construct and operate a project 1.5 MW or less (sec. 10.52). 3. Transmission Line License. This license is for a transmission line, not licensed with the project it serves, from the generation point of a licensed project to the service point or point of interconnection. 11 - PRELIMINARY PERMIT RULES. Although desirable, a preliminary permit from the Federal Energy Regulatory Commission (FERC) is not necessary. A preliminary permit establishes a priority of application while the applicant performs detailed feasibility studies and prepares the application for exemption or license. This permit does not (1) authorize project construction, (2) authorize entry on National Forest System lands, or (3) commit FERC to the issuance of an exemption or license. The acceptance by FERC of an application for preliminary permit withdraws the Federal lands involved (withdrawal for power purposes) from entry, location, or other disposal. Preliminary permits have a maximum term of 3 years and are not renewable. However, in most cases, an applicant may immediately apply for a new permit when the previous one expires. After receiving an acceptable application, FERC publishes, in the Federal Register and in a newspaper in the project's vicinity, a Notice describing the project and requesting comments from agencies and the public. Copies of the detailed application are available from the applicant. The Forest Service may make a brief reply, as described in section 53.1. 12 - EXEMPTIONS FROM LICENSING. See section 10.54 for types of exemptions. 12.1 - Application for Exemption. The Federal Energy Regulatory Commission (FERC) publishes a Notice in the Federal Register and local newspaper and invites review and comments on applications for exemption found acceptable for processing. If an agency does not comment within 60 days of the notice, FERC assumes that the agency has no comment on, or objection to, the exemption. FERC approves the applicant's proposal as adaptable to a particular site; it does not grant the applicant land-use rights or eminent domain privileges. The exemptee has 2 years from the date of the exemption to begin construction. Any agency may request that specific conditions be included in the exemption order. 12.2 - Special Concerns. The Forest Service special-use authorization is the controlling document on National Forest lands for exempted projects (see sec. 60.3 and sec. 61.51b). FERC determines the technical adequacy of structures involved on licensed projects. For exempt projects, the Forest Service ensures that a qualified engineer performs a technical review that conforms to Forest Service Manual standards. Structures to review may include pipes, ditches, powerhouses, buildings, powerlines, and so forth. The developer should fund this review if it involves significant costs. 12.3 - Relation of Exempted to Licensed Projects. An exemption from licensing does not withdraw Federal land for power purposes; therefore, an other hydroelectric project or other withdrawal could later replace the exempted project with fair compensation. A qualifying license or exemption application takes FERC permitting precedence over a preliminary permit application (even if filed after the preliminary permit application, but only prior to the issuance of the preliminary permit). The original applicant for preliminary permit is given the opportunity to change the application for preliminary permit to an application for exemption or license. An application for license does not have an advantage for authorization by FERC over an application for exemption for an otherwise equal project at the same location. FERC usually grants the license or exemption to the project best adapted to the power capabilities of the site. Rules of municipal preference or the first application received govern essentially equal projects. 13 - LICENSES 13.1 - Application for License. See 18 CFR 4 for Federal Energy Regulatory Commission (FERC) rules for the information required in an application for license. The applicant must file an application for a new license (relicense of an existing project) no sooner than 5 years or later than 3 years prior to the expiration of the original license. 13.11 - Comment Period on Application for License. FERC publishes a Notice in the Federal Register and local newspaper and invites review and comment on acceptable applications for license. For projects greater than 5 MW, the applicant sends copies of the application to affected parties. This starts the 60-day comment [4(e)] period. For projects 5 MW or less, the FERC public notice states where the agencies and public may obtain a copy of the application for license. When the applicant is not directed by FERC to send the Forest Service a copy of the application directly, the 60-day 4(e) comment period is the same as the public comment period stated in the public notice. 13.2 - Short-Form License Application. Applicants for projects 1.5 MW or less may use the short-form application, which requires less information than the regular license application. 13.3 - License Amendment Application. Licensees must obtain FERC approval before changing anything authorized in the license. Licensees may apply to FERC at any time for an amendment to their existing license. After FERC accepts the application for amendment, the application is noticed and distributed the same as in section 13.1. 14 - THREE STAGE CONSULTATION PROCESS. FERC requires applicants for license or exemption to consult with appropriate State and Federal agencies before making an application to FERC for license or exemption from licensing (18 CFR 4.38). This consultation is conducted in three stages. See section 23.61 for Forest Service procedures within this process. 1. The first stage starts immediately after the applicant obtains a preliminary permit from FERC or, if no preliminary permit is desired, when the applicant has a proposal to be studied. The applicant must contact the agencies so that they can tell the applicant what studies the agency needs to analyze the proposal and what procedures to follow. See details of stage 1 consultation in 18 CFR 4.38(1). 2. The second stage begins after the applicant has completed contacts with the agencies. This stage ends when the applicant has completed the studies and drafted an application for license or exemption. The applicant must supply copies of the draft application to interested agencies and request comments within times specified in 18 CFR 4.38(2)(iv). See details of stage 2 consultation in 18 CFR 4.38(2). 3. The third stage starts when the applicant files an application for license or exemption and ends when FERC has received all the comments. For projects 5 MW or less, the applicant when filing the application with FERC must give copies to the agencies consulted. For projects greater than 5 MW, the applicant gives copies of the application to the agencies after receiving a notice of acceptance of the application from FERC. See details of stage 3 consultation in 18 CFR 4.38(3).