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FERC Surrender of License (20-FD-b)

Information current as of 2019

Any person (developer) with a Federal Energy Regulatory Commission (FERC) hydropower license needs approval from FERC's Division of Hydropower Administration and Compliance to surrender the FERC license. Federal Energy Regulatory Commission, Division of Hydropower Administration and Compliance - Compliance Handbook at p. 35. The developer may decide to surrender their license or FERC may require the developer to surrender the license. 18 C.F.R. § 6.2.

FERC may require a surrender of a license by denying a new license and requiring the developer to decommission the project, in whole or in part. For projects constructed on lands owned by the United States, the developer must restore the lands to a satisfactory condition of the federal agency with jurisdiction over those lands. 18 C.F.R. § 6.2.

FERC regulates the surrender of FERC hydropower license pursuant to the Federal Power Act and 18 C.F.R. §§ 6.1 - 6.5.

FERC Surrender of License Process

20-FD-b.1 – Application for Surrender of a License and Associated Documents

The developer must submit an Application for Surrender of a License (Application) to FERC. The Application must state the reason for surrender unless the project is minor or consists only of a transmission line. The Application materials must also include a copy of the developer’s license and all amendments to the license. 18 C.F.R. § 6.1.

For constructed projects, the Application must include a plan for decommissioning the project. Decommissioning can include leaving project features in-place for other uses, or removal of project features and site restoration. The plan should address any dam safety or environmental concerns that could remain after the license is surrendered. Federal Energy Regulatory Commission - How to Surrender a License or Exemption Webpage.

20-FD-b.2 – Provide Public Notice of the Application

FERC must provide public notice of the Application for Surrender. 18 C.F.R. § 6.1. If the project is located on federal lands, then the federal agency having supervision over such lands must also be notified.

20-FD-b.3 to 20-FD-b.4 – Has Construction Begun on the Project?

If the developer has commenced construction of the licensed project, then FERC is required to consult with any resource agency that provided the original terms and conditions. Federal Energy Regulatory Commission - Hydroelectric Project Handbook for Filings other than Licenses and Exemptions at p. 6-1.

20-FD-b.5 – Comment on Surrender

The public and implicated resource agencies are given the opportunity to comment on the proposed surrender of the FERC license and any local environmental issues that may result from surrender of the license. 18 C.F.R. § 6.1.

20-FD-b.6 – Review Application Materials

FERC must review the Application to determine whether to grant the surrender of the license.

20-FD-b.7 – Initiate FERC NEPA Process

The developer may need to initiate the FERC NEPA process to surrender a FERC license. Approval to surrender a water power license, where no project works exist and no ground disturbing activity has occurred, is an action categorically excluded from the requirements of NEPA under (18 C.F.R. § 380.4(a)(13)).

However, even where a license is within a categorical exclusion, FERC may determine that extraordinary circumstances exist such that the license is a major federal action requiring an environmental document be prepared consistent with NEPA. Such circumstances may exist when it is possible for the action to have an effect on one of the following:

  • Indian lands;
  • Wilderness areas;
  • Wild and scenic rivers;
  • Wetlands;
  • Units of the National Park System, National Refuges, or National Fish Hatcheries;
  • Anadromous fish or endangered species; or
  • Where the environmental effects are uncertain.

18 CFR § 380.4(b)(2).

For more information on the FERC NEPA review process, see:

FERC - NEPA Process:

20-FD-b.8 – Does FERC Approve Surrender of the License?

FERC will only allow surrender of a license if the developer has fulfilled all obligations under the conditions of the license. 18 C.F.R. § 6.2.

20-FD-b.9 – FERC Order Allowing Surrender

If FERC determines that surrender should be allowed, then they issue an Order Approving Surrender of the license. 18 C.F.R. § 6.2.

20-FD-b.10 – Provide Notice of Denial of Surrender

FERC must notify the developer of the denial of surrender. 18 C.F.R. § 6.2.

20-FD-b.11 to 20-FD-b.12 – Submit a Request for Rehearing (Optional)

The developer may request rehearing on the FERC decision to deny surrender of a license. The developer must submit the request no later than 30 days after issuance of the denial. 18 C.F.R. § 385.713(b). The request should outline the alleged error in the final decision or final order. 18 C.F.R. § 385.713(c)(1). FERC may grant or deny any rehearing request.

20-FD-b.13 – Conduct Rehearing on Denial of Surrender

FERC must review the decision to deny surrender of the license.

20-FD-b.14 – Final Order

Following review, FERC issues an Order Granting or Denying the Request for Rehearing of the License Surrender.

20-FD-b.15 to 20-FD-b.17 – Is the Surrender Approved?

FERC may approve or deny any request for surrender of a license. If the surrender is approved, then the developer must dispose of project facilities in compliance with the Final Order. If the project has been constructed on federal lands, then the developer will be required to restore the lands to a condition satisfactory to the department with supervision over the lands. Annual charges will continue until the restoration has been satisfactorily completed and the surrender becomes effective. Federal Energy Regulatory Commission - How to Surrender a License or Exemption Webpage].

If the surrender is denied, then the developer should consider submitting the Final Order on rehearing for review. The developer may seek rehearing of the order denying the surrender application with FERC. FERC may either issue an order either granting or denying rehearing of the license order. If FERC issues an order denying rehearing of the license order then the developer may obtain review of the order denying rehearing in the United States Court of Appeals for the District of Columbia, or any circuit in which the developer is located or where the developer has its principal place of business. The developer may obtain review through filing a written petition requesting that the rehearing order be modified or set aside in whole within 60 days after the final action of FERC. 16 U.S.C. § 825(b).

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