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FERC Surrender of Exemption (20-FD-c)

Information current as of 2019

Any person (developer) with a Federal Energy Regulatory Commission (FERC) small hydropower exemption (e.g., conduit exemption or 10 MW or less exemption) needs approval from FERC's Division of Hydropower Administration and Compliance to surrender the FERC exemption. 18 C.F.R. § 4.95(a); 18 C.F.R. § 4.102 (a).

FERC regulates the surrender of FERC exemption pursuant to the Federal Power Act and 18 C.F.R. §§ 4.90 - 4.96, Exemption of Small Conduit Hydroelectric Facilities for small conduit hydroelectric exemptions and 18 C.F.R. §§ 4.101 - 4.108, Exemption of Small Hydroelectric Power Projects of 10 MW or Less for small hydroelectric projects 10 MW or less exemptions.

FERC Surrender of Exemption Process

20-FD-c.1 to 20-FD-c.2 – Has Construction Begun on the Project?

If the developer has commenced construction of the exempted project, prior to filing a Petition for Surrender with FERC, then the developer is required to consult with the fish and wildlife agencies that provided the original terms and conditions of the exemption. The developer must consult with the fish and wildlife agencies in accordance with 18 C.F.R. § 4.38. The developer must provide information to the fish and wildlife agencies appropriate to the disposition and restoration of the project works and lands. 18 C.F.R. 4.95(b)(1) and 18 C.F.R. § 4.102(b)(1).

20-FD-c.3 – Comment on Surrender

The public and implicated fish and wildlife agencies are given the opportunity to comment on the proposed surrender of the FERC exemption. 18 CFR § 4.95(b)(2) and 18 C.F.R. § 4.102(b)(2).

20-FD-c.4 – Petition for Surrender of an Exemption and Associated Documents

The developer must submit a Petition for Surrender of an Exemption to FERC. 18 C.F.R. § 4.95(a) and 18 C.F.R. § 4.102(a). The petition must include information with respect to the disposition and restoration of the project works and lands. 18 C.F.R. § 4.95(b)(1) and 18 C.F.R. § 4.102(b)(1). For example, if the developer plans to remove the project works, then they must file a plan and schedule outlining removal and restoration of the site to assure public and environmental safety. Federal Energy Regulatory Commission - How to Surrender a License or Exemption Webpage.

20-FD-c.5 – Provide Public Notice of the Petition

FERC must provide public notice of the Petition for Surrender. 18 C.F.R. § 4.95(b)(2) and (c) and 18 C.F.R. § 4.102(b)(2) and (c). If the project is located on federal lands, then the supervising federal agency over such lands must also be notified. 18 C.F.R. § 4.102(e).

If no construction has begun, then the exemption will remain in effect for 30 days following notice of the petition unless FERC issues an order to the contrary. 18 C.F.R. § 4.95(c) and 18 C.F.R. § 4.102(c).

20-FD-c.6 – Review Petition Materials

FERC must review the Petition to determine whether it should grant the surrender of the exemption.

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

Approval to surrender an exemption, 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 an authorization is within a categorical exclusion, FERC may determine that extraordinary circumstances exist such that the authorization is a major federal action requiring an environmental document be prepared consistent with NEPA. Such circumstances exist when the action may 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 C.F.R. § 380.4(b)(2).

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

FERC - NEPA Review:

20-FD-c.8 – Does FERC Approve Surrender of the Exemption?

FERC will only allow surrender of an exemption upon fulfillment by the developer of the obligations under that exemption. 18 C.F.R. § 4.95(d) and 18 C.F.R. § 4.102(d).

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

If FERC determines that surrender should be allowed, and where construction has begun, then they will issue an Order Allowing Surrender of the Exemption.

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

FERC must notify the developer of the denial of surrender.

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

The developer may request rehearing on the FERC decision to deny surrender of a exemption. 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 approve or deny any rehearing request.

20-FD-c.13 – Conduct Rehearing on Denial of Exemption

If the request for rehearing is approved, then FERC will review the decision to deny surrender of the exemption.

20-FD-c.14 – Final Order

Following rehearing, FERC issues a Final Order on Surrender of the Exemption.

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

FERC may approve or deny any request for surrender of an exemption. If the surrender is approved, then the developer must dispose of project facilities in compliance with the Final Order.

If the surrender is not approved, then the developer should consider submitting the Final Order for review. The developer may obtain review of the Final Order in the United States Court of Appeals for any circuit in which the developer is located or has its principal place of business. The developer may obtain review through filing a written petition requesting that the Final Order be modified or set aside in whole within 60 days after the final action of FERC. 15 U.S.C. § 3416(a)(4).

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