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FERC Preliminary Permit (7-FD-h)

Information current as of 2019
A hydropower developer may choose to seek a Preliminary Permit from the Federal Energy Regulatory Commission (FERC) to establish priority of application for a FERC license. A Preliminary Permit has an initial term that may not exceed 4 years; however, at the request of the permittee, FERC through a Preliminary Permit amendment, may extend the term to an additional 4-year term. FERC may issue an additional Preliminary Permit to the permittee at the end of the extension period if FERC determines that there are extraordinary circumstances that warrant the issuance of the additional permit. 16 U.S.C. § 798 (b)(2). The purpose of the Preliminary Permit is to preserve the right of the permit holder to have the first priority in applying for a license for a proposed project while the permit holder makes examinations and surveys, prepares maps, plans, specifications, and estimates and makes financial arrangements for the proposed project in anticipation of filing a license application for the proposed project. 16 U.S.C. § 798 (a).



FERC Preliminary Permit Process


7-FD-h.1 – Preliminary Permit Application

A developer must submit a complete Preliminary Permit Application (Application) to FERC. A complete Application must at minimum:

  • Identify every person, citizen, association of citizens, domestic corporation, municipality, or state that has or intends to obtain and will maintain any proprietary right necessary to construct, operate, or maintain the project;
  • Identify every county in which any part of the project, and any federal facilities that would be used by the project, would be located;
  • Identify every city, town, or similar local political subdivision: in which any part of the project, and any federal facilities that would be used by the project, would be located; or that has a population of 5,000 or more people and is located within 15 miles of the project dam;
  • Identify every irrigation district, drainage district, or similar special purpose political subdivision: In which any part of the project, and any federal facilities that would be used by the project, would be located; or that owns, operates, maintains, or uses any project facilities or any federal facilities that would be used by the project;
  • Every other political subdivision in the general area of the project that there is reason to believe would likely be interested in, or affected by, the application; and
  • All Indian tribes that may be affected by the project.

18 C.F.R. §§ 4.32(a)(1)-(2).

An Application must also contain the following three exhibits:

Exhibit 1 must contain a description of the proposed project, specifying and including:

  • The number, physical composition, dimensions, general configuration and, where applicable, age and condition, of any dams, spillways, penstocks, powerhouses, tailraces, or other structures that would be part of the project;
  • The estimated number, surface area, storage capacity, and normal maximum surface elevation of any reservoirs that would be part of the project;
  • The estimated number, length, voltage, interconnections, and, where applicable, age and condition, of any primary transmission lines that would be part of the project;
  • The total estimated average annual energy production and installed capacity, the hydraulic head for estimating capacity and energy output, and the estimated number, rated capacity, and the age and condition, of any turbines and generators that would be part of the project; and
  • All lands of the United States that are enclosed within the proposed project boundary.

18 C.F.R. § 4.81(b).

Exhibit 2 is a description of studies conducted or to be conducted with respect to the proposed project, including field studies. Exhibit 2 must contain the following information:

  • A description of any studies, investigations, tests, or surveys that are proposed to be carried out, and any that have already taken place, for the purposes of determining the technical, economic, and financial feasibility of the proposed project, taking into consideration its environmental impacts, and of preparing an application for a license for the project; and the approximate locations and nature of any new roads that would be built for the purpose of conducting the studies;
  • For any development within the project that would entail new dam construction, a work plan and schedule containing:
  1. A description, including approximate location, of any field study, test, or other activity that may alter or disturb lands or waters in the vicinity of the proposed project, including floodplains and wetlands; measures that would be taken to minimize any such disturbance; and measures that would be taken to restore the altered or disturbed areas;
  2. A proposed schedule, the total duration of which does not exceed the proposed term of the permit, showing the intervals at which the studies, investigations, tests, and surveys, identified are proposed to be completed; and
  • A statement of costs and financing including (if possible):
  1. The estimated costs of carrying out or preparing the studies, investigations, tests, surveys, maps, plans or specifications; and
  2. The expected sources and extent of financing available to the developer to carry out or prepare the studies, investigations, tests, surveys, maps, plans, or specifications.

18 C.F.R. § 4.81(c).

Exhibit 3 must include a map or series of maps, to be prepared on United States Geological Survey topographic quadrangle sheets or similar topographic maps of a State agency, if available. The maps must show:

  • The location of the project as a whole with reference to the affected stream or other body of water and, if possible, to a nearby town or any permanent monuments or objects that can be noted on the maps and recognized in the field;
  • The relative locations and physical interrelationships of the principal project features identified;
  • A proposed boundary for the project, enclosing:
  1. All principal project features identified, including but not limited to any dam, reservoir, water conveyance facilities, power plant, transmission lines, and other appurtenances; if the project is located at an existing federal dam, the federal dam and impoundment must be shown, but may not be included within the project boundary;
  2. Any non-federal lands and any public lands or reservations of the United States necessary for the purposes of the project.
  • Areas within or in the vicinity of the proposed project boundary which are included in or have been designated for study for inclusion in the National Wild and Scenic Rivers System; and
  • Areas within the project boundary that, under the provisions of the Wilderness Act, have been:
  1. Designated as wilderness area;
  2. Recommended for designation as wilderness area; or
  3. Designated as wilderness study area.

18 C.F.R. § 4.81(d).

7-FD-h.2 – Provide Notice of Application for a Preliminary Permit

FERC provides public notice of any Application for a Preliminary Permit.

7-FD-h.3 to 7-FD-h.5 – Review Application Materials for Completeness

FERC reviews the application materials to ensure that all necessary information is present. The developer may be required to submit additional information or provide reasons why specific information was not included.

7-FD-h.6 – Conduct Technical Review of Application

FERC reviews the application materials to determine whether it should be accepted or rejected. FERC Handbook for Hydroelectric Filings other than Licenses and Exemptions, pp. 2-2.

7-FD-h.7 – Is the Application Accepted?

FERC may approve or deny an Application for a Preliminary Permit. If the Application is accepted, then FERC issues a Letter of Acceptance to the developer. FERC will not approve an Application for a Preliminary Permit for project works that:

  • Would develop, conserve, and utilize the same water resources that would be used for a project with an unexpired Preliminary Permit;
  • Would interfere with a licensed project in a manner that would be precluded by Section 6 of the Federal Power Act;
  • Would develop, conserve, and utilize, in whole or in part, the same water resources that would be developed, conserved, and utilized by a project for which an initial development application has been filed unless the Application is filed within the time allowed under 18 C.F.R. § 4.36(a) for the filing of Application in competition against an initial Application for a Preliminary Permit that would develop, conserve, and utilize, in whole or in part, the same resources.

18 C.F.R. § 4.33(a).

7-FD-h.8 to 7-FD-h.10 – Is the Application Patently Deficient?

FERC may determine that the Application should be rejected either because it is deficient or patently deficient. If FERC determines that the Application is deficient, but not patently deficient, then FERC issues a Deficiency Letter to the developer. The developer is allowed up to 45 days from the date of the letter to correct any deficiencies. FERC Handbook for Hydroelectric Filings other than Licenses and Exemptions, page 2-3. FERC may determine that the Application must be rejected as patently deficient if it substantially fails to comply with the requirements of Application content or if the proposed project is precluded by law. FERC Handbook for Hydroelectric Filings other than Licenses and Exemptions, page 2-3.

7-FD-h.11 to 7-FD-h.13 – Submit a Request for Rehearing (Optional)

The developer may request rehearing on FERC’s determination that the Application is patently deficient. The developer must submit the request no later than 30 days after denial of the Application for a Preliminary Permit. 18 C.F.R. § 385.713(b). The request should outline the alleged error in the final decision. 18 C.F.R. § 385.713(c)(1). FERC may approve or deny any rehearing request.

7-FD-h.14 to 7-FD-h.15 – Is the Application Accepted?

If the Application is accepted, then FERC issues a Letter of Acceptance to the developer. FERC may approve or deny any Application for a Preliminary Permit.

7-FD-h.16 – Letter of Acceptance

If the Application is accepted, then FERC sends the developer a Letter of Acceptance. FERC Handbook for Hydroelectric Filings other than Licenses and Exemptions, pp. 2-3.

7-FD-h.17 – Provide Notice of Acceptance of Application

FERC must provide public notice of acceptance of the Application for a Preliminary Permit. FERC must provide notice in the following ways:

  • Publication in the Federal Register;
  • Publication in a local newspaper (four separate times); and
  • Mailing notice directly to the project mailing list, which includes resource agencies and affected Indian tribes.

18 C.F.R. § 4.32(d).

7-FD-h.18 – Comment on Approval

The public and any participating agencies may file comments within 60 days following the issuance of the notice of the Application for a Preliminary Permit. FERC Handbook for Hydroelectric Filings other than Licenses and Exemptions, pp. 2-3.

7-FD-h.19 – Final Order

FERC may approve or deny the Application for a Preliminary Permit. If the Application is approved, then FERC issues an Order Granting the Preliminary Permit. If the Application is denied, then FERC issues an order denying the permit application. Within 30 days after FERC issues an order denying the permit application, the developer may request a rehearing of the order. FERC may either issue an order either granting or denying rehearing of the permit order. If FERC issues an order denying rehearing of the permit 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. § 825l(b).

7-FD-h.20 to 7-FD-h.21 – FERC Preliminary Permit

The initial term of a Preliminary Permit may not exceed 4 years. FERC may attach terms and conditions to the Preliminary Permit. If the developer fails to comply with the terms and conditions of the permit, then FERC may cancel the Preliminary Permit. 18 C.F.R. § 4.83. If the developer fails to submit an acceptable application for FERC Licensing during the term of the Preliminary Permit, then priority of application is lost, unless the permit holder either requests an extension of the permit term before the permit expires or the permit holder, after the permit expires, applies for and receives a subsequent Preliminary Permit. However, the developer may still file an application for FERC licensing without holding a Preliminary Permit. FERC Handbook for Hydroelectric Filings other than Licenses and Exemptions, pp. 2-5.

7-FD-h.22 – Amend or Surrender Preliminary Permit (Optional)

A developer with a Preliminary Permit may seek to amend or voluntarily surrender the Preliminary Permit. (FERC Handbook for Hydroelectric Filings other than Licenses and Exemptions, page 2-5); (18 CFR §§ 4.82, 4.84).

If the developer wishes to extend the term of its Preliminary Permit, the developer must submit an application to FERC, specifying the requested term of the extension and describing how the developer has carried out activities under its initial Preliminary Permit in good faith and with reasonable diligence. FERC may extend the term of the Preliminary Permit for an additional 4 years beyond the 4-year term of the initial Preliminary Permit. After the end of an extension period, FERC may issue an additional permit to the developer if FERC determines that there are extraordinary circumstances that warrant the issuance of the additional permit. (18 C.F.R. § 4.82); (America's Water Infrastructure Act of 2018; 16 U.S.C. § 798(b)).

If the developer wishes to voluntarily surrender its Preliminary Permit, a petition must be submitted to FERC requesting surrender (18 C.F.R. § 4.84).


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