18 C.F.R. § 4.33

Limitations on submitting applications

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(a) Limitations on submission and acceptance of a preliminary permit application. The Commission will not accept an application for a preliminary permit for project works that:

(1) 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 there is an unexpired preliminary permit.

(2) Would interfere with a licensed project in a manner that, absent the licensee's consent, would be precluded by Section 6 of the Federal Power Act.

(3) 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 preliminary permit application is filed not later than the time allowed under § 4.36(a) for the filing of applications in competition against an initial application for a preliminary permit that would develop, conserve, and utilize, in whole or in part, the same resources.

(b) Limitations on submissions and acceptance of a license application. The Commission will not accept an application for a license or project works that would develop, conserve, or utilize, in whole or part, the same water resources that would be developed, conserved, and utilized by a project for which there is:

(1) An unexpired preliminary permit, unless the permittee has submitted an application for license; or

(2) An unexpired license, except as provided for in Section 15 of the Federal Power Act.

(c) Limitations on submission and acceptance of an application for a license that would affect an exempted project. (1) Except as permitted under § 4.33(c)(2), § 4.94(d), or § 4.106 (c), (e) or (f), the Commission will not accept an application for a license for project works that are already exempted from licensing under this part.

(2) If a project is exempted from licensing pursuant to § 4.103 or § 4.109 and real property interests in any non-Federal lands would be necessary to develop or operate the project, any person who is both a qualified license applicant and has any of those real property interests in non-Federal lands may submit a license application for that project. If a license application is submitted under this clause, any other qualified license applicant may submit a competing license application in accordance with § 4.36.

(d) Limitations on submission and acceptance of exemption applications—(1) Unexpired permit or license. (i) If there is an unexpired permit in effect for a project, the Commission will accept an application for exemption of that project from licensing only if the exemption applicant is the permittee. Upon acceptance for filing of the permittee's application, the permit will be considered to have expired.

(ii) If there is an unexpired license in effect for a project, the Commission will accept an application for exemption of that project from licensing only if the exemption applicant is the licensee.

(2) Pending license applications. If an accepted license application for a project was submitted by a permittee before the preliminary permit expired, the Commission will not accept an application for exemption of that project from licensing submitted by a person other than the former permittee.

(3) Submitted by qualified exemption applicant. If the first accepted license application for a project was filed by a qualified exemption applicant, the applicant may request that its license application be treated initially as an application for exemption from licensing by so notifying the Commission in writing and, unless only rights to use or occupy Federal lands would be necessary to develop and operate the project, by submitting documentary evidence showing that the applicant holds the real property interests required under § 4.31. Such notice and documentation must be submitted not later than the last date for filing protests or motions to intervene prescribed in the public notice issued for its license application under § 4.32(d)(2).

(e) Priority of exemption applicant's earlier permit or license application. Any accepted preliminary permit or license application submitted by a person who later applies for exemption of the project from licensing will retain its validity and priority under this subpart until the preliminary permit or license application is withdrawn or the project is exempted from licensing.

[Order 413, 50 FR 11680, Mar. 25, 1985, as amended by Order 499, 53 FR 27002, July 18, 1988; Order 2002, 68 FR 51116, Aug. 25, 2003; Order 699, 72 FR 45324, Aug. 14, 2007]

Notes of Decisions

Cited in 17 cases, 1982–2008 · leading case: City of Dothan, Alabama v. Fed. Energy Regulatory Comm'n, Mun. Elec. Auth. of Georgia, Intervenor, 684 F.2d 159 (D.C. Cir. 1982).

Sort: Relevance Newest Treatment

City of Dothan, Alabama v. Fed. Energy Regulatory Comm'n, Mun. Elec. Auth. of Georgia, Intervenor, 684 F.2d 159 (D.C. Cir. 1982). · cites it 12× “” 18 C.F.R. § 4.33 (g)(1) (1981). If the Commission finds that the proposals of two municipalities or states are “equally well adapted” to the objectives of the Act, then it grants the preliminary permit to the applicant that filed first.”

N. Colorado Water Conservancy Dist. v. Fed. Energy Regulatory Comm'n, Energenics Sys., Inc., Intervenor, 730 F.2d 1509 (D.C. Cir. 1984). · cites it 5× “” 18 C.F.R. § 4.33 (h)(1) (1983). Indeed, even where a competing applicant has a superior plan the permit holder is entitled to be informed of “the specific reason why its plan is not as well adapted” and to be given “a reasonable period of time” to bring its plan up to the…”

Skokomish Indian Tribe v. Fed. Energy Regulatory Comm'n, 121 F.3d 1303 (9th Cir. 1997). · cites it 2× “FERC’s Orders Rejecting the Tribe’s Permit Application On April 6, 1995, FERC issued an order rejecting the Tribe’s request for a preliminary permit on the ground that the Tribe’s application conflicted with Tacoma’s filed “initial development application” in violation of 18…”

Appomattox River Water Auth. v. Fed. Energy Regulatory Comm'n, Brasfield Dev. Ltd., Intervenor, 736 F.2d 1000 (4th Cir. 1984). · cites it 3× “Relying on the FERC’s first-to-file regulation, 18 C.F.R. § 4.33 (g)(2), 2 the Director denied the Authority’s application.”

Town of Summersville, West Virginia v. Fed. Energy Regulatory Comm'n, Friends of the Earth, Intervenor, 780 F.2d 1034 (D.C. Cir. 1986). · cites it 2× “18 C.F.R. § 4.33 (h)(1) (1984). And even if a competitor presents a superior plan, FERC will give the permittee an opportunity to revise its own plan to bring it up to the level of the competitor’s plan.”

City of Ukiah, California v. Fed. Energy Regulatory Comm'n, Sonoma Cnty. Water Agency, Intervenor, 729 F.2d 793 (D.C. Cir. 1984). · cites it 2× “18 C.F.R. § 4.33 (g) (1983) . Both Ukiah and Sonoma have a statutory preference as municipalities.”

Cities of Anaheim & Riverside, California v. Fed. Energy Regulatory Comm'n, S. California Edison Co., Intervenor, 692 F.2d 773 (D.C. Cir. 1982). “18 C.F.R. § 4.33 (h)(1) (1981). If the Commission decides that other license applications are better adapted, the permit holder will be so informed, and will be given a reasonable time in which to amend its license application so as to render it of equal quality with *781 those…”

City of Gillette, Wyoming v. Fed. Energy Regulatory Comm'n, 737 F.2d 883 (10th Cir. 1984). “18 C.F.R. § 4.33 (h). On February 20, 1981, the Commission issued a public notice stating that Mitchell Energy Company, Inc.”

Fall River Rural Elec. Coop., Inc. v. Fed. Energy Regulatory Comm'n, 543 F.3d 519 (9th Cir. 2008). “” 18 C.F.R. § 4.33 (a)(2). FERC’s practice is that “where it is clear at the preliminary permit application stage that the development proposed in the permit application would cause impermissible alterations of an existing license under section 6, the Commission will not grant…”

Kamargo Corp. v. Fed. Energy Regulatory Comm'n, Niagara Mohawk Power Corp., Intervenor, 852 F.2d 1392 (D.C. Cir. 1988). “§ 798 ; see also 18 C.F.R. 4.33(b) (1987). Only after the permit holder files can a competitor intervene.”

Delaware River Basin Comm'n & Commonwealth of Pennsylvania v. Fed. Energy Regulatory Comm'n, 680 F.2d 16 (3rd Cir. 1982). “and the plans of the applicants are equally well adapted to develop, conserve, and utilize in the public interest the water resources of the region, taking into consideration the ability of each applicant to carry out its plans, the Commission will favor the applicant whose…”

New York State Energy Rsch. & Dev. Auth. v. Fed. Energy Regulatory Comm'n, Long Lake Energy Corp., Intervenor, 746 F.2d 64 (D.C. Cir. 1984). “See 18 C.F.R. § 4.33 (c) (1982). NYSERDA thus had actual notice that its application was due in the Secretary’s Office at 825 North Capitol Street on October 25.”

Show all 17 citing cases →

— 18 C.F.R. § 4.33(b) — 1 case

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.