C.F.R. » Title 18 » CHAPTER I—FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY › SUBCHAPTER B—REGULATIONS UNDER THE FEDERAL POWER ACT › PART 4—LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT COSTS › Subpart D—Application for Preliminary Permit, License or Exemption: General Provisions

18 C.F.R. § 4.36

Competing applications: deadlines for filing; notices of intent; comparisons of plans of development

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The public notice of an initial preliminary permit application or an initial development application shall prescribe the deadline for filing protests and motions to intervene in that proceeding (the prescribed intervention deadline).

(a) Deadlines for filing applications in competition with an initial preliminary permit application. (1) Any preliminary permit application or any development application not filed pursuant to a notice of intent must be submitted for filing in competition with an initial preliminary permit application not later than the prescribed intervention deadline.

(2) Any preliminary permit application filed pursuant to a notice of intent must be submitted for filing in competition with an initial preliminary permit application not later than 30 days after the prescribed intervention deadline.

(3) Any development application filed pursuant to a notice of intent must be submitted for filing in competition with an initial preliminary permit application not later than 120 days after the prescribed intervention deadline.

(b) Deadlines for filing applications in competition with an initial development application. (1) Any development application not filed pursuant to a notice of intent must be submitted for filing in competition with an initial development application not later than the prescribed intervention deadline.

(2) Any development application filed pursuant to a notice of intent must be submitted for filing in competition with an initial development application not later than 120 days after the prescribed intervention deadline.

(3) If the Commission has accepted an application for exemption of a project from licensing and the application has not yet been granted or denied, the applicant for exemption may submit a license application for the project if it is a qualified license applicant. The pending application for exemption from licensing will be considered withdrawn as of the date the Commission accepts the license application for filing. If a license application is accepted for filing under this provision, any qualified license applicant may submit a competing license application not later than the prescribed intervention deadline set for the license application.

(4) Any preliminary permit application must be submitted for filing in competition with an initial development application not later than the deadlines prescribed in paragraphs (a)(1) and (a)(2) for the submission of preliminary permit applications filed in competition with an initial preliminary permit application.

(c) Notices of intent. (1) Any notice of intent to file an application in competition with an initial preliminary permit or an initial development application must be submitted for filing not later than the prescribed intervention deadline for the initial application.

(2) A notice of intent must include:

(i) The exact name, business address, and telephone number of the prospective applicant; and

(ii) An unequivocal statement of intent to submit a preliminary permit application or a development application (specify which type of application).

(d) Requirements for competing applications. (1) Any competing application must:

(i) Conform to all requirements for filing an initial application; and

(ii) Include proof of service of a copy of the competing application on the person(s) designated in the public notice of the initial application for service of pleadings, documents, or communications concerning the initial application.

(2) Comparisons of plans of development. (i) After the deadline for filing applications in competition against an initial development application has expired, the Commission will notify each license and exemption applicant of the identity of the other applicants.

(ii) Not later than 14 days after the Commission serves the notification described in paragraph (d)(2)(i) of this section, if a license or exemption applicant has not already done so, it must serve a copy of its application on each of the other license and exemption applicants.

(iii) Not later than 60 days after the Commission serves the notification described in paragraph (d)(2)(i) of this section, each license and exemption applicant must file with the Commission a detailed and complete statement of how its plans are as well or better adapted than are the plans of each of the other license and exemption applicants to develop, conserve, and utilize in the public interest the water resources of the region. These statements should be supported by any technical analyses that the applicant deems appropriate to support its proposed plans of development.

[Order 413, 50 FR 11680, Mar. 25, 1985; 50 FR 23947, June 7, 1985]
Notes of Decisions
Cited in 4 cases, 1986–2003 · leading case: Marseilles Land & Water Co. v. Fed. Energy Regulatory Comm'n, 345 F.3d 916 (D.C. Cir. 2003).
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Marseilles Land & Water Co. v. Fed. Energy Regulatory Comm'n, 345 F.3d 916 (D.C. Cir. 2003). · cites it 9× “See 18 C.F.R. § 4.36 . 1 While a permit grants the holder a preference should it decide to file a development application, it is not necessary for anyone to apply for a permit prior to applying for a license; the permit application process can be bypassed altogether.”
Aliceville Hydro Assocs. v. Fed. Energy Regulatory Comm'n, Indep. Elec. Corp., Intervenor, 800 F.2d 1147 (D.C. Cir. 1986). “IEC was accordingly directed, pursuant to 18 C.F.R. § 4.36 (e)(2), to submit a statement explaining why its proposal was better adapted to the public interest than AHA’s proposal.”
Kamargo Corp. v. Fed. Energy Regulatory Comm'n, Niagara Mohawk Power Corp., Intervenor, 852 F.2d 1392 (D.C. Cir. 1988). “” 18 C.F.R. § 4.36 (b) (1987). In this case, the Commission estimated that the intervention date would most likely be set a few months after Kamargo applied for an original license.”
City of Fremont v. Fed. Energy Regulatory Comm'n, 336 F.3d 910 (9th Cir. 2003). “Marseilles Hydro Power LLC, 99 FERCT 61,011 (2002) (denying applicants’ request to waive the 18 C.F.R. § 4.36 (a) deadline for filing of notice of intent to file competing application); Milton and Morris Zack, 21 FERC ¶ 61,123 (1982) (rejecting a notice of intent to file a…”
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