PART 221—WORK FOR OTHERS Authority: Secs. 2 and 4(e) of the Federal Power Act of 1920 (41 Stat. 1603, 16 U.S.C. 791-823), as amended; sec. 10 of the River and Harbour Act of 1899 (30 Stat. 1151, 33 U.S.C. 403); and sec. 404 of Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816, 33 U.S.C. 1344) Source: 43 FR 4979, Feb. 7, 1978, unless otherwise noted. § 221.1 Investigation and supervision of hydropower projects under the Federal Power Act (ER 1140-2-4). (a) Purpose. 1 1 (1) Investigation of applications filed with FERC for permits and licenses, and for relicensing of projects to ascertain impacts on Corps of Engineers responsibilities. (2) Investigation of applications for surrender or termination of license to ascertain impacts on Corps of Engineers responsibilities. (3) Supervision and inspection of operations of licensed hydroelectric projects to ascertain impacts on Corps of Engineers responsibilities. (b) Applicability. (c) References. (2) Code of Federal Regulations, Title 18, part 1 to 149 relating to FERC General Rules and Regulations, available at the U.S. Government Printing Office, Washington, D.C. 20402. (3) ER 1145-2-303 (33 CFR 209.120), 2 2 (4) ER 1140-2-1, Submission of Data for Headwater Benefits Determination. (d) Definitions Licensed project. (2) Major projects. (3) Minor projects. (4) Preliminary permit application. (5) Relicensing. (6) Take over. (e) Authorities. (1) Section 2 of the Act provides in part that: The Commission may request the President to detail an officer or officers from the Corps of Engineers, or other branches of the United States Army to serve the Commission as engineer officer or officers * * *. (2) Section 4(e) of the Act provides in part that: The Commission is hereby authorized and empowered * * * to issue licenses to citizens of the United States, or to any associations of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of construction, operating, and maintaining dams, water conduits, reservoirs, powerhouses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization, of power across, along, from or in any of the streams or other bodies of water over which Congress has jurisdiction * * *. * * *Provided that no license affecting the navigable capacity of any navigable water of the United States shall be issued until the plans of the dam or other structures affecting navigation have been approved by the Chief of Engineers and the Secretary of the Army. (f) Investigation of application for permits, licenses, or relicensing of projects. (1) License applications. (ii) Recommendations for license provisions required to protect the interest of navigation. This item is discussed under paragraphs 7, 8 and 9. (iii) Consideration of the project in relation to a comprehensive plan for developing the basin water resources from the standpoint of the Corps of Engineers' programs and responsibilities. Specific references should be made to pertinent published Congressional documents containing results of studies and/or to Congressional resolutions directing studies to be made to provide identification. (iv) Consideration of environmental aspects of a project as related to navigation and flood control matters or other specific Corps interests and responsibilities in particular cases. (v) The matter of possible redevelopment of an existing project to improve the usefulness of the project in relation to the objectives of the Corps program in the basin. In the case of an unconstructed project, based on request from the Commission, a recommendation along with justification, should be included as to whether or not development should be undertaken by the United States. (vi) Consideration of structural safety and adequacy of spillway design flood for FERC licensed projects are the responsibility of the FERC. The Dam Safety Act, Pub. L. 92-367 provides that dams constructed pursuant to license issued under the authority of Federal Power Act are specifically exempted from the Corps National inspection program. This does not preclude the Corps District and Division offices from making comments on license applications for the FERC information, about any design deficiencies that are brought to their attention. (2) Relicensing (new license) application. (ii) Recommendations should be furnished to the FERC with respect to possible need for “take over” of a project by the Federal Government. Details on “take over” under the Federal Power Act are provided in part 16 of the CFR, title 18 (part 1 to 149). A copy of part 16 is provided for ready reference in appendix A of this part. (iii) FERC Preliminary Permit Application. Consider appropriate recommendations to insure coordination of applicant's studies with the Division or District Engineer in cases where responsibilities and interests of the Corps of Engineers would be affected. The report should include discussion of Corps interests which could result in recommendations for provisions to be included in a subsequent license. In general proposed construction of power facilities at or in conjunction with a Corps reservoir project will be reviewed with the objective of recommending design, construction and operation factors that the applicant must consider in its studies in order for the proposed power development to be compatible, physically and economically, with the authorized function of the Corps project(s). (g) Terms and conditions for insertion in FERC permits and licenses. (h) Standard terms and conditions used by the FERC in its permits and licenses. (1) Form L-3 (Revised October 1975) Terms and Conditions of License for Constructed Major Project Affecting Navigable Waters of the United States. (2) Form L-4 (Revised October 1975) Terms and Conditions of License for Unconstructed Major Project Affecting Navigable Waters of the United States. Any special terms and conditions pertaining to the Corps of Engineers responsibilities, in addition to those identified in appendix B should be tailored to suit the situation involved. Appendix B also provides a list of other FERC standard articles Forms that could be obtained from FERC offices. (i) Distinction between Corps of Engineers and FERC jurisdiction with respect to non-Federal Hydroelectric projects. (i) In regard to FERC licensing of projects, Corps responsibilities under section 10 of the River and Harbor Act of 1899, for power related activities, may normally be met through the FERC licensing procedure including insertion of terms and conditions in the license of the interest of navigation. Section 4(e) of the Federal Power Act provides for approval of plans of project works by the Chief of Engineers and Secretary of the Army from the standpoint of interests of navigation. The consideration for our approval under section 4(e) will be limited to effects of project power related activities on navigation. (ii) Applications to Corps Division or District Engineers for approval of repairs, maintenance or modification of non-Federal water power projects authorized under River and Harbor Acts as well as special Acts of Congress prior to 1920, or requests for advice with respect thereto should be referred to the FERC for consideration in accordance with the provisions of the Federal Power Act. The permittee should be advised that the application is being referred to the FERC for consideration and that if a FERC license is required Corps recommendations will be furnished to the FERC. (2) Responsibilities under section 404 of the Federal Water Pollution Control Act as amended in 1972 (33 U.S.C. 1151) pertinent to discharge of dredged or fill material into the navigable waters at specified disposal sites will be met only through the Department of Army permit procedures as specified in ER 1145-2-303. In regard to FERC cases involving section 404, our report to the FERC through (DAEN-CWE-HY) will specify the need for a Department of Army permit (section 404) if, on the basis of the Division and District Engineers' reports, such permit is deemed necessary. A Department of the Army permit will be required for any portion of a proposed project which involves the discharge of dredged or fill material into the waters of the United States. This includes the placement of fill necessary for construction of a project's dam and appurtenant structures. (3) When applicable, FERC will be advised that the requirement for Department of the Army permit pursuant to section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 for the transport of dredged material from the project site for the purpose of dumping it into the ocean waters will be met only through the Department of the Army permit program. (4) In connection with FERC licensed projects there may be proposed non-power water oriented activities, such as recreational development, which are associated with the overall project but may not be a part of the hydroelectric power facilities at the project. Such cases, if involving navigable waters should be reviewed from the standpoint of need for a section 10 permit. Such section 10 permit actions would involve consideration of the overall public interest, including water quality, fish and wildlife, recreation, general environmental concerns and the needs and welfare of the people. Corps responsibilities for permit requirements under section 10 of the River and Harbor Act of 1899 for nonpower activities affecting navigable waters at the FERC projects will be met only through the Corps permit procedures. The Corps' report to FERC through (DAEN-CWE-HY) will specify the need for such permit when recommended by the Division and District Engineers' report. (j) Investigation of applications for surrender or termination of license. (k) Supervision and inspection of operation of licensed hydroelectric projects. (l) Safety of licensed hydroelectric projects. (m) Supervision of construction of licensed hydroelectric projects. (n) Other investigation under the Federal Power Act. (o) Funding of operations under the Federal Power Act. (2) Non-personal costs amounting to less than $100 for any single investigation will not be reimbursed from the Commission funds but will be charged also to “Special Investigations” under the appropriations for “General Expenses.” Each Division Engineer charged with a detailed investigation of an application for license or the supervision of a project that will require more than a nominal amount of nonpersonal costs will be specifically requested to submit an estimate of the funds required upon assignment of the work by the Chief of Engineers. (3) Reimbursement from the FERC funds for nonpersonal costs in excess of $100 will be made by the Chief of Engineers upon submission of a voucher on Standard Form 1080 by the District Engineer through the Division Engineer. The voucher will show the fiscal year during which the work was done and the Commission project number on which the money was spent. Appendix A to Part 221—Part 16-Procedures Relating to Takeover and Relicensing of Licensed Projects Sec. 16.1 Purpose and coverage. 16.2 Public notice of projects under expiring license. 16.3 When to file. 16.4 Notice upon filing of application. 16.5 Annual licenses. 16.6 Applications for new license for projects subject to sections 14 and 15 of the Federal Power Act and all other major projects. 16.7 Application for nonpower license. 16.8 Departmental recommendations for takeover. 16.9 Commission recommendation to Congress. 16.10 Motion for stay by Federal department or agency. 16.11 Procedures upon congressional authorization of takeover. 16.12 Renewal of minor or minor part licenses not subject to sections 14 and 15. 16.13 Acceptance for filing or rejection of application. Authority: Federal Power Act, secs. 7(c), 14, 15, 309 (16 U.S.C. 800, 807, 808, 825h. Source: Order 141, 12 FR 8461, Dec. 19, 1947, as amended by Order 175, 19 FR 5212, Aug. 18, 1954; Order 260, 28 FR 814, Jan. 11, 1963; 28 FR 1680, Feb. 21, 1963; 28 FR 2270, Mar. 8, 1963; Order 288, 29 FR 14106, Oct. 14, 1964; Order 384, 34 FR 12269, July 25, 1969, unless otherwise noted. § 16.1 Purpose and coverage. This part implements the amendments of sections 7(c), 14, and 15 of part I of the Federal Power Act, as amended, enacted by Public Law 90-451, 82 Stat. 616, approved August 3, 1968. It applies to projects subject to sections 14 and 15 of the Federal Power Act including projects for which a nonpower license may be issued. Procedures are provided for the filing of applications for either power or nonpower licenses for projects whose licenses are expiring. A license for a power project issued to either the original licensee or another licensee is referred to in this part as a “new license” and a license for a nonpower project as a “non-power license”. Also provided are procedures for the filing of recommendations for takeover by Federal departments or agencies and applications for renewal of licenses not subject to section 14. § 16.2 Public notice of projects under expiring license. In order that there should be adequate notice and opportunity to file timely applications for a license the Commission's Secretary will give notice of the expiration of license of a project (except transmission line and minor projects) 5 years in advance thereof in the same manner as provided in section 4(f) of the Act. The Secretary shall upon promulgation of the rules herein give notice, as provided in section 4(f) of the Act, of all whose license terms have expired since January 1, 1968, or which will expire within 5 years of the effective date of this rule. In addition, the Commission each year will publish in its annual report and in the Federal Register § 16.3 When to file. (a) An existing licensee must file an application for a “new license” or “nonpower license” or a statement of intention not to file an application for a “new license” no earlier than 5 years and no later than 3 years prior to the expiration of its license, except that, where the license will expire within 3 1/2 (b) Any other person or municipality may file an application for a “new license” or “non-power license” within 5 years of the expiration of the license, but in no event, unless authorized by the Commission, later than 6 months after issuance of notice of the filing of an application or statement by the licensee under § 16.4 or 2 1/2 (c) Any application submitted after the expiration of the time specified herein for filing must be accompanied by a motion requesting permission to file late, which motion shall detail the reasons of good cause why the application was not timely filed and how the public interest would be served by its consideration. § 16.4 Notice upon filing of application. When any timely application or statement within the meaning of § 16.3 is received, or when the Commission grants any motion for consideration of a late filed application, notice of receipt thereof will be furnished the applicant, and public notice will be given in the same manner as provided in sections 4(f) and 15(b) of the Act (49 Stat. 838; 41 Stat. 1072; 82 Stat. 616; 16 U.S.C. 797, 808) §§ 1.37 and 2.1 of this chapter, the Fish and Wildlife Coordination Act, 48 Stat. 401, as amended, 16 U.S.C. 661 et seq., Federal Register. § 16.5 Annual licenses. No application for annual license need be filed nor will such application be accepted under section 15 of the Act. An existing licensee making timely filing for a new license will be deemed to have filed for an annual license. If the Commission has not acted upon an application by licensee for a new license at the expiration of the license terms, by the issuance of an order granting, denying or dismissing it, an annual license shall be issued by notice of the Secretary. § 16.6 Applications for new license for projects subject to sections 14 and 15 of the Federal Power Act and all other major projects. (a) Each application for a new license hereunder shall conform in form to § 131.2 of this chapter, and shall set forth in appropriate detail all information and exhibits prescribed in §§ 4.40 through 4.42 of this chapter, inclusive and in § 4.51 of this chapter, as well as additional information specified in paragraphs (b) through (e) of this section, except that Exhibit A may be incorporated in an application by reference where one applicant files applications for several projects, one of which already contains an Exhibit A or in any case where applicant has filed an Exhibit A within 10 years preceding the filing of the application, and that Exhibits N and O as specified in § 4.41 of this chapter need only be filed as provided in paragraph (c) of this section. An original and fourteen conformed copies of the application and all accompanying exhibits shall be submitted to the Commission plus one additional conformed copy for each interested State Commission. (b) An application for a “new license” hereunder shall include a statement showing the amount which licensee estimates would be payable if the project were to be taken over at the end of the license term pursuant to the provisions of sections 14 and 15 of the Federal Power Act. This statement shall include estimates of: (1) Fair value; (2) net investment; and (3) severance damages. (This subsection is not applicable to State, municipal, or nonlicensee applicants.) (c) If the applicant proposes project works in addition to those already under license, the maps, plans, and descriptions of the project works (Exs. I, J, L and M) shall distinguish the project works of parts thereof which have been constructed from those to be constructed. Exhibits N and O shall also be included in the application relating to new construction. (d) Applicant shall furnish its plans for the future modification or redevelopment of the project, if any, and shall set forth in detail why technically feasible, additional capacity is not proposed for installation at the time of relicensing. (e) Applicant shall file a statement on the effect that takeover by the United States or relicensing to another applicant would have upon the supply of electric energy to the system with which it is interconnected, the rates charged its customers, the licensee's financial condition, and taxes collected by local, State, and Federal Governments. (This subsection is not applicable to State, municipal or nonlicensee applicants.) § 16.7 Application for nonpower license. Each application for “non-power license” shall generally follow the form prescribed in § 131.6 of this chapter, except for subsections 7 and 8 thereof. It shall be accompanied by Exhibits K, L, R, and S prepared as described in section 4.41, and shall include the information specified in paragraphs (a) through (c) of this section. Unless otherwise specified, an original and 14 conformed copies of the application and all accompanying exhibits shall be submitted with one additional conformed copy for each interested State commission. Additional information may be requested by the Commission if desired. (a) Applicant shall furnish a description of the nonpower purpose for which the project is to be utilized and a showing of how such use conforms with a comprehensive plan for improving or developing a waterway or waterways for beneficial uses, including a statement of the probable impact which conversion of the project to nonpower use will have on the power supply of the system served by the project. (b) Applicant shall identify the State, municipal, interstate or Federal agency, if any, which is authorized or willing to assume regulatory supervision over the land, waterways and facilities to be included within the nonpower project. (If there is such an agency, applicant shall forward one copy of the application to such agency.) (c) Applicant shall submit a proposal for the removal or other disposition of power facilities of the project. A “non-power license” shall be effective until such time as in the judgement of the Commission a State, municipal, interstate, or Federal agency is authorized and willing to assume regulatory supervision over the land, waterways, and facilities included within the “non-power license” or until the project structures are removed. Such State, municipal, interstate or Federal agency may petition the Commission for termination of a “non-power license” at any time. Where the existing project is located on the public lands or reservations of the United States, and there is no application for relicensing as a power project either by the original licensee, or some other entity, or a takeover recommendation, the Commission may, in its discretion, and upon a showing by the agency having jurisdiction over the lands or reservations that it is prepared to assume requisite regulatory supervision for the nonpower use of the project, terminate the proceeding without issuing any license for nonpower use. § 16.8 Departmental recommendations for takeover. A recommendation that the United States exercise its right to take over a project may be filed by any Federal department or agency no earlier than 5 years and no later than 2 years prior to the expiration of the license term; Provided, however, § 16.9 Commission recommendation to Congress. If the Commission, after notice and opportunity for hearing, concludes upon departmental recommendation, a proposal of any party, or its own motion, that the standards of section 10(a) of the Act would best be served if a project whose license is expiring is taken over by the United States, it will issue its findings and recommendations to this effect, and after any modification thereof, upon consideration of any application for reconsideration, made in conformity with the provisions of § 1.34 of this chapter governing applications for rehearing, forward copies of its findings and recommendations to the Congress. § 16.10 Motion for stay by Federal department or agency. If the Commission does not recommend to the Congress that a project be taken over, a Federal department or agency which has filed a timely recommendation for takeover as provided in this part may, within thirty (30) days of issuance of an order granting a license, file a motion, with copies to the parties in the proceeding, before the Commission requesting a stay of the license order. Upon the filing of such a motion, the license order automatically will be stayed for 2 years from the date of issuance of the order, unless the stay is terminated earlier upon motion of the department or agency requesting the stay or by action of Congress. The Commission will notify Congress of any such stay. Upon expiration or termination of the stay, including any extension thereof by act of Congress, the Commission's license order shall automatically become effective in accordance with its terms. The Commission will notify Congress of each license order which has become effective by reason of the expiration or termination of a stay. § 16.11 Procedures upon congressional authorization of takeover. A determination whether or not there is to be a Federal takeover of a project would ultimately be made by Congress through the enactment of appropriate legislation. If Congress authorizes takeover, the Secretary will immediately give the Licensee not less than 2 years' notice in writing of such action. Within 6 months of issuance of such notice the Licensee shall present to the Commission any claim for compensation consistent with the provisions of section 14 of the Federal Power Act and the regulations of the Commission. § 16.12 Renewal of minor or minor part licenses not subject to sections 14 and 15. Licenses whose minor or minor part licenses are not subject to sections 14 and 15 of the Act and wish to continue operation of the project after the end of the license term shall file an application for a “new license” 1 year prior to the expiration of their original license in accordance with applicable provisions of part 4 of this chapter. § 16.13 Acceptance for filing or rejection of application. Acceptance for filing or rejection of applications under this part shall be in accordance with the provisions of § 4.31 of this chapter. Appendix B to Part 221—Federal Energy Regulatory Commission Form L-3 (Revised October 1975) terms and conditions of license for constructed major project affecting navigable waters of the united states Article 1. Article 2. Provided, however, Article 3. Article 4. Article 5. Article 6. Provided, Article 7. Article 8. Article 9. Article 10. Article 11. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Provided, Article 19. Article 20. Article 21. Article 22. Article 23. Article 24. Article 25. Article 26. Article 27. Article 28. Federal Energy Regulatory Commission Form L-4 (Revised October, 1975) terms and conditions of license for unconstructed major project affecting navigable waters of the united states Article 1. Article 2. Provided, however, Article 3. Upon the completion of the project, or at such other time as the Commission may direct, the Licensee shall submit to the Commission for approval revised exhibits insofar as necessary to show any divergence from or variations in the project area and project boundary as finally located or in the project works as actually constructed when compared with the area and boundary shown and the works described in the license or in the exhibits approved by the Commission, together with a statement in writing setting forth the reasons which in the opinion of the Licensee necessitated or justified variation in or divergence from the approved exhibits. Such revised exhibits shall, if and when approved by the Commission, be made a part of the license under the provisions of Article 2 hereof. Article 4. Article 5. Article 6. Provided, Article 7. Article 8. Article 9. Article 10. Article 11. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Provided, Article 19. Article 20. Article 21. Article 22. Article 23. Article 24. Article 25. Article 26. Article 27. Article 28. List of FPC Standard Articles Forms Used in Permits and Licenses for Hydroelectric Projects The following FPC standard articles Forms, in addition to the standard Forms L-3, and L-4 which are provided in this appendix, are available from the FPC offices: FPC Forms 1 Title P-1 Terms and conditions of preliminary permit. L-1 Terms and conditions of license for constructed major project affecting lands of the United States. L-2 Terms and conditions of license for unconstructed major project affecting lands of the United States. L-5 Terms and conditions of license for constructed major projects affecting navigable waters and lands of the United States. L-6 Terms and conditions of license for unconstructed major project affecting navigable waters and lands of the United States. L-9 Terms and conditions of license for constructed minor projects affecting navigable waters of the United States. L-10 Terms and conditions of license for constructed major project affecting the interests of interstate or foreign commerce. L-11 Terms and conditions of license for unconstructed major project affecting the interests of interstate or foreign commerce. L-14 Terms and conditions of license for unconstructed minor project affecting navigable waters of the United States. L-15 Terms and conditions of license for unconstructed minor project affecting the interests of interstate or foreign commerce. L-16 Terms and conditions of license for constructed minor project affecting lands of the United States. L-17 Terms and conditions of license for unconstructed minor project affecting lands of the United States. L-18 Terms and conditions of license for constructed minor project affecting navigable waters and lands of the United States. L-19 Terms and conditions of license for unconstructed minor project affecting navigable waters and lands of the United States. 1