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Federal Register / Vol. 86, No. 44 / Tuesday, March 9, 2021 / Proposed Rules the Commission; however, the entity proposing to construct a facility that meets the criteria must file a Notice of Intent NOI to Construct a Qualifying Conduit Hydropower Facility with the Commission that demonstrates the facility meets the qualifying criteria discussed above.
7. The NOI must contain: An introductory statement; a statement that the proposed project will use the hydroelectric potential of a nonfederally owned conduit; a statement that the proposed facility has not been licensed or exempted on or before August 9, 2013; a description of the facility proposal; project drawings; the preliminary permit project number of the proposed facility, if applicable; and verification in a sworn notarized statement or an unsworn statement.8
Specifically with respect to the project drawings, the NOI must include a plan or overhead view; a location map showing the facilities and their relationship to the nearest town; and if a dam would be constructed in association with the facility, a profile drawing showing that the conduit, and not the dam, creates the hydroelectric potential.9
8. On June 18, 2015, in Soldier Canyon Filter Plant,10 the Commission stated:
In determining whether a proposed qualifying conduit hydropower facility meets the requirement of FPA section 30a that it use only the hydroelectric potential of a non-federally owned conduit and if it meets the other section 30a requirements is thus excluded from the licensing requirements of the FPA, we see no reason to apply a different, more stringent standard than was established in 1980 for small conduit facility exemptions. We view small conduit facilities and qualifying conduits as simply generating hydroelectricity by using the water within a conduit operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity.
Whether, or in what proportion, the conduits ability to generate hydropower is due to the conduits gradient or the head from an upstream dam is not relevant.11

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This holding indicates that the profile drawings are no longer relevant and should not be required as part of the NOI submittal. Consequently, the Commission proposes to amend its regulations to remove this requirement.
B. Major Projects Greater Than 5 MW
and up to and Including 10 MW
9. Section 405 of the Public Utility Regulatory Policies Act of 1978
8 18

CFR 4.401 2020.
4.401f.
10 151 FERC 61,228 2015.
11 Id. P 13.
9 Id.

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PURPA 12 provided that certain hydropower projects that produce 5,000
kilowatts, or 5 MW, or less of power were exempted from the licensing requirements of Part 1 of the FPA.
10. In 1981, the Commission adopted the 5-MW demarcation for certain major hydroelectric projects required to be licensed under Part 1 of the FPA to parallel PURPAs 5-MW demarcation regarding exemptions.13 Part 4 of the Commissions regulations includes three relevant licensing subparts: 1 Subpart EApplication for License for Major Unconstructed Project and Major Modified Project see 18 CFR 4.40; 2
Subpart FApplication for License for Major ProjectExisting Dam see 18
CFR 4.50; and 3 Subpart G
Application for License for Minor Water Power Projects and Major Water Power Projects 5 MW or Less see 18 CFR 4.60;
4.61.14 Subparts E and F apply to projects greater than 5 MW, and include additional filing requirements beyond Subpart G, which applies to projects less than or equal to 5 MW.
11. Likewise, Part 4 of Commissions regulations include two subparts that rely on the same 5-MW limit to determine minimum filing requirements for an application for license solely for transmission lines that transmit power from a licensed water power projects as well amendments to licensed water power projects:
1 Subpart HApplication for License for Transmission Line Only see 18 CFR 4.71; and 2 Subpart L
Application for Amendment of License see 18 CFR 4.201, respectively.
12. Part 5 of the Commissions regulations rely on the 5-MW limit to determine minimum filing requirements for applications for license for water power projects filed and processed using the integrated licensing process see 18 CFR 5.18.
13. The 2013 HREA amended section 405 to increase the limit for exemptions to 10,000 kilowatts, or 10 MW, with the 12 16

U.S.C. 2705.
Governing Applications for License for Major Unconstructed Projects and Major Modified Projects; Applications for License for Transmission Line Only and Applications for Amendment to License, Order No. 184, 46 FR 55926
Nov. 13, 1981, FERC Stats. & Regs. 30,308 1981
cross-referenced at 17 FERC 61,122; Regulations Governing Applications for License for Minor Water Power Projects and Major Water Power Projects 5
Megawatts or Less, Order No. 185, 46 FR 55944
Nov. 13, 1981, FERC Stats. & Regs. 30,309 1981
cross-referenced at 17 FERC 61,121.
14 The Commission has maintained a distinction between major and minor projects based on section 10i of the FPA. However, the license application procedures set forth in 4.61 of the Commissions regulations apply to both minor projects and major projects less than 5 MW with the exception of Exhibit E for unconstructed projects. These proposed changes do not affect minor projects.
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goal of facilitating the speed at which such hydropower projects could be built. Order 800 amended the Commissions regulations to reflect the 10-MW limit.15
14. As a result of these changes, the Commissions limit for license application provisions no longer parallels the limit for exemptions. We continue to believe that a parallel demarcation is appropriate to expedite hydropower development by easing the burden of preparing an application for license and by assisting the Commission in more rapid processing of applications. 16 Moreover, the 5-MW
limit in the Commissions regulations could be burdensome to projects greater than 5 MW and up to and including 10
MW, in terms of the cost and time associated with the additional filing requirements of Subparts E and F.
15. Therefore, the Commission proposes to amend Parts 4 and 5 of its regulations to extend the licensing and amendment filing requirements that currently apply to major projects up to 5 MW to major projects 10 MW or less, consistent with the amended definition of a small hydroelectric power project in the 2013 HREA.17
II. Regulatory Requirements A. Information Collection Statement 16. The Paperwork Reduction Act 18
requires each federal agency to seek and obtain the Office of Management and Budgets OMB approval before undertaking a collection of information directed to ten or more persons or contained in a rule of general applicability. OMB regulations require approval of certain information collection requirements contemplated by proposed rules.19 Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number.
17. Public Reporting Burden: In this NOPR, the Commission proposes to revise its regulations governing the filing requirements for qualifying conduits and for major hydroelectric 15 See
Order No. 800, 148 FERC 61,197 2014.
for License for Minor Water Power Projects and Major Water Power Projects 5
Megawatts or Less, 46 FR 9637 Jan. 29, 1981, FERC
Stats. & Regs. 32,106 1981 cross-referenced at 14
FERC 61,042.
17 Section 4.32a5ii, which contains a crossreference to 4.61, will also be revised.
18 44 U.S.C. 35013521.
19 See 5 CFR 1320.11 2020.
16 Applications
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