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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations Americas Water Infrastructure Act of 2018.4
5. In accordance with section 30a2A,5 any person, State, or municipality proposing to construct a qualifying conduit hydropower facility must file a notice of intent demonstrating the facility meets the following qualifying criteria: 6
Be located on and use only the hydroelectric potential of a nonfederally owned conduit;
have a proposed installed capacity that does not exceed 40 MW; 7 and be proposed for construction and, as of the date of enactment of the 2013
HREA, not be licensed under, or exempted from, the licensing requirements of Part I of the FPA.
6. Under the 2013 HREA, as amended,8 the Commission is required to determine whether proposed projects meet the criteria to be considered qualifying conduit hydropower facilities. Qualifying conduit hydropower facilities are not required to be licensed or exempted by the Commission; however, the entity proposing to construct a facility that meets the criteria must file a Notice of Intent to Construct a Qualifying Conduit Hydropower Facility NOI 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.9
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 4 Public
Law 115270, 132 Stat. 3765 2018.
U.S.C. 823aa2A.
6 Id. 823aa3C. The qualifying conduit hydropower facility must also meet the requirements for a small conduit facility as defined in section 30a3A of the FPA. Id. 823aa3A.
7 The 2013 HREA required that qualifying conduit hydropower facilities not exceed 5 MW. This limit was revised to 40 MW at section 30022 in the Americas Water Infrastructure Act of 2018
codified at 16 U.S.C. 823aa3Cii.
8 Public Law 115270, 132 Stat. 3765.
9 18 CFR 4.401.

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not the dam, creates the hydroelectric potential.10
8. On June 18, 2015, in Soldier Canyon Filter Plant,11 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.12
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 proposed 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
PURPA 13 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 5MW demarcation for certain major hydroelectric projects required to be licensed under Part 1 of the FPA to parallel PURPAs 5MW demarcation regarding exemptions.14 Part 4 of the Commissions regulations includes three relevant licensing subparts: 1 Subpart EApplication for License for Major 10 Id.

4.401f.
11 151 FERC 61,228 2015.
12 Id. P 13.
13 16 U.S.C. 2705.
14 Regulations 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.

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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;
4.61.15 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 5MW 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 H
Application for License for Transmission Line Only see 18 CFR
4.71; and 2 Subpart LApplication for Amendment of License see 18 CFR
4.201, respectively.
12. Part 5 of the Commissions regulations rely on the 5MW 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 goal of facilitating the speed at which such hydropower projects could be built. Order 800 amended the Commissions regulations to reflect the 10MW limit.16
14. As a result of these changes, the Commissions limit for license application provisions no longer parallels the limit for exemptions. We stated in the NOPR that 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. 17
15 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 revisions do not affect minor projects.
16 See Revisions and Technical Corrections to Conform the Commissions Regulations to the Hydropower Regulatory Efficiency Act of 2013, Order No. 800, 148 FERC 61,197 2014.
17 Applications 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.

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