Federal FERC Surrender of License (20-FD-b)
Developers with a FERC license may decide to surrender their authorization. FERC may also require the surrender of a license by denying a new license and requiring the developer to decommission the project, in whole or in part. FERC and the developer must reach an agreement to surrender the license in order to protect the environment and the public. FERC Handbook, page 6-1, see also FERC Compliance Handbook at section 2.9. The Division of Hydropower Administration and Compliance within FERC processes applications to surrender a license. Surrender of a license may be for projects that have already been constructed, projects currently under construction, or just for the license.
FERC Surrender of License Process
20-FD-b.1 – Application for Surrender of a License and Associated Documents
The developer must submit an Application for Surrender of a License to FERC. The application must state the reason for surrender unless the project is minor or consists only of a transmission line. The application materials must also include a copy of the developer’s license and all amendments to the license. 18 CFR § 6.1.
For constructed projects, the application must include a plan for decommissioning the project. Decommissioning can include leaving project features in-place for other uses, or removal of project features and site restoration. The plan should address any dam safety or environmental concerns that could remain after the license is surrendered. FERC How to Surrender a License or Exemption.
20-FD-b.2 – Provide Public Notice of the Application
FERC must provide public notice of the Application for Surrender. 18 CFR § 6.1. If the project is located on federal lands, then the federal agency having supervision over such lands must also be notified.
20-FD-b.3 to 20-FD-b.4 – Has Construction Begun on the Project?
If the developer has commenced construction of the licensed project, then FERC is required to consult with any resource agency that provided the original terms and conditions. FERC Handbook, page 6-1.
20-FD-b.5 – Comment on Surrender
The public and implicated resource agencies are given the opportunity to comment on the proposed surrender of the FERC license and any local environmental issues that may result from surrender of the license. 18 CFR § 6.1.
20-FD-b.6 – Review Application Materials
FERC will review the application to determine whether it should allow surrender of the license.
20-FD-b.7 – Initiate FERC NEPA Process
Approval to surrender a water power license, where no project works exist and no ground disturbing activity has occurred, is an action categorically excluded from the requirements of NEPA under (18 CFR § 380.4(a)(13)).
However, even where an authorization is within a categorical exclusion, FERC may determine that extraordinary circumstances exist such that the authorization is a major federal action requiring an environmental document be prepared consistent with NEPA. Such circumstances may exist when it is possible for the action to have an effect on one of the following:
- Indian lands;
- Wilderness areas;
- Wild and scenic rivers;
- Units of the National Park System, National Refuges, or National Fish Hatcheries;
- Anadromous fish or endangered species; or
- Where the environmental effects are uncertain.
20-FD-b.8 – Does FERC Approve Surrender of the License?
FERC will only allow surrender of a license if the developer has fulfilled all obligations under the license as the Commission may prescribe. 18 CFR § 6.2.
20-FD-b.9 – FERC Order Allowing Surrender
If FERC determines that surrender should be allowed, then they will issue an Order Approving Surrender of the license. 18 CFR § 6.2.
20-FD-b.10 – Provide Notice of Denial of Surrender
FERC must notify the developer of the denial of surrender. 18 CFR § 6.2.
20-FD-b.11 to 20-FD-b.12 – Submit a Request for Rehearing
The developer may request rehearing on the FERC decision to deny surrender of a license. The developer must submit the request no later than 30 days after issuance of the denial. 18 CFR § 385.713(b). The request should outline the alleged error in the final decision or final order. 18 CFR § 385.713(c)(1). FERC may grant or deny any rehearing request.
20-FD-b.13 – Conduct Rehearing on Denial of Surrender
FERC will review the decision to deny surrender of the license.
20-FD-b.14 – Final Order
Following review, FERC will issue an order granting or denying the request for rehearing of the license surrender.
20-FD-b.15 to 7-FD-b.17 – Is the Surrender Approved?
FERC may approve or deny any request for surrender of a license. If the surrender is approved, then the developer must dispose of project facilities in compliance with the Final Order. If the project has been constructed on federal lands, then the developer will be required to restore the lands to a condition satisfactory to the department with supervision over the lands. Annual charges will continue until the restoration has been satisfactorily completed and the surrender becomes effective. FERC How to Surrender a License or Exemption.
If the surrender is denied, then the developer should consider submitting the Final Order on rehearing for review. The developer may seek rehearing of the order denying the surrender application with FERC. FERC may either issue an order either granting or denying rehearing of the license order. If FERC issues an order denying rehearing of the license order then the developer may obtain review of the order denying rehearing in the United States Court of Appeals for the District of Columbia, or any circuit in which the developer is located or where the developer has its principal place of business. The developer may obtain review through filing a written petition requesting that the rehearing order be modified or set aside in whole within 60 days after the final action of FERC. 16 U.S.C. § 825(b).
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