Federal FERC Surrender of Exemption (20-FD-c)
Developers with a FERC exemption may decide to surrender their authorization. FERC and the developer must reach an agreement to surrender the exemption 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 petitions to surrender an exemption. Requirements for surrender of a conduit exemption are outlined in 18 CFR § 4.95. Requirements for surrender of a 10MW exemption are outlined in 18 CFR § 4.102.
FERC Surrender of Exemption Process
20-FD-c.1 to 20-FD-c.2 – Has Construction Begun on the Project?
If the developer has commenced construction of the exempted project, then the developer is required to consult with any resource agency that provided the original terms and conditions. The developer must provide information appropriate to the disposition and restoration of the project works and lands. 18 CFR 4.95(b)(1) and 18 CFR § 4.102(b)(1).
20-FD-c.3 – Comment on Surrender
20-FD-c.4 – Petition for Surrender of an Exemption and Associated Documents
The developer must submit a Petition for Surrender of an Exemption to FERC. 18 CFR § 4.95(a) and 18 CFR 4.102(a). The petition must include information with respect to the disposition and restoration of the project works and lands. 18 CFR § 4.95(b)(1) and 18 CFR § 4.102(b)(1). For example, if the developer plans to remove the project works, then they must file a plan and schedule outlining removal and restoration of the site to assure public and environmental safety. FERC How to Surrender a License or Exemption.
20-FD-c.5 – Provide Public Notice of the Petition
FERC must provide public notice of the Petition for Surrender. 18 CFR § 4.95(b)(2) and (c) and 18 CFR § 4.102(b)(2) and (c). If the project is located on federal lands, then the supervising federal agency over such lands must also be notified. 18 CFR § 4.102(e).
If no construction has begun, then the exemption will remain in effect for 30 days following notice of the petition unless FERC issues an order to the contrary. 18 CFR § 4.95(c) and 18 CFR § 4.102(c).
20-FD-c.6 – Review Application Materials
FERC will review the application to determine whether it should allow surrender of the exemption.
20-FD-c.7 – Initiate FERC NEPA Process
Approval to surrender an exemption, 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 exist when the action may 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-c.8 – Does FERC Approve Surrender of the Exemption?
20-FD-c.9 – FERC Order Allowing Surrender
If FERC determines that surrender should be allowed, and where construction has begun, then they will issue an Order Allowing Surrender of the exemption.
20-FD-c.10 – Provide Notice of Denial of Surrender
FERC must notify the developer of the denial of surrender.
20-FD-c.11 to 20-FD-c.12 – Submit a Request for Rehearing (Optional)
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 approve or deny any rehearing request.
20-FD-c.13 – Conduct Rehearing on Denial of Exemption
If the request for rehearing is approved, then FERC will review the decision to deny surrender of the exemption.
20-FD-c.14 – Final Order
Following rehearing, FERC will issue a Final Order on surrender of the exemption.
20-FD-c.15 to 20-FD-c.17 – Is the Surrender Approved?
FERC may approve or deny any request for surrender of an exemption. If the surrender is approved, then the developer must dispose of project facilities in compliance with the Final Order.
If the surrender is not approved, then the developer should consider submitting the Final Order for review. The developer may obtain review of the Final Order in the United States Court of Appeals for any circuit in which the developer is located or has its principal place of business. The developer may obtain review through filing a written petition requesting that the Final Order be modified or set aside in whole within 60 days after the final action of FERC. 15 USC § 3416(a)(4).
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