C. Preliminary Permit

A developer interested in a potential site for a new hydropower project may first apply for a preliminary permit.[1]  A permit is an exclusive right to study that site and to file a license application during the permit term, which is three years[2] subject to renewal[3] and periodic reporting.  FERC will grant a permit application unless a legal barrier precludes it from licensing any subsequent project.[4]  FERC may also decline to issue a permit where it has rejected a license application for the same site and development.[5]  If competing permit applications are filed for the same site, FERC grants the permit to the applicant which: is a state or municipal utility, will “best serve the public interest,” or was filed first in time.[6]  A list of current preliminary permits is available at https://www.ferc.gov/industries/hydropower/gen-info/licensing/issued-pre....

 

A preliminary permit is like staking a claim.  It gives the permittee the exclusive right to apply for a license for a period of 36 months and conduct studies to determine whether to proceed with a license application.  A preliminary permit, which authorizes such field studies, does not authorize any construction or guarantee the issuance of a project license in the event the permittee files a license application. 

A preliminary permit is subject to conditions.  The standard conditions are stated in FERC Form P-1, available at https://www.ferc.gov/industries/hydropower/gen-info/comp-admin/l-forms.asp.  FERC will also impose additional conditions on the permittee if circumstances warrant.  Your comments may influence FERC to include conditions to protect sensitive resources against the adverse impacts of any studies.  FERC will not deny a preliminary permit application on the basis of your objections to a future license application.  FERC will only deny an application if (1) a legal barrier exists that would absolutely prohibit the licensing of the proposed project, or (2) the application is truly speculative.   

We recommend intervention in a permit proceeding, in part because you will receive the required six-month progress reports from the permittee and also notices of proposed amendments to, extension of, or cancellation of the permit. 

For more information, see https://www.ferc.gov/industries/hydropower/gen-info/licensing/pre-permits.asp.


[1]               See 18 C.F.R. § 4.31(a).

[2]               See 16 U.S.C. § 798.

[3]               See In re City of Redding, 33 FERC ¶ 61,109 (Oct. 15, 1985).  A permittee may apply for a second preliminary permit if (1) it has proceeded with the project study diligently and in good faith, (2) there is opportunity for public comment, and (3) other potential developers may compete for the new permit.

[4]               Since the early 1980s, FERC’s policy has been that “[u]nless a permanent legal barrier precludes FERC from licensing the project, FERC will issue a preliminary permit.”  City of Summersville, W.Va. v. FERC, 780 F.2d 1038 (D.C. Cir. 1986).

[5]               See Symbiotics, LLC, 99 F.E.R.C. ¶ 61,099 (2002).  Thus, FERC will deny a permit application for a site if it had previously denied a license application on the ground that unmitigable adverse impacts would outweigh energy and other developmental benefits and circumstances have not changed since.  Id.

[6]               See 16 U.S.C. § 800(a).