[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR292.211]

[Page 737-738]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 292--REGULATIONS UNDER SECTIONS 201 AND 210 OF THE PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978 WITH REGARD TO SMALL POWER PRODUCTION AND COGENERATION--Table of Contents
 
Subpart B--Qualifying Cogeneration and Small Power Production Facilities
 
Sec. 292.211  Petition for initial determination on whether a project has a substantial adverse effect on the environment (AEE petition).

    (a) An applicant that has filed a petition under Sec. 292.210 may 
also file an AEE petition with the Commission for an initial 
determination on whether the project satisfies the requirement that it 
has no substantial adverse effect on the environment as specified in 
Sec. 292.208(b)(1).
    (b) The filing of the AEE petition does not relieve the applicant of 
the filing requirements of Sec. 292.208(c).
    (c) The Commission will act on the AEE petition only if the 
Commission has granted the applicant's commitment of resources petition 
under Sec. 292.210.
    (d) Time of filing petition. The applicant may file the AEE petition 
with the application for license or exemption or at any time before the 
Commission issues the license or exemption.
    (e) Contents of petition. The AEE petition must identify the project 
and request that the Commission make an initial determination on the 
adverse environmental effects requirements in Sec. 292.208(b)(1).
    (f) The Director of the Office of Hydropower Licensing will make the 
initial determination on the AEE petition. In making this determination, 
the Director will consider the following:
    (1) Any proposed mitigative measures;
    (2) The consistency of the proposal with local, regional, and 
national resource plans and programs;
    (3) The mandatory terms and conditions of fish and wildlife agencies 
under section 210(j) of PURPA, or section 30(c) of the Federal Power 
Act; or the recommended terms and conditions of fish a wildlife agencies 
under Section 10(j) of the Federal Power Act, whichever is appropriate; 
and
    (4) Any other information which the Director believes is relevant to 
consider.
    (g) Initial finding on the petition. The Director of the Office of 
Hydropower Licensing will make the initial determination on the AEE 
petition after the close of the public notice period for the accepted 
application. If the Director's initial determination finds:
    (1) No substantial adverse effect on the environment, the Commission 
must wait at least 45 days before making a final determination that the 
project satisfies the requirements of Sec. 292.208(b)(1).
    (2) A substantial adverse effect on the environment, the applicant 
may file, within 90 days of the initial finding that the project does 
not satisfy the requirements in Sec. 292.208(b)(1), proposed measures to 
mitigate the adverse environmental effects found.
    (3)(i) The Commission will provide written notice of the Director's 
initial finding on the petition to the applicant, to the federal and 
state agencies that the applicant must consult under Sec. 4.38 of this 
chapter and to any intervenors in the proceeding.
    (ii) The Commission will publish notice of the Director's initial 
finding in the Federal Register.
    (h) Notice and comment on the mitigative measures. (1) The 
Commission will issue notice of the mitigative measures filed by an 
applicant under paragraph (g)(2) of this section and will publish the 
notice in the Federal Register. The mitigative measures will be on file 
and available for inspection or copying during regular business hours in 
the Public Reference Room maintained by the Division of Public 
Information;
    (2) The Commission will provide the State and interested persons 
within 90 days from the date the notice is issued to review and submit 
comments on the mitigative measures. The applicant for license or 
exemption has 15 days after the expiration of the public comment period 
to respond to the comments filed with the Commission.
    (i) Material amendments to application. The proposed mitigative 
measures filed under paragraph (g)(2) of this section will not be 
considered a material amendment to the application unless the Commission 
finds that the proposed measures are unnecessary to, or exceed the scope 
of, mitigating substantial adverse effects. If the Commission finds the 
proposed mitigative measures constitute a material amendment, the 
application will be considered filed with the Commission on the date on 
which the applicant filed the

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proposed mitigative measures, and all other provisions of Sec. 4.35(a) 
of this chapter will apply.
    (j) Final determination on the petition. The Commission will make a 
final determination on the petition at the time the Commission issues a 
license or exemption for the project.
    (k) Presumption. (1) If, between the Commission's initial and final 
findings on the AEE petition, the State does not take any action under 
Sec. 292.208(b)(2), the failure to take action can be the basis for a 
presumption that there is not substantial adverse effect on the 
environment (as that term is defined in Sec. 292.202(q)).
    (2) If the presumption in paragraph (k)(1) of this section comes 
into effect, it:
    (i) Is only available for those adverse effects related to the 
natural, recreational, cultural, or scenic attributes of the 
environment;
    (ii) Can only operate during the time between the Commission's 
initial and final findings on the AEE petition; and
    (iii) Has no affect on the Commission's independent obligation to 
find that the project will not have a substantial adverse effect on the 
environment under Sec. 292.208(b)(1).
    (3) The presumption in paragraph (k)(1) of this section does not 
take effect if the State, the Commission or an interested person 
demonstrates that the State has acted to protect the natural watercourse 
under Sec. 292.208(b)(2).
    (4) The presumption in paragraph (k)(1) of this section can be 
rebutted if:
    (i) The Commission determines that the project will have a 
substantial adverse effect on the environment related to the 
environmental attributes listed in paragraph (k)(2)(i) of this section; 
or
    (ii) Any interested person, including a State, demonstrates that the 
project will have a substantial adverse effect on the environment 
related to the environmental attributes listed in paragraph (k)(2)(i) of 
this section.

[Order 499, 53 FR 27004, July 18, 1988, as amended at Order 499-A, 53 FR 
40724, Oct. 18, 1988]