[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR4.33]

[Page 81-82]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 4_LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT 
COSTS--Table of Contents
 
  Subpart D_Application for Preliminary Permit, License or Exemption: 
                           General Provisions
 
Sec. 4.33  Limitations on submitting applications.

    (a) Limitations on submission and acceptance of a preliminary permit 
application. The Commission will not accept an application for a 
preliminary permit for project works that:
    (1) Would develop, conserve, and utilize, in whole or in part, the 
same water resources that would be developed, conserved, and utilized by 
a project for which there is an unexpired preliminary permit.
    (2) Would interfere with a licensed project in a manner that, absent 
the licensee's consent, would be precluded by Section 6 of the Federal 
Power Act.
    (3) Would develop, conserve, and utilize, in whole or in part, the 
same water resources that would be developed, conserved, and utilized by 
a project for which an initial development application has been filed 
unless the preliminary permit application is filed not later than the 
time allowed under Sec. 4.36(a) for the filing of applications in 
competition against an initial application for a preliminary permit that 
would develop, conserve, and utilize, in whole or in part, the same 
resources.
    (b) Limitations on submissions and acceptance of a license 
application. The

[[Page 82]]

Commission will not accept an application for a license or project works 
that would develop, conserve, or utilize, in whole or part, the same 
water resources that would be developed, conserved, and utilized by a 
project for which there is:
    (1) An unexpired preliminary permit, unless the permittee has 
submitted an application for license; or
    (2) An unexpired license, as provided for in Section 15 of the 
Federal Power Act.
    (c) Limitations on submission and acceptance of an application for a 
license that would affect an exempted project. (1) Except as permitted 
under Sec. 4.33(c)(2), Sec. 4.94(d), or Sec. 4.106 (c), (e) or (f), 
the Commission will not accept an application for a license for project 
works that are already exempted from licensing under this part.
    (2) If a project is exempted from licensing pursuant to Sec. 4.103 
or Sec. 4.109 and real property interests in any non-Federal lands 
would be necessary to develop or operate the project, any person who is 
both a qualified license applicant and has any of those real property 
interests in non-Federal lands may submit a license application for that 
project. If a license application is submitted under this clause, any 
other qualified license applicant may submit a competing license 
application in accordance with Sec. 4.36.
    (d) Limitations on submission and acceptance of exemption 
applications--(1) Unexpired permit or license. (i) If there is an 
unexpired permit in effect for a project, the Commission will accept an 
application for exemption of that project from licensing only if the 
exemption applicant is the permittee. Upon acceptance for filing of the 
permittee's application, the permit will be considered to have expired.
    (ii) If there is an unexpired license in effect for a project, the 
Commission will accept an application for exemption of that project from 
licensing only if the exemption applicant is the licensee.
    (2) Pending license applications. If an accepted license application 
for a project was submitted by a permittee before the preliminary permit 
expired, the Commission will not accept an application for exemption of 
that project from licensing submitted by a person other than the former 
permittee.
    (3) Submitted by qualified exemption applicant. If the first 
accepted license application for a project was filed by a qualified 
exemption applicant, the applicant may request that its license 
application be treated initially as an application for exemption from 
licensing by so notifying the Commission in writing and, unless only 
rights to use or occupy Federal lands would be necessary to develop and 
operate the project, by submitting documentary evidence showing that the 
applicant holds the real property interests required under Sec. 4.31. 
Such notice and documentation must be submitted not later than the last 
date for filing protests or motions to intervene prescribed in the 
public notice issued for its license application under Sec. 4.32(d)(2).
    (e) Priority of exemption applicant's earlier permit or license 
application. Any accepted preliminary permit or license application 
submitted by a person who later applies for exemption of the project 
from licensing will retain its validity and priority under this subpart 
until the preliminary permit or license application is withdrawn or the 
project is exempted from licensing.

[Order 413, 50 FR 11680, Mar. 25, 1985, as amended by Order 499, 53 FR 
27002, July 18, 1988; Order 2002, 68 FR 51116, Aug. 25, 2003]