[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: 18CFR4.35]

[Page 89-90]
 
           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. 4.35  Amendment of application; date of acceptance.

    (a) General rule. Except as provided in paragraph (d) of this 
section, if an applicant amends its filed application as described in 
paragraph (b) of this section, the date of acceptance of the application 
under Sec. 4.32(f) is the date on which the amendment to the applicant 
was filed.
    (b) Paragraph (a) of this section applies if an applicant:
    (1) Amends its filed license or preliminary permit application in 
order to change the status or identity of the applicant or to materially 
amend the proposed plans of development; or
    (2) Amends its filed application for exemption from licensing in 
order to materially amend the proposed plans of development, or
    (3) Amends its filed application in order to change its statement of 
intent of whether or not it will seek benefits under section 210 of 
PURPA, as originally filed under Sec. 4.32(c)(1).
    (c) An application amended under paragraph (a) is a new filing for:
    (1) The purpose of determining its timeliness under Sec. 4.36 of 
this part;
    (2) Disposing of competing applications under Sec. 4.37; and
    (3) Reissuing public notice of the application under Sec. 
4.32(d)(2).
    (d) If an application is amended under paragraph (a) of this 
section, the Commission will rescind any acceptance letter already 
issued for the application.
    (e) Exceptions. This section does not apply to:
    (1) Any corrections of deficiencies made pursuant to Sec. 
4.32(e)(1);
    (2) Any amendments made pursuant to Sec. 4.37(b)(4) by a State or a 
municipality to its proposed plans of development to make them as well 
adapted as the proposed plans of an applicant that is not a state or a 
municipality;
    (3) Any amendments made pursuant to Sec. 4.37(c)(2) by a priority 
applicant to its proposed plans of development to make them as well 
adapted as the proposed plans of an applicant that is not a priority 
applicant;
    (4) Any amendments made by a license or an exemption applicant to 
its proposed plans of development to satisfy requests of resource 
agencies or Indian tribes submitted after an applicant has consulted 
under Sec. 4.38 or concerns of the Commission; and
    (5)(i) Any license or exemption applicant with a project located at 
a new dam or diversion who is seeking PURPA benefits and who:
    (A) Has filed an adverse environmental effects (AEE) petition 
pursuant to Sec. 292.211 of this chapter; and
    (B) Has proposed measures to mitigate the adverse environmental 
effects which the Commission, in its initial determination on the AEE 
petition, stated the project will have.
    (ii) This exception does not protect any proposed mitigative 
measures that the Commission finds are a pretext to avoid the 
consequences of materially amending the application or are outside the 
scope of mitigating the adverse environmental effects.
    (f) Definitions. (1) For the purposes of this section, a material 
amendment to plans of development proposed in an application for a 
license or exemption from licensing means any fundamental and 
significant change, including but not limited to:
    (i) A change in the installed capacity, or the number or location of 
any generating units of the proposed project if the change would 
significantly modify the flow regime associated with the project;
    (ii) A material change in the location, size, or composition of the 
dam, the location of the powerhouse, or the size and elevation of the 
reservoir if the change would:
    (A) Enlarge, reduce, or relocate the area of the body of water that 
would lie between the farthest reach of the proposed impoundment and the 
point of discharge from the powerhouse; or
    (B) Cause adverse environmental impacts not previously discussed in 
the original application; or
    (iii) A change in the number of discrete units of development to be 
included within the project boundary.
    (2) For purposes of this section, a material amendment to plans of 
development proposed in an application for a preliminary permit means a 
material change in the location of the powerhouse or the size and 
elevation of the reservoir if the change would enlarge, reduce, or 
relocate the area of the body

[[Page 90]]

of water that would lie between the farthest reach of the proposed 
impoundment and the point of discharge from the powerhouse.
    (3) For purposes of this section, a change in the status of an 
applicant means:
    (i) The acquisition or loss of preference as a state or a 
municipality under section 7(a) of the Federal Power Act; or
    (ii) The loss of priority as a permittee under section 5 of the 
Federal Power Act.
    (4) For purposes of this section, a change in the identity of an 
applicant means a change that either singly, or together with previous 
amendments, causes a total substitution of all the original applicants 
in a permit or a license application.

[Order 413, 50 FR 11680, Mar. 25, 1985, as amended by Order 499, 53 FR 
27002, July 18, 1988; Order 533, 56 FR 23149, May 20, 1991; Order 2002, 
68 FR 51115, Aug. 25, 2003]