[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: 18CFR4.37]

[Page 91-92]
 
           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. 4.37  Rules of preference among competing applications.

    Except as provided in Sec. 4.33(e), the Commission will select 
among competing applications on the following bases:
    (a) If an accepted application for a preliminary permit and an 
accepted application for a license propose project works that would 
develop, conserve, and utilize, in whole or in part, the same water 
resources, and the applicant for a license has demonstrated its ability 
to carry out its plans, the Commission will favor the license applicant 
unless the permit applicant substantiates in its filed application that 
its plans are better adapted to develop, conserve, and utilize in the 
public interest the water resources of the region.
    (b) If two or more applications for preliminary permits or two or 
more applications for licenses (not including applications for a new 
license under section 15 of the Federal Power Act) are filed by 
applicants for project works that would develop, conserve, and utilize, 
in whole or in part, the same water resources, and if none of the 
applicants is a preliminary permittee whose application for license was 
accepted for filing within the permit period, the Commission will select 
between or among the applicants on the following bases:
    (1) If both or neither of two applicants are either a municipality 
or a state, the Commission will favor the applicant whose plans are 
better adapted to develop, conserve, and utilize in the public interest 
the water resources of the region, taking into consideration the ability 
of each applicant to carry out its plans.
    (2) If both of two applicants are either a municipality or a state, 
or neither of them is a municipality or a state, and the plans of the 
applicants are equally well adapted to develop, conserve, and utilize in 
the public interest the water resources of the region, taking into 
consideration the ability of each applicant to carry out its plans, the 
Commission will favor the applicant with the earliest application 
acceptance date.
    (3) If one of two applicants is a municipality or a state, and the 
other is not, and the plans of the municipality or a state are at least 
as well adapted to develop, conserve, and utilize in the public interest 
the water resources of the region, the Commission will favor the 
municipality or state.
    (4) If one of two applicant is a municipality or a state, and the 
other is not, and the plans of the applicant who is not a municipality 
or a state are better adapted to develop, conserve, and utilize in the 
public interest the water

[[Page 92]]

resources of the region, the Commission will inform the municipality or 
state of the specific reasons why its plans are not as well adapted and 
afford a reasonable period of time for the municipality or state to 
render its plans at least as well adapted as the other plans. If the 
plans of the municipality or state are rendered at least as well adapted 
within the time allowed, the Commission will favor the municipality or 
state. If the plans are not rendered at least as well adapted within the 
time allowed, the Commission will favor the other applicant.
    (c) If two or more applications for licenses are filed for project 
works which would develop, conserve, and utilize, in whole or in part, 
the same water resources, and one of the applicants was a preliminary 
permittee whose application was accepted for filing within the permit 
period (priority applicant), the Commission will select between or among 
the applicants on the following bases:
    (1) If the plans of the priority applicant are at least as well 
adapted as the plans of each other applicant to develop, conserve, and 
utilize in the public interest the water resources of the region, taking 
into consideration the ability of each applicant to carry out its plans, 
the Commission will favor the priority applicant.
    (2) If the plans of an applicant who is not a priority applicant are 
better adapted than the plans of the priority applicant to develop, 
conserve, and utilize in the public interest the water resources of the 
region, taking into consideration the ability of each applicant to carry 
out its plans, the Commission will inform the priority applicant of the 
specific reasons why its plans are not as well adapted and afford a 
reasonable period of time for the priority applicant to render its plans 
at least as well adapted as the other plans. If the plans of the 
priority applicant are rendered at least as well adapted within the time 
allowed, then the Commission will favor the priority applicant. If the 
plans of the priority applicant are not rendered as well adapted within 
the time allowed, the criteria specified in paragraph (b) will govern.
    (3) The criteria specified in paragraph (b) will govern selection 
among applicants other than the priority applicant.
    (d) With respect to a project for which an application for an 
exemption from licensing has been accepted for filing, the Commission 
will select among competing applications on the following bases:
    (1) If an accepted application for a preliminary permit and an 
accepted application for exemption from licensing propose to develop 
mutually exclusive small hydroelectric power projects, the Commission 
will favor the applicant whose substantiated plans in the application 
received by the Commission are better adapted to develop, conserve, and 
utilize in the public interest the water resources of the region. If the 
substantiated plans are equally well adapted, the Commission will favor 
the application for exemption from licensing.
    (2) If an application for a license and an application for exemption 
from licensing, or two or more applications for exemption from licensing 
are each accepted for filing and each proposes to develop a mutually 
exclusive project, the Commission will favor the applicant whose plans 
are better adapted to develop, conserve, and utilize in the public 
interest the water resources of the region. If the plans are equally 
well adapted, the Commission will favor the applicant with the earliest 
application acceptance date.
    (e) A municipal applicant must provide evidence that the 
municipality is competent under applicable state and local laws to 
engage in the business of developing, transmitting, utilizing, or 
distributing power, or such applicant will be considered a non-municipal 
applicant for the purpose of determining the disposition of competing 
applications.

[Order 413, 50 FR 11682, Mar. 25, 1985, as amended by Order 2002, 68 FR 
51117, Aug. 25, 2003]