Public Law 99-495, 100 Stat. 1243

October 16, 1986
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ELECTRIC CONSUMERS PROTECTION ACT OF 1986
An Act to amend the Federal Power Act to provide for more protection to electric consumers. (Act
of October 16, 1986, Public Law 99-495, 100 Stat. 1243)

Section 1. [Short title and table of contents.]—(a) [Short title.]— This Act
may be cited as the "Electric Consumers Protection Act of 1986." (16 U.S.C. §
791a note.)
(b) [Table of contents.]—
Sec. 1. Short title and table of contents.
Sec. 2. Amendments to section 7 of Federal Power Act.
Sec. 3. Environmental consideration in licensing.
Sec. 4. Relicensing procedures.
Sec. 5. License term on relicensing.
Sec. 6. Unauthorized activities.
Sec. 7. Amendments to section 30 of Federal Power Act.
See. 8. Amendments concerning certain small power production facilities subject to PURPA
benefits.
Sec. 9. Fees and charges for use of dams and structures.
Sec. 10. Election and negotiations concerning contested projects subject to litigation.
Sec. 11. Merwin Dam project.
Sec. 12. Additional Commission enforcement authority.
Sec. 13. Antitrust laws.
See. 14. Landowner notification.
See. 15. Applications for certain orders under Federal Power Act.
See. 15A. Miscellaneous provisions.
Sec. 16. Provision of information to Congress.
Sec. 17. Savings provisions.
See. 18. Effective date.

Sec. 2. [Amendments to section 7 of Federal Power Act.]— Section 7(a) of
the Federal Power Act (16 U.S.C.§ 791(a) et seq.) is amended as follows:
(1) Insert "original" after "hereunder or".
(2) Strike out "and in issuing licenses to new licensees under section 15
hereof" and substitute a comma. (100 Stat. 1243, 16 U.S.C. § 800.)
EXPLANATORY NOTE
Reference in the Text. The Federal Power
Act, Part I, Act of June 10, 1920 (ch. 285, 41
Stat. 1063) appears in Volume I at page 262.

Amendments and annotations appear in
Supplement I at page S56 and in Supplement II
at pages S814, S815.

Sec. 3. [Environmental consideration in licensing.]—(a) [Purposes of
license.]— Section 4(e) of the Federal Power Act is amended by adding the
following at the end thereof. "In deciding whether to issue any license under this
Part for any project, the Commission, in addition to the power and development

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purposes for which licenses are issued, shall give equal consideration to the
purposes of energy conservation, the protection, mitigation of damage to, and
enhancement of, fish and wildlife (including related spawning grounds and
habitat), the protection of recreational opportunities, and the preservation of
other aspects of environmental quality.". (16 U.S.C. § 797.)
(b) [Amendments to Section 10(a).]— Section 10(a) of such Act is amended
as follows: (1) After "waterpower development," insert "for the adequate
protection, mitigation, and enhancement of fish and wildlife (including related
spawning grounds and habitat),". (16 U.S.C. § 803.)
(2) After "including", insert "irrigation, flood control, water supply, and".
(3) Strike "purposes; and" and insert after recreational" the following: "and
other purposes referred to in section 4(e)". (16 U.S.C. 797.)
(4) insert "(1)" after "(a)" and insert the following new paragraphs at the end
thereof: "(2) In order to ensure that the project adopted will be best adapted
to the comprehensive plan described in paragraph (1), the Commission shall
consider each of the following:
"(A) The extent to which the project is consistent with a comprehensive
plan (where one exists) for improving, developing, or conserving a waterway
or waterways affected by the project that is prepared by—
"(i) an agency established pursuant to Federal law that has the authority
to prepare such a plan; or
"(ii) the State in which the facility is or will be located.
"(B) The recommendations of Federal and State agencies exercising
administration over flood control, navigation, irrigation, recreation, cultural
and other relevant resources of the State in which the project is located, and
the recommendations (including fish and wildlife recommendations) of
Indian tribes affected by the project.
"(C) In the case of a State or municipal applicant, or an applicant which
is primarily engaged in the generation or sale of electric power (other than
electric power solely from cogeneration facilities or small power production
facilities), the electricity consumption efficiency improvement program of
the applicant, including its plans, performance and capabilities for
encouraging or assisting its customers to conserve electricity cost-effectively,
taking into account the published policies, restrictions, and requirements of
relevant State regulatory authorities applicable to such applicant.
"(3) Upon receipt of an application for a license, the Commissions shall
solicit recommendations from the agencies and Indian tribes identified in
subparagraphs (A) and (B) of paragraph (2) for proposed terms and conditions
for the Commission’s consideration for inclusion in the license.".
(c) [Fish and wildlife protection, mitigation, and enhancement.]— Section
10 of the Federal Power Act is amended by adding the following at the end:
"(j)(1) That in order to adequately and equitably protect, mitigate damages to,
and enhance, fish and wildlife (including related spawning grounds and

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

habitat) affected by the development, operation, and management of the
project, each license issued under this Part shall include conditions for such
protection, mitigation, and enhancement. Subject to paragraph (2), such
conditions shall be based on recommendations received pursuant to the Fish
and Wildlife Coordination Act (16 U.S.C. § 661 et seq.) from the National
Marine Fisheries Service, the United States Fish and Wildlife Service, and
State fish and wildlife agencies.
EXPLANATORY NOTE
Reference in the Text. The Fish and
Wildlife Coordination Act appears in Volume II

at page 839.

"(2) Whenever the Commission believes that any recommendation referred
to in paragraph (1) may be inconsistent with the purposes and requirements
of this Part or other applicable law, the Commission and the agencies referred
to in paragraph (1) shall attempt to resolve any such inconsistency, giving due
weight to the recommendations, expertise, and statutory responsibilities of
such agencies. If, after such attempt, the Commission does not adopt in whole
or in part a recommendation of any such agency, the Commission shall
publish each of the following findings (together with a statement of the basis
for each of the findings):
"(A) A finding that adoption of such recommendation is inconsistent with
the purposes and requirements of this Part or with other applicable
provisions of law.
"(B) A finding that the conditions selected by the Commission comply
with the requirements of paragraph (1).
Subsection (i) shall not apply to the conditions required under this subsection.".
(100 Stat.1244, 16 U.S.C. § 803.)
Sec. 4. [Relicensing procedures.]— (a) [Relicensing process.]— Section 15
of the Federal Power Act (16 U.S.C. § 808.) is amended by inserting "(1)" after
"(a)", by redesignating subsection (b) as subsection (f), and by adding the
following at the end of subsection (a):
"(2) Any new license issued under this section shall be issued to the applicant
having the final proposal which the Commission determines is best adapted
to serve the public interest, except that in making this determination the
Commission shall ensure that insignificant differences with regard to
subparagraphs (A) through (G) of this paragraph between competing
applications are not determinative and shall not result in the transfer of a
project. In making a determination under this section (whether or not more
than one application is submitted for the project), the Commission shall, in
addition to the requirements of section 10 of this Part, consider (and explain
such consideration in writing) each of the following:

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"(A) The plans and abilities of the applicant to comply with (i) the articles,
terms, and conditions of any license issued to it and (ii) other applicable
provisions of this Part.
"(B) The plans of the applicant to manage, operate, and maintain the
project safely.
"(C) The plans and abilities of the applicant to operate and maintain the
project in a manner most likely to provide efficient and reliable electric
service.
"(D) The need of the applicant over the short and long term for the
electricity generated by the project or projects to serve its customers,
including, among other relevant considerations, the reasonable costs and
reasonable availability of alternative sources of power, taking into
consideration conservation and other relevant factors and taking into
consideration the effect on the provider (including its customers) of the
alternative source of power, the effect on the applicant’s operating and load
characteristics, the effect on communities served or to be served by the
project, and in the case of an applicant using power for the applicant’s own
industrial facility and related operations, the effect on the operation and
efficiency of such facility or related operations, its workers, and the related
community. In the case of an applicant that is an Indian tribe applying for
a license for a project located on the tribal reservation, a statement of the
need of such tribe for electricity generated by the project to foster the
purposes of the reservation may be included.
"(E) The existing and planned transmission services of the applicant,
taking into consideration system reliability, costs, and other applicable
economic and technical factors.
"(F) Whether the plans of the applicant will be achieved, to the greatest
extent possible, in a cost effective manner.
"(G) Such other factors as the Commission may deem relevant, except that
the terms and conditions in the license for the protection, mitigation, or
enhancement of fish and wildlife resources affected by the development,
operation, and management of the project shall be determined in
accordance with section 10, and the plans of an applicant concerning fish
and wildlife shall not be subject to a comparative evaluation under this
subsection.
"(3) In the case of an application by the existing licensee, the Commission
shall also take into consideration each of the following:
"(A) The existing licensee’s record of compliance with the terms and
conditions of the existing license.
"(B) The actions taken by the existing licensee related to the project which
affect the public.
"(b)(1) Each existing licensee shall notify the Commission whether the licensee
intends to file an application for a new license or not. Such notice shall be
submitted at least 5 years before the expiration of the existing license.

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

"(2) At the time notice is provided under paragraph (1), the existing licensee
shall make each of the following reasonably avail able to the public for
inspection at the offices of such licensee: current maps, drawings, data, and
such other information as the Commission shall, by rule, require regarding the
construction and operation of the licensed project. Such information shall
include, to the greatest extent practicable pertinent energy conservation, recreation, fish and wildlife, and other environmental information. Copies of the
information shall be made available at reasonable costs of reproduction.
Within 180 days after the enactment of the Electric Consumers Protection Act
of 1986, the Commission shall promulgate regulations regarding the
information to be provided under this paragraph.
"(3) Promptly following receipt of notice under paragraph (1), the
Commission shall provide public notice of whether an existing licensee intends
to file or not to file an application for a new license. The Commission shall also
promptly notify the National Marine Fisheries Service and the United States
Fish and Wildlife Service, and the appropriate State fish and wildlife agencies.
"(4) The Commission shall require the applicant to identify any Federal or
Indian lands included in the project boundary, together with a statement of the
annual fees paid as required by this Part for such lands, and to provide such
additional information as the Commission deems appropriate to carry out the
Commission’s responsibilities under this section.
"(c)(1) Each application for a new license pursuant to this section shall be filed
with the Commission at least 24 months before the expiration of the term of
the existing license. Each applicant shall consult with the fish and wildlife
agencies referred to in subsection(b) and, as appropriate, conduct studies with
such agencies. Within 60 days after the statutory deadline for the submission
of applications, the Commission shall issue a notice establishing expeditious
procedures for relicensing and a deadline for submission of final amendments,
if any, to the application.
"(2) The time periods specified in this subsection and in subsection (b) shall
be adjusted, in a manner that achieves the objectives of this section, by the
Commission by rule or order with respect to existing licensees who, by reason
of the expiration dates of their licenses, are unable to comply with a specified
time period.
"(d)(1) In evaluating applications for new licenses pursuant to this section, the
Commission shall not consider whether an applicant has adequate
transmission facilities with regard to the project.
"(2) When the Commission issues a new license (pursuant to this section) to
an applicant which is not the existing licensee of the project and finds that it
is not feasible for the new licensee to utilize the energy from such project
without provision by the existing licensee of reasonable services, including
transmission services, the Commission shall give notice to the existing licensee
and the new licensee to immediately enter into negotiations for such services
and the costs demonstrated by the existing licensee as being related to the

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provision of such services. It is the intent of the Congress that such negotiations
be carried out in good faith and that a timely agreement be reached between
the parties in order to facilitate the transfer of the license by the date
established when the Commission issued the new license. If such parties do
not notify the Commission that within the time established by the Commission
in such notice (and if appropriate, in the judgment of the Commission, one
45-day extension thereof), a mutually satisfactory arrangement for such
services that is consistent with the provisions of this Act has been executed, the
Commission shall order the existing licensee to file (pursuant to section 205 of
this Act (16 U.S.C. § 824d)) with the Commission a tariff, subject to refund,
ensuring such services beginning on the date of transfer of the project and
including just and reasonable rates and reasonable terms and conditions. After
notice and opportunity for a hearing, the Commission shall issue a final order
adopting or modifying such tariff for such services at just and reasonable rates
in accordance with section 205 of this Act and in accordance with reasonable
terms and conditions. The Commission, in issuing such order, shall ensure the
services necessary for the full and efficient utilization and benefits for the
license term of the electric energy from the project by the new licensee in
accordance with the license and this Part, except that in issuing such order the
Commission—
"(A) shall not compel the existing licensee to enlarge generating facilities,
transmit electric energy other than to the distribution system (providing
service to customers) of the new licensee identified as of the date one day
preceding the date of license award, or require the acquisition of new
facilities, including the upgrading of existing facilities other than any
reasonable enhancement or improvement of existing facilities controlled by
the existing licensee (including any acquisition related to such enhancement
or improvement) necessary to carry out the purposes of this paragraph;
"(B) shall not adversely affect the continuity and reliability of service to the
customers of the existing licensee;
"(C) shall not adversely affect the operational integrity of the transmission
and electric systems of the existing licensee;
"(D) shall not cause any reasonably quantifiable increase in the
jurisdictional rates of the existing licensee; and
"(E) shall not order any entity other than the existing licensee to provide
transmission or other services.
Such order shall be for such period as the Commission deems appropriate, not
to exceed the term of the license. At any time, the Commission, upon its own
motion or upon a petition by the existing or new licensee and after notice and
opportunity for a hearing, may modify, extend, or terminate such order.".
(b) [Conforming amendments.]— (1) Section 15(a) of the Federal Power Act
is amended by striking out "original" each place it appears and substituting
"existing". (16 U.S.C. § 808.)

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

(2) Section 14(b) of such Act is amended by striking out the first sentence. (16
U.S.C. § 807.)
(c) [Commission review.]— In order to ensure that the provisions of Part I of
the Federal Power Act, as amended by this Act, are fully, fairly, and efficiently
implemented, that other governmental agencies identified in such Part I are able
to carry out their responsibilities, and that the increased workload of the Federal
Energy Regulatory Commission and other agencies is facilitated, the
Commission shall, consistent with the provisions of section 309 of the Federal
Power Act, review all provisions of that Act requiring an action within a 30-day
period and, as the Commission deems appropriate, amend its regulations to
interpret such period as meaning "working days", rather than "calendar days"
unless calendar days is specified in such Act for such action. (100 Stat.1245, 16
U.S.C. § 825h note.)
Sec. 5. [License term on relicensing.]— Section 15 of the Federal Power Act
is amended by adding the following after subsection (d) (as added by section 4
of this Act):
"(e) Except for an annual license, any license issued by the Commission under
this section shall be for a term which the Commission determines to be in the
public interest but not less than 30 years, nor more than 50 years, from the date
on which the license is issued.". (100 Stat. 1248)
Sec. 6. [Unauthorized activities.]— Section 23(b) of the Federal Power Act
is amended by inserting "(1)" after "(b)" and by adding the following at the end
thereof:
"(2) No person may commence any significant modification of any project
licensed under, or exempted from, this Act unless such modification is
authorized in accordance with terms and conditions of such license or
exemption and the applicable requirements of this Part. As used in this
paragraph, the term ‘commence’ refers to the beginning of physical on-site
activity other than surveys or testing.". (100 Stat. 1248, 16 U.S.C. § 817.)
Sec. 7. [Amendments to Section 30 of Federal Power Act.]— (a) [State or
local conduits.]— Section 30(b) of the Federal Power Act is amended by inserting
after "15 megawatts" the following: "(40 megawatts in the case of a facility
constructed, operated, and maintained by an agency or instrumentality of a State
or local government solely for water supply for municipal purposes)". (16 U.S.C.
§ 823a.)
(b) [NMFS.]— Section 30(c) of the Federal Power Act is amended by inserting
"National Marine Fisheries Service" after "the Fish and Wildlife Service" in both
places such term appears.
(c) [Fees for studies.]— Section 30 of the Federal Power Act is amended by
adding the following new subsection at the end thereof:
"(e) The Commission, in addition to the requirements of section 10(e), shall
establish fees which shall be paid by an applicant for a license or exemption for
a project that is required to meet terms and conditions set by fish and wildlife

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agencies under subsection (c). Such fees shall be adequate to reimburse the fish
and wildlife agencies referred to in subsection (c) for any reasonable costs
incurred in connection with any studies or other reviews carried out by such
agencies for purposes of compliance with this section. The fees shall, subject to
annual appropriations Acts, be transferred to such agencies by the Commission
for use solely for purposes of carrying out such studies and shall remain available
until expended.". (100 Stat. 1248)
Sec. 8. [Amendments concerning certain small power production
facilities subject to PURPA benefits.]— (a) New dams and diversions
seeking PURPA benefits.]— Section 210 of the Public Utility Regulatory Policies
Act of 1978 (16 U.S.C. § 824a-3.) is amended by inserting the following new
subsections after subsection (i) and by redesignating subsection (j) as subsection
(l):
"(j) [New dams and diversions.]— Except for a hydroelectric project located at
a Government dam (as defined in section 3(10) of the Federal Power Act (16
U.S.C. § 796.)) at which non-Federal hydroelectric development is permissible,
this section shall not apply to any hydroelectric project which impounds or
diverts the water of a natural watercourse by means of a new dam or diversion
unless the project meets each of the following requirements:
"(1) [No substantial adverse effects.]— At the time of issuance of the license or
exemption for the project, the Commission finds that the project will not have
substantial adverse effects on the environment, including recreation and water
quality. Such finding shall be made by the Commission after taking into
consideration terms and conditions imposed under either paragraph (3) of this
subsection or section 10 of the Federal Power Act (whichever is appropriate as
required by that Act or the Electric Consumers Protection Act of 1986) and
compliance with other environmental requirements applicable to the project.
"(2) [Protected rivers.]— At the time the application for a license or exemption
for the project is accepted by the Commission (in accordance with the
Commission’s regulations and procedures in effect on January 1, 1986,
including those relating to environmental consultation), such project is not
located on either of the following:
"(A) Any segment of a natural watercourse which is included in (or
designated for potential inclusion in) a State or national wild and scenic river
system.
"(B) Any segment of a natural watercourse which the State has determined,
in accordance with applicable State law, to possess unique natural,
recreational, cultural, or scenic attributes which would be adversely affected
by hydroelectric development.
"(3) [Fish and wildlife terms and conditions.]— The project meets the terms
and conditions set by fish and wildlife agencies under the same procedures as
provided for under section 30(c) of the Federal Power Act.
"(k) [Definition of new dam or diversion.]— For purposes of this section, the

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

term ‘new dam or diversion’ means a dam or diversion which requires, for
purposes of installing any hydroelectric power project, any construction, or
enlargement of any impoundment or diversion structure (other than repairs or
reconstruction or the addition of flashboards or similar adjustable devices)".
EXPLANATORY NOTE
Reference in the Text. — Extracts from the
Public Utility Regulatory Policies Act of 1978,
Act of November 9, 1978 (Public Law 95-617,
92 Stat. 3117; 16 U.S.C. § 824a-3.) appears in

Volume IV at page 3137. Section 210 appears at
page 3157. Amendments and annotations of
the 1978 Act appear in Supplement II at page
S1071.

(b)[Effective date.]— (1) Subsection (j) of section 210 of the Public Utility
Regulatory Policies Act of 1978 (as amended by subsection (a) of this section)
shall apply to any project for which benefits under section 210 of the Public
Utility Regulatory Policies Act of 1978 are sought and for which a license or
exemption is issued by the Federal Energy Regulatory Commission after the
enactment of this Act, except as otherwise provided in paragraph (2), (3) or (4)
of this subsection. (16 U.S.C. § 824a-3 note.)
(2) Subsection (j) shall not apply to the project if the application for license
or exemption for the project was filed, and accepted for filing by the
Commission, before the enactment of this Act.
(3) Paragraphs (1) and (3) of such subsection (j) shall not apply if the
application for the license or exemption for the project was filed before the
enactment of this Act and accepted for filing by the Commission (in
accordance with the Commission’s regulations and procedures in effect on
January 1, 1986, including those relating to the requirement for environmental
consultation) within 3 years after such enactment.
(4)(A) Paragraph (3) of subsection (j) shall not apply for projects where the
license or exemption application was filed after enactment of this Act if,
based on a petition filed by the applicant for such project within 18 months
after such enactment, the Commission determines (after public notice and
opportunity for public comment of at least 45 days) that the applicant has
demonstrated that he had committed (prior to the enactment of this Act)
substantial monetary resources directly related to the development of the
project and to the diligent and timely completion of all requirements of the
Commission for filing an acceptable application for license or exemption.
Such petition shall be publicly available and shall be filed in such form as the
Commission shall require by rule issued within 120 days after the enactment
of this Act. The public notice required under this subparagraph shall include
written notice by the petitioner to affected Federal and State agencies.
(B) In the case of any petition referred to in subparagraph (A), if the
applicant had a preliminary permit and had completed environmental
consultations (required by Commission regulations and procedures in effect

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on January 1, 1986) prior to enactment, there shall be a rebuttable
presumption that such applicant had committed substantial monetary
resources prior to enactment.
(C) The applicant for a license or exemption for a project described in
subparagraph (A) may petition the Commission for an initial determination
under paragraph (1) of section 210(j) of the Public Utility Regulatory Policies
Act of 1978 prior to the time the license or exemption is issued. If the
Commission initially finds that the project will have substantial adverse
effects on the environment within the meaning of such paragraph (1), prior
to making a final finding under that paragraph the Commission shall afford
the applicant a reasonable opportunity to provide for mitigation of such
adverse effects. The Commission shall make a final finding under such
paragraph (1) at the time the license or exemption is issued. If the Federal
Energy Regulatory Commission has notified the State of its initial finding
and the State has not taken any action described in paragraph (2) of section
210(j) before such final finding, the failure to take such action shall be the
basis for a rebuttable presumption that there is not a substantial adverse
effect on the environment related to natural, recreational, cultural, or scenic
attributes for purposes of such finding.
(D) If a petition under subparagraph (A) is denied, all provisions of section
210(j) of the Public Utility Regulatory Policies Act of 1978 shall apply to the
project regardless of when the license or exemption is issued.
(c) [Application of Section 30(c).]— Nothing in this Act shall affect the
application of section 30(c) of the Federal Power Act to any exemption issued
after the enactment of this Act. (16 U.S.C. § 823a note.)
(d) [Study.]— (1) The Commission shall conduct a study (in accordance with
section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
§ 4332.)) of whether the benefits of section 210 of the Public Utility Regulatory
Policies Act of 1978 and section 210 of the Federal Power Act should be
applied to hydroelectric power facilities utilizing new dams or diversions
(within the meaning of section 210(k) of the Public Utility Regulatory Policies
Act of 1978 (16 U.S.C. § 824a-3 note, 16 U.S.C.§ 824i.)).
EXPLANATORY NOTE
Reference in the Text. The National
Environmental Policy Act of 1969, Act of
January 1, 1970 (Public Law 91-190, 83 Stat.

852; 42 U.S.C. § 4332.) appears in Volume IV
at page 2492.

(2) The study under this subsection shall take into consideration the need for
such new dams or diversions for power purposes, the environmental impacts
of such new dams and diversions (both with and without the application of the
amendments made by this Act to sections 4, 10, and 30 of the Federal Power
Act and section 210 of the Public Utility Regulatory Policies Act of 1978), the

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

environmental effects of such facilities alone and in combination with other
existing or proposed dams or diversions on the same waterway, the intent of
Congress to encourage and give priority to the application of section 210 of
Public Utility Regulatory Policies Act of 1978 to existing dams and diversions
rather than such new dams or diversions, and the impact of such section 210
on the rates paid by electric power consumers.
(3) The study under this subsection shall be initiated within 3 months after
enactment of this Act and completed as promptly as practicable.
(4) A report containing the results of the study conducted under this
subsection shall be submitted to the Committee on Energy and Commerce of
the United States House of Representatives and the Committee on Energy and
Natural Resources of the United States Senate while both Houses are in
session.
(5) The report submitted under paragraph (4) shall include a determination
(and the basis thereof) by the Commission, based on the study and a public
hearing and subject to review under section 313(b) of the Federal Power Act,
whether any of the benefits referred to in paragraph (1) should be available for
such facilities and whether applications for preliminary permits (or licenses
where no preliminary permit has been issued) for such small power production
facilities utilizing new dams or diversions should be accepted by the
Commission after the moratorium period specified in subsection (e). The
report shall include such other administrative and legislative recommendations
as the Commission deems appropriate. (16 U.S.C. § 8251.)
(6) If the study under this subsection has not been completed within 18
months after its initiation, the Commission shall notify the Committees
referred to in paragraph (4) of the reasons for the delay and specify a date
when it will be completed and a report submitted.
(e) [Moratorium on application of PURPA to new dams.]—
Notwithstanding the amendments made by subsection (a) of this section, in the
case of a project for which a license or exemption is issued after the enactment
of this Act, section 210 of the Public Utility Regulatory Policies Act of 1978 shall
not apply during the moratorium period if the project utilizes a new dam or
diversion (as defined in section 210(k) of such Act) unless the project is either—
(1) a project located at a Government dam (as defined in section 3(10) of the
Federal Power Act) at which non-Federal hydroelectric development is
permissible, or
(2) a project described in paragraphs (2), (3), or (4) of subsection (b). (16
U.S.C. § 796.)
For purposes of this subsection, the term "moratorium period" means the period
beginning on the date of the enactment of this Act and ending at the expiration
of the first full session of Congress after the session during which the report under
subsection (d) has been submitted to the Congress. (100 Stat. 1249, 16 U.S.C. §
824a-3 note.)

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Sec. 9. [Fees and charges for use of dams and structures.]— (a) [Fees and
charges.]— Section 10(e) of the Federal Power Act is amended as follows:
(1) Insert "(1)" after "(e)".
(2) Add the following at the end thereof "(2) In the case of licenses involving
the use of Government dams or other structures owned by the United States,
the charges fixed (or readjusted) by the Commission under paragraph (1) for
the use of such dams or structures shall not exceed 1 mill per kilowatt-hour for
the first 40 gigawatt-hours of energy a project produces in any year, 1-1/2 mills
per kilowatt-hour for over 40 up to and including 80 gigawatt-hours in any
year, and 2 mills per kilowatt-hour for any energy the project produces over
80 gigawatt-hours in any year. Except as provided in subsection (f), such
charge shall be the only charge assessed by any agency of the United States for
the use of such dams or structures.
"(3) The provisions of paragraph (2) shall apply with respect to—
"(A) all licenses issued after the date of the enactment of this paragraph;
and
"(B) all licenses issued before such date which—
"(i) did not fix a specific charge for the use of the Government dam or
structure involved; and
"(ii) did not specify that no charge would be fixed for the use of such
dam or structure.
"(4) Every 5 years, the Commission shall review the appropriateness of the
annual charge limitations provided for in this subsection and report to
Congress concerning its recommendations thereon.".
(b) [Savings provisions— Indians.]— Nothing in this Act shall affect any annual
charge to be paid pursuant to section 10(e) of the Federal Power Act to Indian
tribes for the use of their lands within Indian reservations. (100 Stat 1252, 16
U.S.C. § 803 note.)
Sec. 10. [Election and negotiations concerning contested projects
subject to litigation.]— (a) [Application of section.]— This section applies to
any relicensing proceeding initiated prior to October 1983 at the Federal Energy
Regulatory Commission involving the following projects: Mokelumne (No. 137),
California; Phoenix (No. 1061), California; Rock Creek/Cresta (No. 1962),
California; Haas-King (No. 1988), California; Poole (No. 1388), California;
Olmsted (No. 596), Utah; Weber (No. 1744), Utah; Rush Creek (No. 1389),
California; and Shawano (No. 710), Wisconsin. The numbers in this subsection
refer to Federal Energy Regulatory Commission project identification numbers
for the existing licensee. This subsection shall also apply to any subsequent
relicensing proceeding for any such project involving the same parties which
results from the rejection, without prejudice, of an application in any of the
proceedings specified in this subsection.
(b) [Provisions not applicable if election made.]— In the case of each
project named in subsection (a), if the existing licensee fails to make an election

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under subsection (c) within 90 days after the enactment of this Act for
negotiations under subsection (e)—
(1) the provisions of the Federal Power Act in effect one day prior to
enactment of this Act; and (2) the amendments made by sections 3, 6, and 12
of this Act to the Federal Power Act; shall apply to the relicensing proceeding
referred to in subsection (a). (16 U.S.C. § 791a.)
(c) [Election procedures.]— An existing licensee for any project named in
subsection (a) may file an election with the Commission under this subsection.
The election shall be filed in the manner required by the Commission. The
election, subject to subsection (d), shall consist of an agreement that, in the case
of the project concerned, the licensee will (1) enter into good faith negotiations
under subsection (e) with each person (or group of persons) who filed a
competing application for a new license for the project before October 7, 1983;
and (2) be subject to the provisions of this section. Notice of the election to
negotiate or the refusal thereof shall be filed with the Commission within the
90-day period.
(d) [Acceptance or refusal to accept election.]— Within 45 days after
receiving notice from the Commission of an election to negotiate made by the
existing licensee under subsection (c) for an applicable project, each competing
license applicant (or group of applicants) referred to in subsection (a) may (1)
accept the election, withdraw the competing application, enter into good faith
negotiations in accordance with this section, and agree to be subject to the
provisions of this section; or (2) refuse to accept such election. If the election to
negotiate is not accepted by the competing applicant (or group) within the 45-day
period, the relicensing proceeding for such project shall be continued and a new
license issued solely in accordance with the Federal Power Act, as amended by
this Act (including the amendments made by this Act to section 7 of the Federal
Power Act). Notice of an election to negotiate or refusal must be filed with the
Commission within the 45-day period.
(e) [Negotiations.]— If an election to negotiate is made pursuant to subsections
(c) and (d) for any project, the existing licensee and the competing applicant shall
commence negotiations for each of the following:
(1) Compensation to be provided by the existing licensee for the reasonable
costs incurred by the competing applicant which are related to pursuing—
(A) the application in the applicable relicensing proceeding, including the
costs of preparing, filing, and maintaining such application for the period
ending December 31, 1985; and
(B) the litigation in the courts involving the application of section 7 of the
Federal Power Act to the applicable relicensing proceeding.
(2) Compensation in an additional sum (which may be in money or electric
power or both) representing a reasonable percentage (but not to exceed 100
percent) of the net investment of the existing licensee in the project, as of
October 22, 1985 (as determined by the Commission, prior to the initiation of

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

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such negotiations, in accordance with section 14(a) of the FederalPower Act).
In making the determination of net investment, the Commission shall utilize
all relevant records and data (which the existing licensee shall provide to the
Commission) applicable to the project for the term of the existing license
through October 22, 1985. The parties to the negotiations shall establish the
method, period, and manner of providing all such compensation. (16 U.S.C.
§ 807.)
(f) [Commission order.]— If an election is made and accepted but negotiations
under subsection (e) are not commenced by the parties within the time
established by the Commission (or, if appropriate, in the judgment of the
Commission, one 45-day extension thereof) or if a mutually satisfactory
compensation arrangement that is consistent with the provisions of the Federal
Power Act (16 U.S.C.§ 791a.) has not been executed within such time, the
Commission, after notice and opportunity for a hearing, shall issue an order
establishing compensation in accordance with paragraphs (1) and (2) of
subsection(e). In determining the amount of compensation, the Commission may
accept any stipulations agreed to by the parties as a result of the negotiations.
The Commission shall also take into consideration all of the following:
(1) The quality of the relicensing proposals of the existing licensee and the
competing applicant.
(2) The net benefits to both parties and their customers of obtaining the new
license.
(3) The extent to which the applications filed by both parties were actively
pursued (subject to the effect thereon of any action by the Commission or the
applicable litigation) and filed with the Commission in good faith.
(4) The extent of reliance by the competing applicant on the provisions of
the Federal Power Act in effect prior to enactment of this Act and the
detrimental impact of such reliance on the operations and on the service area
of the applicant.
(g) [Compensation— State and local governments.]— The order of the
Commission under this section shall establish the method, period, and manner
of providing compensation under subsection (f), and such other reasonable terms
and conditions concerning such compensation, consistent with the Federal Power
Act, as the Commission deems appropriate. Any payment over a period of time
shall include interest compounded at a rate based upon outstanding obligations
of the United States of comparable maturity. The payment period shall not
exceed one third of the new license term for the project. The order shall state the
basis for the Commission’s determination. The provisions of section 313 of the
Federal Power Act shall apply to such order and determinations. The order (or
any agreement reached by the parties by negotiation) shall be a condition of any
annual license or new license (depending when the order is issued or agreement
reached) issued to the existing licensee for this project. Nothing in this section
shall be construed to affect the treatment, by a State regulatory authority for

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

ratemaking purposes, of any compensation paid under this section. (16 U.S.C.
§ 825l.)
(h) [Commission proceedings.]— Upon mutual request of the parties to any
negotiation under this section, the Commission may defer any determination of
net investment for the applicable project until whenever it is required to issue an
order under this section for such project. No new license shall be issued under
the Federal Power Act (16 U.S.C. § 791a.) for the projects referenced in this
section until there is full compliance, to the extent applicable, with this section.
The Commission shall ensure that negotiations and any determinations and
orders required by this section shall be conducted, made, and issued
expeditiously and shall ensure that the parties do not delay. (100 Stat. 1252)
Sec. 11. [Merwin Dam Project.]— The amendments made by this Act, except
for the amendments made by sections 6 and 12 shall not apply to the Federal
Energy Regulatory Commission proceeding involving FERC Project Number
935 (FERC Project Number 2791), relating to the Merwin Dam in Washington
State. (100 Stat. 1255)
Sec. 12. [Additional Commission enforcement authority.]— Part I of the
Federal Power Act (16 U.S.C. § 823b.) is amended by adding the following new
section at the end thereof:
"Sec. 31. [Enforcement.]— "(a) [Monitoring and investigation.]— The
Commission shall monitor and investigate compliance with each license and
permit issued under this Part and with each exemption granted from any
requirement of this Part. The Commission shall conduct such investigations as
may be necessary and proper in accordance with this Act. After notice and
opportunity for public hearing, the Commission may issue such orders as
necessary to require compliance with the terms and conditions of licenses and
permits issued under this Part and with the terms and conditions of exemptions
granted from any requirement of this Part.
"(b) [Revocation orders.]— After notice and opportunity for an evidentiary
hearing, the Commission may also issue an order revoking any license issued
under this Part or any exemption granted from any requirement of this Part
where any licensee or exemptee is found by the Commission:
"(1) to have knowingly violated a final order issued under subsection (a) after
completion of judicial review (or the opportunity for judicial review); and
"(2) to have been given reasonable time to comply fully with such order
prior to commencing any revocation proceeding. In any such proceeding, the
order issued under subsection (a) shall be subject to de novo review by the
Commission. No order shall be issued under this subsection until after the
Commission has taken into consideration the nature and seriousness of the
violation and the efforts of the licensee to remedy the violation.
"(c) [Civil penalty.]— Any licensee, permittee, or exemptee who violates or fails
or refuses to comply with any rule or regulation under this Part, any term, or
condition of a license, permit, or exemption under this Part, or any order issued

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under subsection (a) shall be subject to a civil penalty in an amount not to exceed
$10,000 for each day that such violation or failure or refusal continues. Such
penalty shall be assessed by the Commission after notice and opportunity for
public hearing. In determining the amount of a proposed penalty, the
Commission shall take into consideration the nature and seriousness of the
violation, failure, or refusal and the efforts of the licensee to remedy the violation,
failure, or refusal in a timely manner. No civil penalty shall be assessed where
revocation is ordered.
"(d) [Assessment.]— (1) Before issuing an order assessing a civil penalty against
any person under this section, the Commission shall provide to such person
notice of the proposed penalty. Such notice shall, except in the case of a
violation of a final order issued under subsection (a), inform such person of his
opportunity to elect in writing within 30 days after the date of receipt of such
notice to have the procedures of paragraph (3) (in lieu of those of paragraph
(2)) apply with respect to such assessment.
"(2)(A) In the case of the violation of a final order issued under subsection
(a), or unless an election is made within 30 calendar days after receipt of
notice under paragraph (1) to have paragraph (3) apply with respect to such
penalty, the Commission shall assess the penalty, by order, after a
determination of violation has been made on the record after an opportunity
for an agency hearing pursuant to section 554 of title 5, United States Code,
before an administrative law judge appointed under section 3105 of such title
5. Such assessment order shall include the administrative law judge’s findings
and the basis for such assessment.
"(B) Any person against whom a penalty is assessed under this paragraph
may, within 60 calendar days after the date of the order of the Commission
assessing such penalty, institute an action in the United States court of
appeals for the appropriate judicial circuit for judicial review of such order
in accordance with chapter 7 of title 5, United States Code. The court shall
have jurisdiction to enter a judgment affirming, modifying, or setting aside
in whole or in Part, the order of the Commission, or the court may remand
the proceeding to the Commission for such further action as the court may
direct. (5 U.S.C. § 701 et seq.)
"(3)(A) In the case of any civil penalty with respect to which the procedures
of this paragraph have been elected, the Commission shall promptly assess
such penalty, by order, after the date of the receipt of the notice under
paragraph (1) of the proposed penalty.
"(B) If the civil penalty has not been paid within 60 calendar days after the
assessment order has been made under subparagraph (A), the Commission
shall institute an action in the appropriate district court of the United States
for an order affirming the assessment of the civil penalty. The court shall
have authority to review de novo the law and the facts involved, and shall
have jurisdiction to enter a judgment enforcing, modifying, and enforcing as
so modified, or setting aside in whole or in Part, such assessment.

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

"(C) Any election to have this paragraph apply may not be revoked except
with the consent of the Commission.
"(4) The Commission may compromise, modify, or remit, with or without
conditions, any civil penalty which may be imposed under this subsection,
taking into consideration the nature and seriousness of the violation and the
efforts of the licensee to remedy the violation in a timely manner at any time
prior to a final decision by the court of appeals under paragraph (2) or by the
district court under paragraph (3).
"(5) If any person fails to pay an assessment of a civil penalty after it has
become a final and unappealable order under paragraph (2), or after the
appropriate district court has entered final judgment in favor of the
Commission under paragraph (3), the Commission shall institute an action to
recover the amount of such penalty in any appropriate district court of the
United States. In such action, the validity and appropriateness of such final
assessment order or judgment shall not be subject to review.
"(6)(A) Notwithstanding the provisions of title 28, United States Code, or of
this Act, the Commission may be represented by the general counsel of the
Commission (or any attorney or attorneys within the Commission
designated by the Chairman) who shall supervise, conduct, and argue any
civil litigation to which paragraph (3) of this subsection applies (including
any related collection action under paragraph (5)) in a court of the United
States or in any other court, except the Supreme Court. However, the
Commission or the general counsel shall consult with the Attorney General
concerning such litigation, and the Attorney General shall provide, on
request, such assistance in the conduct of such litigation as may be
appropriate.
"(B) The Commission shall be represented by the Attorney General, or the
Solicitor General, as appropriate, in actions under this subsection, except to
the extent provided in subparagraph (A) of this paragraph.". (100 Stat. 1255)
Sec. 13. [Antitrust laws.]— Section 10(h) of the Federal Power Act (16 U.S.C.
§ 803.) is amended by inserting "(1)" after "(h)" and by adding the following new
paragraph at the end thereof:
"(2) That conduct under the license that: (A) results in the contravention of
the policies expressed in the antitrust laws; and (B) is not otherwise justified by
the public interest considering regulatory policies expressed in other applicable
law (including but not limited to those contained in Part II of this Act) shall be
prevented or adequately minimized by means of conditions included in the
license prior to its issuance. In the event it is impossible to prevent or
adequately minimize the contravention, the Commission shall refuse to issue
any license to the applicant for the project and, in the case of an existing
project, shall take appropriate action to provide thereafter for the operation
and maintenance of the affected project and for the issuing of a new license
in accordance with section 15 of this Part.". (100 Stat. 1257)

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Sec. 14. [Landowner and governmental agency notification.]— Section 9
of the Federal Power Act (16 U.S.C. § 802.) is amended by inserting "(a)" after
"9", by redesignating existing subsections (a) and (b) as paragraphs (1) and (2),
and by adding the following at the end thereof:
"(b) Upon the filing of any application for a license (other than a license under
section 15 (16 U.S.C. § 808.)) the applicant shall make a good faith effort to notify
each of the following by certified mail:
"(1) Any person who is an owner of record of any interest in the property
within the bounds of the project.
"(2) Any Federal, State, municipal or other local governmental agency likely
to be interested in or affected by such application.". (100 Stat. 1257)
Sec. 15. [Applications for certain orders under Federal Power
Act.]— Section 211(c)(2)(B) of the Federal Power Act (16 U.S.C. § 824j.) is
amended by adding the following before the period: ": Provided, That nothing in
this subparagraph shall prevent an application for an order hereunder to be filed
prior to termination of modification of an existing rate schedule: Provided, That
such order shall not become effective until termination of such rate schedule or
the modification becomes effective".
Sec. 15A. [Miscellaneous provisions.]— (a) [Lake Tuscaloosa.]— In the case
of any hydroelectric power project located or proposed to be located at Lake
Tuscaloosa, in Tuscaloosa County, Alabama, the provisions of the Federal Power
Act (16 U.S.C. § 791a.) shall continue to apply, except that the Federal Energy
Regulatory Commission shall not issue any permit, license, or exemption under
that Act or under any other provision of law administered by the Commission
to any person or public or private entity for such project or for any transmission
or other facilities used in connection with, or appurtenant to, such project unless
authorized by law enacted after the enactment of this Act.
(b) [Time limitations for certain projects.]— Notwithstanding the time
limitations of section 13 of the Federal Power Act (16 U.S.C. § 806.), the Federal
Energy Regulatory Commission upon the request of the licensee for FERC
Projects Nos. 3033, 3034, and 3044 (and after reasonable notice) is authorized,
in accordance with the good faith, due diligence, and public interest
requirements of such section 13 and the Commission’s procedures under such
section, to extend:
(1) the time required for commencement of construction of Projects Nos.
3033, 3034, and 3044 for up to a maximum of 3 consecutive 2-year periods for
each such project,
(2) the time required for completion of construction of such projects for a
reasonable period not to exceed 5 years after commencement of construction
of each project, and
(3) the time required for the licensee to acquire the real property required
for such projects for a period of up to 5 years from the date of enactment of the
Act. The authorization for issuing extensions under paragraphs (2) and (3) of

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ELECTRIC CONSUMERS PROTECTION ACT OF 1986

this subsection shall terminate 3 years after enactment of this Act. The
Commission to facilitate requests under this subsection may consolidate such
requests.
(c) [Henry’s Fork.]— (1) In the case of any project proposed to be sited on,
or adjacent to, that portion of Henry’s Fork of the Snake River, Idaho
(including that segment originating at Big Springs), or its tributaries within
one-half mile of their confluence with Henry’s Fork of the Snake River, from
its point of origin at Henry’s Lake, Idaho to the point of its confluence with the
backwaters of Ashton Reservoir, Idaho, the provisions of the Federal Power
Act (16 U.S.C. § 791a.) shall continue to apply, except that the Federal Energy
Regulatory Commission shall not issue any permit, license, or exemption
under that Act or under any other provision of law administered by the
Commission to any person or public or private entity for such project or for
any transmission or other facilities used in connection with, or appurtenant to,
such project unless authorized by law enacted after the enactment of this Act.
The prohibition in the preceding sentence shall not apply to the application for
a license under Part I of the Federal Power Act, as amended by this Act, to the
Island Park Dam Hydropower Project (FERC Project No. 2973), except that
in addition to the requirements of that Act, the Commission may issue such
license only if the Commission determines that significant and permanent
alternation [sic] of streamflow, habitat, water temperature, and quality will not
occur as a result of the project. Nothing in this subsection shall be construed
to affect the authority of this Commission to relicense, in accordance with the
provisions of the Federal Power Act (16 U.S.C. § 791a.), as amended by this
Act, the Ponds Lodge Hydropower Project (FERC Project No. 1413).
(2) Except as expressly provided in paragraph (1), nothing in this subsection
shall affect the validity of any existing license, permit, or certificate issued by
any Federal agency pursuant to any other Federal law.
(3) The provisions of this subsection shall supersede the provisions of title
VII (relating to the Henry’s Fork of the Snake River, Idaho) of the Act entitled
"An Act to amend the Wild and Scenic Rivers Act, and for other purposes"
enacted during the 99th Congress, second session. (100 Stat. 1257)
Sec. 16. [Provision of information to Congress.]— The Federal Energy
Regulatory Commission shall keep the Committee on Energy and Commerce
of the United States House of Representatives and the Committee on Energy and
Natural Resources of the United States Senate fully and currently informed
regarding actions of the Commission with respect to the provisions of Part I of
the Federal Power Act. (100 Stat. 1259, 16 U.S.C. § 797b.
Sec. 17. [Savings provisions.]— (a) [In general.]— Nothing in this Act (16
U.S.C. § 797 note.) shall be construed as authorizing the appropriation of water
by any Federal, State, or local agency, Indian tribe, or any other entity or
individual. Nor shall any provision of this Act—

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3505

(1) affect the rights or jurisdiction of the United States, the States, Indian
tribes, or other entities over waters of any river or stream or over any ground
water resource;
(2) alter, amend, repeal, interpret, modify, or be in conflict with any
interstate compact made by the States;
(3) alter or establish the respective rights of States, the United States, Indian
tribes, or any person with respect to any water or water-related right;
(4) affect, expand, or create rights to use transmission facilities owned by the
Federal Government;
(5) alter, amend, repeal, interpret, modify, or be in conflict with, the Treaty
rights or other rights of any Indian tribe;
(6) permit the filing of any competing application in any relicensing
proceeding where the time for filing a competing application expired before
the enactment of this Act; or
(7) modify, supersede, or affect the Pacific Northwest Electric Power
Planning and Conservation Act. (100 Stat.1259, 16 U.S.C. § 839 note.)
Sec. 18. [Effective date.]— Except as otherwise provided in this Act, the
amendments made by this Act (16 U.S.C. § 797 note.) shall take effect with
respect to each license, permit, or exemption issued under the Federal Power Act
(16 U.S.C. § 791a.) after the enactment of this Act. The amendments made by
sections 6 and 12 of this Act shall apply to licenses, permits, and exemptions
without regard to when issued. (100 Stat.1259)
EXPLANATORY NOTE
Legislative History. S. 426 (H.R. 44),
Public Law 99-495 in the 99th Congress.
Reported in the Senate from Energy and
Natural Resources; S. Repts. No. 99-161.
Considered and passed Senate April 11, 15-17,
1986. Reported in the House from Energy and
Commerce; H.R. Repts. No. 99-507

accompanying H.R. 44. H.R. 44 passed House
April 21, 1986; proceedings vacated and S. 426
amended, passed in lieu June 10, 1986. Senate
disagreed to House amendment. House agreed
to conference report October 2, 1986. Senate
agreed to conference report October 3, 1986.
Approved October 16, 1986.