16 USC 791 et al

Page 1289
Sec.

828a.
828b.
828c.

§ 792

TITLE 16—CONSERVATION

Definitions.
Exemption from formula, books and records,
and project cost statement requirements;
annual charges.
Applicability of this subchapter.

SUBCHAPTER I—REGULATION OF THE DEVELOPMENT OF WATER POWER AND RESOURCES
CODIFICATION
Section 212 of act of Aug. 26, 1935, ch. 687, 49 Stat. 847,
provided that sections 1 to 29 of the Federal Water
Power Act, as amended (sections 792, 793, 794 to 797, 798
to 818, 819, and 820 to 823 of this title) shall constitute
part I of the act. Said section 212 also repealed sections
25 and 30 of the act (sections 819, 791 of this title). It
also contained a proviso as follows: ‘‘That nothing in
that Act, as amended, shall be construed to repeal or
amend the provisions of the amendment to the Federal
Water Power Act approved March 3, 1921 (41 Stat. 1353
[section 797a of this title]), or the provisions of any
other Act relating to national parks and national
monuments.’’

§ 791. Repealed. Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847
Section, act June 10, 1920, ch. 285, § 30, 41 Stat. 1077,
designated the act as The Federal Water Power Act.

§ 791a. Short title
This chapter may be cited as the ‘‘Federal
Power Act’’.
(June 10, 1920, ch. 285, pt. III, § 321, formerly § 320,
as added Aug. 26, 1935, ch. 687, title II, § 213, 49
Stat. 863; renumbered Pub. L. 95–617, title II,
§ 212, Nov. 9, 1978, 92 Stat. 3148.)
CODIFICATION
Section was enacted as part of part III of the Federal
Power Act, and not as part of part I of that Act which
comprises this subchapter.
SHORT TITLE OF 1990 AMENDMENT
Pub. L. 101–575, § 1, Nov. 15, 1990, 104 Stat. 2834, provided that: ‘‘This Act [enacting section 2243 of Title 42,
The Public Health and Welfare, amending sections 796
and 824a–3 of this title and sections 2014, 2061, 2201, and
2284 of Title 42, and enacting provisions set out as a
note under section 796 of this title] may be cited as the
‘Solar, Wind, Waste, and Geothermal Power Production
Incentives Act of 1990’.’’
SHORT TITLE OF 1988 AMENDMENT
Pub. L. 100–473, § 1, Oct. 6, 1988, 102 Stat. 2299, provided
that: ‘‘This Act [amending section 824e of this title and
enacting provisions set out as notes under section 824e
of this title] may be cited as the ‘Regulatory Fairness
Act’.’’
SHORT TITLE OF 1986 AMENDMENT
Pub. L. 99–495, § 1(a), Oct. 16, 1986, 100 Stat. 1243, provided that: ‘‘This Act [enacting sections 797b and 823b
of this title, amending sections 797, 800, 802, 803, 807, 808,
817, 823a, 824a–3, and 824j of this title, and enacting provisions set out as notes under sections 797, 803, 823a,
824a–3, and 825h of this title] may be cited as the ‘Electric Consumers Protection Act of 1986’.’’

§ 792. Federal Power Commission; creation; number; appointment; term; qualifications; vacancies; quorum; chairman; salary; place of
holding sessions
A commission is created and established to be
known as the Federal Power Commission (here-

inafter referred to as the ‘‘commission’’) which
shall be composed of five commissioners who
shall be appointed by the President, by and with
the advice and consent of the Senate, one of
whom shall be designated by the President as
chairman and shall be the principal executive
officer of the commission. Each chairman, when
so designated, shall act as such until the expiration of his term of office.
The commissioners first appointed under this
section, as amended, shall continue in office for
terms of one, two, three, four, and five years, respectively, from June 23, 1930, the term of each
to be designated by the President at the time of
nomination. Their successors shall be appointed
each for a term of five years from the date of the
expiration of the term for which his predecessor
was appointed and until his successor is appointed and has qualified, except that he shall
not so continue to serve beyond the expiration
of the next session of Congress subsequent to the
expiration of said fixed term of office, and except that any person appointed to fill a vacancy
occurring prior to the expiration of the term for
which his predecessor was appointed shall be appointed only for the unexpired term. Not more
than three of the commissioners shall be appointed from the same political party. No person
in the employ of or holding any official relation
to any licensee or to any person, firm, association, or corporation engaged in the generation,
transmission, distribution, or sale of power, or
owning stock or bonds thereof, or who is in any
manner pecuniarily interested therein, shall
enter upon the duties of or hold the office of
commissioners. Said commissioners shall not
engage in any other business, vocation, or employment. No vacancy in the commission shall
impair the right of the remaining commissioners to exercise all the powers of the commission. Three members of the commission shall
constitute a quorum for the transaction of business, and the commission shall have an official
seal of which judicial notice shall be taken. The
commission shall annually elect a vice chairman to act in case of the absence or disability
of the chairman or in case of a vacancy in the
office of chairman.
Each commissioner shall receive necessary
traveling and subsistence expenses, or per diem
allowance in lieu thereof, within the limitation
prescribed by law, while away from the seat of
government upon official business.
The principal office of the commission shall be
in the District of Columbia, where its general
sessions shall be held; but whenever the convenience of the public or of the parties may be promoted or delay or expense prevented thereby,
the commission may hold special sessions in any
part of the United States.
(June 10, 1920, ch. 285, pt. I, § 1, 41 Stat. 1063;
June 23, 1930, ch. 572, § 1, 46 Stat. 797; renumbered
pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat.
847; 1950 Reorg. Plan No. 9, § 3, eff. May 24, 1950,
15 F.R. 3175, 64 Stat. 1265; Pub. L. 86–619, § 1, July
12, 1960, 74 Stat. 407.)
CODIFICATION
Provisions which prescribed the compensation of
commissioners were omitted as obsolete. Compensation
of the Chairman and members of the Commission was

§ 793

TITLE 16—CONSERVATION

prescribed by sections 5314 and 5315 of Title 5, Government Organization and Employees, prior to termination of the Commission. See Termination of Federal
Power Commission; Transfer of Functions note below.
AMENDMENTS
1960—Pub. L. 86–619 provided for continuation in office of a commissioner upon termination of his term
until a successor is appointed and has qualified, not beyond expiration of next session of Congress subsequent
to the expiration of said fixed term of office.
1930—Act June 23, 1938, amended section generally.
Prior to amendment section read as follows: ‘‘A commission is hereby created and established, to be known
as the Federal Power Commission (hereinafter referred
to as the commission), which shall be composed of the
Secretary of War, the Secretary of the Interior, and the
Secretary of Agriculture. Two members of the commission shall constitute a quorum for the transaction of
business, and the commission shall have an official
seal, which shall be judicially noticed. The President
shall designate the chairman of the commission.’’
REPEALS
Act Oct. 15, 1949, ch. 695, § 5(a), 63 Stat. 880, formerly
cited as a credit to this section, was repealed by Pub.
L. 89–554, § 8(a), Sept. 6, 1966, 80 Stat. 655.
TERMINATION OF FEDERAL POWER COMMISSION;
TRANSFER OF FUNCTIONS
Federal Power Commission terminated and its functions, personnel, property, funds, etc., transferred to
Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by
sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title
42, The Public Health and Welfare.
Executive and administrative functions of Federal
Power Commission, with certain reservations, transferred to Chairman of such Commission, with authority
vested in him to authorize their performance by any officer, employee, or administrative unit under his jurisdiction, by Reorg. Plan No. 9 of 1950, set out below.
REORGANIZATION PLAN NO. 9 OF 1950
Eff. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265
Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, March 13, 1950, pursuant to the provisions of
the Reorganization Act of 1949, approved June 20, 1949
[see 5 U.S.C. 901 et seq.].
FEDERAL POWER COMMISSION
SECTION 1. TRANSFER OF FUNCTIONS TO THE CHAIRMAN
(a) Subject to the provisions of subsection (b) of this
section, there are hereby transferred from the Federal
Power Commission, hereinafter referred to as the Commission, to the Chairman of the Commission, hereinafter referred to as the Chairman, the executive and administrative functions of the Commission, including
functions of the Commission with respect to (1) the appointment and supervision of personnel employed
under the Commission, (2) the distribution of business
among such personnel and among administrative units
of the Commission, and (3) the use and expenditure of
funds.
(b)(1) In carrying out any of his functions under the
provisions of this section the Chairman shall be governed by general policies of the Commission and by
such regulatory decisions, findings, and determinations
as the Commission may by law be authorized to make.
(2) The appointment by the Chairman of the heads of
major administrative units under the Commission shall
be subject to the approval of the Commission.
(3) Personnel employed regularly and full time in the
immediate offices of Commissioners other than the
Chairman shall not be affected by the provisions of this
reorganization plan.

Page 1290

(4) There are hereby reserved to the Commission its
functions with respect to revising budget estimates and
with respect to determining upon the distribution of
appropriated funds according to major programs and
purposes.
SEC. 2. PERFORMANCE OF TRANSFERRED FUNCTIONS
The Chairman may from time to time make such provisions as he shall deem appropriate authorizing the
performance by any officer, employee, or administrative unit under his jurisdiction of any functions transferred to the Chairman by the provisions of this reorganization plan.
SEC. 3. DESIGNATION OF CHAIRMAN
The functions of the Commission with respect to
choosing a chairman from among the commissioners
composing the Commission are hereby transferred to
the President.
MESSAGE OF THE PRESIDENT
To the Congress of the United States:
I transmit herewith Reorganization Plan No. 10 of
1950, prepared in accordance with the Reorganization
Act of 1949 and providing for reorganizations in the Securities and Exchange Commission. My reasons for
transmitting this plan are stated in an accompanying
general message.
After investigation I have found and hereby declare
that each reorganization included in Reorganization
Plan No. 10 of 1950 is necessary to accomplish one or
more of the purposes set forth in section 2(a) of the Reorganization Act of 1949.
The taking effect of the reorganizations included in
this plan may not in itself result in substantial immediate savings. However, many benefits in improved operations are probable during the next years which will
result in a reduction in expenditures as compared with
those that would be otherwise necessary. An itemization of these reductions in advance of actual experience
under this plan is not practicable.
HARRY S. TRUMAN.
THE WHITE HOUSE, March 13, 1950.

§ 793. Appointment of officers and employees of
Commission; duties, and salaries; detail of officers and employees from other departments; expenditures authorized
The commission shall have authority to appoint, prescribe the duties, and fix the salaries
of, a secretary, a chief engineer, a general counsel, a solicitor, and a chief accountant; and may,
subject to the civil service laws, appoint such
other officers and employees as are necessary in
the execution of its functions and fix their salaries in accordance with chapter 51 and subchapter III of chapter 53 of title 5. The commission may request the President to detail an officer or officers from the Corps of Engineers, or
other branches of the United States Army, to
serve the commission as engineer officer or officers, or in any other capacity, in field work outside the seat of government, their duties to be
prescribed by the commission; and such detail is
authorized. The President may also, at the request of the commission, detail, assign, or transfer to the commission, engineers in or under the
Departments of the Interior or Agriculture for
field work outside the seat of government under
the direction of the commission.
The commission may make such expenditures
(including expenditures for rent and personal
services at the seat of government and elsewhere, for law books, periodicals, and books of

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§ 796

TITLE 16—CONSERVATION

reference, and for printing and binding) as are
necessary to execute its functions. Expenditures
by the commission shall be allowed and paid
upon the presentation of itemized vouchers
therefor, approved by the chairman of the commission or by such other member or officer as
may be authorized by the commission for that
purpose subject to applicable regulations under
chapters 1 to 11 of title 40 and division C (except
sections 3302, 3306(f), 3307(e), 3501(b), 3509, 3906,
4104, 4710, and 4711) of subtitle I of title 41.
(June 10, 1920, ch. 285, pt. I, § 2, 41 Stat. 1063;
June 23, 1930, ch. 572, § 1, 46 Stat. 798; renumbered
pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat.
847; Oct. 28, 1949, ch. 782, title XI, § 1106(a), 63
Stat. 972; Oct. 31, 1951, ch. 654, § 2(14), 65 Stat.
707.)
CODIFICATION
All appointments referred to in the first sentence are
subject to the civil service laws unless specifically excepted by those laws or by laws enacted subsequent to
Executive Order 8743, Apr. 23, 1941, issued by the President pursuant to the Act of Nov. 26, 1940, ch. 919, title
I, § 1, 54 Stat. 1211, which covered most excepted positions into the classified (competitive) civil service. The
Order is set out as a note under section 3301 of Title 5,
Government Organization and Employees.
As to the compensation of such personnel, sections
1202 and 1204 of the Classification Act of 1949, 63 Stat.
972, 973, repealed the Classification Act of 1923 and all
other laws or parts of laws inconsistent with the 1949
Act. The Classification Act of 1949 was repealed Pub. L.
89–554, Sept. 6, 1966, § 8(a), 80 Stat. 632, and reenacted as
chapter 51 and subchapter III of chapter 53 of Title 5.
Section 5102 of Title 5 contains the applicability provisions of the 1949 Act, and section 5103 of Title 5 authorizes the Office of Personnel Management to determine
the applicability to specific positions and employees.
In text, ‘‘chapter 51 and subchapter III of chapter 53
of title 5’’ substituted for ‘‘the Classification Act of
1949, as amended’’ on authority of Pub. L. 89–554, § 7(b),
Sept. 6, 1966, 80 Stat. 631, the first section of which enacted Title 5, Government Organization and Employees.
In text, ‘‘chapters 1 to 11 of title 40 and division C (except sections 3302, 3306(f), 3307(e), 3501(b), 3509, 3906, 4104,
4710, and 4711) of subtitle I of title 41’’ substituted for
‘‘the Federal Property and Administrative Services Act
of 1949, as amended’’ on authority of Pub. L. 107–217,
§ 5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted
Title 40, Public Buildings, Property, and Works, and
Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which
Act enacted Title 41, Public Contracts.
AMENDMENTS
1951—Act Oct. 31, 1951, inserted reference to applicable regulations of the Federal Property and Administrative Services Act of 1949, as amended, at end of section.
1949—Act Oct. 28, 1949, substituted ‘‘Classification Act
of 1949’’ for ‘‘Classification Act of 1923’’.
1930—Act June 23, 1930, substituted provisions permitting the commission to appoint, prescribe the duties,
and fix the salaries of, a secretary, a chief engineer, a
general counsel, a solicitor, and a chief accountant, and
to appoint such other officers and employees as are
necessary in the execution of its functions and fix their
salaries, and authorizing the detail of officers from the
Corps of Engineers, or other branches of the United
States Army, to serve the commission as engineer officers, or in any other capacity, in field work outside the
seat of government, and the detail, assignment or
transfer to the commission of engineers in or under the
Departments of the Interior or Agriculture for work
outside the seat of government for provisions which required the commission to appoint an executive sec-

retary at a salary of $5,000 per year and prescribe his
duties, and which permitted the detail of an officer
from the United States Engineer Corps to serve the
commission as engineer officer; and inserted provisions
permitting the commission to make certain expenditures necessary in the execution of its functions, and
allowing the payment of expenditures upon the presentation of itemized vouchers approved by authorized
persons.
REPEALS
Act Oct. 28, 1949, ch. 782, cited as a credit to this section, was repealed (subject to a savings clause) by Pub.
L. 89–554, Sept. 6, 1966, § 8, 80 Stat. 632, 655.

§ 793a. Repealed. Pub. L. 87–367, title I, § 103(5),
Oct. 4, 1961, 75 Stat. 787
Section, Pub. L. 86–626, title I, § 101, July 12, 1960, 74
Stat. 430, authorized the Federal Power Commission to
place four additional positions in grade 18, one in grade
17 and one in grade 16 of the General Schedule of the
Classification Act of 1949.

§§ 794, 795. Omitted
CODIFICATION
Section 794, which required the work of the commission to be performed by and through the Departments
of War, Interior, and Agriculture and their personnel,
consisted of the second paragraph of section 2 of act
June 10, 1920, ch. 285, 41 Stat. 1063, which was omitted
in the revision of said section 2 by act June 23, 1930, ch.
572, § 1, 46 Stat. 798. The first and third paragraphs of
said section 2 were formerly classified to sections 793
and 795 of this title.
Section 795, which related to expenses of the commission generally, consisted of the third paragraph of section 2 of act June 10, 1920, ch. 285, 41 Stat. 1063. Such
section 2 was amended generally by act June 23, 1930,
ch. 572, § 1, 46 Stat. 798, and is classified to section 793
of this title. The first and second paragraphs of said
section 2 were formerly classified to sections 793 and
794 of this title.

§ 796. Definitions
The words defined in this section shall have
the following meanings for purposes of this
chapter, to wit:
(1) ‘‘public lands’’ means such lands and interest in lands owned by the United States as
are subject to private appropriation and disposal under public land laws. It shall not include ‘‘reservations’’, as hereinafter defined;
(2) ‘‘reservations’’ means national forests,
tribal lands embraced within Indian reservations, military reservations, and other lands
and interests in lands owned by the United
States, and withdrawn, reserved, or withheld
from private appropriation and disposal under
the public land laws; also lands and interests
in lands acquired and held for any public purposes; but shall not include national monuments or national parks;
(3) ‘‘corporation’’ means any corporation,
joint-stock company, partnership, association,
business trust, organized group of persons,
whether incorporated or not, or a receiver or
receivers, trustee or trustees of any of the
foregoing. It shall not include ‘‘municipalities’’ as hereinafter defined;
(4) ‘‘person’’ means an individual or a corporation;
(5) ‘‘licensee’’ means any person, State, or
municipality licensed under the provisions of

§ 796

TITLE 16—CONSERVATION

section 797 of this title, and any assignee or
successor in interest thereof;
(6) ‘‘State’’ means a State admitted to the
Union, the District of Columbia, and any organized Territory of the United States;
(7) ‘‘municipality’’ means a city, county, irrigation district, drainage district, or other
political subdivision or agency of a State competent under the laws thereof to carry on the
business of developing, transmitting, utilizing,
or distributing power;
(8) ‘‘navigable waters’’ means those parts of
streams or other bodies of water over which
Congress has jurisdiction under its authority
to regulate commerce with foreign nations
and among the several States, and which either in their natural or improved condition
notwithstanding interruptions between the
navigable parts of such streams or waters by
falls, shallows, or rapids compelling land carriage, are used or suitable for use for the
transportation of persons or property in interstate or foreign commerce, including therein
all such interrupting falls, shallows, or rapids,
together with such other parts of streams as
shall have been authorized by Congress for improvement by the United States or shall have
been recommended to Congress for such improvement after investigation under its authority;
(9) ‘‘municipal purposes’’ means and includes
all purposes within municipal powers as defined by the constitution or laws of the State
or by the charter of the municipality;
(10) ‘‘Government dam’’ means a dam or
other work constructed or owned by the
United States for Government purposes with
or without contribution from others;
(11) ‘‘project’’ means complete unit of improvement or development, consisting of a
power house, all water conduits, all dams and
appurtenant works and structures (including
navigation structures) which are a part of said
unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected
primary transmission system, all miscellaneous structures used and useful in connection
with said unit or any part thereof, and all
water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and
occupancy of which are necessary or appropriate in the maintenance and operation of
such unit;
(12) ‘‘project works’’ means the physical
structures of a project;
(13) ‘‘net investment’’ in a project means the
actual legitimate original cost thereof as defined and interpreted in the ‘‘classification of
investment in road and equipment of steam
roads, issue of 1914, Interstate Commerce Commission’’, plus similar costs of additions thereto and betterments thereof, minus the sum of
the following items properly allocated thereto,
if and to the extent that such items have been
accumulated during the period of the license
from earnings in excess of a fair return on
such investment: (a) Unappropriated surplus,
(b) aggregate credit balances of current depre-

Page 1292

ciation accounts, and (c) aggregate appropriations of surplus or income held in amortization, sinking fund, or similar reserves, or expended for additions or betterments or used
for the purposes for which such reserves were
created. The term ‘‘cost’’ shall include, insofar
as applicable, the elements thereof prescribed
in said classification, but shall not include expenditures from funds obtained through donations by States, municipalities, individuals, or
others, and said classification of investment of
the Interstate Commerce Commission shall insofar as applicable be published and promulgated as a part of the rules and regulations of
the Commission;
(14) ‘‘Commission’’ and ‘‘Commissioner’’
means the Federal Power Commission, and a
member thereof, respectively;
(15) ‘‘State commission’’ means the regulatory body of the State or municipality having jurisdiction to regulate rates and charges
for the sale of electric energy to consumers
within the State or municipality;
(16) ‘‘security’’ means any note, stock, treasury stock, bond, debenture, or other evidence
of interest in or indebtedness of a corporation
subject to the provisions of this chapter;
(17)(A) ‘‘small power production facility’’
means a facility which is an eligible solar,
wind, waste, or geothermal facility, or a facility which—
(i) produces electric energy solely by the
use, as a primary energy source, of biomass,
waste, renewable resources, geothermal resources, or any combination thereof; and
(ii) has a power production capacity which,
together with any other facilities located at
the same site (as determined by the Commission), is not greater than 80 megawatts;
(B) ‘‘primary energy source’’ means the fuel
or fuels used for the generation of electric energy, except that such term does not include,
as determined under rules prescribed by the
Commission, in consultation with the Secretary of Energy—
(i) the minimum amounts of fuel required
for ignition, startup, testing, flame stabilization, and control uses, and
(ii) the minimum amounts of fuel required
to alleviate or prevent—
(I) unanticipated equipment outages, and
(II) emergencies, directly affecting the
public health, safety, or welfare, which
would result from electric power outages;
(C) ‘‘qualifying small power production facility’’ means a small power production facility
that the Commission determines, by rule,
meets such requirements (including requirements respecting fuel use, fuel efficiency, and
reliability) as the Commission may, by rule,
prescribe;
(D) ‘‘qualifying small power producer’’
means the owner or operator of a qualifying
small power production facility;
(E) ‘‘eligible solar, wind, waste or geothermal facility’’ means a facility which produces electric energy solely by the use, as a
primary energy source, of solar energy, wind
energy, waste resources or geothermal resources; but only if—

Page 1293

(i) either of the following is submitted to
the Commission not later than December 31,
1994:
(I) an application for certification of the
facility as a qualifying small power production facility; or
(II) notice that the facility meets the requirements for qualification; and
(ii) construction of such facility commences not later than December 31, 1999, or,
if not, reasonable diligence is exercised toward the completion of such facility taking
into account all factors relevant to construction of the facility.1
(18)(A) ‘‘cogeneration facility’’ means a facility which produces—
(i) electric energy, and
(ii) steam or forms of useful energy (such
as heat) which are used for industrial, commercial, heating, or cooling purposes;
(B) ‘‘qualifying cogeneration facility’’ means
a cogeneration facility that the Commission
determines, by rule, meets such requirements
(including requirements respecting minimum
size, fuel use, and fuel efficiency) as the Commission may, by rule, prescribe;
(C) ‘‘qualifying cogenerator’’ means the
owner or operator of a qualifying cogeneration
facility;
(19) ‘‘Federal power marketing agency’’
means any agency or instrumentality of the
United States (other than the Tennessee Valley Authority) which sells electric energy;
(20) ‘‘evidentiary hearings’’ and ‘‘evidentiary
proceeding’’ mean a proceeding conducted as
provided in sections 554, 556, and 557 of title 5;
(21) ‘‘State regulatory authority’’ has the
same meaning as the term ‘‘State commission’’, except that in the case of an electric
utility with respect to which the Tennessee
Valley Authority has ratemaking authority
(as defined in section 2602 of this title), such
term means the Tennessee Valley Authority;
(22) ELECTRIC UTILITY.—(A) The term ‘‘electric utility’’ means a person or Federal or
State agency (including an entity described in
section 824(f) of this title) that sells electric
energy.1
(B) The term ‘‘electric utility’’ includes the
Tennessee Valley Authority and each Federal
power marketing administration.1
(23)
TRANSMITTING
UTILITY.—The
term
‘‘transmitting utility’’ means an entity (including an entity described in section 824(f) of
this title) that owns, operates, or controls facilities used for the transmission of electric
energy—
(A) in interstate commerce;
(B) for the sale of electric energy at wholesale.1
(24) WHOLESALE TRANSMISSION SERVICES.—
The term ‘‘wholesale transmission services’’
means the transmission of electric energy
sold, or to be sold, at wholesale in interstate
commerce.1
(25) EXEMPT WHOLESALE GENERATOR.—The
term ‘‘exempt wholesale generator’’ shall have

the meaning provided by section 79z–5a 2 of
title 15.1
(26) ELECTRIC COOPERATIVE.—The term ‘‘electric cooperative’’ means a cooperatively
owned electric utility.1
(27) RTO.—The term ‘‘Regional Transmission Organization’’ or ‘‘RTO’’ means an entity of sufficient regional scope approved by
the Commission—
(A) to exercise operational or functional
control of facilities used for the transmission of electric energy in interstate commerce; and
(B) to ensure nondiscriminatory access to
the facilities.1
(28) ISO.—The term ‘‘Independent System
Operator’’ or ‘‘ISO’’ means an entity approved
by the Commission—
(A) to exercise operational or functional
control of facilities used for the transmission of electric energy in interstate commerce; and
(B) to ensure nondiscriminatory access to
the facilities.3
(29) TRANSMISSION ORGANIZATION.—The term
‘‘Transmission Organization’’ means a Regional Transmission Organization, Independent System Operator, independent transmission provider, or other transmission organization finally approved by the Commission
for the operation of transmission facilities.
(June 10, 1920, ch. 285, pt. I, § 3, 41 Stat. 1063; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 201, 212, 49 Stat. 838, 847; Pub. L.
95–617, title II, § 201, Nov. 9, 1978, 92 Stat. 3134;
Pub. L. 96–294, title VI, § 643(a)(1), June 30, 1980,
94 Stat. 770; Pub. L. 101–575, § 3, Nov. 15, 1990, 104
Stat. 2834; Pub. L. 102–46, May 17, 1991, 105 Stat.
249; Pub. L. 102–486, title VII, § 726, Oct. 24, 1992,
106 Stat. 2921; Pub. L. 109–58, title XII, §§ 1253(b),
1291(b), Aug. 8, 2005, 119 Stat. 970, 984.)
REFERENCES IN TEXT
Section 79z–5a of title 15, referred to in par. (25), was
repealed by Pub. L. 109–58, title XII, § 1263, Aug. 8, 2005,
119 Stat. 974.
AMENDMENTS
2005—Par. (17)(C). Pub. L. 109–58, § 1253(b)(1), amended
subpar. (C) generally. Prior to amendment, subpar. (C)
read as follows: ‘‘ ‘qualifying small power production
facility’ means a small power production facility—
‘‘(i) which the Commission determines, by rule,
meets such requirements (including requirements respecting fuel use, fuel efficiency, and reliability) as
the Commission may, by rule, prescribe; and
‘‘(ii) which is owned by a person not primarily engaged in the generation or sale of electric power
(other than electric power solely from cogeneration
facilities or small power production facilities);’’.
Par. (18)(B). Pub. L. 109–58, § 1253(b)(2), amended subpar. (B) generally. Prior to amendment, subpar. (B)
read as follows: ‘‘ ‘qualifying cogeneration facility’
means a cogeneration facility which—
‘‘(i) the Commission determines, by rule, meets
such requirements (including requirements respecting minimum size, fuel use, and fuel efficiency) as the
Commission may, by rule, prescribe; and
‘‘(ii) is owned by a person not primarily engaged in
the generation or sale of electric power (other than
2 See

1 So

§ 796

TITLE 16—CONSERVATION

in original. The period probably should be a semicolon.

3 So

References in Text note below.
in original. The period probably should be ‘‘; and’’.

§ 797

TITLE 16—CONSERVATION

electric power solely from cogeneration facilities or
small power production facilities);’’.
Pars. (22), (23). Pub. L. 109–58, § 1291(b)(1), added pars.
(22) and (23) and struck out former pars. (22) and (23)
which read as follows:
‘‘(22) ‘electric utility’ means any person or State
agency (including any municipality) which sells electric energy; such term includes the Tennessee Valley
Authority, but does not include any Federal power
marketing agency.
‘‘(23) TRANSMITTING UTILITY.—The term ‘transmitting
utility’ means any electric utility, qualifying cogeneration facility, qualifying small power production facility, or Federal power marketing agency which owns or
operates electric power transmission facilities which
are used for the sale of electric energy at wholesale.’’
Pars. (26) to (29). Pub. L. 109–58, § 1291(b)(2), added
pars. (26) to (29).
1992—Par. (22). Pub. L. 102–486, § 726(b), inserted ‘‘(including any municipality)’’ after ‘‘State agency’’.
Pars. (23) to (25). Pub. L. 102–486, § 726(a), added pars.
(23) to (25).
1991—Par. (17)(E). Pub. L. 102–46 struck out ‘‘, and
which would otherwise not qualify as a small power
production facility because of the power production capacity limitation contained in subparagraph (A)(ii)’’
after ‘‘geothermal resources’’ in introductory provisions.
1990—Par. (17)(A). Pub. L. 101–575, § 3(a), inserted ‘‘a
facility which is an eligible solar, wind, waste, or geothermal facility, or’’.
Par. (17)(E). Pub. L. 101–575, § 3(b), added subpar. (E).
1980—Par. (17)(A)(i). Pub. L. 96–294 added applicability
to geothermal resources.
1978—Pars. (17) to (22). Pub. L. 95–617 added pars. (17)
to (22).
1935—Act Aug. 26, 1935, § 201, amended definitions of
‘‘reservations’’ and ‘‘corporations’’, and inserted definitions of ‘‘person’’, ‘‘licensee’’, ‘‘commission’’, ‘‘commissioner’’, ‘‘State commission’’ and ‘‘security’’.
FERC REGULATIONS
Section 4 of Pub. L. 101–575 provided that: ‘‘Unless the
Federal Energy Regulatory Commission otherwise
specifies, by rule after enactment of this Act [Nov. 15,
1990], any eligible solar, wind, waste, or geothermal facility (as defined in section 3(17)(E) of the Federal
Power Act as amended by this Act [16 U.S.C.
796(17)(E)]), which is a qualifying small power production facility (as defined in subparagraph (C) of section
3(17) of the Federal Power Act as amended by this
Act)—
‘‘(1) shall be considered a qualifying small power
production facility for purposes of part 292 of title 18,
Code of Federal Regulations, notwithstanding any
size limitations contained in such part, and
‘‘(2) shall not be subject to the size limitation contained in section 292.601(b) of such part.’’
STATE AUTHORITIES; CONSTRUCTION
Pub. L. 102–486, title VII, § 731, Oct. 24, 1992, 106 Stat.
2921, provided that: ‘‘Nothing in this title [enacting sections 824l, 824m, and 825o–1 of this title and former sections 79z–5a and 79z–5b of Title 15, Commerce and
Trade, and amending this section, sections 824, 824j,
824k, 825n, 825o, and 2621 of this title, and provisions
formerly set out as a note under former section 79k of
Title 15] or in any amendment made by this title shall
be construed as affecting or intending to affect, or in
any way to interfere with, the authority of any State
or local government relating to environmental protection or the siting of facilities.’’
TERMINATION OF FEDERAL POWER COMMISSION;
TRANSFER OF FUNCTIONS
Federal Power Commission terminated and functions,
personnel, property, funds, etc., transferred to Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by

Page 1294

sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of Title
42, The Public Health and Welfare.
ABOLITION OF INTERSTATE COMMERCE COMMISSION AND
TRANSFER OF FUNCTIONS
Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise
provided in Pub. L. 104–88, to Surface Transportation
Board effective Jan. 1, 1996, by section 702 of Title 49,
Transportation, and section 101 of Pub. L. 104–88, set
out as a note under section 701 of Title 49. References
to Interstate Commerce Commission deemed to refer to
Surface Transportation Board, a member or employee
of the Board, or Secretary of Transportation, as appropriate, see section 205 of Pub. L. 104–88, set out as a
note under section 701 of Title 49.

§ 797. General powers of Commission
The Commission is authorized and empowered—
(a) Investigations and data
To make investigations and to collect and
record data concerning the utilization of the
water resources of any region to be developed,
the water-power industry and its relation to
other industries and to interstate or foreign
commerce, and concerning the location, capacity, development costs, and relation to markets
of power sites, and whether the power from Government dams can be advantageously used by
the United States for its public purposes, and
what is a fair value of such power, to the extent
the Commission may deem necessary or useful
for the purposes of this chapter.
(b) Statements as to investment of licensees in
projects; access to projects, maps, etc.
To determine the actual legitimate original
cost of and the net investment in a licensed
project, and to aid the Commission in such determinations, each licensee shall, upon oath,
within a reasonable period of time to be fixed by
the Commission, after the construction of the
original project or any addition thereto or betterment thereof, file with the Commission in
such detail as the Commission may require, a
statement in duplicate showing the actual legitimate original cost of construction of such
project addition, or betterment, and of the price
paid for water rights, rights-of-way, lands, or interest in lands. The licensee shall grant to the
Commission or to its duly authorized agent or
agents, at all reasonable times, free access to
such project, addition, or betterment, and to all
maps, profiles, contracts, reports of engineers,
accounts, books, records, and all other papers
and documents relating thereto. The statement
of actual legitimate original cost of said project,
and revisions thereof as determined by the Commission, shall be filed with the Secretary of the
Treasury.
(c) Cooperation with executive departments; information and aid furnished Commission
To cooperate with the executive departments
and other agencies of State or National Governments in such investigations; and for such purpose the several departments and agencies of the
National Government are authorized and directed upon the request of the Commission, to
furnish such records, papers, and information in
their possession as may be requested by the

Page 1295

TITLE 16—CONSERVATION

Commission, and temporarily to detail to the
Commission such officers or experts as may be
necessary in such investigations.
(d) Publication of information, etc.; reports to
Congress
To make public from time to time the information secured hereunder, and to provide for
the publication of its reports and investigations
in such form and manner as may be best adapted
for public information and use. The Commission,
on or before the 3d day of January of each year,
shall submit to Congress for the fiscal year preceding a classified report showing the permits
and licenses issued under this subchapter, and in
each case the parties thereto, the terms prescribed, and the moneys received if any, or account thereof.
(e) Issue of licenses for construction, etc., of
dams, conduits, reservoirs, etc.
To issue licenses to citizens of the United
States, or to any association of such citizens, or
to any corporation organized under the laws of
the United States or any State thereof, or to
any State or municipality for the purpose of
constructing, operating, and maintaining dams,
water conduits, reservoirs, power houses, transmission lines, or other project works necessary
or convenient for the development and improvement of navigation and for the development,
transmission, and utilization of power across,
along, from, or in any of the streams or other
bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, or upon any part of the public lands
and reservations of the United States (including
the Territories), or for the purpose of utilizing
the surplus water or water power from any Government dam, except as herein provided: Provided, That licenses shall be issued within any
reservation only after a finding by the Commission that the license will not interfere or be inconsistent with the purpose for which such reservation was created or acquired, and shall be
subject to and contain such conditions as the
Secretary of the department under whose supervision such reservation falls shall deem necessary for the adequate protection and utilization of such reservation: 1 The license applicant
and any party to the proceeding shall be entitled to a determination on the record, after opportunity for an agency trial-type hearing of no
more than 90 days, on any disputed issues of material fact with respect to such conditions. All
disputed issues of material fact raised by any
party shall be determined in a single trial-type
hearing to be conducted by the relevant resource agency in accordance with the regulations promulgated under this subsection and
within the time frame established by the Commission for each license proceeding. Within 90
days of August 8, 2005, the Secretaries of the Interior, Commerce, and Agriculture shall establish jointly, by rule, the procedures for such expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses, in consultation with the Federal
Energy Regulatory Commission.2 Provided fur1 So
2 So

in original. The colon probably should be a period.
in original. The period probably should be a colon.

§ 797

ther, That no license affecting the navigable capacity of any navigable waters of the United
States shall be issued until the plans of the dam
or other structures affecting the navigation
have been approved by the Chief of Engineers
and the Secretary of the Army. Whenever the
contemplated improvement is, in the judgment
of the Commission, desirable and justified in the
public interest for the purpose of improving or
developing a waterway or waterways for the use
or benefit of interstate or foreign commerce, a
finding to that effect shall be made by the Commission and shall become a part of the records
of the Commission: Provided further, That in
case the Commission shall find that any Government dam may be advantageously used by the
United States for public purposes in addition to
navigation, no license therefor shall be issued
until two years after it shall have reported to
Congress the facts and conditions relating thereto, except that this provision shall not apply to
any Government dam constructed prior to June
10, 1920: And provided further, That upon the filing of any application for a license which has
not been preceded by a preliminary permit
under subsection (f) of this section, notice shall
be given and published as required by the proviso of said subsection. In deciding whether to
issue any license under this subchapter for any
project, the Commission, in addition to the
power and development 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.
(f) Preliminary permits; notice of application
To issue preliminary permits for the purpose
of enabling applicants for a license hereunder to
secure the data and to perform the acts required
by section 802 of this title: Provided, however,
That upon the filing of any application for a preliminary permit by any person, association, or
corporation the Commission, before granting
such application, shall at once give notice of
such application in writing to any State or municipality likely to be interested in or affected
by such application; and shall also publish notice of such application once each week for four
weeks in a daily or weekly newspaper published
in the county or counties in which the project or
any part hereof or the lands affected thereby are
situated.
(g) Investigation of occupancy for developing
power; orders
Upon its own motion to order an investigation
of any occupancy of, or evidenced intention to
occupy, for the purpose of developing electric
power, public lands, reservations, or streams or
other bodies of water over which Congress has
jurisdiction under its authority to regulate commerce with foreign nations and among the several States by any person, corporation, State, or
municipality and to issue such order as it may
find appropriate, expedient, and in the public interest to conserve and utilize the navigation and
water-power resources of the region.

§ 797

TITLE 16—CONSERVATION

(June 10, 1920, ch. 285, pt. I, § 4, 41 Stat. 1065;
June 23, 1930, ch. 572, § 2, 46 Stat. 798; renumbered
pt. I and amended, Aug. 26, 1935, ch. 687, title II,
§§ 202, 212, 49 Stat. 839, 847; July 26, 1947, ch. 343,
title II, § 205(a), 61 Stat. 501; Pub. L. 97–375, title
II, § 212, Dec. 21, 1982, 96 Stat. 1826; Pub. L. 99–495,
§ 3(a), Oct. 16, 1986, 100 Stat. 1243; Pub. L. 109–58,
title II, § 241(a), Aug. 8, 2005, 119 Stat. 674.)
AMENDMENTS
2005—Subsec. (e). Pub. L. 109–58, which directed
amendment of subsec. (e) by inserting after ‘‘adequate
protection and utilization of such reservation.’’ at end
of first proviso ‘‘The license applicant and any party to
the proceeding shall be entitled to a determination on
the record, after opportunity for an agency trial-type
hearing of no more than 90 days, on any disputed issues
of material fact with respect to such conditions. All
disputed issues of material fact raised by any party
shall be determined in a single trial-type hearing to be
conducted by the relevant resource agency in accordance with the regulations promulgated under this subsection and within the time frame established by the
Commission for each license proceeding. Within 90 days
of August 8, 2005, the Secretaries of the Interior, Commerce, and Agriculture shall establish jointly, by rule,
the procedures for such expedited trial-type hearing,
including the opportunity to undertake discovery and
cross-examine witnesses, in consultation with the Federal Energy Regulatory Commission.’’, was executed by
making the insertion after ‘‘adequate protection and
utilization of such reservation:’’ at end of first proviso,
to reflect the probable intent of Congress.
1986—Subsec. (e). Pub. L. 99–495 inserted provisions
that in deciding whether to issue any license under this
subchapter, the Commission, in addition to power and
development purposes, is required to give equal consideration to purposes of energy conservation, the protection, mitigation of damage to, and enhancement of, fish
and wildlife, the protection of recreational opportunities, and the preservation of environmental quality.
1982—Subsec. (d). Pub. L. 97–375 struck out provision
that the report contain the names and show the compensation of the persons employed by the Commission.
1935—Subsec. (a). Act Aug. 26, 1935, § 202, struck out
last paragraph of subsec. (a) which related to statements of cost of construction, etc., and free access to
projects, maps, etc., and is now covered by subsec. (b).
Subsecs. (b), (c). Act Aug. 26, 1935, § 202, added subsec.
(b) and redesignated former subsecs. (b) and (c) as (c)
and (d), respectively.
Subsec. (d). Act Aug. 26, 1935, § 202, redesignated subsec. (c) as (d) and substituted ‘‘3d day of January’’ for
‘‘first Monday in December’’ in second sentence.
Former subsec. (d) redesignated (e).
Subsec. (e). Act Aug. 26, 1935, § 202, redesignated subsec. (d) as (e) and substituted ‘‘streams or other bodies
of water over which Congress has jurisdiction under its
authority to regulate commerce with foreign nations
and among the several States’’ for ‘‘navigable waters of
the United States’’ and ‘‘subsection (f)’’ for ‘‘subsection
(e)’’. Former subsec. (e) redesignated (f).
Subsec. (f). Act Aug. 26, 1935, § 202, redesignated subsec. (e) as (f) and substituted ‘‘once each week for four
weeks’’ for ‘‘for eight weeks’’. Former section (f), which
related to the power of the Commission to prescribe
regulations for the establishment of a system of accounts and the maintenance thereof, was struck out by
act Aug. 26, 1935.
Subsec. (g). Act Aug. 26, 1935, § 202, added subsec. (g).
Former subsec. (g), which related to the power of the
Commission to hold hearings and take testimony by
deposition, was struck out.
Subsec. (h). Act Aug. 26, 1935, § 202, struck out subsec.
(h) which related to the power of the Commission to
perform any and all acts necessary and proper for the
purpose of carrying out the provisions of this chapter.
1930—Subsec. (d). Act June 23, 1930, inserted sentence
respecting contents of report.

Page 1296
CHANGE OF NAME

Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.
EFFECTIVE DATE OF 1986 AMENDMENT
Section 18 of Pub. L. 99–495 provided that: ‘‘Except as
otherwise provided in this Act, the amendments made
by this Act [enacting section 823b of this title and
amending this section and sections 800, 802, 803, 807, 808,
817, 823a, 824a–3, and 824j of this title] shall take effect
with respect to each license, permit, or exemption issued under the Federal Power Act after the enactment
of this Act [Oct. 16, 1986]. The amendments made by
sections 6 and 12 of this Act [enacting section 823b of
this title and amending section 817 of this title] shall
apply to licenses, permits, and exemptions without regard to when issued.’’
SAVINGS PROVISION
Section 17(a) of Pub. L. 99–495 provided that: ‘‘Nothing in this Act [see Short Title of 1986 Amendment note
set out under section 791a of this title] 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—
‘‘(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 [Oct. 16, 1986]; or
‘‘(7) modify, supersede, or affect the Pacific Northwest Electric Power Planning and Conservation Act
[16 U.S.C. 839 et seq.].’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (d) of this section relating to submitting a
classified annual report to Congress showing permits
and licenses issued under this subchapter, see section
3003 of Pub. L. 104–66, as amended, set out as a note
under section 1113 of Title 31, Money and Finance, and
page 91 of House Document No. 103–7.
IMPROVEMENT AT EXISTING FEDERAL FACILITIES
Pub. L. 102–486, title XXIV, § 2404, Oct. 24, 1992, 106
Stat. 3097, as amended by Pub. L. 103–437, § 6(d)(37), Nov.
2, 1994, 108 Stat. 4585; Pub. L. 104–66, title I, § 1052(h),
Dec. 21, 1995, 109 Stat. 718, directed Secretary of the Interior and Secretary of the Army, in consultation with
Secretary of Energy, to perform reconnaissance level
studies, for each of the Nation’s principal river basins,
of cost effective opportunities to increase hydropower
production at existing federally-owned or operated
water regulation, storage, and conveyance facilities,
with such studies to be completed within 2 years after

Page 1297

§ 797c

TITLE 16—CONSERVATION

Oct. 24, 1992, and transmitted to Congress, further provided that in cases where such studies had been prepared by any agency of the United States and published
within ten years prior to Oct. 24, 1992, Secretary of the
Interior, or Secretary of the Army, could choose to rely
on information developed by prior studies rather than
conduct new studies, and further provided for appropriations for fiscal years 1993 to 1995.
WATER CONSERVATION AND ENERGY PRODUCTION
Pub. L. 102–486, title XXIV, § 2405, Oct. 24, 1992, 106
Stat. 3098, provided that:
‘‘(a) STUDIES.—The Secretary of the Interior, acting
pursuant to the Federal reclamation laws (Act of June
17, 1902, 32 Stat. 388) [see Short Title note under section
371 of Title 43, Public Lands], and Acts supplementary
thereto and amendatory thereof, is authorized and directed to conduct feasibility investigations of opportunities to increase the amount of hydroelectric energy
available for marketing by the Secretary from Federal
hydroelectric power generation facilities resulting
from a reduction in the consumptive use of such power
for Federal reclamation project purposes or as a result
of an increase in the amount of water available for such
generation because of water conservation efforts on
Federal reclamation projects or a combination thereof.
The Secretary of the Interior is further authorized and
directed to conduct feasibility investigations of opportunities to mitigate damages to or enhance fish and
wildlife as a result of increasing the amount of water
available for such purposes because of water conservation efforts on Federal reclamation projects. Such feasibility investigations shall include, but not be limited
to—
‘‘(1) an analysis of the technical, environmental,
and economic feasibility of reducing the amount of
water diverted upstream of such Federal hydroelectric power generation facilities by Federal reclamation projects;
‘‘(2) an estimate of the reduction, if any, of project
power consumed as a result of the decreased amount
of diversion;
‘‘(3) an estimate of the increase in the amount of
electrical energy and related revenues which would
result from the marketing of such power by the Secretary;
‘‘(4) an estimate of the fish and wildlife benefits
which would result from the decreased or modified diversions;
‘‘(5) a finding by the Secretary of the Interior that
the activities proposed in the feasibility study can be
carried out in accordance with applicable Federal and
State law, interstate compacts and the contractual
obligations of the Secretary; and
‘‘(6) a finding by the affected Federal Power Marketing Administrator that the hydroelectric component of the proposed water conservation feature is
cost-effective and that the affected Administrator is
able to market the hydro-electric power expected to
be generated.
‘‘(b) CONSULTATION.—In preparing feasibility studies
pursuant to this section, the Secretary of the Interior
shall consult with, and seek the recommendations of,
affected State, local and Indian tribal interests, and
shall provide for appropriate public comment.
‘‘(c) AUTHORIZATION.—There is hereby authorized to
be appropriated to the Secretary of the Interior such
sums as may be necessary to carry out this section.’’
PROJECTS ON FRESH WATERS IN STATE OF HAWAII
Pub. L. 102–486, title XXIV, § 2408, Oct. 24, 1992, 106
Stat. 3100, directed Federal Energy Regulatory Commission, in consultation with State of Hawaii, to carry
out study of hydroelectric licensing in State of Hawaii
for purposes of considering whether such licensing
should be transferred to State, and directed Commission to complete study and submit report containing
results of study to Congress within 18 months after Oct.
24, 1992.

§ 797a. Congressional authorization for permits,
licenses, leases, or authorizations for dams,
conduits, reservoirs, etc., within national
parks or monuments
On and after March 3, 1921, no permit, license,
lease, or authorization for dams, conduits, reservoirs, power houses, transmission lines, or
other works for storage or carriage of water, or
for the development, transmission, or utilization of power within the limits as constituted,
March 3, 1921, of any national park or national
monument shall be granted or made without
specific authority of Congress.
(Mar. 3, 1921, ch. 129, 41 Stat. 1353.)
CODIFICATION
Provisions repealing so much of this chapter ‘‘as authorizes licensing such uses of existing national parks
and national monuments by the Federal Power Commission’’ have been omitted.
Section was not enacted as part of the Federal Power
Act which generally comprises this chapter.
Section 212 of act Aug. 26, 1935, ch. 687, title II, 49
Stat. 847, provided that nothing in this chapter, as
amended should be construed to repeal or amend the
provisions of the act approved Mar. 3, 1921 (41 Stat.
1353) [16 U.S.C. 797a] or the provisions of any other Act
relating to national parks and national monuments.

§ 797b. Duty to keep Congress fully and currently
informed
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 [16 U.S.C. 791a
et seq.].
(Pub. L. 99–495, § 16, Oct. 16, 1986, 100 Stat. 1259.)
REFERENCES IN TEXT
The Federal Power Act, referred to in text, is act
June 10, 1920, ch. 285, 41 Stat. 1063, as amended. Part I
of the Federal Power Act is classified generally to this
subchapter (§ 791a et seq.). For complete classification
of this Act to the Code, see section 791a of this title and
Tables.
CODIFICATION
Section was enacted as part of the Electric Consumers Protection Act of 1986, and not as part of the Federal Power Act which generally comprises this chapter.
CHANGE OF NAME
Committee on Energy and Commerce of House of
Representatives treated as referring to Committee on
Commerce of House of Representatives by section 1(a)
of Pub. L. 104–14, set out as a note preceding section 21
of Title 2, The Congress. Committee on Commerce of
House of Representatives changed to Committee on Energy and Commerce of House of Representatives, and
jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representatives by House Resolution No. 5, One Hundred Seventh
Congress, Jan. 3, 2001.

§ 797c. Dams in National Park System units
After October 24, 1992, the Federal Energy Regulatory Commission may not issue an original
license under Part I of the Federal Power Act [16

§ 797d

TITLE 16—CONSERVATION

U.S.C. 791a et seq.] (nor an exemption from such
Part) for any new hydroelectric power project
located within the boundaries of any unit of the
National Park System that would have a direct
adverse effect on Federal lands within any such
unit. Nothing in this section shall be construed
as repealing any existing provision of law (or affecting any treaty) explicitly authorizing a
hydroelectric power project.
(Pub. L. 102–486, title XXIV, § 2402, Oct. 24, 1992,
106 Stat. 3097.)
REFERENCES IN TEXT
The Federal Power Act, referred to in text, is act
June 10, 1920, ch. 285, 41 Stat. 1063, as amended. Part I
of the Act is classified generally to this subchapter
(§ 791a et seq.). For complete classification of this Act
to the Code, see section 791a of this title and Tables.
CODIFICATION
Section was enacted as part of the Energy Policy Act
of 1992, and not as part of the Federal Power Act which
generally comprises this chapter.

§ 797d. Third party contracting by FERC
(a) Environmental impact statements
Where the Federal Energy Regulatory Commission is required to prepare a draft or final
environmental impact statement under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 and following) in connection with an
application for a license under part I of the Federal Power Act [16 U.S.C. 791a et seq.], the Commission may permit, at the election of the applicant, a contractor, consultant or other person
funded by the applicant and chosen by the Commission from among a list of such individuals or
companies determined by the Commission to be
qualified to do such work, to prepare such statement for the Commission. The contractor shall
execute a disclosure statement prepared by the
Commission specifying that it has no financial
or other interest in the outcome of the project.
The Commission shall establish the scope of
work and procedures to assure that the contractor, consultant or other person has no financial
or other potential conflict of interest in the outcome of the proceeding. Nothing herein shall affect the Commission’s responsibility to comply
with the National Environmental Policy Act of
1969.
(b) Environmental assessments
Where an environmental assessment is required under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 and following) in connection with an application for a license under
part I of the Federal Power Act [16 U.S.C. 791a
et seq.], the Commission may permit an applicant, or a contractor, consultant or other person
selected by the applicant, to prepare such environmental assessment. The Commission shall
institute procedures, including pre-application
consultations, to advise potential applicants of
studies or other information foreseeably required by the Commission. The Commission may
allow the filing of such applicant-prepared environmental assessments as part of the application. Nothing herein shall affect the Commission’s responsibility to comply with the National Environmental Policy Act of 1969.

Page 1298

(c) Effective date
This section shall take effect with respect to
license applications filed after October 24, 1992.
(Pub. L. 102–486, title XXIV, § 2403, Oct. 24, 1992,
106 Stat. 3097.)
REFERENCES IN TEXT
The National Environmental Policy Act of 1969, referred to in subsecs. (a) and (b), is Pub. L. 91–190, Jan.
1, 1970, 83 Stat. 852, as amended, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of
this Act to the Code, see Short Title note set out under
section 4321 of Title 42 and Tables.
The Federal Power Act, referred to in subsecs. (a) and
(b), is act June 10, 1920, ch. 285, 41 Stat. 1063, as amended. Part I of the Act is classified generally to this subchapter (§ 791a et seq.). For complete classification of
this Act to the Code, see section 791a of this title and
Tables.
CODIFICATION
Section was enacted as part of the Energy Policy Act
of 1992, and not as part of the Federal Power Act which
generally comprises this chapter.

§ 798. Purpose and scope of preliminary permits;
transfer and cancellation
Each preliminary permit issued under this
subchapter shall be for the sole purpose of maintaining priority of application for a license
under the terms of this chapter for such period
or periods, not exceeding a total of three years,
as in the discretion of the Commission may be
necessary for making examinations and surveys,
for preparing maps, plans, specifications, and estimates, and for making financial arrangements.
Each such permit shall set forth the conditions
under which priority shall be maintained. Such
permits shall not be transferable, and may be
canceled by order of the Commission upon failure of permittees to comply with the conditions
thereof or for other good cause shown after notice and opportunity for hearing.
(June 10, 1920, ch. 285, pt. I, § 5, 41 Stat. 1067; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 203, 212, 49 Stat. 841, 847.)
AMENDMENTS
1935—Act Aug. 26, 1935, § 203, amended section generally, striking out ‘‘and a license issued’’ at end of second sentence and inserting ‘‘or for other good cause
shown after notice and opportunity for hearing’’ in last
sentence.

§ 799. License; duration, conditions, revocation,
alteration, or surrender
Licenses under this subchapter shall be issued
for a period not exceeding fifty years. Each such
license shall be conditioned upon acceptance by
the licensee of all of the terms and conditions of
this chapter and such further conditions, if any,
as the Commission shall prescribe in conformity
with this chapter, which said terms and conditions and the acceptance thereof shall be expressed in said license. Licenses may be revoked
only for the reasons and in the manner prescribed under the provisions of this chapter, and
may be altered or surrendered only upon mutual
agreement between the licensee and the Commission after thirty days’ public notice.

Page 1299

§ 802

TITLE 16—CONSERVATION

(June 10, 1920, ch. 285, pt. I, § 6, 41 Stat. 1067; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 204, 212, 49 Stat. 841, 847; Pub. L.
104–106, div. D, title XLIII, § 4321(i)(6), Feb. 10,
1996, 110 Stat. 676; Pub. L. 104–316, title I, § 108(a),
Oct. 19, 1996, 110 Stat. 3832; Pub. L. 105–192, § 2,
July 14, 1998, 112 Stat. 625.)
AMENDMENTS
1998—Pub. L. 105–192 inserted at end ‘‘Licenses may be
revoked only for the reasons and in the manner prescribed under the provisions of this chapter, and may
be altered or surrendered only upon mutual agreement
between the licensee and the Commission after thirty
days’ public notice.’’
1996—Pub. L. 104–316 struck out at end ‘‘Licenses may
be revoked only for the reasons and in the manner prescribed under the provisions of this chapter, and may
be altered or surrendered only upon mutual agreement
between the licensee and the Commission after thirty
days’ public notice.’’
Pub. L. 104–106 struck out at end ‘‘Copies of all licenses issued under the provisions of this subchapter
and calling for the payment of annual charges shall be
deposited with the General Accounting Office, in compliance with section 20 of title 41.’’
1935—Act Aug. 26, 1935, § 204, amended section generally, substituting ‘‘thirty days’’ for ‘‘ninety days’’ in
third sentence and inserting last sentence.
EFFECTIVE DATE OF 1996 AMENDMENT
For effective date and applicability of amendment by
Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set
out as a note under section 2302 of Title 10, Armed
Forces.

§ 800. Issuance of preliminary permits or licenses
(a) Preference
In issuing preliminary permits hereunder or
original licenses where no preliminary permit
has been issued, the Commission shall give preference to applications therefor by States and
municipalities, provided the plans for the same
are deemed by the Commission equally well
adapted, or shall within a reasonable time to be
fixed by the Commission be made equally well
adapted, to conserve and utilize in the public interest the water resources of the region; and as
between other applicants, the Commission may
give preference to the applicant the plans of
which it finds and determines are best adapted
to develop, conserve, and utilize in the public interest the water resources of the region, if it be
satisfied as to the ability of the applicant to
carry out such plans.
(b) Development of water resources by United
States; reports
Whenever, in the judgment of the Commission,
the development of any water resources for public purposes should be undertaken by the United
States itself, the Commission shall not approve
any application for any project affecting such
development, but shall cause to be made such
examinations, surveys, reports, plans, and estimates of the cost of the proposed development
as it may find necessary, and shall submit its
findings to Congress with such recommendations as it may find appropriate concerning such
development.
(c) Assumption of project by United States after
expiration of license
Whenever, after notice and opportunity for
hearing, the Commission determines that the

United States should exercise its right upon or
after the expiration of any license to take over
any project or projects for public purposes, the
Commission shall not issue a new license to the
original licensee or to a new licensee but shall
submit its recommendation to Congress together with such information as it may consider
appropriate.
(June 10, 1920, ch. 285, pt. I, § 7, 41 Stat. 1067; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 205, 212, 49 Stat. 842, 847; Pub. L.
90–451, § 1, Aug. 3, 1968, 82 Stat. 616; Pub. L.
99–495, § 2, Oct. 16, 1986, 100 Stat. 1243.)
CODIFICATION
Additional provisions in the section as enacted by act
June 10, 1920, directing the commission to investigate
the cost and economic value of the power plant outlined in project numbered 3, House Document numbered 1400, Sixty-second Congress, third session, and
also in connection with such project to submit plans
and estimates of cost necessary to secure an increased
water supply for the District of Columbia, have been
omitted as temporary and executed.
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–495 inserted ‘‘original’’
after ‘‘hereunder or’’ and substituted ‘‘issued,’’ for ‘‘issued and in issuing licenses to new licensees under section 808 of this title’’.
1968—Subsec. (c). Pub. L. 90–451 added subsec. (c).
1935—Act Aug. 26, 1935, § 205, amended section generally, striking out ‘‘navigation and’’ before ‘‘water resources’’ wherever appearing, and designating paragraphs as subsecs. (a) and (b).
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–495 effective with respect
to each license, permit, or exemption issued under this
chapter after Oct. 16, 1986, see section 18 of Pub. L.
99–495, set out as a note under section 797 of this title.

§ 801. Transfer of license; obligations of transferee
No voluntary transfer of any license, or of the
rights thereunder granted, shall be made without the written approval of the commission; and
any successor or assign of the rights of such licensee, whether by voluntary transfer, judicial
sale, foreclosure sale, or otherwise, shall be subject to all the conditions of the license under
which such rights are held by such licensee and
also subject to all the provisions and conditions
of this chapter to the same extent as though
such successor or assign were the original licensee under this chapter: Provided, That a
mortgage or trust deed or judicial sales made
thereunder or under tax sales shall not be
deemed voluntary transfers within the meaning
of this section.
(June 10, 1920, ch. 285, pt. I, § 8, 41 Stat. 1068; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 802. Information to accompany application for
license; landowner notification
(a) Each applicant for a license under this
chapter shall submit to the commission—
(1) Such maps, plans, specifications, and estimates of cost as may be required for a full understanding of the proposed project. Such maps,
plans, and specifications when approved by the

§ 803

TITLE 16—CONSERVATION

commission shall be made a part of the license;
and thereafter no change shall be made in said
maps, plans, or specifications until such changes
shall have been approved and made a part of
such license by the commission.
(2) Satisfactory evidence that the applicant
has complied with the requirements of the laws
of the State or States within which the proposed
project is to be located with respect to bed and
banks and to the appropriation, diversion, and
use of water for power purposes and with respect
to the right to engage in the business of developing, transmitting and distributing power, and in
any other business necessary to effect the purposes of a license under this chapter.
(3) 1 Such additional information as the commission may require.
(b) Upon the filing of any application for a license (other than a license under section 808 of
this title) 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.
(June 10, 1920, ch. 285, pt. I, § 9, 41 Stat. 1068; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; Pub. L. 99–495, § 14, Oct. 16,
1986, 100 Stat. 1257.)
CODIFICATION
Former subsec. (c), included in the provisions designated as subsec. (a) by Pub. L. 99–495, has been editorially redesignated as par. (3) of subsec. (a) as the
probable intent of Congress.
AMENDMENTS
1986—Pub. L. 99–495 designated existing provisions as
subsec. (a), redesignated former subsecs. (a) and (b) as
pars. (1) and (2) of subsec. (a), and added subsec. (b).
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–495 effective with respect
to each license, permit, or exemption issued under this
chapter after Oct. 16, 1986, see section 18 of Pub. L.
99–495, set out as a note under section 797 of this title.

§ 803. Conditions of license generally
All licenses issued under this subchapter shall
be on the following conditions:
(a) Modification of plans; factors considered to
secure adaptability of project; recommendations for proposed terms and conditions
(1) That the project adopted, including the
maps, plans, and specifications, shall be such as
in the judgment of the Commission will be best
adapted to a comprehensive plan for improving
or developing a waterway or waterways for the
use or benefit of interstate or foreign commerce,
for the improvement and utilization of waterpower development, for the adequate protection,
mitigation, and enhancement of fish and wildlife
(including related spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood control, water supply, and
recreational and other purposes referred to in
1 See

Codification note below.

Page 1300

section 797(e) of this title 1 if necessary in order
to secure such plan the Commission shall have
authority to require the modification of any
project and of the plans and specifications of the
project works before approval.
(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 Commission 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.
(b) Alterations in project works
That except when emergency shall require for
the protection of navigation, life, health, or
property, no substantial alteration or addition
not in conformity with the approved plans shall
be made to any dam or other project works constructed hereunder of an installed capacity in
excess of two thousand horsepower without the
prior approval of the Commission; and any
emergency alteration or addition so made shall
thereafter be subject to such modification and
change as the Commission may direct.
(c) Maintenance and repair of project works; liability of licensee for damages
That the licensee shall maintain the project
works in a condition of repair adequate for the
purposes of navigation and for the efficient operation of said works in the development and
transmission of power, shall make all necessary
renewals and replacements, shall establish and
1 So

in original. Probably should be followed by ‘‘; and’’.

Page 1301

TITLE 16—CONSERVATION

maintain adequate depreciation reserves for
such purposes, shall so maintain, and operate
said works as not to impair navigation, and
shall conform to such rules and regulations as
the Commission may from time to time prescribe for the protection of life, health, and
property. Each licensee hereunder shall be liable
for all damages occasioned to the property of
others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed
under the license and in no event shall the
United States be liable therefor.
(d) Amortization reserves
That after the first twenty years of operation,
out of surplus earned thereafter, if any, accumulated in excess of a specified reasonable rate of
return upon the net investment of a licensee in
any project or projects under license, the licensee shall establish and maintain amortization reserves, which reserves shall, in the discretion of the Commission, be held until the termination of the license or be applied from time to
time in reduction of the net investment. Such
specified rate of return and the proportion of
such surplus earnings to be paid into and held in
such reserves shall be set forth in the license.
For any new license issued under section 808 of
this title, the amortization reserves under this
subsection shall be maintained on and after the
effective date of such new license.
(e) Annual charges payable by licensees; maximum rates; application; review and report to
Congress
(1) That the licensee shall pay to the United
States reasonable annual charges in an amount
to be fixed by the Commission for the purpose of
reimbursing the United States for the costs of
the administration of this subchapter, including
any reasonable and necessary costs incurred by
Federal and State fish and wildlife agencies and
other natural and cultural resource agencies in
connection with studies or other reviews carried
out by such agencies for purposes of administering their responsibilities under this subchapter;
for recompensing it for the use, occupancy, and
enjoyment of its lands or other property; and for
the expropriation to the Government of excessive profits until the respective States shall
make provision for preventing excessive profits
or for the expropriation thereof to themselves,
or until the period of amortization as herein
provided is reached, and in fixing such charges
the Commission shall seek to avoid increasing
the price to the consumers of power by such
charges, and any such charges may be adjusted
from time to time by the Commission as conditions may require: Provided, That, subject to annual appropriations Acts, the portion of such annual charges imposed by the Commission under
this subsection to cover the reasonable and necessary costs of such agencies shall be available
to such agencies (in addition to other funds appropriated for such purposes) solely for carrying
out such studies and reviews and shall remain
available until expended: Provided, That when licenses are issued involving the use of Government dams or other structures owned by the
United States or tribal lands embraced within
Indian reservations the Commission shall, sub-

§ 803

ject to the approval of the Secretary of the Interior in the case of such dams or structures in
reclamation projects and, in the case of such
tribal lands, subject to the approval of the Indian tribe having jurisdiction of such lands as
provided in section 476 of title 25, fix a reasonable annual charge for the use thereof, and such
charges may with like approval be readjusted by
the Commission at the end of twenty years after
the project is available for service and at periods
of not less than ten years thereafter upon notice
and opportunity for hearing: Provided further,
That licenses for the development, transmission,
or distribution of power by States or municipalities shall be issued and enjoyed without charge
to the extent such power is sold to the public
without profit or is used by such State or municipality for State or municipal purposes, except that as to projects constructed or to be constructed by States or municipalities primarily
designed to provide or improve navigation, licenses therefor shall be issued without charge;
and that licenses for the development, transmission, or distribution of power for domestic,
mining, or other beneficial use in projects of not
more than two thousand horsepower installed
capacity may be issued without charge, except
on tribal lands within Indian reservations; but
in no case shall a license be issued free of charge
for the development and utilization of power
created by any Government dam and that the
amount charged therefor in any license shall be
such as determined by the Commission: Provided
however, That no charge shall be assessed for the
use of any Government dam or structure by any
licensee if, before January 1, 1985, the Secretary
of the Interior has entered into a contract with
such licensee that meets each of the following
requirements:
(A) The contract covers one or more projects
for which a license was issued by the Commission before January 1, 1985.
(B) The contract contains provisions specifically providing each of the following:
(i) A powerplant may be built by the licensee utilizing irrigation facilities constructed by the United States.
(ii) The powerplant shall remain in the exclusive control, possession, and ownership of
the licensee concerned.
(iii) All revenue from the powerplant and
from the use, sale, or disposal of electric energy from the powerplant shall be, and remain, the property of such licensee.
(C) The contract is an amendatory, supplemental and replacement contract between the
United States and: (i) the Quincy-Columbia
Basin Irrigation District (Contract No.
14–06–100–6418); (ii) the East Columbia Basin Irrigation District (Contract No. 14–06–100–6419);
or, (iii) the South Columbia Basin Irrigation
District (Contract No. 14–06–100–6420).
This paragraph shall apply to any project covered by a contract referred to in this paragraph
only during the term of such contract unless
otherwise provided by subsequent Act of Congress. In the event an overpayment of any
charge due under this section shall be made by
a licensee, the Commission is authorized to
allow a credit for such overpayment when
charges are due for any subsequent period.

§ 803

TITLE 16—CONSERVATION

(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, 11⁄2 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)
of this section, 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 October 16, 1986;
and
(B) all licenses issued before October 16, 1986,
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.
(f) Reimbursement by licensee of other licensees,
etc.
That whenever any licensee hereunder is directly benefited by the construction work of another licensee, a permittee, or of the United
States of a storage reservoir or other headwater
improvement, the Commission shall require as a
condition of the license that the licensee so benefited shall reimburse the owner of such reservoir or other improvements for such part of
the annual charges for interest, maintenance,
and depreciation thereon as the Commission
may deem equitable. The proportion of such
charges to be paid by any licensee shall be determined by the Commission. The licensees or permittees affected shall pay to the United States
the cost of making such determination as fixed
by the Commission.
Whenever such reservoir or other improvement is constructed by the United States the
Commission shall assess similar charges against
any licensee directly benefited thereby, and any
amount so assessed shall be paid into the Treasury of the United States, to be reserved and appropriated as a part of the special fund for headwater improvements as provided in section 810
of this title.
Whenever any power project not under license
is benefited by the construction work of a licensee or permittee, the United States or any
agency thereof, the Commission, after notice to
the owner or owners of such unlicensed project,
shall determine and fix a reasonable and equitable annual charge to be paid to the licensee or
permittee on account of such benefits, or to the
United States if it be the owner of such headwater improvement.

Page 1302

(g) Conditions in discretion of commission
Such other conditions not inconsistent with
the provisions of this chapter as the commission
may require.
(h) Monopolistic combinations; prevention or
minimization of anticompetitive conduct; action by Commission regarding license and
operation and maintenance of project
(1) Combinations, agreements, arrangements,
or understandings, express or implied, to limit
the output of electrical energy, to restrain
trade, or to fix, maintain, or increase prices for
electrical energy or service are hereby prohibited.
(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 subchapter II of this chapter) 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 808 of this title.
(i) Waiver of conditions
In issuing licenses for a minor part only of a
complete project, or for a complete project of
not more than two thousand horsepower installed capacity, the Commission may in its discretion waive such conditions, provisions, and
requirements of this subchapter, except the license period of fifty years, as it may deem to be
to the public interest to waive under the circumstances: Provided, That the provisions hereof
shall not apply to annual charges for use of
lands within Indian reservations.
(j) Fish and wildlife protection, mitigation and
enhancement; consideration of recommendations; findings
(1) That in order to adequately and equitably
protect, mitigate damages to, and enhance, fish
and wildlife (including related spawning grounds
and habitat) affected by the development, operation, and management of the project, each license issued under this subchapter 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.
(2) Whenever the Commission believes that
any recommendation referred to in paragraph (1)
may be inconsistent with the purposes and requirements of this subchapter 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 statu-

Page 1303

§ 804

TITLE 16—CONSERVATION

tory 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 subchapter 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) of this section shall not apply to
the conditions required under this subsection.
(June 10, 1920, ch. 285, pt. I, § 10, 41 Stat. 1068; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 206, 212, 49 Stat. 842, 847; Pub. L.
87–647, Sept. 7, 1962, 76 Stat. 447; Pub. L. 90–451,
§ 4, Aug. 3, 1968, 82 Stat. 617; Pub. L. 99–495,
§§ 3(b), (c), 9(a), 13, Oct. 16, 1986, 100 Stat. 1243,
1244, 1252, 1257; Pub. L. 99–546, title IV, § 401, Oct.
27, 1986, 100 Stat. 3056; Pub. L. 102–486, title XVII,
§ 1701(a), Oct. 24, 1992, 106 Stat. 3008.)
REFERENCES IN TEXT
The Fish and Wildlife Coordination Act, referred to
in subsec. (j)(1), is act Mar. 10, 1934, ch. 55, 48 Stat. 401,
as amended, which is classified generally to sections
661 to 666c of this title. For complete classification of
this Act to the Code, see Short Title note set out under
section 661 of this title and Tables.
AMENDMENTS
1992—Subsec. (e)(1). Pub. L. 102–486, in introductory
provisions, substituted ‘‘administration of this subchapter, including any reasonable and necessary costs
incurred by Federal and State fish and wildlife agencies
and other natural and cultural resource agencies in
connection with studies or other reviews carried out by
such agencies for purposes of administering their responsibilities under this subchapter;’’ for ‘‘administration of this subchapter;’’ and inserted ‘‘Provided, That,
subject to annual appropriations Acts, the portion of
such annual charges imposed by the Commission under
this subsection to cover the reasonable and necessary
costs of such agencies shall be available to such agencies (in addition to other funds appropriated for such
purposes) solely for carrying out such studies and reviews and shall remain available until expended:’’ after
‘‘as conditions may require:’’.
1986—Subsec. (a). Pub. L. 99–495, § 3(b), designated existing provisions as par. (1), inserted ‘‘for the adequate
protection, mitigation, and enhancement of fish and
wildlife (including related spawning grounds and habitat),’’ after ‘‘water-power development’’, inserted ‘‘irrigation, flood control, water supply, and’’ after ‘‘including’’, which words were inserted after ‘‘public uses, including’’ as the probable intent of Congress, substituted ‘‘and other purposes referred to in section
797(e) of this title’’ for ‘‘purposes; and’’, and added pars.
(2) and (3).
Subsec. (e). Pub. L. 99–546 inserted proviso that no
charge be assessed for use of Government dam or structure by licensee if, before Jan. 1, 1985, licensee and Secretary entered into contract which met requirements of
date of license, powerplant construction, ownership,
and revenue, etc.
Pub. L. 99–495, § 9(a), designated existing provisions as
par. (1) and added pars. (2) to (4).
Subsec. (h). Pub. L. 99–495, § 13, designated existing
provisions as par. (1) and added par. (2).
Subsec. (j). Pub. L. 99–495, § 3(c), added subsec. (j).
1968—Subsec. (d). Pub. L. 90–451 provided for maintenance of amortization reserves on and after effective
date of new licenses.

1962—Subsecs. (b), (e), (i). Pub. L. 87–647 substituted
‘‘two thousand horsepower’’ for ‘‘one hundred horsepower’’.
1935—Subsec. (a). Act Aug. 26, 1935, § 206, substituted
‘‘plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of waterpower development, and for other beneficial uses, including recreational purposes’’ for ‘‘scheme of improvement and utilization for the purposes of navigation, of
water-power development, and of other beneficial public uses,’’ and ‘‘such plan’’ for ‘‘such scheme’’.
Subsec. (b). Act Aug. 26, 1935, § 206, inserted ‘‘installed’’ before ‘‘capacity’’.
Subsec. (d). Act Aug. 26, 1935, § 206, substituted ‘‘net
investment’’ for ‘‘actual, legitimate investment’’.
Subsec. (e). Act Aug. 26, 1935, § 206, amended subsec.
(e) generally.
Subsec. (f). Act Aug. 26, 1935, § 206, inserted last sentence to first par., and inserted last par.
Subsec. (i). Act Aug. 26, 1935, § 206, inserted ‘‘installed’’ before ‘‘capacity’’, and ‘‘annual charges for use
of’’ before ‘‘lands’’ in proviso.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–495 effective with respect
to each license, permit, or exemption issued under this
chapter after Oct. 16, 1986, see section 18 of Pub. L.
99–495, set out as a note under section 797 of this title.
SAVINGS PROVISION
Section 9(b) of Pub. L. 99–495 provided that: ‘‘Nothing
in this Act [see Short Title of 1986 Amendment note set
out under section 791a of this title] shall affect any annual charge to be paid pursuant to section 10(e) of the
Federal Power Act [16 U.S.C. 803(e)] to Indian tribes for
the use of their lands within Indian reservations.’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (e)(4) of this section relating to reporting
recommendations to Congress every 5 years, see section
3003 of Pub. L. 104–66, as amended, set out as a note
under section 1113 of Title 31, Money and Finance, and
page 91 of House Document No. 103–7.

§ 804. Project works affecting navigable waters;
requirements insertable in license
If the dam or other project works are to be
constructed across, along, or in any of the navigable waters of the United States, the commission may, insofar as it deems the same reasonably necessary to promote the present and future needs of navigation and consistent with a
reasonable investment cost to the licensee, include in the license any one or more of the following provisions or requirements:
(a) That such licensee shall, to the extent necessary to preserve and improve navigation facilities, construct, in whole or in part, without
expense to the United States, in connection with
such dam, a lock or locks, booms, sluices, or
other structures for navigation purposes, in accordance with plans and specifications approved
by the Chief of Engineers and the Secretary of
the Army and made part of such license.
(b) That in case such structures for navigation
purposes are not made a part of the original construction at the expense of the licensee, then
whenever the United States shall desire to complete such navigation facilities the licensee
shall convey to the United States, free of cost,
such of its land and its rights-of-way and such
right of passage through its dams or other structures, and permit such control of pools as may

§ 805

TITLE 16—CONSERVATION

be required to complete such navigation facilities.
(c) That such licensee shall furnish free of cost
to the United States power for the operation of
such navigation facilities, whether constructed
by the licensee or by the United States.
(June 10, 1920, ch. 285, pt. I, § 11, 41 Stat. 1070; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; July 26, 1947, ch. 343, title II,
§ 205(a), 61 Stat. 501.)
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.

§ 805. Participation by Government in costs of
locks, etc.
Whenever application is filed for a project
hereunder involving navigable waters of the
United States, and the commission shall find
upon investigation that the needs of navigation
require the construction of a lock or locks or
other navigation structures, and that such
structures cannot, consistent with a reasonable
investment cost to the applicant, be provided in
the manner specified in subsection (a) of section
804 of this title, the commission may grant the
application with the provision to be expressed in
the license that the licensee will install the necessary navigation structures if the Government
fails to make provision therefor within a time to
be fixed in the license and cause a report upon
such project to be prepared, with estimates of
cost of the power development and of the navigation structures, and shall submit such report
to Congress with such recommendations as it
deems appropriate concerning the participation
of the United States in the cost of construction
of such navigation structures.
(June 10, 1920, ch. 285, pt. I, § 12, 41 Stat. 1070; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 806. Time limit for construction of project
works; extension of time; termination or revocation of licenses for delay
The licensee shall commence the construction
of the project works within the time fixed in the
license, which shall not be more than two years
from the date thereof, shall thereafter in good
faith and with due diligence prosecute such construction, and shall within the time fixed in the
license complete and put into operation such
part of the ultimate development as the commission shall deem necessary to supply the reasonable needs of the then available market, and
shall from time to time thereafter construct
such portion of the balance of such development
as the commission may direct, so as to supply
adequately the reasonable market demands
until such development shall have been completed. The periods for the commencement of
construction may be extended once but not

Page 1304

longer than two additional years and the period
for the completion of construction carried on in
good faith and with reasonable diligence may be
extended by the commission when not incompatible with the public interests. In case the licensee shall not commence actual construction
of the project works, or of any specified part
thereof, within the time prescribed in the license or as extended by the commission, then,
after due notice given, the license shall, as to
such project works or part thereof, be terminated upon written order of the commission. In
case the construction of the project works, or of
any specified part thereof, has been begun but
not completed within the time prescribed in the
license, or as extended by the commission, then
the Attorney General, upon the request of the
commission, shall institute proceedings in equity in the district court of the United States
for the district in which any part of the project
is situated for the revocation of said license, the
sale of the works constructed, and such other
equitable relief as the case may demand, as provided for in section 820 of this title.
(June 10, 1920, ch. 285, pt. I, § 13, 41 Stat. 1071; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
REFERENCES IN TEXT
Proceedings in equity, referred to in text, were abolished by the adoption of rule 2 of the Federal Rules of
Civil Procedure, set out in the Appendix to Title 28, Judiciary and Judicial Procedure, which provided that
‘‘there shall be one form of action to be known as ‘civil
action’ ’’.

§ 807. Right of Government to take over project
works
(a) Compensation; condemnation by Federal or
State Government
Upon not less than two years’ notice in writing from the commission the United States shall
have the right upon or after the expiration of
any license to take over and thereafter to maintain and operate any project or projects as defined in section 796 of this title, and covered in
whole or in part by the license, or the right to
take over upon mutual agreement with the licensee all property owned and held by the licensee then valuable and serviceable in the development, transmission, or distribution of
power and which is then dependent for its usefulness upon the continuance of the license, together with any lock or locks or other aids to
navigation constructed at the expense of the licensee, upon the condition that before taking
possession it shall pay the net investment of the
licensee in the project or projects taken, not to
exceed the fair value of the property taken, plus
such reasonable damages, if any, to property of
the licensee valuable, serviceable, and dependent as above set forth but not taken, as may be
caused by the severance therefrom of property
taken, and shall assume all contracts entered
into by the licensee with the approval of the
Commission. The net investment of the licensee
in the project or projects so taken and the
amount of such severance damages, if any, shall
be determined by the Commission after notice
and opportunity for hearing. Such net investment shall not include or be affected by the

Page 1305

TITLE 16—CONSERVATION

value of any lands, rights-of-way, or other property of the United States licensed by the Commission under this chapter, by the license or by
good will, going value, or prospective revenues;
nor shall the values allowed for water rights,
rights-of-way, lands, or interest in lands be in
excess of the actual reasonable cost thereof at
the time of acquisition by the licensee: Provided,
That the right of the United States or any State
or municipality to take over, maintain, and operate any project licensed under this chapter at
any time by condemnation proceedings upon
payment of just compensation is expressly reserved.
(b) Relicensing proceedings; Federal agency recommendations of take over by Government;
stay of orders for new licenses; termination
of stay; notice to Congress
In any relicensing proceeding before the Commission any Federal department or agency may
timely recommend, pursuant to such rules as
the Commission shall prescribe, that the United
States exercise its right to take over any
project or projects. Thereafter, the Commission,
if its 1 does not itself recommend such action
pursuant to the provisions of section 800(c) of
this title, shall upon motion of such department
or agency stay the effective date of any order issuing a license, except an order issuing an annual license in accordance with the proviso of
section 808(a) of this title, for two years after
the date of issuance of such order, after which
period the stay shall terminate, unless terminated earlier upon motion of the department or
agency requesting the stay or by action of Congress. The Commission shall notify the Congress
of any stay granted pursuant to this subsection.
(June 10, 1920, ch. 285, pt. I, § 14, 41 Stat. 1071; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 207, 212, 49 Stat. 844, 847; Pub. L.
90–451, § 2, Aug. 3, 1968, 82 Stat. 617; Pub. L.
99–495, § 4(b)(2), Oct. 16, 1986, 100 Stat. 1248.)
AMENDMENTS
1986—Subsec. (b). Pub. L. 99–495 struck out first sentence which read as follows: ‘‘No earlier than five years
before the expiration of any license, the Commission
shall entertain applications for a new license and decide them in a relicensing proceeding pursuant to the
provisions of section 808 of this title.’’
1968—Pub. L. 90–451 designated existing provisions as
subsec. (a) and added subsec. (b).
1935—Act Aug. 26, 1935, § 207, amended section generally.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–495 effective with respect
to each license, permit, or exemption issued under this
chapter after Oct. 16, 1986, see section 18 of Pub. L.
99–495, set out as a note under section 797 of this title.

§ 808. New licenses and renewals
(a) Relicensing procedures; terms and conditions; issuance to applicant with proposal
best adapted to serve public interest; factors
considered
(1) If the United States does not, at the expiration of the existing license, exercise its right to
take over, maintain, and operate any project or
1 So

in original. Probably should be ‘‘it’’.

§ 808

projects of the licensee, as provided in section
807 of this title, the commission is authorized to
issue a new license to the existing licensee upon
such terms and conditions as may be authorized
or required under the then existing laws and regulations, or to issue a new license under said
terms and conditions to a new licensee, which license may cover any project or projects covered
by the existing license, and shall be issued on
the condition that the new licensee shall, before
taking possession of such project or projects,
pay such amount, and assume such contracts as
the United States is required to do in the manner specified in section 807 of this title: Provided,
That in the event the United States does not exercise the right to take over or does not issue a
license to a new licensee, or issue a new license
to the existing licensee, upon reasonable terms,
then the commission shall issue from year to
year an annual license to the then licensee
under the terms and conditions of the existing
license until the property is taken over or a new
license is issued as aforesaid.
(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 803 of this title, consider (and
explain such consideration in writing) each of
the following:
(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 subchapter.
(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 gen-

§ 808

TITLE 16—CONSERVATION

erated 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 803
of this title, 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) Notification of intention regarding renewal;
public availability of documents; notice to
public and Federal agencies; identification of
Federal or Indian lands included; additional
information required
(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.
(2) At the time notice is provided under paragraph (1), the existing licensee shall make each
of the following reasonably available 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 October 16, 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
subchapter for such lands, and to provide such
additional information as the Commission

Page 1306

deems appropriate to carry out the Commission’s responsibilities under this section.
(c) Time of filing application; consultation and
participation in studies with fish and wildlife agencies; notice to applicants; adjustment of time periods
(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) of this section 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) of this section 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) Adequacy of transmission facilities; provision
of services to successor by existing licensee;
tariff; final order; modification, extension or
termination of order
(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 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
chapter has been executed, the Commission
shall order the existing licensee to file (pursuant
to section 824d of this title) 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 rea-

Page 1307

§ 809

TITLE 16—CONSERVATION

sonable rates in accordance with section 824d of
this title 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 subchapter,
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.
(e) License term on relicensing
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.
(f) Nonpower use licenses; recordkeeping
In issuing any licenses under this section except an annual license, the Commission, on its
own motion or upon application of any licensee,
person, State, municipality, or State commission, after notice to each State commission and
licensee affected, and after opportunity for hearing, whenever it finds that in conformity with a
comprehensive plan for improving or developing
a waterway or waterways for beneficial public
uses all or part of any licensed project should no
longer be used or adapted for use for power purposes, may license all or part of the project
works for nonpower use. A license for nonpower
use shall be issued to a new licensee only on the
condition that the new licensee shall, before
taking possession of the facilities encompassed
thereunder, pay such amount and assume such
contracts as the United States is required to do,
in the manner specified in section 807 of this

title. Any license for nonpower use shall be a
temporary license. Whenever, in the judgment of
the Commission, a State, municipality, interstate agency, or another Federal agency is authorized and willing to assume regulatory supervision of the lands and facilities included under
the nonpower license and does so, the Commission shall thereupon terminate the license. Consistent with the provisions of subchapter IV of
this chapter, every licensee for nonpower use
shall keep such accounts and file such annual
and other periodic or special reports concerning
the removal, alteration, nonpower use, or other
disposition of any project works or parts thereof
covered by the nonpower use license as the Commission may by rules and regulations or order
prescribe as necessary or appropriate.
(June 10, 1920, ch. 285, pt. I, § 15, 41 Stat. 1072; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; Pub. L. 90–451, § 3, Aug. 3, 1968,
82 Stat. 617; Pub. L. 99–495, §§ 4(a), (b)(1), 5, Oct.
16, 1986, 100 Stat. 1245, 1248.)
AMENDMENTS
1986—Subsec. (a). Pub. L. 99–495, § 4(a), (b)(1), designated existing provisions as par. (1), substituted ‘‘existing’’ for ‘‘original’’ wherever appearing, and added
pars. (2) and (3).
Subsecs. (b) to (f). Pub. L. 99–495, §§ 4(a), 5, added subsecs. (b) to (e) and redesignated former subsec. (b) as
(f).
1968—Pub. L. 90–451 designated existing provisions as
subsec. (a) and added subsec. (b).
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–495 effective with respect
to each license, permit, or exemption issued under this
chapter after Oct. 16, 1986, see section 18 of Pub. L.
99–495, set out as a note under section 797 of this title.

§ 809. Temporary use by Government of project
works for national safety; compensation for
use
When in the opinion of the President of the
United States, evidenced by a written order addressed to the holder of any license under this
chapter, the safety of the United States demands it, the United States shall have the right
to enter upon and take possession of any project
or part thereof, constructed, maintained, or operated under said license, for the purpose of
manufacturing nitrates, explosives, or munitions of war, or for any other purpose involving
the safety of the United States, to retain possession, management, and control thereof for such
length of time as may appear to the President to
be necessary to accomplish said purposes, and
then to restore possession and control to the
party or parties entitled thereto; and in the
event that the United States shall exercise such
right it shall pay to the party or parties entitled
thereto just and fair compensation for the use of
said property as may be fixed by the commission
upon the basis of a reasonable profit in time of
peace, and the cost of restoring said property to
as good condition as existed at the time of the
taking over thereof, less the reasonable value of
any improvements that may be made thereto by
the United States and which are valuable and
serviceable to the licensee.
(June 10, 1920, ch. 285, pt. I, § 16, 41 Stat. 1072; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)

§ 810

TITLE 16—CONSERVATION
TERMINATION OF WAR AND EMERGENCIES

Joint Res. July 25, 1947, ch. 327, § 3, 61 Stat. 451, provided that in the interpretation of this section, the
date July 25, 1947, shall be deemed to be the date of termination of any state of war theretofore declared by
Congress and of the national emergencies proclaimed
by the President on September 8, 1939, and May 27, 1941.

§ 810. Disposition of charges arising from licenses
(a) Receipts from charges
All proceeds from any Indian reservation shall
be placed to the credit of the Indians of such reservation. All other charges arising from licenses
hereunder, except charges fixed by the Commission for the purpose of reimbursing the United
States for the costs of administration of this
subchapter, shall be paid into the Treasury of
the United States, subject to the following distribution: 121⁄2 per centum thereof is hereby appropriated to be paid into the Treasury of the
United States and credited to ‘‘Miscellaneous receipts’’; 50 per centum of the charges arising
from licenses hereunder for the occupancy and
use of public lands and national forests shall be
paid into, reserved, and appropriated as a part of
the reclamation fund created by the Act of Congress known as the Reclamation Act, approved
June 17, 1902; and 371⁄2 per centum of the charges
arising from licenses hereunder for the occupancy and use of national forests and public
lands from development within the boundaries
of any State shall be paid by the Secretary of
the Treasury to such State; and 50 per centum of
the charges arising from all other licenses hereunder is reserved and appropriated as a special
fund in the Treasury to be expended under the
direction of the Secretary of the Army in the
maintenance and operation of dams and other
navigation structures owned by the United
States or in the construction, maintenance, or
operation of headwater or other improvements
of navigable waters of the United States. The
proceeds of charges made by the Commission for
the purpose of reimbursing the United States for
the costs of the administration of this subchapter shall be paid into the Treasury of the
United States and credited to miscellaneous receipts.
(b) Delinquent payments
In case of delinquency on the part of any licensee in the payment of annual charges a penalty of 5 per centum of the total amount so delinquent may be added to the total charges
which shall apply for the first month or part of
month so delinquent with an additional penalty
of 3 per centum for each subsequent month until
the total of the charges and penalties are paid or
until the license is canceled and the charges and
penalties satisfied in accordance with law.
(June 10, 1920, ch. 285, pt. I, § 17, 41 Stat. 1072; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 208, 212, 49 Stat. 845, 847; July 26,
1947, ch. 343, title II, § 205(a), 61 Stat. 501.)
REFERENCES IN TEXT
The Act of Congress known as the Reclamation Act,
approved June 17, 1902, referred to in subsec. (a), probably means act June 17, 1902, ch. 1093, 32 Stat. 388,
which is classified generally to chapter 12 (§ 371 et seq.)

Page 1308

of Title 43, Public Lands. For complete classification of
this Act to the Code, see Short Title note set out under
section 371 of Title 43 and Tables. The reclamation fund
created by that Act was established by section 391 of
Title 43.
AMENDMENTS
1935—Act Aug. 26, 1935, § 208, amended section generally, designating existing provisions as subsec. (a), inserting ‘‘except charges fixed by the Commission for
the purpose of reimbursing the United States for the
costs of administration of this Part,’’, substituting
‘‘national forests’’ for ‘‘national monuments, national
forests, and national parks’’ wherever appearing, inserting last sentence relating to payment of proceeds of
charges into Treasury, and adding subsec. (b).
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.

§ 811. Operation of navigation facilities; rules
and regulations; penalties
The Commission shall require the construction, maintenance, and operation by a licensee
at its own expense of such lights and signals as
may be directed by the Secretary of the Department in which the Coast Guard is operating, and
such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce, as appropriate. The license applicant and
any party to the proceeding shall be entitled to
a determination on the record, after opportunity
for an agency trial-type hearing of no more than
90 days, on any disputed issues of material fact
with respect to such fishways. All disputed issues of material fact raised by any party shall
be determined in a single trial-type hearing to
be conducted by the relevant resource agency in
accordance with the regulations promulgated
under this subsection 1 and within the time
frame established by the Commission for each license proceeding. Within 90 days of August 8,
2005, the Secretaries of the Interior, Commerce,
and Agriculture shall establish jointly, by rule,
the procedures for such expedited trial-type
hearing, including the opportunity to undertake
discovery and cross-examine witnesses, in consultation with the Federal Energy Regulatory
Commission. The operation of any navigation
facilities which may be constructed as a part of
or in connection with any dam or diversion
structure built under the provisions of this
chapter, whether at the expense of a licensee
hereunder or of the United States, shall at all
times be controlled by such reasonable rules and
regulations in the interest of navigation, including the control of the level of the pool caused by
such dam or diversion structure as may be made
from time to time by the Secretary of the Army;
and for willful failure to comply with any such
rule or regulation such licensee shall be deemed
guilty of a misdemeanor, and upon conviction
1 So

in original. Probably should be ‘‘section’’.

Page 1309

TITLE 16—CONSERVATION

thereof shall be punished as provided in section
825o of this title.
(June 10, 1920, ch. 285, pt. I, § 18, 41 Stat. 1073; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 209, 212, 49 Stat. 845, 847; 1939
Reorg. Plan No. II, § 4(e), eff. July 1, 1939, 4 F.R.
2731, 53 Stat. 1433; July 26, 1947, ch. 343, title II,
§ 205(a), 61 Stat. 501; June 4, 1956, ch. 351, § 2, 70
Stat. 226; 1970 Reorg. Plan No. 4, eff. Oct. 3, 1970,
35 F.R. 15627, 84 Stat. 2090; Pub. L. 109–58, title II,
§ 241(b), Aug. 8, 2005, 119 Stat. 674.)
AMENDMENTS
2005—Pub. L. 109–58 inserted after first sentence ‘‘The
license applicant and any party to the proceeding shall
be entitled to a determination on the record, after opportunity for an agency trial-type hearing of no more
than 90 days, on any disputed issues of material fact
with respect to such fishways. All disputed issues of
material fact raised by any party shall be determined
in a single trial-type hearing to be conducted by the
relevant resource agency in accordance with the regulations promulgated under this subsection and within
the time frame established by the Commission for each
license proceeding. Within 90 days of August 8, 2005, the
Secretaries of the Interior, Commerce, and Agriculture
shall establish jointly, by rule, the procedures for such
expedited trial-type hearing, including the opportunity
to undertake discovery and cross-examine witnesses, in
consultation with the Federal Energy Regulatory Commission.’’
1956—Act June 4, 1956, substituted ‘‘Secretary of the
Department in which the Coast Guard is operating’’ for
‘‘Secretary of War’’ in first sentence.
1935—Act Aug. 26, 1935, § 209, amended section generally, inserting first sentence, striking out ‘‘Such rules
and regulations may include the maintenance and operation of such licensee at its own expense of such lights
and signals as may be directed by the Secretary of War,
and such fishways as may be prescribed by the Secretary of Commerce.’’, and substituting section ‘‘825o’’
for section ‘‘819’’.
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities
and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.
Reference to Secretary of Commerce inserted in view
of: creation of National Oceanic and Atmospheric Administration in Department of Commerce and Office of
Administrator of such Administration; abolition of Bureau of Commercial Fisheries in Department of the Interior and Office of Director of such Bureau; transfers
of functions, including functions formerly vested by
law in Secretary of the Interior or Department of the
Interior which were administered through Bureau of
Commercial Fisheries or were primarily related to such
Bureau, exclusive of certain enumerated functions with
respect to Great Lakes fishery research, Missouri River

§ 812

Reservoir research, Gulf Breeze Biological Laboratory,
and Trans-Alaska pipeline investigations; and transfer
of marine sport fish program of Bureau of Sport Fisheries and Wildlife by Reorg. Plan No. 4 of 1970, eff. Oct.
3, 1970, 35 F.R. 15627, 84 Stat. 2090, set out in the Appendix to Title 5, Government Organization and Employees.
Coast Guard transferred to Department of Transportation and all functions, powers, and duties, relating to
Coast Guard, of Secretary of the Treasury and of other
offices and officers of Department of the Treasury
transferred to Secretary of Transportation by section
6(b)(1) of Pub. L. 89–670, Oct. 15, 1966, 80 Stat. 938. See
Section 108 of Title 49, Transportation.
Reorg. Plan No. II of 1939, set out in the Appendix to
Title 5, Government Organization and Employees,
transferred Bureau of Fisheries in Department of Commerce and its functions to Department of the Interior,
to be administered under direction and supervision of
Secretary of the Interior.
CLARIFICATION OF AUTHORITY REGARDING FISHWAYS
Pub. L. 102–486, title XVII, § 1701(b), Oct. 24, 1992, 106
Stat. 3008, provided that: ‘‘The definition of the term
‘fishway’ contained in 18 C.F.R. 4.30(b)(9)(iii), as in effect on the date of enactment of this Act [Oct. 24, 1992],
is vacated without prejudice to any definition or interpretation by rule of the term ‘fishway’ by the Federal
Energy Regulatory Commission for purposes of implementing section 18 of the Federal Power Act [16 U.S.C.
811]: Provided, That any future definition promulgated
by regulatory rulemaking shall have no force or effect
unless concurred in by the Secretary of the Interior
and the Secretary of Commerce: Provided further, That
the items which may constitute a ‘fishway’ under section 18 for the safe and timely upstream and downstream passage of fish shall be limited to physical
structures, facilities, or devices necessary to maintain
all life stages of such fish, and project operations and
measures related to such structures, facilities, or devices which are necessary to ensure the effectiveness of
such structures, facilities, or devices for such fish.’’

§ 812. Public-service licensee; regulations by
State or by commission as to service, rates,
charges, etc.
As a condition of the license, every licensee
under this chapter which is a public-service corporation, or a person, association, or corporation owning or operating any project and developing, transmitting, or distributing power for
sale or use in public service, shall abide by such
reasonable regulation of the services to be rendered to customers or consumers of power, and
of rates and charges of payment therefor, as
may from time to time be prescribed by any
duly constituted agency of the State in which
the service is rendered or the rate charged. That
in case of the development, transmission, or distribution, or use in public service of power by
any licensee under this chapter or by its customer engaged in public service within a State
which has not authorized and empowered a commission or other agency or agencies within said
State to regulate and control the services to be
rendered by such licensee or by its customer engaged in public service, or the rates and charges
of payment therefor, or the amount or character
of securities to be issued by any of said parties,
it is agreed as a condition of such license that
jurisdiction is conferred upon the commission,
upon complaint of any person aggrieved or upon
its own initiative, to exercise such regulation
and control until such time as the State shall
have provided a commission or other authority

§ 813

TITLE 16—CONSERVATION

Page 1310

for such regulation and control: Provided, That
the jurisdiction of the commission shall cease
and determine as to each specific matter of regulation and control prescribed in this section as
soon as the State shall have provided a commission or other authority for the regulation and
control of that specific matter.

rights granted by the commission or by this
chapter.

(June 10, 1920, ch. 285, pt. I, § 19, 41 Stat. 1073; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)

‘‘Subtitle IV of title 49’’ substituted in text for ‘‘the
Act to regulate commerce, approved February 4, 1887,
as amended’’ on authority of Pub. L. 95–473, § 3(b), Oct.
17, 1978, 92 Stat. 1466, the first section of which enacted
subtitle IV of Title 49, Transportation.

§ 813. Power entering into interstate commerce;
regulation of rates, charges, etc.
When said power or any part thereof shall
enter into interstate or foreign commerce the
rates charged and the service rendered by any
such licensee, or by any subsidiary corporation,
the stock of which is owned or controlled directly or indirectly by such licensee, or by any
person, corporation, or association purchasing
power from such licensee for sale and distribution or use in public service shall be reasonable,
nondiscriminatory, and just to the customer and
all unreasonable discriminatory and unjust
rates or services are prohibited and declared to
be unlawful; and whenever any of the States directly concerned has not provided a commission
or other authority to enforce the requirements
of this section within such State or to regulate
and control the amount and character of securities to be issued by any of such parties, or such
States are unable to agree through their properly constituted authorities on the services to
be rendered, or on the rates or charges of payment therefor, or on the amount or character of
securities to be issued by any of said parties, jurisdiction is conferred upon the commission,
upon complaint of any person, aggrieved, upon
the request of any State concerned, or upon its
own initiative to enforce the provisions of this
section, to regulate and control so much of the
services rendered, and of the rates and charges
of payment therefor as constitute interstate or
foreign commerce and to regulate the issuance
of securities by the parties included within this
section, and securities issued by the licensee
subject to such regulations shall be allowed only
for the bona fide purpose of financing and conducting the business of such licensee.
The administration of the provisions of this
section, so far as applicable, shall be according
to the procedure and practice in fixing and regulating the rates, charges, and practices of railroad companies as provided in subtitle IV of
title 49, and the parties subject to such regulation shall have the same rights of hearing, defense, and review as said companies in such
cases.
In any valuation of the property of any licensee hereunder for purposes of rate making,
no value shall be claimed by the licensee or allowed by the commission for any project or
projects under license in excess of the value or
values prescribed in section 807 of this title for
the purposes of purchase by the United States,
but there shall be included the cost to such licensee of the construction of the lock or locks
or other aids of navigation and all other capital
expenditures required by the United States, and
no value shall be claimed or allowed for the

(June 10, 1920, ch. 285, pt. I, § 20, 41 Stat. 1073; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
CODIFICATION

§ 814. Exercise by licensee of power of eminent
domain
When any licensee cannot acquire by contract
or pledges an unimproved dam site or the right
to use or damage the lands or property of others
necessary to the construction, maintenance, or
operation of any dam, reservoir, diversion structure, or the works appurtenant or accessory
thereto, in conjunction with any improvement
which in the judgment of the commission is desirable and justified in the public interest for
the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, it may acquire the
same by the exercise of the right of eminent domain in the district court of the United States
for the district in which such land or other property may be located, or in the State courts. The
practice and procedure in any action or proceeding for that purpose in the district court of the
United States shall conform as nearly as may be
with the practice and procedure in similar action or proceeding in the courts of the State
where the property is situated: Provided, That
United States district courts shall only have jurisdiction of cases when the amount claimed by
the owner of the property to be condemned exceeds $3,000 1 Provided further, That no licensee
may use the right of eminent domain under this
section to acquire any lands or other property
that, prior to October 24, 1992, were owned by a
State or political subdivision thereof and were
part of or included within any public park,
recreation area or wildlife refuge established
under State or local law. In the case of lands or
other property that are owned by a State or political subdivision and are part of or included
within a public park, recreation area or wildlife
refuge established under State or local law on or
after October 24, 1992, no licensee may use the
right of eminent domain under this section to
acquire such lands or property unless there has
been a public hearing held in the affected community and a finding by the Commission, after
due consideration of expressed public views and
the recommendations of the State or political
subdivision that owns the lands or property,
that the license will not interfere or be inconsistent with the purposes for which such lands
or property are owned.
(June 10, 1920, ch. 285, pt. I, § 21, 41 Stat. 1074; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; Pub. L. 102–486, title XVII,
§ 1701(d), Oct. 24, 1992, 106 Stat. 3009.)
1 So

in original. Probably should be followed by a colon.

Page 1311

§ 817

TITLE 16—CONSERVATION
AMENDMENTS

1992—Pub. L. 102–486 substituted final proviso and
sentence for period at end.

§ 815. Contract to furnish power extending beyond period of license; obligations of new licensee
Whenever the public interest requires or justifies the execution by the licensee of contracts
for the sale and delivery of power for periods extending beyond the date of termination of the license, such contracts may be entered into upon
the joint approval of the commission and of the
public-service commission or other similar authority in the State in which the sale or delivery of power is made, or if sold or delivered in
a State which has no such public-service commission, then upon the approval of the commission, and thereafter, in the event of failure to
issue a new license to the original licensee at
the termination of the license, the United
States or the new licensee, as the case may be,
shall assume and fulfill all such contracts.
(June 10, 1920, ch. 285, pt. I, § 22, 41 Stat. 1074; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 816. Preservation of rights vested prior to June
10, 1920
The provisions of this subchapter shall not be
construed as affecting any permit or valid existing right-of-way granted prior to June 10, 1920,
or as confirming or otherwise affecting any
claim, or as affecting any authority heretofore
given pursuant to law, but any person, association, corporation, State, or municipality holding or possessing such permit, right-of-way or
authority may apply for a license under this
chapter, and upon such application the Commission may issue to any such applicant a license in
accordance with the provisions of this subchapter and in such case the provisions of this
chapter shall apply to such applicant as a licensee under this chapter: Provided, That when
application is made for a license under this section for a project or projects already constructed the fair value of said project or projects
determined as provided in this section, shall for
the purposes of this subchapter and of said license be deemed to be the amount to be allowed
as the net investment of the applicant in such
project or projects as of the date of such license,
or as of the date of such determination, if license has not been issued. Such fair value shall
be determined by the Commission after notice
and opportunity for hearing.
(June 10, 1920, ch. 285, pt. I, § 23(a), 41 Stat. 1075;
renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 210, 212, 49 Stat. 846, 847.)
CODIFICATION
Section consists of subsec. (a) of section 23 of act
June 10, 1920, as so designated by act Aug. 26, 1935. Subsec. (b) of section 23 of act June 10, 1920, is set out as
section 817 of this title.
AMENDMENTS
1935—Act Aug. 26, 1935, § 210, amended section generally, substituting ‘‘part’’ for ‘‘chapter’’ wherever appearing, substituting ‘‘heretofore’’ for ‘‘then’’, and sub-

stituting the last sentence for ‘‘Such fair value may, in
the discretion of the commission, be determined by mutual agreement between the commission and the applicant or, in case they cannot agree, jurisdiction is hereby conferred upon the district court of the United
States in the district within which such project or
projects may be located, upon the application of either
party, to hear and determine the amount of such fair
value.’’

§ 817. Projects not affecting navigable waters; necessity for Federal license, permit or right-ofway; unauthorized activities
(1) It shall be unlawful for any person, State,
or municipality, for the purpose of developing
electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power
house, or other works incidental thereto across,
along, or in any of the navigable waters of the
United States, or upon any part of the public
lands or reservations of the United States (including the Territories), or utilize the surplus
water or water power from any Government
dam, except under and in accordance with the
terms of a permit or valid existing right-of-way
granted prior to June 10, 1920, or a license granted pursuant to this chapter. Any person, association, corporation, State, or municipality intending to construct a dam or other project
works, across, along, over, or in any stream or
part thereof, other than those defined in this
chapter as navigable waters, and over which
Congress has jurisdiction under its authority to
regulate commerce with foreign nations and
among the several States shall before such construction file declaration of such intention with
the Commission, whereupon the Commission
shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of
interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not construct, maintain, or operate
such dam or other project works until it shall
have applied for and shall have received a license under the provisions of this chapter. If the
Commission shall not so find, and if no public
lands or reservations are affected, permission is
granted to construct such dam or other project
works in such stream upon compliance with
State laws.
(2) No person may commence any significant
modification of any project licensed under, or
exempted from, this chapter unless such modification is authorized in accordance with terms
and conditions of such license or exemption and
the applicable requirements of this subchapter.
As used in this paragraph, the term ‘‘commence’’ refers to the beginning of physical onsite activity other than surveys or testing.
(June 10, 1920, ch. 285, pt. I, § 23(b), 41 Stat. 1075;
renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 210, 212, 49 Stat. 846, 847; Pub. L.
99–495, § 6, Oct. 16, 1986, 100 Stat. 1248.)
CODIFICATION
Section consists of subsec. (b) of section 23 of act
June 10, 1920, as so designated by act Aug. 26, 1935. Subsec. (a) of section 23 of act June 10, 1920, is set out as
section 816 of this title.

§ 818

TITLE 16—CONSERVATION
AMENDMENTS

1986—Pub. L. 99–495 designated existing provisions as
par. (1) and added par. (2).
1935—Act Aug. 26, 1935, § 210, amended section generally, inserting first sentence, and substituting ‘‘with
foreign nations’’ for ‘‘between foreign nations’’, ‘‘shall
before such construction’’ for ‘‘may in their discretion’’
and ‘‘shall not construct, maintain, or operate such
dam or other project works’’ for ‘‘shall not proceed
with such construction’’.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–495 applicable to licenses,
permits, and exemptions without regard to when issued, see section 18 of Pub. L. 99–495, set out as a note
under section 797 of this title.

§ 818. Public lands included in project; reservation of lands from entry
Any lands of the United States included in any
proposed project under the provisions of this
subchapter shall from the date of filing of application therefor be reserved from entry, location,
or other disposal under the laws of the United
States until otherwise directed by the Commission or by Congress. Notice that such application has been made, together with the date of
filing thereof and a description of the lands of
the United States affected thereby, shall be filed
in the local land office for the district in which
such lands are located. Whenever the Commission shall determine that the value of any lands
of the United States so applied for, or heretofore
or hereafter reserved or classified as power sites,
will not be injured or destroyed for the purposes
of power development by location, entry, or selection under the public-land laws, the Secretary of the Interior, upon notice of such determination, shall declare such lands open to location, entry, or selection, for such purpose or purposes and under such restrictions as the Commission may determine, subject to and with a
reservation of the right of the United States or
its permittees or licensees to enter upon, occupy, and use any part or all of said lands necessary, in the judgment of the Commission, for
the purposes of this subchapter, which right
shall be expressly reserved in every patent issued for such lands; and no claim or right to
compensation shall accrue from the occupation
or use of any of said lands for said purposes. The
United States or any licensee for any such lands
hereunder may enter thereupon for the purposes
of this subchapter, upon payment of any damages to crops, buildings, or other improvements
caused thereby to the owner thereof, or upon
giving a good and sufficient bond to the United
States for the use and benefit of the owner to secure the payment of such damages as may be determined and fixed in an action brought upon
the bond in a court of competent jurisdiction,
said bond to be in the form prescribed by the
Commission: Provided, That locations, entries,
selections, or filings heretofore made for lands
reserved as water-power sites, or in connection
with water-power development, or electrical
transmission may proceed to approval or patent
under and subject to the limitations and conditions in this section contained: Provided further,
That before any lands applied for, or heretofore
or hereafter reserved, or classified as power
sites, are declared open to location, entry, or se-

Page 1312

lection by the Secretary of the Interior, notice
of intention to make such declaration shall be
given to the Governor of the State within which
such lands are located, and such State shall
have ninety days from the date of such notice
within which to file, under any statute or regulation applicable thereto, an application for the
reservation to the State, or any political subdivision thereof, of any lands required as a
right-of-way for a public highway or as a source
of materials for the construction and maintenance of such highways, and a copy of such application shall be filed with the Federal Power
Commission; and any location, entry, or selection of such lands, or subsequent patent thereof,
shall be subject to any rights granted the State
pursuant to such application.
(June 10, 1920, ch. 285, pt. I, § 24, 41 Stat. 1075; renumbered pt. I and amended, Aug. 26, 1935, ch.
687, title II, §§ 211, 212, 49 Stat. 846, 847; May 28,
1948, ch. 351, 62 Stat. 275.)
AMENDMENTS
1948—Act May 28, 1948, inserted second proviso in last
sentence so that States may apply for reservations of
portions of power sites released for entry, location, or
selection to the States for highway purposes.
1935—Act Aug. 26, 1935, § 211, amended section generally, inserting ‘‘for such purpose or purposes and under
such restrictions as the commission may determine’’,
substituted ‘‘part’’ for ‘‘chapter’’ wherever appearing,
and striking out from proviso ‘‘prior to June 10, 1920’’
after ‘‘made’’.

§ 819. Repealed. Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847
Section, act June 10, 1920, ch. 285, pt. I, § 25, 41 Stat.
1076, related to offenses and punishment. See section
825m et seq. of this title.

§ 820. Proceedings for revocation of license or to
prevent violations of license
The Attorney General may, on request of the
commission or of the Secretary of the Army, institute proceedings in equity in the district
court of the United States in the district in
which any project or part thereof is situated for
the purpose of revoking for violation of its
terms any permit or license issued hereunder, or
for the purpose of remedying or correcting by
injunction, mandamus, or other process any act
of commission or omission in violation of the
provisions of this chapter or of any lawful regulation or order promulgated hereunder. The district courts shall have jurisdiction over all of
the above-mentioned proceedings and shall have
power to issue and execute all necessary process
and to make and enforce all writs, orders and
decrees to compel compliance with the lawful
orders and regulations of the commission and of
the Secretary of the Army, and to compel the
performance of any condition imposed under the
provisions of this chapter. In the event a decree
revoking a license is entered, the court is empowered to sell the whole or any part of the
project or projects under license, to wind up the
business of such licensee conducted in connection with such project or projects, to distribute
the proceeds to the parties entitled to the same,
and to make and enforce such further orders and
decrees as equity and justice may require. At

Page 1313

§ 823a

TITLE 16—CONSERVATION

such sale or sales the vendee shall take the
rights and privileges belonging to the licensee
and shall perform the duties of such licensee and
assume all outstanding obligations and liabilities of the licensee which the court may deem
equitable in the premises; and at such sale or
sales the United States may become a purchaser, but it shall not be required to pay a
greater amount than it would be required to pay
under the provisions of section 807 of this title
at the termination of the license.
(June 10, 1920, ch. 285, pt. I, § 26, 41 Stat. 1076; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847; July 26, 1947, ch. 343, title II,
§ 205(a), 61 Stat. 501.)
REFERENCES IN TEXT
Proceedings in equity, referred to in text, were abolished by the adoption of Rule 2 of the Federal Rules of
Civil Procedure, set out in the Appendix to Title 28, Judiciary and Judicial Procedure, which provided that
‘‘there shall be one form of action to be known as ‘civil
action’ ’’.
CHANGE OF NAME
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.

§ 821. State laws and water rights unaffected
Nothing contained in this chapter shall be
construed as affecting or intending to affect or
in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any
vested right acquired therein.
(June 10, 1920, ch. 285, pt. I, § 27, 41 Stat. 1077; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 822. Reservation of right to alter or repeal
chapter
The right to alter, amend, or repeal this chapter is expressly reserved; but no such alteration,
amendment, or repeal shall affect any license
theretofore issued under the provisions of this
chapter or the rights of any licensee thereunder.
(June 10, 1920, ch. 285, pt. I, § 28, 41 Stat. 1077; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)
§ 823. Repeal of inconsistent laws
All Acts or parts of Acts inconsistent with
this chapter are repealed: Provided, That nothing contained herein shall be held or construed
to modify or repeal any of the provisions of the
Act of Congress approved December 19, 1913,
granting certain rights-of-way to the city and
county of San Francisco, in the State of California.
(June 10, 1920, ch. 285, pt. I, § 29, 41 Stat. 1077; renumbered pt. I, Aug. 26, 1935, ch. 687, title II,
§ 212, 49 Stat. 847.)

REFERENCES IN TEXT
Herein, referred to in text, means act June 10, 1920,
which is classified generally to this chapter.
The Act of Congress approved December 19, 1913, referred to in text, was not classified to the Code.
CODIFICATION
As originally enacted, this section contained the further proviso: ‘‘That section 18 of an Act making appropriations for the construction, repair and preservation,
of certain public works on rivers and harbors, and for
other purposes, approved August 8, 1917, is hereby repealed.’’

§ 823a. Conduit hydroelectric facilities
(a) Exemption qualifications
Except as provided in subsection (b) or (c) of
this section, the Commission may grant an exemption in whole or in part, from the requirements of this subchapter, including any license
requirements contained in this subchapter, to
any facility (not including any dam or other impoundment) constructed, operated, or maintained for the generation of electric power
which the Commission determines, by rule or
order—
(1) is located on non-Federal lands, and
(2) utilizes for such generation only the
hydroelectric potential of a manmade conduit,
which is operated for the distribution of water
for agricultural, municipal, or industrial consumption and not primarily for the generation
of electricity.
(b) Maximum installation capacity for exemption
The Commission may not grant any exemption under subsection (a) of this section to any
facility the installed capacity of which exceeds
15 megawatts (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).
(c) Consultation with Federal and State agencies
In making the determination under subsection
(a) of this section the Commission shall consult
with the United States Fish and Wildlife Service 1 National Marine Fisheries Service 1 and the
State agency exercising administration over the
fish and wildlife resources of the State in which
the facility is or will be located, in the manner
provided by the Fish and Wildlife Coordination
Act (16 U.S.C. 661, et seq.), and shall include in
any such exemption—
(1) such terms and conditions as the Fish
and Wildlife Service 1 National Marine Fisheries Service 1 and the State agency each determine are appropriate to prevent loss of, or
damage to, such resources and to otherwise
carry out the purposes of such Act, and
(2) such terms and conditions as the Commission deems appropriate to insure that such
facility continues to comply with the provisions of this section and terms and conditions
included in any such exemption.
(d) Violation of terms of exemption
Any violation of a term or condition of any exemption granted under subsection (a) of this sec1 So

in original. Probably should be followed by a comma.

§ 823b

TITLE 16—CONSERVATION

tion shall be treated as a violation of a rule or
order of the Commission under this chapter.
(e) Fees for studies
The Commission, in addition to the requirements of section 803(e) of this title, 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 agencies under subsection (c) of this
section. Such fees shall be adequate to reimburse the fish and wildlife agencies referred to
in subsection (c) of this section 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.
(June 10, 1920, ch. 285, pt. I, § 30, as added Pub. L.
95–617, title II, § 213, Nov. 9, 1978, 92 Stat. 3148;
amended Pub. L. 99–495, § 7, Oct. 16, 1986, 100
Stat. 1248.)
REFERENCES IN TEXT
The Fish and Wildlife Coordination Act, referred to
in subsec. (c), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, as
amended, which is classified generally to sections 661
to 666c of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 661 of this title and Tables.
PRIOR PROVISIONS
A prior section 30 of act June 10, 1920, was classified
to section 791 of this title, prior to repeal by act Aug.
26, 1935, ch. 687, title II, § 212, 49 Stat. 847.
AMENDMENTS
1986—Subsec. (b). Pub. L. 99–495, § 7(a), inserted provision setting the maximum installation capacity for exemptions under subsec. (a) at 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.
Subsec. (c). Pub. L. 99–495, § 7(b), which directed the
insertion of ‘‘National Marine Fisheries Service’’ after
‘‘the Fish and Wildlife Service’’ in both places such
term appears, was executed by inserting ‘‘National Marine Fisheries Service’’ after ‘‘the United States Fish
and Wildlife Service’’ and ‘‘the Fish and Wildlife Service’’, as the probable intent of Congress.
Subsec. (e). Pub. L. 99–495, § 7(c), added subsec. (e).
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99–495 effective with respect
to each license, permit, or exemption issued under this
chapter after Oct. 16, 1986, see section 18 of Pub. L.
99–495, set out as a note under section 797 of this title.
APPLICATION OF SUBSECTION (c)
Section 8(c) of Pub. L. 99–495 provided that: ‘‘Nothing
in this Act [see Short Title of 1986 Amendment note set
out under section 791a of this title] shall affect the application of section 30(c) of the Federal Power Act [16
U.S.C. 823a(c)] to any exemption issued after the enactment of this Act [Oct. 16, 1986].’’

§ 823b. Enforcement
(a) Monitoring and investigation
The Commission shall monitor and investigate
compliance with each license and permit issued

Page 1314

under this subchapter and with each exemption
granted from any requirement of this subchapter. The Commission shall conduct such investigations as may be necessary and proper in
accordance with this chapter. 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 subchapter
and with the terms and conditions of exemptions granted from any requirement of this subchapter.
(b) Revocation orders
After notice and opportunity for an evidentiary hearing, the Commission may also
issue an order revoking any license issued under
this subchapter or any exemption granted from
any requirement of this subchapter where any
licensee or exemptee is found by the Commission:
(1) to have knowingly violated a final order
issued under subsection (a) of this section
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) of this section 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 subchapter, any term,
or condition of a license, permit, or exemption
under this subchapter, or any order issued under
subsection (a) of this section 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) of this section, 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) of this section,
or unless an election is made within 30 calendar

Page 1315

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 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. The court shall have jurisdiction to
enter a judgment affirming, modifying, or setting aside in whole or in Part,1 the order of the
Commission, or the court may remand the proceeding to the Commission for such further action as the court may direct.
(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,1 such assessment.
(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 or of this chapter, the Commission may be
represented by the general counsel of the Commission (or any attorney or attorneys within
1 So

§ 823c

TITLE 16—CONSERVATION

in original. Probably should not be capitalized.

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.
(June 10, 1920, ch. 285, pt. I, § 31, as added Pub. L.
99–495, § 12, Oct. 16, 1986, 100 Stat. 1255.)
EFFECTIVE DATE
Section applicable to licenses, permits, and exemptions without regard to when issued, see section 18 of
Pub. L. 99–495, set out as an Effective Date of 1986
Amendment note under section 797 of this title.

§ 823c. Alaska State jurisdiction
hydroelectric projects

over

small

(a) Discontinuance of regulation by the Commission
Notwithstanding sections 797(e) and 817 of this
title, the Commission shall discontinue exercising licensing and regulatory authority under
this subchapter over qualifying project works in
the State of Alaska, effective on the date on
which the Commission certifies that the State
of Alaska has in place a regulatory program for
water-power development that—
(1) protects the public interest, the purposes
listed in paragraph (2), and the environment to
the same extent provided by licensing and regulation by the Commission under this subchapter and other applicable Federal laws, including the Endangered Species Act (16 U.S.C.
1531 et seq.) and the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.);
(2) gives equal consideration to the purposes
of—
(A) energy conservation;
(B) the protection, mitigation of damage
to, and enhancement of, fish and wildlife (including related spawning grounds and habitat);
(C) the protection of recreational opportunities;
(D) the preservation of other aspects of environmental quality;
(E) the interests of Alaska Natives; and
(F) other beneficial public uses, including
irrigation, flood control, water supply, and
navigation; and
(3) requires, as a condition of a license for
any project works—
(A) the construction, maintenance, and operation by a licensee at its own expense of
such lights and signals as may be directed by
the Secretary of the Department in which
the Coast Guard is operating, and such fishways as may be prescribed by the Secretary
of the Interior or the Secretary of Commerce, as appropriate;

§ 823c

TITLE 16—CONSERVATION

(B) the operation of any navigation facilities which may be constructed as part of any
project to be controlled at all times by such
reasonable rules and regulations as may be
made by the Secretary of the Army; and
(C) except as provided in subsection (j) of
this section, conditions for the protection,
mitigation, and enhancement of fish and
wildlife 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.
(b) Definition of ‘‘qualifying project works’’
For purposes of this section, the term ‘‘qualifying project works’’ means project works—
(1) that are not part of a project licensed
under this part or exempted from licensing
under this subchapter or section 2705 of this
title prior to November 9, 2000;
(2) for which a preliminary permit, a license
application, or an application for an exemption from licensing has not been accepted for
filing by the Commission prior to November 9,
2000 (unless such application is withdrawn at
the election of the applicant);
(3) that are part of a project that has a
power production capacity of 5,000 kilowatts
or less;
(4) that are located entirely within the
boundaries of the State of Alaska; and
(5) that are not located in whole or in part
on any Indian reservation, a conservation system unit (as defined in section 3102(4) of this
title), or segment of a river designated for
study for addition to the Wild and Scenic Rivers System.
(c) Election of State licensing
In the case of nonqualifying project works
that would be a qualifying project works but for
the fact that the project has been licensed (or
exempted from licensing) by the Commission
prior to November 9, 2000, the licensee of such
project may in its discretion elect to make the
project subject to licensing and regulation by
the State of Alaska under this section.
(d) Project works on Federal lands
With respect to projects located in whole or in
part on a reservation, a conservation system
unit, or the public lands, a State license or exemption from licensing shall be subject to—
(1) the approval of the Secretary having jurisdiction over such lands; and
(2) such conditions as the Secretary may
prescribe.
(e) Consultation with affected agencies
The Commission shall consult with the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of Commerce before
certifying the State of Alaska’s regulatory program.
(f) Application of Federal laws
Nothing in this section shall preempt the application of Federal environmental, natural resources, or cultural resources protection laws
according to their terms.

Page 1316

(g) Oversight by the Commission
The State of Alaska shall notify the Commission not later than 30 days after making any significant modification to its regulatory program.
The Commission shall periodically review the
State’s program to ensure compliance with the
provisions of this section.
(h) Resumption of Commission authority
Notwithstanding subsection (a) of this section,
the Commission shall reassert its licensing and
regulatory authority under this subchapter if
the Commission finds that the State of Alaska
has not complied with one or more of the requirements of this section.
(i) Determination by the Commission
(1) Upon application by the Governor of the
State of Alaska, the Commission shall within 30
days commence a review of the State of Alaska’s
regulatory program for water-power development to determine whether it complies with the
requirements of subsection (a) of this section.
(2) The Commission’s review required by paragraph (1) shall be completed within 1 year of initiation, and the Commission shall within 30 days
thereafter issue a final order determining
whether or not the State of Alaska’s regulatory
program for water-power development complies
with the requirements of subsection (a) of this
section.
(3) If the Commission fails to issue a final
order in accordance with paragraph (2) the State
of Alaska’s regulatory program for water-power
development shall be deemed to be in compliance with subsection (a) of this section.
(j) Fish and wildlife
If the State of Alaska determines that a recommendation under subsection (a)(3)(C) of this
section is inconsistent with paragraphs (1) and
(2) of subsection (a) of this section, the State of
Alaska may decline to adopt all or part of the
recommendations in accordance with the procedures established under section 803(j)(2) of this
title.
(June 10, 1920, ch. 285, pt. I, § 32, as added Pub. L.
106–469, title V, § 501, Nov. 9, 2000, 114 Stat. 2037;
amended Pub. L. 109–58, title II, § 244, Aug. 8,
2005, 119 Stat. 678.)
REFERENCES IN TEXT
The Endangered Species Act, referred to in subsec.
(a)(1), probably means the Endangered Species Act of
1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, as amended, which is classified generally to chapter 35 (§ 1531 et
seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 1531 of this title and Tables.
The Fish and Wildlife Coordination Act, referred to
in subsec. (a)(1), (3)(C), is act Mar. 10, 1934, ch. 55, 48
Stat. 401, as amended, which is classified generally to
sections 661 to 666c of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 661 of this title and Tables.
AMENDMENTS
2005—Subsec. (a)(3)(C). Pub. L. 109–58, § 244(1), inserted
‘‘except as provided in subsection (j) of this section,’’
before ‘‘conditions’’.
Subsec. (j). Pub. L. 109–58, § 244(2), added subsec. (j).
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and
assets of the Coast Guard, including the authorities

Page 1317

TITLE 16—CONSERVATION

and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set
out as a note under section 542 of Title 6.

§ 823d

(a) Alternative conditions
(1) Whenever any person applies for a license
for any project works within any reservation of
the United States, and the Secretary of the department under whose supervision such reservation falls (referred to in this subsection as the
‘‘Secretary’’) deems a condition to such license
to be necessary under the first proviso of section
797(e) of this title, the license applicant or any
other party to the license proceeding may propose an alternative condition.
(2) Notwithstanding the first proviso of section
797(e) of this title, the Secretary shall accept
the proposed alternative condition referred to in
paragraph (1), and the Commission shall include
in the license such alternative condition, if the
Secretary determines, based on substantial evidence provided by the license applicant, any
other party to the proceeding, or otherwise
available to the Secretary, that such alternative
condition—
(A) provides for the adequate protection and
utilization of the reservation; and
(B) will either, as compared to the condition
initially by the Secretary—
(i) cost significantly less to implement; or
(ii) result in improved operation of the
project works for electricity production.

dispute to the Commission’s Dispute Resolution
Service. The Dispute Resolution Service shall
consult with the Secretary and the Commission
and issue a non-binding advisory within 90 days.
The Secretary may accept the Dispute Resolution Service advisory unless the Secretary finds
that the recommendation will not adequately
protect the reservation. The Secretary shall
submit the advisory and the Secretary’s final
written determination into the record of the
Commission’s proceeding.
(b) Alternative prescriptions
(1) Whenever the Secretary of the Interior or
the Secretary of Commerce prescribes a fishway
under section 811 of this title, the license applicant or any other party to the license proceeding may propose an alternative to such prescription to construct, maintain, or operate a fishway.
(2) Notwithstanding section 811 of this title,
the Secretary of the Interior or the Secretary of
Commerce, as appropriate, shall accept and prescribe, and the Commission shall require, the
proposed alternative referred to in paragraph
(1), if the Secretary of the appropriate department determines, based on substantial evidence
provided by the license applicant, any other
party to the proceeding, or otherwise available
to the Secretary, that such alternative—
(A) will be no less protective than the fishway initially prescribed by the Secretary; and
(B) will either, as compared to the fishway
initially prescribed by the Secretary—
(i) cost significantly less to implement; or
(ii) result in improved operation of the
project works for electricity production.

(3) In making a determination under paragraph (2), the Secretary shall consider evidence
provided for the record by any party to a licensing proceeding, or otherwise available to the
Secretary, including any evidence provided by
the Commission, on the implementation costs or
operational impacts for electricity production of
a proposed alternative.
(4) The Secretary concerned shall submit into
the public record of the Commission proceeding
with any condition under section 797(e) of this
title or alternative condition it accepts under
this section, a written statement explaining the
basis for such condition, and reason for not accepting any alternative condition under this
section. The written statement must demonstrate that the Secretary gave equal consideration to the effects of the condition adopted and
alternatives not accepted on energy supply, distribution, cost, and use; flood control; navigation; water supply; and air quality (in addition
to the preservation of other aspects of environmental quality); based on such information as
may be available to the Secretary, including information voluntarily provided in a timely manner by the applicant and others. The Secretary
shall also submit, together with the aforementioned written statement, all studies, data, and
other factual information available to the Secretary and relevant to the Secretary’s decision.
(5) If the Commission finds that the Secretary’s final condition would be inconsistent
with the purposes of this subchapter, or other
applicable law, the Commission may refer the

(3) In making a determination under paragraph (2), the Secretary shall consider evidence
provided for the record by any party to a licensing proceeding, or otherwise available to the
Secretary, including any evidence provided by
the Commission, on the implementation costs or
operational impacts for electricity production of
a proposed alternative.
(4) The Secretary concerned shall submit into
the public record of the Commission proceeding
with any prescription under section 811 of this
title or alternative prescription it accepts under
this section, a written statement explaining the
basis for such prescription, and reason for not
accepting any alternative prescription under
this section. The written statement must demonstrate that the Secretary gave equal consideration to the effects of the prescription adopted
and alternatives not accepted on energy supply,
distribution, cost, and use; flood control; navigation; water supply; and air quality (in addition to the preservation of other aspects of environmental quality); based on such information
as may be available to the Secretary, including
information voluntarily provided in a timely
manner by the applicant and others. The Secretary shall also submit, together with the
aforementioned written statement, all studies,
data, and other factual information available to
the Secretary and relevant to the Secretary’s
decision.
(5) If the Commission finds that the Secretary’s final prescription would be inconsistent
with the purposes of this subchapter, or other

§ 823d. Alternative conditions and prescriptions

§ 824

TITLE 16—CONSERVATION

applicable law, the Commission may refer the
dispute to the Commission’s Dispute Resolution
Service. The Dispute Resolution Service shall
consult with the Secretary and the Commission
and issue a non-binding advisory within 90 days.
The Secretary may accept the Dispute Resolution Service advisory unless the Secretary finds
that the recommendation will not adequately
protect the fish resources. The Secretary shall
submit the advisory and the Secretary’s final
written determination into the record of the
Commission’s proceeding.
(June 10, 1920, ch. 285, pt. I, § 33, as added Pub. L.
109–58, title II, § 241(c), Aug. 8, 2005, 119 Stat. 675.)
SUBCHAPTER II—REGULATION OF ELECTRIC UTILITY COMPANIES ENGAGED IN
INTERSTATE COMMERCE
§ 824. Declaration of policy; application of subchapter
(a) Federal regulation of transmission and sale
of electric energy
It is declared that the business of transmitting
and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in
this subchapter and subchapter III of this chapter and of that part of such business which consists of the transmission of electric energy in
interstate commerce and the sale of such energy
at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters
which are not subject to regulation by the
States.
(b) Use or sale of electric energy in interstate
commerce
(1) The provisions of this subchapter shall
apply to the transmission of electric energy in
interstate commerce and to the sale of electric
energy at wholesale in interstate commerce, but
except as provided in paragraph (2) shall not
apply to any other sale of electric energy or deprive a State or State commission of its lawful
authority now exercised over the exportation of
hydroelectric energy which is transmitted
across a State line. The Commission shall have
jurisdiction over all facilities for such transmission or sale of electric energy, but shall not
have jurisdiction, except as specifically provided
in this subchapter and subchapter III of this
chapter, over facilities used for the generation
of electric energy or over facilities used in local
distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy
consumed wholly by the transmitter.
(2) Notwithstanding subsection (f) of this section, the provisions of sections 824b(a)(2), 824e(e),
824i, 824j, 824j–1, 824k, 824o, 824p, 824q, 824r, 824s,
824t, 824u, and 824v of this title shall apply to
the entities described in such provisions, and
such entities shall be subject to the jurisdiction
of the Commission for purposes of carrying out
such provisions and for purposes of applying the
enforcement authorities of this chapter with respect to such provisions. Compliance with any

Page 1318

order or rule of the Commission under the provisions of section 824b(a)(2), 824e(e), 824i, 824j,
824j–1, 824k, 824o, 824p, 824q, 824r, 824s, 824t, 824u,
or 824v of this title, shall not make an electric
utility or other entity subject to the jurisdiction of the Commission for any purposes other
than the purposes specified in the preceding sentence.
(c) Electric energy in interstate commerce
For the purpose of this subchapter, electric
energy shall be held to be transmitted in interstate commerce if transmitted from a State and
consumed at any point outside thereof; but only
insofar as such transmission takes place within
the United States.
(d) ‘‘Sale of electric energy at wholesale’’ defined
The term ‘‘sale of electric energy at wholesale’’ when used in this subchapter, means a sale
of electric energy to any person for resale.
(e) ‘‘Public utility’’ defined
The term ‘‘public utility’’ when used in this
subchapter and subchapter III of this chapter
means any person who owns or operates facilities subject to the jurisdiction of the Commission under this subchapter (other than facilities
subject to such jurisdiction solely by reason of
section 824e(e), 824e(f),1 824i, 824j, 824j–1, 824k,
824o, 824p, 824q, 824r, 824s, 824t, 824u, or 824v of
this title).
(f) United States, State, political subdivision of a
State, or agency or instrumentality thereof
exempt
No provision in this subchapter shall apply to,
or be deemed to include, the United States, a
State or any political subdivision of a State, an
electric cooperative that receives financing
under the Rural Electrification Act of 1936 (7
U.S.C. 901 et seq.) or that sells less than 4,000,000
megawatt hours of electricity per year, or any
agency, authority, or instrumentality of any
one or more of the foregoing, or any corporation
which is wholly owned, directly or indirectly, by
any one or more of the foregoing, or any officer,
agent, or employee of any of the foregoing acting as such in the course of his official duty, unless such provision makes specific reference
thereto.
(g) Books and records
(1) Upon written order of a State commission,
a State commission may examine the books, accounts, memoranda, contracts, and records of—
(A) an electric utility company subject to its
regulatory authority under State law,
(B) any exempt wholesale generator selling
energy at wholesale to such electric utility,
and
(C) any electric utility company, or holding
company thereof, which is an associate company or affiliate of an exempt wholesale generator which sells electric energy to an electric
utility company referred to in subparagraph
(A),
wherever located, if such examination is required for the effective discharge of the State
1 So in original. Section 824e of this title does not contain a
subsec. (f).