16 Usc 803

Page 1245

TITLE 16—CONSERVATION

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
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:
1 See

Codification note below.

§ 803

(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
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
1 So

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

§ 803

TITLE 16—CONSERVATION

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
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

Page 1246

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, subject 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.

Page 1247

TITLE 16—CONSERVATION

(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.
(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),
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

§ 803

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.
(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 li-

§ 804

TITLE 16—CONSERVATION

cense 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 statutory responsibilities of such agencies. If, after
such attempt, the Commission does not adopt in
whole or in part a recommendation of any such
agency, the Commission shall publish each of
the following findings (together with a statement of the basis for each of the findings):
(A) A finding that adoption of such recommendation is inconsistent with the purposes
and requirements of this 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) 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 ‘‘irri-

Page 1248

gation, 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
Pub. L. 99–495, § 9(b), Oct. 16, 1986, 100 Stat. 1252, 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: