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16 U.S.C.
United States Code, 2018 Edition
Title 16 - CONSERVATION
CHAPTER 12 - FEDERAL REGULATION AND DEVELOPMENT OF POWER
SUBCHAPTER I - REGULATION OF THE DEVELOPMENT OF WATER POWER AND RESOURCES
From the U.S. Government Publishing Office, www.gpo.gov
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 Said section 212 also repealed sections 25 and 30 of the act (sections 819, 791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 Repealed.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 2013 AMENDMENT
Pub. L. 113–23, §1(a), Aug. 9, 2013, 127 Stat. 493, provided that: "This Act [amending sections 798, 823a,
and 2705 of this title and enacting provisions set out as notes preceding section 791 and under section 797 of
this title] may be cited as the 'Hydropower Regulatory Efficiency Act of 2013'."
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
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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
(hereinafter 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 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
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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.
(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.
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§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 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".
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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 secretary 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;
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(4) "person" means an individual or a corporation;
(5) "licensee" means any person, State, or municipality licensed under the provisions of 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
depreciation 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;
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(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—
(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;
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(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);".
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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
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
Pub. L. 101–575, §4, Nov. 15, 1990, 104 Stat. 2834, 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
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 1302 of Title
49, Transportation, and section 101 of Pub. L. 104–88, set out as a note under section 1301 of Title 49.
References to Interstate Commerce Commission deemed to refer to Surface Transportation Board, a member
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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 1301 of Title 49.
1
So in original. The period probably should be a semicolon.
2
See References in Text note below.
3
So in original. The period probably should be "; and".
§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 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
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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 crossexamine witnesses, in consultation with the Federal Energy Regulatory Commission.2 Provided
further, 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
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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.
(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.
CHANGE OF NAME
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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
Pub. L. 99–495, §18, Oct. 16, 1986, 100 Stat. 1259, 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
Pub. L. 99–495, §17(a), Oct. 16, 1986, 100 Stat. 1259, 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.
PROMOTING HYDROPOWER DEVELOPMENT AT NONPOWERED DAMS AND CLOSED LOOP PUMPED
STORAGE PROJECTS
Pub. L. 113–23, §6, Aug. 9, 2013, 127 Stat. 495, provided that:
"(a) IN GENERAL.—To improve the regulatory process and reduce delays and costs for hydropower
development at nonpowered dams and closed loop pumped storage projects, the Federal Energy Regulatory
Commission (referred to in this section as the 'Commission') shall investigate the feasibility of the issuance of
a license for hydropower development at nonpowered dams and closed loop pumped storage projects in a
2-year period (referred to in this section as a '2-year process'). Such a 2-year process shall include any
prefiling licensing process of the Commission.
"(b) WORKSHOPS AND PILOTS.—The Commission shall—
"(1) not later than 60 days after the date of enactment of this Act [Aug. 9, 2013], hold an initial
workshop to solicit public comment and recommendations on how to implement a 2-year process;
"(2) develop criteria for identifying projects featuring hydropower development at nonpowered dams
and closed loop pumped storage projects that may be appropriate for licensing within a 2-year process;
"(3) not later than 180 days after the date of enactment of this Act, develop and implement pilot
projects to test a 2-year process, if practicable; and
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"(4) not later than 3 years after the date of implementation of the final pilot project testing a 2-year
process, hold a final workshop to solicit public comment on the effectiveness of each tested 2-year process.
"(c) MEMORANDUM OF UNDERSTANDING.—The Commission shall, to the extent practicable, enter into a
memorandum of understanding with any applicable Federal or State agency to implement a pilot project
described in subsection (b).
"(d) REPORTS.—
"(1) PILOT PROJECTS NOT IMPLEMENTED.—If the Commission determines that no pilot project
described in subsection (b) is practicable because no 2-year process is practicable, not later than 240 days
after the date of enactment of this Act [Aug. 9, 2013], the Commission shall submit to the Committee on
Energy and Commerce of the House of Representatives and the Committee on Energy and Natural
Resources of the Senate a report that—
"(A) describes the public comments received as part of the initial workshop held under subsection
(b)(1); and
"(B) identifies the process, legal, environmental, economic, and other issues that justify the
determination of the Commission that no 2-year process is practicable, with recommendations on how
Congress may address or remedy the identified issues.
"(2) PILOT PROJECTS IMPLEMENTED.—If the Commission develops and implements pilot projects
involving a 2-year process, not later than 60 days after the date of completion of the final workshop held
under subsection (b)(4), the Commission shall submit to the Committee on Energy and Commerce of the
House of Representatives and the Committee on Energy and Natural Resources of the Senate a report
that—
"(A) describes the outcomes of the pilot projects;
"(B) describes the public comments from the final workshop on the effectiveness of each tested
2-year process; and
"(C)(i) outlines how the Commission will adopt policies under existing law (including
regulations) that result in a 2-year process for appropriate projects;
"(ii) outlines how the Commission will issue new regulations to adopt a 2-year process for
appropriate projects; or
"(iii) identifies the process, legal, environmental, economic, and other issues that justify a
determination of the Commission that no 2-year process is practicable, with recommendations on how
Congress may address or remedy the identified issues."
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 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
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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.
1
So in original. The colon probably should be a period.
2
So in original. The period probably should be a colon.
§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.
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§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 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
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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.
(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
(a) Purpose
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 4 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.
(b) Extension of period
The Commission may—
(1) extend the period of a preliminary permit once for not more than 4 additional years beyond
the 4 years permitted by subsection (a) if the Commission finds that the permittee has carried out
activities under such permit in good faith and with reasonable diligence; and
(2) after the end of an extension period granted under paragraph (1), issue an additional permit
to the permittee if the Commission determines that there are extraordinary circumstances that
warrant the issuance of the additional permit.
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(c) Permit conditions
Each such permit shall set forth the conditions under which priority shall be maintained.
(d) Non-transferability and cancellation of permits
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; Pub. L. 113–23, §5, Aug. 9, 2013, 127 Stat. 495; Pub. L.
115–270, title III, §3001(a), Oct. 23, 2018, 132 Stat. 3862.)
AMENDMENTS
2018—Subsec. (a). Pub. L. 115–270, §3001(a)(1), substituted "4 years" for "three years".
Subsec. (b). Pub. L. 115–270, §3001(a)(2), inserted dash after "The Commission may", designated
remaining provisions as par. (1), substituted "4 additional years beyond the 4 years" for "2 additional years
beyond the 3 years", and added par. (2).
2013—Pub. L. 113–23 designated existing first, second, and third sentences as subsecs. (a), (c), and (d),
respectively, and added subsec. (b).
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.
(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.
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§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, Indian tribes, 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; Pub. L. 115–325, title II, §201(a), Dec. 18, 2018, 132
Stat. 4459.)
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
2018—Subsec. (a). Pub. L. 115–325 substituted "States, Indian tribes, and municipalities" for "States and
municipalities".
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.
APPLICABILITY OF 2018 AMENDMENT
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Pub. L. 115–325, title II, §201(b), Dec. 18, 2018, 132 Stat. 4459, provided that: "The amendment made by
subsection (a) [amending this section] shall not affect—
"(1) any preliminary permit or original license issued before the date of enactment of the Indian Tribal
Energy Development and Self-Determination Act Amendments of 2017 [Dec. 18, 2018]; or
"(2) an application for an original license, if the Commission has issued a notice accepting that
application for filing pursuant to section 4.32(d) of title 18, Code of Federal Regulations (or successor
regulations), before the date of enactment of the Indian Tribal Energy Development and Self-Determination
Act Amendments of 2017."
DEFINITION OF INDIAN TRIBE
Pub. L. 115–325, title II, §201(c), Dec. 18, 2018, 132 Stat. 4459, provided that: "For purposes of section 7
(a) of the Federal Power Act (16 U.S.C. 800(a)) (as amended by subsection (a)), the term 'Indian tribe' has the
meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25
U.S.C. 5304)."
§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
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.)
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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.
1
See Codification note below.
§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 water-power 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.
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(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
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, subject to the approval of the Secretary of the Interior in the case
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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 5123 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.
(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, 1½ 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.
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(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.
(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
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(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 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 "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).
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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
water-power 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.
OBLIGATION FOR PAYMENT OF ANNUAL CHARGES
Pub. L. 115–270, title III, §3001(c), Oct. 23, 2018, 132 Stat. 3862, provided that: "Any obligation of a
licensee or exemptee for the payment of annual charges under section 10(e) of the Federal Power Act (16
U.S.C. 803(e)) for a project that has not commenced construction as of the date of enactment of this Act [Oct.
23, 2018] shall commence not earlier than the latest of—
"(1) the date by which the licensee or exemptee is required to commence construction; or
"(2) the date of any extension of the deadline under paragraph (1)."
1
So in original. Probably should be followed by "; and".
§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
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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 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 for not more than 8
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,
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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; amended Pub. L. 115–270, title III, §3001(b), Oct. 23, 2018, 132 Stat. 3862.)
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' ".
AMENDMENTS
2018—Pub. L. 115–270 substituted "for not more than 8 additional years," for "once but not longer than
two additional years" in second sentence.
§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 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, rightsof-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
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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.
1
So in original. Probably should be "it".
§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 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.
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(D) The need of the applicant over the short and long term for the electricity generated by the
project or projects to serve its customers, including, among other relevant considerations, the
reasonable costs and reasonable availability of alternative sources of power, taking into
consideration conservation and other relevant factors and taking into consideration the effect on
the provider (including its customers) of the alternative source of power, the effect on the
applicant's operating and load characteristics, the effect on communities served or to be served by
the project, and in the case of an applicant using power for the applicant's own industrial facility
and related operations, the effect on the operation and efficiency of such facility or related
operations, its workers, and the related community. In the case of an applicant that is an Indian
tribe applying for a license for a project located on the tribal reservation, a statement of the need of
such tribe for electricity generated by the project to foster the purposes of the reservation may be
included.
(E) The existing and planned transmission services of the applicant, taking into consideration
system reliability, costs, and other applicable economic and technical factors.
(F) Whether the plans of the applicant will be achieved, to the greatest extent possible, in a cost
effective manner.
(G) Such other factors as the Commission may deem relevant, except that the terms and
conditions in the license for the protection, mitigation, or enhancement of fish and wildlife
resources affected by the development, operation, and management of the project shall be
determined in accordance with section 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 deems appropriate to
carry out the Commission's responsibilities under this section.
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(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) and, as appropriate, conduct
studies with such agencies. Within 60 days after the statutory deadline for the submission of
applications, the Commission shall issue a notice establishing expeditious procedures for relicensing
and a deadline for submission of final amendments, if any, to the application.
(2) The time periods specified in this subsection and in subsection (b) shall be adjusted, in a
manner that achieves the objectives of this section, by the Commission by rule or order with respect
to existing licensees who, by reason of the expiration dates of their licenses, are unable to comply
with a specified time period.
(d) 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 reasonable 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
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(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
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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.)
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:
12½ 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 37½ 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.)
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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.) 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 trialtype 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 trialtype 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 trialtype 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 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
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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 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."
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1
So in original. Probably should be "section".
§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 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.
(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.)
§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.
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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 rights granted by the commission or
by this chapter.
(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
"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.
§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.)
AMENDMENTS
1992—Pub. L. 102–486 substituted final proviso and sentence for period at end.
1
So in original. Probably should be followed by a colon.
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§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 substituting 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-of-way; 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
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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 on-site 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.
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
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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 selection 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 such sale or sales the vendee shall
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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
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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) Qualifying conduit hydropower facilities
(1) A qualifying conduit hydropower facility shall not be required to be licensed under this
subchapter.
(2)(A) Any person, State, or municipality proposing to construct a qualifying conduit hydropower
facility shall file with the Commission a notice of intent to construct such facility. The notice shall
include sufficient information to demonstrate that the facility meets the qualifying criteria.
(B) Not later than 15 days after receipt of a notice of intent filed under subparagraph (A), the
Commission shall—
(i) make an initial determination as to whether the facility meets the qualifying criteria; and
(ii) if the Commission makes an initial determination, pursuant to clause (i), that the facility
meets the qualifying criteria, publish public notice of the notice of intent filed under subparagraph
(A).
(C) If, not later than 30 days after the date of publication of the public notice described in
subparagraph (B)(ii)—
(i) an entity contests whether the facility meets the qualifying criteria, the Commission shall
promptly issue a written determination as to whether the facility meets such criteria; or
(ii) no entity contests whether the facility meets the qualifying criteria, the facility shall be
deemed to meet such criteria.
(3) For purposes of this section:
(A) The term "conduit" means any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar
manmade water conveyance that is operated for the distribution of water for agricultural,
municipal, or industrial consumption and not primarily for the generation of electricity.
(B) The term "qualifying conduit hydropower facility" means a facility (not including any dam
or other impoundment) that is determined or deemed under paragraph (2)(C) to meet the
qualifying criteria.
(C) The term "qualifying criteria" means, with respect to a facility—
(i) the facility is constructed, operated, or maintained for the generation of electric power and
uses for such generation only the hydroelectric potential of a non-federally owned conduit;
(ii) the facility has an installed capacity that does not exceed 40 megawatts; and
(iii) on or before August 9, 2013, the facility is not licensed under, or exempted from the
license requirements contained in, this subchapter.
(b) Exemption qualifications
Subject to subsection (c), 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) utilizes for such generation only the hydroelectric potential of a conduit; and
(2) has an installed capacity that does not exceed 40 megawatts.
(c) Consultation with Federal and State agencies
In making the determination under subsection (b) the Commission shall consult with the United
States Fish and Wildlife Service 1 National Marine Fisheries Service 1 and the State agency
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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 (b) 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). Such fees shall be
adequate to reimburse the fish and wildlife agencies referred to in subsection (c) for any reasonable
costs incurred in connection with any studies or other reviews carried out by such agencies for
purposes of compliance with this section. The fees shall, subject to annual appropriations Acts, be
transferred to such agencies by the Commission for use solely for purposes of carrying out such
studies and shall remain available until expended.
(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; Pub. L. 113–23, §4(a), Aug. 9,
2013, 127 Stat. 494; Pub. L. 115–270, title III, §3002, Oct. 23, 2018, 132 Stat. 3863.)
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
2018—Subsec. (a)(2)(C). Pub. L. 115–270, §3002(1), substituted "30 days" for "45 days" in introductory
provisions.
Subsec. (a)(3)(C)(ii). Pub. L. 115–270, §3002(2), substituted "40 megawatts" for "5 megawatts".
2013—Subsecs. (a), (b). Pub. L. 113–23, §4(a)(1), added subsecs. (a) and (b) and struck out former subsecs.
(a) and (b) which authorized the Commission to grant exemptions from the requirements of this subchapter for
certain hydroelectric facilities and prohibited the granting of exemptions to facilities with certain capacities.
Subsec. (c). Pub. L. 113–23, §4(a)(2), substituted "subsection (b)" for "subsection (a)" in introductory
provisions.
Subsec. (d). Pub. L. 113–23, §4(a)(3), substituted "subsection (b)" for "subsection (a)".
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).
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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)
Pub. L. 99–495, §8(c), Oct. 16, 1986, 100 Stat. 1251, 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]."
1
So in original. Probably should be followed by a comma.
§823b. Enforcement
(a) Monitoring and investigation
The Commission shall monitor and investigate compliance with each license and permit issued
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) after completion of
judicial review (or the opportunity for judicial review); and
(2) to have been given reasonable time to comply fully with such order prior to commencing
any revocation proceeding.
In any such proceeding, the order issued under subsection (a) shall be subject to de novo review by
the Commission. No order shall be issued under this subsection until after the Commission has taken
into consideration the nature and seriousness of the violation and the efforts of the licensee to remedy
the violation.
(c) Civil penalty
Any licensee, permittee, or exemptee who violates or fails or refuses to comply with any rule or
regulation under this subchapter, any term, or condition of a license, permit, or exemption under this
subchapter, or any order issued under subsection (a) shall be subject to a civil penalty in an amount
not to exceed $10,000 for each day that such violation or failure or refusal continues. Such penalty
shall be assessed by the Commission after notice and opportunity for public hearing. In determining
the amount of a proposed penalty, the Commission shall take into consideration the nature and
seriousness of the violation, failure, or refusal and the efforts of the licensee to remedy the violation,
failure, or refusal in a timely manner. No civil penalty shall be assessed where revocation is ordered.
(d) Assessment
(1) Before issuing an order assessing a civil penalty against any person under this section, the
Commission shall provide to such person notice of the proposed penalty. Such notice shall, except in
the case of a violation of a final order issued under subsection (a), inform such person of his
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opportunity to elect in writing within 30 days after the date of receipt of such notice to have the
procedures of paragraph (3) (in lieu of those of paragraph (2)) apply with respect to such assessment.
(2)(A) In the case of the violation of a final order issued under subsection (a), or unless an election
is made within 30 calendar days after receipt of notice under paragraph (1) to have paragraph (3)
apply with respect to such penalty, the Commission shall assess the penalty, by order, after a
determination of violation has been made on the record after an opportunity for an agency hearing
pursuant to section 554 of title 5 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 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
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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.
1
So in original. Probably should not be capitalized.
§823c. Alaska State jurisdiction over small hydroelectric projects
(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;
(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), 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.
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(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.
(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), 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).
(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).
(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).
(j) Fish and wildlife
If the State of Alaska determines that a recommendation under subsection (a)(3)(C) is inconsistent
with paragraphs (1) and (2) of subsection (a), 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.
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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)," 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 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. Alternative conditions and prescriptions
(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.
(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 dispute to the
Commission's Dispute Resolution Service. The Dispute Resolution Service shall consult with the
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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 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 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.)
§823e. Promoting hydropower development at existing nonpowered dams
(a) Expedited licensing process for non-Federal hydropower projects at existing nonpowered
dams
(1) In general
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As provided in this section, the Commission may issue and amend licenses, as appropriate, for
any facility the Commission determines is a qualifying facility.
(2) Rule
Not later than 180 days after October 23, 2018, the Commission shall issue a rule establishing
an expedited process for issuing and amending licenses for qualifying facilities under this section.
(3) Interagency task force
(A) In establishing the expedited process under this section, the Commission shall convene an
interagency task force, with appropriate Federal and State agencies and Indian tribes
represented, to coordinate the regulatory processes associated with the authorizations required
to construct and operate a qualifying facility.
(B) The task force shall develop procedures that are consistent with subsection (e)(1)(E) to
seek to ensure that, for projects licensed pursuant to this section, the Commission and
appropriate Federal and State agencies and Indian tribes shall exercise their authorities in a
manner that, to the extent practicable, will not result in any material change to the storage,
release, or flow operations of the associated nonpowered dam existing at the time an applicant
files its license application.
(4) Length of process
The Commission shall seek to ensure that the expedited process under this section will result in
a final decision on an application for a license by not later than 2 years after receipt of a completed
application for the license.
(b) Dam safety
(1) Assessment
Before issuing any license for a qualifying facility, the Commission shall assess the safety of
existing non-Federal dams and other non-Federal structures related to the qualifying facility
(including possible consequences associated with failure of such structures).
(2) Requirements
In issuing any license for a qualifying facility at a non-Federal dam, the Commission shall
ensure that the Commission's dam safety requirements apply to such qualifying facility, and the
associated qualifying nonpowered dam, over the term of such license.
(c) Interagency communications
Interagency cooperation in the preparation of environmental documents under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to an application for a
license for a qualifying facility under this section, and interagency communications relating to
licensing process coordination pursuant to this section, shall not—
(1) be considered to be ex parte communications under Commission rules; or
(2) preclude an agency from participating in a licensing proceeding under this subchapter,
providing that any agency participating as a party in a licensing proceeding under this subchapter
shall, to the extent practicable, demonstrate a separation of staff cooperating with the Commission
under the National Environmental Policy Act 1 (42 U.S.C. 4321 et seq.) and staff participating in
the applicable proceeding under this subchapter.
(d) Identification of nonpowered dams for hydropower development
(1) In general
Not later than 12 months after October 23, 2018, the Commission, with the Secretary of the
Army, the Secretary of the Interior, and the Secretary of Agriculture, shall jointly develop a list of
existing nonpowered Federal dams that the Commission and the Secretaries agree have the
greatest potential for non-Federal hydropower development.
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(2) Considerations
In developing the list under paragraph (1), the Commission and the Secretaries may consider the
following:
(A) The compatibility of hydropower generation with existing purposes of the dam.
(B) The proximity of the dam to existing transmission resources.
(C) The existence of studies to characterize environmental, cultural, and historic resources
relating to the dam.
(D) The effects of hydropower development on release or flow operations of the dam.
(3) Availability
The Commission shall—
(A) provide the list developed under paragraph (1) to—
(i) the Committee on Energy and Commerce, the Committee on Transportation and
Infrastructure, and the Committee on Natural Resources, of the House of Representatives;
and
(ii) the Committee on Environment and Public Works, and the Committee on Energy and
Natural Resources, of the Senate; and
(B) make such list available to the public.
(e) Definitions
For purposes of this section:
(1) Qualifying criteria
The term "qualifying criteria" means, with respect to a facility—
(A) as of October 23, 2018, the facility is not licensed under, or exempted from the license
requirements contained in, this subchapter;
(B) the facility will be associated with a qualifying nonpowered dam;
(C) the facility will be constructed, operated, and maintained for the generation of electric
power;
(D) the facility will use for such generation any withdrawals, diversions, releases, or flows
from the associated qualifying nonpowered dam, including its associated impoundment or other
infrastructure; and
(E) the operation of the facility will not result in any material change to the storage, release,
or flow operations of the associated qualifying nonpowered dam.
(2) Qualifying facility
The term "qualifying facility" means a facility that is determined under this section to meet the
qualifying criteria.
(3) Qualifying nonpowered dam
The term "qualifying nonpowered dam" means any dam, dike, embankment, or other barrier—
(A) the construction of which was completed on or before October 23, 2018;
(B) that is or was operated for the control, release, or distribution of water for agricultural,
municipal, navigational, industrial, commercial, environmental, recreational, aesthetic, drinking
water, or flood control purposes; and
(C) that, as of October 23, 2018, is not generating electricity with hydropower generating
works that are licensed under, or exempted from the license requirements contained in, this
subchapter.
(f) Savings clause
Nothing in this section affects—
(1) any authority of the Commission to license a facility at a nonpowered dam under this
subchapter; and
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(2) any authority of the Commission to issue an exemption to a small hydroelectric power
project under the Public Utility Regulatory Policies Act of 1978.
(June 10, 1920, ch. 285, pt. I, §34, as added Pub. L. 115–270, title III, §3003, Oct. 23, 2018, 132
Stat. 3863.)
REFERENCES IN TEXT
The National Environmental Policy Act of 1969, referred to in subsec. (c), is Pub. L. 91–190, Jan. 1, 1970,
83 Stat. 852, 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 Public Utility Regulatory Policies Act of 1978, referred to in subsec. (f)(2), is Pub. L. 95–617, Nov. 9,
1978, 92 Stat. 3117. For complete classification of this Act to the Code, see Short Title note set out under
section 2601 of this title and Tables.
1
So in original. Probably should be followed by "of 1969".
§823f. Closed-loop pumped storage projects
(a) Expedited licensing process for closed-loop pumped storage projects
(1) In general
As provided in this section, the Commission may issue and amend licenses, as appropriate, for
closed-loop pumped storage projects.
(2) Rule
Not later than 180 days after October 23, 2018, the Commission shall issue a rule establishing
an expedited process for issuing and amending licenses for closed-loop pumped storage projects
under this section.
(3) Interagency task force
In establishing the expedited process under this section, the Commission shall convene an
interagency task force, with appropriate Federal and State agencies and Indian tribes represented,
to coordinate the regulatory processes associated with the authorizations required to construct and
operate closed-loop pumped storage projects.
(4) Length of process
The Commission shall seek to ensure that the expedited process under this section will result in
final decision on an application for a license by not later than 2 years after receipt of a completed
application for such license.
(b) Dam safety
Before issuing any license for a closed-loop pumped storage project, the Commission shall assess
the safety of existing dams and other structures related to the project (including possible
consequences associated with failure of such structures).
(c) Exceptions from other requirements
(1) In general
In issuing or amending a license for a closed-loop pumped storage project pursuant to the
expedited process established under this section, the Commission may grant an exception from
any other requirement of this subchapter with respect to any part of the closed-loop pumped
storage project (not including any dam or other impoundment).
(2) Consultation
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In granting an exception under paragraph (1), the Commission shall consult with the United
States Fish and Wildlife Service, the National Marine Fisheries Service, and the State agency
exercising administration over the fish and wildlife resources of the State in which the closed-loop
pumped storage project is or will be located, in the manner provided by the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.).
(3) Terms and conditions
In granting an exception under paragraph (1), the Commission shall include in any such
exception—
(A) such terms and conditions as the United States Fish and Wildlife Service, the National
Marine Fisheries Service, and the State agency described in paragraph (2) each determine are
appropriate to prevent loss of, or damage to, fish and wildlife resources and to otherwise carry
out the purposes of the Fish and Wildlife Coordination Act; and
(B) such terms and conditions as the Commission deems appropriate to ensure that such
closed-loop pumped storage project continues to comply with the provisions of this section and
terms and conditions included in any such exception.
(4) Fees
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 for a closed-loop pumped storage project that
is required to meet terms and conditions set by fish and wildlife agencies under paragraph (3).
Such fees shall be adequate to reimburse the fish and wildlife agencies referred to in paragraph (3)
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.
(d) Transfers
Notwithstanding section 798 of this title, and regardless of whether the holder of a preliminary
permit for a closed-loop pumped storage project claimed municipal preference under section 800(a)
of this title when obtaining the permit, on request by a municipality, the Commission may, to
facilitate development of a closed-loop pumped storage project—
(1) add entities as joint permittees following issuance of a preliminary permit; and
(2) transfer a license in part to one or more nonmunicipal entities as co-licensees with a
municipality, if the municipality retains majority ownership of the project for which the license
was issued.
(e) Interagency communications
Interagency cooperation in the preparation of environmental documents under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to an application for a
license for a closed-loop pumped storage project submitted pursuant to this section, and interagency
communications relating to licensing process coordination pursuant to this section, shall not—
(1) be considered to be ex parte communications under Commission rules; or
(2) preclude an agency from participating in a licensing proceeding under this subchapter,
providing that any agency participating as a party in a licensing proceeding under this subchapter
shall, to the extent practicable, demonstrate a separation of staff cooperating with the Commission
under the National Environmental Policy Act 1 (42 U.S.C. 4321 et seq.) and staff participating in
the applicable proceeding under this subchapter.
(f) Developing abandoned mines for pumped storage
(1) Workshop
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Not later than 6 months after October 23, 2018, the Commission shall hold a workshop to
explore potential opportunities for development of closed-loop pumped storage projects at
abandoned mine sites.
(2) Guidance
Not later than 1 year after October 23, 2018, the Commission shall issue guidance to assist
applicants for licenses or preliminary permits for closed-loop pumped storage projects at
abandoned mine sites.
(g) Qualifying criteria for closed-loop pumped storage projects
(1) In general
The Commission shall establish criteria that a pumped storage project shall meet in order to
qualify as a closed-loop pumped storage project eligible for the expedited process established
under this section.
(2) Inclusions
In establishing the criteria under paragraph (1), the Commission shall include criteria requiring
that the pumped storage project—
(A) cause little to no change to existing surface and ground water flows and uses; and
(B) is unlikely to adversely affect species listed as a threatened species or endangered species
under the Endangered Species Act of 1973 [16 U.S.C. 1531 et seq.].
(h) Savings clause
Nothing in this section affects any authority of the Commission to license a closed-loop pumped
storage project under this subchapter.
(June 10, 1920, ch. 285, pt. I, §35, as added Pub. L. 115–270, title III, §3004, Oct. 23, 2018, 132
Stat. 3865.)
REFERENCES IN TEXT
The Fish and Wildlife Coordination Act, referred to in subsec. (c)(2), (3)(A), is act Mar. 10, 1934, ch. 55,
48 Stat. 401, 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.
The National Environmental Policy Act of 1969, referred to in subsec. (e), is Pub. L. 91–190, Jan. 1, 1970,
83 Stat. 852, 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 Endangered Species Act of 1973, referred to in subsec. (g)(2)(B), is Pub. L. 93–205, Dec. 28, 1973, 87
Stat. 884, which is classified principally 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.
1
So in original. Probably should be followed by "of 1969".
§823g. Considerations for relicensing terms
(a) In general
In determining the term of a new license issued when an existing license under this subchapter
expires, the Commission shall take into consideration, among other things—
(1) project-related investments by the licensee under the new license; and
(2) project-related investments by the licensee over the term of the existing license.
(b) Equal weight
The determination of the Commission under subsection (a) shall give equal weight to—
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(1) investments by the licensee to implement the new license under this subchapter, including
investments relating to redevelopment, new construction, new capacity, efficiency, modernization,
rehabilitation or replacement of major equipment, safety improvements, or environmental,
recreation, or other protection, mitigation, or enhancement measures required or authorized by the
new license; and
(2) investments by the licensee over the term of the existing license (including any terms under
annual licenses) that—
(A) resulted in redevelopment, new construction, new capacity, efficiency, modernization,
rehabilitation or replacement of major equipment, safety improvements, or environmental,
recreation, or other protection, mitigation, or enhancement measures conducted over the term of
the existing license; and
(B) were not expressly considered by the Commission as contributing to the length of the
existing license term in any order establishing or extending the existing license term.
(c) Commission determination
At the request of the licensee, the Commission shall make a determination as to whether any
planned, ongoing, or completed investment meets the criteria under subsection (b)(2). Any
determination under this subsection shall be issued within 60 days following receipt of the licensee's
request. When issuing its determination under this subsection, the Commission shall not assess the
incremental number of years that the investment may add to the new license term. All such
assessment shall occur only as provided in subsection (a).
(June 10, 1920, ch. 285, pt. I, §36, as added Pub. L. 115–270, title III, §3005, Oct. 23, 2018, 132
Stat. 3867.)
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| File Type | application/pdf |
| File Title | https://www.govinfo.gov/content/pkg/USCODE-2018-title16/html/US |
| Author | jnsed34 |
| File Modified | 2020-07-21 |
| File Created | 2020-07-21 |