16 U.S.C. 824a-3

16 U.S.C.
United States Code, 2021 Edition
Title 16 - CONSERVATION
CHAPTER 12 - FEDERAL REGULATION AND DEVELOPMENT OF POWER
SUBCHAPTER II - REGULATION OF ELECTRIC UTILITY COMPANIES ENGAGED IN INTERSTATE
COMMERCE
Sec. 824a-3 - Cogeneration and small power production
From the U.S. Government Publishing Office, www.gpo.gov

§824a–3. Cogeneration and small power production
(a) Cogeneration and small power production rules
Not later than 1 year after November 9, 1978, the Commission shall prescribe, and from time to
time thereafter revise, such rules as it determines necessary to encourage cogeneration and small
power production, and to encourage geothermal small power production facilities of not more than
80 megawatts capacity, which rules require electric utilities to offer to—
(1) sell electric energy to qualifying cogeneration facilities and qualifying small power
production facilities 1 and
(2) purchase electric energy from such facilities.
Such rules shall be prescribed, after consultation with representatives of Federal and State
regulatory agencies having ratemaking authority for electric utilities, and after public notice and a
reasonable opportunity for interested persons (including State and Federal agencies) to submit oral as
well as written data, views, and arguments. Such rules shall include provisions respecting minimum
reliability of qualifying cogeneration facilities and qualifying small power production facilities
(including reliability of such facilities during emergencies) and rules respecting reliability of electric
energy service to be available to such facilities from electric utilities during emergencies. Such rules
may not authorize a qualifying cogeneration facility or qualifying small power production facility to
make any sale for purposes other than resale.
(b) Rates for purchases by electric utilities
The rules prescribed under subsection (a) shall insure that, in requiring any electric utility to offer
to purchase electric energy from any qualifying cogeneration facility or qualifying small power
production facility, the rates for such purchase—
(1) shall be just and reasonable to the electric consumers of the electric utility and in the public
interest, and
(2) shall not discriminate against qualifying cogenerators or qualifying small power producers.
No such rule prescribed under subsection (a) shall provide for a rate which exceeds the
incremental cost to the electric utility of alternative electric energy.
(c) Rates for sales by utilities
The rules prescribed under subsection (a) shall insure that, in requiring any electric utility to offer
to sell electric energy to any qualifying cogeneration facility or qualifying small power production
facility, the rates for such sale—
(1) shall be just and reasonable and in the public interest, and
(2) shall not discriminate against the qualifying cogenerators or qualifying small power
producers.
(d) "Incremental cost of alternative electric energy" defined
For purposes of this section, the term "incremental cost of alternative electric energy" means, with
respect to electric energy purchased from a qualifying cogenerator or qualifying small power

producer, the cost to the electric utility of the electric energy which, but for the purchase from such
cogenerator or small power producer, such utility would generate or purchase from another source.
(e) Exemptions
(1) Not later than 1 year after November 9, 1978, and from time to time thereafter, the
Commission shall, after consultation with representatives of State regulatory authorities, electric
utilities, owners of cogeneration facilities and owners of small power production facilities, and after
public notice and a reasonable opportunity for interested persons (including State and Federal
agencies) to submit oral as well as written data, views, and arguments, prescribe rules under which
geothermal small power production facilities of not more than 80 megawatts capacity, qualifying
cogeneration facilities, and qualifying small power production facilities are exempted in whole or
part from the Federal Power Act [16 U.S.C. 791a et seq.], from the Public Utility Holding Company
Act,2 from State laws and regulations respecting the rates, or respecting the financial or
organizational regulation, of electric utilities, or from any combination of the foregoing, if the
Commission determines such exemption is necessary to encourage cogeneration and small power
production.
(2) No qualifying small power production facility (other than a qualifying small power production
facility which is an eligible solar, wind, waste, or geothermal facility as defined in section 3(17)(E)
of the Federal Power Act [16 U.S.C. 796(17)(E)]) which has a power production capacity which,
together with any other facilities located at the same site (as determined by the Commission),
exceeds 30 megawatts, or 80 megawatts for a qualifying small power production facility using
geothermal energy as the primary energy source, may be exempted under rules under paragraph (1)
from any provision of law or regulation referred to in paragraph (1), except that any qualifying small
power production facility which produces electric energy solely by the use of biomass as a primary
energy source, may be exempted by the Commission under such rules from the Public Utility
Holding Company Act 2 and from State laws and regulations referred to in such paragraph (1).
(3) No qualifying small power production facility or qualifying cogeneration facility may be
exempted under this subsection from—
(A) any State law or regulation in effect in a State pursuant to subsection (f),
(B) the provisions of section 210, 211, or 212 of the Federal Power Act [16 U.S.C. 824i, 824j, or
824k] or the necessary authorities for enforcement of any such provision under the Federal Power
Act [16 U.S.C. 791a et seq.], or
(C) any license or permit requirement under part I of the Federal Power Act [16 U.S.C. 791a et
seq.] any provision under such Act related to such a license or permit requirement, or the
necessary authorities for enforcement of any such requirement.
(f) Implementation of rules for qualifying cogeneration and qualifying small power production
facilities
(1) Beginning on or before the date one year after any rule is prescribed by the Commission under
subsection (a) or revised under such subsection, each State regulatory authority shall, after notice and
opportunity for public hearing, implement such rule (or revised rule) for each electric utility for
which it has ratemaking authority.
(2) Beginning on or before the date one year after any rule is prescribed by the Commission under
subsection (a) or revised under such subsection, each nonregulated electric utility shall, after notice
and opportunity for public hearing, implement such rule (or revised rule).
(g) Judicial review and enforcement
(1) Judicial review may be obtained respecting any proceeding conducted by a State regulatory
authority or nonregulated electric utility for purposes of implementing any requirement of a rule
under subsection (a) in the same manner, and under the same requirements, as judicial review may be
obtained under section 2633 of this title in the case of a proceeding to which section 2633 of this title
applies.
(2) Any person (including the Secretary) may bring an action against any electric utility, qualifying
small power producer, or qualifying cogenerator to enforce any requirement established by a State
regulatory authority or nonregulated electric utility pursuant to subsection (f). Any such action shall

be brought only in the manner, and under the requirements, as provided under section 2633 of this
title with respect to an action to which section 2633 of this title applies.
(h) Commission enforcement
(1) For purposes of enforcement of any rule prescribed by the Commission under subsection (a)
with respect to any operations of an electric utility, a qualifying cogeneration facility or a qualifying
small power production facility which are subject to the jurisdiction of the Commission under part II
of the Federal Power Act [16 U.S.C. 824 et seq.], such rule shall be treated as a rule under the
Federal Power Act [16 U.S.C. 791a et seq.]. Nothing in subsection (g) shall apply to so much of the
operations of an electric utility, a qualifying cogeneration facility or a qualifying small power
production facility as are subject to the jurisdiction of the Commission under part II of the Federal
Power Act.
(2)(A) The Commission may enforce the requirements of subsection (f) against any State
regulatory authority or nonregulated electric utility. For purposes of any such enforcement, the
requirements of subsection (f)(1) shall be treated as a rule enforceable under the Federal Power Act
[16 U.S.C. 791a et seq.]. For purposes of any such action, a State regulatory authority or
nonregulated electric utility shall be treated as a person within the meaning of the Federal Power Act.
No enforcement action may be brought by the Commission under this section other than—
(i) an action against the State regulatory authority or nonregulated electric utility for failure to
comply with the requirements of subsection (f) 1 or
(ii) an action under paragraph (1).
(B) Any electric utility, qualifying cogenerator, or qualifying small power producer may petition
the Commission to enforce the requirements of subsection (f) as provided in subparagraph (A) of this
paragraph. If the Commission does not initiate an enforcement action under subparagraph (A) against
a State regulatory authority or nonregulated electric utility within 60 days following the date on
which a petition is filed under this subparagraph with respect to such authority, the petitioner may
bring an action in the appropriate United States district court to require such State regulatory
authority or nonregulated electric utility to comply with such requirements, and such court may issue
such injunctive or other relief as may be appropriate. The Commission may intervene as a matter of
right in any such action.
(i) Federal contracts
No contract between a Federal agency and any electric utility for the sale of electric energy by
such Federal agency for resale which is entered into after November 9, 1978, may contain any
provision which will have the effect of preventing the implementation of any rule under this section
with respect to such utility. Any provision in any such contract which has such effect shall be null
and void.
(j) New dams and diversions
Except for a hydroelectric project located at a Government dam (as defined in section 3(10) of the
Federal Power Act [16 U.S.C. 796(10)]) at which non-Federal hydroelectric development is
permissible, this section shall not apply to any hydroelectric project which impounds or diverts the
water of a natural watercourse by means of a new dam or diversion unless the project meets each of
the following requirements:
(1) No substantial adverse effects
At the time of issuance of the license or exemption for the project, the Commission finds that
the project will not have substantial adverse effects on the environment, including recreation and
water quality. Such finding shall be made by the Commission after taking into consideration terms
and conditions imposed under either paragraph (3) of this subsection or section 10 of the Federal
Power Act [16 U.S.C. 803] (whichever is appropriate as required by that Act [16 U.S.C. 791a et
seq.] or the Electric Consumers Protection Act of 1986) and compliance with other environmental
requirements applicable to the project.
(2) Protected rivers

At the time the application for a license or exemption for the project is accepted by the
Commission (in accordance with the Commission's regulations and procedures in effect on
January 1, 1986, including those relating to environmental consultation), such project is not
located on either of the following:
(A) Any segment of a natural watercourse which is included in (or designated for potential
inclusion in) a State or national wild and scenic river system.
(B) Any segment of a natural watercourse which the State has determined, in accordance with
applicable State law, to possess unique natural, recreational, cultural, or scenic attributes which
would be adversely affected by hydroelectric development.
(3) Fish and wildlife terms and conditions
The project meets the terms and conditions set by fish and wildlife agencies under the same
procedures as provided for under section 30(c) of the Federal Power Act [16 U.S.C. 823a(c)].
(k) "New dam or diversion" defined
For purposes of this section, the term "new dam or diversion" means a dam or diversion which
requires, for purposes of installing any hydroelectric power project, any construction, or enlargement
of any impoundment or diversion structure (other than repairs or reconstruction or the addition of
flashboards or similar adjustable devices) 3
(l) Definitions
For purposes of this section, the terms "small power production facility", "qualifying small power
production facility", "qualifying small power producer", "primary energy source", "cogeneration
facility", "qualifying cogeneration facility", and "qualifying cogenerator" have the respective
meanings provided for such terms under section 3(17) and (18) of the Federal Power Act [16 U.S.C.
796(17), (18)].
(m) Termination of mandatory purchase and sale requirements
(1) Obligation to purchase
After August 8, 2005, no electric utility shall be required to enter into a new contract or
obligation to purchase electric energy from a qualifying cogeneration facility or a qualifying small
power production facility under this section if the Commission finds that the qualifying
cogeneration facility or qualifying small power production facility has nondiscriminatory access to
—
(A)(i) independently administered, auction-based day ahead and real time wholesale markets
for the sale of electric energy; and (ii) wholesale markets for long-term sales of capacity and
electric energy; or
(B)(i) transmission and interconnection services that are provided by a Commission-approved
regional transmission entity and administered pursuant to an open access transmission tariff that
affords nondiscriminatory treatment to all customers; and (ii) competitive wholesale markets
that provide a meaningful opportunity to sell capacity, including long-term and short-term sales,
and electric energy, including long-term, short-term and real-time sales, to buyers other than the
utility to which the qualifying facility is interconnected. In determining whether a meaningful
opportunity to sell exists, the Commission shall consider, among other factors, evidence of
transactions within the relevant market; or
(C) wholesale markets for the sale of capacity and electric energy that are, at a minimum, of
comparable competitive quality as markets described in subparagraphs (A) and (B).
(2) Revised purchase and sale obligation for new facilities
(A) After August 8, 2005, no electric utility shall be required pursuant to this section to enter
into a new contract or obligation to purchase from or sell electric energy to a facility that is not an
existing qualifying cogeneration facility unless the facility meets the criteria for qualifying
cogeneration facilities established by the Commission pursuant to the rulemaking required by
subsection (n).
(B) For the purposes of this paragraph, the term "existing qualifying cogeneration facility"
means a facility that—

(i) was a qualifying cogeneration facility on August 8, 2005; or
(ii) had filed with the Commission a notice of self-certification, self recertification or an
application for Commission certification under 18 CFR 292.207 prior to the date on which the
Commission issues the final rule required by subsection (n).
(3) Commission review
Any electric utility may file an application with the Commission for relief from the mandatory
purchase obligation pursuant to this subsection on a service territory-wide basis. Such application
shall set forth the factual basis upon which relief is requested and describe why the conditions set
forth in subparagraph (A), (B), or (C) of paragraph (1) of this subsection have been met. After
notice, including sufficient notice to potentially affected qualifying cogeneration facilities and
qualifying small power production facilities, and an opportunity for comment, the Commission
shall make a final determination within 90 days of such application regarding whether the
conditions set forth in subparagraph (A), (B), or (C) of paragraph (1) have been met.
(4) Reinstatement of obligation to purchase
At any time after the Commission makes a finding under paragraph (3) relieving an electric
utility of its obligation to purchase electric energy, a qualifying cogeneration facility, a qualifying
small power production facility, a State agency, or any other affected person may apply to the
Commission for an order reinstating the electric utility's obligation to purchase electric energy
under this section. Such application shall set forth the factual basis upon which the application is
based and describe why the conditions set forth in subparagraph (A), (B), or (C) of paragraph (1)
of this subsection are no longer met. After notice, including sufficient notice to potentially affected
utilities, and opportunity for comment, the Commission shall issue an order within 90 days of such
application reinstating the electric utility's obligation to purchase electric energy under this section
if the Commission finds that the conditions set forth in subparagraphs (A), (B) or (C) of paragraph
(1) which relieved the obligation to purchase, are no longer met.
(5) Obligation to sell
After August 8, 2005, no electric utility shall be required to enter into a new contract or
obligation to sell electric energy to a qualifying cogeneration facility or a qualifying small power
production facility under this section if the Commission finds that—
(A) competing retail electric suppliers are willing and able to sell and deliver electric energy
to the qualifying cogeneration facility or qualifying small power production facility; and
(B) the electric utility is not required by State law to sell electric energy in its service
territory.
(6) No effect on existing rights and remedies
Nothing in this subsection affects the rights or remedies of any party under any contract or
obligation, in effect or pending approval before the appropriate State regulatory authority or nonregulated electric utility on August 8, 2005, to purchase electric energy or capacity from or to sell
electric energy or capacity to a qualifying cogeneration facility or qualifying small power
production facility under this Act (including the right to recover costs of purchasing electric
energy or capacity).
(7) Recovery of costs
(A) The Commission shall issue and enforce such regulations as are necessary to ensure that an
electric utility that purchases electric energy or capacity from a qualifying cogeneration facility or
qualifying small power production facility in accordance with any legally enforceable obligation
entered into or imposed under this section recovers all prudently incurred costs associated with the
purchase.
(B) A regulation under subparagraph (A) shall be enforceable in accordance with the provisions
of law applicable to enforcement of regulations under the Federal Power Act (16 U.S.C. 791a et
seq.).
(n) Rulemaking for new qualifying facilities

(1)(A) Not later than 180 days after August 8, 2005, the Commission shall issue a rule revising the
criteria in 18 CFR 292.205 for new qualifying cogeneration facilities seeking to sell electric energy
pursuant to this section to ensure—
(i) that the thermal energy output of a new qualifying cogeneration facility is used in a
productive and beneficial manner;
(ii) the electrical, thermal, and chemical output of the cogeneration facility is used
fundamentally for industrial, commercial, or institutional purposes and is not intended
fundamentally for sale to an electric utility, taking into account technological, efficiency,
economic, and variable thermal energy requirements, as well as State laws applicable to sales of
electric energy from a qualifying facility to its host facility; and
(iii) continuing progress in the development of efficient electric energy generating technology.
(B) The rule issued pursuant to paragraph (1)(A) of this subsection shall be applicable only to
facilities that seek to sell electric energy pursuant to this section. For all other purposes, except as
specifically provided in subsection (m)(2)(A), qualifying facility status shall be determined in
accordance with the rules and regulations of this Act.
(2) Notwithstanding rule revisions under paragraph (1), the Commission's criteria for qualifying
cogeneration facilities in effect prior to the date on which the Commission issues the final rule
required by paragraph (1) shall continue to apply to any cogeneration facility that—
(A) was a qualifying cogeneration facility on August 8, 2005, or
(B) had filed with the Commission a notice of self-certification, self-recertification or an
application for Commission certification under 18 CFR 292.207 prior to the date on which the
Commission issues the final rule required by paragraph (1).
(Pub. L. 95–617, title II, §210, Nov. 9, 1978, 92 Stat. 3144; Pub. L. 96–294, title VI, §643(b), June
30, 1980, 94 Stat. 770; Pub. L. 99–495, §8(a), Oct. 16, 1986, 100 Stat. 1249; Pub. L. 101–575, §2,
Nov. 15, 1990, 104 Stat. 2834; Pub. L. 109–58, title XII, §1253(a), Aug. 8, 2005, 119 Stat. 967.)
Editorial Notes
References in Text
The Federal Power Act, referred to in subsecs. (e), (h), (j)(1), and (m)(7)(B), is act June 10, 1920, ch. 285,
41 Stat. 1063, as amended, which is classified generally to this chapter (§791a et seq.). Part I of the Federal
Power Act is classified generally to subchapter I (§791a et seq.) of this chapter. Part II of the Federal Power
Act is classified generally to this subchapter (§824 et seq.). For complete classification of this Act to the Code,
see section 791a of this title and Tables.
The Public Utility Holding Company Act, referred to in subsec. (e), probably means the Public Utility
Holding Company Act of 1935, title I of act Aug. 26, 1935, ch. 687, 49 Stat. 803, as amended, which was
classified generally to chapter 2C (§79 et seq.) of Title 15, Commerce and Trade, prior to repeal by Pub. L.
109–58, title XII, §1263, Aug. 8, 2005, 119 Stat. 974. For complete classification of this Act to the Code, see
Tables.
The Electric Consumers Protection Act of 1986, referred to in subsec. (j)(1), is Pub. L. 99–495, Oct. 16,
1986, 100 Stat. 1243. For complete classification of this Act to the Code, see Short Title of 1986 Amendment
note set out under section 791a of this title and Tables.
This Act, referred to in subsecs. (m)(6) and (n)(1)(B), is Pub. L. 95–617, Nov. 9, 1978, 92 Stat. 3117, as
amended, known as the Public Utility Regulatory Policies Act of 1978. For complete classification of this Act
to the Code, see Short Title note set out under section 2601 of this title and Tables.
Codification
Section was enacted as part of the Public Utility Regulatory Policies Act of 1978, and not as part of the
Federal Power Act which generally comprises this chapter.
August 8, 2005, referred to in subsec. (n)(1)(A), was in the original "the date of enactment of this section",
which was translated as meaning the date of enactment of Pub. L. 109–58, which enacted subsecs. (m) and (n)
of this section, to reflect the probable intent of Congress.
Amendments

2005—Subsecs. (m), (n). Pub. L. 109–58 added subsecs. (m) and (n).
1990—Subsec. (e)(2). Pub. L. 101–575 inserted "(other than a qualifying small power production facility
which is an eligible solar, wind, waste, or geothermal facility as defined in section 3(17)(E) of the Federal
Power Act)" after first reference to "facility".
1986—Subsecs. (j) to (l). Pub. L. 99–495 added subsecs. (j) and (k) and redesignated former subsec. (j) as
(l).
1980—Subsec. (a). Pub. L. 96–294, §643(b)(1), inserted provisions relating to encouragement of
geothermal small power production facilities.
Subsec. (e)(1). Pub. L. 96–294, §643(b)(2), inserted provisions relating to applicability to geothermal small
power production facilities.
Subsec. (e)(2). Pub. L. 96–294, §643(b)(3), inserted provisions respecting a qualifying small power
production facility using geothermal energy as the primary energy source.
Statutory Notes and Related Subsidiaries
Effective Date of 1986 Amendment
Pub. L. 99–495, §8(b), Oct. 16, 1986, 100 Stat. 1250, provided that:
"(1) Subsection (j) of section 210 of the Public Utility Regulatory Policies Act of 1978 (as amended by
subsection (a) of this section) [16 U.S.C. 824a–3(j)] shall apply to any project for which benefits under section
210 of the Public Utility Regulatory Policies Act of 1978 are sought and for which a license or exemption is
issued by the Federal Energy Regulatory Commission after the enactment of this Act [Oct. 16, 1986], except
as otherwise provided in paragraph (2), (3) or (4) of this subsection.
"(2) Subsection (j) shall not apply to the project if the application for license or exemption for the project
was filed, and accepted for filing by the Commission, before the enactment of this Act [Oct. 16, 1986].
"(3) Paragraphs (1) and (3) of such subsection (j) shall not apply if the application for the license or
exemption for the project was filed before the enactment of this Act [Oct. 16, 1986] and accepted for filing by
the Commission (in accordance with the Commission's regulations and procedures in effect on January 1,
1986, including those relating to the requirement for environmental consultation) within 3 years after such
enactment.
"(4)(A) Paragraph (3) of subsection (j) shall not apply for projects where the license or exemption
application was filed after enactment of this Act [Oct. 16, 1986] if, based on a petition filed by the applicant
for such project within 18 months after such enactment, the Commission determines (after public notice and
opportunity for public comment of at least 45 days) that the applicant has demonstrated that he had committed
(prior to the enactment of this Act) substantial monetary resources directly related to the development of the
project and to the diligent and timely completion of all requirements of the Commission for filing an
acceptable application for license or exemption. Such petition shall be publicly available and shall be filed in
such form as the Commission shall require by rule issued within 120 days after the enactment of this Act. The
public notice required under this subparagraph shall include written notice by the petitioner to affected Federal
and State agencies.
"(B) In the case of any petition referred to in subparagraph (A), if the applicant had a preliminary permit
and had completed environmental consultations (required by Commission regulations and procedures in effect
on January 1, 1986) prior to enactment, there shall be a rebuttable presumption that such applicant had
committed substantial monetary resources prior to enactment.
"(C) The applicant for a license or exemption for a project described in subparagraph (A) may petition the
Commission for an initial determination under paragraph (1) of section 210(j) of the Public Utility Regulatory
Policies Act of 1978 [16 U.S.C. 824a–3(j)(1)] prior to the time the license or exemption is issued. If the
Commission initially finds that the project will have substantial adverse effects on the environment within the
meaning of such paragraph (1), prior to making a final finding under that paragraph the Commission shall
afford the applicant a reasonable opportunity to provide for mitigation of such adverse effects. The
Commission shall make a final finding under such paragraph (1) at the time the license or exemption is issued.
If the Federal Energy Regulatory Commission has notified the State of its initial finding and the State has not
taken any action described in paragraph (2) of section 210(j) before such final finding, the failure to take such
action shall be the basis for a rebuttable presumption that there is not a substantial adverse effect on the
environment related to natural, recreational, cultural, or scenic attributes for purposes of such finding.
"(D) If a petition under subparagraph (A) is denied, all provisions of section 210(j) of the Public Utility
Regulatory Policies Act of 1978 [16 U.S.C. 824a–3(j)] shall apply to the project regardless of when the license
or exemption is issued."

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.
Calculation of Avoided Cost
Pub. L. 102–486, title XIII, §1335, Oct. 24, 1992, 106 Stat. 2984, provided that: "Nothing in section 210 of
the Public Utility Regulatory Policies Act of 1978 (Public Law 95–617) [16 U.S.C. 824a–3] requires a State
regulatory authority or nonregulated electric utility to treat a cost reasonably identified to be incurred or to
have been incurred in the construction or operation of a facility or a project which has been selected by the
Department of Energy and provided Federal funding pursuant to the Clean Coal Program authorized by Public
Law 98–473 [see Tables for classification] as an incremental cost of alternative electric energy."
Applicability of 1980 Amendment to Facilities Using Solar Energy as Primary Energy Source
Pub. L. 100–202, §101(d) [title III, §310], Dec. 22, 1987, 101 Stat. 1329–104, 1329–126, provided that:
"(a) The amendments made by section 643(b) of the Energy Security Act (Public Law 96–294) [amending
this section] and any regulations issued to implement such amendment shall apply to qualifying small power
production facilities (as such term is defined in the Federal Power Act [16 U.S.C. 791a et seq.]) using solar
energy as the primary energy source to the same extent such amendments and regulations apply to qualifying
small power production facilities using geothermal energy as the primary energy source, except that nothing in
this Act [see Tables for classification] shall preclude the Federal Energy Regulatory Commission from
revising its regulations to limit the availability of exemptions authorized under this Act as it determines to be
required in the public interest and consistent with its obligations and duties under section 210 of the Public
Utility Regulatory Policies Act of 1978 [this section].
"(b) The provisions of subsection (a) shall apply to a facility using solar energy as the primary energy
source only if either of the following is submitted to the Federal Energy Regulatory Commission during the
two-year period beginning on the date of enactment of this Act [Dec. 22, 1987]:
"(1) An application for certification of the facility as a qualifying small power production facility.
"(2) Notice that the facility meets the requirements for qualification."
Study and Report to Congressional Committees on Application of Provisions Relating to
Cogeneration, Small Power Production, and Interconnection Authority to Hydroelectric
Power Facilities
Pub. L. 99–495, §8(d), Oct. 16, 1986, 100 Stat. 1251, provided that:
"(1) The Commission shall conduct a study (in accordance with section 102(2)(C) of the National
Environmental Policy Act of 1969 [42 U.S.C. 4332(2)(C)]) of whether the benefits of section 210 of the
Public Utility Regulatory Policies Act of 1978 [16 U.S.C. 824a–3] and section 210 of the Federal Power Act
[16 U.S.C. 824i] should be applied to hydroelectric power facilities utilizing new dams or diversions (within
the meaning of section 210(k) of the Public Utility Regulatory Policies Act of 1978).
"(2) The study under this subsection shall take into consideration the need for such new dams or diversions
for power purposes, the environmental impacts of such new dams and diversions (both with and without the
application of the amendments made by this Act to sections 4, 10, and 30 of the Federal Power Act [16 U.S.C.
797, 803, 823a] and section 210 of the Public Utility Regulatory Policies Act of 1978 [16 U.S.C. 824a–3]), the
environmental effects of such facilities alone and in combination with other existing or proposed dams or
diversions on the same waterway, the intent of Congress to encourage and give priority to the application of
section 210 of Public Utility Regulatory Policies Act of 1978 to existing dams and diversions rather than such
new dams or diversions, and the impact of such section 210 on the rates paid by electric power consumers.
"(3) The study under this subsection shall be initiated within 3 months after enactment of this Act [Oct. 16,
1986] and completed as promptly as practicable.
"(4) A report containing the results of the study conducted under this subsection shall be submitted to the
Committee on Energy and Commerce of the United States House of Representatives and the Committee on
Energy and Natural Resources of the United States Senate while both Houses are in session.
"(5) The report submitted under paragraph (4) shall include a determination (and the basis thereof) by the
Commission, based on the study and a public hearing and subject to review under section 313(b) of the
Federal Power Act [16 U.S.C. 825l(b)], whether any of the benefits referred to in paragraph (1) should be
available for such facilities and whether applications for preliminary permits (or licenses where no preliminary
permit has been issued) for such small power production facilities utilizing new dams or diversions should be
accepted by the Commission after the moratorium period specified in subsection (e). The report shall include
such other administrative and legislative recommendations as the Commission deems appropriate.

"(6) If the study under this subsection has not been completed within 18 months after its initiation, the
Commission shall notify the Committees referred to in paragraph (4) of the reasons for the delay and specify a
date when it will be completed and a report submitted."
Moratorium on Application of This Section to New Dams
Pub. L. 99–495, §8(e), Oct. 16, 1986, 100 Stat. 1251, provided that: "Notwithstanding the amendments
made by subsection (a) of this section [amending section 824a–3 of this title], in the case of a project for
which a license or exemption is issued after the enactment of this Act [Oct. 16, 1986], section 210 of the
Public Utility Regulatory Policies Act of 1978 [16 U.S.C. 824a–3] shall not apply during the moratorium
period if the project utilizes a new dam or diversion (as defined in section 210(k) of such Act) unless the
project is either—
"(1) a project located at a Government dam (as defined in section 3(10) of the Federal Power Act [16
U.S.C. 796(10)]) at which non-Federal hydroelectric development is permissible, or
"(2) a project described in paragraphs (2), (3), or (4) of subsection (b) [set out as a note above].
For purposes of this subsection, the term 'moratorium period' means the period beginning on the date of the
enactment of this Act and ending at the expiration of the first full session of Congress after the session during
which the report under subsection (d) [set out as a note above] has been submitted to the Congress."
Definitions
For definitions of terms used in this section, see section 2602 of this title.
1 So

in original. Probably should be followed by a comma.

2 See
3 So

References in Text note below.

in original. Probably should be followed by a period.