16 USC 797(e)

§ 797

TITLE 16—CONSERVATION

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
Section 4 of Pub. L. 101–575 provided that: ‘‘Unless the
Federal Energy Regulatory Commission otherwise
specifies, by rule after enactment of this Act [Nov. 15,
1990], any eligible solar, wind, waste, or geothermal facility (as defined in section 3(17)(E) of the Federal
Power Act as amended by this Act [16 U.S.C.
796(17)(E)]), which is a qualifying small power production facility (as defined in subparagraph (C) of section
3(17) of the Federal Power Act as amended by this
Act)—
‘‘(1) shall be considered a qualifying small power
production facility for purposes of part 292 of title 18,
Code of Federal Regulations, notwithstanding any
size limitations contained in such part, and
‘‘(2) shall not be subject to the size limitation contained in section 292.601(b) of such part.’’
STATE AUTHORITIES; CONSTRUCTION
Pub. L. 102–486, title VII, § 731, Oct. 24, 1992, 106 Stat.
2921, provided that: ‘‘Nothing in this title [enacting sections 824l, 824m, and 825o–1 of this title and former sections 79z–5a and 79z–5b of Title 15, Commerce and
Trade, and amending this section, sections 824, 824j,
824k, 825n, 825o, and 2621 of this title, and provisions
formerly set out as a note under former section 79k of
Title 15] or in any amendment made by this title shall
be construed as affecting or intending to affect, or in
any way to interfere with, the authority of any State
or local government relating to environmental protection or the siting of facilities.’’

Page 1292

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 702 of Title 49,
Transportation, and section 101 of Pub. L. 104–88, set
out as a note under section 701 of Title 49. References
to Interstate Commerce Commission deemed to refer to
Surface Transportation Board, a member or employee
of the Board, or Secretary of Transportation, as appropriate, see section 205 of Pub. L. 104–88, set out as a
note under section 701 of Title 49.

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

Page 1293

TITLE 16—CONSERVATION

ments 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 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 In1 So

in original. The colon probably should be a period.

§ 797

terior, Commerce, and Agriculture shall establish jointly, by rule, the procedures for such expedited trial-type hearing, including the opportunity to undertake discovery and cross-examine witnesses, in consultation with the Federal
Energy Regulatory Commission.2 Provided 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
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
2 So

in original. The period probably should be a colon.

§ 797

TITLE 16—CONSERVATION

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

Page 1294

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
Department of War designated Department of the
Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947,
ch. 343, title II, 61 Stat. 501. Section 205(a) of act July
26, 1947, was repealed by section 53 of act Aug. 10, 1956,
ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted ‘‘Title 10, Armed Forces’’ which in sections 3010
to 3013 continued military Department of the Army
under administrative supervision of Secretary of the
Army.
EFFECTIVE DATE OF 1986 AMENDMENT
Section 18 of Pub. L. 99–495 provided that: ‘‘Except as
otherwise provided in this Act, the amendments made
by this Act [enacting section 823b of this title and
amending this section and sections 800, 802, 803, 807, 808,
817, 823a, 824a–3, and 824j of this title] shall take effect
with respect to each license, permit, or exemption issued under the Federal Power Act after the enactment
of this Act [Oct. 16, 1986]. The amendments made by
sections 6 and 12 of this Act [enacting section 823b of
this title and amending section 817 of this title] shall
apply to licenses, permits, and exemptions without regard to when issued.’’
SAVINGS PROVISION
Section 17(a) of Pub. L. 99–495 provided that: ‘‘Nothing in this Act [see Short Title of 1986 Amendment note
set out under section 791a of this title] shall be construed as authorizing the appropriation of water by any
Federal, State, or local agency, Indian tribe, or any
other entity or individual. Nor shall any provision of
this Act—
‘‘(1) affect the rights or jurisdiction of the United
States, the States, Indian tribes, or other entities
over waters of any river or stream or over any ground
water resource;
‘‘(2) alter, amend, repeal, interpret, modify, or be in
conflict with any interstate compact made by the
States;
‘‘(3) alter or establish the respective rights of
States, the United States, Indian tribes, or any person with respect to any water or water-related right;
‘‘(4) affect, expand, or create rights to use transmission facilities owned by the Federal Government;
‘‘(5) alter, amend, repeal, interpret, modify, or be in
conflict with, the Treaty rights or other rights of any
Indian tribe;
‘‘(6) permit the filing of any competing application
in any relicensing proceeding where the time for filing a competing application expired before the enactment of this Act [Oct. 16, 1986]; or
‘‘(7) modify, supersede, or affect the Pacific Northwest Electric Power Planning and Conservation Act
[16 U.S.C. 839 et seq.].’’
TERMINATION OF REPORTING REQUIREMENTS
For termination, effective May 15, 2000, of provisions
in subsec. (d) of this section relating to submitting a
classified annual report to Congress showing permits
and licenses issued under this subchapter, see section
3003 of Pub. L. 104–66, as amended, set out as a note
under section 1113 of Title 31, Money and Finance, and
page 91 of House Document No. 103–7.
IMPROVEMENT AT EXISTING FEDERAL FACILITIES
Pub. L. 102–486, title XXIV, § 2404, Oct. 24, 1992, 106
Stat. 3097, as amended by Pub. L. 103–437, § 6(d)(37), Nov.
2, 1994, 108 Stat. 4585; Pub. L. 104–66, title I, § 1052(h),

Page 1295

§ 797b

TITLE 16—CONSERVATION

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
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 Com-

mission, in consultation with State of Hawaii, to carry
out study of hydroelectric licensing in State of Hawaii
for purposes of considering whether such licensing
should be transferred to State, and directed Commission to complete study and submit report containing
results of study to Congress within 18 months after Oct.
24, 1992.

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

§ 797b. Duty to keep Congress fully and currently
informed
The Federal Energy Regulatory Commission
shall keep the Committee on Energy and Commerce of the United States House of Representatives and the Committee on Energy and Natural
Resources of the United States Senate fully and
currently informed regarding actions of the
Commission with respect to the provisions of
Part I of the Federal Power Act [16 U.S.C. 791a
et seq.].
(Pub. L. 99–495, § 16, Oct. 16, 1986, 100 Stat. 1259.)
REFERENCES IN TEXT
The Federal Power Act, referred to in text, is act
June 10, 1920, ch. 285, 41 Stat. 1063, as amended. Part I
of the Federal Power Act is classified generally to this
subchapter (§ 791a et seq.). For complete classification
of this Act to the Code, see section 791a of this title and
Tables.
CODIFICATION
Section was enacted as part of the Electric Consumers Protection Act of 1986, and not as part of the Federal Power Act which generally comprises this chapter.
CHANGE OF NAME
Committee on Energy and Commerce of House of
Representatives treated as referring to Committee on
Commerce of House of Representatives by section 1(a)
of Pub. L. 104–14, set out as a note preceding section 21
of Title 2, The Congress. Committee on Commerce of
House of Representatives changed to Committee on Energy and Commerce of House of Representatives, and
jurisdiction over matters relating to securities and exchanges and insurance generally transferred to Committee on Financial Services of House of Representa-