§803 — Title 16 Conservation | U.S. Code

Summary

Requires that any license allow a project only if the Federal Energy Regulatory Commission (the Commission) thinks the project fits a bigger plan for the waterway. The project must help interstate or foreign commerce, power development, fish and wildlife (including habitats and spawning grounds), and other public uses like irrigation, flood control, water supply, and recreation. The Commission can make the project change its plans to meet that goal. When deciding, the Commission must look at any existing federal or state waterway plan, listen to recommendations from federal and state agencies and affected Indian tribes, and for certain applicants consider their electricity conservation programs. The Commission must ask those agencies and tribes for recommended license terms when it gets an application. Licenses also must follow many other rules. No major change to a dam or works over 2,000 horsepower is allowed without the Commission’s prior OK unless there is an emergency. The licensee must keep the project in good repair, make needed replacements, keep depreciation reserves, avoid harming navigation, follow safety rules, and pay for any damage its works cause (the United States is not liable). After 20 years of operation, extra earnings above a set reasonable return must go into amortization reserves as the license says; new licenses under section 808 must do this from their start date. Licensees must pay annual charges set by the Commission to cover administration, agency study costs, and use of government lands, with specific exemptions for some state, municipal, and small projects and a special exception for certain pre-1985 irrigation contracts (Contract Nos. 14–06–100–6418, 14–06–100–6419, 14–06–100–6420). For use of Government dams, charges are limited to 1 mill/kWh for the first 40 GWh, 1½ mills/kWh for the next 40 GWh (over 40 up to 80), and 2 mills/kWh for energy over 80 GWh. Those caps apply to licenses after October 16, 1986 and some earlier ones, and the Commission must review them every 5 years and report to Congress. If a licensee gains from another’s reservoir or headwater work, the Commission can make them pay a fair share. The Commission may add other reasonable conditions, bans agreements that limit output or fix prices, must guard against antitrust violations, and may refuse a license if problems cannot be fixed. For small or partial projects (or projects of 2,000 horsepower or less) the Commission can waive many rules if it finds that is in the public interest, but the 50‑year license term stays and annual charges on Indian reservation lands still apply. Every license must include measures to protect, reduce harm to, and improve fish and wildlife based on recommendations from the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, and state fish and wildlife agencies; if the Commission rejects an agency recommendation it must publish written findings explaining why and showing how its chosen conditions meet the law.

Title 16, §803

Conservation — Source: USLM XML via OLRC

All licenses issued under this subchapter shall be on the following conditions:

(a)(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 11 So in original. Probably should be followed by “; and”. if necessary in order to secure such plan the Commission shall have authority to require the modification of any project and of the plans and specifications of the project works before approval.

(2)In order to ensure that the project adopted will be best adapted to the comprehensive plan described in paragraph (1), the Commission shall consider each of the following:

(A)The extent to which the project is consistent with a comprehensive plan (where one exists) for improving, developing, or conserving a waterway or waterways affected by the project that is prepared by—

(i)an agency established pursuant to Federal law that has the authority to prepare such a plan; or

(ii)the State in which the facility is or will be located.

(B)The recommendations of Federal and State agencies exercising administration over flood control, navigation, irrigation, recreation, cultural and other relevant resources of the State in which the project is located, and the recommendations (including fish and wildlife recommendations) of Indian tribes affected by the project.

(C)In the case of a State or municipal applicant, or an applicant which is primarily engaged in the generation or sale of electric power (other than electric power solely from cogeneration facilities or small power production facilities), the electricity consumption efficiency improvement program of the applicant, including its plans, performance and capabilities for encouraging or assisting its customers to conserve electricity cost-effectively, taking into account the published policies, restrictions, and requirements of relevant State regulatory authorities applicable to such applicant.

(3)Upon receipt of an application for a license, the Commission shall solicit recommendations from the agencies and Indian tribes identified in subparagraphs (A) and (B) of paragraph (2) for proposed terms and conditions for the Commission’s consideration for inclusion in the license.

(b)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)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)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)(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 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).

(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.

(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)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)Such other conditions not inconsistent with the provisions of this chapter as the commission may require.

(h)(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)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)(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).

Notes & Related Subsidiaries

Editorial Notes

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, which is classified generally to sections 661 to 666c–1 of this title. For complete classification of this Act to the Code, see section 661(a) of this title,

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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

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, ownership, and revenue, etc. Pub. L. 99–495, § 9(a), designated existing provisions as par. (1) and added pars. (2) to (4). Subsec. (h). Pub. L. 99–495, § 13, designated existing provisions as par. (1) and added par. (2). Subsec. (j). Pub. L. 99–495, § 3(c), added subsec. (j). 1968—Subsec. (d). Pub. L. 90–451 provided for maintenance of amortization reserves on and after

Effective Date

of new licenses. 1962—Subsecs. (b), (e), (i). Pub. L. 87–647 substituted “two thousand horsepower” for “one hundred horsepower”. 1935—Subsec. (a). Act Aug. 26, 1935, § 206, substituted “plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of 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.

Statutory Notes and Related Subsidiaries

Effective Date

of 1986 AmendmentAmendment 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 RequirementsFor 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

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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

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or “(2) the date of any extension of the deadline under paragraph (1).”

§803 Conditions of license generally

Summary

Title 16, §803

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Amendments

Construction

Effective Date

Statutory Notes and Related Subsidiaries

Effective Date

Savings Provision

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Construction

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