§823a — Title 16 Conservation | U.S. Code

Summary

Certain small hydropower projects inside manmade water systems do not have to get a federal license. Anyone (a person, State, or city) who wants to build one must file a notice with the Commission that shows the project meets the rules. The Commission must decide within 15 days if it looks like the project meets the rules and then publish a public notice. If someone challenges that decision within 30 days after the public notice, the Commission must issue a written decision. If no one challenges it in 30 days, the project is treated as meeting the rules. A “conduit” is a manmade water channel (like a tunnel, canal, pipeline, aqueduct, flume, or ditch) used to deliver water, not mainly to make electricity. A qualifying conduit hydropower facility is one of those projects (no dam or impoundment) that the Commission finds or treats as meeting the rules. To qualify, the project must only use the power of a conduit that is not owned by the federal government, must have installed capacity of 40 megawatts or less, and must not have been licensed or exempted on or before August 9, 2013. The Commission can also exempt similar projects (no dam, 40 megawatts or less). Before exempting, the Commission must consult the Fish and Wildlife Service, the National Marine Fisheries Service, and the State fish and wildlife agency and include terms to avoid harm and ensure compliance. Breaking those terms counts as breaking a Commission order. The Commission must set fees to repay those agencies for reviews or studies; the fees are sent to the agencies, subject to yearly appropriations, and remain available until spent.

Title 16, §823a

Conservation — Source: USLM XML via OLRC

(a)(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)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)In making the determination under subsection (b) the Commission shall consult with the United States Fish and Wildlife Service 11 So in original. Probably should be followed by a comma. National Marine Fisheries Service 1 and the State agency 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)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)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.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Fish and Wildlife Coordination Act, referred to in subsec. (c), 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.

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).

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. Application of Subsection (c)Pub. L. 99–495, § 8(c), Oct. 16, 1986, 100 Stat. 1251, provided that: “Nothing in this Act [see

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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].”

§823a Conduit Hydroelectric Facilities

Summary

Title 16, §823a

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Prior Provisions

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