Untitled

Federal Power Act

* Act of June 5, 1920 (P.L. 66-280, 41 Stat. 1063, as amended; 16 U.S.C. 791(a), 797, 803, 806-808, 814, 818, 821, 823a-b, 824i-k)

An Act To create a Federal Pow-er Commission; to provide for the improvement of navigation; the development of water power; the use of the public lands in relation thereto, and to repeal section 18 of the River and Harbor Appropriation Act, approved August 8, 1917, and for other purposes.

Subchapter I - Regulation of De-velopment of Wa-ter Power and Resources

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General Powers of Commission

Sec. 4. The Commission is here-by authorized and empowered-

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(c) To cooperate with the execu-tive departments and other agencies of State or National Governments in such investigations; and for such purpose the several departments and agencies of the National Govern-ment 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 Commis-sion, and temporarily to detail to the Commission such officers or experts as may be necessary in such investigations.

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(e) 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 reserva-tion 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 de-partment under whose supervision such reservation falls shall deem necessary for the adequate protec-tion and utilization of such reserva-tion: 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 navigation have been approved by the Chief of Engi-neers and the Secretary of the Ar-my. 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 for-eign commerce, a finding to that effect shall be made by the Com-mission and shall become a part of the records of the Commission: Provided further, That in case the Commission shall find that any Govern-ment dam may be advanta-geously 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 con-structed prior to June 10, 1920: And provided further, That upon the filing of any application for a li-cense which has not been preceded by a preliminary permit under sub-section (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 Part for any project, the Commission, in addition to the power and develop-ment purposes for which licenses are issued, shall give equal consideration to the purposes of energy conservation, the protection, mitiga-tion of damage to, and enhancement of, fish and wildlife (including relat-ed spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental qual-ity.

(f) To issue preliminary permits for the purpose of enabling appli-cants for a license hereunder to secure the data and to perform the acts required by section 9 hereof: Provided, however, That upon the filing of any application for a pre-liminary permit by any person, association, or corpora-tion the Com-mission, before granting such appli-cation, 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 thereof or the lands affected thereby are situated. (16 U.S.C. 797)

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Conditions of License Generally

Sec. 10. All licenses issued under this Part shall be on the fol-lowing 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 4(e) of this Act 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 rele-vant resources of the State in which the project is located, and the rec-ommendations (including fish and wildlife recom-men-da-tions) of Indian tribes affected by the project.

(C) In 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 improve-ment program of the appli-cant, including its plans, perfor-mance and capabilities for encourag-ing or assisting its customers to conserve electricity cost-effectively, taking into account the published policies, restrictions, and require-ments of relevant State regulatory authorities applicable to such appli-cant.

(3) Upon receipt of an applica-tion for a license, the Commission shall solicit recommendations from the agencies and Indian tribes iden-tified in subpara-graphs (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 one hundred horsepower without the prior approval of the Commission; and any emergency alteration or addition so made shall thereafter be subject to such modifi-cation and change as the Commis-sion may direct.

(c) That the licensee shall main-tain 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 con-struc-tion, 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.

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(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 Part, including any reasonable and necessary costs incurred by Federal and State fish and wildlife agencies and other natural and cultural resource agen-cies in connection with studies or other reviews carried out by such agencies for purposes of administering their responsibilities under this Part; 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 reser-vations the Commission shall, sub-ject to the approval of the Secre-tary of the Interior in the case of such dams or structures in reclama-tion projects and, in the case of such tribal lands, subject to the approval of the Indian tribe having jurisdic-tion of such lands as provided in section 16 of the Act of June 18, 1934 (48 Stat. 984), fix a reasonable annual charge for the use thereof, and such charges may with like approval be readjust-ed by the Com-mission 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 the li-censes for the development, trans-mission, or distri-bution of power for domestic, min-ing, or other beneficial use in pro-jects of not more than two thousand horsepower installed ca-pacity may be issued without charge, except on tribal lands within Indian reserva-tions; but in no case shall a license be issued free of charge for the development and utilization of pow-er created by any Government dam and that the amount charged there-for in any license shall be such as determined by the Commis-sion: Provided how-ever, That no charge shall be as-sessed for the use of any Govern-ment dam or structure by any li-censee 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 contact 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.

(i) the Quincy-Columbia Basin Irrigation District (Contract No. 14-06-100-6418);

(ii) the East Columbia Basin Irrigation District (Contract No. 14-06-100-6419; or,

(iii) the South Columbia Basin Irrigation District (Contract No. 14-06-100-6420).

This paragraph shall apply to any project covered by a contract re-ferred to in this paragraph only during the term of such contract unless otherwise provided by subsequent Act of Congress. In the event an overpayment of any charge due under this section shall be made by a licensee, the Commission is autho-rized to allow a credit for such overpay-ment when charges are due for any subsequent period.

(2) In the case of licenses involving the use of Government dams or other structures owned by the Unit-ed States, the charges fixed (or readjust-ed) 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, 1 1/2 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) of this section, 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 para-graph (2) shall apply with respect to-

(A) all licenses issued after Oct. 16, 1986; and

(B) all licenses issued before Oct. 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.

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(i) In issuing licenses for a minor part only of a complete project, or for a complete project of not more than one hundred horsepower installed capacity, the Commission may in its discretion waive such conditions, provisions, and requirements of this Part, 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 Nation-al Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies.

(2) Whenever the Commission be-lieves that any recommendation referred to in paragraph (1) may be inconsistent with the purposes and requirements of this subchapter or other applicable law, the Commis-sion and the agencies referred to in paragraph (1) shall attempt to re-solve any such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibili-ties of such agencies. If, after such attempt, the Commission does not adopt in whole or in part a recom-mendation 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 Act or with other applicable provisions of law.

(B) A finding that the condi-tions selected by the Commission comply with the requirements of paragraph (1).

Subsection (i) of this section shall not apply to the conditions required under this subsection. (16 U.S.C. 803)

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Time Limit for Construction of Project Works; Extension of Time; Termina-tion or Revocation of Licenses for Delay

Sec. 13. That the licensee shall commence the construction of the project works within the time fixed in the license, which shall not be more than two years from the date thereof, shall thereafter in good faith and with due diligence prosecute such construction, and shall within the time fixed in the license com-plete and put into operation such part of the ultimate develop-ment as the commission shall deem necessary to supply the reasonable needs of the then available market, and shall from time to time thereafter construct such portion of the bal-ance of such development as the commission may direct, so as to supply adequately the reasonable market demands until such develop-ment shall have been completed. The periods for the commence-ment of construction may be extended once but not longer than two addi-tional years and the period for the completion of construction carried on in good faith and with reasonable diligence may be extended by the commis-sion when not incompatible with the public interests. In case the licensee shall not commence actual construction of the project works, or of any specified part thereof, within the time prescribed in the license or as extended by the commission, then, after due notice given, the license shall, as to such project works or part thereof, be terminated upon written order of the commission. In case the construc-tion of the project works, or of any specified part thereof, have been begun but not completed within the time prescribe in the license, or as extended by the commission, then the Attorney General, upon the request of the commission, shall institute proceedings in equity in the district court of the United States for the district in which any part of the project is situated for the revocation of said license, the sale of the works constructed, and such other equitable relief as the case may demand, as provided for in section 26 hereof. (16 U.S.C. 806)

Right of Government to Take Over Project Works

Sec. 14. (a) Upon not less than two years' notice in writing from the Commission the United States shall have the right upon or after the expiration of any license to take over and thereafter to maintain and operate any project or projects as defined in section 3 hereof, and covered in whole or in part by the license, or the right to take over upon mutual agreement with the licensee all property owned and held by the licensee then valuable and serviceable in the development, transmission, or distribution of pow-er and which is then dependent for its usefulness upon the continuance of the license, together with any locks or locks or other aids to navi-gation constructed as the expense of the licensee, upon the condition that before taking possession it shall pay the net investment of the licensee in the project or projects taken, not to exceed the fair value of the property taken, plus such reasonable damag-es, if any, to property of the licens-ee valuable, serviceable, and depen-dent as above set forth but not tak-en, as may be caused by the sever-ance therefrom of property taken, and shall assume all contract entered into by the licensee with the approv-al of the Commission. The net investment of the licensee in the project or projects so taken and the amount of such severance damages, if any, shall be determined by the Commission after notice and oppor-tunity for hearing. Such net invest-ment shall not include or be affected by the value of any lands, rights-of-way, or other property of the United States licensed by the Commission under this Act, by the license or by good will, going value, or prospec-tive revenues; nor shall the values allowed for water rights, rights-of-way, lands, or interest in lands be in excess of the actual reasonable cost thereof at the time of acquisition by the licensee: Provided, That the right of the Unit-ed States or any State or municipali-ty to take over, maintain, and oper-ate any project licensed under this Act at any time by condemnation proceedings upon payment of just compensation is hereby expressly reserved.

(b) In any relicensing proceeding before the Commission any Federal department or agency may timely recommend, pursuant to such rules as the Commission shall prescribe, that the United States exercise its right to take over any project or projects. Thereafter, the Commis-sion, if it does not itself recommend such action pursuant to the provi-sions of section 7(c) of this title, shall upon motion of such depart-ment or agency stay the effective date of any order issuing a license, except an order issuing an annual license in accordance with the pro-viso of section 15(a) of this Act, for two years after the date of issuance of such order, after which period the stay shall terminate, unless terminat-ed earlier upon motion of the de-partment or agency requesting the stay or by action of Congress. The Commission shall notify the Con-gress of any stay granted pursuant to this subsection. (16 U.S.C. 807)

New Licenses and Renewals: Licenses for Nonpower Use; Recordkeeping

Sec. 15. (a)(1) If the United States does not, at the expiration of the existing license, exercise its right to take over, maintain, and operate any project or projects of the licensee, as provided in section 14 hereof, the commission is autho-rized to issue a new license to the existing licensee upon such terms and conditions as may be authorized or required under the then existing laws and regulations, or to issue a new license under said terms and conditions to a new licensee, which license may cover any project or projects covered by the existing license, and shall be issued on the condition that the new licensee shall, before taking possession of such project or projects, pay such amount, and assume such contracts as the United States is required to do, in the manner specified in sec-tion 14 hereof: Provided, That in the event the United States does not exercise the right to take over or does not issue a license to a new licensee, or issue a new license to the existing licensee, upon reason-able terms, then the commission shall issue from year to year an annual license to the then licensee under the terms and conditions of the existing license until the proper-ty is taken over or a new license is issued as aforesaid.

(2) Any new license issued under this section shall be issued to the applicant having the final proposal which the Commission determines is best adapted to serve the public interest, except that in making this determination the Commission shall ensure that insignificant differences with regard to subparagraphs (A) through (G) of this paragraph between competing applications are not determinative and shall not result in the transfer of a project. In making a determination under this section (whether or not more than one application is submitted for the project), the Commission shall, in addition to the requirements of section 10 of this Act, consider (and explain such consideration in writing) each of the following:

(A) The plans and abilities of the applicant to comply with-

(i) the articles, terms, and conditions of any license issued to it; and

(ii) other applicable provisions of this subchapter.

(B) The plans of the appli-cant to manage, operate and main-tain the project safely.

(C) The plans and abilities of the applicant to operate and maintain the project in a manner most likely to provide efficient and reliable electric service.

(D) The need of the appli-cant over the short and long term for the electricity generated by the project or projects to serve its cus-tomers, including, among other relevant considerations, the reason-able costs and reasonable availability of alternative sources of power, taking into consideration conservation and other relevant factors and taking into consideration the effect on the provider (including its customers) of the alternative source of power, the effect on the applicant's operating and load characteris-tics, the effect on communities served or to be served by the project, and the case of an applicant using power for the applicant's own industrial facili-ty and related operations, the effect on the operation and efficiency of such facility or related operations, its workers, and the related commu-nity. In the case of an applicant that is an Indian tribe applying for a license for a project located on the tribal reservation, a statement of the need of such tribe for electricity generated by the project to foster the purposes of the reservation may be included.

(E) The existing and planned transmission services of the applicant, taking into consideration system reliability, costs, and other applicable economic and technical factors.

(F) Whether the plans of the applicant will be achieved, to the greatest extent possible, in a cost effective manner.

(G) Such other factors as the Commission may deem relevant, except that the terms and conditions in the license for the protection, mitigation, or enhancement of fish and wildlife resources affected by the develop-ment, operation, and management of the project shall be determined in accordance with sec-tion 10 of this Act, and the plans of an applicant concerning fish and wildlife shall not be subject to a comparative evaluation under this subsection.

(3) In the case of an application by the existing licensee, the Commission shall also take into consideration each of the following: (A) The existing licensee's record of compliance with the terms and conditions of the existing license.

(B) The actions taken by the existing licensee related to the project which affect the public.

(b)(1) Each existing licensee shall notify the Commission whether the licensee intends to file an applica-tion for a new license or not. Such notice shall be submitted at least 5 years before the expiration of the existing license.

(2) At the time notice is pro-vided under paragraph (1), the exist-ing licensee shall make each of the following reasonably available to the public for inspection at the offices of such licensee: current maps, drawings, data, and such other information as the Commis-sion shall, by rule, require regarding the construction and operation of the licensed project. Such information shall include, to the greatest extent practicable pertinent energy conser-vation, recreation, fish and wildlife, and other environmental informa-tion. Copies of the information shall be made available at reason-able costs of reproduction. Within 180 days after Oct. 16, 1986, the Commission shall promulgate regulations regarding the information to be provided under this paragraph.

(3) Promptly following receipt of notice under paragraph (1), the Commission shall provide public notice of whether an existing licens-ee intends to file or not to file an application for a new license. The Commission shall also promptly notify the National Marine Fisheries Service and the United States Fish and Wildlife Service, and the appro-priate State fish and wildlife agen-cies.

(4) The Commission shall require the applicant to identify any Federal or Indian lands included in the project boundary, together with a statement of the annual fees paid as required by this subchapter for such lands, and to provide such additional information as the Com-mission deems appropriate to carry out the Commission's responsibili-ties under this section.

(c)(1) Each application for a new license pursuant to this section shall be filed with the Commission at least 24 months before the expira-tion of the term of the existing license. Each applicant shall consult with the fish and wildlife agencies referred to in subsection (b) of this section and, as appropriate, conduct studies with such agencies. Within 60 days after the statutory deadline for the submission of applications, the Commission shall issue a notice establishing expeditious procedures for relicensing and a deadline for submission of final amendments, if any, to the application.

(2) The time periods specified in this subsection and in subsection (b) of this section shall be adjusted, in a manner that achieves the objec-tives of this section, by the Com-mission by rule or order with re-spect to existing licensees who, by reason of the expiration dates of their licenses, are unable to comply with a specified time period.

(d)(1) In evaluating applications for new licenses pursuant to this section, the Commission shall not consider whether an applicant has adequate transmission facilities with regard to the project.

(2) When the Commission is-sues a new license (pursuant to this section) to an applicant which is not the existing licensee of the project and finds that it is not feasi-ble for the new licensee to utilize the ener-gy from such project with-out provi-sion by the existing licens-ee of rea-sonable services, including trans-mission services, the Commis-sion shall give notice to the existing licensee and the new licensee to im-mediately enter into negotiations for such services and the costs dem-onstrated by the existing licensee as being related to the provision of such services. It is the intent of Congress that such negotiations be carried out in good faith and that a timely agreement be reached be-tween the parties in order to facili-tate the transfer of the license by the date established when the Commis-sion issued a new license. If such parties do not notify the Commis-sion that within the time established by the Commission in such notice (and if appropriate, in the judgment of the Commission, one 45-day ex-tension thereof), a mutually satis-factory arrangement for such servic-es that is consistent with the provi-sions of this chapter has been executed, the Commission shall order the existing licensee to file (pursuant to section 205 of this Act) with the Commission a tariff, subject to refund, ensuring such services beginning on the date of transfer of the project and including just and reasonable rates and reasonable terms and conditions. After notice and opportunity for a hearing, the Commission shall issue a final order adopting or modifying such tariff for such services at just and reasonable rates in accordance with section 205 of this Act and in accordance with reasonable terms and condi-tions. The Commission, in issuing such order, shall ensure the services necessary for the full and efficient utilization and benefits for the li-cense term of the electric ener-gy from the project by the new licensee in accordance with the license and this subchapter, except that in issu-ing such order the Commission-

(A) shall not compel the existing licensee to enlarge generat-ing facili-ties, transmit electric ener-gy other than to the distribution system (pro-viding service to cus-tomers) of the new licensee identi-fied as of the date one day preced-ing the date of license award, or require the acqui-sition of new facili-ties, includ-ing the upgrading of existing facili-ties other than any reasonable en-hancement or improve-ment of exist-ing facilities controlled by the exist-ing licensee (including any acquisi-tion related to such en-hancement or improvement) neces-sary to carry out the purposes of this paragraph;

(B) shall not adversely affect the continuity and reliability of service to the customers of the existing licensee;

(C) shall not adversely affect the operational integrity of the transmission and electric systems of the existing licensee;

(D) shall not cause any reasonably quantifiable increase in the jurisdic-tional rates of the exist-ing licensee; and

(E) shall not order any entity other than the existing licensee to provide transmission or other services.

Such order shall be for such period as the Commission deems appropri-ate, not to exceed the term of the license. At any time, the Commission, upon its own motion or upon a petition by the existing or new licensee and after notice and opportunity for a hearing, may mod-ify, extend, or terminate such order.

(e) Except for an annual license, any license issued by the commis-sion under this section shall be for a term which the Commission deter-mines to be in the public interest but not less than 30 years, nor more than 50 years, from the date on which the license is issued.

(f) In issuing any licenses under this section except an annual license, the Commission, on its own motion or upon application of any licensee, person, State, municipality, or State commission, after notice to each State commission and licensee affected, and after opportunity for hearing, whenever it finds that in conformity with a comprehensive plan for improving or developing a waterway or waterways for benefi-cial public uses all or part of any licensed project should no longer be used or adapted for use for power purposes, may license all or part of the project works for nonpower use. A license for nonpower use shall be issued to a new licensee only on the condition that the new licensee shall, before taking possession of the facilities encompassed thereunder, pay such amount and assume such contracts as the United States is required to do, in the manner specified in section 14 of this Act. Any license for nonpower use shall be a temporary license. Whenever, in the judgment of the Commission, a State, municipali-ty, interstate agency, or another Federal agency is authorized and willing to assume regulatory supervision of the lands and facilities included under the nonpower license and does so, the Commission shall thereupon termi-nate the license. Consistent with the provisions of subchapter IV of this chapter, every licensee for nonpower use shall keep such accounts and file such annual and other periodic or special reports concerning the removal, alteration, nonpower use, or other disposition of any project works or parts thereof covered by the nonpower use license as the Commission may by rules and regu-lations or order prescribed as neces-sary or appropriate. (16 U.S.C. 808)

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Exercise by Licensee of Power of Eminent Domain

Sec. 21. That when any licensee can not acquire by contract or pledges an unimproved dam site or the right to use or damage the lands or property of others necessary to the construction, maintenance, or operation of any dam, reservoir, diversion structure, or the works appurtenant or accessory thereto, in conjunction with an improvement which in the judgment of the commission is desirable and justified in the public interest for the purpose of improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, it may acquire the same by the exer-cise of the right of eminent domain in the district court of the United States for the district in which such land or other property may be locat-ed, or in the State courts. The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the proper-ty is situated: Provided, That Unit-ed States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned ex-ceeds $3,000; Provided further, that no license may use the right of eminent domain under this section to acquire any lands or other proper-ty that, prior to October 24, 1992, were owned by a State or political subdi-vision thereof and were part of or included within any public park, recreation area or wildlife refuge established under State or local law. In the case of lands or other proper-ty that are owned by a State or political subdivision and are part of or included within a public park, recreation area or wildlife refuge established under State or local law on or after October 24, 1992, no licensee may use the right of emi-nent domain under this section to acquire such lands or property un-less there has been a public hearing held in the affected community and a finding by the Commission, after due consider-ation of expressed public views and the recommendations of the State or political subdivision that owns the lands or property, that the license will not interfere or be inconsistent with the purposes for which such lands or property are owned. (16 U.S.C. 814)

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Public Lands Included in Project; Reservation of Lands from Entry

Sec. 24. Any lands of the United States included in any proposed project under the provisions of this Part shall from the date of filing of application therefor be reserved from entry, location, or other dis-posal under the laws of the United States until otherwise directed by the Commission or by Congress. Notice that such application has been made, together with the date of filing thereof and a description of the lands of the United States affect-ed thereby, shall be filed in the local land office for the district in which such lands are located. Whenever the Commission shall determine that the value of any lands of the United States so applied for, or heretofore or hereafter reserved or classified as power sites, will not be injured or destroyed for the purposes of power development by location, entry, or selection under the public land laws, the Secretary of the Interior, upon notice of such determination, shall declare such lands open to location, entry, or selection, for such purpose or purposes and under such restrictions as the Commission may determine, subject to and with a reservation of the right of the United States or its permittees or licensees to enter upon, occupy, and use any part or all of said lands necessary, in the judgment of the Commission, for the purposes of this Part, which right shall be expressly reserved in every patent issued for such lands; and no claim or right to compensa-tion shall accrue from the occupa-tion or use of any of said lands for said purposes. The United States or any licensee for any such lands hereunder may enter thereupon for the purposes of this Part, upon pay-ment of any damages to crops, buildings, or other improvements caused thereby to the owner thereof, or upon giving a good and sufficient bond to the United States for the use and benefit of the owner to secure the payment of such damages as may be determined and fixed in an action brought upon the bond in a court of competent jurisdiction, said bond to be in the form prescribed by the Commission: Provided, That locations, entries, selections, or filings heretofore made for lands reserved as water-power sites, or in connection with water-power development, or electrical transmission may proceed to approval or patent under and subject to the limitations and condi-tions in this section contained. Provided further, That before any lands applied for, or heretofore or hereafter reserved, or classified as power sites, are declared open to location, entry, or selection by the Secretary of the Interior, notice of intention to make such declaration shall be given to the Governor of the State within which such lands are located, and such State shall have ninety days from the date of such notice within which to file, under any statute or regulation applicable thereto, an application for the reservation to the State, or any political subdivision thereof, of any lands required as a right-of-way for a public highway or as a source of materials for the construction and maintenance of such highways, and a copy of such application shall be filed with the Federal Power Com-mission; and any location, entry, or selection of such lands, or subse-quent patent thereof, shall be subject to any rights granted the State pur-suant to such application. (16 U.S.C. 818)

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State Laws and Water Rights Unaffected

Sec. 27. That nothing herein contained shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irriga-tion or for municipal or other uses, or any vested right acquired therein. (16 U.S.C. 821)

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Conduit Hydroelectric Facilities

Note-Original Section 30 was repealed by P.L. 74-333. P.L. 95-617, Title II, section 213, Act of November 9, 1978, added this new section 30.

Sec. 30. (a) Except as provided in subsection (b) or (c) of this sec-tion, 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) is located on non-Federal lands, and

(2) utilizes for such generation only the hydroelectric potential of a manmade conduit, which is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity.

(b) The Commission may not grant any exemption under subsec-tion (a) of this section to any facili-ty the installed capacity of which exceeds 15 megawatts (40 mega-watts in the case of a facility con-structed, operated, and main-tained by an agency or instrumental-ity of a State or local government solely for water supply for municipal purposes).

(c) In making the determination under subsection (a) of this section the Commission shall consult with the United States Fish and Wildlife Service, National Marine Fisheries Service and the State agency exercising adminis-tration 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, National Marine Fisheries Service 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 appropri-ate to insure that such facility con-tinues to comply with the provisions of this section and terms and condi-tions included in any such exemp-tion.

(d) Any violation of a term or condition of any exemption granted under subsection (a) of this section shall be treated as a viola-tion of a rule or order of the Com-mission under this Act.

(e) The Com-mission in addition to the require-ments of section 10(e) of this Act, shall establish fees which shall be paid by an applicant for a license or exemption for a project that is re-quired to meet terms and conditions set by fish and wildlife agencies under Section (c) of this section. Such fees shall be adequate to reimburse the fish and wildlife agencies referred to in subsection (c) of this section 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. (16 U.S.C. 823a)

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Enforcement

Sec. 31. (a) The Commission shall monitor and investigate com-pliance with each license and permit issued under this subchapter and with each exemption granted from any requirement of this subchapter. The Commis-sion shall conduct such investigations as may be necessary and proper in accordance with this chapter. After notice and opportuni-ty for public hearing, the Commis-sion may issue such orders as neces-sary to require compliance with the terms and conditions of licenses and permits issued under this subchapter and with the terms and conditions of exemptions granted from any re-quirement of this subchapter.

(b) After notice and opportunity for an evidentiary hearing, the Com-mis-sion may also issue an order revoking any license issued under this subchapter or any exemption granted from any requirement of this subchapter where any licensee or exemptee is found by the Com-mission:

(1) to have knowingly violated a final order issued under subsection (a) of this section after completion of judicial review (or the opportuni-ty for judicial review); and

(2) to have been given reason-able time to comply fully with such order prior to commencing any revocation proceeding.

In any such proceeding, the order issued under subsection (a) of this section shall be subject to de novo review by the Commission. No order shall be issued under this subsection until after the Commis-sion has taken into consideration the nature and subsection until after the Commission has taken into consid-eration the nature and seriousness of the violation and the efforts of the licensee to remedy the violation.

(c) Any licensee, permittee, or exemptee who violates or fails or refuses to comply with any rule or regulation under this subchapter, any term, or condition of a license, permit, or exemption under this subchapter, or any order issued under subsection (a) of this section shall be subject to a civil penalty in an amount not to exceed $10,000 for each day that such violation or failure or refusal continues. Such penalty shall be assessed by the Commission after notice and oppor-tunity for public hearing. In deter-mining the amount of a pro-posed penalty, the Commission shall take into consider-ation the nature and seriousness of the violation, failure, or refusal and the efforts of the licensee to remedy the violation, failure, or refusal in a timely manner. No civil penalty shall be assessed where revocation is ordered. (16 U.S.C. 823b)

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Interconnection Authority

Sec. 210. (a)(1) Upon application of any electric utility, Federal power marketing agency, geothermal power producer (including a producer which is not an electric utility), qualifying cogenerator, or qualifying small power producer, the Commis-sion may issue an order requiring-

(A) the physical connection of any cogeneration facility, any small power production facility, or the transmission facilities of any electric utility, with the facilities of such applicant,

(B) such action as may be necessary to make effective any physical connection described in subparagraph (A), which physical connection is ineffective for any reason, such as inadequate size, poor maintenance, or physical unre-liability,

(C) such sale or exchange of electric energy or other coordina-tion, as may by necessary to carry out the purposes of any order under subpara-graph (A) or (B), or

(D) such increase in transmission capacity as may be necessary to carry out the purposes of any order under subparagraph (A) or (B).

(2) Any State regulatory authority may apply to the Commission for an order for any action referred to in subparagraph (A), (B), (C), or (D) of paragraph (1). No such order may be issued by the commission with respect to a Feder-al power market-ing agency upon application of a State regulatory authority. (b) Upon receipt of an application under subsection (a) of this section, the Commission shall-

(1) issue notice to each affect-ed State regulatory authority, each affected electric utility, each affect-ed Federal power marketing agency, each affected owner or operator of a cogeneration facility or of a small power production facility, and to the public.

(2) afford an opportunity for an evidentiary hearing, and

(3) make a determination with respect to the matters referred to in subsection (c) of this section.

(c) No order may be issued by the Commission under subsection (a) of this section unless the Com-mission determines that such or-der-

(1) is in the public interest,

(2) would-

(A) encourage overall con-servation of energy or capital,

(B) optimize the efficiency of use of facilities and resources, or

(C) improve the reliability of any electric utility system or Federal power marketing agency to which the order applies, and

(3) meets the requirements of section 212 of this Act.

(d) The Commission may, on its own motion, after compliance with the requirements of paragraphs (1) and (2) of subsection (b) of this section, issue an order requiring any action described in subsection (a)(1) of this section if the Commission determines that such order meets the requirements of subsection (c) of this section. No such order may be issued upon the Commission's own motion with respect to a Federal power marketing agency.

(e)(1) As used in this section, the term "facilities" means only facili-ties used for the generation or trans-mission of electric energy.

(2) With respect to an order issued pursuant to an application of a qualifying cogenerator or qualify-ing small power producer under subsection (a)(1) of this section, the term "fa-cilities of such applicant" means the qualifying cogeneration facilities or qualifying small power production facilities of the applicant, as speci-fied in the application. With respect to an order issued pursuant to an application under subsection (a)(2) of this section, the term "fa-cilities of such applicant" means the qualifying cogeneration facilities, qualifying small power production fac-ilities, or the transmission facili-ties of an electric utility, as speci-fied in the application. With respect to an order issued by the Commis-sion on its own motion under sub-section (d) of this section, such term means the qualifying cogeneration facilities, qualifying small power production facilities, or the transmission facilities of an electric utility, as specified in the proposed order. (16 U.S.C. 824i)

Wheeling Authori-ty

Sec. 211. (a) Any electric utility, Federal power marketing agency, or any other person generating elec-tric energy for sale or resale, may apply to the Commission for an order un-der this subsection re-quiring and trans-mitting utility to provide trans-mission ser-vices to the appli-cant (including any enlarge-ment of trans-mission capaci-ty neces-sary to pro-vide such servic-es). Upon re-ceipt of such applica-tion, after pub-lic notice and notice to each affect-ed State reg-ula-tory au-thority, each affected electric utility, and each affected Federal power market-ing agency, and after afford-ing an op-portunity for an evidentiary hear-ing, the Com-mission may issue such order if it finds that such order meets the re-quirements of section 212 of this Act, and would other-wise be in the public interest. No order may be is-sued under this subsection unless the applicant has made a request for transmission services to the trans-mitting utility that would be the sub-ject of such order at least 60 days prior to its filing of an applica-tion for such order. . . . (16 U.S.C. 824j)

Orders Requiring Interconnection or Wheeling

Sec. 212. (a) No order may be issued by the Commission under section 210 of this Act or subsection (a) or (b) of section 211 unless the Commis-sion determines that such order-

(1) is not likely to result in a reasonable ascertainable uncompen-sated economic loss for any electric utility, qualifying cogenerator, or qual-ifying small power producer, as the case may be, affected by the order;

(2) will not place an undue burden on an electric utility, qualify-ing cogenerator, or qualifying small power producer, as the case may be, affected by the order;

(3) will not unreasonably im-pair the reliability of any electric utility affected by the order; and

(4) will not impair the ability of any electric utility affected by the order to render adequate service to its customers.

The determination under para-graph (1) shall be based upon a showing of the parties. The Com-mission shall have no authority under section 210 or 211 of this Act to compel the enlargement of gener-ating facilities.

(b) No order may be issued under section 210 of this Act or subsection (a) or (b) of section 211 of this Act unless the applicant for such order demonstrates that he is ready, will-ing, and able to reimburse the party subject to such order for-

(1) in the case of an order under section 210 of this Act, such party's share of the reasonably anticipated costs incurred under such order, and

(2) in the case of an order under subsection (a) or (b) of section 211 of this Act-

(A) the reasonable costs of transmission services, including the costs of any enlargement of trans-mission facilities, and

(B) a reasonable rate of return on such costs, as appropriate, as deter-mined by the Commission.

(c)(1) Before issuing an order under section 210 of this Act or subsection (a) or (b) of section 211 of this Act, the Commission shall issue a proposed order and set a reasonable time for parties to the proposed interconnection or trans-mission order to agree to terms and conditions under which such order is to be carried out, including the apportionment of costs between them and the compensation or reim-bursement reasonably due to any of them. Such proposed order shall not be reviewable or enforceable in any court. The time set for such parties to agree to such terms and conditions may be shortened if the Commission determines that delay would jeopardize the attainment of the purposes of any proposed order. Any terms and conditions agreed to by the parties shall be subject to the approval of the Commission.

(2)(A) If the parties agree as provided in paragraph (1) within the time set by the Commission and the Commission approves such agree-ment, the terms and conditions shall be included in the final order. In the case of an order under section 210 of this Act, if the parties fail to agree within the time set by the Commission or if the Commission does not approve any such agreement, the Commission shall prescribe such terms and conditions and include such terms and condi-tions in the final order.

(B) In the case of any order applied for under section 211 of this Act, if the parties fail to agree with-in the time set by the Commis-sion, the Commission shall prescribe such terms and conditions in the final order.

(d) If the Commission does not issue any order applied for under section 210 or 211 of this Act, the Commission shall, by order, deny such application and state the rea-sons for such denial.

(e) No provision of section 210 or 211 of this Act shall be treated-

(1) as requiring any person to utilize the authority of such section 210 or 211 of this Act in lieu of any other authority of law, or

(2) as limiting, impairing, or otherwise affecting any authority of the Commission under any other provision of law. (16 U.S.C. 824k)

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Short Title

Sec. 321. This Act may be cited as the "Federal Power Act". (16 U.S.C. 791a)