16 U.S.C. § 823a

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 823a - Conduit hydroelectric facilities

(a) Qualifying conduit hydropower facilities

(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) Exemption qualifications

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) Consultation with Federal and State agencies

In making the determination under subsection (b) the Commission shall consult with the United States Fish and Wildlife Service¹ National Marine Fisheries Service¹ 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 Service¹ National Marine Fisheries Service¹ 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) Violation of terms of exemption

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) Fees for studies

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.

¹So in original. Probably should be followed by a comma.

16 U.S.C. § 823a

June 10, 1920, ch. 285, pt. I, §30, as added Pub. L. 95-617, title II, §213, Nov. 9, 1978, 92 Stat. 3148; amended Pub. L. 99-495, §7, Oct. 16, 1986, 100 Stat. 1248; Pub. L. 113-23, §4(a), Aug. 9, 2013, 127 Stat. 494; Pub. L. 115-270, title III, §30023002,, 132 Stat. 3863.

EDITORIAL NOTES

REFERENCES IN TEXTThe 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, Short Title note set out under section 661 of this title, and Tables.

PRIOR PROVISIONSA 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.

AMENDMENTS2018-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 AMENDMENT Amendment by Pub. L. 99-495 effective with respect to each license, permit, or exemption issued under this chapter after Oct. 16, 1986, see section 18 of Pub. L. 99-495 set out as a note under section 797 of this title.

APPLICATION OF SUBSECTION (C) Pub. L. 99-495, §8(c), Oct. 16, 1986, 100 Stat. 1251, provided that: "Nothing in this Act [see Short Title 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]."

Commission: "Commission" and "Commissioner" means the Federal Power Commission, and a member thereof, respectively;
State: "State" means a State admitted to the Union, the District of Columbia, and any organized Territory of the United States;
municipal purposes: "municipal purposes" means and includes all purposes within municipal powers as defined by the constitution or laws of the State or by the charter of the municipality;
municipality: "municipality" means a city, county, irrigation district, drainage district, or other political subdivision or agency of a State competent under the laws thereof to carry on the business of developing, transmitting, utilizing, or distributing power;
person: "person" means an individual or a corporation;
project: "project" means complete unit of improvement or development, consisting of a power house, all water conduits, all dams and appurtenant works and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit;