16 U.S.C. § 807 — Right of Government to take over project

Page 1381 TITLE 16—CONSERVATION § 807 1 So in original. Probably should be ‘‘it’’. project works, or of any specified part thereof, within the time prescribed in the license or as extended by the commission, then, after due no- tice given, the license shall, as to such project works or part thereof, be terminated upon writ- ten order of the commission. In case the con- struction of the project works, or of any speci- fied part thereof, has been begun but not com- pleted within the time prescribed in the license, or as extended by the commission, then the At- torney General, upon the request of the commis- sion, shall institute proceedings in equity in the district court of the United States for the dis- trict 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 re- lief as the case may demand, as provided for in section 820 of this title. (June 10, 1920, ch. 285, pt. I, § 13, 41 Stat. 1071; re- numbered pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat. 847; amended Pub. L. 115–270, title III, § 3001(b), Oct. 23, 2018, 132 Stat. 3862.) Editorial Notes REFERENCES IN TEXT Proceedings in equity, referred to in text, were abol- ished by the adoption of rule 2 of the Federal Rules of Civil Procedure, set out in the Appendix to Title 28, Ju- diciary and Judicial Procedure, which provided that ‘‘there shall be one form of action to be known as ‘civil action’ ’’. AMENDMENTS 2018—Pub. L. 115–270 substituted ‘‘for not more than 8 additional years,’’ for ‘‘once but not longer than two additional years’’ in second sentence. § 807. Right of Government to take over project works (a) Compensation; condemnation by Federal or State Government Upon not less than two years’ notice in writ- ing from the commission the United States shall have the right upon or after the expiration of any license to take over and thereafter to main- tain and operate any project or projects as de- fined in section 796 of this title, and covered in whole or in part by the license, or the right to take over upon mutual agreement with the li- censee all property owned and held by the li- censee then valuable and serviceable in the de- velopment, transmission, or distribution of power and which is then dependent for its use- fulness upon the continuance of the license, to- gether with any lock or locks or other aids to navigation constructed at the expense of the li- censee, 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 damages, if any, to property of the licensee valuable, serviceable, and depend- ent as above set forth but not taken, as may be caused by the severance therefrom of property taken, and shall assume all contracts entered into by the licensee with the approval 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 opportunity for hearing. Such net invest- ment shall not include or be affected by the value of any lands, rights-of-way, or other prop- erty of the United States licensed by the Com- mission under this chapter, by the license or by good will, going value, or prospective 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 United States or any State or municipality to take over, maintain, and op- erate any project licensed under this chapter at any time by condemnation proceedings upon payment of just compensation is expressly re- served. (b) Relicensing proceedings; Federal agency rec- ommendations of take over by Government; stay of orders for new licenses; termination of stay; notice to Congress In any relicensing proceeding before the Com- mission 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 Commission, if its 1 does not itself recommend such action pursuant to the provisions of section 800(c) of this title, shall upon motion of such department or agency stay the effective date of any order issuing a license, except an order issuing an an- nual license in accordance with the proviso of section 808(a) of this title, for two years after the date of issuance of such order, after which period the stay shall terminate, unless termi- nated earlier upon motion of the department or agency requesting the stay or by action of Con- gress. The Commission shall notify the Congress of any stay granted pursuant to this subsection. (June 10, 1920, ch. 285, pt. I, § 14, 41 Stat. 1071; re- numbered pt. I and amended, Aug. 26, 1935, ch. 687, title II, §§ 207, 212, 49 Stat. 844, 847; Pub. L. 90–451, § 2, Aug. 3, 1968, 82 Stat. 617; Pub. L. 99–495, § 4(b)(2), Oct. 16, 1986, 100 Stat. 1248.) Editorial Notes AMENDMENTS 1986—Subsec. (b). Pub. L. 99–495 struck out first sen- tence which read as follows: ‘‘No earlier than five years before the expiration of any license, the Commission shall entertain applications for a new license and de- cide them in a relicensing proceeding pursuant to the provisions of section 808 of this title.’’ 1968—Pub. L. 90–451 designated existing provisions as subsec. (a) and added subsec. (b). 1935—Act Aug. 26, 1935, § 207, amended section gen- erally. 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. Page 1382 TITLE 16—CONSERVATION § 808 § 808. New licenses and renewals (a) Relicensing procedures; terms and condi- tions; issuance to applicant with proposal best adapted to serve public interest; factors considered (1) If the United States does not, at the expira- tion of the existing license, exercise its right to take over, maintain, and operate any project or projects of the licensee, as provided in section 807 of this title, the commission is authorized 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 reg- ulations, or to issue a new license under said terms and conditions to a new licensee, which li- cense 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 man- ner specified in section 807 of this title: Provided, That in the event the United States does not ex- ercise 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 reasonable 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 property 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 Commis- sion 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 require- ments of section 803 of this title, 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 con- ditions of any license issued to it and (ii) other applicable provisions of this subchapter. (B) The plans of the applicant to manage, operate, and maintain the project safely. (C) The plans and abilities of the applicant to operate and maintain the project in a man- ner most likely to provide efficient and reli- able electric service. (D) The need of the applicant over the short and long term for the electricity generated by the project or projects to serve its customers, including, among other relevant consider- ations, the reasonable costs and reasonable availability of alternative sources of power, taking into consideration conservation and other relevant factors and taking into consid- eration the effect on the provider (including its customers) of the alternative source of power, the effect on the applicant’s operating and load characteristics, the effect on commu- nities served or to be served by the project, and in the case of an applicant using power for the applicant’s own industrial facility and re- lated operations, the effect on the operation and efficiency of such facility or related oper- ations, its workers, and the related commu- nity. In the case of an applicant that is an In- dian tribe applying for a license for a project located on the tribal reservation, a statement of the need of such tribe for electricity gen- erated 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 consider- ation system reliability, costs, and other ap- plicable 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 wild- life resources affected by the development, op- eration, and management of the project shall be determined in accordance with section 803 of this title, and the plans of an applicant con- cerning fish and wildlife shall not be subject to a comparative evaluation under this sub- section. (3) In the case of an application by the exist- ing licensee, the Commission shall also take into consideration each of the following: (A) The existing licensee’s record of compli- ance with the terms and conditions of the ex- isting license. (B) The actions taken by the existing li- censee related to the project which affect the public. (b) Notification of intention regarding renewal; public availability of documents; notice to public and Federal agencies; identification of Federal or Indian lands included; additional information required (1) Each existing licensee shall notify the Commission whether the licensee intends to file an application for a new license or not. Such no- tice shall be submitted at least 5 years before the expiration of the existing license. (2) At the time notice is provided under para- graph (1), the existing licensee shall make each of the following reasonably available to the pub- lic for inspection at the offices of such licensee: current maps, drawings, data, and such other in- formation as the Commission shall, by rule, re- quire regarding the construction and operation of the licensed project. Such information shall include, to the greatest extent practicable perti- nent energy conservation, recreation, fish and wildlife, and other environmental information. Copies of the information shall be made avail- able at reasonable costs of reproduction. Within 180 days after October 16, 1986, the Commission shall promulgate regulations regarding the in- formation 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 licensee in- tends to file or not to file an application for a new license. The Commission shall also prompt- ly notify the National Marine Fisheries Service