16 U.S.C. § 823a — Conduit hydroelectric facilities

Page 1390 TITLE 16—CONSERVATION § 821 1 So in original. Probably should be followed by a comma. ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, en- acted ‘‘Title 10, Armed Forces’’ which in sections 3010 to 3013 continued military Department of the Army under administrative supervision of Secretary of the Army. § 821. State laws and water rights unaffected Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the re- spective States relating to the control, appro- priation, use, or distribution of water used in ir- rigation or for municipal or other uses, or any vested right acquired therein. (June 10, 1920, ch. 285, pt. I, § 27, 41 Stat. 1077; re- numbered pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat. 847.) § 822. Reservation of right to alter or repeal chapter The right to alter, amend, or repeal this chap- ter is expressly reserved; but no such alteration, amendment, or repeal shall affect any license theretofore issued under the provisions of this chapter or the rights of any licensee thereunder. (June 10, 1920, ch. 285, pt. I, § 28, 41 Stat. 1077; re- numbered pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat. 847.) § 823. Repeal of inconsistent laws All Acts or parts of Acts inconsistent with this chapter are repealed: Provided, That noth- ing contained herein shall be held or construed to modify or repeal any of the provisions of the Act of Congress approved December 19, 1913, granting certain rights-of-way to the city and county of San Francisco, in the State of Cali- fornia. (June 10, 1920, ch. 285, pt. I, § 29, 41 Stat. 1077; re- numbered pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat. 847.) Editorial Notes REFERENCES IN TEXT Herein, referred to in text, means act June 10, 1920, which is classified generally to this chapter. The Act of Congress approved December 19, 1913, re- ferred to in text, was not classified to the Code. CODIFICATION As originally enacted, this section contained the fur- ther proviso: ‘‘That section 18 of an Act making appro- priations for the construction, repair and preservation, of certain public works on rivers and harbors, and for other purposes, approved August 8, 1917, is hereby re- pealed.’’ § 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 pro- posing to construct a qualifying conduit hydro- power 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 quali- fying criteria. (B) Not later than 15 days after receipt of a no- tice of intent filed under subparagraph (A), the Commission shall— (i) make an initial determination as to whether the facility meets the qualifying cri- teria; and (ii) if the Commission makes an initial de- termination, 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 sub- paragraph (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 op- erated for the distribution of water for agri- cultural, municipal, or industrial consumption and not primarily for the generation of elec- tricity. (B) The term ‘‘qualifying conduit hydro- power facility’’ means a facility (not including any dam or other impoundment) that is deter- mined 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 sub- chapter. (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 sub- chapter, 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 hy- droelectric 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 Service 1 Na- tional Marine Fisheries Service 1 and the State Page 1391 TITLE 16—CONSERVATION § 823b agency exercising administration over the fish and wildlife resources of the State in which the facility is or will be located, in the manner pro- vided 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 Fish- eries Service 1 and the State agency each de- termine 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 Com- mission deems appropriate to insure that such facility continues to comply with the provi- sions 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 ex- emption 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 require- ments of section 803(e) of this title, shall estab- lish 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 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. (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, § 3002, Oct. 23, 2018, 132 Stat. 3863.) 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, Short Title 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), sub- stituted ‘‘30 days’’ for ‘‘45 days’’ in introductory provi- sions. Subsec. (a)(3)(C)(ii). Pub. L. 115–270, § 3002(2), sub- stituted ‘‘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 ex- emptions from the requirements of this subchapter for certain hydroelectric facilities and prohibited the granting of exemptions to facilities with certain capac- ities. Subsec. (c). Pub. L. 113–23, § 4(a)(2), substituted ‘‘sub- section (b)’’ for ‘‘subsection (a)’’ in introductory provi- sions. Subsec. (d). Pub. L. 113–23, § 4(a)(3), substituted ‘‘sub- section (b)’’ for ‘‘subsection (a)’’. 1986—Subsec. (b). Pub. L. 99–495, § 7(a), inserted provi- sion setting the maximum installation capacity for ex- emptions 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 gov- ernment solely for water supply for municipal pur- poses. 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 Ma- rine Fisheries Service’’ after ‘‘the United States Fish and Wildlife Service’’ and ‘‘the Fish and Wildlife Serv- ice’’, 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, pro- vided 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].’’ § 823b. Enforcement (a) Monitoring and investigation The Commission shall monitor and investigate compliance with each license and permit issued under this subchapter and with each exemption granted from any requirement of this sub- chapter. The Commission shall conduct such in- vestigations as may be necessary and proper in accordance with this chapter. After notice and opportunity for public hearing, the Commission may issue such orders as necessary to require compliance with the terms and conditions of li- censes and permits issued under this subchapter and with the terms and conditions of exemp- tions granted from any requirement of this sub- chapter. (b) Revocation orders After notice and opportunity for an evi- dentiary hearing, the Commission 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 Commis- sion: (1) to have knowingly violated a final order issued under subsection (a) after completion of judicial review (or the opportunity for judicial review); and (2) to have been given reasonable time to comply fully with such order prior to com- mencing any revocation proceeding. In any such proceeding, the order issued under subsection (a) shall be subject to de novo review