16 U.S.C. § 808 — New licenses and renewals

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 Page 1383 TITLE 16—CONSERVATION § 808 and the United States Fish and Wildlife Service, and the appropriate 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 state- ment of the annual fees paid as required by this subchapter for such lands, and to provide such additional information as the Commission deems appropriate to carry out the Commis- sion’s responsibilities under this section. (c) Time of filing application; consultation and participation in studies with fish and wild- life agencies; notice to applicants; adjust- ment of time periods (1) Each application for a new license pursuant to this section shall be filed with the Commis- sion at least 24 months before the expiration of the term of the existing license. Each applicant shall consult with the fish and wildlife agencies referred to in subsection (b) and, as appropriate, conduct studies with such agencies. Within 60 days after the statutory deadline for the submis- sion 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 sub- section and in subsection (b) shall be adjusted, in a manner that achieves the objectives of this section, by the Commission by rule or order with respect to existing licensees who, by reason of the expiration dates of their licenses, are un- able to comply with a specified time period. (d) Adequacy of transmission facilities; provision of services to successor by existing licensee; tariff; final order; modification, extension or termination of order (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 issues 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 feasible for the new licensee to utilize the energy from such project without provision by the existing licensee of reasonable services, including transmission services, the Commission shall give notice to the existing li- censee and the new licensee to immediately enter into negotiations for such services and the costs demonstrated by the existing licensee as being related to the provision of such services. It is the intent of the Congress that such nego- tiations be carried out in good faith and that a timely agreement be reached between the par- ties in order to facilitate the transfer of the li- cense by the date established when the Commis- sion issued the new license. If such parties do not notify the Commission that within the time established by the Commission in such notice (and if appropriate, in the judgment of the Com- mission, one 45-day extension thereof), a mutu- ally satisfactory arrangement for such services that is consistent with the provisions of this chapter has been executed, the Commission shall order the existing licensee to file (pursuant to section 824d of this title) with the Commis- sion 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 no- tice and opportunity for a hearing, the Commis- sion shall issue a final order adopting or modi- fying such tariff for such services at just and reasonable rates in accordance with section 824d of this title and in accordance with reasonable terms and conditions. The Commission, in issuing such order, shall ensure the services nec- essary for the full and efficient utilization and benefits for the license term of the electric en- ergy from the project by the new licensee in ac- cordance with the license and this subchapter, except that in issuing such order the Commis- sion— (A) shall not compel the existing licensee to enlarge generating facilities, transmit electric energy other than to the distribution system (providing service to customers) of the new li- censee identified as of the date one day pre- ceding the date of license award, or require the acquisition of new facilities, including the upgrading of existing facilities other than any reasonable enhancement or improvement of existing facilities controlled by the existing li- censee (including any acquisition related to such enhancement or improvement) necessary 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 sys- tems of the existing licensee; (D) shall not cause any reasonably quantifi- able increase in the jurisdictional rates of the existing 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 Com- mission deems appropriate, not to exceed the term of the license. At any time, the Commis- sion, upon its own motion or upon a petition by the existing or new licensee and after notice and opportunity for a hearing, may modify, extend, or terminate such order. (e) License term on relicensing Except for an annual license, any license issued by the Commission 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) Nonpower use licenses; recordkeeping In issuing any licenses under this section ex- cept an annual license, the Commission, on its own motion or upon application of any licensee, person, State, municipality, or State commis- sion, after notice to each State commission and licensee affected, and after opportunity for hear- ing, whenever it finds that in conformity with a comprehensive plan for improving or developing a waterway or waterways for beneficial public uses all or part of any licensed project should no longer be used or adapted for use for power pur- poses, may license all or part of the project Page 1384 TITLE 16—CONSERVATION § 809 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 807 of this title. Any license for nonpower use shall be a temporary license. Whenever, in the judgment of the Commission, a State, municipality, inter- state agency, or another Federal agency is au- thorized and willing to assume regulatory super- vision of the lands and facilities included under the nonpower license and does so, the Commis- sion shall thereupon terminate the license. Con- sistent 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 Com- mission may by rules and regulations or order prescribe as necessary or appropriate. (June 10, 1920, ch. 285, pt. I, § 15, 41 Stat. 1072; re- numbered pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat. 847; Pub. L. 90–451, § 3, Aug. 3, 1968, 82 Stat. 617; Pub. L. 99–495, §§ 4(a), (b)(1), 5, Oct. 16, 1986, 100 Stat. 1245, 1248.) Editorial Notes AMENDMENTS 1986—Subsec. (a). Pub. L. 99–495, § 4(a), (b)(1), des- ignated existing provisions as par. (1), substituted ‘‘ex- isting’’ for ‘‘original’’ wherever appearing, and added pars. (2) and (3). Subsecs. (b) to (f). Pub. L. 99–495, §§ 4(a), 5, added sub- secs. (b) to (e) and redesignated former subsec. (b) as (f). 1968—Pub. L. 90–451 designated existing provisions as subsec. (a) and added subsec. (b). 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. § 809. Temporary use by Government of project works for national safety; compensation for use When in the opinion of the President of the United States, evidenced by a written order ad- dressed to the holder of any license under this chapter, the safety of the United States de- mands it, the United States shall have the right to enter upon and take possession of any project or part thereof, constructed, maintained, or op- erated under said license, for the purpose of manufacturing nitrates, explosives, or muni- tions of war, or for any other purpose involving the safety of the United States, to retain posses- sion, management, and control thereof for such length of time as may appear to the President to be necessary to accomplish said purposes, and then to restore possession and control to the party or parties entitled thereto; and in the event that the United States shall exercise such right it shall pay to the party or parties entitled thereto just and fair compensation for the use of said property as may be fixed by the commission upon the basis of a reasonable profit in time of peace, and the cost of restoring said property to as good condition as existed at the time of the taking over thereof, less the reasonable value of any improvements that may be made thereto by the United States and which are valuable and serviceable to the licensee. (June 10, 1920, ch. 285, pt. I, § 16, 41 Stat. 1072; re- numbered pt. I, Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat. 847.) Statutory Notes and Related Subsidiaries TERMINATION OF WAR AND EMERGENCIES Joint Res. July 25, 1947, ch. 327, § 3, 61 Stat. 451, pro- vided that in the interpretation of this section, the date July 25, 1947, shall be deemed to be the date of ter- mination of any state of war theretofore declared by Congress and of the national emergencies proclaimed by the President on September 8, 1939, and May 27, 1941. § 810. Disposition of charges arising from li- censes (a) Receipts from charges All proceeds from any Indian reservation shall be placed to the credit of the Indians of such res- ervation. All other charges arising from licenses hereunder, except charges fixed by the Commis- sion for the purpose of reimbursing the United States for the costs of administration of this subchapter, shall be paid into the Treasury of the United States, subject to the following dis- tribution: 121⁄2 per centum thereof is hereby ap- propriated to be paid into the Treasury of the United States and credited to ‘‘Miscellaneous re- ceipts’’; 50 per centum of the charges arising from licenses hereunder for the occupancy and use of public lands and national forests shall be paid into, reserved, and appropriated as a part of the reclamation fund created by the Act of Con- gress known as the Reclamation Act, approved June 17, 1902; and 371⁄2 per centum of the charges arising from licenses hereunder for the occu- pancy and use of national forests and public lands from development within the boundaries of any State shall be paid by the Secretary of the Treasury to such State; and 50 per centum of the charges arising from all other licenses here- under is reserved and appropriated as a special fund in the Treasury to be expended under the direction of the Secretary of the Army in the maintenance and operation of dams and other navigation structures owned by the United States or in the construction, maintenance, or operation of headwater or other improvements of navigable waters of the United States. The proceeds of charges made by the Commission for the purpose of reimbursing the United States for the costs of the administration of this sub- chapter shall be paid into the Treasury of the United States and credited to miscellaneous re- ceipts. (b) Delinquent payments In case of delinquency on the part of any li- censee in the payment of annual charges a pen- alty of 5 per centum of the total amount so de- linquent may be added to the total charges which shall apply for the first month or part of