16 U.S.C. § 823c — Alaska State jurisdiction over small hy-

Page 1393 TITLE 16—CONSERVATION § 823c § 823c. Alaska State jurisdiction over small hy- droelectric projects (a) Discontinuance of regulation by the Commis- sion Notwithstanding sections 797(e) and 817 of this title, the Commission shall discontinue exer- cising licensing and regulatory authority under this subchapter over qualifying project works in the State of Alaska, effective on the date on which the Commission certifies that the State of Alaska has in place a regulatory program for water-power development that— (1) protects the public interest, the purposes listed in paragraph (2), and the environment to the same extent provided by licensing and reg- ulation by the Commission under this sub- chapter and other applicable Federal laws, in- cluding the Endangered Species Act (16 U.S.C. 1531 et seq.) and the Fish and Wildlife Coordi- nation Act (16 U.S.C. 661 et seq.); (2) gives equal consideration to the purposes of— (A) energy conservation; (B) the protection, mitigation of damage to, and enhancement of, fish and wildlife (in- cluding related spawning grounds and habi- tat); (C) the protection of recreational opportu- nities; (D) the preservation of other aspects of en- vironmental quality; (E) the interests of Alaska Natives; and (F) other beneficial public uses, including irrigation, flood control, water supply, and navigation; and (3) requires, as a condition of a license for any project works— (A) the construction, maintenance, and op- eration by a licensee at its own expense of such lights and signals as may be directed by the Secretary of the Department in which the Coast Guard is operating, and such fishways as may be prescribed by the Sec- retary of the Interior or the Secretary of Commerce, as appropriate; (B) the operation of any navigation facili- ties which may be constructed as part of any project to be controlled at all times by such reasonable rules and regulations as may be made by the Secretary of the Army; and (C) except as provided in subsection (j), conditions for the protection, mitigation, and enhancement of fish and wildlife based on recommendations received pursuant to the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) from the National Marine Fisheries Service, the United States Fish and Wildlife Service, and State fish and wildlife agencies. (b) Definition of ‘‘qualifying project works’’ For purposes of this section, the term ‘‘quali- fying project works’’ means project works— (1) that are not part of a project licensed under this part or exempted from licensing under this subchapter or section 2705 of this title prior to November 9, 2000; (2) for which a preliminary permit, a license application, or an application for an exemp- tion from licensing has not been accepted for filing by the Commission prior to November 9, 2000 (unless such application is withdrawn at the election of the applicant); (3) that are part of a project that has a power production capacity of 5,000 kilowatts or less; (4) that are located entirely within the boundaries of the State of Alaska; and (5) that are not located in whole or in part on any Indian reservation, a conservation sys- tem unit (as defined in section 3102(4) of this title), or segment of a river designated for study for addition to the Wild and Scenic Riv- ers System. (c) Election of State licensing In the case of nonqualifying project works that would be a qualifying project works but for the fact that the project has been licensed (or exempted from licensing) by the Commission prior to November 9, 2000, the licensee of such project may in its discretion elect to make the project subject to licensing and regulation by the State of Alaska under this section. (d) Project works on Federal lands With respect to projects located in whole or in part on a reservation, a conservation system unit, or the public lands, a State license or ex- emption from licensing shall be subject to— (1) the approval of the Secretary having ju- risdiction over such lands; and (2) such conditions as the Secretary may prescribe. (e) Consultation with affected agencies The Commission shall consult with the Sec- retary of the Interior, the Secretary of Agri- culture, and the Secretary of Commerce before certifying the State of Alaska’s regulatory pro- gram. (f) Application of Federal laws Nothing in this section shall preempt the ap- plication of Federal environmental, natural re- sources, or cultural resources protection laws according to their terms. (g) Oversight by the Commission The State of Alaska shall notify the Commis- sion not later than 30 days after making any sig- nificant modification to its regulatory program. The Commission shall periodically review the State’s program to ensure compliance with the provisions of this section. (h) Resumption of Commission authority Notwithstanding subsection (a), the Commis- sion shall reassert its licensing and regulatory authority under this subchapter if the Commis- sion finds that the State of Alaska has not com- plied with one or more of the requirements of this section. (i) Determination by the Commission (1) Upon application by the Governor of the State of Alaska, the Commission shall within 30 days commence a review of the State of Alaska’s regulatory program for water-power develop- ment to determine whether it complies with the requirements of subsection (a). (2) The Commission’s review required by para- graph (1) shall be completed within 1 year of ini- Page 1394 TITLE 16—CONSERVATION § 823d tiation, and the Commission shall within 30 days thereafter issue a final order determining whether or not the State of Alaska’s regulatory program for water-power development complies with the requirements of subsection (a). (3) If the Commission fails to issue a final order in accordance with paragraph (2) the State of Alaska’s regulatory program for water-power development shall be deemed to be in compli- ance with subsection (a). (j) Fish and wildlife If the State of Alaska determines that a rec- ommendation under subsection (a)(3)(C) is in- consistent with paragraphs (1) and (2) of sub- section (a), the State of Alaska may decline to adopt all or part of the recommendations in ac- cordance with the procedures established under section 803(j)(2) of this title. (June 10, 1920, ch. 285, pt. I, § 32, as added Pub. L. 106–469, title V, § 501, Nov. 9, 2000, 114 Stat. 2037; amended Pub. L. 109–58, title II, § 244, Aug. 8, 2005, 119 Stat. 678.) Editorial Notes REFERENCES IN TEXT The Endangered Species Act, referred to in subsec. (a)(1), probably means the Endangered Species Act of 1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified generally to chapter 35 (§ 1531 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables. The Fish and Wildlife Coordination Act, referred to in subsec. (a)(1), (3)(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. AMENDMENTS 2005—Subsec. (a)(3)(C). Pub. L. 109–58, § 244(1), inserted ‘‘except as provided in subsection (j),’’ before ‘‘condi- tions’’. Subsec. (j). Pub. L. 109–58, § 244(2), added subsec. (j). Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 823d. Alternative conditions and prescriptions (a) Alternative conditions (1) Whenever any person applies for a license for any project works within any reservation of the United States, and the Secretary of the de- partment under whose supervision such reserva- tion falls (referred to in this subsection as the ‘‘Secretary’’) deems a condition to such license to be necessary under the first proviso of section 797(e) of this title, the license applicant or any other party to the license proceeding may pro- pose an alternative condition. (2) Notwithstanding the first proviso of section 797(e) of this title, the Secretary shall accept the proposed alternative condition referred to in paragraph (1), and the Commission shall include in the license such alternative condition, if the Secretary determines, based on substantial evi- dence provided by the license applicant, any other party to the proceeding, or otherwise available to the Secretary, that such alternative condition— (A) provides for the adequate protection and utilization of the reservation; and (B) will either, as compared to the condition initially by the Secretary— (i) cost significantly less to implement; or (ii) result in improved operation of the project works for electricity production. (3) In making a determination under para- graph (2), the Secretary shall consider evidence provided for the record by any party to a licens- ing proceeding, or otherwise available to the Secretary, including any evidence provided by the Commission, on the implementation costs or operational impacts for electricity production of a proposed alternative. (4) The Secretary concerned shall submit into the public record of the Commission proceeding with any condition under section 797(e) of this title or alternative condition it accepts under this section, a written statement explaining the basis for such condition, and reason for not ac- cepting any alternative condition under this section. The written statement must dem- onstrate that the Secretary gave equal consider- ation to the effects of the condition adopted and alternatives not accepted on energy supply, dis- tribution, cost, and use; flood control; naviga- tion; water supply; and air quality (in addition to the preservation of other aspects of environ- mental quality); based on such information as may be available to the Secretary, including in- formation voluntarily provided in a timely man- ner by the applicant and others. The Secretary shall also submit, together with the aforemen- tioned written statement, all studies, data, and other factual information available to the Sec- retary and relevant to the Secretary’s decision. (5) If the Commission finds that the Sec- retary’s final condition would be inconsistent with the purposes of this subchapter, or other applicable law, the Commission may refer the dispute to the Commission’s Dispute Resolution Service. The Dispute Resolution Service shall consult with the Secretary and the Commission and issue a non-binding advisory within 90 days. The Secretary may accept the Dispute Resolu- tion Service advisory unless the Secretary finds that the recommendation will not adequately protect the reservation. The Secretary shall submit the advisory and the Secretary’s final written determination into the record of the Commission’s proceeding. (b) Alternative prescriptions (1) Whenever the Secretary of the Interior or the Secretary of Commerce prescribes a fishway under section 811 of this title, the license appli- cant or any other party to the license pro- ceeding may propose an alternative to such pre- scription to construct, maintain, or operate a fishway.