16 U.S.C. § 803 : US Code - Section 803: Conditions of license generally

Search 16 U.S.C. § 803 : US Code - Section 803: Conditions of license generally

All licenses issued under this subchapter shall be on the
following conditions:
(a) Modification of plans; factors considered to secure
adaptability of project; recommendations for proposed terms and
conditions
(1) That the project adopted, including the maps, plans, and
specifications, shall be such as in the judgment of the Commission
will be best adapted to a comprehensive plan for improving or
developing a waterway or waterways for the use or benefit of
interstate or foreign commerce, for the improvement and utilization
of water-power development, for the adequate protection,
mitigation, and enhancement of fish and wildlife (including related
spawning grounds and habitat), and for other beneficial public
uses, including irrigation, flood control, water supply, and
recreational and other purposes referred to in section 797(e) of
this title (!1) if necessary in order to secure such plan the
Commission shall have authority to require the modification of any
project and of the plans and specifications of the project works
before approval.
(2) In order to ensure that the project adopted will be best
adapted to the comprehensive plan described in paragraph (1), the
Commission shall consider each of the following:
(A) The extent to which the project is consistent with a
comprehensive plan (where one exists) for improving, developing,
or conserving a waterway or waterways affected by the project
that is prepared by -
(i) an agency established pursuant to Federal law that has
the authority to prepare such a plan; or
(ii) the State in which the facility is or will be located.
(B) The recommendations of Federal and State agencies
exercising administration over flood control, navigation,
irrigation, recreation, cultural and other relevant resources of
the State in which the project is located, and the
recommendations (including fish and wildlife recommendations) of
Indian tribes affected by the project.
(C) In the case of a State or municipal applicant, or an
applicant which is primarily engaged in the generation or sale of
electric power (other than electric power solely from
cogeneration facilities or small power production facilities),
the electricity consumption efficiency improvement program of the
applicant, including its plans, performance and capabilities for
encouraging or assisting its customers to conserve electricity
cost-effectively, taking into account the published policies,
restrictions, and requirements of relevant State regulatory
authorities applicable to such applicant.
(3) Upon receipt of an application for a license, the Commission
shall solicit recommendations from the agencies and Indian tribes
identified in subparagraphs (A) and (B) of paragraph (2) for
proposed terms and conditions for the Commission's consideration
for inclusion in the license.
(b) Alterations in project works
That except when emergency shall require for the protection of
navigation, life, health, or property, no substantial alteration or
addition not in conformity with the approved plans shall be made to
any dam or other project works constructed hereunder of an
installed capacity in excess of two thousand horsepower without the
prior approval of the Commission; and any emergency alteration or
addition so made shall thereafter be subject to such modification
and change as the Commission may direct.
(c) Maintenance and repair of project works; liability of licensee
for damages
That the licensee shall maintain the project works in a condition
of repair adequate for the purposes of navigation and for the
efficient operation of said works in the development and
transmission of power, shall make all necessary renewals and
replacements, shall establish and maintain adequate depreciation
reserves for such purposes, shall so maintain, and operate said
works as not to impair navigation, and shall conform to such rules
and regulations as the Commission may from time to time prescribe
for the protection of life, health, and property. Each licensee
hereunder shall be liable for all damages occasioned to the
property of others by the construction, maintenance, or operation
of the project works or of the works appurtenant or accessory
thereto, constructed under the license and in no event shall the
United States be liable therefor.
(d) Amortization reserves
That after the first twenty years of operation, out of surplus
earned thereafter, if any, accumulated in excess of a specified
reasonable rate of return upon the net investment of a licensee in
any project or projects under license, the licensee shall establish
and maintain amortization reserves, which reserves shall, in the
discretion of the Commission, be held until the termination of the
license or be applied from time to time in reduction of the net
investment. Such specified rate of return and the proportion of
such surplus earnings to be paid into and held in such reserves
shall be set forth in the license. For any new license issued under
section 808 of this title, the amortization reserves under this
subsection shall be maintained on and after the effective date of
such new license.
(e) Annual charges payable by licensees; maximum rates;
application; review and report to Congress
(1) That the licensee shall pay to the United States reasonable
annual charges in an amount to be fixed by the Commission for the
purpose of reimbursing the United States for the costs of the
administration of this subchapter, including any reasonable and
necessary costs incurred by Federal and State fish and wildlife
agencies and other natural and cultural resource agencies in
connection with studies or other reviews carried out by such
agencies for purposes of administering their responsibilities under
this subchapter; for recompensing it for the use, occupancy, and
enjoyment of its lands or other property; and for the expropriation
to the Government of excessive profits until the respective States
shall make provision for preventing excessive profits or for the
expropriation thereof to themselves, or until the period of
amortization as herein provided is reached, and in fixing such
charges the Commission shall seek to avoid increasing the price to
the consumers of power by such charges, and any such charges may be
adjusted from time to time by the Commission as conditions may
require: Provided, That, subject to annual appropriations Acts, the
portion of such annual charges imposed by the Commission under this
subsection to cover the reasonable and necessary costs of such
agencies shall be available to such agencies (in addition to other
funds appropriated for such purposes) solely for carrying out such
studies and reviews and shall remain available until expended:
Provided, That when licenses are issued involving the use of
Government dams or other structures owned by the United States or
tribal lands embraced within Indian reservations the Commission
shall, subject to the approval of the Secretary of the Interior in
the case of such dams or structures in reclamation projects and, in
the case of such tribal lands, subject to the approval of the
Indian tribe having jurisdiction of such lands as provided in
section 476 of title 25, fix a reasonable annual charge for the use
thereof, and such charges may with like approval be readjusted by
the Commission at the end of twenty years after the project is
available for service and at periods of not less than ten years
thereafter upon notice and opportunity for hearing: Provided
further, That licenses for the development, transmission, or
distribution of power by States or municipalities shall be issued
and enjoyed without charge to the extent such power is sold to the
public without profit or is used by such State or municipality for
State or municipal purposes, except that as to projects constructed
or to be constructed by States or municipalities primarily designed
to provide or improve navigation, licenses therefor shall be issued
without charge; and that licenses for the development,
transmission, or distribution of power for domestic, mining, or
other beneficial use in projects of not more than two thousand
horsepower installed capacity may be issued without charge, except
on tribal lands within Indian reservations; but in no case shall a
license be issued free of charge for the development and
utilization of power created by any Government dam and that the
amount charged therefor in any license shall be such as determined
by the Commission: Provided however, That no charge shall be
assessed for the use of any Government dam or structure by any
licensee if, before January 1, 1985, the Secretary of the Interior
has entered into a contract with such licensee that meets each of
the following requirements:
(A) The contract covers one or more projects for which a
license was issued by the Commission before January 1, 1985.
(B) The contract contains provisions specifically providing
each of the following:
(i) A powerplant may be built by the licensee utilizing
irrigation facilities constructed by the United States.
(ii) The powerplant shall remain in the exclusive control,
possession, and ownership of the licensee concerned.
(iii) All revenue from the powerplant and from the use, sale,
or disposal of electric energy from the powerplant shall be,
and remain, the property of such licensee.
(C) The contract is an amendatory, supplemental and replacement
contract between the United States and: (i) the Quincy-Columbia
Basin Irrigation District (Contract No. 14-06-100-6418); (ii) the
East Columbia Basin Irrigation District (Contract No. 14-06-100-
6419); or, (iii) the South Columbia Basin Irrigation District
(Contract No. 14-06-100-6420).
This paragraph shall apply to any project covered by a contract
referred to in this paragraph only during the term of such contract
unless otherwise provided by subsequent Act of Congress. In the
event an overpayment of any charge due under this section shall be
made by a licensee, the Commission is authorized to allow a credit
for such overpayment when charges are due for any subsequent
period.
(2) In the case of licenses involving the use of Government dams
or other structures owned by the United States, the charges fixed
(or readjusted) by the Commission under paragraph (1) for the use
of such dams or structures shall not exceed 1 mill per kilowatt-
hour for the first 40 gigawatt-hours of energy a project produces
in any year, 1 1/2 mills per kilowatt-hour for over 40 up to and
including 80 gigawatt-hours in any year, and 2 mills per kilowatt-
hour for any energy the project produces over 80 gigawatt-hours in
any year. Except as provided in subsection (f) of this section,
such charge shall be the only charge assessed by any agency of the
United States for the use of such dams or structures.
(3) The provisions of paragraph (2) shall apply with respect to -

(A) all licenses issued after October 16, 1986; and
(B) all licenses issued before October 16, 1986, which -
(i) did not fix a specific charge for the use of the
Government dam or structure involved; and
(ii) did not specify that no charge would be fixed for the
use of such dam or structure.
(4) Every 5 years, the Commission shall review the
appropriateness of the annual charge limitations provided for in
this subsection and report to Congress concerning its
recommendations thereon.
(f) Reimbursement by licensee of other licensees, etc.
That whenever any licensee hereunder is directly benefited by the
construction work of another licensee, a permittee, or of the
United States of a storage reservoir or other headwater
improvement, the Commission shall require as a condition of the
license that the licensee so benefited shall reimburse the owner of
such reservoir or other improvements for such part of the annual
charges for interest, maintenance, and depreciation thereon as the
Commission may deem equitable. The proportion of such charges to be
paid by any licensee shall be determined by the Commission. The
licensees or permittees affected shall pay to the United States the
cost of making such determination as fixed by the Commission.
Whenever such reservoir or other improvement is constructed by
the United States the Commission shall assess similar charges
against any licensee directly benefited thereby, and any amount so
assessed shall be paid into the Treasury of the United States, to
be reserved and appropriated as a part of the special fund for
headwater improvements as provided in section 810 of this title.
Whenever any power project not under license is benefited by the
construction work of a licensee or permittee, the United States or
any agency thereof, the Commission, after notice to the owner or
owners of such unlicensed project, shall determine and fix a
reasonable and equitable annual charge to be paid to the licensee
or permittee on account of such benefits, or to the United States
if it be the owner of such headwater improvement.
(g) Conditions in discretion of commission
Such other conditions not inconsistent with the provisions of
this chapter as the commission may require.
(h) Monopolistic combinations; prevention or minimization of
anticompetitive conduct; action by Commission regarding license
and operation and maintenance of project
(1) Combinations, agreements, arrangements, or understandings,
express or implied, to limit the output of electrical energy, to
restrain trade, or to fix, maintain, or increase prices for
electrical energy or service are hereby prohibited.
(2) That conduct under the license that: (A) results in the
contravention of the policies expressed in the antitrust laws; and
(B) is not otherwise justified by the public interest considering
regulatory policies expressed in other applicable law (including
but not limited to those contained in subchapter II of this
chapter) shall be prevented or adequately minimized by means of
conditions included in the license prior to its issuance. In the
event it is impossible to prevent or adequately minimize the
contravention, the Commission shall refuse to issue any license to
the applicant for the project and, in the case of an existing
project, shall take appropriate action to provide thereafter for
the operation and maintenance of the affected project and for the
issuing of a new license in accordance with section 808 of this
title.
(i) Waiver of conditions
In issuing licenses for a minor part only of a complete project,
or for a complete project of not more than two thousand horsepower
installed capacity, the Commission may in its discretion waive such
conditions, provisions, and requirements of this subchapter, except
the license period of fifty years, as it may deem to be to the
public interest to waive under the circumstances: Provided, That
the provisions hereof shall not apply to annual charges for use of
lands within Indian reservations.
(j) Fish and wildlife protection, mitigation and enhancement;
consideration of recommendations; findings
(1) That in order to adequately and equitably protect, mitigate
damages to, and enhance, fish and wildlife (including related
spawning grounds and habitat) affected by the development,
operation, and management of the project, each license issued under
this subchapter shall include conditions for such protection,
mitigation, and enhancement. Subject to paragraph (2), such
conditions shall be 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.
(2) Whenever the Commission believes that any recommendation
referred to in paragraph (1) may be inconsistent with the purposes
and requirements of this subchapter or other applicable law, the
Commission and the agencies referred to in paragraph (1) shall
attempt to resolve any such inconsistency, giving due weight to the
recommendations, expertise, and statutory responsibilities of such
agencies. If, after such attempt, the Commission does not adopt in
whole or in part a recommendation of any such agency, the
Commission shall publish each of the following findings (together
with a statement of the basis for each of the findings):
(A) A finding that adoption of such recommendation is
inconsistent with the purposes and requirements of this
subchapter or with other applicable provisions of law.
(B) A finding that the conditions selected by the Commission
comply with the requirements of paragraph (1).
Subsection (i) of this section shall not apply to the conditions
required under this subsection.