16 U.S.C. § 823c : US Code - Section 823C: Alaska State jurisdiction over small hydroelectric projects

Search 16 U.S.C. § 823c : US Code - Section 823C: Alaska State jurisdiction over small hydroelectric projects

(a) Discontinuance of regulation by the Commission
Notwithstanding sections 797(e) and 817 of this title, the
Commission shall discontinue exercising 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 regulation by the Commission under this subchapter
and other applicable Federal laws, including the Endangered
Species Act (16 U.S.C. 1531 et seq.) and the Fish and Wildlife
Coordination 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 (including related spawning grounds and
habitat);
(C) the protection of recreational opportunities;
(D) the preservation of other aspects of environmental
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 operation 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 Secretary of the Interior or the Secretary of
Commerce, as appropriate;
(B) the operation of any navigation facilities 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) of this section,
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 "qualifying 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 exemption 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 system 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 Rivers 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 exemption from licensing shall be subject to -
(1) the approval of the Secretary having jurisdiction over such
lands; and
(2) such conditions as the Secretary may prescribe.
(e) Consultation with affected agencies
The Commission shall consult with the Secretary of the Interior,
the Secretary of Agriculture, and the Secretary of Commerce before
certifying the State of Alaska's regulatory program.
(f) Application of Federal laws
Nothing in this section shall preempt the application of Federal
environmental, natural resources, or cultural resources protection
laws according to their terms.
(g) Oversight by the Commission
The State of Alaska shall notify the Commission not later than 30
days after making any significant 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) of this section, the Commission
shall reassert its licensing and regulatory authority under this
subchapter if the Commission finds that the State of Alaska has not
complied 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 development to
determine whether it complies with the requirements of subsection
(a) of this section.
(2) The Commission's review required by paragraph (1) shall be
completed within 1 year of initiation, 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) of
this section.
(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 compliance with
subsection (a) of this section.
(j) Fish and wildlife
If the State of Alaska determines that a recommendation under
subsection (a)(3)(C) of this section is inconsistent with
paragraphs (1) and (2) of subsection (a) of this section, the State
of Alaska may decline to adopt all or part of the recommendations
in accordance with the procedures established under section
803(j)(2) of this title.