16 U.S.C. § 823d : US Code - Section 823D: Alternative conditions and prescriptions

Search 16 U.S.C. § 823d : US Code - Section 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 department under whose supervision such
reservation 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
propose 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 evidence 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 paragraph (2), the Secretary
shall consider evidence provided for the record by any party to a
licensing 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 accepting any alternative condition
under this section. The written statement must demonstrate that the
Secretary gave equal consideration to the effects of the condition
adopted and alternatives not accepted on energy supply,
distribution, cost, and use; flood control; navigation; water
supply; and air quality (in addition to the preservation of other
aspects of environmental quality); based on such information as may
be available to the Secretary, including information voluntarily
provided in a timely manner by the applicant and others. The
Secretary shall also submit, together with the aforementioned
written statement, all studies, data, and other factual information
available to the Secretary and relevant to the Secretary's
decision.
(5) If the Commission finds that the Secretary'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 Resolution 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 applicant or any other party to the license proceeding may
propose an alternative to such prescription to construct, maintain,
or operate a fishway.
(2) Notwithstanding section 811 of this title, the Secretary of
the Interior or the Secretary of Commerce, as appropriate, shall
accept and prescribe, and the Commission shall require, the
proposed alternative referred to in paragraph (1), if the Secretary
of the appropriate department determines, based on substantial
evidence provided by the license applicant, any other party to the
proceeding, or otherwise available to the Secretary, that such
alternative -
(A) will be no less protective than the fishway initially
prescribed by the Secretary; and
(B) will either, as compared to the fishway initially
prescribed 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 paragraph (2), the Secretary
shall consider evidence provided for the record by any party to a
licensing 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 prescription under section
811 of this title or alternative prescription it accepts under this
section, a written statement explaining the basis for such
prescription, and reason for not accepting any alternative
prescription under this section. The written statement must
demonstrate that the Secretary gave equal consideration to the
effects of the prescription adopted and alternatives not accepted
on energy supply, distribution, cost, and use; flood control;
navigation; water supply; and air quality (in addition to the
preservation of other aspects of environmental quality); based on
such information as may be available to the Secretary, including
information voluntarily provided in a timely manner by the
applicant and others. The Secretary shall also submit, together
with the aforementioned written statement, all studies, data, and
other factual information available to the Secretary and relevant
to the Secretary's decision.
(5) If the Commission finds that the Secretary's final
prescription 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 Resolution Service advisory unless
the Secretary finds that the recommendation will not adequately
protect the fish resources. The Secretary shall submit the advisory
and the Secretary's final written determination into the record of
the Commission's proceeding.