Chapter 129, March 3, 1921; 41 Stat. 1353. Chapter 572, June 23, 1930; 46 Stat. 799 Chapter 687, August 26, 1935; 49 Stat. 803. Chapter 782, October 28, 1949; 63 Stat. 954 P.L. 247, October 31, 1951; 65 Stat. 701. P.L. 87-647, September 7, 1962; 76 Stat. 447. P.L. 95-617, November 9, 1978; 92 Stat. 3117. P.L. 96-294, June 30, 1980; 94 Stat. 611. P.L. 97-375, December 21, 1982; 96 Stat. 1819. P.L. 99-495, October 16, 1986; 100 Stat. 1243. P.L. 102-486, October 24, 1992; 106 Stat. 3097. P.L. 103-347, November 2, 1994; 108 Stat. 4585. P.L. 104-66, December 21, 1995; 109 Stat. 718. These public laws appear in Chapter 12 of the U.S. Code, Federal Regulation and Development of Power, Subchapter I, Regulation of the Development of Water Power and Resources. The original statute was enacted in 1920. Many of the subsequent amendments have not involved resource issues; however, the 1935 and 1986 amendments added new requirements to incorporate fish and wildlife concerns in licensing, relicensing, and exemption procedures.
The original Federal Power Act provides for cooperation between the Federal Energy Regulatory Commission (Commission) and other Federal agencies, including resource agencies, in licensing and relicensing power projects. The President is required to appoint the five commissioners with the advice and consent of the Senate (16 U.S.C. 792). The President is also authorized, at the request of the Commission, to detail engineers from the Departments of Agriculture or Interior for field work (16 U.S.C. 793).
"Navigable waters" (for which the Commission has jurisdiction under the Commerce Clause) are defined to include "streams or other bodies of water over which Congress has jurisdiction to regulate commerce among foreign nations and among the States" (16 U.S.C. 796). The Commission is authorized to issue licenses to construct, operate and maintain dams, water conduits, reservoirs, and transmission lines to improve navigation and to develop power from any streams or other bodies of water over which it has jurisdiction (16 U.S.C. 797(e)).
The term "reservation" lands is defined to include national forests, Indian lands, and any other lands "acquired and held for public purposes" not including national monuments or national parks (16 U.S.C. 796(2)). This definition, accordingly, includes national wildlife refuge lands as a "reservation." Any license application for a project within a "reservation" requires an affirmative finding by the Commission that the project will not be inconsistent with the purpose for which the land was acquired or created. In addition, the license is to contain conditions deemed necessary by the Federal department which has jurisdiction to protect the resources (16 U.S.C. 797(e)). Section 797(a) further prohibits any permit, license, lease or dam authorization within a national park or national monument without the specific authority of Congress.
In deciding whether to issue a license, the Commission is required to give "equal consideration" to the following purposes: power and development; energy conservation; protection, mitigation of damage to, and enhancement of, fish and wildlife (including spawning grounds and habitat); protection of recreational opportunities, and preservation of other aspects of environmental quality (16 U.S.C. 797(f)).
The time frame for licenses can not exceed 50 years (16 U.S.C. 799). The Commission is authorized to grant preference to applications by States or municipalities when issuing preliminary permits or original licenses (16 U.S.C. 800). The project selected must be the project which is best adapted to a comprehensive plan for improving or developing a waterway for several public benefits, including benefits for the "adequate protection, mitigation and enhancement of fish and wildlife" (16 U.S.C. 803(a)). In making this determination, the Commission is required to consider the recommendations from various sources, including fish and wildlife recommendations of affected Indian tribes (16 U.S.C. 803(a)(2)(B)).
The 1986 amendments to the Federal Power Act, entitled the Electric Consumers Protection Act, mandated several fish and wildlife provisions. Each license is to include conditions to protect, mitigate and enhance fish and wildlife affected by the project. These conditions are to be based on recommendations received pursuant to the Fish and Wildlife Coordination Act from the Fish and Wildlife Service, the National Marine Fisheries Service, and State fish and wildlife agencies (16 U.S.C. 803(j)(1)). The Commission is empowered to resolve any instances in which such recommendations are viewed as inconsistent while according "due weight to the recommendations, expertise, and statutory responsibilities" of the resource agencies.
In addition, the Commission is mandated to make two findings if the recommendations are not adopted in whole or in part (16 U.S.C. 803(j)(2)). These include: (1) a finding that adoption of the recommendations would be inconsistent with the purposes and requirements of this subchapter (16 U.S.C. 803(j)(2)(A)); and (2) a finding that the conditions selected by the Commission satisfy the requirement to adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (16 U.S.C. 803(j)(2)(B)).
As part of the relicensing process, the Commission is required to issue a public notice indicating whether the existing licensee intends to file a new license. Notification is also required for the Fish and Wildlife Service, the National Marine Fisheries Service, and the appropriate State fish and wildlife agency (16 U.S.C. 808(b)(3)). Each application for a new license must be filed with the Commission 24 months in advance of the expiration of the existing license. In addition, each applicant is required to consult with the fish and wildlife agencies and conduct appropriate studies with such agencies (16 U.S.C. 808(c)(1)).
The Commission is also required to mandate the construction, maintenance, and operation of fish passage facilities as are prescribed by the Secretary of Commerce or the Secretary of the Interior (16 U.S.C. 811).
The Commission is authorized to grant exemptions from licensing to any project for which the capacity does not exceed 15 megawatts provided that the project is located on non-Federal lands and it uses a manmade conduit. In conjunction with issuing this exemption, the Commission is required to incorporate terms and conditions recommended by the resource agencies to prevent loss of, or damages to, the resources. In addition, the Commission is to establish fees for the licensing exemption which reimburse the resource agencies for the "reasonable costs" of conducting studies. Monies are to be transferred to the agencies and are to remain available until expended for the studies (16 U.S.C. 823). Lastly, the Commission is required to monitor and investigate compliance with each license, permit or exemption (16 U.S.C. 823(b)).
Amendments passed in 1992 made several adjustments to the Act. The 1992 amendments, P.L. 102-486 (106 Stat. 3098), approved October 24, 1992, direct the Secretary of Energy, in consultation with the Secretary of the Interior and the Secretary of the Army, to study cost-effective opportunities to increase hydropower production from federally-owned or operated facilities. The amendments also authorized the completion of a study on the Nation's principal river basins to find opportunities to more efficiently generate hydroelectric power from federal facilities. The use of previous studies, if conducted in the last 10 years, is allowed for the purposes of this section. Appropriations are authorized for years 1993 to 1995 to carry out the studies. The 1992 amendments also direct the Secretary of the Interior to study the feasibility of opportunities to increase the availability of marketable energy from federal hydropower facilities as a result of water conservation efforts. Also, the Secretary is to study the feasibility of opportunities to mitigate damages to or enhance fish and wildlife as a result of conservation efforts. Appropriations for the studies were authorized. Finally, the 1992 amendments authorized the collection of reasonable and necessary fees by the Federal government, as well as state fish and wildlife agencies, for the purposes of implementing licensing provisions of the Federal Power Act.
Amendments made on December 21, 1995 (P.L. 104-66; 109 Stat. 718) placed the Secretaries of the Interior and the Army as leads in studies authorized in 1992 to investigate the possibility of increased hydopower production from federal facilities.
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