§ 808. — New licenses and renewals.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC808]
TITLE 16--CONSERVATION
CHAPTER 12--FEDERAL REGULATION AND DEVELOPMENT OF POWER
SUBCHAPTER I--REGULATION OF THE DEVELOPMENT OF WATER POWER AND RESOURCES
Sec. 808. New licenses and renewals
(a) Relicensing procedures; terms and conditions; issuance to applicant
with proposal best adapted to serve public interest; factors
considered
(1) If the United States does not, at the expiration of the existing
license, exercise its right to take over, maintain, and operate any
project or projects of the licensee, as provided in section 807 of this
title, the commission is authorized to issue a new license to the
existing licensee upon such terms and conditions as may be authorized or
required under the then existing laws and regulations, or to issue a new
license under said terms and conditions to a new licensee, which license
may cover any project or projects covered by the existing license, and
shall be issued on the condition that the new licensee shall, before
taking possession of such project or projects, pay such amount, and
assume such contracts as the United States is required to do in the
manner specified in section 807 of this title: Provided, That in the
event the United States does not exercise the right to take over or does
not issue a license to a new licensee, or issue a new license to the
existing licensee, upon reasonable terms, then the commission shall
issue from year to year an annual license to the then licensee under the
terms and conditions of the existing license until the property is taken
over or a new license is issued as aforesaid.
(2) Any new license issued under this section shall be issued to the
applicant having the final proposal which the Commission determines is
best adapted to serve the public interest, except that in making this
determination the Commission shall ensure that insignificant differences
with regard to subparagraphs (A) through (G) of this paragraph between
competing applications are not determinative and shall not result in the
transfer of a project. In making a determination under this section
(whether or not more than one application is submitted for the project),
the Commission shall, in addition to the requirements of section 803 of
this title, consider (and explain such consideration in writing) each of
the following:
(A) The plans and abilities of the applicant to comply with (i)
the articles, terms, and conditions of any license issued to it and
(ii) other applicable provisions of this subchapter.
(B) The plans of the applicant to manage, operate, and maintain
the project safely.
(C) The plans and abilities of the applicant to operate and
maintain the project in a manner most likely to provide efficient
and reliable electric service.
(D) The need of the applicant over the short and long term for
the electricity generated by the project or projects to serve its
customers, including, among other relevant considerations, the
reasonable costs and reasonable availability of alternative sources
of power, taking into consideration conservation and other relevant
factors and taking into consideration the effect on the provider
(including its customers) of the alternative source of power, the
effect on the applicant's operating and load characteristics, the
effect on communities served or to be served by the project, and in
the case of an applicant using power for the applicant's own
industrial facility and related operations, the effect on the
operation and efficiency of such facility or related operations, its
workers, and the related community. In the case of an applicant that
is an Indian tribe applying for a license for a project located on
the tribal reservation, a statement of the need of such tribe for
electricity generated by the project to foster the purposes of the
reservation may be included.
(E) The existing and planned transmission services of the
applicant, taking into consideration system reliability, costs, and
other applicable economic and technical factors.
(F) Whether the plans of the applicant will be achieved, to the
greatest extent possible, in a cost effective manner.
(G) Such other factors as the Commission may deem relevant,
except that the terms and conditions in the license for the
protection, mitigation, or enhancement of fish and wildlife
resources affected by the development, operation, and management of
the project shall be determined in accordance with section 803 of
this title, and the plans of an applicant concerning fish and
wildlife shall not be subject to a comparative evaluation under this
subsection.
(3) In the case of an application by the existing licensee, the
Commission shall also take into consideration each of the following:
(A) The existing licensee's record of compliance with the terms
and conditions of the existing license.
(B) The actions taken by the existing licensee related to the
project which affect the public.
(b) Notification of intention regarding renewal; public availability of
documents; notice to public and Federal agencies; identification
of Federal or Indian lands included; additional information
required
(1) Each existing licensee shall notify the Commission whether the
licensee intends to file an application for a new license or not. Such
notice shall be submitted at least 5 years before the expiration of the
existing license.
(2) At the time notice is provided under paragraph (1), the existing
licensee shall make each of the following reasonably available to the
public for inspection at the offices of such licensee: current maps,
drawings, data, and such other information as the Commission shall, by
rule, require regarding the construction and operation of the licensed
project. Such information shall include, to the greatest extent
practicable pertinent energy conservation, recreation, fish and
wildlife, and other environmental information. Copies of the information
shall be made available at reasonable costs of reproduction. Within 180
days after October 16, 1986, the Commission shall promulgate regulations
regarding the information to be provided under this paragraph.
(3) Promptly following receipt of notice under paragraph (1), the
Commission shall provide public notice of whether an existing licensee
intends to file or not to file an application for a new license. The
Commission shall also promptly notify the National Marine Fisheries
Service and the United States Fish and Wildlife Service, and the
appropriate State fish and wildlife agencies.
(4) The Commission shall require the applicant to identify any
Federal or Indian lands included in the project boundary, together with
a statement of the annual fees paid as required by this subchapter for
such lands, and to provide such additional information as the Commission
deems appropriate to carry out the Commission's responsibilities under
this section.
(c) Time of filing application; consultation and participation in
studies with fish and wildlife agencies; notice to applicants;
adjustment of time periods
(1) Each application for a new license pursuant to this section
shall be filed with the Commission at least 24 months before the
expiration of the term of the existing license. Each applicant shall
consult with the fish and wildlife agencies referred to in subsection
(b) of this section and, as appropriate, conduct studies with such
agencies. Within 60 days after the statutory deadline for the submission
of applications, the Commission shall issue a notice establishing
expeditious procedures for relicensing and a deadline for submission of
final amendments, if any, to the application.
(2) The time periods specified in this subsection and in subsection
(b) of this section shall be adjusted, in a manner that achieves the
objectives of this section, by the Commission by rule or order with
respect to existing licensees who, by reason of the expiration dates of
their licenses, are unable to comply with a specified time period.
(d) Adequacy of transmission facilities; provision of services to
successor by existing licensee; tariff; final order;
modification, extension or termination of order
(1) In evaluating applications for new licenses pursuant to this
section, the Commission shall not consider whether an applicant has
adequate transmission facilities with regard to the project.
(2) When the Commission issues a new license (pursuant to this
section) to an applicant which is not the existing licensee of the
project and finds that it is not feasible for the new licensee to
utilize the energy from such project without provision by the existing
licensee of reasonable services, including transmission services, the
Commission shall give notice to the existing licensee and the new
licensee to immediately enter into negotiations for such services and
the costs demonstrated by the existing licensee as being related to the
provision of such services. It is the intent of the Congress that such
negotiations be carried out in good faith and that a timely agreement be
reached between the parties in order to facilitate the transfer of the
license by the date established when the Commission issued the new
license. If such parties do not notify the Commission that within the
time established by the Commission in such notice (and if appropriate,
in the judgment of the Commission, one 45-day extension thereof), a
mutually satisfactory arrangement for such services that is consistent
with the provisions of this chapter has been executed, the Commission
shall order the existing licensee to file (pursuant to section 824d of
this title) with the Commission a tariff, subject to refund, ensuring
such services beginning on the date of transfer of the project and
including just and reasonable rates and reasonable terms and conditions.
After notice and opportunity for a hearing, the Commission shall issue a
final order adopting or modifying such tariff for such services at just
and reasonable rates in accordance with section 824d of this title and
in accordance with reasonable terms and conditions. The Commission, in
issuing such order, shall ensure the services necessary for the full and
efficient utilization and benefits for the license term of the electric
energy from the project by the new licensee in accordance with the
license and this subchapter, except that in issuing such order the
Commission--
(A) shall not compel the existing licensee to enlarge generating
facilities, transmit electric energy other than to the distribution
system (providing service to customers) of the new licensee
identified as of the date one day preceding the date of license
award, or require the acquisition of new facilities, including the
upgrading of existing facilities other than any reasonable
enhancement or improvement of existing facilities controlled by the
existing licensee (including any acquisition related to such
enhancement or improvement) necessary to carry out the purposes of
this paragraph;
(B) shall not adversely affect the continuity and reliability of
service to the customers of the existing licensee;
(C) shall not adversely affect the operational integrity of the
transmission and electric systems of the existing licensee;
(D) shall not cause any reasonably quantifiable increase in the
jurisdictional rates of the existing licensee; and
(E) shall not order any entity other than the existing licensee
to provide transmission or other services.
Such order shall be for such period as the Commission deems appropriate,
not to exceed the term of the license. At any time, the Commission, upon
its own motion or upon a petition by the existing or new licensee and
after notice and opportunity for a hearing, may modify, extend, or
terminate such order.
(e) License term on relicensing
Except for an annual license, any license issued by the Commission
under this section shall be for a term which the Commission determines
to be in the public interest but not less than 30 years, nor more than
50 years, from the date on which the license is issued.
(f) Nonpower use licenses; recordkeeping
In issuing any licenses under this section except an annual license,
the Commission, on its own motion or upon application of any licensee,
person, State, municipality, or State commission, after notice to each
State commission and licensee affected, and after opportunity for
hearing, whenever it finds that in conformity with a comprehensive plan
for improving or developing a waterway or waterways for beneficial
public uses all or part of any licensed project should no longer be used
or adapted for use for power purposes, may license all or part of the
project works for nonpower use. A license for nonpower use shall be
issued to a new licensee only on the condition that the new licensee
shall, before taking possession of the facilities encompassed
thereunder, pay such amount and assume such contracts as the United
States is required to do, in the manner specified in section 807 of this
title. Any license for nonpower use shall be a temporary license.
Whenever, in the judgment of the Commission, a State, municipality,
interstate agency, or another Federal agency is authorized and willing
to assume regulatory supervision of the lands and facilities included
under the nonpower license and does so, the Commission shall thereupon
terminate the license. Consistent with the provisions of subchapter IV
of this chapter, every licensee for nonpower use shall keep such
accounts and file such annual and other periodic or special reports
concerning the removal, alteration, nonpower use, or other disposition
of any project works or parts thereof covered by the nonpower use
license as the Commission may by rules and regulations or order
prescribe as necessary or appropriate.
(June 10, 1920, ch. 285, pt. I, Sec. 15, 41 Stat. 1072; renumbered pt.
I, Aug. 26, 1935, ch. 687, title II, Sec. 212, 49 Stat. 847; Pub. L. 90-
451, Sec. 3, Aug. 3, 1968, 82 Stat. 617; Pub. L. 99-495, Secs. 4(a),
(b)(1), 5, Oct. 16, 1986, 100 Stat. 1245, 1248.)
Amendments
1986--Subsec. (a). Pub. L. 99-495, Sec. 4(a), (b)(1), designated
existing provisions as par. (1), substituted ``existing'' for
``original'' wherever appearing, and added pars. (2) and (3).
Subsecs. (b) to (f). Pub. L. 99-495, Secs. 4(a), 5, added subsecs.
(b) to (e) and redesignated former subsec. (b) as (f).
1968--Pub. L. 90-451 designated existing provisions as subsec. (a)
and added subsec. (b).
Effective Date of 1986 Amendment
Amendment by Pub. L. 99-495 effective with respect to each license,
permit, or exemption issued under this chapter after Oct. 16, 1986, see
section 18 of Pub. L. 99-495, set out as a note under section 797 of
this title.
Transfer of Functions
Federal Power Commission terminated and its functions with regard to
licenses and permits for dams, reservoirs, or other works for
development and improvement of navigation and for development and
utilization of power across, along, from, or in navigable waters under
this subchapter transferred to Federal Energy Regulatory Commission by
sections 7172(a)(1)(A) and 7293 of Title 42, The Public Health and
Welfare.
Section Referred to in Other Sections
This section is referred to in sections 802, 803, 807 of this title;
title 43 section 1761.
