§ 823c. — Alaska State jurisdiction over small hydroelectric projects.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC823c]
TITLE 16--CONSERVATION
CHAPTER 12--FEDERAL REGULATION AND DEVELOPMENT OF POWER
SUBCHAPTER I--REGULATION OF THE DEVELOPMENT OF WATER POWER AND RESOURCES
Sec. 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) 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.
(June 10, 1920, ch. 285, pt. I, Sec. 32, as added Pub. L. 106-469, title
V, Sec. 501, Nov. 9, 2000, 114 Stat. 2037.)
References in Text
The Endangered Species Act, referred to in subsec. (a)(1), probably
means the Endangered Species Act of 1973, Pub. L. 93-205, Dec. 28, 1973,
87 Stat. 884, as amended, which is classified generally to chapter 35
(Sec. 1531 et seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 1531 of this
title and Tables.
The Fish and Wildlife Coordination Act, referred to in subsec.
(a)(1), (3)(C), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, as amended,
which is classified generally to sections 661 to 666c of this title. For
complete classification of this Act to the Code, see Short Title note
set out under section 661 of this title and Tables.
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the
Coast Guard, including the authorities and functions of the Secretary of
Transportation relating thereto, to the Department of Homeland Security,
and for treatment of related references, see sections 468(b), 551(d),
552(d), and 557 of Title 6, Domestic Security, and the Department of
Homeland Security Reorganization Plan of November 25, 2002, as modified,
set out as a note under section 542 of Title 6.
