U.S. Code » Title 16 » Chapter CHAPTER 12— FEDERAL REGULATION AND DEVELOPMENT OF POWER › Subchapter SUBCHAPTER I— REGULATION OF THE DEVELOPMENT OF WATER POWER AND RESOURCES

16 U.S.C. § 817

Projects not affecting navigable waters; necessity for Federal license, permit or right-of-way; unauthorized activities

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(1) It shall be unlawful for any person, State, or municipality, for the purpose of developing electric power, to construct, operate, or maintain any dam, water conduit, reservoir, power house, or other works incidental thereto across, along, or in any of the navigable waters of the United States, or upon any part of the public lands or reservations of the United States (including the Territories), or utilize the surplus water or water power from any Government dam, except under and in accordance with the terms of a permit or valid existing right-of-way granted prior to June 10, 1920, or a license granted pursuant to this chapter. Any person, association, corporation, State, or municipality intending to construct a dam or other project works, across, along, over, or in any stream or part thereof, other than those defined in this chapter as navigable waters, and over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States shall before such construction file declaration of such intention with the Commission, whereupon the Commission shall cause immediate investigation of such proposed construction to be made, and if upon investigation it shall find that the interests of interstate or foreign commerce would be affected by such proposed construction, such person, association, corporation, State, or municipality shall not construct, maintain, or operate such dam or other project works until it shall have applied for and shall have received a license under the provisions of this chapter. If the Commission shall not so find, and if no public lands or reservations are affected, permission is granted to construct such dam or other project works in such stream upon compliance with State laws.(2) No person may commence any significant modification of any project licensed under, or exempted from, this chapter unless such modification is authorized in accordance with terms and conditions of such license or exemption and the applicable requirements of this subchapter. As used in this paragraph, the term “commence” refers to the beginning of physical on-site activity other than surveys or testing.(June 10, 1920, ch. 285, pt. I, § 23(b), 41 Stat. 1075; renumbered pt. I and amended, Aug. 26, 1935, ch. 687, title II, §§ 210, 212, 49 Stat. 846, 847; Pub. L. 99–495, § 6, Oct. 16, 1986, 100 Stat. 1248.)Editorial NotesCodification

Section consists of subsec. (b) of section 23 of act June 10, 1920, as so designated by act Aug. 26, 1935. Subsec. (a) of section 23 of act June 10, 1920, is set out as section 816 of this title.

Amendments

1986—Pub. L. 99–495 designated existing provisions as par. (1) and added par. (2).

1935—Act Aug. 26, 1935, § 210, amended section generally, inserting first sentence, and substituting “with foreign nations” for “between foreign nations”, “shall before such construction” for “may in their discretion” and “shall not construct, maintain, or operate such dam or other project works” for “shall not proceed with such construction”.

Statutory Notes and Related SubsidiariesEffective Date of 1986 Amendment

Amendment by Pub. L. 99–495 applicable to licenses, permits, and exemptions without regard to when issued, see section 18 of Pub. L. 99–495, set out as a note under section 797 of this title.

Notes of Decisions
Cited in 91 cases (12 in the last 5 years), 1933–2025 · leading case: Turlock Irrigation Dist. v. Fed. Energy Regulatory Comm'n, 786 F.3d 18 (D.C. Cir. 2015).
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Turlock Irrigation Dist. v. Fed. Energy Regulatory Comm'n, 786 F.3d 18 (D.C. Cir. 2015). · cites it 6× “In the decision, the Director concluded that the licensure was required under three governing provisions of 16 U.S.C. § 817 (1): the Project was (1) located on a navigable water of the United States, (2) occupied public lands of the United States, or (3) if the stream were not…”
L.S. Starrett Co. v. Fed. Energy Regulatory Comm'n, 650 F.3d 19 (1st Cir. 2011). · cites it 14× “See 16 U.S.C. § 817 (1). For the reasons below, we conclude that we have no choice [2] but to affirm.”
Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765 (1984). · cites it 2× “” 16 U. S. C. §817 . Respondents argue that it would make no sense to conclude that Congress intended to require the Commission to exercise its licensing jurisdiction when a reservation is “affected” by such a project if it did not also intend to afford those reservations all of…”
Chemehuevi Tribe of Indians v. Fed. Power Comm'n, 420 U.S. 395 (1975). · cites it 3× “” Section 23 (b) of the Act, 16 U. S. C. § 817 , in turn, prohibits the unlicensed construction of such works on any navigable stream as well as the unlicensed utilization of the surplus water from a Government dam for the purpose of developing electric power.”
S. D. Warren Co. v. Maine Bd. of Env't Prot., 547 U.S. 370 (2006). “16 U. S. C. §§817 (1), 792; see also Public Utility Act of 1935, §210, 49 Stat.”
NC Dep't of Env't v. FERC, 3 F.4th 655 (4th Cir. 2021). · cites it 3× “” 16 U.S.C. § 817 (1). Since 1935, the statute has also required a FERC license for the construction of hydroelectric projects located on a non-navigable body of water that is nonetheless subject to Congress’ authority under the Commerce Clause, if FERC determines that the…”
First Iowa Hydro-Elec. Coop. v. Fed. Power Comm'n, 328 U.S. 152 (1946). · cites it 2× “846 , 16 U.S.C. § 817 . [3] This described a project including an 8,500 foot earthen dam, and a power plant of three 5,000 kw.”
United States v. Appalachian Elec. Power Co., 107 F.2d 769 (4th Cir. 1939). · cites it 5× “Section 23 of the Federal Water Power Act of 1920, 16 U.S. C.A. § 817, provided that persons intending to construct a dam in a stream "other than those defined in this chapter as navigable *775 waters, and over which Congress has jurisdiction under its authority to regulate…”
Marjorie Linder Cooley v. Fed. Energy Regulatory Comm'n, 843 F.2d 1464 (D.C. Cir. 1988). · cites it 4× “§ 797 (e), to voluntary applicants to operate hydroelectric plants constructed prior to 1935 on certain non-navigable streams, despite its inability to require such licenses under § 23(b) of the Act, 16 U.S.C. § 817 . See Farmington River Power Co.”
Puget Sound Power & Light Co. v. Fed. Power Comm'n, 557 F.2d 1311 (9th Cir. 1977). · cites it 3× “To decide this question requires a determination of whether certain repair and restoration of the project made after 1935 was “construction” of the facility as that term is used in Section 23(b) of the Federal Power Act [ 16 U.S.C. § 817 ]. We hold that the FPC does not have…”
City of Centralia, Washington v. Fed. Energy Regulatory Comm'n, 661 F.2d 787 (9th Cir. 1981). · cites it 4× “Before enlarging the plant, Centraba filed a declaration of intention with the Federal Power Commission 1 as required by § 23(b) of the Federal Power Act, 16 U.S.C. § 817 . 2 The Commission, finding that the proposed construction would not affect the interests of interstate or…”
Washington Water Power Co. v. Fed. Energy Regulatory Comm'n, Spokane Tribe of Indians, Intervenor, 775 F.2d 305 (D.C. Cir. 1985). · cites it 3× “gable waters of the United States, or upon any part of the public lands or reservations of the United States (including the Territories), or utilize the surplus water or water power from any Government dam, except under and in accordance with the terms of a permit or valid…”
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