16 U.S.C. § 823a

Conduit hydroelectric facilities

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(a) Qualifying conduit hydropower facilities(1) A qualifying conduit hydropower facility shall not be required to be licensed under this subchapter.(2)(A) Any person, State, or municipality proposing to construct a qualifying conduit hydropower facility shall file with the Commission a notice of intent to construct such facility. The notice shall include sufficient information to demonstrate that the facility meets the qualifying criteria.(B) Not later than 15 days after receipt of a notice of intent filed under subparagraph (A), the Commission shall—(i) make an initial determination as to whether the facility meets the qualifying criteria; and(ii) if the Commission makes an initial determination, pursuant to clause (i), that the facility meets the qualifying criteria, publish public notice of the notice of intent filed under subparagraph (A).(C) If, not later than 30 days after the date of publication of the public notice described in subparagraph (B)(ii)—(i) an entity contests whether the facility meets the qualifying criteria, the Commission shall promptly issue a written determination as to whether the facility meets such criteria; or(ii) no entity contests whether the facility meets the qualifying criteria, the facility shall be deemed to meet such criteria.(3) For purposes of this section:(A) The term “conduit” means any tunnel, canal, pipeline, aqueduct, flume, ditch, or similar manmade water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity.(B) The term “qualifying conduit hydropower facility” means a facility (not including any dam or other impoundment) that is determined or deemed under paragraph (2)(C) to meet the qualifying criteria.(C) The term “qualifying criteria” means, with respect to a facility—(i) the facility is constructed, operated, or maintained for the generation of electric power and uses for such generation only the hydroelectric potential of a non-federally owned conduit;(ii) the facility has an installed capacity that does not exceed 40 megawatts; and(iii) on or before August 9, 2013, the facility is not licensed under, or exempted from the license requirements contained in, this subchapter.(b) Exemption qualificationsSubject to subsection (c), the Commission may grant an exemption in whole or in part from the requirements of this subchapter, including any license requirements contained in this subchapter, to any facility (not including any dam or other impoundment) constructed, operated, or maintained for the generation of electric power which the Commission determines, by rule or order—(1) utilizes for such generation only the hydroelectric potential of a conduit; and(2) has an installed capacity that does not exceed 40 megawatts.(c) Consultation with Federal and State agenciesIn making the determination under subsection (b) the Commission shall consult with the United States Fish and Wildlife Service 11 So in original. Probably should be followed by a comma. National Marine Fisheries Service 1 and the State agency exercising administration over the fish and wildlife resources of the State in which the facility is or will be located, in the manner provided by the Fish and Wildlife Coordination Act (16 U.S.C. 661, et seq.), and shall include in any such exemption—(1) such terms and conditions as the Fish and Wildlife Service ¹ National Marine Fisheries Service ¹ and the State agency each determine are appropriate to prevent loss of, or damage to, such resources and to otherwise carry out the purposes of such Act, and(2) such terms and conditions as the Commission deems appropriate to insure that such facility continues to comply with the provisions of this section and terms and conditions included in any such exemption.(d) Violation of terms of exemption

Any violation of a term or condition of any exemption granted under subsection (b) shall be treated as a violation of a rule or order of the Commission under this chapter.

(e) Fees for studies

The Commission, in addition to the requirements of section 803(e) of this title, shall establish fees which shall be paid by an applicant for a license or exemption for a project that is required to meet terms and conditions set by fish and wildlife agencies under subsection (c). Such fees shall be adequate to reimburse the fish and wildlife agencies referred to in subsection (c) for any reasonable costs incurred in connection with any studies or other reviews carried out by such agencies for purposes of compliance with this section. The fees shall, subject to annual appropriations Acts, be transferred to such agencies by the Commission for use solely for purposes of carrying out such studies and shall remain available until expended.

(June 10, 1920, ch. 285, pt. I, § 30, as added Pub. L. 95–617, title II, § 213, Nov. 9, 1978, 92 Stat. 3148; amended Pub. L. 99–495, § 7, Oct. 16, 1986, 100 Stat. 1248; Pub. L. 113–23, § 4(a), Aug. 9, 2013, 127 Stat. 494; Pub. L. 115–270, title III, § 3002, Oct. 23, 2018, 132 Stat. 3863.)Editorial NotesReferences in Text

The Fish and Wildlife Coordination Act, referred to in subsec. (c), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, which is classified generally to sections 661 to 666c–1 of this title. For complete classification of this Act to the Code, see section 661(a) of this title, Short Title note set out under section 661 of this title, and Tables.

Prior Provisions

A prior section 30 of act June 10, 1920, was classified to section 791 of this title, prior to repeal by act Aug. 26, 1935, ch. 687, title II, § 212, 49 Stat. 847.

Amendments

2018—Subsec. (a)(2)(C). Pub. L. 115–270, § 3002(1), substituted “30 days” for “45 days” in introductory provisions.

Subsec. (a)(3)(C)(ii). Pub. L. 115–270, § 3002(2), substituted “40 megawatts” for “5 megawatts”.

2013—Subsecs. (a), (b). Pub. L. 113–23, § 4(a)(1), added subsecs. (a) and (b) and struck out former subsecs. (a) and (b) which authorized the Commission to grant exemptions from the requirements of this subchapter for certain hydroelectric facilities and prohibited the granting of exemptions to facilities with certain capacities.

Subsec. (c). Pub. L. 113–23, § 4(a)(2), substituted “subsection (b)” for “subsection (a)” in introductory provisions.

Subsec. (d). Pub. L. 113–23, § 4(a)(3), substituted “subsection (b)” for “subsection (a)”.

1986—Subsec. (b). Pub. L. 99–495, § 7(a), inserted provision setting the maximum installation capacity for exemptions under subsec. (a) at 40 megawatts in the case of a facility constructed, operated, and maintained by an agency or instrumentality of a State or local government solely for water supply for municipal purposes.

Subsec. (c). Pub. L. 99–495, § 7(b), which directed the insertion of “National Marine Fisheries Service” after “the Fish and Wildlife Service” in both places such term appears, was executed by inserting “National Marine Fisheries Service” after “the United States Fish and Wildlife Service” and “the Fish and Wildlife Service”, as the probable intent of Congress.

Subsec. (e). Pub. L. 99–495, § 7(c), added subsec. (e).

Statutory Notes and Related SubsidiariesEffective 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.

Application of Subsection (c)

Pub. L. 99–495, § 8(c), Oct. 16, 1986, 100 Stat. 1251, provided that: “Nothing in this Act [see Short Title of 1986 Amendment note set out under section 791a of this title] shall affect the application of section 30(c) of the Federal Power Act [16 U.S.C. 823a(c)] to any exemption issued after the enactment of this Act [Oct. 16, 1986].”

Notes of Decisions

Cited in 18 cases, 1985–2019 · leading case: Adrian Energy Associates v. Michigan Public Service Commission, Consumers Energy Company, Intervenor-Defendant

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Adrian Energy Associates v. Michigan Public Service Commission, Consumers Energy Company, Intervenor-Defendant (2007) ca6 “, as amended, 16 U.S.C. § 823a et seq. The utility must purchase the qualifying facility’s power for its full “avoided cost” — the amount it would have cost the utility to generate, or to construct facilities to generate, the same power itself or to purchase the power from a…”

Crossroads Cogeneration Corporation v. Orange & Rockland Utilities, Inc (1998) ca3 “In the midst of a national energy crisis in 1978, Congress modified the Federal Power Act by enacting the Public Utility Regulatory Policies Act (“PURPA”), 16 U.S.C. § 823a et seq. Congress’ overall strategy was to “control power generation costs and ensure long-term economic…”

Kamine/Besicorp Allegany L.P. v. Rochester Gas & Electric Corp. (1995) nywd “In 1978, in response to a nationwide energy crisis, Congress enacted the Public Utility Regulatory Policies Act (“PURPA”), 16 U.S.C. § 823a et seq., as an amendment to the Federal Power Act, 16 U.”

City of Tacoma v. Federal Energy Regulatory Commission (2003) cadc “” 16 U.S.C. § 823a(e) (emphasis added). Notwithstanding, the Commission interprets the language differently: Since the Commission is responsible for establishing fees to reimburse “reasonable costs,” it necessarily has the authority to determine whether the costs submitted by…”

In Re Megan-Racine Associates, Inc. (1996) nynb “Rochester Gas & Electric Corp., 908 F.Supp. 1180, 1182 (W.”

Swanson Mining Corporation v. Federal Energy Regulatory Commission (1986) cadc “§ 2705 (d); cf 16 U.S.C. § 823a(c)-(d). The Wild and Scenic Rivers Act limits FERC’s authority to issue licenses under the Federal Power Act or to issue exemptions under the Energy Security Act.”

Crossroads Cogeneration Corp. v. Orange & Rockland Utilities, Inc. (1997) njd “§ 1331 , stating that this action “is based on rights arising under the federal Public Utility Regulatory Policies Act of 1978 (‘PURPA’), 16 U.S.C. § 823a et seq.” (Compl., ¶ 8). Overlooking the fact that plaintiff does not point the Court to the specific section of PURPA under…”

Monticello v. Public Service Commn (2019) utah “And “in 1978, Congress modified the Federal Power Act by enacting the Public Utility Regulatory Policies Act (‘PURPA’), 16 U.S.C. § 823a et seq.,” to “control power generation costs and ensure long-term economic growth by reducing the nation’s reliance on oil and gas and…”

Idaho Power Company v. Federal Energy Regulatory Commission (1985) ca9 “§ 823a(b)) hydroelectric facilities that utilize water-supply conduits that are operated primarily for purposes other than power generation. Section 210 of PURPA, 16 U.S.C. § 824a-3, requires electric utilities to purchase power from qualifying small (under 80 megawatts, see id.”

Idaho Power Company v. Federal Energy Regulatory Commission, Horseshoe Bend Hydroelectric Co., Intervenor (1989) cadc “Boise’s expectation of sales to Idaho Power was apparently based on its anticipation that the plant would be a “qualifying facility” under § 210 of the Public Utility Regulatory Policies Act (“PURPA”), 16 U.”

Wisconsin Valley Improvement Co. v. Meyer (1996) wiwd “16 U.S.C. § 823a(e). 2 The fees are to be used to reimburse state fish and wildlife agencies for expenses incurred by them in the mandatory consultation process with the Federal Energy Regulatory Commission.”

Steamboaters v. Federal Energy Regulatory, Commission (1985) ca9 · cites it 3× “NMFS argues that FERC is required under Section 30 of the Federal Power Act 1 , 16 U.S.C. § 823a, to impose NMFS fishery conditions on hydropower projects exempted from licensing under the ESA.”

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— 16 U.S.C. § 823a(a) — 2 cases

City of Centralia, Washington v. Federal Energy Regulatory Commission, and Pacific Power and Light Company, Respondent-I (1986) ca9

Steamboaters v. Federal Energy Regulatory, Commission (1985) ca9 “NMFS argues that FERC is required under Section 30 of the Federal Power Act 1 , 16 U.S.C. § 823a, to impose NMFS fishery conditions on hydropower projects exempted from licensing under the ESA.”

— 16 U.S.C. § 823a(c) — 2 cases

— 16 U.S.C. § 823a(e) — 2 cases

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