
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 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.
